THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of Brian Austin Katonak, Respondent

Appellate Case No. 2021-001073

Opinion No. 28075

Submitted November 19, 2021 – Filed December 15, 2021

DEFINITE SUSPENSION

Disciplinary Counsel John S. Nichols and Senior 

Assistant Disciplinary Counsel Ericka M. Williams, both 

of Columbia, for the Office of Disciplinary Counsel.

William O. Higgins, of Columbia, 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 the imposition of a public reprimand or a definite suspension not to exceed one 

year. We accept the Agreement and suspend Respondent from the practice of law 

in this state for one year. 

I.

Respondent was admitted to practice in South Carolina in 1992. Since 2000, he 

has operated a solo practice in Anderson County handling a variety of matters, 

including real estate, family, and criminal matters. This Agreement relates to eight 

disciplinary complaints filed against Respondent between 2014 and 2020, each of 

which are detailed below. 
Matter A

Respondent represented Client A at a four-day bench trial on criminal charges in 

September 2013. Client A was found guilty and sentenced on September 12, 2013. 

That same day, Respondent filed and served a Notice of Appeal on behalf of 

Client A. 

On November 19, 2013, the South Carolina Commission on Indigent Defense 

(SCCID) sent Respondent a letter indicating SCCID would take over 

representation of Client A if Respondent furnished various documents, including 

an affidavit of indigency completed by Client A. Respondent forwarded the 

affidavit of indigency to Client A, indicating he would file the completed affidavit 

upon receipt. 

On March 11, 2014, Respondent wrote to Client A and indicated that he spoke 

with an individual at SCCID who informed Respondent that Client A's case was 

assigned to someone in the SCCID office and that the transcript was in the process 

of being ordered. Respondent represents that based on his conversations with 

SCCID, he believed he was no longer involved in the appeal.

On April 10, 2014, the South Carolina Court of Appeals dismissed Client A's 

appeal citing counsel's failure to order the transcript. The case was remitted to the 

trial court on April 28, 2014. On May 16, 2014, Respondent filed a motion to 

reopen Client A's case, which was returned without filing due to the court of 

appeals' lack of appellate jurisdiction.1

Respondent believed SCCID had assumed representation of Client A's appeal, but 

Respondent acknowledges that he was never provided anything in writing 

indicating that SCCID had assumed actual representation or that Respondent was 

no longer counsel of record. Respondent admits his conduct in this matter violated 

the following Rules of Professional Conduct, Rule 407, SCACR: Rule 1.3 

 

1 Following the court of appeals' dismissal of the direct appeal, a PCR court 

ultimately granted Client A leave to file a belated appeal pursuant to White v. State, 

263 S.C. 110, 208 S.E.2d 35 (1974). In August 2020, the court of appeals affirmed 

the case on the merits. In re Whaley, Op. No. 2020-UP-232 (S.C. Ct. App. filed 

Aug. 12, 2020).
(requiring diligence); and Rule 1.16(d) (requiring that upon termination of 

representation, a lawyer must take reasonable steps to protect client interests).

Matter B

Complainant B is a chiropractor who, on June 18, 2010, entered into an agreement 

with a patient to allow for the patient's attorney to release payment for services to 

Complainant B. The patient retained Respondent to represent him regarding his 

personal injury case, and on January 5, 2011, Respondent issued a letter of 

protection to Complainant B agreeing to protect Complainant B's fees at the time 

of settlement of the case. 

The case eventually settled for $10,000, and a stipulation of dismissal was filed in 

the case on September 26, 2014. The amount due to Complainant B at the time of 

settlement was $3,474. 

On October 13, 2014, Respondent mailed a letter to Complainant B providing 

details of the settlement and explaining "I [] neglected that I had sent a letter to 

your office to protect your bill." In the letter, Respondent also advised 

Complainant B that the patient/client did not authorize Respondent to pay any 

medical providers from settlement proceeds. However, Respondent indicated he 

wanted to "work something out on the matter" and proposed payment of $1,175 of 

the attorney's fees he received on the case. Respondent further stated he would 

immediately forward payment if the proposed arrangement was acceptable to 

Complainant B.

Two days later, on October 15, 2014, Complainant B's office faxed a letter to 

Respondent advising that Complainant B was willing to accept the offer of $1,175 

in satisfaction of the obligation to protect Complainant B's fees. Respondent 

neither confirmed the arrangement nor forwarded payment of the $1,175 in 

satisfaction of the arrangement. Respondent admits his conduct in this matter 

violated Rule 1.15(d), RPC, Rule 407, SCACR (requiring prompt delivery of funds 

or property to a client or third party). 

Matter C

Respondent was hired to render a title opinion regarding a bank loan to a borrower. 

On February 17, 2011 Respondent issued a preliminary title opinion letter to 

SB&T bank disclosing one open mortgage to First Union Bank. On July 12, 2011, 

Respondent issued a final title opinion to SB&T Bank stating that the prior debt to 
First Union Bank had been paid and the mortgage to SB&T Bank was the only 

mortgage or lien on the subject property. The loan was subsequently assigned to 

Georgia Bank & Trust. 

The borrower thereafter defaulted on his payments, and during the foreclosure 

process, a title abstract revealed three prior mortgages to Regions Bank which had 

not been canceled. These mortgages were not disclosed in Respondent's title 

opinion letters to SB&T Bank. Respondent failed to respond to numerous 

communications from Georgia Bank & Trust's attorney requesting that Respondent 

take action to satisfy and cancel the prior mortgages.

On August 17, 2015, Georgia Bank & Trust filed a legal malpractice action against 

Respondent citing his failure to properly conduct a thorough title search prior to 

issuing the preliminary and final title opinions. Respondent's malpractice carrier 

subsequently settled the case, and the parties filed a Stipulation of Dismissal on 

April 27, 2016. Respondent admits his conduct in this matter violated the 

following Rules of Professional Conduct, Rule 407, SCACR: Rule 1.1 (requiring 

competence); Rule 1.3 (requiring diligence); and Rule 1.4 (requiring adequate 

communication).

Matter D

ODC received a complaint and ultimately determined there was no clear and 

convincing evidence of misconduct. However, Respondent failed to timely

respond to the August 10, 2016 notice of investigation or the subsequent letter 

pursuant to In re Treacy, 277 S.C. 514, 290 S.E.2d 240 (1982). Respondent admits 

his conduct in this matter violated Rule 8.1(b), RPC, Rule 407, SCACR (requiring 

a lawyer to respond to a lawful demand for information from ODC).

Matter E

Husband and Wife purchased a mobile home and land in 2003, and Respondent 

served as the closing attorney for the transaction. In 2009, the couple discovered 

they had title to the land but not to the mobile home. Husband and Wife contacted 

Respondent regarding the title to the mobile home, but Respondent never provided 

the title information to them. The couple thereafter attempted to resolve the issue 

on their own but subsequently discovered the mobile home title remained listed in 

the name of the previous owners who were now divorced. Husband and Wife were 

not able to resolve the title issue in 2009.
In 2016, Husband and Wife contacted Respondent again regarding the title issue, 

as they were in the process of selling the mobile home. Respondent informed the 

couple that he had found the title to the mobile home. The couple hired another 

firm to assist them with the title issue, and Respondent's firm delivered the mobile 

home title to that firm. Respondent admits his conduct in this matter violated the 

following Rules of Professional Conduct, Rule 407, SCACR: Rule 1.1 (requiring 

competence); Rule 1.3 (requiring diligence); and Rule 1.4 (requiring adequate 

communication). 

Matter F

This matter involved two separate issues concerning a deed and Respondent's 

efforts to form a corporation on behalf of Client F. Based on the facts recited in 

the Agreement and supplemental letter provided by the parties, we find 

Respondent's conduct in this matter did not constitute misconduct.

Matter G

Respondent was retained in August 2015 to represent Client G in a domestic 

action. At times during the representation, Respondent failed to adequately 

communicate with Client G or timely respond to Client G's request for information 

about the status of her case. Respondent failed to timely respond to the July 6, 

2018 notice of investigation.2

 Respondent admits his conduct in this matter 

violated the following Rules of Professional Conduct, Rule 407, SCACR: Rule 1.4 

(requiring adequate communication); and 8.1(b) (requiring a lawyer to respond to a 

lawful demand for information from ODC).3

Matter H

Respondent was retained in October 2019 to represent Client H in a domestic 

action. At times during the representation, Respondent failed to adequately 

 

2 ODC served Respondent with a Treacy letter on August 10, 2018. Respondent's 

response to the notice of investigation was received on August 15, 2018.

3 Although the Agreement also references a violation of Rule 1.2(a), RPC, in 

connection with Matter G, we find the facts recited in the Agreement do not 

provide an adequate basis for this Court to conclude Rule 1.2(a) was violated in 

that matter.
communicate with Client H or timely respond to her request for information about 

the status of her case. 

Additionally, opposing counsel served Respondent with interrogatories and 

requests for production requiring his answers or objections, if any, within thirty 

days. Respondent forwarded the interrogatories to Client H who provided her 

responses via email on March 30, 2020. Respondent failed to timely provide 

responses to the interrogatories and requests for production to opposing counsel. 

On March 31, 2020, opposing counsel filed a motion to compel Respondent to 

respond to the discovery requests. Based on the Coronavirus pandemic and this 

Court's related order dated April 3, 2020, the family court issued a memorandum 

indicating it would not hold a hearing but would review any written arguments 

from Respondent and opposing counsel. The family court's memorandum required 

a response from Respondent to the motion to compel no later than May 15, 2020. 

Respondent failed to respond to the motion to compel by that deadline.

On June 10, 2020, the family court granted opposing counsel's motion to compel 

and ordered Respondent to comply within thirty days of filing the order. The 

family court ordered Client H to pay $250 as a portion of opposing counsel's legal 

fees incurred in bringing the motion to compel. The parties settled the case in 

mediation in September 2020. Respondent admits his conduct in this matter 

violated the following Rules of Professional Conduct, Rule 407, SCACR: Rule 1.4 

(requiring adequate communication); Rule 3.4(c) (prohibiting knowing 

disobedience of the rules of a tribunal); and Rule 3.4(d) (requiring reasonably 

diligent efforts to comply with a legally proper discovery request by an opposing 

party).4

II.

Respondent admits his conduct constitutes grounds for discipline under Rule 

7(a)(1), RLDE, Rule 413, SCACR (prohibiting a violation of the Rules of 

Professional Conduct). We further note Respondent's disciplinary history includes 

a 2012 public reprimand citing Rule 1.3 (requiring diligence) and Rule 1.4 

 

4 Although the Agreement also references a violation of Rule 1.2(a), RPC, in 

connection with Matter H, we find the facts recited in the Agreement do not 

provide an adequate basis for this Court to conclude Rule 1.2(a) was violated in 

that matter. 
(requiring adequate communication) of the Rules of Professional Conduct, Rule

407, SCACR. In re Katonak, 398 S.C. 147, 728 S.E.2d 30 (2012). 

In the Agreement, Respondent consents to the imposition of a public reprimand or 

a definite suspension not to exceed one year and agrees to pay the costs incurred in 

the investigation and prosecution of this matter by ODC and the Commission on 

Lawyer Conduct (Commission). Respondent also agrees to complete the Legal 

Ethics and Practice Program Ethics School within one year of this opinion and to 

retain and work with a law office management advisor for a period of two years 

following reinstatement. 

Respondent also submitted an affidavit in mitigation in which he acknowledges 

shortcomings in his organizational skills, office management, and case selection 

practices. Respondent also noted that five of these eight complaints occurred 

between 2014 and 2016, during which time he experienced substantial personal 

and family difficulties which drew his focus away from his law practice. 

III.

We hereby accept the Agreement. Although we are sympathetic to Respondent's 

personal difficulties, in light of the pattern of misconduct involved in these matters, 

we find a definite suspension is warranted. Accordingly, we suspend Respondent 

from the practice of law in this state for a period of one year. 

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, RLDE, Rule 

413, SCACR. Within thirty days of the date of this opinion, Respondent shall pay 

or enter into a reasonable plan to repay the costs incurred in the investigation and 

prosecution of this matter by ODC and the Commission. Respondent shall 

complete the Legal Ethics and Practice Program Ethics School within one year of 

the date of this opinion, and he shall retain and work with a law office management 

advisor for a period of two years following reinstatement. 

DEFINITE SUSPENSION.

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