Legal Ethics
| Jurisdiction | Georgia,United States |
| Publication year | 2016 |
| Citation | Vol. 68 No. 1 |
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, 2015 to May 31, 2016.1 The Article discusses attorney discipline, ineffective assistance of counsel, legal malpractice and breach of fiduciary duty, judicial ethics, several miscellaneous cases involving legal ethics, opinions of the Formal Advisory Opinion Board, and amendments to the Georgia Rules of Professional Conduct.
A. Disbarments3
1. Trust Account Abuse or Other Financial Transgressions
The Georgia Supreme Court disbarred seven lawyers for violations of their duties with respect to financial matters. Michael L. Terrell voluntarily surrendered his license after he failed to account to his client
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for a $100,000 check he received in settlement of the client's personal injury case.4 David P. Hartin also voluntarily surrendered his license, after he failed to account to his divorce client for the proceeds of the sale of the marital home, which were to be distributed equally to the divorcing parties.5 Jin Choi gave up his license after he failed to take proper care of funds entrusted to him in his fiduciary capacities, including funds for business ventures and funds involving his law practice.6
Douglas J. Mathis lost his license because he abandoned his law office and converted client funds in connection with a real estate closing and an irrevocable trust.7 Russ Floyd Barnes voluntarily surrendered his license after he admitted that he took $275,000 of funds held in a fiduciary capacity from his firm's trust account.8 The special master found (and the court agreed) that he should lose his license even though he claimed (albeit without documentation) he replaced the funds and no client was harmed.9 The court disbarred Tesha Nicole Clemmons because she did not maintain communication with her personal injury client, settled the case without the client's authority, failed to disburse any of the funds to the client or keep them in her trust account, and made false statements to the Investigative Panel.10
In one of the more bizarre cases, the court accepted the petition of Tony L. Axam to voluntarily surrender his license, after Axam acted as "paymaster" for a client.11 At the direction of a client, an individual wired $100,000 to Axam's operating account (he did not have a trust account), and Axam then disbursed the money (minus a fee of $5000 for his trouble) as directed by his client.12 Axam did not know the nature of the underlying business and asked no questions, but when he failed to provide an accounting of the funds, the person who sent the money to him filed the grievance that led to Axam surrendering his license.13
2. Client Abandonment, Lack of Communication, or Both
The supreme court disbarred ten lawyers primarily for either client abandonment or lack of communication, or both. Stephen Bailey Wallace,
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II defaulted and was disbarred because he filed suit on behalf of a severely injured client in 2004 but filed nothing in the case after 2006, resulting in the case's dismissal in 2013.14 Perrin Bowie Lovett lost his license because he accepted payment of $1,000 to help a client in connection with an estate and subsequently closed his practice, kept the money, falsely told the client another lawyer would handle the matter for no additional fee, and refused to return the money or the file.15 Tanya Yvette Brockington lost her license because she abandoned three clients who paid her to help with immigration matters and never refunded their money.16 Steven Salcedo was disbarred because he agreed to represent a client in two medical malpractice claims but failed to file one at all, caused the other to be dismissed by not appearing at a status conference, did not inform the client of the status of her matters, was uncommunicative with the client, and did not return her files.17 The court disbarred William Charles Lea after he abandoned three clients and refused to return any of the fees they had paid him.18 Stephen B. Taylor was disbarred when he took money to represent two clients in criminal matters but did no work, abandoned the clients, did not communicate with the clients or the client's family, and failed to return the fees.19
The court seemed somewhat reluctant when it accepted the petition of Dianne Cook to surrender her license.20 Cook, who had no prior discipline, was cooperative with the investigation, and told the court she no longer intended to practice, but she had neglected one matter for a client at a time when she and her husband were in declining health.21
Melissa Jill Starling lost her license after she defaulted in two disciplinary matters related to her abandonment of clients.22 In one, Starling undertook to represent a client in a personal injury case but did not consult the client about settlement, did not communicate with the client, allowed the statute of limitations to expire, and then withdrew without explanation.23 In the other matter, Starling accepted $750 to represent a client on an aggravated stalking charge but never communicated with the client or took any steps to obtain bond for the
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client.24 When the client replaced her, Starling did not refund the fee.25 In both disciplinary matters, Starling attempted to open the default judgments, but the special master found that she had met none of the criteria for opening a default.26
The court disbarred Joel David Myers as a result of his abandonment of two clients.27 In one case, Myers did not file pleadings, respond to discovery, or respond to the client's requests for information. Myers also misrepresented the work he had done and the justifications for his substantial fees but refused to return unearned fees.28 In the other case, Myers billed the client twice for the same work, borrowed $600 from the client without satisfying Georgia Rule of Professional Conduct 1.8,29 did not file the papers and fees necessary to achieve the client's objectives, and lied to the client about whether he had done so.30
Wayne Peter Merisotis was disbarred after he undertook the representation of two clients in criminal cases but gave them false information about what he would do, failed to act with diligence, to consult with the clients, to inform them of the status of their cases, to comply with their reasonable requests for information, or to withdraw from the cases.31 In one of the cases, Merisotis failed to appear at hearings and gave false information to the bar during its informal investigation.32
3. Criminal Activity
The supreme court disbarred eight lawyers as a result of their criminal activity. Charles B. Merrill, Jr. voluntarily surrendered his license after being convicted of federal conspiracy to make false statements and reports in connection with a loan from the Rural Development Administration.33 John R. Thompson was disbarred after he exhausted his appeals from convictions on felony counts of conspiracy, bank fraud, wire fraud, and mail fraud.34 James Alan Langlais voluntarily surrendered his license after he pled guilty, as a first offender, to felony
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charges of false statements, false writings, and forgery.35 Wilson R. Smith gave up his license after he pled guilty in federal court to mail fraud and aggravated identity theft.36 The court accepted Donald Carlton Gibson's petition to relinquish his license after he pled guilty to bank fraud, a felony.37 Tashawna Lacher Griffieth voluntarily surrendered her license after pleading guilty in state court to a felony charge of first-degree forgery.38
Jennifer L. Wright pled guilty to felony possession of Alprazolam (which is sold under the trade name Xanax) and was disbarred after the evidence at her hearing showed that she had not been compliant with the terms of her probation (including participation in drug treatment and cessation of marijuana use), and had a history of arrests for driving under the influence. She also had a history of failing to take responsibility, blaming others, and lack of candor with a drug counselor.39
In a more unusual case, because it involved a misdemeanor rather than a felony, Dennis S. Childers lost his license after he pled guilty as a first offender for having received a vehicle tag he knew was stolen and doing so without the intention of restoring it to the owner.40 The special master found that this was a misdemeanor involving moral turpitude because it involved an act of dishonesty.41 In light of Childers' prior disciplinary history and the lack of significant mitigation, the court approved the special master's recommendation of disbarment.42
4. Miscellaneous Disbarments
The supreme court disbarred three lawyers for other reasons. Jarlath Robert MacKenna was disbarred because he undertook to represent two clients (one of whom he abandoned) while his license to practice law had been suspended.43 The court disbarred Paul R. Koehler because he would not stop litigating a matter that he had definitively lost.44 After the supreme court had disposed of the matter, Koehler continued filing frivolous motions in the superior court (some even after the client had
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fired him) and frivolous appeals in the court of appeals.45 Koehler also filed a related federal civil action without his client's authority and made deceitful and misleading statements in the complaint.46
Jay Harvey Morrey undertook to represent clients on contingency bases but did not prepare retainer agreements or any writing to describe his fees and expenses, and he also failed to maintain adequate records of his fee agreements.47 Morrey also represented a party in numerous garnishment actions but never investigated his suspicion, which apparently turned out to be correct, that his client was not actually the party to the case.48 Morrey informed the court that his actions resulted from depression and other...
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