Monthly Archives: July 2014

Suing the Opponent’s Attorney – Karma and Legal Malpractice South Carolina Style

While South Carolina is better known for its Christian fundamentalism than for Buddhism, Jainism or Sikhism, we have a strangely karmic rule of law which actually permits a litigant in certain circumstances to return fire not only at the opposing party, but also at the opposing party’s legal counsel. Karma holds in part that morally good acts are rewarded with positive consequences, whereas bad acts will be returned by negative consequences. So then, is it a morally bad act for a lawyer to sue someone on behalf of a client? If so, what bad consequence awaits the offending lawyer?

Like all jurisdictions, South Carolina has built in governors that regulate and constrain most bad conduct in litigation. Rule 11 of the SCRCP provides the court with the power to sanction an attorney who commences or continues a claim which lacks legal or factual merit. In addition, the South Carolina Rules of Professional Conduct contain duties of candor to the court, opposing counsel and third parties which open offending counsel to possible action against their licenses to practice law if violated. Finally, South Carolina also has a civility oath which contains certain guidelines with regard to the manner in which we conduct ourselves – after all, this is the South, where courtesy, professionalism and, yes, manners still apply.

Unlike many States, however, South Carolina has expanded the field of play when it comes to correcting bad litigation behavior. Traditionally, if an opposing party’s attorney overstepped his or her bounds, the aggrieved party could only sue the opposing party for the conduct of their attorney on theories such as malicious prosecution, abuse of process, reimbursement for costs and fees under the South Carolina Civil Frivolous Proceedings Sanctions Act or even tortious interference with existing contractual relations or prospective economic advantage. The requirement of privity in a legal malpractice claim made a direct action against the lawyer who acted badly impossible. After all, the first element of a claim of legal malpractice had always been the existence of an attorney client relationship. As stated in Gaar v. North Myrtle Beach Realty, Co, Inc., 287 S.C. 525, 339 S.E.2d 887 (Ct.App. 1986):

“In our opinion, the better rule is that an attorney is immune from liability to third persons arising from the performance of his professional activities as an attorney on behalf of and with the knowledge of his client. Accordingly, an attorney who acts in good faith with the authority of his client is not liable to a third party in an action for malicious prosecution [Citation omitted]. Such a suit is properly brought against the party to the original action, not the attorney representing him. The attorney normally conducts the litigation solely in his professional capacity. He has no personal interest in the suit. In his professional capacity the attorney is not liable, except to his client and those in privity with his client, for injury allegedly arising out of the performance of his professional activities.”

 “Has no personal interest” – hmmm. Well, what if there is a personal interest and more than just the interest in earning a fee which will doom most all of us if that represents bad karma? In Stiles v. Onorato, 318 S.C. 297, 457 S.E.2d 601 (1995), our Supreme Court answered that question. In overturning the dismissal of a claim brought by a party against the opposing party’s attorney, our Court held that “an attorney may be held liable for conspiracy where, in addition to representing his client, he breaches some independent duty to a third person or acts in his own personal interest, outside the scope of his representation of the client.”

So now the balance is struck. We are charged by the rules to be zealous advocates for our clients. However, we are cautioned by Stiles not to go so far as to conspire with our clients or to act out of some improper personal motivation. While it seems that the line should be pretty easy to define, we have found in too many circumstances based on the cases we review that it is a line which is often most apparent AFTER it has been crossed. This seems to be a growing phenomenon which we attribute in large part to the competitive marketplace for legal services. The rhetoric of lawyers who promise to be “tougher” or to “fight harder” than their counterparts may be the slippery slope that leads one to go over the line. After all, if you make it your life’s work to touch the line, sooner or later it will be crossed. A word to the wise: step aside if you are too close the action or too personally involved in a case to maintain objectivity while zealously advocating for your clients. Failure to do so may invite bad karma.

In closing, let’s take a collective breath together and reflect instead on a Biblical passage that also seems to have application here: “He that leadeth into captivity shall go into captivity: he that killeth with the sword must be killed with the sword. Here is the patience and the faith of the saints.” (Rev.13:10 KJV).

 

Ronnie Richter and Eric Bland

McNair Law Firm Legal Malpractice lawsuit featured in SC Lawyer’s Weekly

McNair Lawfirm, the third largest firm in the state of SC, is being sued for malpractice by Bland Richter, LLP. The suit alleges that Bob Deeb, a real estate lawyer at the McNair Law Firm’s office in Hilton Head, conspired with a land developer to dispossess five elderly black sisters of beachfront land that had been in their family since the 1920s.

Read the article published in SC Lawyer’s Weekly here or download the PDF here: McNair Law Firm Shareholder Sued fo Legal Malpractice

 

 

Legal Malpractice – What’s Love Got To Do With It?

In nearly 50 years of combined legal experience, my partner and I have seen and heard more than our fair share of legal malpractice war stories. Most legal malpractice cases involve simple human error. For some cases, however, issues beyond simple error can add quite a bit of spice to the sauce. The “ghost pepper” of all such issues has to involve sexual relations with a client or the spouse of a client. While these cases represent a small percentage of malpractice claims overall, it is rather stunning how often sex with a client or with the spouse of a client becomes an issue in a legal malpractice setting.

Not surprisingly (or perhaps surprisingly for the uninformed), Rule 1.8m of the Rules of Professional Conduct provides that “a lawyer shall not have sexual relations with a client when the client is in a vulnerable condition or is otherwise subject to the control or undue influence of the lawyer, when such relations could have a harmful or prejudicial effect upon the interests of the client, or when sexual relations might adversely affect the lawyer’s representation of the client.” Let us help condense the rule – don’t have sex with clients – EVER. After all, aren’t all clients to varying degrees vulnerable? When can sexual relations with a client not be harmful or prejudicial to the interest of the clients – or to put it otherwise – under what bizarre set of circumstances can it be helpful to the interests of the client? The comment to the rules provides three reasons why sexual relations with a client creates a conflict of interest (there are certainly others):

  1. First, a question may arise as to the voluntariness of a client’s consent to a sexual relationship. Lawyers are in a position of extraordinary trust and may not use that power and influence to entice a vulnerable client into an otherwise undesired sexual relationship.
  1. Second, sexual relationships are inappropriate when the existence of the relationship could prejudice a client’s legal interests, especially when the client is involved in a domestic relations case.
  1. Third, a lawyer engaged in an intimate sexual relationship with a client may not be able to exercise the proper degree of professional judgment and independence required to fully represent the client.

So how can sex constitute malpractice? If we start with the proposition that the relationship itself created a conflict of interest that should have prevented the attorney from engaging in the representation in the first place, you can appreciate the significant lead that a client will have in a malpractice claim if he or she obtains a “bad result.” Did the bad result occur because the lawyer’s judgment was impaired as a result of the illicit relationship? Maybe, maybe not – but it is an allegation that any attorney would like not to defend. It could also be that the bad result occurred more directly from the relationship itself. Take for example a contested domestic case in which adultery can directly impact the custodial situation of the children of the marriage, the award of spousal support of the division of marital assets. Would having sex with a client in a domestic action in direct violation of Rule 1.8, which then has a negative impact on the marital property rights of the client constitute a malpractice claim? You bet it would.

Take for example another strange but real world situation we have confronted in the past. Attorney represented a husband in a criminal matter. The attorney met on several occasions with both partners of the marriage. The attorney started to take a romantic interest in the wife. Of course, the lawyer didn’t share this with the husband. The couple struggled financially and couldn’t fully pay the quoted fee for the matter. The attorney told the wife that fees had to be paid or the representation would terminate. Of course, there was a way that the remaining portion of the fee wouldn’t have to be paid. You know the rest. Needless to say, when the relationship finally came to light (and it always does), the husband was less than pleased to know that his attorney extorted his wife for sex in exchange for a concession on the fees.

The bottom line is this – sex with clients is malpractice. Of course, it would have to be the same arrogance, hubris or ignorance that would lead one to believe that it would be “OK” to have sex with the client “just this one time” which would also lead the same person to defend the conduct against the inevitable malpractice claim that would follow. Just as there’s no crying in baseball, there’s no sex in the practice of law – at least not with the clients or client’s spouses or significant others.

Eric Bland and Ronnie Richter

Update on CertusBank Case from Eric Bland – Published in American Banker

South Carolina Investigating Claims Against Former Certus Execs

by Chris Cumming

Published in American Banker

MAY 16, 2014 5:49pm ET

SourceMedia’s Partner Insights program enables marketers to deliver relevant content and insights directly to the Financial Planning audience via SourceMedia’s digital media platforms. Partner Insights content is produced by the marketer. To find out more, contact Anne Hrubala at Anne.Hrubala@sourcemedia.com

The securities commission for South Carolina’s Attorney General has issued subpoenas tied to allegations of financial mismanagement by former executives of CertusBank.

The subpoenas were sent to several “individuals and entities” associated with the recent turmoil at the Greenville, S.C., company, Eric Bland, a lawyer at Bland Richter in Columbia, S.C., said Friday. Bland, who represents three former CertusBank executives who were fired in early April, confirmed that the investigation is linked to allegations of mismanagement by his clients, although he did not name the recipients or confirm whether his clients were among those subpoenaed.

Bland said he is unaware of any other federal or state agency that is investigating his clients.

Few details on the investigation, first reported in the Greenville News, have been made public or confirmed by those involved. The subpoenas are not related to CertusBank and neither the bank nor any current employees have received subpoenas, spokeswoman Kelly Owens said. A spokesman for the state attorney general’s office declined to comment.

Bland confirmed that the state’s probe is connected to allegations of mismanagement that were raised in a March 27 American Banker article. He said, however, that he had not seen the subpoenas and could not provide details. The American Bankerarticle detailed a dispute between the bank’s management and its investors over allegedly excessive executive spending and questionable related-party transactions, including payments of nearly $10 million to Integrated Capital Strategies, a consultancy owned by the top CertusBank executives. Calls to Integrated Capital Strategies were not immediately returned on Friday.

Certus’ board of directors terminated the three founders of the bank, executive chairman Milton Jones, CEO Walter Davis and President Angela Webb, less than two weeks after the allegations were made public; a fourth founder, co-CEO Charles Williams, resigned on March 31.

Jones, Davis and Webb filed a lawsuit against the bank and an investor, Benjamin Weinger of New York hedge fund 3-Sigma Value, on April 23, claiming the defendants conspired to defame the founders in order to wrest control of CertusBank. The lawsuit disputes many of the allegations of mismanagement that Weinger made in a letter that he distributed to other Certus shareholders, allegations the suit claims were motivated by animosity toward African-Americans. Weinger was not immediately available for comment.

Bland Richter and Carlen Case Featured on the Cover of Lawyers Weekly

Nursing home blamed in death of former USC coach Jim Carlen

The day after his 79th birthday, former University of South Carolina football coach Jim Carlen was admitted to the Rice Estate, a nursing home in Columbia, for what was supposed to be a short stay. He was dead 10 days later.

Now, a representative for the Carlen family has alleged in a notice of intent to sue for medical malpractice that coach Carlen was essentially euthanized without his or his family’s consent.

“We believe his death was hastened,” said an attorney for the family, Eric Bland of Bland Richter in Columbia. He later added, “Doctors can’t play God.”

To continue reading this Lawyer’s Weekly article click here or you can download a PDF here: Nursing home blamed in death of former USC coach Jim Carlen | South Carolina Lawyers Weekly

Media Coverage: CertusBank Federal Lawsuit

April 23, 2014, Bland Richter, LLP, along with the Plaintiffs, who are among the founding members of the bank, file a federal lawsuit against CertusBank for an excess of $75,000. According to the suit, CertusBank, a few rogue Board members of the bank, and one investor conspired to oust the Plaintiffs from their jobs and co-opt the Board and to take control of CertusBank through the calculated dissemination of defamatory statements about the Plaintiffs. These statements were not only slanderous, but also racist, outrageously uncivilized, and offensive to the African American leadership of the bank. READ MORE.

Media Coverage of the Case

 

Bland Richter Partners Achieve Membership in the American Board of Professional Liability Lawyers

FOR IMMEDIATE RELEASE

February 19, 2014

Bland Richter Partners Achieve Membership in the American Board of Professional Liability Lawyers

Bland Richter partners, Eric Bland and Ronnie Richter, successfully completed national testing in Legal Malpractice with the American Board of Professional Liability Attorneys and become two of the total three attorneys in South Carolina with this honor.

Charleston, SC –Bland Richter partners, Eric Bland and Ronnie Richter, successfully completed national testing in Legal Malpractice and are now two of three total attorneys in the State of South Carolina who have been recognized as Diplomats in Legal Malpractice by the American Board of Professional Liability Attorneys.

The American Board of Professional Liability Attorneys has been in existence since 1972 and is the only organization accredited by the American Bar Association (ABA) to test attorneys in the areas of legal malpractice and medical malpractice. ABPLA Legal and Medical Malpractice lawyers must meet or exceed rigorous standards set by the Association. Some of these standards include passing the ABPLA’s written examination, completing 36 hours of continuing legal education, having a minimum of five years of the actual practice of legal professional liability law, and participation as lead counsel in a substantial amount of trials.

Ronnie Richter passed the written examination in December 2013, recording the highest score to date of all attorneys who have tested with the ABPLA. Eric Bland passed the written examination in February 2014 scoring in the top percentage of all attorneys who have taken the exam.

Bland Richter’s practice areas include a concentration in legal malpractice and partners, Eric Bland and Ronnie Richter, have a combined 45 years of legal experience. In addition, Bland Richter prosecutes complex commercial, transactional and business disputes. With offices in both Columbia and Charleston, South Carolina, the firm serves the entire State of South Carolina and beyond. In addition to its members being admitted to practice law in South Carolina, Eric Bland is also a member of the Pennsylvania and Florida bars. Bland Richter is available for association anywhere in the Country where its services may be necessary.

To learn more about Bland Richter visit www.blandrichter.com

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The Founding Members of CertusBank Fight Back and File Federal Lawsuit

FOR IMMEDIATE RELEASE

April 23, 2014

The Founding Members of CertusBank Fight Back and File Federal Lawsuit

Founding Members and Ex-Executive Officials of CertusBank filed Federal lawsuit today, April 23, 2014, in South Carolina Federal Court to Fight Back for their Lost Jobs and Defamed Reputations

Charleston, SC – Today, April 23, 2014, Bland Richter, LLP, along with the Plaintiffs, who are among the founding members of the bank, file a federal lawsuit against CertusBank for an excess of $75,000. According to the suit, CertusBank, a few rogue Board members of the bank, and one investor conspired to oust the Plaintiffs from their jobs and co-opt the Board and to take control of CertusBank through the calculated dissemination of defamatory statements about the Plaintiffs. These statements were not only slanderous, but also racist, outrageously uncivilized, and offensive to the African American leadership of the bank.

According to the lawsuit, these conspirators, along with New York hedge fund mogul, Benjamin Weinger, and his organization, 3-Sigma Value Financial Opportunities, L.P., engaged in a intensive effort to wrestle control of the CertusBank using underhanded tactics. These tactics included widespread marketing of lies and half-truths on a national scale to negatively depict the business practices and judgment of the founders, publication of inflammatory mistruths and illegally obtained internal customer information and prevention of Plaintiffs from providing a factual and true defense against all of these efforts.

CertusBank was founded in 2010 by Plaintiffs, Milton Jones, Walter Davis and Angela Webb. It was a new national bank that had a plan to buy the remains of failed or failing financial institutions and make them profitable. In just three short years, CertusBank grew from four to 700 employees, launched banking operations in four southern states and amassed control of over $1.7 billion in assets. Plaintiffs, who all happen to be African American, built CertusBank into the largest minority founded and operated financial institution in American history.

About Bland Richter
Bland Richter’s practice areas include a concentration in legal and professional malpractice. Partners, Eric Bland and Ronnie Richter, have a combined 45 years of legal experience. In addition, Bland Richter prosecutes medical malpractice, complex commercial, transactional and business disputes. With offices in both Columbia and Charleston, South Carolina, the firm serves the entire State of South Carolina and beyond. In addition to its members being admitted to practice law in South Carolina, Eric Bland is also a member of the Pennsylvania and Florida bars. Bland Richter is available for association anywhere in the Country where its services may be necessary.

To learn more about Bland Richter visit www.blandrichter.com

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Bland Richter Files Notice of Intent to Sue in Defense of Former USC Football Coach James Carlen

FOR IMMEDIATE RELEASE

April 17, 2014

Bland Richter Files Notice of Intent to Sue in Defense of Former USC Football Coach James Carlen 

Bland Richter, along with former USC football player Jones Andrews, named as a special administrator in the case, bring a medical malpractice lawsuit against those who administered medical treatment to Coach Carlen in his last month

 Charleston, SC –In litigating issues surrounding the estate of the late James Carlen, former USC football coach, it appeared that those that gave medical care and hospice care to Coach Carlen in the last month of his life (July 2012) may have acted in a manner that was not within the required standard of care which ultimately and prematurely cost Coach Carlen his life.

Following a long and successful career as head football coach for West Virginia University, Texas Tech University and finally the University of South Carolina, Coach Carlen retired from coaching in 1982. During the later portion of his coaching career at the University of South Carolina, he also served as Athletic Director. He enjoyed a winning record at every university where he coached and was inducted into the Texas Tech Athletics Hall of Honor and the South Carolina Athletic Hall of Fame. Following his coaching career, Carlen remained active in business and personal pursuits. He was a successful real estate developer and investor.

On July 12, 2012, Coach Carlen was admitted to Rice Home for what was intended to be a brief respite stay. Just ten days later, on July 22, 2012, Coach Carlen died in Rice Home at the age of 79.

According to the allegations submitted by Bland Richter in an Intent to Sue which was brought on behalf of the Carlen heirs, Coach Carlen was not suffering from a terminal illness that would end his life at that time nor was he in danger of imminent death.

During his stay at Rice Home, the medications which Coach Carlen had been taking for medical conditions were terminated and new orders were given to provide Coach Carlen with a combination of Klonopin and Morphine. Within days after terminating Coach Carlen’s medications in exchange for a regiment of Klonopin and Morphine, Coach Carlen was dead.

About Bland Richter

Bland Richter’s practice areas include a concentration in legal and professional malpractice. Partners, Eric Bland and Ronnie Richter, have a combined 45 years of legal experience. In addition, Bland Richter prosecutes medical malpractice, complex commercial, transactional and business disputes. With offices in both Columbia and Charleston, South Carolina, the firm serves the entire State of South Carolina and beyond. In addition to its members being admitted to practice law in South Carolina, Eric Bland is also a member of the Pennsylvania and Florida bars. Bland Richter is available for association anywhere in the Country where its services may be necessary.

To learn more about Bland Richter visit www.blandrichter.com

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