On Friday, the Supreme Court of Georgia issued the following discipline decisions:

In the Supreme Court of Georgia

Decided: December 8, 2016

S15Y1785. IN THE MATTER OF W. BURRELL ELLIS, JR.

PER CURIAM.

On October 5, 2015, this Court suspended W. Burrell Ellis, Jr. pending the

termination of the appeal of his felony convictions. On November 30, 2016, this

Court reversed those convictions. See Ellis v. State, No. S16A1246 (decided

November 30, 2016), motion for reconsideration denied December 8, 2016.

Thus, it is hereby ordered that W. Burrell Ellis, Jr. be reinstated to the practice

of law in the State of Georgia.

Reinstated. All the Justices concur.

 

In the Supreme Court of Georgia

Decided: December 8, 2016

S17Y0225. IN THE MATTER OF CAMERON SHAHAB.|

PER CURIAM.

This disciplinary matter is before the Court on the petition for voluntary discipline filed by Cameron Shahab (State Bar No. 135087) after rejecting a notice of discipline, see Bar Rule 4-208, and before the filing of a formal complaint, see Bar Rule 4-227; the petition seeks to resolve two State Disciplinary Board matters.1 Shahab requests as discipline a Review Panel reprimand, but states he will accept a public reprimand.

Shahab was admitted to the Bar in 2009, and admits that in 2013 and 2014, he was retained to assist two clients in separate immigration matters, but failed to pursue the clients’ matters in a timely manner; failed to notify one of the clients of a court hearing, which led to the client being issued a notice of deportation for failure to appear; failed to respond to requests for information from the clients; and failed to refund any fees when the clients ultimately retained new counsel. Both clients have obtained fee awards through the State Bar’s fee arbitration program. By this conduct, Shahab admits that he violated Rules 1.2, 1.3, 1.4, 1.16 (d), and 3.2 of the Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d). The maximum sanction for a violation of Rules 1.2 and 1.3 is disbarment, and the maximum sanction for a violation of Rules 1.4, 1.16, and 3.2 is a public reprimand.

Shahab states that he is unable to make significant payments toward satisfaction of the fee awards, but has sent both clients a $50 payment and has committed to making additional payments of $50 per month, and as much more than that as he can, until the awards are paid in full. In mitigation, Shahab recites the existence of personal and emotional problems arising out of family circumstances; his own health issues; sincere remorse; good character and reputation; and lack of a dishonest or selfish motive.

The State Bar opposes the petition, stating that it has confirmed with Shahab’s clients that he has not made any payments towards satisfying the fee arbitration awards and that he is currently administratively suspended for failure to pay his Bar dues. Given the misrepresentations made, we hereby reject the petition for voluntary discipline.

Petition for voluntary discipline rejected. All the Justices concur.

1 SDBD Nos. 2798 and 6799.

 

In the Supreme Court of Georgia

Decided: December 8, 2016

S17Y0346. IN THE MATTER OF WILLIAM D. HENTZ.

PER CURIAM.

This disciplinary matter is before the Court on the report and recommendation of the Special Master, Thomas M. Cole, recommending that the Court accept the petition for voluntary discipline filed by William D. Hentz (State Bar No. 348206) and recommending imposition of a suspension of at least twelve-months with conditions for reinstatement.

The State Bar filed Formal Complaints in State Disciplinary Board (“SDB”) Docket Nos. 6760, 6761, 6762, 6763, and 6764, charging Hentz, who has been a member of the Bar since 1983, with violations of the Georgia Rules of Professional Conduct 1.3, 1.4, 1.16 (d) and 9.3. Hentz filed Answers to the various Complaints and subsequently filed his petition for voluntary discipline pursuant to Bar Rule 227 (c) (1). In his petition, Hentz admits that this Court accepted the voluntary surrender of his license in July 2001, see In the Matter of Hentz, 274 Ga. 121 (2001), and that he was reinstated in November 2007.

As to SDB Docket No. 6760, Hentz admits the following: a client retained him to provide representation regarding the client’s brother’s life insurance policy; although he investigated the client’s matter, he failed to keep the client apprised of the work he was doing, failed to respond to the client’s phone calls and letters, and failed to refund the fee the client paid him that he did not earn; and he was personally served with a Notice of Investigation regarding the matter but failed to respond in accordance with the Bar Rules.

As to SDB Docket No. 6761, Hentz admits the following: a client retained him to help her obtain visitation with her son during the approaching holidays; he told the client he would be able to file an appropriate motion so that she would have visitation with her son; he failed to respond to the client’s phone calls until after the holidays had passed; although he worked on the case, he failed to get the client visitation with her son during the holidays; and he was personally served with a Notice of Investigation regarding the matter but failed to respond in accordance with the Bar Rules.

As to SDB Docket No. 6762, Hentz admits the following: he represented a client in a lawsuit; he failed to file an answer on the client’s behalf and allowed the lawsuit to go into default; in his response to the opposing party’s motion for default and in his motion for new trial, he stated that at times relevant to the court proceeding, he lacked the mental capacity to practice law; he abandoned the client’s legal matter without just cause and to the client’s detriment; and he was personally served with a Notice of Investigation regarding the matter but failed to respond in accordance with the Bar Rules.

As to SDB Docket No. 6763, Hentz admits the following: a client retained him to represent her grandson in a probation revocation; he refused to assist the grandson with a blind plea after the court denied bond to the grandson and consequently, was discharged by the grandson; and he was personally served with a Notice of Investigation regarding the matter but failed to respond in accordance with the Bar Rules.

As to SDB Docket No. 6764, Hentz admits the following: a client retained him in a legitimation and custody case; although he filed the client’s case, he took no subsequent action on the client’s behalf; he failed to respond to the client’s phone calls and letters or otherwise communicate with the client; he failed to refund the fee the client paid him that he did not earn; he abandoned the client’s legal matter without just cause and to the client’s detriment; and he was personally served with a Notice of Investigation regarding the matter but failed to respond in accordance with the Bar Rules.

Hentz admits his conduct in SDB Docket Nos. 6762 and 6764 violated Rule 1.3; his conduct in SDB Docket Nos. 6760, 6761, 6763, and 6764 violated Rule 1.4; his conduct in SDB Docket Nos. 6760, 6761, and 6164 violated Rule 1.16 (d); and his conduct in SDB Docket Nos. 6760, 6761, 6762, 6763, and 6764 violated Rule 9.3 of the Rules of Professional Conduct found in Bar Rule 4 102 (d). The maximum penalty for a single violation of Rule 1.3 is disbarment. The maximum penalty for a single violation of Rules 1.4, 1.16 (d), and 9.3 is a public reprimand.

In this matter, Hentz requests that this Court impose a suspension of at least twelve months, with specific conditions on his reinstatement, namely, that he repay the unearned fees in SDB Docket Nos. 6760, 6761, 6762, 6763, and 6764, and that, no earlier than three months before requesting reinstatement, he must provide the Bar with certification from a licensed psychologist or psychiatrist stating that he is mentally competent to return to the practice of law. In mitigation of discipline, Hentz states that he suffered significant personal and emotional problems, including his son’s suicide, marital problems affecting his marriage of thirty-five years, his wife’s diagnosis with a rare cardiac disease, his youngest son’s drug addiction and incarceration, his daughter’s drug addiction and the termination of her parental rights, his inability to keep up with his Continuing Legal Education requirements, the foreclosure of the building he owned containing his law office, and the death of his canine companion. In the face of the instant disciplinary proceedings, Hentz contacted the State Bar’s Lawyers’ Assistance Program and has been in therapy with a psychologist for approximately nine months.

The State Bar filed a response agreeing with the facts and mitigating factors set out by Hentz but also noted that aggravating factors including prior disciplinary offenses, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law are applicable in this case. It applied the ABA Standards for Imposing Lawyer Sanctions, and recommended that the Special Master and this Court accept Hentz’s petition for voluntary discipline requesting a suspension of at least twelve months with reinstatement subject to the conditions detailed in Hentz’s petition. The State Bar included several citations in support of this conclusion, explaining that previous disciplinary cases involving the abandonment of client matters in the face of serious personal and emotional problems have resulted in similar discipline. See e.g., In the Matter of Koval, 277 Ga. 880 (596 SE2d 617) (2004); In the Matter of Ricks, 289 Ga. 136 (710 SE2d 749) (2011); and In the Matter of Anderson, 294 Ga. 615 (755 SE2d 204) (2015). The Special Master recommends accepting Hentz’s petition for voluntary discipline.

Having reviewed Hentz’s petition, the State Bar’s response, and the Report and Recommendation of the Special Master, we agree that a suspension is the appropriate sanction in this matter. Accordingly, the Court accepts the petition for voluntary discipline and imposes a two-year suspension with reinstatement subject to the conditions detailed in Hentz’s petition. See In re Bagwell, 286 Ga. 511 (689 SE2d 316) (2010); In re Stewart, 280 Ga. 821 (631 SE2d 106) (2006). At the conclusion of the suspension imposed in this matter, Hentz may seek reinstatement by demonstrating to the State Bar’s Office of General Counsel that he has met the conditions on reinstatement. If the State Bar agrees that the conditions have been met, it will submit a notice of compliance to this Court, and this Court will issue an order granting or denying reinstatement. Hentz is reminded of his duties under Bar Rule 4-219 (c).

Petition for voluntary discipline accepted. Two-year suspension with conditions. All the Justices concur.

In the Supreme Court of Georgia

Decided: December 8, 2016

S17Y0552. IN THE MATTER OF DAVID EDMUND RALSTON.

PER CURIAM.

This disciplinary matter is before the Court on the report and recommendation of the special master, Jonathan C. Peters, recommending that the Court accept the petition for voluntary discipline filed by David Edmund Ralston (State Bar No. 592850) and impose a Review Panel reprimand for Ralston’s provision of financial assistance to a couple who were his clients and the use of his trust account in providing that assistance, in violation of Rules 1.8 (e) and 1.15 (II) (b) of the Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d). 2 The maximum sanction for a violation of Rule 1.8 (e) is a public reprimand, and the maximum sanction for a violation of Rule 1.15 (II) (b) is disbarment.

In his petition, Ralston requested the imposition of an Investigative Panel reprimand, but agreed to accept discipline up to a three-month suspension. The State Bar supported the petition and requested that some form of public discipline be imposed. Based on Ralston’s petition and the State Bar’s response, the special master found the following facts relevant to the admitted violations of Rules 1.8 (e) and 1.15 (II) (b). Ralston was admitted to the Bar in 1980 and has no prior disciplinary sanctions. In April 2006, an associate in Ralston’s firm was retained by the clients to represent them in a personal injury action arising out of a March 2006 car accident. Ralston was not involved in the initial representation, but became actively involved in 2008 and filed suit on behalf of the clients in March 2008. The defendant answered and, although she did not contest liability, she did not admit causation for the injuries. In May 2010, the clients told Ralston that one of them had become unemployed and that they were having difficulty meeting the basic necessities for themselves and their minor child, including paying rent and paying for prescription medication; they asked Ralston to advance them money to be repaid from the proceeds of a settlement or trial. Ralston, believing that the clients were truly in dire financial need, advanced to them funds at no interest from an earned, but undisbursed, fee of $24,050.09 remaining in his IOLTA (Interest on Lawyer Trust Account) from an unrelated matter; between May 26, 2010, and October 31, 2011, he made 12 disbursements totaling $22,000 to the clients. A certified public accountant conducted a review of Ralston’s trust account for the time period in question, determined that no defalcation occurred, and verified that the earned but undisbursed fee was the source of funds advanced to the clients. Other facts set forth in the special master’s report address violations of additional Rules that were alleged in the amended formal complaint against Ralston, but which the State Bar has investigated and has determined do not merit further proceedings.4

With regard to the Rule 1.8 (e) violation, Ralston states that he was unaware of that rule when he made the advances and did not intentionally violate it; he was forthcoming with the State Bar in disclosing the advances and providing evidence of them; he obtained no financial gain from advancing the funds at no interest; he is not seeking reimbursement for the $22,000 advanced; and he has released any claim to a fee from the settlement of the case. With regard to the Rule 1.15 (II) (b) violation, Ralston admits that he made the advances to his clients from earned fees in his trust account and states that he was unaware that his actions violated Bar Rules, but he has since established safeguards to prevent any commingling of client and personal funds or retention of earned fees in his trust account.

The special master found the following factors in mitigation: absence of a prior disciplinary record; absence of a selfish or dishonest motive; full and free disclosure to the disciplinary authority and cooperative attitude toward the proceedings; remorse; and Ralston’s lengthy career in public service as a legislator and legislative leader. The sole aggravating factor found by the special master is Ralston’s substantial experience in the practice of law.

In light of all of these circumstances and mitigating factors, and in particular the absence of any apparent harm to a client or benefit to Ralston from the violations of Rules 1.8 (e) and 1.15 (II) (b), we agree with the special master that a Review Panel reprimand is the appropriate sanction in this matter. See, e.g., In the Matter of Francis, 297 Ga. 282 (773 SE2d 280) (2015) (Review Panel reprimand where the lawyer, who had three prior instances of confidential discipline, commingled personal and fiduciary funds in his trust account, but where there was no harm to clients); In the Matter of Morse, 293 Ga. 670 (748 SE2d 921) (2013) (Review Panel reprimand for a lawyer who loaned money to a client and who had three instances of prior discipline, including one for similar misconduct); In the Matter of Howard, 292 Ga. 413, 414 (738 SE2d 89) (2013) (public reprimand for a lawyer for technical violations of Rule 1.15 (II), where no harm was done to clients). Compare In the Matter of Storrs, ___ Ga. ___ (S16Y1749, Oct. 27, 2016) (imposing three-month suspension for violation of Rule 1.15 (II) (b) where the lawyer withdrew $11,150 in client funds from his trust account and used the funds for his own benefit, but repaid the sum quickly so that there was no harm to a client or third-party, and where there were significant mitigating circumstances). Accordingly, we accept the petition for voluntary discipline and hereby order that David Edmund Ralston receive a Review Panel reprimand in accordance with Bar Rules 4-102 (b) (4) and 4-220 (b) for his admitted violations of Rules 1.8 (e) and 1.15 (II) (b).

Petition for voluntary discipline accepted. Review Panel reprimand. All the Justices concur.

[2] Rule 1.8 (e) says that a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that a lawyer may advance or pay for court costs and expenses of litigation. Rule 1.15 (II) (b) says in pertinent part that no funds shall be withdrawn from a lawyer’s trust account for his personal use, except earned attorney fees debited against the account of a specific client and recorded as such.

[3] An Investigative Panel reprimand is a form of confidential discipline, while Review Panel and public reprimands and suspensions are forms of public discipline. See Bar Rule 4-102 (b).

[4] The State Bar is declining to pursue alleged violations of Rules 1.3 (lawyer shall act with reasonable diligence); 1.4 (lawyer shall keep client reasonably informed about status of the matter); 1.5 (contingency fee agreement must be in writing); 1.7 (lawyer shall not continue representation if there is significant risk that lawyer’s own interests or other duties will materially and adversely affect the representation); 1.16 (a) (1) (lawyer shall withdraw from representation if continued representation will result in violation of Rules of Professional Conduct); 1.16 (d) (upon termination of representation, lawyer shall take reasonable steps to protect a client’s interests, including surrendering papers); 3.2 (lawyer shall make reasonable efforts to expedite litigation consistent with interests of the client); and 8.4 (a) (4) (lawyer shall not engage in professional conduct involving dishonesty, fraud, deceit, or misrepresentation). The State Bar is also declining to pursue an allegation that Ralston violated Rule 1.15 (II) (b) by failing to keep and maintain trust account records showing the exact balance held for each client or third party. The facts stipulated as to these alleged violations show that the initiation of the case without a written fee agreement was accomplished without involvement from Ralston, and when he became actively involved in the representation, he confirmed in writing the oral understanding of the contingency fee arrangement. Additionally, the facts show that Ralston communicated frequently with the clients and turned over their complete file to their new counsel within a reasonable time of being requested and receiving authorization to do so. With regard to the allegations that Ralston was unable to pursue the case diligently because of his duties as a legislator and therefore should have withdrawn from the representation, the stipulated facts show that because the clients would not authorize a settlement demand, the case had to be tried; because the judge presiding over the case had only two weeks per year for civil jury trials in Gilmer County, there were only ten jury trial weeks available between 2009 and 2013; the unavailability of only one of these weeks was solely due to Ralston’s legislative duties; and the other weeks potentially available were rendered unavailable due to opposing counsel’s medical leave, Ralston’s representation of clients in two criminal trials in other counties, and the hospitalization of one of the civil clients. After the clients retained new counsel, the case settled for the defendant’s insurance limits of $100,000.