Legal Ethics - Patrick Emery Longan
| Publication year | 2007 |
Legal Ethicsby Patrick Emery Longan*
I. Introduction
Issues of legal ethics arose during the survey year in the usual contexts of attorney discipline, malpractice, and ineffective assistance of counsel. In a handful of cases, the Georgia appellate courts also dealt with other issues related to legal ethics.
II. Disciplinary Cases
A. Disbarments
The Georgia supreme court disbarred thirteen lawyers during the survey period.1 Unlike the disbarment decisions in several previous years, there were no dissents from any of these decisions.2 Five lawyers were disbarred as a result of criminal convictions.3 Three lawyers lost their licenses for violations of the rules governing their trust accounts.4 Two lawyers were disbarred for client neglect and abandonment.5 one lawyer voluntarily surrendered his license for permitting an employee to solicit business for him by telephone and in person,6 while another was disbarred because he had been disbarred in another state.7 Another lawyer lost his license as a result of violating a variety of rules, including Rule 1.3 (diligence),8 Rule 1.4 (communication),9 Rule 1.15 (trust accounts),10 and Rule 1.16 (withdrawal).11
B. Suspensions
The supreme court imposed fifteen suspensions (other than interim suspensions) for a variety of offenses.12 The majority of these decisions were unanimous. Three decisions concerned lawyers who were appealing felony convictions.13 Two others concerned the imposition of reciprocal discipline on lawyers who had been suspended in other states.14 Three lawyers received suspensions for isolated infractions.15 In In re Johnson,16 Eric Robert Johnson II was suspended for thirty days and received a public reprimand for accepting compensation to represent two criminal defendants while he was working as an assistant public defender.17 Johnson also received a public reprimand for failing to take reasonable remedial measures in another case when he learned his client had testified falsely.18 In In re Gbaja,19 Femi Gbaja was suspended for thirty-six months after taking $25,000 of client money and leaving the country.20 Because he returned the money, cooperated with authorities, and expressed remorse, the court suspended Gbaja instead of disbarring him.21 In In re Walker,22 Monique Walker received a 120-day suspension and a public reprimand after she pleaded guilty to the misdemeanor of filing a fraudulent federal tax return.23 Walker had failed to report as income $700 that her father's company had paid her.24
Three of the unanimous decisions for suspensions concerned lawyers who committed serious violations of the Georgia Rules of Professional Conduct but did so while suffering from health issues.25 In In re Lenn,26 the supreme court accepted the petition for voluntary discipline of an eighteen-month suspension from Lisa Paige Lenn for using a client's funds for her personal benefit and initially failing to return the client's phone calls.27 The court accepted the attorney's assertion that she was suffering from mental health issues at the time and noted that she made full restitution and was sorry for her misconduct.28 Similarly, in In re Moody,29 Renate Downs Moody submitted a petition for voluntary discipline for her misconduct in failing to pursue two matters for clients and for appearing in court intoxicated.30 The court noted that the attorney had diabetes and a bi-polar condition and that she consumed alcohol to medicate herself.31 The court suspended her for six months with the added condition that she obtain a certification from a psychologist or psychiatrist certifying that she has no impairment affecting her ability to practice law.32 In In re Garfinkel,33 another lawyer was suspended indefinitely for abandoning his practice and moving to another state, allegedly as a result of severe depression.34
Four of the suspensions provoked dissents.35 In In re Hamilton,36 the special master found that attorney Hunter J. Hamilton wrote bad checks on his trust account, commingled personal funds and client funds, withdrew funds from the trust account that were not earned fees, and failed to maintain proper records of his trust account.37 These were not isolated incidents, as the attorney had "failed to adequately and properly maintain his trust account for many years."38 Hamilton failed to submit to the bar an agreed upon audit of his account and was otherwise uncooperative.39 The court suspended him for one year, with conditions on reinstatement.40 Justice Hunstein dissented because she would have disbarred the attorney.41
Justice Hunstein also dissented alone in two other cases.42 In In re Mitchell,43 the supreme court suspended a lawyer after he neglected four client matters while he was practicing law in Texas.44 Texas had imposed a two-year suspension with a probated suspension of an additional three years.45 The Georgia Supreme Court imposed reciprocal discipline in the form of a two-year suspension (Georgia does not have probated suspensions).46 Justice Hunstein dissented, presumably because she believed disbarment would have been more appropriate.47 The Justice also dissented in In re Elkins48 when another lawyer was suspended for ninety days for failing to cooperate with bar authori-ties.49 This lawyer had been disciplined on five previous occasions.50
Justice Thompson joined Justice Hunstein in one dissent from a decision for suspension.51 In In re Geary,52 a lawyer with three prior disciplinary offenses received a one-year suspension for his actions in two matters.53 In the first matter, the lawyer accepted representation in a legal malpractice case after a disbarred lawyer told him about the client and obtained the client's signature on a contract. The lawyer only had telephonic contact with the client and was eventually ordered to refund his $5,000 fee. In the second matter, the lawyer apparently did not notify a client about a hearing, and the client's absence at the hearing caused the client harm.54 Justices Hunstein and Thompson would have disbarred the lawyer, but the supreme court accepted his petition for voluntary discipline of a one-year suspension.55
C. Other Discipline
The supreme court imposed other forms of discipline in nine other cases.56 In In re Ranalli,57 a lawyer received a letter of formal admonition as a result of being disciplined in Nevada.58 The discipline in Nevada resulted from several incidents in which trust account funds were moved temporarily into the firm's operating account to meet expenses. Ironically, each time the firm moved those funds, which it later replaced, the firm was actually entitled to move them as earned fees.59 Nevertheless, the Nevada Supreme Court imposed discipline, and because there is no equivalent to that discipline in Georgia, the supreme court issued a letter of formal admonition.60
Five lawyers received Review Panel reprimands.61 Four of the cases were straightforward.62 In In re Harris,63 a lawyer received a reprimand for assisting her husband in the unauthorized practice of law when the husband, who was not an attorney, used her office and staff to close real estate transactions in which he acted, in effect, as the closing attorney.64 In In re Davis,65 Michael Davis received the same discipline for his lack of communication and diligence in connection with two habeas petitions which he was hired to handle.66 In In re Wright,67 another lawyer was reprimanded for failing to respond to discovery, to comply with a court order, and to appear at a hearing concerning a case that was ultimately dismissed; the lawyer also failed to inform his client of the dismissal and lied to the Investigative Panel about why he missed the hearing.68 In In re Adkins,69 Stephen W. Adkins, Jr. neglected one matter and failed to communicate with his clients at a time when he was dealing with personal problems.70 He made restitution, showed remorse, and received a Review Panel reprimand.71
A fifth case in which the court imposed a Review Panel reprimand was more complex.72 In In re Syrop,73 the court began its order with the understatement that the matter "ha[d] a complicated procedural history."74 The attorney had filed a case for a client. The case was removed to federal court, but the lawyer was not familiar with federal procedures. As a result, the lawyer failed to respond in a timely manner to discovery requests and failed to file mandatory disclosures. He ultimately filed a dismissal without prejudice and a faulty withdrawal from the case. The client retained new counsel and recovered on the claim. As a result of a miscommunication between the supreme court and the state bar, the lawyer was mistakenly suspended for a seven-week period in 2004.75 The court ultimately ordered a Review Panel reprimand for violations of the duties of diligence and communication, and for the improper withdrawal in the underlying federal court case.76 Finally, the supreme court ordered that three lawyers receive public reprimands.77 One such sanction accompanied a suspension described above.78 In In re Goldberg,79 the court reprimanded Ralph S. Goldberg for failing to take remedial action against his paralegal (who was also his wife) when she acquired property being sold at auction to satisfy his clients' judgment.80 Goldberg had obtained the underlying judgment for the clients in a case in which he had a one-third contingency fee agreement. The property was later sold to Goldberg's wife, and the clients received two-thirds of the net proceeds of the sale, while Goldberg retained the rest as his fee.81 In In re Taylor,82 another attorney received a public reprimand as reciprocal discipline for having received a public censure in Tennessee for improperly withdrawing from the representation of a client.83
III. Malpractice and Other Claims Against Attorneys
The Georgia Court of Appeals decided several significant cases involving malpractice or other claims against attorneys.84 The issue of standing to recover arose in...
To continue reading
Request your trial