Legal Ethics
| Publication year | 2020 |
Legal Ethics
Patrick Emery Longan
Mercer University School of Law, LONGAN_P@law.mercer.edu
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This Survey covers the period from June 1, 2018-May 31, 2019.1 The Article discusses attorney discipline, ineffective assistance of counsel, bar admission, judicial ethics, malpractice, several miscellaneous cases involving legal ethics, and actions of the Formal Advisory opinion Board.
A. Disbarments3
1. Trust Account and Other Financial Issues
The Georgia Supreme Court disbarred four attorneys during the survey period for misconduct that primarily related to their trust accounts or other financial issues.
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Anthony Eugene Cheatham was already suspended from the practice of law for failure to complete his continuing legal education requirements when he agreed to close a real estate transaction.4 Mr. Cheatham received $140,600 as the purchase money and $1,000 in earnest money, but instead of disbursing the proceeds of the sale to the seller, Mr. Cheatham converted all the funds to his own use. After he closed the sale, Mr. Cheatham made some partial payments and misled the seller and the purchasers about the reasons why he did so.5 Mr. Cheatham also "failed to timely prepare and record the warranty deed . . .; failed to communicate with the seller and purchasers regarding the deed; failed to account for the proceeds of the sale . . .; and abandoned the completion of the sale to the detriment of the seller and purchasers."6 Mr. Cheatham defaulted in the disciplinary process, and the supreme court disbarred him.7
George W. Snipes lost his license because he settled a client's case without permission, converted most of the settlement funds, and defaulted in the disciplinary process.8 After Mr. Snipes settled the case for $300,000, the insurance company sent the settlement checks to his client who, on Mr. Snipes's instruction, endorsed the checks and sent them to Mr. Snipes. Mr. Snipes sent the client $170,000 and promised to pay the client's outstanding medical bills and pay himself his attorney's fees from the remaining funds, but instead Mr. Snipes converted all of the remaining money for himself.9
Richard Allen Hunt was disbarred for removing client funds from a trust account and using them for personal and business expenses.10 Mr. Hunt took possession of approximately $60,000 that belonged to a client's two sons and then, according to his own testimony, withdrew the money from his trust account gradually and used it to fund a personal injury case he had filed, making a bet that the case would settle before he needed to repay the funds.11 Mr. Hunt lost that bet.12 The supreme court noted that the presumptive sanction for such intentional, harmful criminal conduct was disbarment.13 There were
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numerous aggravating factors in the case, including a long prior disciplinary history, intentional misconduct, multiple violations (including numerous withdrawals of the money and lying to the client about what he was going to do with it), selfish and dishonest motive, failure to make restitution until compelled to do so, refusal to acknowledge the wrongful nature of his conduct, lack of remorse, vulnerability of the victims, and substantial experience in the practice of law.14 The special master rejected Mr. Hunt's arguments that there were mitigating circumstances, and the supreme court agreed that Mr. Hunt should be disbarred.15
The supreme court rejected the special master's recommendation of a four-year suspension and disbarred Gary Lanier Coulter.16 Mr. Coulter "administered very large sums of client-money for years, over $1 million in 2011 alone, using 12 different bank accounts, none of which were trust accounts . . . ."17 He failed to keep accurate records of the funds and did not accurately account for money that was transferred from these accounts to his operating accounts, ostensibly as payment of hundreds of thousands of dollars of attorney's fees. 18 The special master found that there were three mitigating factors—remorse, good reputation, and interim rehabilitation—but the special master also found in aggravation that Mr. Coulter had substantial experience in the practice of law, a prior disciplinary history, and a dishonest or selfish motive. The special master also found that Mr. Coulter's conduct included multiple violations of the rules.19 The supreme court concluded that disbarment was appropriate because of "the serious nature of the violations at issue here, the number of aggravating factors, including Coulter's prior disciplinary history," and because "the record facts demonstrate that Coulter did intend to violate the trust account rules."20
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2. Client Abandonment or Lack of Communication
The supreme court disbarred three attorneys for misconduct that included client abandonment or failure to communicate.21
Jack S. Jennings lost his license because he abandoned a matter and then engaged in a course of misconduct following abandonment.22 Mr. Jennings initially failed to answer requests for admission. When the client fired Mr. Jennings and new counsel sought the file, Mr. Jennings sent a partial file that omitted the evidence that Mr. Jennings had failed to answer the requests for admission in order to conceal that fact. Mr. Jennings did not appear at a hearing about turning over the entire file and still refused to do so after being ordered by the court to do so and being assessed attorney's fees (which he refused to pay). Mr. Jennings did not respond to the bar's formal complaint.23 The supreme court considered aggravating factors, including intentionally concealing the misconduct (to the detriment of his client), ignoring the trial court's order to pay attorney's fees, substantial experience in the practice of law, multiple rule violations, failure to cooperate in the disciplinary process, refusal to acknowledge the wrongfulness of his conduct, and indifference to making restitution.24
Shannon Briley-Holmes was disbarred for misconduct in connection with the representation of eleven clients.25 Her misconduct included client abandonment in seven cases (violations of Rule 1.3),26 failure to communicate in three cases (violations of Rule 1.4),27 failure to refund unearned fees and/or failure to forward a client's file to a new attorney (violations of Rule 1.16),28 and filing a civil suit against a client without a valid factual basis (violation of Rule 3.1).29 The special master recommended a five-year suspension, but the supreme court noted that it had never imposed such a long suspension other than for reciprocal discipline.30 Although Ms. Briley-Holmes had presented evidence of personal or emotional problems, efforts to make restitution (in one
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case), inexperience in the practice of law, and cooperation (in six of the eleven cases), the court determined that she should be disbarred, because she knowingly engaged in a pattern of misconduct that caused serious injury to vulnerable clients and displayed indifference to making restitution to all but one of the clients.31
The supreme court disbarred Neil Larson after he defaulted with respect to four notices of discipline.32 Mr. Larson had accepted payment in advance to represent four criminal defendants and abandoned all four. He also had made misrepresentations to one client's family about the status of the matter. There were no mitigating factors, and the aggravating factors included a dishonest motive in collecting fees and then abandoning the clients, substantial experience in the practice of law, multiple offenses, and a prior disciplinary history.33
3. Criminal Activity
Three Georgia lawyers lost their licenses during the survey period as a result of criminal conduct.34
The supreme court accepted Shannon DeWayne Patterson's petition for voluntary surrender of his license after he pled guilty in federal court to one count of aiding and assisting in the preparation and presentation of a false tax return.35 The supreme court accepted the voluntary surrender of the license of Richard Scott Thompson after he was convicted of the felony of aggravated stalking.36 David P. Rachel was disbarred following the exhaustion of his appeals from conviction in federal court for conspiracy and money laundering.37
4. Miscellaneous Disbarment
The supreme court disbarred one attorney for reasons other than financial misdeeds, client abandonment, or criminal activity.38 Prince A. Brumfield, Jr. voluntarily surrendered his license and admitted that he
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engaged in deceitful conduct by knowingly filing a deed that falsely purported to contain the signature of an individual.39
B. Suspensions40
1. Six-month Suspensions
The supreme court suspended two lawyers for six months.41 Ricardo L. Polk was suspended for six months (consecutive to a thirty-month suspension he was already serving) for failure to return unearned fees to a client after Mr. Polk was required to withdraw from the representation of the client due to the suspension related to other grievances.42 The court determined Mr. Polk's disciplinary history was a factor in aggravation, while mitigation evidence included a lack of selfish or dishonest motive, remorse, cooperation with the bar, and acknowledgement of the wrongful nature of his conduct.43
S. Quinn Johnson received a six-month suspension because he committed multiple violations of his duties of diligence and communication and also failed to return unearned fees, filed pleadings while he was suspended from practice, and violated Rule 1.15(I)44 (relating to trust accounts).45 Mr. Johnson had been the subject of prior discipline and had substantial experience in the practice of law, but he presented significant mitigation evidence. The mitigating factors included personal and emotional problems at the time of the offenses, lack of a selfish or dishonest motive, restitution, cooperation with the bar, good...
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