Legal Ethics - Patrick Emery Longan

• Publication year: 2003

Legal Ethicsby Patrick Emery Longan^*

I. Introduction

Between June 1, 2002, and June 1, 2003, the Georgia Court of Appeals and the Georgia Supreme Court decided over two hundred cases concerning legal ethics. Those cases included disciplinary cases against lawyers, bar admission matters, claims of ineffective assistance of counsel in criminal cases, judicial discipline and disqualification, and several miscellaneous matters involving clients and lawyers. In addition, the united States Court of Appeals for the Eleventh Circuit decided one significant case involving judicial elections in Georgia.

II. Disciplinary Cases

A. Trust Accounts and Other Financial Problems

Lawyers in a variety of practice settings have occasion to handle other people's money. One of the leading causes of attorney discipline is the mishandling of client money, and this past year was no exception. Six attorneys were disbarred for mishandling money belonging to others, while one attorney received a twelve-month suspension.

Two attorneys were disbarred because they settled cases without client authorization and converted the money to their own uses. In re Jones¹ arose from one incident, while a different In re Jones² involved ten cases. In In re Snead³ and In re Burrell,⁴ two lawyers lost their licenses because they absconded with money they received in trust at real estate closings.⁵ Another lawyer, in In re Clarke,⁶ voluntarily surrendered his license after he withdrew funds from an estate for which he was the administrator and took for his own use a car that belonged to the estate.⁷ In In re McFarland,⁸ another attorney was disbarred after she became an issuing agent for a title insurance company but never accounted for the premiums that were paid to her.⁹ Finally, in In re Cunningham,¹⁰ an attorney received a twelve-month suspension after he filed a Petition for Voluntary Discipline for commingling client funds with his personal funds and "borrowing" money from the client's funds, even though the client was repaid.¹¹

B. Problems of Client Neglect and Abandonment

In the Georgia Supreme Court's 2002-2003 term, the court disciplined numerous lawyers for neglect or abandonment of client matters. Some of these cases involved multiple matters, while neglect of just one matter was sufficient cause for discipline in a number of others.

Three cases displayed patterns of client abandonment, and all resulted in disbarment. In re Dickson¹² concerned an attorney who undertook one divorce case and two post-conviction cases, did little or no work on the matters, and in two of the three cases, kept the money that the client paid up front.¹³ In In re McDaniel,¹⁴ another lawyer abandoned six clients, kept $3500 retainers from two clients, and converted $13,500 belonging to one client for his own use.¹⁵ Finally, in In re Broom,¹⁶ an attorney was disbarred after abandoning clients in six personal injury cases and one divorce case.¹⁷ In five of these cases, Broom did nothing to pursue the client's matter.¹⁸

A number of other cases resulted in discipline for abandonment of a single client. In re Strickland¹⁹ and In re Quinlan²⁰ concerned two lawyers who were disbarred for neglecting bankruptcy matters entrusted to them; in each case, the lawyer also took client money for the lawyer's personal use.²¹ Two other lawyers, in In re Burton²² and In re East-ham,²³ undertook to represent clients in criminal cases but abandoned the clients and lost their licenses as a result.²⁴ In In re Beall²⁵ and In re Eaton,²⁶ lawyers with prior disciplinary history were disbarred for neglecting civil cases,²⁷ and in In re Shehane,²⁸ a lawyer was disbarred for abandoning a client's civil claim and then lying about it to the Investigative Panel.²⁹ Two other lawyers were suspended for abandoning clients in civil cases. An attorney in In re Wallace³⁰ was suspended for two years for neglecting a case that had already been filed,³¹ and in In re Luquire,³² an attorney was suspended for one year for failing to take any action on the client's behalf.³³

C. Other Disciplinary Cases

The supreme court also decided a number of miscellaneous disciplinary cases. These cases involved criminal activity by lawyers, reciprocal discipline issues, the use of "runners," and deceptive actions by lawyers.

The court dealt with cases involving criminal activity by lawyers. In In re Rutherford,³⁴ a lawyer's voluntary surrender of his license was accepted after the lawyer pleaded guilty to three felony counts of bribery.³⁵ In In re Jackel,³⁶ a lawyer pleaded guilty to one count of sexual battery and one count of solicitation of sodomy, both of which arose from an attorney-client relationship, and the lawyer was dis-barred.³⁷ In In re Wyatt,³⁸ attorney Wyatt pleaded guilty in United States District Court to knowingly aiding and abetting an alien attempting to enter the United States by use of false and misleading representations. As part of Wyatt's probation, the federal court prohibited him from practicing law for two years. Wyatt petitioned the Georgia Supreme Court for a one-year suspension,³⁹ and the court granted it.⁴⁰ Justices Hunstein, Thompson, and Hines dissented, arguing that there was not enough information to determine exactly what Wyatt had done and how Wyatt's criminal actions might have been related to the practice of law.⁴¹ Finally, in In re Nelson,⁴² the court lifted the suspension (after seven years) of a lawyer who had been convicted of money laundering, but who had completed his term of probation and shown remorse, and whose community presented evidence of his personal character and professional competence.⁴³

The supreme court also decided three cases involving reciprocal discipline. In re Drumheller⁴⁴ concerned a Georgia lawyer who was disbarred after he voluntarily surrendered his license to practice law in Virginia after he was accused by numerous clients of neglecting them and failing to communicate with them.⁴⁵ In In re Barrett,⁴⁶ another attorney was disbarred in Georgia after she surrendered her license in Florida for "ethical misconduct."⁴⁷ Barrett's misconduct included her conviction in Florida of three counts of grand theft and one count of carrying a concealed firearm.⁴⁸ In re Craig⁴⁹ concerned a lawyer who was disbarred in Georgia after she consented to disbarment in South Carolina for misappropriating client money and failing to communicate with clients, failing to obey a court order, and failing to cooperate with disciplinary counsel's office.⁵⁰

Two lawyers were disciplined for paying a non-lawyer organization, Professional Management, Inc., for the referral of personal injury clients. In In re Robbins,⁵¹ an attorney was disbarred for giving a non-lawyer cash to deliver to "runners" who would secure personal injury clients for the lawyer.⁵² The non-lawyer received twenty-five percent of any fee the attorney realized from this arrangement. The lawyer had a lengthy prior record of discipline.⁵³ In the other case, In re Barnes,⁵⁴ a lawyer petitioned for a voluntary three-year suspension for paying Professional Management to refer personal injury clients.⁵⁵ The court granted that petition, although Justices Hunstein and Thompson dissented and argued disbarment was appropriate.⁵⁶

Finally, two lawyers received one-year suspensions for different types of deceptive behavior. In In re Toler,⁵⁷ a lawyer submitted to a judge a conflict letter stating inaccurately that he was a sole practitioner. The falsity of the letter must have become obvious when the lawyer's associate appeared for him in court. Meanwhile, the lawyer's secretary had submitted a second conflict letter falsely stating that the lawyer would be in municipal court that morning.⁵⁸ The judge held a hearing and found the lawyer in contempt.⁵⁹ In re Vaughn⁶⁰ concerned a lawyer who failed to record a deed to secure debt. Rather than confess the failure to the client, the attorney photocopied a file stamp from the clerk's office and sent the "file-stamped" document to his client.⁶¹ The Special Master recommended a six-month suspension, but the supreme court suspended the lawyer for a year.⁶² Justice Benham dissented, stating the Special Master had a rational basis for recommending only a six-month suspension because of the personal circumstances under which the lawyer was operating and because the client was not harmed by the lawyer's deception.⁶³

III. Bar Admissions

The supreme court decided four cases concerning admission to the State Bar. The first case, In re Singh,⁶⁴ concerned an applicant's complaint about the way the bar exam grade is computed. Under the supreme court's Rules Governing Admission to the Practice of Law⁶⁵ an applicant must have a score of 270 to pass the bar exam.⁶⁶ The score is computed by adding the "scaled" scores of the Multistate Bar Exam (MBE), the Multistate Performance Test (MPT), and the essay questions prepared by the Georgia Board of Law Examiners.⁶⁷ Singh received a scaled score of 126.95 on the MPT/Essay part of the exam and a scaled score of 143.32 on the MBE. The sum of those two numbers is 270.27, enough for a passing grade, but Singh encountered a problem. Since the 1980s, the office of Bar Admissions (OBA) has rounded the MBE scaled score for every examinee. Singh's rounded MBE score was 143, making his final score just under 270.⁶⁸ In light of the OBA's historical practice and the expert opinion of the Director of Research for the National Conference of Bar Examiners, the supreme court concluded that the term "scaled score" in the Rules Governing Admission to the Practice of Law includes a rounded, scaled score.⁶⁹ The Board of Bar Examiners, therefore, acted within the Rules when it concluded that Singh had not passed the bar examination.⁷⁰

Another bar exam problem arose in In re Goodman.⁷¹ The applicant received a poor grade on the MPT and "surmised" that it must have been because of his poor handwriting. The applicant asked the Board of Bar Examiners to transcribe his...