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In re Atwater9/15/2003
Submitted July 14, 2003
PUBLIC REPRIMAND
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, Rule 413, SCACR.
Respondent has also filed a motion asking the Court to allow him to supplement the record with an affidavit in mitigation and to allow him to personally appear before the Court regarding the agreement or, in the alternative, to remand the matter to the Commission on Lawyer Conduct for further review of the agreement in light of his affidavit in mitigation. We deny respondent's request for oral argument as well as his request to remand the matter to the Commission; however, we grant his request to supplement the record with the affidavit in mitigation and the affidavit has been considered in reaching the decision set forth herein.
We accept the Agreement for Discipline by Consent and, in light of the information set forth in the affidavit in mitigation, issue a public reprimand. The facts, as set forth in the agreement, are as follows.
Facts
I. Lack of Written Fee Agreement
Respondent entered into a verbal contract to represent a client in a medical malpractice action. Respondent contacted the client's former attorney and obtained the balance of the client's retainer as well as the client's file. Respondent initiated and eventually settled the medical malpractice action without ever obtaining a written fee agreement with the client. Respondent maintains he mailed several fee agreements to the client which the client never signed and returned.
As a result of a disagreement over respondent's legal fee, the client contacted the Office of Disciplinary Counsel to initiate a disciplinary complaint against respondent. Respondent failed to respond to requests by the Office of Disciplinary Counsel for information regarding respondent's representation of the client.
Respondent admits that he failed to obtain a written fee agreement with the client and that he did not have anything in writing that outlined the method pursuant to which the fee was to be determined. Respondent admits that his fee was to be contingent upon the outcome of the matter.
However, in mitigation, respondent states the client's former attorney, over a period of four years, had failed to actively pursue the medical malpractice claim because he considered the claim to be dubious. After the client transferred his file to respondent, respondent was able to obtain new evidence, amend the claim and resolve it in the client's favor and with the client's blessing. While respondent was unable to locate a signed fee agreement, he maintains there was evidence that such an agreement was sent to the client to be signed and returned. Respondent maintains the signed agreement could have been returned to the client along with other documents at the conclusion of the case. Respondent points out, however, that there is ample evidence in the client file that the client transferred the file to respondent for litigation, that the client hired respondent's firm to pursue a matter in which the fee is controlled by federal statute, that the client communicated with respondent throughout the entire process, including settlement and disbursement, and the client signed a general power of attorney giving respondent the authority to handle the client's legal matters while the client was overseas with the military.
II. Conflict of Interest
Prior to respon
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