Monday, March 1, 2021

Petitions Rejected

The Georgia Supreme Court has rejected a petition for voluntary discipline of a public reprimand

Here, unlike in 2016, we face a situation in which Brantley, having been disciplined on numerous prior occasions and while litigating misconduct that ultimately resulted in her suspension, willfully refused, without apparent explanation, to refund several thousand dollars in client fees; failed to appear at the subsequent fee arbitration hearing; and persisted in refusing to make any payment until after a Bar grievance was filed and a Formal Complaint was issued. Here, the misconduct occurred well after the time period during which the misconduct at issue in Brantley I occurred, and, unlike in Brantley I, Brantley has made no representations regarding any personal hardship that should be considered in mitigation in relation to this violation.

Furthermore, in addition to Brantley’s considerable disciplinary history, there are significant aggravating factors present in this case. These factors include Brantley’s initial refusal, in her answer to the Formal Complaint, to acknowledge the wrongful nature of her conduct; her initial denial, in that answer, of various statements of fact regarding her conduct that she now admits; and her failure to offer to pay the arbitration award until some 18 months after it was issued.

Conversely, Brantley has demonstrated little in the way of mitigation. The fact that she has made restitution carries no mitigating weight given that she did so only after the initiation of disciplinary proceedings.

The court remanded for an evidentiary hearing.

The court also rejected a petition for an 18-month suspension in a matter where an attorney had drafted his sister's will

naming himself as the executor of her estate, the guardian of his nephew, and the conservator of his nephew’s funds. The will specifically excepted Davis from the requirements to post a fiduciary bond and to file inventories or annual returns with the probate court, and Davis did not obtain informed and written consent that his sister was aware of the potential conflict of interest in having him serve without bond as executor, conservator, and guardian pursuant to the will he drafted. Davis was not aware that his sister was suffering from breast cancer at the time he drafted her will, and she died shortly thereafter. The nephew was only 13 years old at the time of his mother’s death and was the sole beneficiary of his mother’s estate.

The attorney did not obtain his sister's informed consent to the conflict.

When he reached the age of majority, the nephew raised questions about the handling of life insurance proceeds and social security payments. 

The attorney failed to cooperate in the probate proceedings seeking an accounting, leading to a judgment over $191,000

Following the judgment, Davis failed adequately to respond to his nephew’s post-judgment requests, which caused the probate court to grant the nephew’s motion to compel and request for attorney fees for having to file the motion. Davis then failed to respond to the requests within the time set forth in the order granting the motion to compel, which caused him to be held in contempt and subject to additional attorney fees.

The Special Master's recommendation was not accepted

the reinstatement conditions recommended by the Special Master for Davis are considerably less stringent than for disbarred attorneys, insofar as Davis could remain suspended for far longer than five years but—upon satisfying the conditions of his suspension—not be required to re-certify his fitness before he resumes the practice of law. At the same time, the recommended conditions are in some ways more punitive to Davis. Given the large discrepancy between the amount he would be required to repay and his current rate of repayment, the recommended conditions could place Davis in a disciplinary purgatory: if he cannot finish paying restitution, his discipline will be endless.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/03/the-georgia-supreme-court-has-rejected-a-petition-for-voluntary-discipline-of-a-public-reprimand-here-unlike-in-2016-we-fa.html

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