In the Supreme Court of Georgia
Decided: December 11, 2017
S17Y1593. IN THE MATTER OF JOHN F. MEYERS.
This disciplinary matter is before the Court on the report of the Review Panel, which recommends rejecting the special master’s recommendation of disbarment and instead imposing a two-year suspension on respondent John F. Meyers (State Bar No. 503692) for his violations of various Georgia Rules of Professional Conduct, see Bar Rule 4-102 (d). Both the State Bar and Meyers have timely filed exceptions to the Review Panel’s report and recommendation. We agree with the Review Panel that the circumstances of this case warrant a two-year suspension.
The evidence presented in this case is significant and conflicting, but the following appears to be undisputed. A member of the Georgia Bar since 1983, Meyers was at all relevant times an equity partner at a large law firm. He had billing responsibilities for many clients, including the large corporate client at issue in this case. For a number of years, Meyers’s law firm performed legal services for the corporate client and its subsidiaries. The contact person for the corporate account was in-house counsel for one of the corporation’s wholly-owned subsidiaries.
At some point, in-house counsel told Meyers that his employer permitted its in-house attorneys to perform outside legal work as long as it was not on company time and did not raise any conflicts of interest with company matters, and in-house counsel indicated a desire for Meyers’s law firm to do some of the work for his own outside clients. As a result, beginning in 2011, attorneys at the firm did legal work for the benefit of in-house counsel’s personal clients and for his private practice. When difficulties arose in collecting the fees for those services from the in-house counsel’s personal clients, the amounts due were rolled into the bills sent to the law firm’s corporate client, with the descriptions of the work that had been performed edited to eliminate information that would make clear that the work was not performed directly for the corporate client.1 The corporate client discovered the practice and fired in-house counsel in August 2012. 2 The client then initiated an inquiry with the law firm, which reimbursed the corporate client for the amounts it had actually paid, wrote off the other invoices, and confronted Meyers.
From the start, Meyers admitted that he submitted the altered bills but asserted, as he still does, that he did so at the behest of in-house counsel, who Meyers contended advised him that the procedure was acceptable because much of the work performed ultimately would be beneficial to the corporate client and because in-house counsel would reimburse the corporate client for any work that was not beneficial to it. When confronted, Meyers immediately offered to reimburse the firm or the client, and he did ultimately re-pay the law firm. 3 Meyers, who resigned within a few weeks of being confronted, now acknowledges that the alterations to the bills could have helped conceal from the corporate client the fact that the legal work was performed on behalf of the in house counsel and his clients, but nevertheless steadfastly denies any knowing participation in a scheme to defraud the client. Instead, Meyers claims that he was duped and misled by in-house counsel, whom he reasonably trusted.
Based on this conduct, the State Bar charged Meyers with violating Rules 1.4, 1.5 (a), 7.1 (a) (1), 8.1 (a), and 8.4 (a) (4) of the Georgia Rules of Professional Conduct. See Bar Rule 4-102 (d). The maximum penalty for a violation of Rules 1.4 or 1.5 (a) is a public reprimand, while the maximum penalty for a violation of Rules 7.1 (a) (1), 8.1 (a), or 8.4 (a) (4) is disbarment.
The matter was heard by special master David Anthony LaMalva, who issued a report and recommendation finding that Meyers had violated all of the Rules with which he had been charged and recommending disbarment as the appropriate remedy. Meyers filed exceptions to the special master’s report and recommendation and the case proceeded to the Review Panel, which subsequently issued its own report and recommendation. The Review Panel agreed with the special master that the clear and convincing evidence showed that Meyers had violated Rules 1.4, 1.5 (a), and 7.1 (a) (1) and further agreed that Meyers had violated Rule 8.4 (a) (4) by preparing and submitting false and misleading invoices to the corporate client for work done by the law firm for other clients. The Review Panel rejected, however, the special master’s conclusion that Meyers’s continued denial during the disciplinary proceedings that he was complicit in any scheme to defraud the corporate client amounted to a violation of Rule 8.1 (a). The Review Panel reasoned that the Bar Rules do not require an attorney to choose between admitting an intentional violation of 4 the Rules in the disciplinary action or facing a Rule 8.1 (a) violation. Similarly, although the Review Panel found that Meyers violated Rule 8.4 (a) (4) based on the bills he submitted to the client, the Review Panel, unlike the special master, did not rely on any dishonesty by Meyers during the disciplinary process in finding a violation of this rule.
In considering the appropriate disciplinary sanction, the Review Panel agreed with the special master’s determination that Meyers’s lack of prior disciplinary history and the good character witnesses he presented were mitigating factors. The Panel recognized as a mitigating factor Meyers’s having reimbursed his firm for both the fees that the firm had refunded to the corporate client and those fees that had been billed but not paid. The Panel also said that there was no indication in the record that Meyers had failed to respond to the disciplinary investigation, saying that Meyers’s failure to admit every violation alleged during the investigation or “the conclusions to be drawn” from the evidence should not be deemed an uncooperative attitude. In aggravation, Meyers did not challenge the special master’s findings that the case involved multiple offenses and that he had substantial experience in the practice of law. But the Review panel rejected the special master’s findings in aggravation that Meyers did not acknowledge the wrongful nature of his conduct and that he submitted false statements to a tribunal by refusing to concede that he intentionally defrauded his client.
Ultimately, the Review Panel concluded that, although the violations in the case were extremely serious, the special master’s proposed punishment of disbarment was too harsh under the circumstances. The Review Panel sought to distinguish cases relied on by the special master in which lawyers had been disbarred after being found to have been dishonest during the disciplinary process.4 The Panel held that although Meyers’s conduct in this matter was unacceptable and in violation of the Rules of Professional Conduct, the cases resulting in disbarment for misleading and fraudulent fee statements typically include more aggravating factors not present in this case. And, after taking into consideration the facts that Meyers had made full restitution to his firm, that the client was reimbursed for any loss, and that Meyers has never been the subject of a disciplinary complaint in his extensive 30-year-plus legal career, the Review Panel unanimously concluded that a two-year suspension from the practice of law was a more appropriate discipline.
Both Meyers and the State Bar have filed exceptions to the Review Panel’s report, challenging at length its conclusions as to the various disciplinary violations, its consideration of mitigating and aggravating circumstances, and its recommendation as to the appropriate level of discipline. After this Court’s extensive review of the record in this case, we agree with the Review Panel’s findings and conclusions as to the various Rules violations and as to the mitigating and aggravating factors. In particular, we agree with the Review Panel’s implicit conclusion that a lawyer’s decision to put up a defense in a disciplinary proceedings — whether by disputing evidence against him or refusing to concede whatever inferences the State Bar argues may be drawn therefrom — is not always an aggravating factor that counsels imposition of harsher discipline. Further, this Court agrees that a two-year suspension from the practice of law is a sufficient sanction for Meyers’s conduct in this case. See In the Matter of Moore, 300 Ga. 407 (792 SE2d 324) (2016) (one-year suspension with conditions for violations of Rules 3.3, 4.1, and 8.4 (a) (4) where attorney failed to serve opposing party with pleadings, falsely stated in certificates of service that he had done so, misrepresented communications with the opposing party, denied wrongdoing in the disciplinary proceedings, and expressed neither remorse nor acceptance of responsibility); In the Matter of Reddick-Hood, 296 Ga. 95 (764 SE2d 416) (2014) (three-year suspension with conditions for violations of various Rules including 1.4, 8.1, and 8.4 (a) (4), despite prior disciplinary history, where attorney provided restitution and expressed remorse and other mitigating factors were present); In the Matter of Lang, 292 Ga. 894 (741 SE2d 152) (2013) (accepting petition for voluntary discipline and imposing a 12-month suspension with conditions — while recognizing substantial mitigating circumstances — for violations of Rules 1.4, 1.15 (II), and 4.1 based on misuse of trust account and prolonged effort to deceive client and opposing counsel); In the Matter of Wright, 291 Ga. 841 (732 SE2d 275) (2012) (public reprimand and six-month suspension where attorney violated Rules 3.3 and 8.4 by making false statements to the Court of Appeals and continued to deny 8 wrongdoing throughout the disciplinary proceedings). Accordingly, John F. Meyers hereby is suspended from the practice of law in the State of Georgia for a period of two years. Because there are no conditions on Meyers’s reinstatement other than the passage of time, there is no need for him to take any action either through the State Bar or through this Court to effectuate his return to the practice of law. Instead, the suspension based on this opinion will take effect as of the date this opinion is issued and will expire by its own terms two years later. Meyers is reminded of his duties pursuant to Bar Rule 4-219 (c).
Two-year suspension. All the Justices concur.
1 In-house counsel testified that Meyers initially had agreed to write off the cost of those services as “client development,” then came back to in-house counsel saying that he needed to recoup the fees somehow. Meyers denies ever agreeing to write off the fees. It does not appear that the special master resolved this dispute.
2 Ultimately, in-house counsel was allowed to voluntarily surrender his license to practice law in Georgia. See In the Matter of DiTano, 293 Ga. 79 (743 SE2d 427) (2013).
3 In its formal complaint, the State Bar avers that Meyers paid the firm $95,310.31 — $38,055.73 for improper billings that the client had paid, $55,295.88 for the firm’s write-off of time that had been billed to the client but not paid, and $1,958.70 for the firm’s write-off of work that had not been billed.
4 The Review Panel distinguished In the Matter of Majette, 295 Ga. 4 (757 SE2d 114) (2014) on the ground that Majette involved the purposeful submission of wholly unsupported and materially misleading time sheets and invoices to her client, misrepresenting her hours and fees to a court, creating inflated invoices for work after the fact despite the failure to maintain contemporaneous time records, failing to credit retainer fees to a client’s account, charging a client for attending a CLE seminar unrelated to the client’s case, protracting settlement of the client’s case by filing an unsupportable lien against the client, and refusing to admit the wrongful nature of her conduct or to express remorse. It distinguished In the Matter of Friedman, 270 Ga. 5, 6-7 (505 SE2d 727) (1998), as involving an attorney’s failure to disclose to the bankruptcy court the payment of $1,500 in attorney fees, which was prohibited and illegal under bankruptcy rules, his submission to the bankruptcy court of documents riddled with other falsehoods and misrepresentations meant to mislead the court, and his fabrication during the disciplinary proceedings of information about the involvement of his associate. It distinguished In the Matter of Mays, 269 Ga. 100 (495 SE2d 30) (1998), as involving the purposeful misrepresentation of facts to a client and to disciplinary authorities by an attorney with a significant prior disciplinary history. It distinguished In the Matter of Shehane, 276 Ga. 168 (575 SE2d 503) (2003), as involving a lawyer who had fabricated documentary evidence to deceive the Investigative Panel. Finally, it distinguished In the Matter of Davis, 290 Ga. 857 (725 SE2d 216) (2012), in that the lawyer there provided what the Panel termed a “factually inaccurate” response in a disciplinary proceeding — to the effect that she was present in court when she was not — that was refuted by the client and several witnesses.
In the Supreme Court of Georgia
Decided: December 11, 2017
IN THE MATTER OF APRIL DABNEY-FROE.
This disciplinary matter is before the Court on a petition for voluntary surrender of license filed by respondent April Dabney-Froe (State Bar No. 202987) pursuant to Bar Rule 4-227 (b) (2) before the filing of formal complaints on four underlying grievances.
In her petition, Dabney-Froe, who has been a member of the State Bar since 2000, admits that on multiple occasions she failed promptly to give clients an accounting of settlement proceeds, disburse settlement funds, and/or pay medical bills in her clients’ cases. She acknowledges that by these failures she violated Georgia Rule of Professional Conduct 1.15 (I) on more than one occasion, but asserts that she has now properly accounted to each client who filed a grievance for the total amount due from his or her respective settlement. Dabney-Froe acknowledges that the maximum penalty for a single violation of Rule 1.15 (I) is disbarment and prays that the Court accept her petition for voluntary surrender of her license. The Bar responds that Dabney-Froe’s petition includes admissions of fact sufficient to authorize the imposition of the discipline requested and that acceptance of the petition is in the best interests of the Bar and the public.
Having reviewed the record, the Court agrees that acceptance of Dabney-Froe’s petition for the voluntary surrender of her license, which is tantamount to disbarment, is in the best interests of the Bar and the public. Accordingly, the name of April Dabney-Froe is hereby removed from the rolls of persons entitled to practice law in the State of Georgia. Dabney-Froe is reminded of her duties under Bar Rule 4-219 (c).
Voluntary surrender of license accepted. All the Justices concur.
In the Supreme Court of Georgia
Decided December 11, 2017 S17Y1988.
IN THE MATTER OF NOLEN ARTHUR HAMER.
This disciplinary matter is before this Court on the report of the special master,1 who recommends the disbarment of Nolen Arthur Hamer (StateBar No. 320360). This report resulted from the proceedings associated with the Bar’s filing of a formal complaint against Hamer, who has been a member of the Bar since 1989, after this Court rejected his petition for voluntary discipline, in which he sought a Review Panel reprimand as sanction for his conduct. See In the Matter of Hamer, 300 Ga. 70 (792 SE2d 707) (2016). As we recounted in our opinion rejecting Hamer’s petition, the facts underlying this matter are:
As to State Disciplinary Board (“SDB”) Docket No. 6813, Hamer admitted that a client retained him to file a divorce action on her behalf, which he did, but that he thereafter took virtually no action to advance the case for several months despite inquiries from the client and opposing counsel; that he did not act as diligently as he should have in arranging mediation of the case; that following mediation, he failed to draft the final order after stating he would do so; that he did not act to schedule a final hearing; that throughout the representation, he delegated most of the communication with the client to his non-lawyer assistant; that even after the client herself obtained a file-stamped request for a hearing, Hamer failed to serve the request on opposing counsel, and as a result, opposing counsel did not appear at the scheduled hearing; that at the hearing, Hamer and the client had an oral dispute in the presence of the judge; that Hamer erroneously included a statement in his written notice of intent to withdraw as the client’s counsel that a specific motion had been filed when it had not been filed; and that the client obtained her final divorce decree with other counsel.
As to SDB Docket No. 6814, Hamer admitted that another client retained him to file an uncontested divorce; that he did not have a trust account and deposited the client’s cash payments in his firm’s operating account; that he delegated most of the communication with the client to his non-lawyer assistant; that the client made several inquiries about the court date for her case, and the evening before the scheduled court date, Hamer’s non-lawyer assistant sent a text to the client stating that the court date had been moved; that the next day, on December 17, 2014, the client met with Hamer, and Hamer told her that her husband’s refusal to sign a settlement agreement meant that the case was contested, would take longer, and would cost more but that he would work to bring the case to conclusion; that about a week later, on December 24, 2014, Hamer received an email from the court stating that the case had been placed on an uncontested calendar for January 6, 2015; that neither he nor his assistant tried contacting the client to notify her of the January 6, 2015 setting; that on January 6, 2015, Hamer’s non-lawyer assistant tried unsuccessfully to contact the client and then sent her a text; that the client stated she tried unsuccessfully to call Hamer’s office in response to the text on January 6, 2015; that a few days later, the client informed Hamer that she had been traveling out of the country from December 24, 2014 until January 9, 2015 and had previously informed him of her travel plans at their December 17, 2014 meeting; that Hamer tried unsuccessfully to persuade the judge to reopen the case but it was dismissed for want of prosecution on January 14, 2015; that he offered to file a new case for the client if she would pay the court filing fee but she refused and demanded a refund, which Hamer declined to provide.
Regarding SDB Docket No. 6815, Hamer admitted that a third client retained him to represent her in a legitimation and custody action and paid half of his fee upfront; that after successfully defending the client in an emergency hearing, he thereafter delegated communication with her to his non-lawyer assistant; that over the next few months, both he and his assistant failed to adequately respond to the client’s requests to speak or meet with them, failed to maintain reasonable communication with the client, and failed to adequately and accurately inform the client about the status of her case; that he did not serve written discovery in the case; that he failed to adequately communicate with the client regarding the written discovery served by opposing counsel and failed to file any responses on the client’s behalf; that he filed a motion to withdraw from representation but failed to give the client prior notice of his intent to withdraw or to serve her with a copy of the motion to withdraw; that the client learned of the withdrawal after entry of an order permitting withdrawal; and that the client requested a partial refund of the fee, which Hamer declined to provide.
Hamer, 300 Ga. at 70-71.
The special master found that Hamer’s conduct in SDB Docket No. 6813 violated Rules 1.2, 1.3, 1.4, and 1.16 (d) of the Georgia Rules of Professional Conduct. As to SDB Docket No. 6814, the special master found Hamer’s conduct to have violated Rules 1.3, 1.4, 1.15 (II) (a), 1.16 (d), 3.2 , and 5.3 (b). As to SDB Docket No. 6815, the special master found that Hamer violated Rules 1.2, 1.3, 1.4. 1.5 (a), 1.16 (d), 3.2, and 8.4 (a) (4). The maximum sanction for a violation of Rules 1.2, 1.3, 1.15 (II) (a), 5.3, and 8.4 (a) (4) is disbarment, and the maximum sanction for a violation of Rules 1.4, 1.5, 1.16, and 3.2 is a public reprimand.
In his report, the special master notes that this Court looks to the ABA Standards for Imposing Lawyer Sanctions for guidance in determining the appropriate sanction, see In the Matter of Morse, 266 Ga. 652 (470 SE2d 232) (1996), and he concludes — based on the factors enumerated in ABA Standards 4.41 (b), 4.41 (c), 4.61, 4.12, and 7.1, respectively — that disbarment is appropriate in this matter because Hamer knowingly failed to provide services to a client, engaged in a pattern of neglect of client matters, knowingly deceived a client with the intent to benefit himself, dealt improperly with client property, and engaged in conduct in violation of his duties as a lawyer with the intent to benefit himself. In aggravation of discipline, the special master notes that Hamer’s conduct demonstrates a pattern of misconduct consisting of multiple offenses, that he obstructed the disciplinary proceeding in bad faith, and that he has substantial experience in the practice of law. Hamer did not respond in this Court to the filing of the special master’s report.
Having reviewed the record, we conclude that disbarment is the appropriate sanction in this matter. Accordingly, it is hereby ordered that the name of Nolen Arthur Hamer be removed from the rolls of persons authorized to practice law in the State of Georgia. Hamer is reminded of his duties pursuant to Bar Rule 4-219 (c).
Disbarred. All the Justices concur.
1 We appointed Thomas L. Holder as special master in this matter.