PER
CURIAM.
This
Court rejected the first petition for voluntary discipline of
Shannon Briley-Holmes (State Bar No. 447679), which sought a
one-year suspension with conditions on reinstatement for her
admitted violations of the disciplinary rules in representing
seven clients. See In the Matter of Briley-Holmes,
300 Ga. 648 (797 S.E.2d 123) (2017). The State Bar then
issued a formal complaint, and she filed a second petition
for voluntary discipline, which she later amended. In her
amended second petition, she admitted violating the
disciplinary rules in representing 11 clients in unrelated
matters over a period of almost three years. She requested a
suspension ranging from two to five years with conditions on
reinstatement but said that she would accept a more severe
sanction. Special Master Margaret Gettle Washburn held a
lengthy hearing, at which it was made clear that
Briley-Holmes would accept disbarment as a sanction for her
misconduct.
In a
68-page report and recommendation, the special master
recommends that we accept the amended second petition and
impose a five-year suspension with conditions on
reinstatement, and neither the State Bar nor Briley-Holmes
filed exceptions to the special master's report. However,
as explained below, the appropriate sanction for
Briley-Holmes's misconduct is disbarment. Because the
record indicates that she is willing to accept disbarment,
and because "[a] voluntary surrender of license is
tantamount to disbarment, " Bar Rule 4-110 (f), we
construe her amended second petition as a petition for
voluntary surrender of license, which we accept.
As
recounted by the special master, Briley-Holmes has admitted
the following facts. In approximately June 2013,
Briley-Holmes agreed to represent the first client pro bono
in a civil service appeal challenging his dismissal from the
Atlanta Police Department. After losing that appeal,
Briley-Holmes agreed to pursue the next step by filing a
petition for certiorari in the Superior Court. However, she
miscalendared the filing deadline, the petition was filed
late, and the Superior Court dismissed the petition with
prejudice. The client then paid Briley-Holmes $2, 000 to
pursue an appeal to this Court. She filed a notice of appeal
and began work on the matter, but the representation ended
before anything else was filed. Meanwhile, the client's
POST certification was revoked. Briley-Holmes agreed to
represent him in an attempt to restore the certification for
$750 plus filing fees. The client paid her approximately
$600, and she filed the paperwork necessary to obtain a
hearing, including a $150 filing fee. She declined the
client's request to accept payment of the balance owed on
the certification case from the $2, 000 that the client had
paid her to handle the appeal in the civil service case.
Briley-Holmes missed a hearing in the certification case,
resulting in the dismissal of that case. The special master
concluded that Briley-Holmes violated Georgia Rule of
Professional Conduct 1.3 by failing to timely file the
petition for certiorari in the civil service case, which
resulted in the dismissal of the petition, and by missing the
scheduled hearing in the certification case, which resulted
in the dismissal of that case.[1]
In
March 2014, the second client hired Briley-Holmes to
represent him in a child custody case. She initially
communicated with the client, but after the client hired an
investigator at her request, she failed to respond to the
client's communications about this development. For a
period of two months, Briley-Holmes failed to respond to more
than one email, text, or telephone call from the client about
the case. She eventually emailed the client to let him know
that the complaint was overnighted to a process service
company in Florida, but she did not follow through with the
case, and it was later dismissed. The special master
concluded that Briley-Holmes violated Rule 1.3 by failing to
follow through with the case, which caused it to be
dismissed, and violated Rule 1.4 by failing to respond in a
timely manner to the client's communications about the
case.[2]In July 2014, Briley-Holmes represented the
third client in divorce proceedings. Under the final judgment
and decree of divorce, Briley-Holmes was to complete a
qualified domestic relations order (QDRO) for the
ex-husband's 401 (k) account to be awarded to the client
within 60 days. Briley-Holmes did not know how to prepare a
QDRO and got assistance from opposing counsel. Briley-Holmes
drafted a QDRO but did not timely forward it to her client or
to opposing counsel. She then failed to respond to her
client's emails for two years because she does not check
the email address that the client was using. The special
master concluded that Briley-Holmes violated Rule 1.3 by not
submitting the completed QDRO to opposing counsel and
violated Rule 1.4 by failing to respond in a timely manner to
the client's emails about the case.
In June
2015, the family of the fourth client hired Briley-Holmes and
her law partner, Jennifer Wright, to represent the client in
a criminal case.[3] Briley-Holmes promptly visited the client
in prison in South Carolina for several hours and then filed
an entry of appearance and preliminary motions. She never
visited the client again and had great difficulty
communicating with his family because they did not speak
English. Briley-Holmes appeared at the first calendar call of
the case. Wright was supposed to attend the second calendar
call but failed to do so and did not inform Briley-Holmes or
the court in advance. Briley-Holmes immediately notified the
judge that she was sick on that day and unaware that Wright
was not going to attend the calendar call. Neither
Briley-Holmes nor Wright appeared at the next two calendar
calls. During that time, Wright allegedly had begun acting in
an irrational and destructive manner, doing such things as
cutting off Briley-Holmes's cell phone on the law
firm's business plan and terminating Briley-Holmes's
access to the firm's online case management database.
Neither Briley-Holmes nor Wright attended the fifth court
date in the case, and the client's family terminated the
representation. The special master concluded that
Briley-Holmes violated Rule 1.3 by failing to attend
scheduled court appearances and by failing to ensure that all
necessary actions in the case were taken.
Also in
June 2015, the fifth client hired Briley-Holmes to represent
him in a criminal case in certain pre-warrant matters and to
appear at a pre-warrant hearing, although Briley-Holmes later
discovered that there was no such hearing because an assigned
detective had taken over the case. Briley-Holmes advised the
client of his Fifth Amendment right to remain silent and
asked him not to make any statements to law enforcement
without her being present. She tried to contact the assigned
detective to set up an interview but did not reach him, and
she understands that the detective tried to reach her as
well, although she has no recollection of that fact.
Briley-Holmes did not follow through and arrange an
interview, which eventually resulted in the client's
arrest. When Briley-Holmes learned of the arrest, she
immediately filed an entry of appearance, a motion for bond,
and all preliminary motions associated with representation in
a criminal case even though this work was outside the
original scope of the representation. At the bond hearing,
she learned that the client had hired new counsel. The
special master concluded that Briley-Holmes violated Rule 1.3
by failing to arrange an interview with the detective, which
resulted in her client's arrest and a period of
incarceration.
In
September 2015, Briley-Holmes received a $1, 500 retainer to
represent the sixth client in obtaining a temporary
protective order (TPO) and a divorce. Briley-Holmes obtained
the TPO, and a hearing was set on whether to convert the TPO
to a 12-month order. However, the TPO was never served on the
opposing party, and opposing counsel was going to move to
dismiss the TPO on this ground. Shortly before the hearing
date, Briley-Holmes and opposing counsel reached an oral
agreement whereby opposing counsel's client would consent
to a 12-month order. Although the agreement was not reduced
to writing and executed, Briley-Holmes told her client on the
day before the hearing that an agreement had been reached and
that it was not necessary for the client to attend the
hearing. Briley-Holmes did not notify the court that an
agreement had been reached, as opposing counsel had agreed to
obtain his client's signature and submit the agreement to
the court. Briley-Holmes sent a follow-up email to opposing
counsel and called the State Bar ethics hotline to make sure
that the agreement was proper and that she had behaved
reasonably. The opposing party refused to consummate the
agreement, asserting a material change in circumstances
involving the behavior of the parties' son, so opposing
counsel never submitted the agreement to the court. Neither
Briley-Holmes nor her client appeared at the hearing, and the
court dismissed the TPO. The client was upset despite being
told that it was her son's behavior that prevented
consummation of the agreement, and the client terminated the
representation. The special master concluded that
Briley-Holmes violated Rule 1.3 when, without having a
written agreement, she told her client not to appear at the
hearing, did not appear herself, did not notify the court of
the oral settlement, and did not confirm with opposing
counsel the consummation of the agreement.
In
November 2015, the seventh client contacted Briley-Holmes
about possible representation to contest disciplinary action
proposed to be taken against her son by his high school. No
representation agreement was signed at that time. The client
contacted Briley-Holmes again, said that the school was
imposing a ten-day suspension, and said that she wanted to
appeal. The following month, the client paid Briley-Holmes a
flat fee of $3, 000, which Briley-Holmes said would make her
"available at every single step . . ., including all
meetings, warrant issuance hearings, suspension appeals,
etc." Briley-Holmes contacted the school twice in
unsuccessful efforts to obtain information about the case and
arrange a meeting. On the second occasion, Briley-Holmes was
told that the school's legal counsel would contact her.
The client raised specific concerns about her son's
circumstances more than once, but Briley-Holmes said that
there was little she could do until she received the
information that she requested from the school. The
school's legal counsel contacted Briley-Holmes more than
a month after the client retained her and explained that the
school could not release the information requested without an
executed release of information form under the federal Family
Educational Rights and Privacy Act. Briley-Holmes sent the
required form to the client, the client executed and returned
it, and Briley-Holmes promptly forwarded the executed form to
the school's legal counsel. A week later, the client
terminated the representation. Although Briley-Holmes had not
performed all the work that she had said that the flat rate
would cover, she did not refund any of the fee that the
client paid her. The special master concluded that
Briley-Holmes violated Rule 1.16 by failing to promptly
refund the unearned portion of the fee upon termination of
the representation.[4]
In
December 2015, the eighth client hired Briley-Holmes to
represent him in a civil case, paying her a $3, 000 retainer
to be billed against at $200 per hour until exhausted. When
the retainer ran out, Briley-Holmes asked for an additional
$1, 800 to continue work on the case. The client said that he
thought that the case could be settled for $4, 000 total,
including the $3, 000 retainer that he had paid to
Briley-Holmes, but he paid Briley-Holmes an additional $1,
000 anyway. Briley-Holmes missed a court date because she was
on jury duty but failed to present documents confirming that
fact to her client or to the court. Two months later, she
missed a second court date, which the client also missed
because Briley-Holmes failed to tell him about it, and the
court issued an incarceration order for the client.
Throughout the representation, Briley-Holmes failed to answer
several texts and telephone calls from the client. When the
client obtained new counsel, Briley-Holmes failed to forward
the client's file. The special master concluded that
Briley-Holmes violated Rule 1.3 by missing two court dates,
violated Rule 1.4 by failing to respond in a timely manner to
the client's text messages and telephone calls about the
case and by failing to notify him of the second court date,
and violated Rule 1.16 by failing to forward the client's
file to his new attorney.
In
January 2016, the ninth client retained Briley-Holmes to
represent her in seeking a child custody modification order
and paid her a flat fee of $4, 200. Briley-Holmes planned to
attend a scheduled hearing but got into an automobile
accident on the way to court. Briley-Holmes had her assistant
notify the court of the reason for her absence, and court
personnel said that the hearing had already been continued by
opposing counsel. Briley-Holmes told the client that she was
sending her a verification form and a financial affidavit
that evening, but the client said in follow-up emails that
she did not receive them. Briley-Holmes sent the client a
draft modification petition two days later, but the client
sent an email and a text terminating the representation.
Briley-Holmes did not refund any of the fee that the client
paid her. The special master concluded that Briley-Holmes
violated Rule 1.16 by failing to promptly refund the unearned
portion of the fee upon termination of the representation.
In
April 2016, the tenth client retained Briley-Holmes to seek
emergency temporary custody of her son and paid her a flat
fee of $2, 500. Briley-Holmes communicated extensively with
the client by telephone and email and drafted a petition for
modification and emergency petition that the client signed
and had notarized. The client accompanied Briley-Holmes to
the courthouse to file the documents, but no judge was
available to hear the emergency petition. Over the weekend,
the client decided not to proceed with the case and sent
Briley-Holmes a text message to that effect on Monday
morning. Briley-Holmes did not refund any of the fee that the
client paid her. The special master concluded that
Briley-Holmes violated Rule 1.16 by failing to promptly
refund the unearned portion of the fee upon termination of
the representation.
In late
April 2016, the eleventh client paid Briley-Holmes a $5, 000
retainer by credit card to represent her in a contempt and
custody modification matter. Late the next month, the client
terminated the representation and initiated a challenge to
the retainer payment with the credit card company, resulting
in the reversal of the payment into Briley-Holmes's
account. Briley-Holmes believed that the reversal was
unjustified, and a month later she filed a pro se civil
action against the client without confirming the status of
the credit card payment. By the time Briley-Holmes filed her
lawsuit, the credit card company had already reinstated the
full $5, 000 payment to her account. The special master
concluded that Briley-Holmes violated Rule 3.1 when,
representing herself pro se, she filed a civil action against
the client without first ensuring that the factual basis for
the action was valid.[5]
The
special master correctly noted 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 S.E.2d 52) (1995). See, e.g., In the
Matter of Lank, 300 Ga. 479, 482 (796 S.E.2d 252)
(2017). The special master recognized that ABA Standard 4.4,
which applies to violations of Rule 1.3, says that absent
mitigating circumstances, disbarment is generally appropriate
when a lawyer "knowingly fails to perform services for a
client and causes serious or potentially serious injury to a
client" or "engages in a pattern of neglect with
respect to client matters and causes serious or potentially
serious injury to a client." ABA Standard 4.41 (b), (c).
The special master found that Briley-Holmes knowingly
violated Rule 1.3 in her representation of seven clients and
engaged in a pattern of neglect with respect to client
matters and that her misconduct had caused at least three
clients serious injury, as two had their cases dismissed and
a third suffered arrest and a period of incarceration. The
special master thus concluded that under the ABA Standards,
disbarment was the presumptive appropriate sanction for the
Rule 1.3 ...