In the Matter of Carla Burton Gaines

307 Ga. 459

• Court: Supreme Court of Georgia
• Decided: November 18, 2019
• Docket: S19Y1471
• Status: Published

Opinion

307 Ga. 459 FINAL COPY

S19Y1471. IN THE MATTER OF CARLA BURTON GAINES.

PER CURIAM.

This disciplinary matter is before the Court on the report and

recommendation of special master Trishanda L. Treadwell, who

recommends that respondent Carla Burton Gaines (State Bar No.

282012) be disbarred for her violations of a variety of the Georgia

Rules of Professional Conduct in conjunction with her handling of

escrow funds entrusted to her and her actions during the resulting

litigation. Despite having been properly served with the Formal

Complaint, Gaines, who has been a member of the Bar since 1991,

did not answer or otherwise respond, and therefore the special

master properly found her to be in default.

The facts, as deemed admitted by Gaines’s default, show that,

in or around July 2014, Gaines received $713,196 to hold in a

fiduciary capacity as an escrow agent for a real estate transaction in

Clayton County. Pursuant to the terms of the escrow agreement, Gaines released $375,000 to a company on or about November 3,

2015. Under the agreement, Gaines was supposed to release an

additional $337,400 to the same company on or around March 4,

2016, but she failed to do so. Instead, she withdrew the company’s

funds from her trust account, commingled them with her own funds,

and ultimately converted them to her own use. Gaines failed to

truthfully account for the company’s funds, and when the company

demanded payment of the funds, Gaines told the company that she

had wired the funds to it when she had not done so. The company

sued Gaines and her firm to recover the funds, and obtained a

default judgment in the amount of $337,400 plus attorney fees,

interest, and costs. During a post-judgment deposition, Gaines

falsely testified that she had transferred approximately $280,000 of

the company’s funds to a third party in error, but she failed to name

the alleged third party. Although the company also served on Gaines

and her firm certain post-judgment discovery requests, she failed to

respond to those requests as required by law; she failed to respond

despite a court order compelling her to do so; she failed to respond

2 to the company’s motion to hold her in contempt; and she failed to

appear at the November 27, 2017 hearing on that motion. After the

hearing, the court granted the company’s motion to hold Gaines in

contempt and imposed a civil fine of $1,000 per day until she

complied with the discovery order. The court also ordered Gaines to

appear for a compliance hearing on December 20, 2017. Gaines

appeared at the hearing and informed the court that she would

comply with its orders by December 29, 2017. But when she did not

comply, the company renewed its motion for contempt and requested

Gaines’s incarceration. The court then issued a Rule Nisi for

Gaines’s appearance on March 5, 2018, to show cause why she

should not be incarcerated for her continuing contempt. On March

5, 2018, the court ordered her incarcerated until she complied with

the orders compelling discovery responses. This disciplinary matter

ensued, and although Gaines acknowledged service of the notice of

investigation on August 3, 2018, she failed to file a timely sworn

response to the notice.

3 Based on those admitted facts, the special master correctly

determined that Gaines had violated Rules 1.15 (I) (c), 1.15 (II) (a),

1.15 (II) (b), 3.3 (a) (1), 3.4 (a), 3.5 (d), and 9.3 of the Georgia Rules

of Professional Conduct. See Bar Rule 4-102 (d). The maximum

punishment for a violation of Rule 1.15 (I) (c), 1.15 (II) (a) and (b),

3.3 (a) (1), or 3.4 (a) is disbarment, while the maximum punishment

for a violation of Rule 3.5 (d) or 9.3 is a public reprimand.

The special master considered the American Bar Association

(ABA) Standards for Imposing Lawyer Sanctions, see In the Matter

of Morse, 266 Ga. 652 (470 SE2d 232) (1996), and found that under

these facts disbarment is the appropriate sanction. See ABA

Standards 4.11 (a), 6.11 (a), 6.21, and 7.1. She found no factors in

mitigation of discipline but found in aggravation that Gaines had a

prior disciplinary offense (having received a formal letter of

admonition in June 2014 for disregarding a client’s case); had a

dishonest or selfish motive; had committed multiple offenses; had

engaged in bad-faith obstruction of the disciplinary proceeding by

intentionally failing to comply with the disciplinary rules; had

4 substantial experience in the practice of law; and had exhibited

indifference to making restitution. See ABA Standard 9.22 (a), (b),

(d), (e), (i), and (j). Ultimately, the special master concluded that

disbarment was the appropriate sanction and that it was consistent

with prior cases disbarring lawyers who have stolen money, acted

dishonestly, and defaulted in the disciplinary process. See In the

Matter of Cheatham, 304 Ga. 645 (820 SE2d 668) (2018) (disbarment

for attorney with no prior disciplinary history who, among other

things, converted to his own use sales proceeds from a real estate

closing and failed to respond to the formal complaint); In the Matter

of Snipes, 303 Ga. 800 (815 SE2d 54) (2018) (disbarment for attorney

who settled case without client’s knowledge and converted funds to

personal use); In the Matter of Rose, 299 Ga. 665 (791 SE2d 1) (2016)

(disbarment for attorney with no prior disciplinary history who,

among other things, converted to his own use funds he was holding

in trust as the result of a real estate transaction); In the Matter of

Willis, 295 Ga. 454 (761 SE2d 81) (2014) (disbarment for attorney

who, as the appointed administrator for two estates, converted

5 estate funds to her own use, filed false accountings with the probate

court, failed to repay those funds, and failed to participate in the

disciplinary proceedings).

Having considered the record, we agree that disbarment is the

appropriate sanction in this matter. Accordingly, it is hereby

ordered that the name of Carla Burton Gaines be removed from the

rolls of persons authorized to practice law in the State of Georgia.

Gaines is reminded of her duties pursuant to Bar Rule 4-219 (b).

Disbarred. All the Justices concur.

DECIDED NOVEMBER 18, 2019. Disbarment.

6 Paula J. Frederick, General Counsel State Bar, William D. NeSmith III, Deputy General Counsel State Bar, Jenny K. Mittelman, Assistant General Counsel State Bar, for State Bar of Georgia.