Legal Ethics - Patrick Emery Longan
| Publication year | 2011 |
Legal Ethics
by Patrick Emery Longan*
During the survey period, from June 1, 2010 through May 31, 2011,1 the appellate courts in Georgia decided cases involving the discipline of lawyers, ineffective assistance of counsel, legal malpractice, judicial ethics, and attorney disqualification. The State Bar of Georgia Formal Advisory Opinion Board took several actions that relate to the professional responsibilities of Georgia lawyers.
I. Lawyer Discipline2
A. Disbarments3
As usual, the three primary reasons for disbarments during the survey period were misconduct with respect to money (particularly misappropriation of client funds), abandonment of clients, and felony convictions.
1. Money Issues. Nine Georgia lawyers lost their licenses primarily as a result of misconduct related to money. Three of these lawyers settled personal injury claims for clients, but each lawyer took the
* William Augustus Bootle Chair in Ethics and Professionalism in the Practice of Law, Walter F. George School of Law, Mercer University. Washington University (A.B., 1979); University of Sussex (M.A., 1980); University of Chicago (J.D., 1983).
1. For analysis of Georgia legal ethics law during the prior survey period, see Patrick Emery Longan, Legal Ethics, Annual Survey of Georgia Law, 62 MERCER L. REV. 215
(2010).
2. In addition to the matters recited in the text, the Investigative Panel of the State Disciplinary Board imposed confidential discipline in dozens of cases. See OFFiCE OF THE General Counsel, State Bar of Georgia Annual Report for Operational Year 20102011 6 (June 1, 2011), available at http://www.gabar.org/public/pdf/OGC/OGC_Report _10_11.pdf.
3. Lawyers in Georgia can voluntarily surrender their licenses or submit a petition for voluntary discipline. GA. RULES OF PROF'L CONDUCT R. 4-227 (2011). The acceptance of a voluntary surrender of a license or the granting of a petition for voluntary discipline of disbarment are tantamount to disbarment by the court and are treated as such in this Article.
client's portion of the settlement proceeds for personal use.4 Rodney F. Tew did the same and also misappropriated funds that he held in escrow for his client.5 Craig Dean Miller received funds from a corporate client for his fees and other purposes. He failed to account for the ones he received in a fiduciary capacity and converted those funds for his own use.6 Donald Keith Knight surrendered his license rather than contest the ten grievances describing his theft of client and law firm money and/or his abandonment of clients.7 Similarly, Gregory C. Menefee lost his license, as a matter of reciprocal discipline, after the Kentucky Supreme Court disbarred him for ten instances in which he abandoned clients and misappropriated funds or failed to return client money.8 Gary Allen Moss represented a client for whom he filed numerous collections matters, but eventually Moss began to convert the amounts collected to his own use and ceased communicating with the client.9 Finally, Michael J.C. Shaw was disbarred for defrauding his law firm of $526,922 through the use of falsified invoices.10
2. Neglect or Abandonment. Nine Georgia lawyers were disbarred for abandoning clients in violation of their duties of diligence and communication. Five of these cases involved a pattern of accepting fees from clients, doing little or no work for them, and then failing to communicate with, or respond to, the clients.11 Lecora Bowen was disbarred because she abandoned two clients: one for whom she filed a medical malpractice action but failed to prosecute it, and one for whom she filed a notice of appeal but failed to file a timely brief.12 Similarly, Derrick L. Wallace lost his license because he abandoned a client when trial was imminent and failed to prosecute another client's appeal.13 Two other lawyers were disbarred because each abandoned a client,
4. In re Belcher, 288 Ga. 457, 458, 704 S.E.2d 791, 792 (2011); In re Gordon, 287 Ga. 821, 821-22, 700 S.E.2d 539, 539-40 (2010); In re Hinesley, 288 Ga. 12, 12-13, 701 S.E.2d 156, 156-57 (2010). Mr. Hinesley also abandoned one client in a bankruptcy proceeding. In re Hinesley, 288 Ga. at 13, 701 S.E.2d at 157.
5. In re Tew, 289 Ga. 128, 128-29, 710 S.E.2d 747, 748-49 (2011).
6. In re Miller, 289 Ga. 134, 134, 709 S.E.2d 787, 788 (2011).
7. In re Knight, 287 Ga. 466, 466, 696 S.E.2d 662, 662 (2010).
8. In re Menefee, 289 Ga. 179, 179, 709 S.E.2d 812, 812-13 (2011).
9. In re Moss, 287 Ga. 813, 814-15, 700 S.E.2d 540, 541 (2010).
10. In re Shaw, 288 Ga. 403, 403, 703 S.E.2d 663, 664 (2010).
11. In re Lieb, 289 Ga. 168, 168-69, 709 S.E.2d 800, 800-01 (2011); In re Weathington, 289 Ga. 19, 19, 709 S.E.2d 262, 263 (2011); In re Roberts, 288 Ga. 478, 479, 704 S.E.2d 805,
806 (2011); In re Dolezal, 288 Ga. 157, 158, 702 S.E.2d 135, 135 (2010); In re White, 288 Ga. 58, 59, 701 S.E.2d 187, 187 (2010).
12. In re Bowen, 289 Ga. 92, 92, 709 S.E.2d 210, 210 (2011).
13. In re Wallace, 287 Ga. 464, 464-65, 696 S.E.2d 660, 661 (2010).
deceived the client about the status of the matters, stopped communicating with the client, and did not return the client's file.14
3. Criminal Convictions. Twelve lawyers lost their licenses as a result of felony convictions. Six of these cases involved guilty pleas to charges of theft or other financial crimes.15 Other lawyers were disbarred after pleading guilty to perjury,16 making false statements,17 obstructing a Department of Labor investigation,18 and distributing a controlled substance.19 United States District Judge Jack Camp voluntarily surrendered his license after he pled guilty to aiding and abetting a felon's possession of a controlled substance, possession of a controlled substance, and theft of public property.20
One case in this category is worthy of particular note. Brooks E. Blitch III served as a superior court judge for twenty-seven years. He pled guilty in federal court to honest services fraud conspiracy, a federal felony. Although the usual discipline for a felony conviction is disbarment, Judge Blitch presented the special master with significant evidence in mitigation. This evidence included numerous letters and live testimony from members of the public who attested to Judge Blitch's character.21 The special master recommended a three-year suspension rather than disbarment and also noted that the statute under which Judge Blitch pled guilty had been found to be unconstitutionally vague by the United States Supreme Court.22 Nevertheless, the Georgia Supreme Court overrode the special master:
In this case, it is undisputed that Blitch chose to plead guilty to a federal felony offense and that the charge to which he admitted guilt related directly to the manner in which he performed his duties as a sitting superior court judge. It hardly bears stating that a judge occupies a unique and crucial position of power, trust and responsibility
14. In re Vogt, 289 Ga. 252, 252-53, 710 S.E.2d 562, 562 (2011); In re Smith, 288 Ga.
155, 155, 702 S.E.2d 136, 137 (2010).
15. In re Caro, 289 Ga. 178, 178, 709 S.E.2d 813, 813 (2011); In re Dada, 288 Ga. 694, 694, 706 S.E.2d 464, 464 (2011); In re Fuller, 288 Ga. 458, 458, 704 S.E.2d 792, 792 (2011); In re Wright, 288 Ga. 311, 312, 702 S.E.2d 877, 878 (2010); In re Onipede, 288 Ga. 156,
156, 702 S.E.2d 136, 136 (2010); In re Sasser, 287 Ga. 465, 465, 696 S.E.2d 661, 661 (2010).
16. In re Lee, 287 Ga. 463, 463, 696 S.E.2d 660, 660 (2010).
17. In re Levine, 288 Ga. 13, 13, 701 S.E.2d 160, 160 (2010).
18. In re Eichholz, 287 Ga. 258, 258, 695 S.E.2d 270, 271 (2010).
19. In re London, 287 Ga. 259, 259, 695 S.E.2d 267, 268 (2010).
20. In re Camp, 288 Ga. 694, 694, 706 S.E.2d 464, 464 (2011).
21. In re Blitch, 288 Ga. 690, 690-91, 706 S.E.2d 461, 461-62 (2011).
22. Id. at 690-91, 706 S.E.2d at 461-62 (citing Skilling v. United States, 130 S. Ct. 2896,
2934 (2010)).
in our society. We cannot rightfully expect members of the public to respect the law and remain confident in the integrity and impartiality of our judiciary where judges themselves do not respect and follow the law. No matter how one looks at this case, Blitch's felony conviction deals a serious blow to the public's confidence in the legal system and, given his position as a judicial officer, his admitted violation of Rule 8.4(a)(2) warrants a severe level of discipline despite the various mitigating factors urged below.23
Judge Blitch was disbarred.24
4. Other Disbarments. Two disbarments from the survey period do not fit easily into the three usual categories. Samuel Warren Cruse filed a frivolous federal discrimination case for a client. When the court sanctioned Cruse and his client, he commingled his funds with client money. He also failed to keep the client informed about the case, failed to represent her competently, and charged her an unreasonable fee. Another client obtained a judgment against Cruse for $4,000 that Cruse had improperly charged the client as a legal fee.25 When the Georgia Supreme Court disbarred him, Cruse had not paid the judgment.26 Finally, Michael H. Graham charged a client a $1,500 retainer but did not explain the basis or rate of the fee. When the client asked for the retainer to be refunded, Graham gave the client a bad check.27 Because of these facts and a long history of discipline and failures to cooperate in the disciplinary process, the supreme court disbarred Graham.28
B. Suspensions
1. Indefinite Suspensions. The Georgia Supreme Court indefinitely suspended five lawyers as a result of the lawyers' mental impair-ments.29 Melvin Ricks undertook to represent three clients in their
23. Id. at 692, 706 S.E.2d at 462-63; see also Ga. Rules of Prof'L Conduct R. 8.4(a)(2)
(2011).
24. In re Blitch, 288 Ga. at 692, 706 S.E.2d at 463.
25. In re Cruse, 288 Ga. 787, 787-88, 705 S.E.2d 664, 665-66 (2011). Justice Melton
dissented and would instead have suspended Cruse for either one year or until he paid the
$4,000, whichever was longer. Id. at 790, ...
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