Legal Ethics - Patrick Emery Longan

• Publication year: 2008

Legal Ethicsby Patrick Emery Longan^*

I. Introduction

Georgia's appellate courts made significant decisions during the survey year in matters of attorney discipline, malpractice, and ineffective assistance of counsel. They also issued opinions worth noting in cases concerning attorney and judicial disqualification and several miscellaneous matters.

II. Disciplinary Cases

The Georgia Supreme court disciplined numerous lawyers for misconduct during the survey period. As usual, the leading categories were client abandonment, criminal convictions, and financial improprieties. In addition, lawyers were disciplined for a variety of other transgressions and as matters of reciprocity.¹

A. Client Abandonment

Six lawyers were disbarred without dissent for client abandonment.²

The court also unanimously accepted petitions for voluntary discipline from two lawyers in abandonment cases.³ Both lawyers were suspend-ed.⁴ one of these lawyers abandoned two clients but had no prior record of discipline.⁵ He was suspended for one year.⁶ The other, Alice Caldwell Stewart, abandoned six clients but apparently had medical problems that impaired her ability to practice law.⁷ She was suspended with conditions, including a demonstration of a lack of impairment, before she could be reinstated.⁸ Ms. Stewart made a return appearance before the court six months later in another case of abandonment that arose during the same time frame.⁹ The court again imposed an indefinite suspension with conditions,¹⁰ although Justices Hunstein and Carley dissented.¹¹ The dissenting justices would have disbarred Stewart in light of her pattern of misconduct and two prior cases in which she was disciplined.¹²

Another abandonment case provoked dissent, this time by Justice Melton with Justice Hunstein concurring in the dissent.¹³ In In re Johnson,¹⁴ Johnson abandoned three client matters before closing her practice and moving to Florida. She had received a formal letter of admonition in 2006 for her handling of two client matters, but she demonstrated remorse and cooperated with the Bar.¹⁵ The court accepted her petition for voluntary discipline of a two year suspen-sion.¹⁶ Justice Melton noted the multiple offenses and the prior discipline in his dissent, but he was particularly critical of the lack of evidence in the record that Johnson had provided restitution to her clients.¹⁷ Justice Melton would have disbarred Johnson, and Justice Hunstein agreed.¹⁸

B. Criminal Convictions

Criminal convictions led to discipline for sixteen lawyers. Fourteen of the cases were uncontroversial. Twelve of these lawyers voluntarily surrendered their licenses after their convictions.¹⁹ Two others were suspended pending appeal of their convictions.²⁰ Two cases, however, provoked dissents.²¹

In In re Waldrop,²² Waldrop was suspended for twenty-four months despite pleading guilty under the First offender Act²³ to possession of N-N-dimethylamphetamine and being sentenced to five years of proba-tion.²⁴ According to the majority, the record showed that Waldrop's use of drugs was situational, not compulsive, and that he was neither addicted nor likely to become so.²⁵ Waldrop had no prior history of discipline and had served with distinction for eighteen years in the military. In 2006 Waldrop stopped taking new clients, transferred existing clients to other attorneys, and sought treatment from a psychologist.²⁶ He consented to and passed nine random drug screens over a twelve month period.²⁷ Justice Hunstein dissented from the decision to suspend Waldrop in an opinion joined by Justice Thomp-son.²⁸ Justice Hunstein noted that Waldrop did not testify personally before the special master, and she found his failure to take direct responsibility "extremely troubling."²⁹ Justice Hunstein also noted that the appearance of an attorney with a criminal conviction practicing law undermines public confidence in the profession more than any other problem.³⁰ She and Justice Thompson concluded that disbarment was the appropriate sanction.³¹

In a similar case, In re Lewis,³² Lewis pleaded guilty to one count of possession of cocaine and was also sentenced to five years of probation under the First Offender Act. At the time of his plea, Lewis was forty-six years old, and he testified that he had been using cocaine off and on since he was a teenager.³³ Although the special master recommended disbarment, the supreme court held that disbarment would be unduly harsh because Lewis had been in practice for over twenty years and had no disciplinary record.³⁴ Also, his offense did not directly relate to his work for clients and did not involve dishonesty.³⁵ Justice Hunstein, again joined by Justice Thompson, dissented and argued that disbarment was warranted.³⁶ In light of Lewis's admitted use of cocaine for decades, Justice Hunstein understandably concluded that Lewis had a drug problem.³⁷ She saw no evidence that Lewis was doing what he needed to get his drug problem under control.³⁸ Lewis spent less than two months in treatment after his arrest, and he attended Alcoholics Anonymous or Narcotics Anonymous meetings only sporadically. Moreover, Lewis was not under the treatment of a mental health professional.³⁹ In light of these facts, Justice Hunstein concluded that disbarment was appropriate.⁴⁰

C. Financial Improprieties

The supreme court justices all agreed to disbar (or accept voluntary surrender of the law license of) seven lawyers who had engaged in some form of financial impropriety. Five of these cases involved misuse of funds in the lawyers' trust accounts.⁴¹ The sixth case involved a lawyer for the Department of Justice who took a Rolex watch and $3500 in cash from an office of the Drug Enforcement Administration.⁴² The lawyer also submitted false travel vouchers to the United States Government and made numerous unauthorized charges on his government credit card. When government agents investigated these activities, the lawyer made false statements about them.⁴³ Ultimately, the lawyer was disbarred.⁴⁴ In the seventh case, Terrill Andrew Turner forged his client's name on deeds and diverted over $700,000 to himself.⁴⁵ Turner, too, was disbarred.⁴⁶

One lawyer who converted client money to his own use was suspended rather than disbarred.⁴⁷ James Babson, Jr. represented a client in a workers' compensation case and converted over $4000 of the client's money to his own use. He did so about six weeks after suffering a mental breakdown that led him to attempt suicide at a time when he was dealing with the terminal illness of his sister and the end of a relationship. Babson made full restitution to his client, sought professional help, and cooperated with the Georgia Bar.⁴⁸ In light of these mitigating factors, a unanimous supreme court suspended him for one year instead of disbarring him.⁴⁹

D. Other Disciplinary Matters

Three lawyers were disciplined for actions taken in litigation in which the lawyer was personally involved. In In re Dogan,⁵⁰ Dogan was a party to a child support case and produced paycheck stubs to prove his weekly earnings. The trial court found the stubs were fabricated and held Dogan in criminal contempt.⁵¹ The supreme court disbarred him.⁵²

Moreton Rolleston, Jr. became a frequent litigant after a judgment was entered against him for malpractice and fraud in 1995 in In re Rolleston.⁵³ Over the course of ten years, Rolleston filed so many actions on his own behalf and on the behalf of a related entity that the superior courts in Fulton and Cobb County enjoined him from filing any further claims, and the supreme court sanctioned him repeatedly for filing frivolous appeals.⁵⁴ The supreme court described Rolleston's behavior as "recalcitrant" and as having "flagrant disregard for the ethical standards imposed upon members of the Bar."⁵⁵ Rolleston was disbarred.⁵⁶

In the third case, In re Morales,⁵⁷ Morales had been a plaintiff in a personal injury case and had lost a dispute with his attorney over an attorney's lien. Morales filed a federal lawsuit against his former lawyers, the trial judge in his personal injury action, a member of that judge's staff, the clerk, the deputy clerk, the assistant clerk of the Georgia Court of Appeals, and the appellate judges who had ruled against him.⁵⁸ The supreme court determined that the federal lawsuit was frivolous and violated Georgia Rule of Professional Conduct 3.1.⁵⁹ It also expressed the opinion that the pleadings demonstrated "strong feelings ofparanoia and persecution" and suspended him for at least one year, with reinstatement conditioned upon successful treatment by a mental health professional.⁶⁰

The supreme court also took action in twelve other disciplinary matters and one character and fitness application. Eight lawyers received discipline in Georgia because they had been disciplined in other states.⁶¹ In In re Ellison,⁶² Ellison was disbarred, despite a special master's recommendation of suspension, for a variety of types of misconduct.⁶³ Ellison failed to communicate with clients, forged their names to court filings, and dismissed an action without client authority, among other transgressions.⁶⁴ In light of these numerous violations and three earlier disciplinary actions, the supreme court disbarred Ellison.⁶⁵

A similar multivariate pattern of misconduct, including forgery, lying, manufacturing evidence, and many other actions in a total of twenty-six cases led to the disbarment of Tara Gail McNaull.⁶⁶ Paul Owen Farr petitioned the court for a voluntary indefinite suspension because he was impaired by bipolar disorder and anxiety.⁶⁷ The court agreed to the petition.⁶⁸ James H. Bone, then the Standing Trustee for the United States Bankruptcy Court for the Northern District of Georgia, tape recorded a settlement conference. When the debtor's ex-wife requested a copy of the recording, Bone ordered his staff to delete the recording, destroyed a compact disc that contained it, and filed a false pleading with the court...