In re Massey
In re Massey
Opinion of the Court
In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel have entered into an Agreement for Discipline by Consent pursuant to Rule 21, RLDE, Rule 413, SCACR. In the agreement, respondent admits misconduct and consents to the imposition of any sanction set forth in Rule 7(b), RLDE. We accept the agreement and find a two year suspension from the practice of law is the appropriate sanction. The facts, as set forth in the agreement, are as follows.
Facts
I. Domestic Relations Matter
Respondent was retained to represent a client in a domestic relations matter. During his representation of the client, respondent’s wife filed for divorce in North Carolina on several grounds, including adultery. During his representation of the client, and while his own divorce action was pending, respondent was observed leaving the client’s residence at 3:00 a.m. on a night that the client had custody of her minor child.
In addition, concurrent with his representation of the client, respondent employed the client as a contract employee of his law firm. Respondent maintains he had an agreement with the client that she could work off her attorney’s fee debt by
In response to inquiries by the Office of Disciplinary Counsel, respondent denied having an extra-marital affair with the client and, instead, affirmatively asserted the client was working on certain projects for him, including acting as a process server, and he was at the client’s home several times at night. Respondent maintains that while his conduct created an appearance of impropriety, he did not engage in a sexual relationship with the client.
Respondent provided Disciplinary Counsel with affidavits from both the client and the client’s mother indicating the client’s mother was present at all times that he and the client were together and that no illicit relationship took place during the visits. However, respondent concedes that the private investigator’s report indicated that the private investigator made multiple visits to the client’s home and did not see anyone else in the home on those occasions, nor did he see any additional vehicles. Respondent provided the same affidavits of his client and the client’s mother to the court handling his own divorce action. He denies the affidavits were false.
II. Fee Agreement Matter
Respondent was retained, for a fee of $5,000, to represent another client in a domestic matter. The client also retained respondent to represent him on a traffic violation and in a criminal domestic violence (CDV) matter in which the client was the purported victim. Respondent entered into separate fee agreements with the client for representation in the traffic violation matter and the CDV matter, both of which set forth an hourly rate of $150.
Respondent provided the client with a billing statement wherein respondent billed the client for 52 telephone calls, 8 after-hours telephone calls, 6.5 hours of court and drive time, 10.25 hours for review, dictation and appointment time, and 6 hours for review of client correspondence, at the agreed upon rate of $150 per hour. Thereafter, respondent provided the
III. Divorce Matter
During the pendency of his divorce action, respondent made multiple complaints to the North Carolina Department of Social Services against both his former spouse and her parents. He also sent, or caused to be sent, certain facsimile transmissions to his former spouse’s workplace. Respondent admits that he utilized his law firm’s facsimile equipment and letterhead to transmit various allegations concerning his former spouse’s character to her employer.
The court handling the divorce action issued an order stating that “ [throughout the course of the marriage [respondent was] verbally abusive to [his former spouse] to the extent that the verbal abuse was overheard by neighbors and seen by close friends of the parties.” The order also states that respondent testified at the hearing “that [he] had only been at [an alleged paramour’s] residence on other occasions to drop off and pick up files.” The order then provides that “[respondent] had approved an Affidavit signed by [the alleged paramour] stating this fact ....”, and that he submitted the affidavit to the court. Finally, the order finds that [respondent] engaged in illicit sexual behavior with [the alleged paramour] after the separation of the parties and that this relationship [was] shown by a preponderance of the evidence.”
Respondent admits that in his response to Disciplinary Counsel’s inquiries, he maintained the North Carolina court found there to be neither evidence of marital misconduct nor
IV. Client File Matter
Respondent was retained to represent a client in a matter concerning a Social Security disability claim. Respondent entered into a fee agreement with the client. The fee agreement stated the client would be billed $150 per hour for respondent’s services, $50 per hour for paralegal services, plus all costs, whether the case was settled or went to trial.
Approximately eleven months later, the client terminated respondent as legal counsel and requested a copy of her file. Respondent charged the client $.33 per page to copy the file and, after receipt of payment, returned the file to the client.
In his response to Disciplinary Counsel’s inquiries, respondent maintained that he was required by law to retain a copy of the client’s file, so a copy of the file was made and the client was billed at the rate of $.33 per page. Thereafter, respondent was asked to provide a copy of the fee agreement he had entered into with the client and to explain his “legal” argument or justification for charging a client for the copying of the client’s file. Respondent failed to timely respond to the second request for information. In the untimely response he eventually filed, respondent failed to provide a complete explanation as originally requested. Instead, respondent provided a copy of the fee agreement, which respondent now admits was an insufficient legal basis for charging the client $.33 per page for the copying and return of the client’s file.
Law
Respondent admits that by his conduct he has violated the following provisions of the Rules of Professional Conduct, Rule
Respondent also admits that his misconduct constitutes grounds for discipline under the following provisions of the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1) (violation of the Rules of Professional Conduct); Rule 7(a)(3) (knowing failure to respond to a demand or inquiry from a disciplinary authority); and Rule 7(a)(5) (engaging in conduct tending to pollute the administration of justice or to bring the courts or the legal profession into disrepute or conduct demonstrating an unfitness to practice law).
Conclusion
We hereby accept the Agreement for Discipline by Consent and suspend respondent from the practice of law in this state for two years. Within fifteen days of the date of this opinion, respondent shall file an affidavit with the Clerk of Court showing that he has complied with Rule 30, RLDE, Rule 413, SCACR.
DEFINITE SUSPENSION.
Reference
- Full Case Name
- In the Matter of Kenneth B. MASSEY
- Cited By
- 1 case
- Status
- Published