Legal Ethics
| Publication year | 2015 |
Legal Ethics
Patrick Emery Longan
Mercer University School of Law, LONGAN_P@law.mercer.edu
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This survey covers a two-year period from June 1, 2013 to May 31, 2015.1 The Article discusses noteworthy Georgia appellate cases concerning attorney discipline, disqualification, ineffective assistance of counsel, judicial ethics, and legal malpractice. The Article also discusses two significant opinions from the Formal Advisory Opinion Board, amendments to the Georgia Rules of Professional Conduct, and several recent miscellaneous cases involving legal ethics in Georgia.
A. Disbarments2
1. Trust Account Abuse or Other Financial Transgressions. The Georgia Supreme Court demonstrated again during this survey period that it has little tolerance for violations of the trust account rules or for other financial transgressions. The court disbarred fifteen lawyers in which such conduct was the sole or primary focus of the lawyer's disciplinary proceedings.
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Several lawyers chose to bypass their trust accounts. Robert T. Thompson, Jr. handled an action for a client to try to stop foreclosure of the client's home. While the action was pending and there was an injunction to prevent the foreclosure, Thompson required the client to make monthly payments that eventually totaled $15,000 to show "good faith" (presumably to the lender). However, Thompson did not keep those funds in his trust account and claimed, falsely, that they were for legal services.3 The court disbarred Thompson.4 Joseph Kizito was disbarred because he accepted over $4000 from a client for attorney and filing fees in an immigration matter, but he never filed the case and did not keep the filing fees in his attorney trust account.5 Henry Lamar Willis was disbarred because he deposited a client's $30,000 settlement check into a personal or business account (he did not maintain an attorney trust account), and Willis converted the funds to his own use.6
Three lawyers lost their licenses because they took client money for themselves. The court disbarred Donald L. Jones because he settled four personal injury cases and then absconded with the money.7 Rodd Walton received thousands of dollars from a client. He was supposed to use most of the money to resolve claims against the client and to retain an attorney for the client in another state. Instead, Walton converted the funds to his own use and abandoned his law practice.8 He also ceased communicating with a client in a personal injury case, and, as a result of all of these actions, the court disbarred Walton.9 Ted Webster Wooten III lost his license because he kept the funds after he settled a client's personal injury case for $100,000.10 Although Wooten initially placed those funds in his trust account, he eventually used all of those funds for his personal use.11
The court disbarred several lawyers for overdrawing their trust accounts, commingling personal and client funds, failing to keep adequate records, or using their attorney trust account to pay personal bills. Tracey Dawn Gibson lost her license because she overdrew her trust account, paid numerous personal expenses from the trust account, practiced law while she was suspended, and abandoned two clients.12
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The court disbarred Sharla Monique Gorman because she settled a personal injury case for a client but commingled the client's funds with her personal funds and used the client's funds to pay personal expenses.13 The court accepted the petition for the voluntary surrender of Robert W. Cullen's license because he admittedly failed to account for fiduciary funds and failed to keep the funds separate from his own property.14 Cullen admitted that he had physical and psychological issues that incapacitated him from continuing to practice law.15 Robert B. Lipman represented a client in a personal injury case, signed the names of his client and his client's wife to a release of the claims, and had one of his employees notarize those signatures. Lipman did not account for the client's funds, failed to deliver the client's funds, and, shortly after he received and deposited the settlement check, Lipman issued a check from his trust account to pay an unrelated expense.16 Lipman voluntarily surrendered his license.17 Hendrickx H. Toussaint also voluntarily surrendered his license because he accepted funds as an escrow agent but then conducted numerous transactions involving those funds without keeping records of where the money came from or where it went.18
Several lawyers were disbarred because, at least in part, of actions they took in connection with trusts or estates. The court disbarred Robert Gist after he failed to account for funds in a trust he administered for a deceased former client; he then wrote checks on behalf of the trust from an account that was not his attorney trust account.19 Gist also defrauded more than thirty clients out of several million dollars by soliciting the clients to invest in securities. Instead of investing the money, he funneled the money to a company he controlled and for which he fabricated account statements that he sent to the clients.20 Barbara W. Willis was disbarred because, as the administrator of two estates, she converted over $36,000 of estate funds to her own use and submitted false accountings with the probate court.21
Other lawyers' financial transgressions were accompanied by other violations of the rules of conduct. The court accepted Richard Wesley Kelley's petition for voluntary surrender of his license after he failed to
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account for client funds in three separate matters and abandoned another client's defense in a criminal case.22 The court noted that Kelley had been arrested for crimes relating to previous mishandling of client funds, and it rejected his arguments that depression and substance abuse warranted an indefinite suspension rather than the surrender of his license.23 The court also disbarred Carin Astrid Burgess as a result of numerous violations of the rules of conduct, despite a recommendation for suspension from the review panel.24 In one matter, Burgess disbursed settlement funds to a client in infrequent and random amounts, while in another case, she disbursed funds from her trust account to herself and her client in defiance of a court order to deposit those funds in the court's registry. In three other cases, Burgess did not comply with her duties of communication and diligence in representing clients, and for a time, Burgess practiced law while she was suspended for failure to pay her bar dues.25
2.Client Abandonment. Abandonment of clients was, as usual, another significant cause of disbarments during this survey period. Eight lawyers lost their licenses in cases in which abandonment was at the heart of the lawyer's conduct. The court disbarred Douglas Grant Exley after he abandoned two clients and failed to return the fees that the clients already paid him.26 Robert Anthony McDonald failed to respond to four notices of discipline that made similar allegations: he had undertaken to represent clients, ceased communicating with them, and failed to respond to numerous efforts by the clients to reach him. In one case, McDonald also failed to account for part of a client's settlement.27 The court disbarred him.28 Michael Rene' Berlon accepted a medical malpractice case but never filed the case and for almost two years failed to accurately advise the client about the status of the matter.29 Berlon compounded his problem by making misrepresentations to the State Bar of Georgia in his response to the grievance, and the court accepted his petition for voluntary surrender.30 Sarah Spence Cooksey was disbarred because, after she undertook to represent a client, she eventually ceased communicating with the client, vacated
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her office, stopped attending hearings in the case, and falsely informed the court that the client had not retained her.31 Eric Jerome Carter voluntarily surrendered his license because in two cases he neglected his clients' appeals from their criminal convictions, and in another case he failed to provide his clients with full disclosure about medical liens related to settlement proceeds that he held in his trust account.32 The court disbarred Leah Rochelle Brown because she accepted fees to represent four divorce clients but abandoned all four clients.33 Michael David Mann lost his license because he repeatedly failed to appear for hearings for three clients in criminal matters and made a false statement to the court that he actually had appeared on a certain day.34 The supreme court disbarred Ralph Joseph Hiers because he accepted payment to represent a client in a divorce case but, after one exchange about a counterclaim, ceased communicating with the client and failed to refund any of the fees that the client already paid.35
3. Criminal Activity. During the survey period, lawyers also lost their licenses as a result of felony convictions or other criminal activity. Twelve disbarments were in this category. A number of these disbarment cases involved drug charges. Rand J. Csehy pled nolo contendere to two felony counts of drug possession and one felony count of possessing a gun during the commission of a crime, and he was sentenced as a first offender.36 The court disbarred Csehy after he compounded his problem by appearing in court under the influence of illegal drugs while his petition for voluntary discipline was pending.37 Lauren Gordon Garner voluntarily surrendered her license after she pled guilty to felony possession of a controlled substance and possession of a drug-related object.38 Ashley A. Davis also voluntarily surrendered her license after she pled guilty to two felonies, possession of methamphetamine and making a false statement.39 The supreme court accepted the voluntary surrender of Arjun S. Kapoor's license because he pled guilty...
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