COLUMBIA — Who brought a multi-million dollar lawsuit in the name of former Attorney General Henry McMaster without his authorization? Whoever that may be has placed every taxpayer in South Carolina at risk for paying counterclaims.

At a late-2016 deposition, Gov. McMaster testified he did not sue former co-trustees of the James Brown estate before leaving the AG’s office in January 2011, nor did he authorize the current trustee to act as his agent in bringing the Richland 4900 lawsuit.

The original complaint, however, names McMaster as a plaintiff and names current trustee, Columbia CPA Russell Bauknight, as McMaster’s agent in bringing the lawsuit, filed in May 2010 by the Wingate law firm of Columbia.

In 2011 when Alan Wilson became AG, his name was substituted for McMaster’s, and he continued to pursue the lawsuit against former co- trustees Robert Buchanan of Aiken and Adele Pope of Newberry.

Buchanan and Pope filed counterclaims against the AG and other plaintiffs, but Buchanan was dropped from the lawsuit after the estate paid him $500,000.

The original complaint lists Bauknight not only as agent for the AG but also in other capacities, including trustee and personal representative for the estate and trust. Other plaintiffs include will contestants and others who expect to benefit if Brown’s will can be broken.

During McMaster’s deposition, he testified it was only after he left office that he discovered his name was on the lawsuit. At that point he called the AG’s office to ask how his name could be on a suit he did not authorize, and someone at the AG’s office (he could not remember who) gave him some explanation, according to a Jan. 5 motion filed by Pope.

Pope’s motion was filed in response to a protective order related to the May 2016 deposition of Senior Assistant AG Havird “Sonny” Jones, during which over 100 interruptions and objections were made by counsel for Jones and Bauknight.

No deposition was taken from AG Wilson. He filed for an order of protection so that he would not be required to give a deposition, arguing to the court that under the Morgan rule, the duties of his high office did not give him time. Wilson also claimed he knew no information that other sources could not provide because the lawsuit was filed by his predecessor.

Still, Wilson’s office has continued the lawsuit for six years, and he has vigorously fought the release of related documents under the Freedom of Information Act (FOIA), including the release of the Wingate contract under which Buchanan and Pope were sued.

When released by a federal judge in another James Brown case, the contract was found to have been signed by attorneys, not plaintiffs — some of whom have claimed they did not know the lawsuit was being filed in their names.

The South Carolina Rules of Professional Conduct for attorneys require contingency fee agreements to be signed by clients.

McMaster did not sign the actual contract, either, but attached to the contract was a May 18, 2010, letter from McMaster to Bauknight that said in part: “I am writing to confirm our understanding that you will be retaining Mr. Wingate and Kendall to file this action on behalf of the beneficiaries of the James Brown estate and trust, including the charitable interests…” (Emphasis added.)

In regard to the charitable trust, the terms of the AG’s standard litigation agreement were to be used. The letter continues: “Of course, this office has no authority over your agreement with Messrs. Wingate and Kendall concerning the other portions of this matter.”

Despite the understanding in the letter that Bauknight was to bring the lawsuit on behalf of beneficiaries of the estate and trust, the lawsuit was brought in the name of and on behalf of AG McMaster, and for six years AG Wilson has had his name on court documents. Attorneys from his office have also represented themselves in court as Wingate clients.

According to Pope’s Jan. 5 motion: “AG McMaster’s sworn statement provides strong evidence that either Moving Party (Jones) or another rogue actor within the Office of the AG, with Bauknight, has improperly usurped the power of the State for 6-1/2 years in the Wingate Suit.”

At a Feb. 6 hearing in Bamberg, Pope told Circuit Court Judge Doyet Early that she needed to know who sued her.

Judge Early turned to Assistant Deputy AG Emory Smith Jr., who was representing Jones in the protective order motion, and asked Smith who was suing Pope, saying, “She has a right to know.”

Smith responded “I don’t know.”

He added that “Sonny” Jones, Assistant AG, had handled most James Brown matters and he would know.

Jones worked with McMaster on a 2009 settlement that gave will contestants over half of what Brown left to charity.

Brown died on Christmas Day 2006 and left his music empire, including 850+ copyrights and rights to his image, to his education charity, the “I Feel Good” trust. Several claimed relatives contested the will, despite a provision that said: anyone who contests the will, receives nothing.

Brown’s will also contained a directive that his trustees are to “vigorously” defend his estate plan, and in accordance with Brown’s directive, Buchanan and Pope appealed the settlement.

In 2013 the S.C. Supreme Court overturned the McMaster settlement, ruling that it “dismembered” Brown’s estate plan.

During the appeal of the McMaster settlement, in 2010, the Richland 4900 lawsuit was filed, and in several pleadings, co-trustees Pope and Buchanan have argued they were sued in an attempt to force them to drop the appeal.

The Richland 4900 complaint alleges Buchanan and Pope damaged the estate by “tens of millions” during the 18 months they served as trustees, Nov. 2007 to May 2009. Plaintiffs allege Buchanan and Pope caused damages by appealing the settlement, refusing a $100 million offer to purchase the music empire, inflating the estate’s value, and “providing the Internal Revenue Service a road map of the settling parties plan to deal with tax issues…”

Brown directed his trustees to defend his estate plan “vigorously.” In other court filings the estate has claimed there was no offer to purchase the music, and it is unclear how damages might be assessed for providing the Internal Revenue Service with accurate information about the estate’s legal tax obligations.

The value of the estate remains in controversy. Pope and Buchanan valued Brown’s assets at about $85 million and Bauknight at about $6 million.

The trial in Richland 4900 has not yet been scheduled.

FOIA Update

Transparency continues to be an issue in James Brown cases. On Feb. 6 Judge Early announced that affidavits in certain James Brown cases must be filed under seal, which means they cannot be seen by the public.

Two James Brown FOIA cases are in the Appeals Court, and among the questions to be addressed are: Can a FOIA lawsuit be consolidated with a private tort action; and can you be stripped of your rights under FOIA if you are being sued by a public body?

AG Wilson continues to fight the release of Bauknight’s $4.7 million appraisal of Brown’s music empire, which his office used in 2013 when asking the Supreme Court to re-consider overturning the settlement.

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By Sue Summer

For The Newberry Observer