Legal Ethics
| Publication year | 2017 |
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, 2016 to May 31, 2017.1 The Article discusses attorney discipline, ineffective assistance of counsel, legal malpractice and breach of fiduciary duty, disqualification, 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 Violation
The Georgia Supreme Court disbarred one attorney during the survey period for mishandling funds in his trust account.4 The lawyer collected over $113,000 from a buyer at a real estate closing but did not disburse the funds to the seller until the seller filed a lawsuit to collect the funds.
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In the meantime, the lawyer either misused the funds or commingled them with his own. To satisfy the seller's claim, the lawyer had to deposit personal funds into the trust account.5
2. Client Abandonment and/or Lack of Communication
The supreme court disbarred four lawyers during the survey period primarily for client abandonment and failure to communicate.
Kurt A. Raulin defaulted in the disciplinary process with respect to two matters and therefore admitted that he had "failed to abide by [his clients'] decisions regarding the scope and objectives of the representation,"6 failed to act diligently, and failed to communicate adequately.7 He was representing one of those clients while he was under suspension for an earlier disciplinary violation.8
Richard R. Buckley, Jr. was disbarred in connection with five disciplinary matters to which he did not file any notices of rejection.9 In one matter, Buckley failed to respond to orders of the court. In the other four, he undertook to represent clients, accepted retainers, abandoned the clients, and did not refund the fees.10
The court disbarred Ted H. Reed, a lawyer with an extensive record of prior discipline.11 The special master found that Reed violated his duties of diligence and of communication regarding the representation of a divorce client, who:
[T]estified that he experienced considerable difficulty in communicating with Reed and that Reed failed to undertake the steps necessary to ensure the correction of the final order in the divorce proceedings, which order failed to protect the client's pension, such that the client was eventually required to obtain other counsel, and incur the expenses attendant to doing so, in order to have the matter resolved in his favor.12
The court disbarred Morris P. Fair, Jr. for his conduct in two matters and based on his disciplinary history.13 In one of the matters, Fair continued to represent the client while he was suspended, failed to
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respond to discovery or to motions, failed to consult or communicate with his client, and failed to return the client's property after he withdrew. The trial court struck the complaint that Fair filed for his client, barred him from defending against the opposing party's counterclaim, and awarded over $28,000 in attorney fees to the opposing party. In the other matter, Fair undertook to represent a client in a criminal case but did not communicate adequately with the client, ceased representing the client without filing a motion to withdraw, and falsely represented to the Bar that he had filed such a motion.14
3. Criminal Activity
The supreme court disbarred eight lawyers during the survey period for criminal activities. George D. Houser lost his license after he was convicted of one felony count of conspiracy to commit healthcare fraud, eight felony counts of payroll tax fraud, and two counts of failure to file income taxes.15 The supreme court disbarred another attorney when the court of appeals affirmed his conviction for child molestation.16 The court disbarred Everett H. Mechem because he was convicted in federal court of "[twenty-eight] counts of wire fraud, two counts of Supplemental Security Income fraud, two counts of making a false statement, and one count of theft of public money."17
Several lawyers who committed crimes voluntarily surrendered their licenses. Holly De Rosa Hogue did so after she was convicted of a felony, distribution of oxycodone and methamphetamine.18 Lyle Vincent Anderson voluntarily surrendered his license after he was convicted of forgery for falsifying a fee agreement,19 while Trent Carl Gaines surrendered his license after he pled guilty to federal felony charges of bid-rigging and conspiracy to commit mail fraud.20 Samuel Elias Skelton voluntarily surrendered his license after he pled guilty to felony counts of theft by taking.21
One lawyer was disbarred as a result of a misdemeanor.22 Joanna Temple was convicted in New York of a misdemeanor after advising
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clients about how to intentionally violate New York's usury law.23 Her assistance of the clients in the commission of crimes violated Rule 1.2(d)24 of the Georgia Rules of Professional Conduct.25 Her conviction of the crime was also misconduct under Rule 8.4(a)(3),26 which provides that it is a violation of the Georgia Rules of Professional Conduct for a lawyer to "be convicted of a misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer's fitness to practice law."27
4. Miscellaneous Disbarments
The supreme court disbarred five lawyers for reasons that do not fit neatly into the usual categories. The court disbarred Keith Brian Harkleroad because he continued to practice after being suspended for failure to complete mandatory continuing legal education and for failure to pay Bar dues.28 Harkleroad's suspension was discovered during his defense of a client on murder charges:
The client's trial began on October 25, 2015, with Harkleroad representing the client. Following that day's proceedings, the prosecution learned that Harkleroad was not then a member in good standing and advised the court of its discovery outside the presence of the jury. According to the Notice of Discipline, Harkleroad told the court that he had recently sent a check to pay his Bar dues and that he acquired six hours of continuing legal education credit. The court allowed Harkleroad to leave the courtroom to check on his membership status. When Harkleroad returned, he told the court that he had spoken with a representative of the Bar and had been told that he needed eight hours of continuing legal education credit. The court declared a mistrial in the client's murder case and filed a grievance against Harkleroad. At that time, Harkleroad needed 18 hours of continuing legal education credit and no check for payment of Bar dues from Harkleroad was ever received by the Bar. Moreover, Harkleroad did not cooperate with the Office of General Counsel's investigation of this grievance and did not submit a response to the Notice of Investigation.29
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The court disbarred Harkleroad for violating Rule 5.5(a)30 (unauthorized practice of law), Rule 8.4(a)(4)31 Oprofessional conduct involving dishonesty, fraud, deceit, or misrepresentation), and Rule 9.332 (failure to respond to disciplinary authorities).33
The court disbarred Ted. B. Herbert, who did not contest the allegations against him.34 Those allegations were that Herbert represented two clients in a matter and advised them to destroy physical and electronic evidence. During the pendency of the case, Herbert did not act with diligence and did not communicate adequately with the clients. The trial court eventually struck the answer and defenses of Herbert's clients as a sanction for the spoliation of evidence, including the evidence that the lawyer advised the clients to destroy. Herbert had three prior disciplinary offenses, and the special master found no mitigating circumstances.35
The court also accepted the voluntary surrender of the license of Chalmer E. Detling, II.36 Detling settled a client's personal injury case without the client's authority. Detling advised the court that his daughter's serious medical issues left him unable to devote sufficient attention to the client's matter. The State Bar of Georgia noted for the court that Detling was under an emergency suspension and that a special master had recommended in three other matters (pending before the review panel) that he be disbarred.37
The court also disbarred Christopher G. Nicholson.38 While representing a client, Nicholson intentionally signed a false affidavit and caused harm to an insurance company. The company sued Nicholson and obtained a judgment, which he refused to pay. Nicholson defaulted in response to the grievance. During proceedings regarding aggravation and mitigation, he engaged in disrespectful and disruptive conduct.39 The supreme court described some of that conduct in a footnote to its opinion:
Among other things, Nicholson referred to his disciplinary proceeding as "a Star Chamber proceeding," claimed to "know [that the] fix is in," referred to the special master as the "High Executioner," and accused
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the special master of "making up the law and rules as you go to preclude me from having a fair and impartial hearing." Nicholson asked the special master if she had "any more homemade rules for me," adding that "[t]his hearing should be a blast." Nicholson variously questioned the qualifications and impartiality of the special master, alleging that the special master and State Bar counsel were "joined at [t]he hip," accusing the special master of ruling against him without reading his filings, and writing to the special master: "U r hopeless." In a few e-mails, Nicholson revealed his failure to appreciate the seriousness of the proceeding and the gravity of the violations with which he was charged, referring to the proceeding as "nonsense," stating that "[the] whole proceeding is about nothing," and sarcastically...
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