E. Hood Temple
Ledford v. Dep’t of Public Safety and State Fund, 428 S.C. 399, 832 S.E.2d 571 (2019).
I can guarantee sooner or later in your career as a lawyer you will be bullied by a judge. There is an old saying that was attributed to Ralph Waldo Emerson by the jurist Oliver Wendell Holmes, Jr., “when you strike at a king you must kill him.” It is hardly surprising this saying caught Justice Holmes’ attention as it certainly applies when a lawyer moves to recuse a judge. How you respond when you are bullied will help define you as a lawyer. A lawyer I represented, E. Hood Temple, refused to sacrifice his client to avoid the personal risk and cost of upholding his attorney’s oath and, by doing so, defined himself as one of the finest lawyers I have ever known.
Allow me to begin Hood’s story at what would normally be the end. Seven years after Hood’s client was bullied, denied compensation for the combined effects of two admitted, career ending work-related injuries, called a liar, and threatened with criminal prosecution by a Workers’ Compensation Commissioner unless he settled his claim on grossly unfavorable terms. Seven years after that same Commissioner also called Hood a liar for refusing to bend a knee and referred him for disciplinary action. Seven years of mounting legal fees and costs, acrimony with other commissioners, and anxiety about personal consequences before the South Carolina Supreme Court finally asked his opposing counsel, who was present when the bullying occurred, what had happened and, as a result of what she said, ruled:
We hold the Court of Appeals erred in finding Commissioner Barden was not required to recuse herself. There was evidence in the record – including Temple’s affidavit – to support Ledford’s contention that Commissioner Barden threatened criminal prosecution unless the case settled. Given the serious allegations lodged against Commissioner Barden, coupled with Commissioner Barden’s adamant denial of threatening Ledford with criminal prosecution unless he accepted the Fund’s settlement offer, we questioned Respondent’s Counsel, Sarah C. Sutusky, at oral argument. Ms. Sutusky was a party to the conference call that underlies the recusal motion, and she corroborated the contents of Temple’s affidavit.
How we got to this remarkable Supreme Court decision is an all too rare story of personal courage and professional integrity worth telling.
Hood was a successful trial attorney and a respected Pee Dee citizen long before his client was bullied by Commissioner Barden. He was a member of the South Carolina bar who served leadership roles in both the state and local bar associations. He received the South Carolina Association of Justice’s Public Citizen Award for his dedicated service to his community. Prior to this incident, he had never felt compelled to file a motion to recuse a judge or commissioner but, when confronted with the bullying of his client in this case, Hood didn’t hesitate to protect his client’s rights and his own integrity.
Both Hood and his client, Scott Ledford, were clients any lawyer would be proud to represent. Scott served as a South Carolina Highway Patrolman for seventeen years. He earned the rank of lance corporal and was a member of the prestigious ACE Team which provides motorcycle escorts for visiting dignitaries. He ran lawn care and fishing guide businesses to supplement his patrolman income. Hood represented Scott for two admitted work-related injuries. The first occurred when he suffered muscle contractions from being tasered in a training exercise so severe they caused compression fractures to four of his thoracic vertebrae. Scott’s claim for his taser injury was settled for a 25% scheduled loss to his back on what’s called a Form 16 preserving his right to seek an increase in the future if his condition worsened. Scott returned to full duty as a patrolman after the settlement and suffered his second accidental injury in a motorcycle wreck pursuing a motorist. Based on the combined effects of both injuries, the State Disability Board determined Scott was unable to return to active duty as a patrolman and granted him disability retirement. Hood was representing Scott to recover workers compensation benefits for the combined effects of his two admitted, career ending injuries when the bullying occurred.
Scott’s claim was initially heard before Commissioner Andrea Roche, who ruled Scott was entitled to ongoing medical treatment and compensation for his motorcycle accident. No appeal was taken from Commissioner Roche’s Order. A year and a half later, the State Fund alleged Scott had reached maximum medical improvement and filed an application to stop payment of his temporary total compensation and to determine permanency. The Fund’s claim was heard before Commissioner Susan Barden.
Those of us who practiced workers’ compensation law were all too familiar with Commissioner Barden’s conservative awards. She was well known for using dubious credibility findings to gut deserving claims for workers’ compensation benefits. Still, Hood didn’t move to recuse her on that ground and presented his evidence at the stop-pay hearing. A month after the hearing, Commissioner Barden called and requested a telephone conference with the attorneys. She began the conference by saying she didn’t believe anything Scott said at the hearing except for his name and age. She indicated she had conducted an investigation into his prior taser injury and accused Scott of lying about his condition following that injury. She commented, “while he may be a former member of the South Carolina Highway Patrol ACE Team, he was not a member of the Truth Team.” She accused him of lying about his earnings from his lawn and fishing guide businesses and called his CPA prepared tax returns “creative accounting.” Commissioner Barden mentioned that, although she had a legal duty to report Scott to the Attorney General to be prosecuted for insurance fraud and perjury, if he settled his claim for whatever “minimal offer” the Fund might make in light of her conference call, she wouldn’t have to make the referral.
Hood was so shocked he immediately dictated a memo of what had been said. He hired a lawyer and ethics professor to research the applicable law and advise him how best to proceed. He ordered a transcript of the hearing held before Commissioner Roche so he could compare Scott’s testimony between the two hearings. He discussed the potential consequences of filing a motion to recuse Commissioner Barden with Scott, who, to his credit, also stood firm. Hood filed his motion, together with a memorandum of law, his affidavit swearing as to what had happened during the conference, and an affidavit of Scott’s CPA attesting his tax returns had been prepared in accordance with accepted accounting practices. It should be noted, opposing counsel chose not to file any response to the motion, supporting memorandum, or affidavits. Still, Commissioner Barden denied the recusal motion without even bothering to hold a hearing and ruled:
“… [Hood] alleges that the undersigned must disqualify herself on the grounds that ‘she threatened criminal proceedings unless the case settles.’ This is a false statement of fact and a frivolous allegation. The undersigned made no such proclamation, either expressly or impliedly. Counsel for the claimant has made such statement with the knowledge that it is false, or at best, a reckless disregard for its truth or falsity. The undersigned will not consider a frivolous and materially false statement as reasonable grounds for disqualification.
Her denial of the motion to recuse was followed by her shockingly unfair Order accusing Scott of being a liar and a criminal, his lawyer of being a liar and unethical, his CPA either being a liar or incompetent, and all of his doctors of being dupes for believing Scott’s lies about his injuries. And, for his admitted, career ending injuries, she ordered that he repay the Fund $18,932.80 in temporary total benefits he’d been paid under Commissioner Roche’s unappealed Order. Adding insult to injury, she also referred Hood to the Office of Disciplinary Counsel for sanction or disbarment.
Commissioner Barden chose the wrong lawyer to falsely accuse of professional misconduct. If she thought accusing Hood of unethical conduct and referring him to the ODC would cause him to tuck tail and run, she was sorely mistaken. All it did was cause Hood to hire me as appellate counsel and we filed a request for Review of Commissioner Barden’s Order by an Appellate Panel of the Workers’ Compensation Commission. The Panel declined Hood’s invitation during oral argument to question opposing counsel as to the truth of what had happened during the conference call and took their fellow commissioner’s word nothing happened. The Panel affirmed her denial of the recusal motion and her credibility findings but reversed her grossly unfair denial of benefits. The Panel awarded Scott an additional 15% disability of his spine and reversed her finding the Fund was entitled to an overpayment. If the Panel thought their Order would placate Hood, they too were sorely mistaken. Hood and I filed an Appeal to the Court of Appeals. Unfortunately, the Court of Appeals ignored the fact opposing counsel had never disputed Hood’s recusal motion or affidavits and felt Commissioner Barden’s findings constituted “substantial evidence” constraining their ability to reverse the Panel’s decision. If the Court of Appeals thought their affirmation would dissuade Hood from pursuing the matter further, they too were sorely mistaken. Hood and I filed a Petition for a Writ of Certiorari to the South Carolina Supreme Court. All the while, Commissioner Barden’s disciplinary referral of Hood languished with the ODC being afraid to take sides.
I already told you at the beginning how this story ended by quoting from the Supreme Court’s decision. Lawyers are taught never to ask questions they don’t already know the answers to and I have been asked why Hood and I kept asking for opposing counsel to be questioned about what happened not knowing what her answer would be in advance. We asked because Hood knew the truth of what had happened and I knew no lawyer in his or her right mind would accuse a judge of such blatant misconduct in a hearing attended by opposing counsel, if it wasn’t true. We both knew opposing counsel had declined to refute what Hood alleged in his motion and affidavit when afforded the opportunity. And Hood knew Ms. Sutusky personally and refused to believe she would violate her attorney’s oath by testifying falsely. So called rules of examination and cross-examination of witnesses aren’t hard and fast and sometimes must give sway to special circumstances in the search for the truth. Thankfully, even though it took seven years, the Supreme Court finally asked opposing counsel what happened and, as stated in their decision, based on what she said the king, or should I say queen in this instance, was slain.
I guess that’s not quite the end of Hood’s story. On remand Hood was able to settle Scott’s claim on favorable terms, Barden’s complaint against him with the ODC was dismissed, and Commissioner Barden’s was allowed to retire as a Workers’ Compensation Commissioner saving countless other attorneys and claimants from her heavy-handed brand of justice. Like the Supreme Court, Hood and I commend Ms. Sutusky for her candor and professionalism, but to my way of thinking, the real hero is E. Hood Temple who refused to be bullied, refused to throw his client under the bus, and honored his attorney’s oath at great personal expense and risk. I take little credit for the ultimate victory in his case, but I will take credit if his story encourages other attorneys to stand firm and honor their oaths when they are confronted by a bully in a black robe in the course of their own practice.
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