In the Matter of Brian Walton Whiteside

888 S.E.2d 541, 316 Ga. 468

• Court: Supreme Court of Georgia
• Decided: May 31, 2023
• Docket: S23Y0579
• Status: Published

Opinion

316 Ga. 468 FINAL COPY

S23Y0579. IN THE MATTER OF BRIAN WALTON WHITESIDE.

PER CURIAM.

This disciplinary matter is before the Court on the report and

recommendation of special master Jo Carol Nesset-Sale, who

recommends that the Court accept the amended petition for voluntary

discipline filed by respondent Brian Walton Whiteside (State Bar No.

756040) after the filing of a formal complaint, see Bar Rule 4-227 (c),

and impose a three-month suspension as discipline for his violation of

various Georgia Rules of Professional Conduct (“GRPC”), see Bar Rule

4-102 (d), in two separate matters undertaken for the same client.

Neither the State Bar nor Whiteside has filed exceptions to the special

master’s report, and we agree that the imposition of a three-month

suspension is appropriate under the specific facts of this case.

According to the report and recommendation, Whiteside had a

career in law enforcement prior to becoming a member of the Bar in

1996, at which point he engaged in private practice, primarily representing defendants charged in criminal cases. In 2018, he was

elected as the Solicitor-General for Gwinnett County—a position he

held through January 1, 2023. Prior to his election, in January 2015,

Whiteside agreed to represent a friend who was in law enforcement in

a medical malpractice case that arose from the client’s December 2014

visit to the emergency room at Piedmont Newnan Hospital. In

February 2015, Whiteside sent a one-paragraph letter with the

salutation: “Piedmont Legal Staff,” demanding, on the client’s behalf,

five million dollars for “Grave Damage, Physical Harm, Mental Harm,

Sexual Dysfunction,” but including no date of medical treatment, no

information about the diagnosis or treatment, no names of the treating

professionals, and no explanation of how the client’s treatment at the

hospital caused the various general harms described. As noted, the

letter was not directed to any individual, and, although it stated that

it had been delivered by electronic mail “and/or” hand delivery, it bore

no e-mail address or physical address to which it was purportedly sent.

Whiteside did not charge the client for this work. After sending the

letter, Whiteside told the client that he had met with the hospital’s

lawyers over multiple days regarding the client’s claims, but he later 2 admitted to the client that the statement was untrue. Over the ensuing

months and years, the client made numerous requests for information

about his legal matter, but his requests went unanswered, and, finally,

in late 2018, he checked the court’s electronic docket and discovered

that no case had been filed on his behalf. He contacted Whiteside, who

responded by attempting to file a medical malpractice complaint in

Fulton County in December 2018, but Whiteside named the defendant

incorrectly and failed to include the expert affidavit required by OCGA

§ 9-11-9.1 (a). And, more importantly, the statute of limitation already

had expired on the client’s claims. Ultimately, the case was dismissed

in February 2019, but Whiteside did not advise the client of the

dismissal. Instead, the client only learned that his case had been

dismissed when he contacted the court and made an inquiry. The

special master noted Whiteside’s claim that he sent the names of

potential experts to the client so that he could hire one for the case,

but noted that there was no correspondence from Whiteside to the

client notifying him about the date that the statute of limitation would

expire or clearly advising him that his malpractice case depended upon

his obtaining an expert who could make the averments required by 3 OCGA § 9-11-9.1 (a). These failures, the special master concluded,

were the result of Whiteside not having an adequate understanding of

how to prosecute a medical malpractice claim.

In June 2015, Whiteside agreed to file and litigate a divorce

action on behalf of the same client for $450. Although Whiteside filed

the action in February 2016, he failed to serve the wife or to take any

other action with respect to the case. The client made multiple

requests for information about his divorce case, but Whiteside failed to

respond to any of those inquiries. In February 2019, the client texted

Whiteside once again asking about the status of the case and

Whiteside responded that he had been elected to be the Solicitor-

General and that he was looking for an attorney to handle the divorce

case, but Whiteside never found a new attorney and never withdrew

from the representation. Eventually, the client was forced to hire

substitute counsel to represent him in the divorce case.

Noting that Whiteside admitted all of the above facts and

acknowledged that he should have declined to represent the client,

particularly in the medical malpractice case, since he did not possess

the requisite skills or experience to handle the case, the special master 4 accepted Whiteside’s admission that, during the course of his

representation of the client in both the medical malpractice case and

in the divorce case, he violated Rules 1.1 (“lawyer shall provide

competent representation to a client” and “shall not handle a matter

which the lawyer knows or should know to be beyond the lawyer’s level

of competence without associating another lawyer who the original

lawyer reasonably believes to be competent to handle the matter in

question”), 1.3 (“lawyer shall act with reasonable diligence and

promptness in representing a client”), 1.4 (lawyer shall “reasonably

consult with the client”; “keep the client reasonably informed about the

status of [his] matter”; and “promptly comply with reasonable requests

for information”), 1.16 (d) (upon termination of representation, lawyer

shall take steps “to the extent reasonably practicable to protect a

client’s interests, such as giving reasonable notice to the client[ and]

allowing time for employment of other counsel”), 3.2 (“lawyer shall

make reasonable efforts to expedite litigation consistent with the

interests of the client”), and 8.4 (a) (4) (lawyer shall not “engage in

professional conduct involving dishonesty, fraud, deceit or

misrepresentation”) of the GRPC. The special master noted that the 5 maximum penalty for a violation of Rules 1.1, 1.3, and 8.4 (a) (4) is

disbarment, while the maximum penalty for a violation of Rules 1.4,

1.16 (d), and 3.2 is a public reprimand.

In evaluating the appropriate discipline, the special master first

acknowledged that this Court looks to the ABA Standards for Imposing

Lawyer Discipline (“ABA Standards”) for guidance in determining the

appropriate sanction to impose on a lawyer for his or her violations of

the GRPC, see In the Matter of Morse, 266 Ga. 652, 653 (470 SE2d 232)

(1996), and noted that under ABA Standards § 3.0, the factors to

consider in determining a sanction include the duty violated, the

lawyer’s mental state, the actual or potential injury caused by the

lawyer’s misconduct, and the existence of aggravating and/or

mitigating factors. The special master concluded that most of

Whiteside’s violations implicate the duties that lawyers owe to their

clients: diligence, competence, and candor. See ABA Standards §§ 4.4,

4.5, and 4.6. She noted that, with respect to Whiteside’s violations of

Rule 1.1, a suspension is generally appropriate when a lawyer engages

in an area of practice in which the lawyer knows he is not competent

and causes injury to the client. ABA Standards § 4.52. The special 6 master considered Whiteside’s admissions that he had no experience

in medical malpractice cases and that he should have at least

consulted an attorney with the requisite experience before accepting

the client’s medical malpractice case. She also considered the fact that

Whiteside’s numerous mistakes in prosecuting the case ultimately led

to the dismissal of the client’s lawsuit and to the loss of his right to

pursue legal relief for any damages he suffered.

With regard to Whiteside’s violations of Rules 1.3 and 3.2, the

special master recited ABA Standards § 4.42, which provides that

suspension is generally appropriate when a lawyer knowingly fails to

perform services for a client and causes injury or potential injury to a

client, or a lawyer engages in a pattern of neglect that causes injury or

potential injury. She recited that, here, Whiteside failed to file the

medical malpractice action within the statute of limitation and failed

to serve the defendant in the divorce case.1 The special master pointed

1 The special master recited Whiteside’s assertions that he met with the

client’s wife in December 2016, but she would not acknowledge the complaint; that his attempts to have her served failed; that the client reported that he received an occasional text or call from his estranged wife, who was periodically homeless; and that, although the wife stated that she would file something on her own with the court, she never did so.

7 out that, regardless of whether Whiteside knowingly abandoned the

divorce case or negligently failed to give it due attention, he knowingly

did not perform the services he had agreed to undertake, and held that

his failures in these cases constituted both a knowing failure to

perform necessary services for a client and a pattern of neglect of the

client’s legal matters.

Relating to the violations of Rule 1.4, the special master recited

ABA Standards § 4.63, which provides that a reprimand is generally

appropriate when a lawyer negligently fails to provide a client with

accurate or complete information and causes injury or potential injury

to the client. She then recounted that Whiteside failed to respond to

the client’s inquiries as to either of his cases; failed to explain the

statute of limitation applicable in the medical malpractice action; and

failed to inform the client that his malpractice action had been

dismissed. The special master determined that, giving Whiteside the

benefit of the doubt, these failures could be seen as negligent rather

than knowing or intentional, but that the violations were still serious

since confidence in the legal system is hurt when a client has to find

out on his own that his case had been dismissed and because the client 8 was injured as the result of Whiteside’s actions. With regard to the

violation of Rule 1.16 (d), the special master found that the duty

violated was one owed to the legal profession and that suspension was

the presumptive sanction when a lawyer knowingly engages in conduct

that is a violation of that duty and thereby causes injury or potential

injury to a client, the public, or the legal profession. See ABA

Standards § 7.2. She recited that, here, Whiteside failed to give his

client notice of his withdrawal from the divorce case, or to formally

withdraw from that representation. With regard to Whiteside’s

violation of Rule 8.4 (a) (4) by falsely telling his client that he had met

with the hospital’s lawyers, the special master found that Whiteside

violated his duty to his client to refrain from engaging in deceit or

misrepresentation and that a suspension is the presumptive sanction

when a lawyer knowingly deceives a client and causes injury or

potential injury to the client. See ABA Standards § 4.62.

The special master then considered whether the presumptive

discipline should be enhanced (or reduced) by virtue of the existence of

aggravating or mitigating circumstances. In aggravation, the special

master found that, by his actions in these cases, Whiteside engaged in 9 multiple offenses and in a pattern of misconduct, and that he has

substantial experience in the practice of law. See ABA Standards §

9.22 (c), (d), (i). In mitigation, the special master noted that Whiteside

had no prior disciplinary history; that, although he took some steps in

an attempt to cover up his mistakes, he lacked a dishonest or selfish

motive (having agreed to represent the client as a favor to a fellow law

enforcement officer, charging him nothing for the medical malpractice

case and a flat fee of $450 for the divorce case); that he was

experiencing personal and emotional problems as a result of his

responsibility for caring for his dying mother out of state; that

Whiteside fully cooperated in the disciplinary process and admitted his

violations; that Whiteside had demonstrated that he possesses good

character and reputation as demonstrated by his history of serving the

public through various law enforcement positions and by the various

letters from people in the community attesting to his good character

10 and reputation;2 and that Whiteside has demonstrated remorse for his

misconduct. ABA Standards § 9.32 (a), (b), (c), (e), (g) and (l).

The special master then noted that for similar violations, this

Court has imposed sanctions that run the gamut from public

reprimand to suspension to disbarment,3 suggesting that the

appropriate sanction for such behavior is highly fact-dependent.

2 Specifically, the special master referenced letters Whiteside attached

to his amended petition from seven members of the public, two of whom were attorneys, and all of whom attested to his honesty, good character, and commitment to his community. 3 See In the Matter of Bell, 313 Ga. 615 (872 SE2d 290) (2022) (disbarment, e.g., for lawyer’s failure to act diligently and to adequately communicate with client; lawyer made numerous misrepresentations to client, exhibited a dishonest or selfish motive, and had two instances of prior discipline and failed to respond to the Bar’s motion for summary judgment); In the Matter of Golub, 313 Ga. 686 (872 SE2d 699) (2022) (one-year suspension for lawyer who failed to complete legal work and failed to adequately communicate with client; one instance of prior discipline); In the Matter of Van Johnson, 313 Ga. 151 (868 SE2d 794) (2022) (accepting petition for voluntary discipline and imposing six-month suspension for lawyer with no prior disciplinary history who misappropriated, but repaid, client funds and who failed to perform diligently or to adequately communicate with two clients); In the Matter of Kirby, 312 Ga. 341 (862 SE2d 550) (2021) (accepting fourth petition for voluntary discipline and imposing six-month suspension for lawyer, with one prior instance of discipline, who neglected and mishandled multiple client matters over several years); In the Matter of Gantt, 302 Ga. 3 (804 SE2d 336) (2017) (accepting petition for voluntary discipline and imposing public reprimand for lawyer with no prior disciplinary history, who failed to notify a client of the dismissal of a lawsuit and failed to timely file a renewal action).

11 Noting that Whiteside had requested a public reprimand, but had

agreed to accept up to a three-month suspension from the practice of

law as discipline for his misconduct, the special master indicated that

a reprimand might have been appropriate if Whiteside’s misconduct

was solely the result of negligence, but that, here, Whiteside accepted

the malpractice case knowing that he had no relevant experience; his

false statement was knowing, if not intentional; his failure to inform

his client about the statute of limitation was knowing; his filing of the

malpractice complaint without the required affidavit and after the

statute of limitation had expired suggested that Whiteside acted

knowingly and intentionally to cover up his mistakes; and his failure

to advise his client that his malpractice action had been dismissed was

done knowingly and as part of a pattern of behavior intended to hide

his misconduct. The special master concluded that, while the knowing

and intentional nature of Whiteside’s actions rendered a reprimand an

inadequate sanction, the mitigating factors suggested that a short

suspension would be appropriate discipline. For those reasons, the

special master recommended that this Court grant Whiteside’s

12 amended petition for voluntary discipline and impose a three-month

suspension as discipline for his misconduct.

Having reviewed the record in this case, this Court agrees that a

three-month suspension is appropriate in this matter, given

Whiteside’s lack of any prior discipline, his full cooperation in these

disciplinary proceedings, and the other mitigating factors identified by

the special master. See In the Matter of Powell, 289 Ga. 215 (710 SE2d

145) (2011) (accepting petition for voluntary discipline and imposing

three-month suspension for attorney’s violations of Rules 1.3, 1.4, and

3.2; no prior disciplinary history). Because there are no conditions on

Whiteside’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 three months later.

Whiteside is reminded of his duties pursuant to Bar Rule 4-219 (b).

Petition for voluntary discipline accepted. Three-month suspension. All the Justices concur.

13 Decided May 31, 2023.

Suspension.

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

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

Mittelman, William V. Hearnburg, Jr., Assistant General Counsel

State Bar, for State Bar of Georgia.

Gene Chapman, for Whiteside.