Legal Ethics - Patrick Emery Longan

• Publication year: 2006

Legal Ethicsby Patrick Emery Longan^*

I. Introduction

This Article summarizes the major developments in legal ethics in Georgia between June 1, 2005 and May 31, 2006. The Article covers discipline of lawyers, ineffective assistance of counsel, attorney fees and liens, contempt, disqualification, malpractice (and other claims against lawyers), judicial ethics, unauthorized practice of law, and one case on attorney authority.

II. Discipline

A. Disbarments and Voluntary Surrenders

The Georgia Supreme Court disbarred a number of lawyers (or, to the same effect, accepted voluntary surrenders of their law licenses) for familiar violations of the Georgia Rules of Professional conduct. Several lost their ability to practice law because of abandonment or neglect of their clients.¹ others met the same fate after felony convictions.²

Financial transgressions ended the legal careers of several other lawyers. In In re Lazarou,³ a real estate lawyer misrepresented that he was an agent for a title insurance company. In another closing, the same lawyer accepted money for title insurance, but instead of obtaining a policy, the lawyer pocketed the money.⁴ In In re Rowan,⁵ a lawyer forged a $70,000 settlement check and never forwarded any of the funds to the client (the same lawyer had numerous other cases of neglect and abandonment pending as well).⁶ In a similar vein, in In re Peebles,⁷ an attorney was disbarred for neglecting several matters and for converting over $600,000 to his own use.⁸ In In re Shelfer,⁹ an attorney was disbarred after he overdrew his trust account and eventually stopped responding to the State Bar's inquiries about the episode.¹⁰ In In re Ballard,¹¹ an attorney used several hundred thousand dollars of client money for his own benefit.¹² In In re Porges-Dodson,¹³ an attorney with a significant prior disciplinary record was disbarred after she converted a number of government benefit checks belonging to a man who was incarcerated.¹⁴

One bankruptcy lawyer found a more unusual way to get disbarred. In In re Whatley,¹⁵ Whatley made an agreement with a nonlawyer (a law school graduate who never passed the bar exam) to establish the law firm of John C. Whatley & Associates. Under their agreement, the nonlawyer was responsible for all areas of the practice except for completing the filings with the bankruptcy court and appearing in court. In return, Whatley would be paid a flat fee per case (which later became a flat fee per month). According to Whatley, the nonlawyer eventually closed the "firm" and took all the funds in the operating and other bank accounts. These activities came to light when a client paid the firm money to bring a mortgage current, but the money was not used for that purpose, and ultimately Whatley could not account for it.¹⁶ Unsurprisingly, the Georgia Supreme Court disbarred Whatley for his violations of Georgia Rules of Professional Conduct 1.15 (trust account),¹⁷ 5.3 (responsibilities regarding nonlawyer assistants),¹⁸ 5.4 (sharing fees with a nonlawyer),¹⁹ and 5.5 (assisting in the unauthorized practice of law).²⁰

One disbarment provoked a vigorous dissent from Justice Benham. In In re Brown,²¹ Brown was a lawyer with some disciplinary history. He had received a private reprimand in 1984, a public reprimand in 1998, and a two-year suspension in 2000 for misuse of client funds that had been received in a fiduciary capacity.²² In early 2005, Brown received a memorandum of grievance after two checks were written out of his trust account to pay his personal Mastercard bills, one for $25 and one for $50. He responded to the grievance by stating that a secretary who was not familiar with trust accounts had issued the checks.²³ The Notice of Discipline was for a Review Panel Reprimand, and Brown did not contest it.²⁴ The State Bar of Georgia agreed with that discipline, but the supreme court rejected the suggestion and disbarred Brown.²⁵ In his dissent, Justice Benham argued that this action was disproportionate to Brown's violation and suggested that other measures, such as better training in law practice management, were more appropriate.²⁶ Using language that he has used in other cases, Justice Benham objected to the "professional death penalty" of disbarment in this case.²⁷

Three other lawyers lost their licenses during the survey period. One was disbarred on a surprisingly unusual basis: incompetence. The bar usually leaves questions of competence to actions for malpractice. In In re Bast,²⁸ however, the lawyer handled a real estate closing and paid out over $100,000 without the proper documentation to authorize the payments. That lawyer voluntarily surrendered her law license.²⁹

Two lawyers were disbarred for practicing law when they should not have. In In re Brown,³⁰ Brown took inactive status in 1997, but represented a client in a drug condemnation case six years later.³¹ Another lawyer made the mistake of practicing law while his license was suspended in In re Harvey,³² and the lawyer compounded that offense by writing a bad check on his trust account, signing another lawyer's name to pleadings, and neglecting a client's personal injury claim.³³

B. Suspensions and Other Forms of Discipline

The Georgia Supreme Court imposed eleven suspensions during the survey period. Several of these involved financial improprieties that occurred under extenuating circumstances. In In re Rand,³⁴ lawyer Harry Rand was suspended for five years (on a petition for voluntary discipline) after five separate instances of misuse of client money.³⁵ These transgressions occurred while Rand suffered from significant mental problems and while he was dealing with the death of both of his parents and the severe mental illness of his sister.³⁶ Similarly, in In re Glass,³⁷ Glass was suspended for twelve months for taking $47,000 from his firm's operating account while he was experiencing mental disabilities and chemical imbalances,³⁸ and in In re Ballard,³⁹ Ballard received a two-year suspension for paying himself unearned fees at a time of significant personal problems.⁴⁰

Surprisingly, two lawyers received suspension rather than disbarment for trust account violations even without showing such extenuating circumstances. In In re Jones,⁴¹ Jones used over $43,000 from his trust account to pay a promissory note for a business he operated with a friend who was having personal problems.⁴² The supreme court suspended Jones for twelve months, with six months of the suspension retroactive.⁴³ In In re Fraser,⁴⁴ Fraser was suspended for nine months for writing bad checks on his trust account totaling $218.⁴⁵ Contrast the disbarment of Brown, where a member of Brown's staffunwittingly paid $75 worth of credit cards bills from the trust account.⁴⁶ Fraser, however, was later disbarred as a result of a felony conviction.⁴⁷

In In re Maxwell,⁴⁸ Maxwell received a six-month suspension for litigation tactics that violated the Georgia Rules of Professional Conduct.⁴⁹ Maxwell was defending a sexual harassment matter, and he knew that two of his client's employees had retained counsel in connection with additional potential claims.⁵⁰ once he knew that these employees had lawyers, Maxwell was forbidden from talking with them about the matter without their lawyers' permission.⁵¹ Nevertheless, Maxwell interviewed them without telling their lawyers, and he taped the conversation. When opposing counsel learned about the tapes and requested them, Maxwell delivered an edited version of the transcript without revealing that it was edited.⁵² This course of action earned Maxwell sanctions from the court where the case was pending and his six-month suspension.⁵³

Issues of diligence, communication, or both led to the suspension of several lawyers. In In re Ellison,⁵⁴ Ellison undertook to represent a client in an auto accident (at a time when the lawyer had a disabling illness), but he did little work on the matter and failed to communicate with the client and to turn over her file when she fired him.⁵⁵ He was suspended for six months.⁵⁶ In In re Stewart,⁵⁷ Stewart was suspended for two years because she agreed to file an appeal in a habeas action but then neither communicated with the client nor responded to the Bar's Notice of Discipline (even though she did secure review in the Georgia Supreme Court of an application for a certificate of probable cause).⁵⁸ In In re Lenn,⁵⁹ Lenn failed to diligently pursue four matters for clients in Florida, and the Florida Supreme Court suspended her for ninety-one days.⁶⁰ The Georgia Supreme Court imposed the identical discipline as a matter of reciprocity.⁶¹ Finally, in In re Pilgrim,⁶² Pilgrim received a six-month suspension related to his handling of two cases.⁶³ In one case, he neglected to request a hearing in time to preserve a client's claim, while in the other case he took no action except eventually dismissing the action without the client's authority.⁶⁴

The most surprising suspension came in In re Paine.⁶⁵ Paine pled guilty in federal court to the felony of obstructing a federal audit, which was examining the activities of a company in which Mr. Paine owned a forty percent interest. The company, as it turns out, was engaged in Medicare fraud, allegedly without the knowledge of Mr. Paine.⁶⁶ A felony conviction, as already discussed, is almost always a quick path to disbarment. In this case, however, the Georgia Supreme Court held that Mr. Paine posed no danger to the public but that he must remain on suspension while he is on probation because of the likelihood that the public would otherwise lose respect for the legal system.⁶⁷

Seven lawyers received lesser discipline for a variety of offenses. In In re Jessup,⁶⁸ Jessup received a Letter of Formal Admonition as reciprocal discipline for a "Public Censure" he received in Tennessee as a result of charging a client an excessive fee.⁶⁹ In In re Meaney,⁷⁰ Meaney received a private reprimand because he was also disciplined in Tennessee...