The Supreme Court of Georgia on Monday issued the following attorney discipline opinions:

In the Supreme Court of Georgia

Decided: October 22, 2018

S18Y1513. IN THE MATTER OF WILLIAM LESLIE KIRBY III.

PER CURIAM.

This disciplinary matter is before the Court on the June 27, 2018, report and recommendation of Special Master James Charles Thornton, recommending that the Court accept the petition for voluntary discipline filed by William L. Kirby (State Bar No. 220475) to resolve four matters by imposing a State Disciplinary Review Board reprimand.¹ As detailed below, in each of the cases Kirby neglected his clients' matters, failed to communicate with his clients, and/or failed to fulfill his obligations upon withdrawal. Although the State Bar does not oppose the petition, we find that the requested sanction is insufficient in the light of the pattern of misconduct, the multiple clients harmed, and the lack of any assurance that the issues that led to Kirby's misconduct have been  resolved. Therefore, we reject the petition.

Kirby was admitted to the Bar in 2008 and received an Investigative Panel reprimand in 2016. Four formal complaints were served on Kirby on the same day, October 18, 2017. With regard to State Disciplinary Board Docket (“SDBD”) No. 6926, Kirby admits that he was retained in 2014 to represent a client in a child-support modification action and was paid $375. He filed the modification action, albeit later than he promised. When a motion for contempt was filed against his client, Kirby failed to appear at a 2016 hearing on the motion. The client was held in contempt for failing to pay child support and had income deduction orders entered against her. Kirby failed to respond to the client's multiple requests for information and failed to perform necessary work on the matter. Kirby admits that by this behavior he violated Rules 1.2, 1.3, and 1.4 of the Georgia Rules of Professional Conduct.

With regard to SDBD No. 6977, Kirby admits that a client retained him in 2012 to defend her against criminal charges. After the client was convicted, Kirby advised her to seek appointed counsel for the appeal but failed to file a notice of withdrawal even though he had no plans to represent her. Although Kirby gave a copy of his file to the client's family, he failed to respond to new counsel's request for a copy of his file after counsel was appointed in July 2015. New counsel filed a motion in March 2016 to compel Kirby to produce his file, but Kirby failed to respond. Kirby admits that by his conduct he violated Rules 1.4 and 1.16.

With regard to SDBD No. 6978, Kirby admits that in February 2014 he was retained to represent a client in divorce proceedings. After a March 2015 mediation, the client refused to sign a negotiated agreement and informed Kirby that he wished to retain new counsel. Kirby gave the client a copy of his file and told the client that he was withdrawing. But he failed to file a notice of withdrawal with the court and failed to communicate with the client. As a result of Kirby's failure to withdraw properly, the client was unable to retain another attorney. Kirby admits that by this conduct he violated Rules 1.4 and 1.16.

Finally, with regard to SDBD No. 6979, Kirby admits that in 2011 a client hired him to file an uncontested divorce and paid him a $700 retainer. Although Kirby filed the petition for divorce in January 2012, he stopped communicating with the client and did not perform any additional work on the case until July 2013, when the parties negotiated and signed an agreement. Kirby prepared a final judgment and decree but did not file it with the court because the court required the parties to attend a seminar for divorcing parents. Although Kirby informed the client of this requirement, the client did not attend the seminar. In February 2016, the client notified Kirby that he was terminating Kirby's services. Kirby failed to send the client his file, although he had promised to do so, and he did not properly withdraw from the representation. Kirby failed thereafter to respond to the client's inquiries and requests for a refund. Kirby admits that this conduct amounted to violations of Rules 1.2, 1.3, 1.4, and 1.16.

After Kirby failed to serve his answers as required under the then applicable Bar rules, the State Bar filed a motion for default on December 5, 2017. Although the special master initially granted the motion for default and issued a report recommending an 18-month suspension conditioned on providing a certification from a licensed psychologist or psychiatrist that Kirby was mentally competent to return to the practice of law, he later granted Kirby's motion to open default,² based on the agreement of the parties that Kirby would submit a petition for voluntary discipline and submit to an assessment with licensed psychologist.

With his petition for voluntary discipline, Kirby submitted under seal the March 2018 report of a psychologist who performed the evaluation and found Kirby to be fit to practice law. Generally speaking, the psychologist's report discusses Kirby's statements regarding particular stress he was under, including the 2012 death of his father, an attorney with whom he shared office space, and the 2016 death of his mother. The psychologist noted various challenges Kirby faced in managing his practice and his stress. The psychologist made specific mental health recommendations but also expressed a concern about whether Kirby would follow through with his stated plans for personal and professional improvement. Kirby's petition for voluntary discipline provides no indication that he is following the psychologist's recommendations.

The maximum penalty for a violation of Rule 1.2 or Rule 1.3 is disbarment, and the maximum penalty for a violation of Rule 1.4 or Rule 1.16 is a public reprimand. The special master appropriately looked to the ABA Standards for Imposing Lawyer Sanctions, see In the Matter of Morse, 266 Ga. 652, 653 (470 SE2d 232) (1996), and determined that several mitigating circumstances applied, including the absence of a dishonest or selfish motive, the existence of personal or emotional problems, and remorse.³ In aggravation, the special master considered that Kirby had committed multiple offenses, engaged in a pattern of misconduct, and had received an Investigative Panel reprimand in 2016.⁴

Although the State Bar supports Kirby's request for the imposition of a Review Board reprimand, we find that the cases on which it relies are not sufficiently similar: they did not involve the lengthy pattern of misconduct present here. See In the Matter of Smart, 303 Ga. 156 (810 SE2d 475) (2018) (Review Panel reprimand for violations of Rules 1.1, 1.2 (c), 1.3, and 1.4 based on defaulting attorney's neglect of one client's matter before the Georgia Department of Education that resulted in matter being dismissed with prejudice); In the Matter of Brown, 296 Ga. 439 (768 SE2d 456) (2015) (Review Panel reprimand for violation of Rules 1.2 (a), 1.3, 1.4, and 1.16 (d) in representing one client in post-conviction criminal matter); In the Matter of Free, 290 Ga. 75 (717 SE2d 480) (2011) (Review Panel reprimand for violations of Rules 1.3, 1.4, 1.16 (d), and 8.1 in connection with neglect of one client's criminal manner); In the Matter of King, 289 Ga. 457 (712 SE2d 70) (2011) (Review Panel reprimand for violations of Rules 1.3, 1.4, and 1.16 (c) and (d) in connection with abandonment of one client's civil matter); and In the Matter of Jones-Lewis, 287 Ga. 581 (697 SE2d 836) (2010) (Review Panel reprimand for violations of Rules 1.3, 1.16, and 9.3 in connection with neglect of single pro bono matter).

Particularly when multiple clients are involved, suspension is often the appropriate sanction for an attorney's neglect of client matters. See In the Matter of Johnson, 303 Ga. 795 (815 SE2d 55) (2018) (six-month suspension for violations of Rules 1.3, 1.4, 1.5, 1.15 (I), 1.16 (d), and 5.5 (a) for neglect of seven client matters); In the Matter of Brantley, 299 Ga. 732 (791 SE2d 783) (2016) (180-day suspension with conditions upon reinstatement for violations of Rules 1.3, 1.4, 1.5, 1.16 (d), and 9.3 in five disciplinary matters); In the Matter of Buckley, 291 Ga. 661 (732 SE2d 87) (2012) (four-month suspension for violations of Rules 1.3, 1.4, and 1.16 (d) for neglect of one client matter where lawyer had three prior disciplinary sanctions for similar conduct); In the Matter of Huggins, 291 Ga. 92 (727 SE2d 500) (2012) (six-month suspension with conditions for reinstatement for violations of Rules 1.3, 1.4, 1.15, 1.16, and 9.3 in five client matters). Here, based on the admitted facts, which include neglect of multiple clients over a period of several years, a prior disciplinary history, and questions about the lawyer's ongoing ability to comply with his professional obligations, we do not believe that a reprimand is a sufficient sanction. Accordingly, we hereby reject the petition for voluntary discipline.

Petition for voluntary discipline rejected. All the Justices concur.

¹ The petition for voluntary discipline sought, and the Special Master's report recommended, a “Review Panel” reprimand. But under this Court's January 12, 2018 order amending the Bar Rules, after July 1, 2018, the newly constituted State Disciplinary Review Board “shall perform the functions and exercise the powers of the Review Panel under the former rules.” Rule 4-220 (b) now provides the procedure for imposition of a reprimand by the Review Board.

² In his motion to open default, Kirby explained that he had submitted his answer to this Court via its e-filing system on November 17, 2017, attaching an e-mail confirmation that his filing was “successfully submitted” and informing him that he would be notified by e-mail when his filing was processed by the Clerk's Office. He did not explain why he ignored the Court's November 20, 2017 notification that his filing was rejected.

³ The special master relied on the following additional factors as mitigating: inexperience in the practice of law; timely good faith efforts to make restitution, based on Kirby's full refund to one client and partial refund to another client; Kirby's participation in an assessment with a psychologist who determined he was fit to practice; and Kirby's attendance at continuing legal education seminars “and additional seminars on small firm management, running a law firm and lawyer wellness.” However, we do not find sufficient support in the record or case law for these factors. Most of Kirby's misconduct occurred after he had been practicing law for more than four years and involved the basic obligations to communicate with one's client and to follow clear rules governing withdrawal from representation; these obligations should be clear even to inexperienced lawyers. There is no indication in the record whether Kirby's partial payment of restitution was timely or made only after disciplinary proceedings had been initiated. See ABA Center for Professional Responsibility, Annotated Standards for Imposing Lawyer Sanctions (2015) at 464 (“Lawyers who make restitution before initiation of disciplinary proceedings present the best case for mitigation.”). The psychological assessment was a condition of the Bar's agreement to open default. And the special master's finding about Kirby's attendance at legal seminars does not make clear that Kirby's seminar attendance went beyond that required of every Georgia lawyer. Cf. In the Matter of Gaines, 299 Ga. 662, 663 (791 SE2d 3) (2016) (performance of action ordered by sentencing court was not mitigating factor).

⁴ The factual details underlying that reprimand are not contained in the record, but the special master's earlier report indicates that the reprimand was imposed for violations of Rules 1.2, 1.3, 1.4, 3.2, and 8.1.

In the Supreme Court of Georgia

Decided: October 22, 2018

S19Y0032. IN THE MATTER OF DENISE F. HEMMANN. PER CURIAM.

Denise F. Hemmann (State Bar No. 345025) has been a member of the Bar since 1981 and previously has been sanctioned for misconduct four times. In an August 9, 2018 report and recommendation, special master Adam Hames recommends that this Court accept Hemmann's amended petition for voluntary discipline, filed after the filing of a formal complaint, see Bar Rule 4-227 (c), and impose a public reprimand for her admitted violations of Georgia Rules of Professional Conduct 1.3, 1.4, and 1.16 found in Bar Rule 4-102 (d) related to her misconduct in representing a client in personal injury and workers' compensation matters. The State Bar supports that recommendation. As explained below, the recommended sanction appears insufficient in light of Hemmann's prior disciplinary history, although the existing record makes it unclear whether Hemmann is continuing to engage in the same type of misconduct. Accordingly, we reject the petition.

As recounted by the special master, Hemmann admits that in January 2015, she executed a written agreement with a client to represent him on a claim for damages against an at-fault driver for a minor soft tissue injury to his shoulder that he sustained in an August 2014 automobile accident, as well as a workers' compensation claim because the accident occurred while he was operating his employer's vehicle. Less than a month after the representation agreement was executed, Hemmann sent letters notifying Allstate Insurance Company (the at-fault driver's insurance company) and Travelers Insurance Company (the employer's workers' compensation carrier) that she was representing the client, and she also filed a WC-14 Notice of Claim with the State Board of Workers' Compensation on the client's behalf. In March 2015, Hemmann sent the client a copy of the filed WC-14 Notice of Claim and a letter she received from Travelers confirming the claim number and the adjuster's name in the workers' compensation case.

Thereafter, however, Hemman took no further action to advance either the personal injury case or the workers' compensation case. In May 2015, Hemmann spoke to the client on the phone regarding the matters she was handling on his behalf and confirmed the conversation in a letter to the client on the same date. After that, the client was unable to obtain information from Hemmann regarding either matter, even though he left phone messages with Hemmann's secretary and sent Hemmann an email in July 2015.¹ On December 11, 2015, the client sent Hemmann a letter expressing his dissatisfaction with her failure to communicate with him, and on December 30, 2015, Hemmann sent him a letter stating that she would take no further action on his behalf in relation to the personal injury and workers' compensation cases. The client alleges that he never received the December 30 letter, and Hemmann admits that the client may not have received it. Hemmann further admits that she did not notify the Board of Workers' Compensation until June 2018 that she was withdrawing from representing the client, having the mistaken belief that no withdrawal was necessary in workers' compensation matters, and that she never notified Allstate or Travelers that she was no longer representing the client.

The special master concludes that Hemmann violated Rule 1.3 by willfully abandoning the client's personal injury and workers' compensation cases. In addition, the special master concludes that Hemmann violated Rule 1.4 when she failed to communicate with the client about the status of his legal matters. Finally, the special master concludes that Hemmann violated Rule 1.16 (c) by ceasing work on the client's legal matters and in effect withdrawing without taking steps to protect his interests. The maximum penalty for a violation of Rule 1.3 is disbarment, while the maximum penalty for a violation of Rules 1.4 and 1.16 is a public reprimand.

The special master correctly noted that the appropriate sanction in an attorney disciplinary case serves as “a penalty to the offender, a deterrent to others, and …. an indication to laymen that the courts will maintain the ethics of the profession.” In the Matter of Dowdy, 247 Ga. 488, 493 (277 SE2d 36) (1981). The special master found that Hemmann's request for a public reprimand meets the standard set forth in Dowdy. The special master recognized that this Court relies on the American Bar Association's Standards for Imposing Lawyer Sanctions for general guidance in determining the appropriate level of discipline, see In the Matter of Morse, 265 Ga. 353, 354 (456 SE2d 52) (1995), and that ABA Standard 4.43 provides that a reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client and causes injury or potential injury to a client.

The special master found in mitigation the absence of a dishonest or selfish motive, see ABA Standard 9.32 (b); Hemmann's cooperative attitude toward the disciplinary proceedings, see ABA Standard 9.32 (e); her remorse, see ABA Standard 9.32 (l); and the remoteness in time of prior disciplinary proceedings, see ABA Standard 9.32 (m), noting that Hemmann received an investigative panel reprimand in 1997. Additionally, the special master stated that Hemmann had contacted the State Bar Law Practice Management Program, scheduled a July 2018 audit to acquire recommendations for improvement of her office management practices, and agreed to follow the recommendations; and she also submitted character letters from clients and members of her community, suggesting that she is a well-respected member of her community.

The special master identified as aggravating factors Hemmann's substantial experience in the practice of law, see ABA Standard 9.22 (i), and her prior disciplinary offenses, including formal letters of admonition she received in 2005 and 2010, see ABA Standard 9.22 (a). The special master did not mention, however, an additional formal letter of admonition that Hemmann admits she received in 2004 or—in the context of aggravation—the 1997 investigative panel reprimand. ABA Standard 4.4 explains that the sanction said to be generally appropriate under ABA Standard 4.43 applies “[a]bsent aggravating or mitigating circumstances.”

Having reviewed the record, we agree that Hemmann's admitted facts are sufficient to support a finding that she violated Rules 1.3, 1.4, and 1.16 of the Georgia Rules of Professional Conduct. However, based on the current record, we cannot conclude that a public reprimand is an appropriate level of discipline, given Hemmann's extensive prior disciplinary history. Moreover, the current record does not reveal whether those prior incidents of misconduct involved similar violations of the Rules of Professional Conduct, which could show that Hemmann continues to engage in misconduct involving the abandonment of legal matters entrusted to her by clients, failure to communicate with those clients, and failure to properly withdraw from representation despite her prior admonitions and reprimand. Accordingly, while the special master noted that some previous disciplinary cases involving similar misconduct have resulted in public reprimands of lawyers with a disciplinary history, see In the Matter of Hartin, 295 Ga. 859 (764 SE2d 542) (2014); In the Matter of Edmondson, 292 Ga. 893 (742 SE2d 740) (2013); In the Matter of R.A.H., 285 Ga. 870 (684 SE2d 631) (2009), this matter involves Hemmann's fifth offense, and particularly if the prior misconduct was similar in nature, a higher level of discipline would be appropriate. See, e.g., In the Matter of Starling, 297 Ga. 359 (773 SE2d 768) (2015); In the Matter of Buckley, 291 Ga. 661 (732 SE2d 87) (2012). See also Bar Rule 4-103 (providing that a finding of a third or subsequent disciplinary violation constitutes discretionary grounds for suspension or disbarment, even if the violation normally provides for a lesser maximum sanction); Bar Rule 4-208 (waiving the confidentiality of confidential discipline like formal admonitions in the event of a subsequent disciplinary proceeding and allowing that information to be used in aggravation of discipline). We therefore reject Hemmann's amended petition for voluntary discipline.

Amended petition for voluntary discipline rejected. All the Justices concur.

¹ Although Hemmann does not use email and had so informed the client, she did have an email address that was monitored by her secretary.

In the Supreme Court of Georgia

Decided: October 22, 2018

S19Y0099. IN THE MATTER OF RICHARD ALLEN HUNT.

PER CURIAM.

Richard Allen Hunt (State Bar No. 378650) was admitted to practice law in 1973 and has been sanctioned for disciplinary violations five times. After an October 2015 hearing, a judge reported Hunt to the State Bar for alleged ethical violations. In October 2016, the Investigative Panel of the State Disciplinary Board issued a Notice of Finding of Probable Cause. Hunt filed a petition for voluntary discipline admitting several violations of a single rule and seeking a suspension of six months to one year, which this Court rejected. See In the Matter of Hunt, 301 Ga. 661 (802 SE2d 243) (2017). He filed a second petition for voluntary discipline admitting the same rule violations and seeking a suspension of 18 months to two years but later withdrew that petition with the Court's permission. See In the Matter of Hunt, S18Y0326 (Feb. 5, 2018). The State Bar then filed a formal complaint in February 2018. Hunt filed a verified, pro se answer admitting virtually all the complaint's factual allegations, and Special Master Adam Hames granted the State Bar's unopposed motion for judgment on the pleadings. After an evidentiary hearing on mitigation, on July 23, 2018, the special master issued a report, recommending that this Court disbar Hunt. Hunt did not seek review by the State Disciplinary Review Board and thus waived his right to file exceptions with this Court. See former Bar Rule 4-217 (c).¹

As the special master recounts, Hunt's verified answer admitted the following facts, which the record supports. Hunt represented a client and her two minor sons in a wrongful death case, and in November 2002, Hunt settled the case for $100,000, with the client receiving $50,000 and each child receiving $25,000. Hunt then represented the client in probate court, helping her get appointed as her sons' conservatrix (which at the time was called a “guardian of the property”) and file some, but not all, of the required annual probate court reports. In 2011, when the client's home was in foreclosure, she removed $737 from each child's account to make a mortgage payment without the court's permission. The court later cited her for removing the funds, mismanagement of the accounts, and not filing all the required reports, and after a January 2014 hearing, the court revoked her appointment as conservatrix and appointed Althea Caces as successor conservatrix. Hunt offered to deliver the children's funds to Caces, so the client gave him her sons' money—almost $60,000—which he deposited into his attorney trust account, and at the client's request, he appealed the order revoking her appointment as her sons' conservatrix. By the end of January 2014, Hunt had taken more than half of the children's funds from his attorney trust account, and over time he took all but a few dollars, spending the money for his own personal and business expenses.

On March 4, 2015, the Court of Appeals affirmed the probate court's order revoking the client's appointment as the children's conservatrix in an unpublished opinion. See In re Estate of Gonzalez, A14A1665 & A14A1691. At the client's request, Hunt filed a petition for certiorari, which this Court denied on June 1, 2015. See In re Estate of Gonzalez, S15C1036. The next month, Caces asked Hunt for the children's money, and he sent her two checks for $29,903.86 drawn on his attorney trust account, even though the account had insufficient funds to cover the checks. The checks bounced, and Cobb County Probate Court Judge Kelli L. Wolk ordered Hunt to appear in court on October 19, 2015, and deliver the children's money to Caces. Hunt appeared at the hearing, bringing a certified check for only half the funds, and he admitted to Judge Wolk that he had spent the children's money for his own personal and business purposes. Hunt asked for a continuance to obtain counsel, which was granted, and Judge Wolk reconvened the hearing a week later, on October 26, 2015.² Hunt appeared without counsel, and he had not turned over the rest of the children's money to Caces. Hunt did not fully replace the funds that he misappropriated until several months later.

On June 29, 2018, the special master granted the State Bar's unopposed motion for judgment on the pleadings. The special master concluded that Hunt violated Georgia Rule of Professional Conduct (“Rule”) 1.15 (I) (a) by removing the children's money from his attorney trust account and using it for his own personal and business purposes.³ The special master concluded that Hunt violated Rule 1.15 (I) (c) by failing to promptly deliver the children's funds from the client, as conservatrix, to Caces, as successor conservatrix.⁴ The special master concluded that Hunt violated Rule 1.15 (II) (b) by withdrawing the children's money from his attorney trust account and commingling his funds with the children's funds.⁵ While Hunt admitted in his answer that he used the children's money, he claimed that he did so “with notice to all interested parties.” The special master assumed the truth of this factual allegation for purposes of the State Bar's motion for judgment on the pleadings but said that it did not change Hunt's admission of facts showing that he violated the Rules. Finally, the special master concluded that Hunt violated Rule 8.4 (a) (4) by telling the client that he would deliver her sons' money to Caces and not doing so and by dishonestly taking fiduciary funds to which he was not entitled. ⁶ The maximum sanction for a single violation of Rule 1.15 (I), 1.15 (II) (b), or 8.4 (a) (4) is disbarment.

Hunt then requested an evidentiary hearing on mitigation, which the special master held on July 17, 2018. At the hearing, Hunt asked the special master to recommend a lengthy suspension in lieu of disbarment, while the State Bar argued that Hunt should be disbarred. Hunt's counsel stated, without objection, that Hunt had been practicing law for 44 years, that he started his career as a public defender, that he worked in the public defender's office for seven years before going into private practice, that he had been battling prostate cancer for the last six-and-a-half years, and that he has done a great deal of pro bono work over the years, including helping a young immigrant with his immigration status. Hunt then testified and presented a short, written outline of his general personal and business history, a portion of which the special master sealed at the State Bar's request. The State Bar cross-examined Hunt and presented a transcript, which the special master also sealed, of the October 26, 2015 hearing that prompted Judge Wolk to report Hunt to the State Bar.

In his written statement and testimony, Hunt said that he began buying real estate in college, eventually owning a number of properties; that he could not get bank loans as a result of the 2008 economic crisis and got a loan from a friend and fellow lawyer secured by his house, a quadraplex next door that he owned, and his office building, which he also owned; and that when he missed a payment, the friend initiated foreclosure proceedings against the properties, which Hunt unsuccessfully sought to block through litigation. Hunt stated that when his longtime secretary was hit by a MARTA bus on November 4, 2014, he filed a lawsuit on her behalf and continued paying her even though she could no longer work, and that it took longer to settle the case than he expected.⁷ Hunt testified that he later met with the client and her sons in his car; repeatedly played them video of his secretary's accident that he had obtained from MARTA; told them that he had been using the children's money to fund the secretary's personal injury lawsuit against MARTA; and offered to pay each boy at least $5,000 and give the client a percentage of the settlement proceeds from the case against MARTA if they would agree to let him continue using the children's money until the case settled. According to Hunt, the client and her sons orally agreed to this arrangement.

Hunt admitted that his use of the children's funds was not a one-time incident but instead took place over several months, and he said that it caused him tremendous pressure and concern each time that he made a withdrawal, because he knew the Rules and understood that he was violating them each time he withdrew the money. Hunt also admitted that he knew that the client and her sons could not authorize him to violate the Rules by agreeing to his proposal and that he was responsible for his actions, not them. Hunt said that he rationalized that the recovery in the MARTA case would provide sufficient funds to allow him to “cure the delinquency” and honor his commitment to the client and her sons. Hunt added that he will turn 82 in January 2019 and understands that his ability to practice law will end when this disciplinary matter moves forward but said that “[i]t would just be nice to know that I died being a member of the Bar as opposed to being disbarred.”⁸ He explained, “Unfortunately, I made a big gamble. I gambled that I could settle the MARTA case before I had to repay the funds. And that's not how it developed.” Hunt admitted on cross-examination that in the client's testimony at the October 26, 2015 probate court hearing, she denied knowing until the week before that Hunt had used her sons' money for his own personal and business purposes and denied any knowledge of the alleged meeting in Hunt's car where she purportedly gave him permission to continue using the children's money.

On July 23, 2018, the special master issued his report and recommendation. The special master noted that although Hunt requested the evidentiary hearing on mitigation, aside from the statements of his counsel, he presented no actual evidence of his claimed pro bono work and other good deeds over the years. The special master also noted that Hunt did not call any character witnesses to testify at the hearing, and that despite being given the opportunity to submit affidavits from anyone he chose, Hunt submitted no affidavits in support of his request for a sanction less than disbarment. The special master specifically found that Hunt's testimony about the alleged meeting in his car with the client and her sons was not credible, adding that even if Hunt's story were completely true, he would have admitted violating two additional Rules, which, with exceptions not applicable here, prohibit a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation (his secretary) and from sharing legal fees with nonlawyers (the client and her sons). See Rules 1.8 (e), 5.4 (a).

The special master correctly noted that this Court relies on the American Bar Association's Standards for Imposing Lawyer Sanctions (“ABAStandards”) for general guidance in determining the appropriate level of discipline. See In the Matter of Morse, 265 Ga. 353, 354 (456 SE2d 52) (1995) (Morse I); In the Matter of Morse, 266 Ga. 652, 653 (470 SE2d 232) (1996) (Morse II). ABA Standard 4.1, which addresses failure to safeguard client property, applies to violations of Rules 1.15 (I) and 1.15 (II), and ABA Standards 4.6 and 5.1, which address lack of candor to a client and failure to maintain personal integrity, apply to violations of Rule 8.4 (a) (4). See ABA Standards Appendix 1. Compare Rules 1.15 (I), 1.15 (II), and 8.4 (a) (4), with ABA Model Rules of Professional Conduct 1.15 and 8.4 (c). The special master cited ABA Standards 4.11 and 5.11 (a). ABA Standard 4.11 says that absent mitigating circumstances, disbarment is generally appropriate when a lawyer “knowingly converts client property and causes injury or potential injury to a client.” ⁹ ABA Standard 5.11 (a) says in part that absent mitigating circumstances, disbarment is generally appropriate when a lawyer “engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft.” ¹⁰

The special master rejected as flawed the mitigating circumstances that Hunt asserted.¹¹ Although Hunt testified that he did not “deliberately try to take any money from these kids” with the intent to permanently deprive them of it, the special master rejected his assertion of the absence of a dishonest or selfish motive, see ABA Standard 9.32 (b), finding that Hunt's testimony in this regard was merely a post hoc attempt to mitigate his “knowing theft, or at best misappropriation,” of the children's money and was inconsistent with his admission that each time he took the money, he knew that he was violating the Rules and that he was responsible. The special master acknowledged that Hunt ultimately repaid the money that he took from the children but rejected his assertion of a timely and good faith effort to make restitution or to rectify the consequences of his misconduct, see ABA Standard 9.32 (d), noting that Hunt replaced the funds that he took only after his conversion of the funds was discovered and he had been ordered to appear before Judge Wolk. See ABA Standard 9.4 (a) (“The following factors should not be considered as either aggravating or mitigating: … forced or compelled restitution.”). The special master also rejected Hunt's assertion that he made a full and free disclosure of his misconduct to the State Bar or displayed a cooperative attitude toward the disciplinary proceedings, see ABA Standard 9.32 (e), explaining that he forced the State Bar to file a formal complaint and seek the appointment of a special master by withdrawing his second petition for voluntary discipline, and that while he admitted virtually all the factual allegations in the complaint, he denied violating the corresponding Rules.¹² The special master noted, but did not discuss, Hunt's assertion of his prostate cancer as a mitigating circumstance.¹³

The special master then turned to the question of aggravation and found most of the 11 aggravating circumstances listed in ABA Standard 9.22 to be present. ¹⁴ The special master found that Hunt had prior disciplinary offenses, see ABA Standard 9.22 (a), having received a formal letter of admonition in 2004,another formal letter of admonition in 2006, an interim suspension in 2008, a public reprimand in 2009, see In the Matter of R.A.H., 285 Ga. 870, 870-871 (684 SE2d 631) (2009), and an Investigative Panel Reprimand in 2016¹⁵; that he acted with a dishonest or selfish motive, see ABA Standard 9.22 (b), as he admitted spending the misappropriated funds for his personal expenses and to pursue a personal injury case in which he stood to reap a significant fee after settlement; that he had a pattern of misconduct, see ABA Standard 9.22 (c), pointing to his admission of multiple withdrawals of the children's money for improper purposes; that he refused to acknowledge the wrongful nature of his conduct, see ABA Standard 9.22 (g), noting that he did not apologize to the client and her sons at the mitigation hearing, and that while he would acknowledge wrongdoing in one breath, in the next breath he would persist in his narrative that the client and her sons knew that he was using the children's money for his own purposes; that the victims of his misconduct were vulnerable, see ABA Standard 9.22 (h), as the client did not speak English well or understand exactly what had transpired, and her sons were minors who had to rely on their mother and Hunt; that he had substantial experience in the practice of law, see ABA Standard 9.22 (i), given that he was admitted to practice in Georgia in 1973, adding that Hunt “should have, and did, know better, but chose to misappropriate his client's funds”; and that his violations of the Rules involved illegal conduct, see ABA Standard 9.22 (k), citing the theft by taking statute and the related sentencing statute, see OCGA §§ 16-8-2, 16-8-12 (a) (3). The special master stated that “[b]ased on the admitted facts, a case of theft by fiduciary would not be difficult to prove,” and that “Hunt should count himself lucky that he has not been criminally prosecuted for his actions.” ¹⁶ The special master noted that this is Hunt's sixth disciplinary action, and that under former Bar Rule 4-103, “[a] finding of a third or subsequent disciplinary infraction under these rules shall, in and of itself, constitute discretionary grounds for suspension or disbarment.” See Hunt, 301 Ga. at 663 (“Hunt has an extensive and recent history of discipline.”).

The special master concluded that disbarment rather than suspension is the appropriate discipline. The special master reasoned that this Court has already considered and rejected a suspension for six months to one year for Hunt's violations of Rule 1.15 (II) (b); that ABA Standard 2.3 says that in no event should a suspension be for more than three years, see In the Matter of Coulter, Case No. S18Y0993, slip op. at 8 (June 18, 2018)¹⁷; that “this Court views trust account violations as exceptionally serious,” id., slip op. at 3; that “[t]he mitigation presented lacks substance and is often not supported by the record”; and that “there are several factors in aggravation of punishment as set forth above.” The special master reviewed the cases that Hunt submitted in support of a suspension and found them distinguishable based on the nature of the violations at issue or differences in the aggravating and mitigating circumstances present.¹⁸ Finally, the special master cited cases involving similar situations where this Court has disbarred a lawyer.¹⁹

Having carefully reviewed the record, we agree that disbarment is the appropriate sanction in this matter. Accordingly, it is hereby ordered that the name of Richard Allen Hunt be removed from the rolls of persons authorized to practice law in the State of Georgia. He is reminded of his duties pursuant to former Bar Rule 4-219 (c).

Disbarred. All the Justices concur.

¹ On January 12, 2018, this Court entered an order amending Part IV of the Rules and Regulations for the Organization and Government of the State Bar of Georgia (“Bar Rules”), including Bar Rule 4-102 (d), which contains the Georgia Rules of Professional Conduct. The order said that, with two exceptions not relevant here, “these amendments shall be effective as of July 1, 2018 and shall apply to disciplinary proceedings commenced on or after that date.” The order further specified that “the former rules shall continue to apply to disciplinary proceedings commenced before July 1, 2018”—such as this matter—“provided that, after July 1, 2018, the State Disciplinary Board shall perform the functions and exercise the powers of the Investigative Panel under the former rules, and the State Disciplinary Review Board shall perform the functions and exercise the powers of the Review Panel under the former rules.”

² The special master's report incorrectly states that Judge Wolk reconvened the hearing more than a year later, on “October 26, 2016.” However, it is clear from the record that “2016” is a scrivener's error.

³ Rule 1.15 (I) (a) says in part:

A lawyer shall hold funds or other property of clients or third persons that are in a lawyer's possession in connection with a representation separate from the lawyer's own funds or other property. Funds shall be kept in one or more separate accounts maintained in an approved institution as defined by Rule 1.15 (III) (c) (1). … Complete records of such account funds … shall be kept by the lawyer and shall be preserved for a period of six years after termination of the representation.

⁴ Rule 1.15 (I) (c) says:

Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

⁵ Rule 1.15 (II) (b) says:

No personal funds shall ever be deposited in a lawyer's trust account, except that unearned lawyer's fees may be so held until the same are earned. Sufficient personal funds of the lawyer may be kept in the trust account to cover maintenance fees such as service charges on the account. Records on such trust accounts shall be so kept and maintained as to reflect at all times the exact balance held for each client or third person. No funds shall be withdrawn from such trust accounts for the personal use of the lawyer maintaining the account except earned lawyer's fees debited against the account of a specific client and recorded as such.

⁶ Rule 8.4 (a) (4) says, “It shall be a violation of the [Rules] for a lawyer to: … engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation.”

⁷ The case eventually settled on May 23, 2018, after Hunt associated an experienced civil litigator on the case. Hunt explained that throughout his career, he had primarily practiced criminal law.

⁸ In his written statement, Hunt said that both his parents lived into their mid- to late-90s and that “[t]his means I can make a contribution to society for another 10-15 years.” He also said that “[t]his contribution could be easier and better with a suspension of license rather than disbarment.” The State Bar did not seek to clarify what Hunt meant by this at the mitigation hearing, and the State Bar acknowledged its understanding that by that point, Hunt had wound down his legal practice.

⁹ The ABA Standards define “injury” as “harm to a client, the public, the legal system, or the profession which results from a lawyer's misconduct,” stating that “[t]he level of injury can range from 'serious' injury to 'little or no' injury,” and that “a reference to 'injury' alone indicates any level of injury greater than 'little or no' injury.” The ABA Standards define “potential injury” as “the harm to a client, the public, the legal system[,] or the profession 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.”

¹⁰ The special master did not cite ABA Standard 4.61, which says that absent mitigating circumstances, disbarment is generally appropriate when a lawyer “knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potential serious injury to a client.” The special master also did not cite ABA Standard 5.11 (b), which says that absent mitigating circumstances, disbarment is generally appropriate when a lawyer “engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.”

¹¹ ABA Standard 9.31 defines “[m]itigation or mitigating circumstances” as “any considerations or factors that may justify a reduction in the degree of discipline to be imposed,” and ABA Standard 9.32 then lists 13 “[f]actors which may be considered in mitigation.” These factors must be evaluated in conjunction with ABA Standard 9.4, which lists six “[f]actors which are neither aggravating nor mitigating,” such as “forced or compelled restitution,” ABA Standard 9.4 (a), and “failure of injured client to complain,” ABA Standard 9.4 (f).

¹² Hunt admitted at the mitigation hearing that he asked this Court for permission to withdraw his second petition for voluntary discipline in January 2018 because the MARTA case had not yet settled. As noted above, that case settled on May 23, 2018.

¹³ It is unclear whether Hunt intended to raise his prostate cancer under the rubric of “personal or emotional problems,” ABA Standard 9.32 (c), or “physical disability,” ABA Standard 9.32 (h). Either way, he made no attempt at the mitigation hearing to explain how his illness or treatment might relate to his violations of the Rules. The special master found in his report that “[t]hankfully, Mr. Hunt appeared to be in good health at the [mitigation] hearing.”

¹⁴ ABA Standard 9.21 defines “[a]ggravation or aggravating circumstances” as “any considerations or factors that may justify an increase in the degree of discipline to be imposed,” and ABA Standard 9.22 then lists 11 “[f]actors which may be considered in aggravation.”

¹⁵ The State Bar has not disclosed to this Court the bases for the formal letters of admonition in 2004 and 2006 and the Investigative Panel Reprimand in 2016. See former Bar Rule 4-208 (“An accepted letter of formal admonition or an Investigative Panel Reprimand shall be considered as a disciplinary infraction for the purpose of invoking the provisions of Rule 4-103. In the event of a subsequent disciplinary proceeding, the confidentiality of the imposition of confidential discipline shall be waived and the Office of the General Counsel may use such information as aggravation of discipline.”).

¹⁶The special master did not mention in aggravation “multiple offenses,” ABA Standard 9.22 (d), despite finding that Hunt's misconduct violated more than one Rule.

¹⁷ ABA Standard 2.3 says in part, “Generally, suspension should be for a period of time equal to or greater than six months, but in no event should the time period prior to application for reinstatement be more than three years.” See In the Matter of Briley-Holmes, Case No. S18Y0717, slip op. at 19-20 (June 4, 2018) (quoting ABA Standard 2.3 and noting that “with one exception, it does not appear that this Court has ever imposed a five-year suspension as a disciplinary sanction outside the reciprocal discipline context,” and that the exception was in a case “decided a year before this Court first said that it would look to the ABA Standards for general guidance in determining the appropriate level of discipline”).

¹⁸ Among other cases, the special master cited In the Matter of Morgan, 303 Ga. 678 (814 SE2d 394) (2018), and In the Matter of Duncan, 301 Ga. 898 (804 SE2d 342) (2017). In Morgan, this Court accepted a lawyer's petition for voluntary discipline and imposed a two-year suspension with conditions on reinstatement for his violations of Rules 1.15 (I), 1.15 (II) (b), and 8.4 (a) (4), but only two aggravating circumstances were present and there were five mitigating circumstances, including the absence of a prior disciplinary record, see ABA Standard 9.32 (a). See 303 Ga. at 679-680. In Duncan, this Court accepted a lawyer's petition for voluntary discipline and imposed a six-month suspension with conditions on reinstatement for his violations of Rules 1.4, 1.15 (I), 1.15 (II) (b), and 1.16, but only one aggravating circumstance was present and there were six mitigating circumstances, including the absence of a prior disciplinary record. See 301 Ga. at 899-901.

¹⁹Among other cases, the special master cited In the Matter of Rose, 299 Ga. 665 (791 SE2d 1) (2016), and In the Matter of Mathis, 289 Ga. 176 (712 SE2d 809) (2011). In Rose, this Court agreed with a special master's recommendation and disbarred a lawyer for his violations of Rules 1.15 (I), 1.15 (II) (b), and 8.4 (a) (4), despite the presence of only one aggravating circumstance and the absence of a prior disciplinary record. See 299 Ga. at 666. In Mathis, a lawyer failed to reject a notice of discipline, and this Court disbarred him for his violations of Rules 1.15 (I), 1.15 (II) (b), 8.4 (a) (4), and other Rules, despite his having a less extensive history of prior disciplinary offenses than Hunt has and the presence of only one other aggravating circumstance, where, as here, there were no mitigating circumstances. See 289 Ga. at 177.

In the Supreme Court of Georgia

Decided: October 22, 2018

S19Y0155. IN THE MATTER OF ANTHONY EUGENE CHEATHAM.

PER CURIAM.

This disciplinary matter¹ is before the Court on the report and recommendation of special master Trishanda Treadwell recommending that Anthony Eugene Cheatham (State Bar No. 122215) be disbarred for his misconduct in relation to a real estate closing in which he converted the sales proceeds to his own use. Cheatham is currently suspended until further order of this Court because of his failure to respond to a Notice of Investigation unrelated to the allegations set forth in the formal complaint before the Court here. See S18Y1382 (June 18, 2018).

The State Bar brought its formal complaint in April 2018. Cheatham, who was admitted to the Bar in 1991, was personally served with the formal complaint on May 2, 2018, but he failed to file an answer and was found in default by the special master. See Bar Rule 4-212 (a). The facts, as established by Cheatham's default and as found by the special master, are that in May 2017 Cheatham agreed to close a real estate transaction. However, at the time that he agreed to represent the purchasers in this real estate transaction, Cheatham had already been administratively suspended from the practice of law on May 5, 2017 for failure to complete CLE requirements, and that suspension was to extend through August 4, 2017. While Cheatham was suspended from the practice of law, he received into his IOLTA account a wire transfer of $140,600 from the purchasers to fund the purchase; he had also received a $1,000 check as earnest money. He converted the funds to his own use and commingled the funds with his personal funds. He closed the sale on July 13, 2017, but did not have sufficient funds to promptly disburse the proceeds of the sale to the seller. Instead he made incremental payments and misled both the seller and purchasers about the reasons therefor. He issued one check for $56,880 on July 25, 2017, but stopped payment on the check the next day because he knew there were insufficient funds in his IOLTA account. Additionally, Cheatham failed to timely prepare and record the warranty deed for the real estate deal; failed to communicate with the seller and purchasers regarding the deed; failed to account for the proceeds of the sale when asked to do so; and abandoned the completion of the sale to the detriment of the seller and purchasers.

In light of this conduct, the special master correctly determined that Cheatham violated Rules 1.3, 1.4, 1.15 (I) (a) and (c), 1.15 (II) (a) and (b), 5.5 (a), and 8.4 (a) (4) of the Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d). The maximum sanction for a violation of Rule 1.4 is a public reprimand, and the maximum sanction for a violation of the remaining rules is disbarment. The special master, after considering the ABA Standards for Imposing Lawyer Sanctions, see In the Matter of Morse, 266 Ga. 652, 653 (470 SE2d 232) (1996), found that the following factors in aggravation applied: dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the disciplinary rules, vulnerability of the victim, and substantial experience in the practice of law. See ABA Standard 9.22. The special master also concluded that disbarment was consistent with prior cases disbarring lawyers who abandoned clients, stole money, acted dishonestly, and defaulted in the disciplinary process. See In the Matter of Snipes, 303 Ga. 800 (815 SE2d 54) (2018) (disbarment ordered for attorney who settled case without client's knowledge and converted funds to personal use); In the Matter of Mathis, 297 Ga. 867 (778 SE2d 793) (2015) (disbarment ordered for attorney who misappropriated client funds that had been wired to attorney in advance of a real estate closing); In the Matter of Myers, 297 Ga. 783 (778 SE2d 223) (2015) (disbarment ordered for attorney who abandoned two clients, charged unreasonable fees, refused to refund unearned fees, and failed to respond to disciplinary authorities); In the Matter of Gist, 297 Ga. 142 (772 SE2d 705) (2015) (disbarment ordered for attorney who, as trustee for a client's trust, failed to provide an accounting when requested by co-trustee and wrote checks from a non-IOLTA account and who, as a financial services professional, misappropriated millions of dollars invested by more than 30 clients); and In the Matter of Jones, 296 Ga. 151 (765 SE2d 360) (2014) (disbarment ordered for attorney who absconded with client funds and failed to respond to disciplinary authorities). See also ABA Standards 4.11 (a), 4.41 (b), 4.61, and 7.1. In addition, this Court notes that Cheatham committed these violations while under suspension from the practice of law.

Having considered the record, we agree that disbarment is the appropriate sanction in this matter. Accordingly, it is hereby ordered that the name of Anthony Eugene Cheatham be removed from the rolls of persons authorized to practice law in the State of Georgia. Cheatham is reminded of his duties pursuant to former Bar Rule 4-219 (c).

Disbarred. All the Justices concur.

¹ On January 12, 2018, this Court entered an order amending Part IV of the Rules and Regulations for the Organization and Government of the State Bar of Georgia (“Bar Rules”), including Bar Rule 4-102 (d), which contains the Georgia Rules of Professional Conduct. The order provided that, with two exceptions not applicable here, “these amendments shall be effective as of July 1, 2018 and shall apply to disciplinary proceedings commenced on or after that date.” The order further specified that “the former rules shall continue to apply to disciplinary proceedings commenced before July 1, 2018.”