In the Matter of Ashutosh S. Joshi

883 S.E.2d 369, 315 Ga. 477

Opinion

315 Ga. 477 FINAL COPY

S23Y0155. IN THE MATTER OF ASHUTOSH S. JOSHI.

PER CURIAM.

This disciplinary matter is before the Court on the report and

recommendation of Special Master Patrick Longan, who

recommends that we accept the amended petition for voluntary

discipline submitted by respondent Ashutosh S. Joshi (State Bar No.

405375) after the filing of a formal complaint. See Bar Rule 4-227

(c). Joshi seeks the imposition of a six-month suspension, nunc pro

tunc to November 30, 2021, for his admitted violation of Rule 4.2 (a)

(providing that a lawyer who is representing a client in a matter

shall not communicate about the subject of the representation with

a person the lawyer knows to be represented by another lawyer in

the matter, unless the lawyer has the consent of the other lawyer or

is authorized to do so by law or court order), the maximum sanction

for a single violation of which is disbarment. However, Joshi’s petition does not admit to — or even meaningfully address — the

conduct alleged in the formal complaint, which appears to be

substantially more serious than the conduct to which Joshi does

admit. And although the Bar and the special master recommend

acceptance of Joshi’s petition, neither the Bar nor the special master

gives any indication that they have concluded that the conduct

charged in the formal complaint did not occur. Accordingly, we reject

Joshi’s petition and remand this matter with direction to resolve

whether these more serious matters — as well as an additional

matter gleaned from our review of the record — in fact occurred.

The formal complaint stated that Joshi, who has been a

member of the Bar since 1996, represented a client accused of

murder and other offenses. The case against the client, Kenneth

Jackson, who was allegedly the highest-ranking member of a gang

in Georgia, involved a shooting in which several women were injured

and an infant was killed. A co-conspirator pled guilty and agreed to

testify against Jackson. After the co-conspirator, who was

represented by attorney Brad Gardner, agreed to cooperate against

2 Jackson, he was moved away from Jackson and their placement at

the Georgia Diagnostic and Classification Prison to the Rockdale

County Jail. The co-conspirator’s location was kept confidential out

of concern for his safety.

The formal complaint goes on to allege that, prior to the trial,

the Assistant District Attorney filed a witness list showing the co-

conspirator as a witness and Gardner as his attorney. She served

that list on Joshi by e-mail on August 28, 2017. Later that same day,

Joshi traveled to the Diagnostic and Classification Prison and met

with Jackson. Joshi then traveled to the Rockdale County Jail. Joshi

had never represented the co-conspirator, and he allegedly knew

that the co-conspirator was represented by Gardner. Joshi did not

attempt to secure Gardner’s permission to meet with the co-

conspirator.

Upon arriving at the Rockdale County Jail, Joshi approached

the visitor registration desk and notified the intake deputy that he

was there to meet with the co-conspirator — whom he allegedly

identified as his client. The intake deputy reviewed the jail database

3 and noticed that, although it showed prior attorney visits for the co-

conspirator, Joshi had never visited him. After clarifying that Joshi

was, in fact, there to visit his “client,” the intake deputy notified the

supervisor for the co-conspirator’s housing pod that the co-

conspirator had an attorney visitor. But when the intake deputy

notified Joshi that there would be a short delay so that the pod could

be cleared, Joshi, unlike prior attorney-visitors, requested to have

the visit occur in the attorney visitation booth, which permitted

confidential conversation. Once the co-conspirator had been moved

to the attorney visitation booth, another officer escorted Joshi there.

Very shortly after Joshi entered the booth, the intake deputy

heard the co-conspirator pounding on the booth window, asking to

be removed because Joshi was not his attorney. After the co-

conspirator was removed and Joshi had exited the booth, officers

observed that the co-conspirator was extremely agitated and visibly

upset, stating that Joshi was Jackson’s attorney. After Joshi left the

facility, he e-mailed Gardner to inform him of his visit with the co-

conspirator, and Gardner told Joshi not to visit the co-conspirator

4 again. Joshi thereafter sent correspondence to the co-conspirator

and Gardner reviewing the substance of his meeting with the co-

conspirator.

The formal complaint charged Joshi with having violated Rules

4.1 (a) (providing that, in the course of representing a client, a

lawyer shall not knowingly make a false statement of material fact

or law to a third person) and 8.4 (a) (4) (providing that a lawyer shall

not engage in professional conduct involving dishonesty, fraud,

deceit or misrepresentation) for having knowingly misrepresented

to staff at the Rockdale County Jail that he was the co-conspirator’s

attorney. The maximum sanction for a single violation of either of

those Rules is disbarment. The complaint also charged Joshi with a

violation of Rule 4.2 (a) for having met with the co-conspirator while

knowing that the co-conspirator was represented, without

permission from the co-conspirator’s counsel.

Joshi filed an initial and amended answer to the complaint, the

parties engaged in discovery, and numerous depositions were taken.

Joshi also filed a motion for summary judgment, arguing, in essence,

5 that he did not possess actual knowledge of the fact that the co-

conspirator was represented by Gardner prior to meeting with him

and did not misrepresent to personnel at the Rockdale County Jail

that he was the co-conspirator’s attorney, such that he had not

committed any of the charged Rules violations.

On November 12, 2021, a hearing was held on Joshi’s motion

for summary judgment, and the special master entered an order

denying that motion on November 17, 2021. The special master first

considered the alleged Rule 4.2 (a) violation, noting that the only

issue controlling whether there had been a violation was whether

Joshi knew at the time at which he met with the co-conspirator that

he was represented. The special master pointed to Rule 1.0 (m),

which provides that, where a rule requires knowledge on the part of

the disciplinary respondent, it must be actual knowledge, but that

the respondent’s knowledge may be inferred from the circumstances.

The special master stated that there were circumstances in the

record from which an inference could be drawn that Joshi knew that

6 the co-conspirator was represented in advance of their meeting,

which created a genuine issue of material fact.

Turning to the alleged violations of Rules 4.1 (a) and 8.4 (a) (4),

the special master acknowledged that Joshi denied making any false

statement of fact or engaging in any dishonesty, deceit, or

misrepresentation in connection with his visit to the jail, but noted

that a member of the jail staff had testified that Joshi had falsely

told her that he represented the co-conspirator. The special master

concluded that, although Joshi had argued that this testimony was

not reliable, issues of reliability and credibility could not be resolved

on a motion for summary judgment.

On December 1, 2021, the special master entered an order

stating that he had been informed by counsel for Joshi and the Bar

that the parties were “working together on the terms of a Petition

for Voluntary Discipline” that Joshi intended to submit. Joshi then

filed such a petition, but made no attempt to address directly the

alleged Rules violations charged by the Bar’s formal complaint.

Instead he highlighted that he did not enter an appearance on

7 Jackson’s behalf until 15 months after the co-conspirator had pled

guilty, and that his paralegal’s research indicated that the co-

conspirator’s case was closed, assertions which appear to have been

calculated to imply that Joshi would have had no reason to suspect

that the co-conspirator was represented at the time of their meeting.

Joshi also did not attempt to address directly the testimony on which

the Bar’s charged Rules violations were based — instead, for

instance, condensing his account of his interactions with the intake

deputy to having notified her “that he was an attorney and was there

to visit [the co-conspirator].” Joshi did, however, admit to a single

violation of Rule 4.2 (a) for having sent to the co-conspirator the

post-meeting correspondence reviewing the substance of his meeting

with the co-conspirator. For this single Rule 4.2 violation, Joshi

sought a three-month suspension, nunc pro tunc to the November

30, 2021 date on which he ceased practicing law.1

1 It is not altogether clear from the record whether Joshi merely ceased

practicing law in anticipation of discipline being imposed on this matter, or if he intends to cease practicing law altogether. For example, in his recitation of alleged mitigating factors, Joshi stated that “[i]n the event Mr. Joshi decides

8 The Bar filed a response to Joshi’s petition, recommending that

it be accepted. The Bar also did not address directly the matters at

issue in the formal complaint, although it made statements that

appear to imply that it continued to believe that those violations had

occurred. For example, the Bar’s response described at length the

circumstances of Gardner’s continued representation of the co-

conspirator; reciting that, several weeks before Joshi’s meeting with

the co-conspirator, the DA’s office had served “discovery to all

attorneys of record that included a lengthy recording of [the co-

conspirator’s] interview that implicated Defendant Jackson in the

murder and other crimes, [the] plea agreement and requirement for

truthful testimony” and that “listed Mr. Gardner’s office address as

the address for [the co-conspirator] on discovery for all attorneys of

record.”

to practice law again, he will ensure that he does not reach out to anyone who he learns to be represented by counsel without prior permission of counsel for the represented individual.” Joshi’s attached affidavit of law practice closure provided no additional insight; the Bar’s website indicates only that Joshi is currently ineligible to practice because of unpaid license fees.

9 The special master then entered an order denying Joshi’s

initial petition. The special master briefly recited the allegations of

the formal complaint and noted that the petition did not admit to

those violations and instead admitted to a violation not identified in

the formal complaint. Nevertheless, the order stated that “[t]he

Petition for Voluntary Discipline complies with Rule 4-227 (a)[2] in

that it admits conduct that is sufficient to authorize the imposition

of discipline.” The order proceeded to analyze whether the petition

sought appropriate discipline, concluding that it did not, because (in

the special master’s view) any discipline less than a six-month

suspension would not be appropriate.

Joshi next submitted an amended petition, essentially the

same except for changing the requested nunc pro tunc suspension to

six months. The Bar again recommended acceptance of the petition.

In its response, the Bar asserted that, although Joshi’s initial and

amended petitions did not admit to the violations alleged in the

2 Rule 4-227 (a) provides that “[a] Petition for Voluntary Discipline shall

contain admissions of fact and admissions of conduct in violation of Part IV, Chapter 1 of these Rules sufficient to authorize the imposition of discipline.”

10 formal complaint, Rule 4-227 (a) did not require him to do so, and

that the admissions of his petition were sufficient to authorize the

imposition of discipline.

The special master recommended acceptance of the amended

petition. First, regarding the alleged violations of Rules 4.1 (a) and

8.4 (a) (4), the special master noted that, although Joshi testified

that he did not represent himself to Rockdale County Jail personnel

as the co-conspirator’s attorney, there was evidence to the contrary.

The intake deputy, for example, testified that Joshi twice identified

himself as the co-conspirator’s attorney. And another member of the

jail staff testified that, at the time of Joshi’s visit, there was a policy

in place at the jail that restricted visits by attorneys such that

inmates could only be visited by attorneys who represented the

inmate or sought to represent the inmate — suggesting Joshi would

have had to hold himself out as the co-conspirator’s attorney to visit

him. The special master did not resolve this factual dispute. Second,

and as to the Rule 4.2 (a) violation alleged in the formal complaint

(as opposed to the separate Rule 4.2 (a) violation to which Joshi

11 admitted), the special master stated that “there were circumstances

in the record from which a factfinder might infer that Mr. Joshi

knew that [the co-conspirator] was represented at the time of their

meeting.” The special master acknowledged that the prosecutor in

Joshi’s client’s case testified that: (1) she made discovery materials

available to Joshi on August 7, 2017, three weeks before the meeting

at the Rockdale County Jail; (2) that these materials revealed that

the co-conspirator was a cooperating witness; and (3) that, in her

ordinary practice, she would have mailed the discovery materials to

Joshi if Joshi did not pick them up. The special master further noted

that Joshi had conceded that if he had known that the co-conspirator

was a cooperating witness, he would have had reason to know that

the co-conspirator was represented by counsel. But the special

master acknowledged that Joshi denied knowing that the co-

conspirator was a cooperating witness before August 28, 2017, and

stated that there was no documentation in the record to show that

Joshi received the discovery materials mentioned in the August 7 e-

mail or that they were mailed to him.

12 Despite the Bar and the special master’s recommendation to

accept Joshi’s petition for voluntary discipline — which, as discussed

below, we find puzzling — it is clear that the petition is due to be

rejected. The violations alleged in the formal complaint are

substantially more serious than the single, comparatively trivial

violation to which Joshi has admitted. Joshi is accused of knowingly

communicating directly with a represented co-conspirator and lying

to jail staff to make that happen — and yet the only thing he admits

is that he should not have, after the underlying events occurred

(which, in his telling, did not involve either of the wrongs alleged),

sent a letter to the co-conspirator memorializing the contents of

their conversation. And nothing before us gives any indication that

either the Bar or the special master has concluded that those more

serious violations did not occur.

The record contains additional evidence that heightens our

concerns. During an interview with the District Attorney’s office

following the meeting with Joshi, the co-conspirator repeatedly

asserted that, after Joshi had identified himself to the co-conspirator

13 as Jackson’s attorney, Joshi had told the co-conspirator “let me help

you, you need my help,” and the co-conspirator had told Joshi that

there was nothing he could do for him. According to the co-

conspirator, Joshi got angry, asked the co-conspirator when he was

being moved back to his prior facility, and made a threatening

gesture at the co-conspirator — which the co-conspirator interpreted

as conveying a threat to his life. Given that the co-conspirator had

been moved to the Rockdale County Jail because of concerns over his

safety with regard to the potential for retribution from Joshi’s client

and his gang associates, this testimony is profoundly troubling. If

such conduct occurred as the co-conspirator alleged, it would appear

not only to provide a basis for additional, substantial discipline

under the Rules of Professional Conduct, but also to raise a question

about whether criminal witness intimidation occurred.

Given all of this, we find it difficult to know what to make of

the Bar and the special master recommending that we accept Joshi’s

petition for voluntary discipline. Some of the comments made by the

Bar and the special master, particularly those regarding Joshi’s

14 compliance with Rule 4-227 (a), appear to reflect a belief that they

had no choice but to accept Joshi’s petition, since it adequately

acknowledged conduct on the basis of which discipline could be

imposed. We are not aware, however, of any authority compelling

the acceptance of a petition admitting to substantially less serious

conduct than that charged in a related formal complaint — a notion

that would significantly undermine the disciplinary process — and

the Rules do not appear to support such a construction. See

generally Rule 4-227 (c) (3) (providing that, where a petition for

voluntary discipline has been filed subsequent to the filing of a

formal complaint, that petition may be rejected by a special master

“for such cause or causes as seem appropriate to the Special Master,”

which “may include but are not limited to” the specific findings noted

in (c) (3) (i-iv)). Alternatively, it may be that the Bar felt it was

unnecessary to fully resolve the issues from the formal complaint for

some other reason, like the possibility that Joshi did not intend to

resume the practice of law. See n.1, supra. If so, then the Bar should

explain so and explain why we can be confident that Joshi will not

15 change his mind at some point in the future. For the moment,

though, there does not appear to be anything in the record

precluding Joshi from resuming the practice of law. Indeed, given

his request to have the proposed six-month suspension imposed

nunc pro tunc to November 30, 2021, and the lack of conditions

proposed as to his reinstatement, Joshi could resume practicing law

immediately after the issuance of an opinion imposing the requested

suspension.

Accordingly, given that this matter, as currently presented to

us, fails to resolve the questions of whether the serious allegations

presented in the formal complaint occurred as alleged and whether

Joshi threatened his client’s co-conspirator, Joshi’s petition for

voluntary discipline is rejected.3 Although we express no view at

3 Our concerns regarding this matter are heightened in the light of the

fact that Joshi has been sanctioned at least once before. In 2009, this Court accepted Joshi’s petition for voluntary discipline and imposed a public reprimand for his admitted violation of Rule 1.11 (providing that a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government entity consents after consultation). See In the Matter of Joshi, Case No. S09Y0429 (Feb. 23, 2009). Specifically, in that matter, Joshi admitted that, shortly after representing the State in its criminal

16 this stage regarding the merits of these unresolved questions, this

matter is remanded with direction that “[a]ny future attempts to

resolve [Joshi’s] disciplinary matter should address this additional

conduct and the question of whether it provides any basis for

discipline, and, if so, at what level of sanction.” See In the Matter of

Hine, 314 Ga. 70, 76 (875 SE2d 716) (2022).

Petition for voluntary discipline rejected. All the Justices concur, except LaGrua, J., disqualified.

Decided January 18, 2023.

Petition for voluntary discipline.

Paula J. Frederick, General Counsel State Bar, William D.

NeSmith III, Deputy General Counsel State Bar, Jenny K.

Mittelman, Wolanda R. Shelton, Assistant General Counsel State

Bar, for State Bar of Georgia.

Chandler Law, Douglas V. Chandler, for Joshi.

prosecution of a defendant, he spoke with the defendant’s family about representing the defendant on appeal and that during those discussions he stated that certain witnesses at the defendant’s trial had testified falsely.