Based upon my experience, education, training, knowledge of the
standard of care for lawyers, and review of the above-listed materials, it is my opinion that the lawyer John Rakowsky, Esquire, engaged in negligent acts and omissions, in their representation of the Plaintiffs, in the underlying matters in Southern Holdings, Inc., et al., vs. Horry County, et al., Case No: 4:02-cv-01859-RBH, filed in Federal District Court, State of South Carolina, Florence Division, including the following:
A. Failure to provide competent representation;
B. Failure to provide diligent representation;
C. Failure to adequately and reasonably communicate with the Plaintiffs;
D. Failure to reasonably expedite litigation;
E. Failure to provide candid communication with the Plaintiffs or the Court;
F. Failure to meet filing deadlines causing the majority of the Plaintiffs' damages and evidence of the torts to be ruled inadmissible;
G. Failure to abide by a duty to advise the Plaintiffs truthfully about circumstances of a key evidentiary hearing, that resulted in termination of the federal case, with prejudice and a settlement for the Plaintiffs, without the consent of the Plaintiffs, who were both under coercion and duress by Defendant Rakowsky, Defendant Falgione and the Falgione Law Firm, to preliminarily accept an settlement without one dollar of financial benefit to the Plaintiffs, under terms dictated by the opposing parties and the presiding judge according to Defendants;
H. Failure to abide by the duty of honesty owed to the Plaintiffs;
I. Failure to make reasonable efforts to ensure that the co-counsels had in effect measures, giving reasonable assurance that all lawyers conformed to the Rules of Professional Conduct.
J. Neglect of legal matters, provided incompetent representation, failed to adequately and reasonably communicate with the Plaintiffs, failed to expedite the litigation, failed to provide candid communication about the matters under representation, and failed to abide by the duty of honesty owed to the Plaintiffs;
K. Failure to abide by an adequate attorney-client relationship, where there was no appropriate termination, as contemplated by Rule 1.16, of the South Carolina Rules of Professional Conduct
("RPC") Rule 407 SCACR·
' ' '
L. Defendants took on complex litigation in Federal District Court, involving civil RICO claims, without requisite experience which Defendants are now believed to have little or no experience in ( the Defendants refuse to reveal their claimed extensive experience), experience Defendants misrepresented to the Plaintiffs they had as they sought to take on the litigation on behalf of the Plaintiffs;
M. Defendants have refused to provide a proper accounting of their use of Plaintiffs' litigation funds as required under the RPC and it is now known that Defendants violated the RPC by depositing litigation funds into a non-trust personal bank account; and
N. Defendants Rakowsky and Falgione admitted acts of malpractice took place, but wrongfully misled Plaintiffs into believing Defendants.
6. In particular, lawyers in South Carolina are required to conform to the Rules of Professional Conduct ("RPC"). Cf, Rule 5.l(c), RPC, Rule 407, SCACR.1 This duty includes making sure co-counsel is in compliance with the RPC. The duty also includes taking appropriate remedial measures when a lawyer discovers a lawyer engaged in behavior that violates the RPC and injures a client. The duty also includes, providing the client with sufficient information regarding the status of the matter, and adequately advising the client of available options, including consulting other counsel. Additionally, the Defendants failed to report the Professional Misconduct, as required under Rule 8.3, RPC.
7. Furthermore, lawyers in South Carolina are expected to exhibit a minimum level of competence and diligence in their representation of clients. Rules 1.1 and 1.3, RPC. This includes the legal knowledge, skill, thoroughness and preparation, reasonably necessary for the representation. As the Supreme Court has declared:
"An attorney, who contracts to prosecute an action on behalf of his client, impliedly represents that he possesses the requisite degree of learning, skill and ability, which is necessary to the practice of his profession; that he will exert his best judgment in the prosecution of the litigation entrusted to him; and that he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to the cause of his client. This requires that an attorney should with reasonable diligence and dispatch prosecute his client's cause."
Norris v. Alexander, 246 S.C.14, 18,142 S.E.2d 214,217 (1965).
By negligently misunderstanding the instructions of the Federal District Judge, regarding his "required dismissal of the unrepresented Defendants" by the Plaintiffs, the Defendants caused both the Court and the Plaintiffs to have a settlement imposed on them in this case. It is my opinion that the Defendants exhibited a total lack of competence and diligence, expected of lawyers in South Carolina, and the Defendants' negligence, taken in the best light, was a violation of the standard of conduct and standard of care.