The Supreme Court of Georgia on Monday issued the following attorney discipline decisions:
In the Supreme Court of Georgia
Decided: April 16, 2018
S18Y0158, S18Y0159. IN THE MATTER OF MIGUEL ANGEL GARCIA, JR.
These disciplinary matters are before the Court on the Notices of Discipline seeking the disbarment of Miguel Angel Garcia, Jr. (State Bar No. 283742). Garcia, who has been a member of the Bar since 1996, was personally served with these notices on September 25, 2017. Garcia failed to file a Notice of Rejection as to either disciplinary matter. Therefore, he is in default, has waived his rights to an evidentiary hearing, and is subject to such discipline and further proceedings as may be determined by this Court, see Bar Rule 4-208.1 (b).
In averments deemed admitted by virtue of Garcia’s default, the Bar alleges that, as to S18Y0158, Garcia filed a notice of appeal on behalf of several defendants in a condemnation case. Almost two years later, a substitution of counsel was entered as to one of the defendants, although Garcia stated during the screening stage for this grievance that he understood the substitution to apply to all of his clients. The court subsequently scheduled a hearing to determine, among other things, the representation of the remaining defendants; Garcia told the Bar that he did not receive the order. The court then mailed to Garcia and the other counsel in the case a notice informing counsel of a hearing and requiring the attendance of all counsel, including, specifically, Garcia. Although Garcia admitted that the notice was in his file, he did not attend the hearing. Following this failure to appear, the court entered a Rule Nisi for Contempt and engaged in significant efforts to reach Garcia regarding the Rule Nisi. Garcia did not appear and an order of incarceration for contempt was entered. Garcia informed the Bar that he had not received the Rule Nisi and was working to resolve the contempt issue, but the court informed the Bar that Garcia had not contacted the court regarding the matter; Garcia then did not respond to further requests for information from the Bar. Based on these facts, the Investigative Panel found probable cause to conclude that Garcia’s conduct violated Rules 1.2, 1.3, 1.4, 3.2, 8.1, and 8.4 (a) (4) of the Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d) and determined disbarment was appropriate. The maximum sanction for a violation of Rules 1.2, 1.3, 8.1, or 8.4 (a) (4) is disbarment, and the maximum sanction for a violation of Rules 1.4 or 3.2 is a public reprimand.
As to S18Y0159, Garcia was paid $4,500 by a client for representation in an immigration matter, but did not communicate with the client for months, despite repeated attempts by the client. Garcia eventuallymet with the client, but exhibited a lack of knowledge regarding the matter for which he had been retained and failed to respond to subsequent e-mails from the client. The client then terminated Garcia’s representation by e-mail and certified mail, but was unable to reach Garcia and was rebuffed by Garcia’s staff when he called the office to follow up. The client did not receive a refund or his case file, despite having requested both. Based on these facts, the Investigative Panel found probable cause to conclude that Garcia’s conduct violated Rules 1.2, 1.3, 1.4 (a) (3), 1.4 (a) (4), and 1.16 (d) and determined that disbarment was the appropriate sanction. The maximum sanction for a violation of Rules 1.2 or 1.3 is disbarment, and the maximum sanction for a violation of Rules 1.4 (a) (3), 1.4 (a) (4), or 1.16 (d) is a public reprimand.
In aggravation of discipline in both matters, the Bar notes Garcia’s failure to respond adequately to these disciplinary matters, his substantial experience in the practice of law, and the absence of mitigating factors. As to S18Y0158, the Bar also cites as an aggravating factor Garcia’s false or deceptive statements to the Bar in response to that grievance. The Bar also notes that this Court has imposed an interim suspension for Garcia’s failure to respond to the Notice of Investigation in one of these matters and that he also has been administratively suspended for failure to stay current on his continuing legal education requirements and Bar dues. Based on the foregoing, the Bar seeks Garcia’s disbarment. Garcia has not filed a response in this Court during the pendency of these matters.
Having reviewed the record, we conclude that disbarment is the appropriate sanction. Accordingly, it is hereby ordered that the name of Miguel Angel Garcia, Jr. be removed from the rolls of persons authorized to practice law in the State of Georgia. Garcia is reminded of his duties pursuant to Bar Rule 4-219 (c).
Disbarred. All the Justices concur.
In the Supreme Court of Georgia Decided: April 16, 2018 S18Y0601, S18Y0602. IN THE MATTER OF GREGORY REECE BARTON. PER CURIAM.
These disciplinary matters are before the Court on the reports filed by special master Adam M. Hames, who recommends the disbarment of respondent Gregory Reece Barton (State Bar No. 040717). The State Bar filed formal complaints regarding these client representation matters, and Barton, who has been a member of the Bar since 1998, acknowledged service of the complaints but thereafter failed to timely file an answer. The Bar moved the special master to find Barton in default, and the special master does so find Barton, noting that, pursuant to Bar Rule 4-212 (a), the facts and violations alleged in the complaints are deemed admitted.
As to S18Y0601, Barton was appointed in November 2015 to represent a defendant on charges of theft by taking, but he failed to communicate with the client or to take any action on the client’s behalf. After both the client and the client’s grandmother contacted the judge overseeing the client’s case to complain about Barton’s failure to communicate or take action on the case, the court scheduled a hearing to address the matter. Barton contacted the judge’s assistant to say that he would be unable to attend because he was ill, but was told that his appearance would nonetheless be required. Barton failed to appear and was removed from the client’s case. As to S18Y0602, Barton represented a different criminal defendant, but he failed to appear at two separate calendar calls and did not notify either his client or the court that he would be absent; Barton did later appear at a status hearing ordered by the court and resolved the client’s case with the prosecutor. In both matters, Barton admits that he is unable to remember the events in question because of his abuse of alcohol.
As to each matter, the special master finds that Barton’s conduct violated Rules 1.3, 1.4, and 3.2 of the Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d). The maximum sanction for a violation of Rule 1.3 is disbarment, and the maximum sanction for a violation of Rules 1.4 and 3.2 is a public reprimand. The special master also notes that Rule 4-104 provides that “want of a sound mind” and “habitual intoxication” may constitute grounds for removing an attorney from the practice of law. In mitigation of discipline, the special master notes that Barton lacks a prior disciplinary history, but, in aggravation, the special master notes Barton’s failure to respond to the disciplinary proceedings; the special master further notes that Barton’s failure to respond to the disciplinary proceedings deprived the special master of any additional evidence in mitigation of discipline. Noting that ABA Standard 4.41 (b) and (c) provide that disbarment is generally appropriate where serious or potentially serious injury is caused to a client by, respectively, the lawyer’s knowing failure to perform services for the client and the lawyer’s having engaged in a pattern of neglect of client matters, the special master recommends that Barton be disbarred for his conduct. Neither Barton nor the Bar have filed any pleading in this Court since the filing of the special master’s reports.
Having reviewed the record, we conclude that disbarment is the appropriate sanction in these matters. Accordingly, it is hereby ordered that the name of Gregory Reece Barton be removed from the rolls of persons authorized to practice law in the State of Georgia. Barton is reminded of his duties pursuant to Bar Rule 4-219 (c).
Disbarred. All the Justices concur.
In the Supreme Court of Georgia
Decided: April 16, 2018
S18Y0694. IN THE MATTER OF JOHN BENNETH IWU.
This is the second appearance of this disciplinary matter before this Court, as this Court previously rejected the petition for voluntary discipline filed by respondent John Benneth Iwu (State Bar No. 143125). See In the Matter of Iwu, 301 Ga. 52 (799 SE2d 155) (2017). Iwu, who has been a member of the Bar since 2006, sought by his earlier petition to receive a public reprimand for his admitted violation of Rule 5.5 (a) of the Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d) for having filed an answer and counterclaim on behalf of a client while ineligible to practice law because of the non-payment of his State Bar membership fee. However, this Court rejected Iwu’s petition because he failed to admit to a violation of either Rule 8.1 (a) or 8.4 (a) (4), because his statements regarding the disciplinary matter evidenced a pattern of deception intended to avoid culpability for his conduct, and because the disciplinary standards referenced by the Bar and the Special Master in connection with Iwu’s petition addressed negligent rather than intentional conduct. See Iwu, 301 Ga. at 54.
This matter is now before the Court on the report and recommendation of Special Master Andrew C. Hall, who recommends that Iwu be disbarred for his violations of Rules 5.5 (a), 8.1 (a), and 8.4 (a) (4), the maximum sanction for a violation of any of which is disbarment. As to the Rule 5.5 (a) matter out of which all of this arose, the allegations regarding Iwu’s conduct remain the same: as mentioned above, Iwu appeared as counsel for a client at a time when he had not paid his Bar membership fee and, as a result of this non-payment, was not eligible to practice law. This Court’s conclusion that Iwu’s earlier petition was due to be rejected for failing to admit violations of Rules 8.1 (a) and 8.4 (a) (4) arose from admissions he made in connection with that petition, specifically that statements he made in response to the formal complaint—to the effect that he was unaware of his suspension because someone else had received the notice and not transmitted it to him and that he believed that he was eligible to practice law despite his non-payment of dues—were incorrect. Although Iwu attempted to withdraw his admissions following this Court’s rejection of his petition, the special master found that his admissions were made without being conditioned on this Court’s acceptance of his petition and rejected his request to withdraw the admissions.
In examining the facts supporting Iwu’s violations of Rules 8.1 (a) and 8.4 (a) (4), the special master considered the false statements made to Iwu’s client (in the matter giving rise to the Rule 5.5 (a) violation), to the Investigative Panel of the State Disciplinary Board, and to the State Bar’s Office of General Counsel. As to the client, the special master found that Iwu’s filing on behalf of the client constituted a misrepresentation violative of Rule 8.4 (a) (4) because the filing carried with it a representation that the lawyer was eligible to practice law, a representation Iwu then knew to be false. The special master concluded, based on the record before him, that the evidence did not support that Iwu had actual knowledge of his suspension based on the notice transmitted to him by the State Bar or that he had intended to make a false or misleading statement to the Investigative Panel regarding a conversation he had with an unauthorized practice-of-law investigator. However, in considering Iwu’s statements to the Office of General Counsel—to the effect that he would check the Bar’s website from time to time during the period of time at issue and that the website never showed that he was ineligible to or suspended from practice—the special master found credible the testimonial and documentary evidence submitted by the Bar that belied Iwu’s assertion; noted that, when presented with this evidence, Iwu equivocated and became evasive; and ultimately concluded that Iwu’s statement to the Office of General Counsel was false and intentionally misleading and that he therefore violated Rules 8.1 (a) and 8.4 (a) (4).
In mitigation of discipline, the special master noted that Iwu has no prior disciplinary history in Georgia and has no disciplinary history in Tennessee except for a public reprimand imposed by that State for the same filing that is the subject of the Rule 5.5 (a) violation in this matter, that he has already been sanctioned for some of the conduct at issue here by the imposition of that Tennessee reprimand, and that he has been under suspension in Georgia since July 1, 2014. In aggravation, the special master notes that Iwu’s conduct involved multiple, independent offenses; that he submitted false statements during the disciplinary proceedings; that he has refused to acknowledge, and has consistently sought to diminish, the wrongful nature of his conduct; and that he possesses substantial experience in the practice of law. The special master explained that, had the matter remained merely the underlying Rule 5.5 (a) violation, he would have been (and was previously) inclined to conclude that a much less serious sanction of a public reprimand would have been appropriate, but that, given Iwu’s intentionally false and misleading statement to the Bar during these disciplinary proceedings, disbarment was the appropriate sanction here. Iwu did not file exceptions to the special master’s report to challenge his findings and conclusions.
Having reviewed the record, we agree with the special master that a harsh sanction is warranted here. Indeed, “[m]aking false statements to the Bar during the disciplinary process is a very serious matter which typically results in, at least, a significant suspension from the practice of law.” In re O’Brien-Carriman, 288 Ga. 239, 240 (702 SE2d 635) (2010). See also In re Friedman, 270 Ga. 5, 6 (505 SE2d 727) (1998). However, in light of the mitigating circumstances, particularly Iwu’s lack of prior disciplinary history, we believe that a harsh sanction short of actual disbarment is the appropriate level of discipline to impose here. Iwu’s initial violation of Rule 5.5 (a) for having filed an answer and counterclaim on behalf of a client while ineligible to practice law may have subjected him to the much less serious sanction of a public reprimand rather than a suspension or disbarment. But, through Iwu’s choice to lie to the Bar during the disciplinary proceedings in an effort to avoid taking responsibility for his actions, he only exacerbated his own problems by subjecting himself to more serious sanctions. His false statement to the Bar could have led to his disbarment, but, in light of the mitigating circumstances, we believe that a three-year suspension is the appropriate level of discipline to impose. See In the Matter of Favors, 283 Ga. 588 (62 SE2d 119) (2008) (imposing a three-year suspension on attorney with no prior disciplinary history where attorney used settlement funds for her own personal benefit; overdrew her attorney trust account; and submitted false information and fabricated documents to the Bar during its investigation of her actions). Accordingly, John Benneth Iwu is hereby suspended for a period of three years from the date of this opinion. Iwu is reminded of his duties under Bar Rule 4-219 (c).
Three-year suspension. All the Justices concur.