                   THE STATE OF SOUTH CAROLINA
                        In The Supreme Court

            In the Matter of J. Marcus Whitlark, Respondent.

            Appellate Case No. 2017-002323


                             Opinion No. 27781
              Submitted February 21, 2018 – Filed March 14, 2018


                           DEFINITE SUSPENSION


            John S. Nichols, Disciplinary Counsel, and Ericka M.
            Williams, Senior Assistant Disciplinary Counsel, both of
            Columbia, for Office of Disciplinary Counsel.

            Joshua Snow Kendrick, of Kendrick & Leonard, P.C., of
            Greenville, for Respondent.


PER CURIAM: In this attorney disciplinary matter, respondent and the Office
of Disciplinary Counsel (ODC) have entered into an Agreement for Discipline by
Consent (Agreement) pursuant to Rule 21 of the Rules for Lawyer Disciplinary
Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court
Rules (SCACR). In the Agreement, respondent admits misconduct and consents to
a public reprimand or a definite suspension not to exceed six months.1 As a
condition of discipline, respondent agrees to pay the costs incurred in the
investigation and prosecution of this matter by ODC and the Commission on
Lawyer Conduct within thirty days of imposition of sanction. Respondent also
agrees to enter into a payment agreement with the Commission within thirty days
of the acceptance of the Agreement for payment of restitution to the court reporter
referenced below in the amount of $3,239.11. We accept the Agreement and

1
 In 2009, petitioner received an admonition citing Rules 1.15 and 8.4 of the Rules
of Professional Conduct (RPC), Rule 407, SCACR, and Rule 417, SCACR.
suspend respondent from the practice of law in this state for six months. The facts,
as set forth in the Agreement, are as follows.

                                        Facts

                                      Matter A

On approximately seven occasions during February 2005 and October 2007,
respondent and his previous law partner retained the services of a court reporter for
appearances and depositions. Transcripts of the depositions were ordered by
respondent and his law partner and delivered to their law offices, along with an
invoice for each transcript. The total amount of the outstanding invoices was
approximately $4,040.69. When the invoices remained unpaid, the court reporter
filed an action in magistrate's court and obtained a default judgment against
respondent and his law partner for the amount of the unpaid invoices plus court
costs, for a total of $4,120.69. Respondent failed to pay his portion of the unpaid
invoices — $3,279.11. Respondent represents he was initially unaware of the
outstanding invoices or of the court reporter's lawsuit and judgment. However,
respondent was put on notice of the allegations by ODC on or about March 29,
2012, and he has still failed to pay the outstanding invoices.

                                      Matter B

Respondent represented Client B in a personal injury action. Client B was treated
by a neurologist for injuries sustained in an automobile accident which formed the
basis for the action. In May 2000, respondent and Client B executed an
authorization and agreement to pay the neurologist's fees. The total amount of the
neurologist's bill after treatment was approximately $71,000. During trial,
respondent presented the neurologist's bill and presented testimony from the
neurologist regarding Client B's injuries. Client B was successful at trial and
ultimately obtained a monetary award for injuries in the amount of $800,000.

After trial, respondent attempted to negotiate the amount of the neurologist's bill.
After closely scrutinizing the neurologist's charges, respondent believed some of
the charges had been inflated and some charges were fraudulent. The neurologist
eventually filed a lawsuit against respondent and Client B to recover the full
amount of his bill. The jury awarded the neurologist $9,054.81.

Respondent failed to disclose to the trial judge in the personal injury action that he
had offered material evidence and testimony at trial — in the form of the
neurologist's bill and testimony — that he later learned was partially false. In
addition, by the time the neurologist's action against respondent and Client B was
resolved, respondent had distributed all remaining settlement funds to Client B.
Respondent failed to hold the disputed $71,000 in trust pending resolution of the
dispute.

                                         Law

With regard to Matter A, respondent admits he has violated the following Rules of
Professional Conduct, Rule 407, SCACR: Rule 4.4(a) ("In representing a client, a
lawyer shall not use means that have no substantial purpose other than to
embarrass, delay, or burden a third person, or use methods of obtaining evidence
that violate the legal rights of such a person.") and Rule 8.4(e) ("It is professional
misconduct for a lawyer to: . . . (e) engage in conduct that is prejudicial to the
administration of justice[.]").

With regard to Matter B, respondent admits he has violated the following Rules of
Professional Conduct: Rule 1.15(e) ("When in the course of representation a
lawyer is in possession of property in which two or more persons (one of whom
may be the lawyer) claim interests, the property shall be kept separate by the
lawyer until the dispute is resolved. The lawyer shall promptly distribute all
portions of the property as to which the interests are not in dispute."); Rule
3.3(a)(1) ("A lawyer shall not knowingly: (1) . . . fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer[.]") (emphasis
added); Rule 3.3(a)(3) ("If a lawyer, the lawyer's client, or a witness called by the
lawyer, has offered material evidence and the lawyer comes to know of its falsity,
the lawyer shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.") (emphasis added); Rule 8.4(a) ("It is professional
misconduct for a lawyer to: (a) violate or attempt to violate the Rules of
Professional Conduct . . . .").

Finally, respondent admits the allegations contained in the Agreement constitute
grounds for discipline under Rule 7(a)(1), RLDE ("It shall be a ground for
discipline for a lawyer to: (1) violate or attempt to violate the Rules of Professional
Conduct, Rule 407, SCACR, or any other rules of this jurisdiction regarding
professional conduct of lawyers[.]").

                                     Conclusion
We find respondent's misconduct warrants a definite suspension from the practice
of law in this state for six months. Within thirty days of the date of this opinion,
respondent shall pay the costs incurred in the investigation and prosecution of this
matter by ODC and the Commission on Lawyer Conduct and enter into a payment
agreement with the Commission for payment of restitution to the court reporter
referenced in Matter A in the amount of $3,239.11. 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 of Rule 413, SCACR.

DEFINITE SUSPENSION.

BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.
