Legal Ethics
| Publication year | 2022 |
Legal Ethics
Patrick Emery Longan
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This Survey covers the period from June 1, 2021 to May 31, 2022. The Article discusses developments with respect to attorney discipline, bar admission, malpractice and other civil claims, ineffective assistance of counsel, disqualification of counsel, contempt, prosecutorial misconduct, judicial conduct, amendments to the Georgia Rules of Professional conduct, and formal advisory opinions of the State Bar of Georgia Formal Advisory opinion Board.1
A. Disbarments
1. Trust Account and Other Financial Issues
Three lawyers lost their licenses during the Survey period because of misconduct involving their trust accounts or because of other financial improprieties.2
Timothy Walter Boyd was disbarred for his misconduct in connection with the representation of a client whose daughter died.3 Boyd defaulted in the disciplinary case and thus admitted the alleged facts. Boyd represented the client in the administration of his daughter's estate.
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Boyd estimated that his services would cost the client between $2,000 and $5,000. One service Boyd rendered was to help sell the daughter's residence; the closing statement revealed that Boyd had directed the payment of $14,397.50 to his firm for attorney's fees without the knowledge or authorization of his client. Boyd deposited the remaining proceeds of the sale into a checking account—not a trust account—and wrote two checks for cash totaling $14,650, again without the client's knowledge or permission. Last, Boyd failed to follow the client's instructions about two checks from an insurance company and did not fulfill his duties of communication with the client.4
The Supreme Court of Georgia agreed with the special master that Boyd violated Rule 1.2, Rule 1.3, Rule 1.4, Rule 1.5, Rule 1.15(I), Rule 4.1, and Rule 8.4.5 The special master found no factors in mitigation but noted that, in aggravation, Boyd had a prior disciplinary history, committed numerous rule violations, engaged in a pattern of misconduct, acted for a dishonest or selfish motive, harmed a vulnerable victim, engaged in bad faith conduct during the disciplinary proceeding, and had substantial experience in the practice of law.6
Next, the Supreme Court of Georgia accepted the voluntary surrender of Waymon Sims's license after he admitted misconduct in connection with five bank accounts.7 Sims commingled personal and client funds in purported trust accounts and paid personal and business expenses from those accounts.8 Two of the purported trust accounts used by Sims were not even true trust accounts because the interest from the accounts did not go to the Georgia Bar Foundation or the client.9
Matthew Alexander Bryan was disbarred in Georgia, as a matter of reciprocal discipline, after he was disbarred in Montana for misconduct related to a trust.10 Bryan created the trust for a Georgia resident. When the settlor died in 2013, the trust had an approximate value of $398,000, but the beneficiary was unable to locate Bryan for three years. After the
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beneficiary located him in 2016, Bryan made excuses for the next two years about why the trust funds were unavailable.11 The beneficiary eventually complained to the Montana disciplinary authorities, who disbarred Bryan after he failed to respond to Montana authorities who found that Bryan had engaged in "extreme dishonesty and breaches of duty."12
2. Client Abandonment and Lack of Communication
The Supreme Court of Georgia disbarred five lawyers for misconduct that included client abandonment and lack of communication.
Evelyn Proctor was disbarred after she defaulted in connection with three disciplinary matters.13 Proctor abandoned three clients: one who wanted to seek a divorce, one who wanted a child support modification, and one who had been accused of a misdemeanor.14 Proctor had no prior disciplinary history, but the supreme court observed in aggravation that Proctor had substantial experience in the practice of law and engaged in multiple offenses and a pattern of misconduct.15
The supreme court accepted the voluntary surrender of David J. Farnham's license.16 In his petition, Farnham admitted that he represented a minor in a personal injury matter and, after receiving $250,000 in settlement of the claim, Farnham promised to file a petition in probate court for approval. Farnham never did so, although he did eventually send the settlement funds to the client's new counsel.17 Farnham had an extensive history of prior discipline and another disciplinary matter pending.18
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Tiffini Colette Bell was disbarred for a pattern of misconduct concerning the representation of a client in a dispossessory action.19 Bell made a series of misrepresentations to the client during the course of the proceedings. Bell made false statements about when she filed the complaint, when and whether she had the defendant served, and that she would amend the complaint. Bell also stated that she had filed a motion for default, that she had filed a necessary certificate that the defendant was not on active duty, and that she would refile the case after it was dismissed. The case was dismissed because Bell did not attend a hearing, and Bell failed to communicate adequately with the client about the case. The special master found in aggravation that Bell had an extensive history of prior discipline, acted for dishonest or selfish motives, engaged in a pattern of misconduct, committed numerous offenses, and had substantial experience in the practice of law.20 Bell claimed the conduct occurred at a time when she was mentally unfit to practice law, but the special master found that Bell had presented no evidence other than her own unsubstantiated testimony that she suffered from a mental condition that affected her ability to practice law.21
The supreme court also disbarred Joel S. Wadsworth.22 During the disciplinary process, Wadsworth did not respond to the complaint against him. Wadsworth thereby admitted that he abandoned several clients in a civil case and that, after he was suspended for failing to pay his bar dues, Wadsworth neither informed the clients nor withdrew from the case.23 The special master found no mitigating factors and found in aggravation that Wadsworth had been disciplined four times before, had a dishonest or selfish motive, had committed multiple offenses, and had substantial experience in the practice of law.24
Last, the supreme court disbarred Joseph Roger Davis after he defaulted in the disciplinary process.25 By his default, Davis admitted the allegations against him. Specifically, Davis accepted a retainer to represent a client in a criminal matter. The client expressed concerns about outstanding arrest warrants. She asked Davis to find out about the warrants and, if necessary, to arrange for her to turn herself in. Davis
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did not conduct an appropriate investigation and then falsely told the client that there were no outstanding warrants. The client made additional payments to Davis, but he did not respond to her inquiries, did not appear at a hearing, did not explain how he earned the payments the client was making, and repeatedly told the client that there were no outstanding warrants. Eventually, the client was arrested and spent seven weeks in jail on warrants that had been issued before the client ever hired Davis. One reason cited by the prosecution to keep the client in jail for so long was the failure to turn herself in despite knowing about the warrants. The client eventually was released with the help of another attorney. Davis never responded to a letter from the client asking Davis how he earned the fees she paid him and who Davis had contacted about the warrants.26
The special master found that by these actions Davis violated numerous rules of professional conduct.27 Additionally, there were many aggravating factors including a dishonest or selfish motive, a pattern of misconduct, refusal to acknowledge wrongful conduct, and substantial experience in the practice of law. The supreme court agreed and added to the list of aggravating factors the fact that Davis had received confidential discipline in 2015.28
3. Criminal Activity
Four lawyers were disbarred as a result of criminal conduct.
The Supreme Court of Georgia accepted the voluntary surrender of the license of Donald Francis Hawbaker.29 Hawbaker was convicted of five felony counts of aggravated assault on a peace officer after Hawbaker opened fire on deputies who came to his home with an arrest warrant for simple assault and disorderly conduct.30
The supreme court also accepted the petition for voluntary surrender of Mark Preston Jones's license.31 Jones was convicted of influencing a witness, violating an oath of a public officer, and attempted violation of oath of a public officer—all felonies.32
Donald Richard Donovan was indicted on five felony counts, including bribery and false swearing, while he served as the district attorney for
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Paulding County.33 Donovan pled guilty to a misdemeanor and admitted that he had made false statements in an affidavit. As part of the plea deal, Donovan agreed to surrender his law license.34 The supreme court accepted the surrender, finding that Donovan had violated Rule 8.4(a)(3).35
Last, Billy Reid Zeh Ill's petition for voluntary surrender was accepted.36 Zeh plead guilty to one count of aggravated assault and one count of simple assault.37
4. One Miscellaneous Disbarment
One attorney was disbarred for misconduct that did not fit into the foregoing categories. Jerry Boykin was on disabled status and thus not eligible to practice law.38 Boykin nevertheless filed a petition to probate a will. When Boykin learned that the decedent had executed a subsequent will, Boykin tried but failed to persuade one of the co-executors to renounce the appointment. When his persuasion failed...
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