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In re Yarborough2/11/2002
Heard November 28, 2001
INDEFINITE SUSPENSION
In this attorney disciplinary matter, the sub-panel and the full panel recommended respondent Ernest E. Yarborough be definitely suspended for 18 months. We impose an indefinite suspension.
FACTS
The Commission on Lawyer Conduct filed formal charges against respondent regarding four matters. Respondent answered the formal charges and appeared pro se at the hearing. Respondent cross-examined the State's witnesses but did not present any evidence of his own and did not testify in his own defense. The sub-panel issued its report which made findings of misconduct and recommended a definite suspension of 18 months. The full panel adopted the sub-panel's report.
Disciplinary History
Upon being convicted of obstruction of justice, respondent was placed on interim suspension on April 3, 1997. In re Yarborough, 326 S.C. 62, 483 S.E.2d 473 (1997). That conviction is not yet final.
Respondent was suspended from practice for six months on August 4, 1997. In re Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997). In this matter, the Court found misconduct based on respondent utilizing criminal charges to gain advantage in a civil matter. See Rule 4.5, RPC, of Rule 407, SCACR.
On June 7, 1999, respondent was publicly reprimanded for his improper conduct - making an unwanted sexual advance and inappropriate sexual comments - towards his female client. In re Yarborough, 337 S.C. 245, 524 S.E.2d 100 (1999).
Child Support Matter
James B. Loggins is an attorney who represents his client (Mother) in a family court matter against respondent. Respondent and Mother have a child together, and respondent is under a family court order to make child support payments to Mother. Shortly after respondent's interim suspension in April 1997, respondent began falling behind in his child support payments. Initially, he was not held in contempt for his failure to pay. In October 1998, however, the family court found respondent had willfully and intentionally failed to pay at least some of his child support obligation and held respondent in contempt of court.
Following the October 1998 family court order, respondent continued to fall behind in his child support payments. In June 1999, the parties reached an agreement wherein Mother would dismiss the Rule to Show Cause provided that respondent pay $400 to the family court in Richland County by June 15, 1999, and an additional $1,000 by June 28, 1999. Respondent delivered to Loggins a $400 personal check made out to the family court, and Loggins forwarded the check. However, the check was returned to respondent's wife because the Richland County Family Court does not accept personal checks. Loggins testified that the $400 check was never replaced or repaid. Moreover, the $1,000 payment agreed to in the consent order was never paid.
Linda Taylor, the family court records custodian, testified that as of January 2001, respondent had an arrearage of $29,237.76. Taylor stated that the last payment made to the family court was in October 1998. Although respondent implied through cross-examination that he had made payments directly to Mother, respondent did not present her as a witness.
Tony Kennedy Matter
As noted above, respondent was convicted of obstruction of justice in 1997. One of the witnesses who testified against respondent was Lemeul "Tony" Kennedy, who worked as a private investigator for respondent. On May 20, 1998, while State v. Yarborough was on appeal, respondent wrote Kennedy a letter. The letter begins as follows: "The time has come for you to face me in
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