September 2011 - Ethics Check
by Richard W. Millar, Jr.
Most publications have their “answer person” to answer the most vexing questions that seem to torment the readers. Newspapers, for example, have their Dear Abbeys. Fashion magazines have their sartorial experts, and men’s magazines have their, well let’s call them sexologists. However, as far as I can recall, and I go back to the days when this publication had a different name and a different format, the Orange County Lawyer has never had an ethics person to respond to readers’ burning ethical conundrums. So, I have decided for at least this month to take up that mantle.
Dear Mr. Ethics Person:
Is it ethical for a lawyer to hire a hit man to kill another lawyer and pay him with a postdated check drawn on his general account?
Concerned in South Carolina
* * * *
Dear Concerned in South Carolina:
Of course not, that’s what trust accounts are for.
Mr. Ethics Person
Since this is a lawyer magazine you would expect that, unlike a newspaper, Mr. Ethics Person would back up his opinion with a citation to authority. And so it is that I give you the curious case of In the Matter of Irby Ezell Walker, Jr. late of the South Carolina Bar.
The incident which invoked the fictitious correspondence above had its genesis in a divorce which I think we can all assume was not a friendly one. Mr. Walker represented the husband. Another lawyer, a Mr. Thornton who shared office space with Mr. Walker, represented the wife. At some point, according to the South Carolina Supreme Court, Mr. Walker, after he had been “relieved from the case,” went with the husband, his former client, to the wife’s house and convinced the wife to fire her lawyer and to reach an agreement with the husband. Mr. Walker told the wife not to tell anyone about the visit and prepared a quitclaim deed for the husband to sign as part of the proposed settlement.
At some point, and the chronology is unclear from the opinion, Mr. Walker attempted to hire a hit man to murder Mr. Thornton. To do so, he, and I am going to quote from the opinion because otherwise you wouldn’t believe me, “paid the ‘hit man’ in part with a post-dated check because he did not have sufficient funds in his account to pay the check’s face value.”
Now that raises a couple of questions, not the least of which is who would pay a hit man with a check and what hit man would accept a check—particularly one that was postdated? The second question is probably answered by the fact that the hit man was an undercover officer who was no doubt nonplused at his good fortune in getting a confirmatory check regardless of its date. As to the first question, I think most of us would consider it a tad risky to retain a hired killer with a rubber check, but I suspect that Mr. Walker was not thinking through the potential consequences. In any event, he ultimately pled guilty to solicitation of a felony receiving a sentence of ten years suspended upon actual three years imprisonment and five years of probation.
But let’s go back to the sentence I partially quoted from the South Carolina Supreme Court which stated that he paid with a postdated check because he didn’t have sufficient funds in his account. Was that a gratuitous sentence? Was that dicta, a word which I don’t think I fully understood in law school and which I am certain I do not understand some forty plus years later? If the check had been valid, would the court have considered that less of an ethical lapse?
In any event, it turns out that Mr. Walker did not have any money in his trust account since his paralegal who “managed” his trust accounts had stolen large sums. The failure to maintain his trust accounts was but one of the eight counts against him. He was also found to have failed to competently perform services for a client, closed a personal injury case without filing and without telling the client, guaranteeing a bank loan for a client, accepting a retainer that he did not put in his trust account, and failing to refund any portion of a retainer on behalf of the client who died before work was performed.
Don’t look for another Mr. Ethics Person column any time soon. Mr. Ethics Person is still trying to figure this one out.
Mr. Millar is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at email@example.com.