The Georgia Supreme Court reviewed a report of the State Disciplinary Review Board recommending that it adopt the finding of a Special Master that a Columbus, Georgia attorney be suspended for a month for representing a couple in a car accident case when he obviously had little experience in this area of the law and failed to act professionally.
The conduct underlying this matter occurred while the attorney was litigating a personal injury case stemming from a motor vehicle accident in the U.S. District Court for the Southern District of Georgia, resulting in Attorney B being charged with violating the Georgia Rules of Professional Conduct. For starters, Rule 1.1 imposes the duty of competence on a lawyer representing a client and states:
A lawyer shall not handle a matter which the lawyer knows or should know to be beyond the lawyer’s level of competence without associating another lawyer who the original lawyer reasonably believes to be competent to handle the matter in question.
Read this tale of an attorney who got in over his head by taking a case that called for an experienced Atlanta personal injury lawyer.
Background
On October 14, 2015, a South Carolina man was injured in an auto accident in Savannah. The man and his wife hired a Georgia attorney (“Attorney M”) to represent them in their personal injury case. This attorney lacked experience in personal injury matters, so he associated a more experienced personal injury firm. That firm filed a lawsuit on behalf of the couple in February 2016.
Attorney M formally appeared as counsel of record in September 2016. The personal injury firm completed the substantive work on the case, and the district court entered a pretrial order, setting trial to start on June 27, 2017. A month before trial, Attorney M became dissatisfied with the law firm because he thought the husband had suffered a cognitive injury and that the personal injury firm had failed to fully develop evidence of such damages. However, a partner from the personal injury firm believed that Attorney M wanted to remove the firm so that he could get a bigger fee.
After the personal injury firm was fired, Attorney M associated his former law school classmate (“Attorney B”) on the case. Attorney B took the role of lead counsel knowing that the case was set for trial in June and that he only had a month to find more evidence. Attorney B filed an appearance, was admitted pro hac vice (allowing an attorney to try a case in a jurisdiction in which they aren’t licensed to practice). Attorneys M and B decided they needed to depose the husband’s treating physician. On May 24, Attorney B contacted the doctor’s office and scheduled a deposition, which he later cancelled. On June 7th, the two attorneys met with the physician at the physician’s office, where, unbeknownst to Attorney B and the physician, Attorney M recorded their conversation.
On June 20th, Attorney B called the physician’s office manager about rescheduling the deposition for a date before the trial, indicating that he would have to subpoena the physician to appear in court if the deposition couldn’t be scheduled. The physician agreed to give a deposition on June 23rd. Because of some scheduling questions, the defense lawyer contacted the physician’s office and was told by the office manager that Attorney B had been threatening towards her. As a result, the defendants filed a motion to revoke Attorney B’s pro hac vice admission, arguing that he’d violated provisions of the district court’s guidelines for courtroom conduct in his treatment of the doctor’s office manager.
The Attorneys’ Questionable Actions
In response to the defense motion, Attorneys M and B filed a brief in which they incorporated some of the recorded conversation with the physician and attached a transcript of the conversation as an exhibit. They also sent the audio recording to the judge and defense counsel. It was undisputed that the transcript contained privileged information that the two attorneys gained in their professional relationship with their clients. But they didn’t get their clients’ permission to disclose the information. Plus, the attorneys wrote that while they understood they were “tipping the ‘playing field'” in favor of the defendants by disclosing work product via the recording and transcript, they felt that “the esteem and confidence of the district court were more important.”
Later at the disciplinary hearing before the Special Master, Attorney B admitted to making the disclosures public to make defense counsel look “disingenuous.” The judge denied the defendants’ motion after a hearing but specifically found that the disclosure of the conversation was unnecessary and damaging to the plaintiffs’ case.
The trial court also allowed Attorney B and Attorney M to add a neuropsychologist as a witness that the husband’s physician had previously recommended, extended the time for discovery, and postponed trial. The judge also ordered the parties to depose the neuropsychologist by mid-August to let the defendants have a fair opportunity to respond to his testimony. On July 20th, Attorney B emailed the defense attorney that the neuropsychologist’s deposition would be on August 14th. On August 9th, Attorney B responded to a defense question about the neuropsychologist’s curriculum vitae and said that the specialist couldn’t appear for deposition on the 14th. But Attorney B never confirmed the deposition date with the neuropsychologist and simply told the defense attorney that he’d file a request for more time to conduct the deposition.
But he never did.
Attorney M tried to fire Attorney B on August 8th, but he didn’t have his clients’ permission. On August 16th, Attorney M, with the clients’ permission, fired Attorney B’s by letter, citing the difficulties with scheduling medical depositions.
Attorney B Strikes Back
Attorney B was upset by his firing and thought that the true reason was to deprive him of a fee. He didn’t believe that the clients approved the termination. Nonetheless, on August 17th he visited at the clients’ home in South Carolina unannounced to try to stay on the case. The wife texted Attorney M, who told Attorney B to leave. Before he did so, he told the husband to talk to a litigation funding company. After Attorney B left, the wife texted him confirming that he’d been fired. After getting that text, Attorney B invited the wife to attend a “focus group” that he had purportedly scheduled for the nest week. He also told her that he’d file a notice of withdrawal the next day.
But he never did.
Because of Attorney B’s failure to file a notice of withdrawal, Attorney M filed a motion to revoke Attorney B’s pro hac vice admission. The district court held a disciplinary hearing on October 30th, instead of starting the trial as scheduled. Attorney B filed a notice of withdrawal that day. The district court found that the disclosures the two attorneys made in response to the defendants’ Motion to Revoke were damaging to their clients. The district court said the disclosures gave the defendants “a strategy for undermining the [plaintiffs’] case,” and the defense attorney testified that the disclosures gave him valuable cross-examination material against the plaintiffs’ experts and suggested an easy roadmap to damage the clients’ case.
Rules Violated
The State Bar argued that Attorney B violated Rule 1.1 7 by filing a response to the defendants’ Motion to Revoke that violated Rule 1.6(a), and by advising the husband to seek advice from a litigation funding company. Rule 1.6 (a) provides:
A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which… would likely be detrimental to the client, unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation.
The Special Master found that Attorney B’s background still qualified him to represent a client in a serious personal injury case arising from an auto accident.
Rule 3.5(d) provides that “[a] lawyer shall not, without regard to whether the lawyer represents a client in the matter . . . engage in conduct intended to disrupt a tribunal,” and the Special Master concluded Attorney B violated this rule because, by failing to timely withdraw, he “effectively re-wrote the District Court’s schedule with respect to his client[s’] case,” which was unfair to the clients.
The Special Master also found that Attorney B violated Rule 3.5(d) by failing to schedule and take the neuropsychologist’s deposition by mid-August as ordered by the district court. If scheduling the deposition was difficult, the Special Master said Attorney B could have issued a subpoena, contacted the district court, or filed a motion for an extension of the time for discovery.
But he never did.
As for Rule 1.6(a), the Special Master found a violation in Attorney B’s disclosure of the transcript and recording of the conversation with the physician in response to the defendants’ motion they filed due to Attorney B’s interactions with the physician’s office manager. Attorney B argued that the disclosure was strategic because it changed the case from an orthopedic case to a case with a brain injury component. While disclosing the recording helped him defeat the motion because the recording lacked evidence of Attorney B using aggressive tactics towards the physician, no one disputed that it contained privileged information. But the Special Master said there were ways to defeat the motion without disclosing the privileged information in the transcript and recording, like using redaction or asking the judge to conduct an in camera review. The Special Master found that Attorney B sought neither of these remedies and disclosed the information without his client’s permission. Moreover, the Special Master indicated that Attorney B’s testimony showed he’d just disclosed privileged information to show that the defense attorney was a “disingenuous a**hole.”
Also, the Special Master found that Attorney B violated Rule 1.6 by disclosing privileged information in response to Plaintiffs’ Motion to Revoke his pro hac vice status, which the plaintiffs filed after Attorney B failed to withdraw. The Master found that Attorney B’s disclosure of privileged information was designed solely to further his own interests and didn’t benefit his clients.
The Special Master found the Rule 1.16(a)(3) violation for failing to timely move to withdraw as Attorney B said he would. Despite indicating he’d withdraw the next day, he failed to file a motion to withdraw until his disciplinary hearing before the district court on October 30.
Recommendation of Discipline
In evaluating discipline, the Special Master did not analyze three components of the ABA Standards: (1) the duty violated, (2) the lawyer’s mental state, and (3) the actual or potential injury to the clients.
The Special Master recommended that Attorney B be suspended from the practice of law for one month without conditions for reinstatement. The Special Master did not cite any case law supporting a one-month suspension as the appropriate form of discipline. Attorney B sought review by the Review Board, arguing that the Special Master erred by recommending a one-month suspension because clear and convincing evidence was not presented that Attorney B violated any provision of the rules. The State Bar responded that the Special Master’s recommendation of a one-month suspension was appropriate, and the Review Board affirmed the Special Master’s factual findings, legal conclusions, and recommendation of discipline.
The Supreme Court’s Analysis
The Supreme Court found that the Special Master didn’t analyze (among other things) the duty violated and any actual or potential injury. The Georgia Rules of professional Conduct prescribe duties for attorneys authorized to practice law in the state. The Court said that the Special Master should consider the duty of loyalty owed by a lawyer to a client, which includes the duty to maintain client confidences.
The duty to maintain client confidences, as part of a duty of loyalty to a client, was implicated by Attorney B’s disclosure of confidential client-related information in response to two motions to revoke his pro hac vice status in the district court. He argued that he was impliedly authorized to disclose the information under Rule 1.6(a), and that he reasonably believed that disclosing the information was required to defend himself against civil or criminal claims. But the Court said that on remand, the Special Master should explicitly address the exceptions to the Rule in determining whether Attorney B violated the Rule. And if he did, state whether in doing so he violated the duty to maintain client confidences and a duty of loyalty to the client.
The Supreme Court also said that an analysis of actual or potential injury to a client is a helpful factor for the Supreme Court to consider in ultimately determining what sanction is appropriate for a lawyer’s violations of the Rules. The ABA Standards define “[p]otential injury” to include “harm to a client . . . that is reasonably foreseeable at the time of the lawyer’s misconduct and which, but for some intervening factor or event, would probably have resulted from the lawyer’s misconduct.”
The Supreme Court found that record contained evidence suggesting that Attorney B’s disclosures may have resulted in actual or potential injury to his clients. For example, the district court found that Attorney B’s disclosures damaged the plaintiffs’ case and that defense counsel testified that the recording of the conversation with the physician gave them valuable cross-examination material against the plaintiffs’ experts. Plus, Attorney B’s response to his clients could have damaged their case by disclosing information on the credibility and admissibility of potential evidence.
The Supreme Court concluded that the Special Master erred by failing to conduct a full analysis of the ABA Standards before recommending that Attorney B receive a one-month suspension, and the Review Board erred by adopting the Special Master’s recommendation. As a result, the Court rejected the Recommendations of the Review Board and the Special Master and remanded the case for a full analysis of the ABA Standards, including the duties violated and the potential or actual injury caused by his misconduct. In re Breault, 2024 Ga. LEXIS 3 (Ga. January 17, 2024).
Personal Injury Experience Matters
Despite the result of this case where the Supreme Court rejected the findings of the State Disciplinary Review Board, it’s easy to see that accident victims need an experienced personal injury attorney to protect their rights and to have the best chance of a successful outcome. The Supreme Court wrote that “the primary purpose of a disciplinary action is to protect the public from attorneys who are not qualified to practice law due to incompetence or unprofessional conduct…” Here, the injured clients appear to have received both—representation from an inexperienced attorney in personal injury litigation and on who behaved unprofessionally.
Contact an experienced Atlanta personal injury lawyer whom Atlanta residents trust every day. We have worked with victims all across the state. We offer FREE consultations to all prospective clients. Contact an Atlanta personal injury attorney at Tobin Injury Law 24 hours a day, seven days a week by calling 404-JUSTICE (404-587-8423) or using our online contact form.