Legal Ethics - Patrick Emery Longan
| Publication year | 2010 |
Legal Ethics
by Patrick Emery Longan*
During the survey period from June 1, 2009 through May 31, 2010, the appellate courts in Georgia decided cases involving the discipline of lawyers, ineffective assistance of counsel, legal malpractice, bar admission, judicial ethics, and attorney disqualification.1 The courts also decided one case involving an important issue of professionalism and several miscellaneous cases. The State Bar of Georgia Formal Advisory Opinion Board issued several opinions that relate to the professional responsibilities of Georgia lawyers.
I. Lawyer Discipline2
A. Disbarments
The Georgia Supreme Court disbarred lawyers during the survey period for theft and other issues involving the handling ofmoney, client
* 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, 61 Mercer L. Rev. 231 (2009).
2. In addition to dispensing discipline, the Georgia Supreme Court also has the power to order reinstatements for suspended lawyers and to grant certifications of fitness for readmission to lawyers who were previously disbarred. Bar of Ga. Handbook R. 8-108
(2009) , available at http://gabar.org/public/pdf/handbook_web.pdf. During the survey period, the court reinstated five lawyers who had been suspended. In re Hudson, 286 Ga. 727, 728, 690 S.E.2d 853, 854 (2010); In re Lewis, 287 Ga. 130, 131, 694 S.E.2d 664, 664
(2010) ; In re Lenn, 286 Ga. 257, 258, 686 S.E.2d 771, 772 (2009); In re Caroway, 285 Ga. 811, 812, 683 S.E.2d 598, 598 (2009); In re Waldrop, 285 Ga. 529, 530, 678 S.E.2d 90, 91 (2009). The court also granted certifications for fitness to three lawyers who previously had been disbarred or who had voluntarily surrendered their licenses following felony
convictions. In re Calhoun, 286 Ga. 471, 471-72, 689 S.E.2d 311, 311-12 (2010); In re Friedberg, 286 Ga. 472, 472-73, 689 S.E.2d 312, 312-13 (2010); In re Siegelman, 285 Ga. 817, 817-18, 683 S.E.2d 595, 595-96 (2009).
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neglect or abandonment, and criminal convictions.3 The court also disbarred one lawyer by a vote of 4-3 in an unusual case in which there were many disputed issues of fact.
1. Money Issues. The supreme court disbarred nine lawyers during the survey period for transgressions that involved client or law firm money. Three lawyers were disbarred for what appear to be straightforward acts of thievery. Sabrina K. Bozeman settled a client's personal injury claim, forged her client's name to the settlement check, and converted the funds to her own use. When the State Bar of Georgia's Office of General Counsel contacted Bozeman about her conduct, she falsely stated that she had delivered the settlement proceeds to her client.4 Another lawyer, Howard Geoffrey Slade, voluntarily surrendered his license after he received $80,000 on behalf of a client but never deposited the funds into his trust account, gave them to the client, or otherwise accounted for them. Slade received $238,000 from another client but did not deposit the money in his trust account and never returned or accounted for the funds.5 A third lawyer, Steven E. Zagoria, did not take money from clients. Instead, he forged a partner's signature on checks from clients to his firm for attorney fees and thereby converted over $343,000 of his firm's money to his own use.6
Three lawyers were disbarred for violations related to money that occurred in other states. The supreme court disciplined two of these lawyers as matters of reciprocal discipline.7 One had been disbarred in North Carolina for misappropriating $23,780 from a trust account.8 Another had suffered the same fate in the District ofColumbia after she was appointed by a court as guardian for a ward of the state but then misappropriated $10,000 from the ward's estate for her personal use.9 A third lawyer represented a client in a Texas probate proceeding and allowed his personal financial interests to impair his representation. The lawyer owned several promissory notes and convinced his client to
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 (2001). 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.
4. In re Bozeman, 286 Ga. 510, 510, 689 S.E.2d 318, 319 (2010).
5. In re Slade, 286 Ga. 465, 465, 689 S.E.2d 315, 316 (2010).
6. In re Zagoria, 286 Ga. 415, 415-16, 687 S.E.2d 832, 832 (2010).
7. In re Boniface, 285 Ga. 815, 816-17, 684 S.E.2d 268, 268-69 (2009); In re Wilson, 285 Ga. 875, 875, 684 S.E.2d 630, 630 (2009).
8. In re Boniface, 285 Ga. at 815-16, 684 S.E.2d at 268.
9. In re Wilson, 285 Ga. at 875, 684 S.E.2d at 630.
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purchase the notes. The notes turned out to be worthless. The lawyer also borrowed money from his client.10 The supreme court accepted his voluntary surrender of his license.11
Three other lawyers lost their licenses because of their conduct in connection with numerous real estate matters. In one case, the supreme court held that Wade Gunnar Anderson failed to supervise his nonlaw-yer staff adequately.12 Employees double-wired funds at ten closings, with the result that Anderson's trust account became overdrawn by approximately $2.3 million.13 In a separate matter, about which the supreme court expressed particular concern, Anderson was the escrow agent for funds related to a dispute about the repair of a condomini-um.14 Mr. Anderson worked to resolve the claim and then paid himself $30,000 out of the escrowed funds without authorization.15 The court disbarred Mr. Anderson and specified conditions for his reinstate-ment.16 In another real estate case, the supreme court disbarred Leonanous A. Moore for a number of infractions, including failures to return money held in escrow, failure to record deeds in several transactions that he closed, and overdrawing two trust accounts.17 Finally, the court accepted the voluntary surrender of the license of a lawyer who closed numerous real estate loans in which he prepared false documentation showing that the lender had a first lien.18 The lawyer also prepared false title opinions and title insurance policies for these loans.19
2. Neglect or Abandonment. The supreme court disbarred six lawyers for, at least in part, abandonment or neglect of clients. Three ofthese lawyers present classic cases. Sami Omar Malas accepted over $10,000 to file two patent applications for a client and to perform other tasks. Malas apparently did not do the work, ceased communicating with the client, never returned any of the fees, and abandoned his practice.20 Thomas Burke was serving as the attorney for an estate but
10. In re Bain, 286 Ga. 35, 35-36, 685 S.E.2d 80, 81 (2009).
11. Id. at 36, 685 S.E.2d at 81.
12. In re Anderson, 286 Ga. 137, 139-40, 685 S.E.2d 711, 712-13 (2009).
13. Id. at 138, 685 S.E.2d at 712.
14. Id. at 139-40, 685 S.E.2d at 712-13.
15. Id. at 140, 685 S.E.2d at 713.
16. Id. at 141, 685 S.E.2d at 713.
17. In re Moore, 285 Ga. 731, 732-33, 684 S.E.2d 71, 72 (2009).
18. In re Wright, 286 Ga. 468, 468-69, 689 S.E.2d 822, 822 (2010).
19. Id. at 468, 689 S.E.2d at 822.
20. In re Malas, 286 Ga. 34, 35, 685 S.E.2d 81, 81-82 (2009).
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neglected to disburse the assets or wind up the estate.21 Burke was disbarred for his conduct in New York and disbarred in Georgia as a matter of reciprocal discipline.22 Jeffrey Brooks Kent filed a suit for a client but failed to serve one defendant, did not meet a court deadline for filing a proposed scheduling and discovery order, and "stipulated to the dismissal of the case without his client's consent."23 Kent did not communicate with his client during the case, and after the client fired him, Kent did not refund the fee or send the file to the client's new lawyer.24
Three ofthe cases involving abandonment included other violations as well. Coleman C. Eaton Jr. represented a client in an automobile accident case but failed to act with diligence, explain the case to the client, or comply with the client's information requests. Eaton then falsely claimed to the State Bar of Georgia's Office of General Counsel that he met with the client and resolved their differences. In another case involving a different client, Eaton falsified discovery responses and a financial affidavit, and after he was fired, he failed to turn over the unearned fees or the complete file.25 Eaton was disbarred.26
The supreme court also disbarred Wendell S. Henry as a result of four grievances.27 In two of the underlying matters, Henry failed to return client files after being fired.28 In another, Henry served for a time as a "member agent" of a title insurance company but failed to account to the company or permit an audit of his escrow account and was fired.29 Henry also practiced law while he was on suspension.30
Finally, the supreme court disbarred James M. Kimbrough III for abandoning clients.31 With respect to one client, he failed to file a petition for adoption, initially responded untruthfully to the client's inquiries, and then stopped responding to the client at all. With respect to another client, Kimbrough undertook to incorporate a business on behalf of the client, but he never filed the necessary papers. The client was unable to contact Kimbrough because Kimbrough moved his office and disconnected his phone. With respect to yet a third client,
21. In re Burke, 286 Ga. 729, 730, 690 S.E.2d 854, 854 (2010).
22. Id. at 729-30, 690 S.E.2d at 854-55.
23. In re Kent, 287 Ga. 129, 129, 694 S.E.2d 665,...
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