Legal Ethics - Patrick Emery Longan

• Publication year: 2009

Legal Ethicsby Patrick Emery Longan^*

I. Introduction

This Article surveys legal ethics decisions of the Georgia appellate courts for a period from June 1, 2008 to May 31, 2009.¹ The cases concern discipline of lawyers, ineffective assistance of counsel, judicial conduct, contempt, attorney fees, suits against lawyers, and a few miscellaneous matters.

II. Disciplinary Actions

A. Diligence and Communication

During the survey period, the justices of the Georgia Supreme Court agreed upon the discipline of twelve lawyers who failed to act diligently for, or effectively communicate with, one or more clients. Ten lawyers were unanimously disbarred or voluntarily surrendered their licenses as a result primarily or exclusively of client abandonment.² Two lawyers received suspensions, without dissent. Michael Anthony Edmunds admitted to multiple violations of the Georgia Rules of Professional Conduct—namely Rule 1.4's³ requirement of communication with clients—although it did not appear that he totally abandoned any clients.⁴ The court noted that it appeared the lawyer did not harm his clients and that his problems arose from his divorce, alcoholism, and depression.⁵ Edmunds received a three-year suspension with conditions on reinstatement.⁶ Stephen Lee Stincer received a public reprimand and a one-month suspension for lack of diligence and misrepresentation to the court in a federal case.⁷ The court noted in mitigation that at the time of his infractions, Stincer was under intense stress and suffered from extreme anxiety and panic attacks for which he sought and received treatment.⁸

The supreme court could not reach unanimity on the appropriate discipline for two lawyers who violated their duties of diligence and communication. Russell William Pope essentially abandoned a client in a child custody case and failed for over a year to prepare a consent order to document an agreement in another custody dispute.⁹ In a third matter, Pope undertook to represent two clients in a personal injury matter but let the statute of limitations expire.¹⁰ A majority of the court voted to accept his petition for voluntary discipline of a six-month suspension and noted that during the relevant time period Pope was having significant marital difficulties.¹¹ Chief Justice Sears and Presiding Justice Hunstein would have disbarred Pope under these circumstances.¹² In the other case, attorney Christine M. Livingston received a one-year suspension for abandoning a real estate matter in which she represented the mortgage company.¹³ Livingston never responded to the notice of discipline and thus admitted the allegations against her.¹⁴ A majority of the court, without elaboration, held that a one-year suspension was the appropriate punishment.¹⁵ Chief Justice Sears, Presiding Justice Hunstein, and Justice Thompson dissented on the basis that the court should have disbarred Livingston under these circumstances.¹⁶

B. Financial Improprieties

During the survey period, the supreme court unanimously disbarred five lawyers for financial improprieties.¹⁷ The court's unanimity held for two such cases that resulted in suspension rather than disbarment. In one of these cases, the attorney took most of $45,000 in client funds and converted them for his own use.¹⁸ The attorney notified his client and repaid the money, and the client continued to use the lawyer's services.¹⁹ Under those circumstances, and because the attorney had no prior disciplinary history and was acting as a result of personal problems "of a non-recurring nature," the court concluded that a six-month suspension was sufficient.²⁰ In the other case, the attorney issued title insurance premiums after he terminated his relationship with the insurer but kept the insurance forms and collected premi-ums.²¹ The attorney failed to account for the funds, withdrew them from his trust account, and commingled personal funds with money in his trust account.²² The supreme court noted the attorney's cooperation, remorse, and lack of prior discipline, and the court accepted a petition for voluntary discipline of a one-year suspension, with numerous conditions designed to ensure that the title insurance company received what it was entitled to receive.²³

Three cases involving financial improprieties provoked dissents. Before he was admitted to the bar, Lester Christopher Solomon undertook to manage the financial affairs of a disabled man.²⁴ Solomon took title to his ward's real property, secured a mortgage on it, and paid the mortgage and a monthly stipend to himself out of the ward's annuity income.²⁵ When Solomon became a member of the bar, he violated Rule 1.15(II)²⁶ when he did not separate his own funds from the funds of his ward.²⁷ The supreme court suspended Solomon from the practice of law for six months,²⁸ but Presiding Justice Hunstein and Justices Melton and Thompson dissented on the ground that the suspension was insuffi-cient.²⁹ Justice Melton wrote the opinion and noted that Solomon had an attorney-client relationship with the ward, yet sought to evict the ward from his real property when a dispute between the two arose.³⁰ The three dissenting justices did not state what punishment they would have found appropriate.³¹

Gary Dale Simpson received a four-year suspension as a result of three formal complaints against him.³² one complaint surfaced when Simpson's trust account came up short by $300,000, and his records were incomplete. He addressed the bank's concerns by beginning to repay the bank and by cooperating with its requests for information. A second complaint involved three checks on Simpson's trust account, totaling about $3000, which were returned for insufficient funds. Simpson reimbursed the parties for those checks. The third complaint resulted from Simpson's failure, in a real estate transaction, to obtain title insurance or file the warranty deeds. He eventually filed the deeds and refunded the money that was supposed to be used for the insurance.³³ The supreme court noted that Simpson had presented evidence that he suffered from adult attention deficit disorder and executive dysfunction and that this mental impairment, rather than any intent to violate the rules, was the underlying cause of the problems.³⁴ The court suspended Simpson for four years and imposed conditions upon his reinstate-ment.³⁵ Those conditions included proof that he is no longer impaired and proof of continued restitution to the bank.³⁶ Presiding Justice Hunstein dissented.³⁷ She would have disbarred Simpson because to do otherwise was "detrimental to the public and to the legal profes- sion."³⁸

Jennifer Nicole Favors represented a personal injury client and deposited the settlement funds into her escrow account.³⁹ She used some of the money for her own benefit and lied to her client about how the funds had been used. She then lied to the office of General Counsel and the Investigative Panel about what happened and submitted to them a falsified bank statement. Favors eventually admitted the truth.⁴⁰ A majority of the supreme court noted that she had shown remorse, had no prior disciplinary history, and may have acted as a result of personal and emotional factors for which she was seeking counseling.⁴¹ The majority accepted a petition for voluntary discipline and suspended Favors for three years.⁴² Chief Justice Sears, Presiding Justice Hunstein, and Justice Melton would have disbarred the attorney.⁴³

C. Criminal Convictions

The supreme court disbarred four lawyers as a result of felony convictions and suspended one lawyer following a misdemeanor. Louis Dante DiTrapano was disbarred, as a matter of reciprocity, after the West Virginia Supreme Court of Appeals disbarred him for pleading guilty to the felonies of possessing firearms while being addicted to and unlawfully using controlled substances.⁴⁴ The Georgia Supreme Court disbarred R. Scott Cunningham after he used his escrow account to help a former client launder money; he was convicted of three federal felonies.⁴⁵ Ulysses Thomas Ware was sentenced in federal court to ninety-seven months in prison for securities fraud and for conspiracy to commit securities fraud, and the supreme court disbarred him.⁴⁶ The supreme court accepted the voluntary surrender of James F. Stovall's license after he pled guilty to two federal felonies.⁴⁷ Anthony Brett Williams received more lenient treatment after his misdemeanor conviction for assisting his former boss, a district attorney, in a scheme to obtain county money wrongfully.⁴⁸ The supreme court suspended Williams for six months and noted that he had no prior disciplinary history, had pled guilty under the First Offender Act,⁴⁹ and was remorseful and cooperative.⁵⁰

D. Violations of Duties to Tribunals

During the survey period, four attorneys received discipline primarily as a result of violations of their duties to tribunals. The supreme court accepted the petition for voluntary discipline of Neil Lovett Wilkinson in which he admitted that he negligently made or caused to be made false statements to the Superior Court of Cobb County and the Georgia Court of Appeals and that he negligently failed to correct those statements.⁵¹ The supreme court ordered a public reprimand and a one-month suspension.⁵² The court also accepted a petition for voluntary discipline in the case of John Alfred Roberts, who admitted that he filed a "Notice of Suggestion of Bankruptcy" in a civil case two months before he actually filed the bankruptcy petition.⁵³ The court accepted that Roberts acted negligently rather than purposefully in violating Georgia Rule of Professional Conduct 8.4(a)(4)⁵⁴ and suspended him for six months for the violation.⁵⁵ In another case, the court ordered a review panel reprimand for an attorney who continued to defend a client in a civil case when there was no defense.⁵⁶ The attorney violated Georgia

Rule of Professional Conduct 3.1(a),⁵⁷ which forbids a lawyer from knowingly advancing a defense that...