Legal Ethics - Patrick Emery Longan

• Jurisdiction: Georgia,United States
• Publication year: 2002
• Citation: Vol. 54 No. 1

Legal Ethicsby Patrick Emery Longan^*

I. Introduction

Between June 1, 2001 and June 1, 2002, the Georgia Court of Appeals and the Georgia Supreme Court decided over two hundred cases concerning legal ethics. The great majority of these cases involved claims by criminal defendants of ineffective assistance of counsel, and the courts rejected almost all of these claims on various routine grounds. of the remaining cases, there were decisions of note concerning attorney discipline, legal malpractice, and other civil liabilities, and a few cases in which the courts upheld claims of ineffective assistance of counsel. The courts also decided several cases on miscellaneous topics that are worth noting.

II. Disciplinary Cases

A. Trust Accounts and Other Financial Problems

Trust account violations and other money-related problems were the leading causes of professional discipline. The Supreme Court of Georgia disbarred four lawyers because of such problems and accepted a voluntary surrender of another's license. In In re Ruskaup,¹ the lawyer settled a client's personal injury claim for over $18,000, but after depositing the money in his trust account, he failed to inform the client and used the money for himself. Not until the client filed a civil action did the lawyer send the client any of the money, and even then he sent only $3,000.²

In In re Burton,³ a lawyer persuaded a client to write a check payable to the Fulton County Superior Court "to limit the client's liability," but after telling the client that she could not deposit the check with the court and would destroy the check, the lawyer altered the check and deposited it in her personal account.⁴ The same lawyer concluded a personal injury case for a client, signed her client's name to the settlement check, and notarized the signature herself. That money also went to the lawyer's personal account rather than to the client or the client's medical creditors.⁵

In In re Adams,⁶ similar activities resulted in the disbarment of Christopher David Adams, although Mr. Adams had gone the extra step of settling the client's claims without authorization before converting the client's money.⁷ Small amounts of money led to the disbarment of another lawyer in In re Randolph.⁸ Randolph misappropriated a $175 check for filing fees and misrepresented to a bankruptcy court that he had not received any fees when in fact he had been paid $275 as a "partial retainer." Randolph's "aggravation factors" included failure to pay bar dues for several years.⁹ Finally, in In re Davidson,¹⁰ a lawyer with drug problems voluntarily surrendered his license after writing checks over a four-month period to himself out of his client's trust account.¹¹

Two cases of financial impropriety led to suspensions rather than disbarments at least in part because the lawyers got in trouble as a result of substance abuse in one case and personal problems in the other. In In re Champion,¹² unspecified "personal and emotional factors" motivated a lawyer to withdraw client funds from her trust account and delay for five months sending the client his money.¹³ The lawyer did not initially admit the violation but eventually showed remorse and made restitution to the client.¹⁴ That lawyer received a twelve-month suspension.¹⁵

Finally, in In re Drucker,¹⁶ a very experienced lawyer received a six-month suspension after he collected money on behalf of a client but never informed the client and converted the funds.¹⁷ The court noted that "personal and emotional factors may have contributed" to his behavior and also noted, in mitigation, that he had repaid the money.¹⁸

Suspensions also resulted from negligent mishandling of client money in two cases. In In re Dansby,¹⁹ a lawyer with no more than seven years experience admitted during a fee arbitration that he had not kept a client's settlement funds separate from his own (he had closed his trust account) and that he had paid the client some of the settlement proceeds out of his operating account.²⁰ The special master appointed to his case and Justices Hunstein and Thompson believed that disbarment was appropriate, but the court concluded that a three-year suspension would suffice.²¹

In In re Porges-Dodson,²² a lawyer overdrew her trust account twice—once because money that was to be deposited into the account was stolen and never recovered, and once because the lawyer entrusted a deposit to another who neglected to make it. The lawyer received a twelve-month suspension.²³

The final case involving discipline and money, In re Spence,²⁴ concerned a lawyer who had been disbarred in 1985 but was attempting to re-enter the profession. The Board to Determine Fitness of Bar Applicants denied him a certificate of fitness to practice law because it deemed the lawyer to be fiscally irresponsible. He had stopped paying his law school loans for a period of four months in order to pay for his daughter to attend an overseas study abroad program. By the time the Board convened an informal conference about the matter, he had resumed payments and made up the arrearage.²⁵ The Georgia Supreme Court noted that the applicant had severe financial problems related to student loans but had not sought bankruptcy protection and in fact worked several jobs to satisfy his creditors.²⁶ In light of those efforts and the applicant's remorse, the court ordered that he be granted his certificate of fitness to practice law.²⁷

B. Problems of Client Neglect and Lack of Communication

The second leading cause of problems for lawyers was client neglect in various forms. Five lawyers were disbarred over such matters. In In re Bradley,²⁸ a lawyer neglected to respond to a client's messages and correspondence for six months, and even with the help of a private investigator, the client was unable to locate the lawyer.²⁹ over a dissent from Justices Benham and Carley, which noted that this was the lawyer's first disciplinary case and that the client had suffered no harm, the court ordered disbarment.³⁰

Two cases of neglect, compounded by lies to the clients, led to the disbarment of another lawyer in In re Bowie.³¹ In this case the lawyer never served the defendant but sent the client a copy of an answer purportedly filed by the defendant, while in another, the lawyer failed to file suit on behalf of a client but nevertheless gave the client a "case number," which, of course, was invalid.³² Similarly, in In re Pike,³³ Douglas Harry Pike was disbarred for abandoning a client's case in a divorce matter and failing to return the fee that had been paid.³⁴

Similar circumstances of neglect, failure to communicate, and failure to return either papers or money led to the disbarment of another lawyer in In re Vogel.³⁵ Finally, in In re Bagley,³⁶ a lawyer handling an appeal from an action to terminate his client's parental rights failed to file any enumerations of error or a brief, failed to respond to the State's motion to dismiss the appeal, did not inform the client that the appeal had been dismissed, and despite promising that he would do so, the lawyer never filed a motion to set aside the dismissal.³⁷ The court unanimously ordered disbarment.³⁸

The court ordered suspensions in three cases involving client neglect. In In re Harvey,³⁹ Harold Michael Harvey engaged in a pattern of neglecting client matters, including allowing a statute of limitations to pass on one case and allowing other cases to be dismissed by failing to respond to motions. Despite the pattern, the special master and the Review Panel ordered only a one-year suspension.⁴⁰ The court increased the sanction to a two-year suspension.⁴¹

The other two suspensions involved the familiar mitigating factors of mental incapacity and alcoholism. In the first, In re Ward,⁴² a lawyer with a history of disciplinary problems accepted an indefinite suspension after he failed to respond to a motion for summary judgment and his client's personal injury case was dismissed.⁴³ One condition for reinstatement will be a certification from the Lawyer Assistance Program that he is mentally fit to return to the practice of law.⁴⁴

In the second, In re Williams,⁴⁵ a lawyer abandoned clients in two cases and failed to notify them that their cases had been dismissed. This lawyer's actions apparently resulted from depression and alcoholism for which he sought treatment, and the court ordered an indefinite suspension.⁴⁶ He, too, will need a certification of fitness from the Lawyer Assistance Program if he is to return to the practice of law.⁴⁷

C. Other Disciplinary Cases

Criminal prosecutions resulted in discipline in several cases. In In re Abdullah Frederick,⁴⁸ a lawyer petitioned successfully for a voluntary suspension of his license pending his appeal from a conviction for several federal felonies.⁴⁹ Another lawyer did the same after pleading nolo contendere to federal felonies in In re Haugabrook.⁵⁰ Three lawyers voluntarily surrendered their licenses after their convictions, one for mail fraud and money laundering,⁵¹ one for murder and aggravated assault,⁵² and one for mail fraud and making a false statement on a tax return.⁵³ Another lawyer received an eighteen-month suspension after he pleaded guilty to a misdemeanor charge of solicitation of sodomy from a prospective client.⁵⁴

Three other lawyers received discipline in miscellaneous matters. Two of these were for activities in other states. In In re Powell,⁵⁵ a lawyer was disbarred in Georgia after he surrendered his license to practice in West Virginia as part of a plea agreement involving various prostitution-related charges.⁵⁶ In In re Wright,⁵⁷ another was disbarred in Georgia because he had been disbarred in New Jersey.⁵⁸ Finally, in In re Maniscalco,⁵⁹ a lawyer successfully petitioned for a voluntary suspension of his license for twelve months after it was discovered that he had entered into a business arrangement with a nonlawyer who sent him clients for a fee.⁶⁰

III. Legal Malpractice and Other...