308 Ga. 577 FINAL COPY
S20Y0754. IN THE MATTER OF D. DUSTON TAPLEY, JR.
PER CURIAM.
This disciplinary matter is before the Court pursuant to the
Report and Recommendation issued by a special master who was
appointed following the filing of a Formal Complaint, in which the
State Bar asserted that respondent D. Duston Tapley, Jr. (State Bar
No. 697875), who has been a member of the Bar since 1977, had
violated a variety of the Georgia Rules of Professional Conduct and
lacked the mental competence to continue to practice law. See Bar
Rule 4-104 (“[C]ognitive impairment . . . , to the extent of impairing
competency as a lawyer, shall constitute grounds for removing a
lawyer from the practice of law.”). After the Formal Complaint was
personally served on Tapley, he answered, and the State Bar moved
for partial summary judgment as to the issue of incompetence under
Bar Rule 4-104 and as to Tapley’s violations — essentially based on
his alleged incompetence — of Rules 1.1 (competent representation) and 1.3 (reasonable diligence) of the Georgia Rules of Professional
Conduct. The special master considered the documents and
affidavits filed in support of the State Bar’s motion for partial
summary judgment and granted that motion, finding in essence that
Tapley’s cognitive impairment warranted removing him from the
practice of law. But Tapley submitted evidence creating a genuine
issue of material fact that the special master erroneously
disregarded, so we reject the special master’s recommendation and
remand for an evidentiary hearing on Tapley’s competence and
certain alleged violations of the Rules of Professional Conduct.
We review the grant or denial of a motion for summary
judgment de novo, and “we must view the evidence, and all
reasonable inferences drawn therefrom, in the light most favorable
to the nonmovant.” Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697
SE2d 779) (2010) (citation and punctuation omitted).
So viewed, the evidence shows that in February 2018, a
Richmond County court held a hearing on Tapley’s motion to
withdraw as counsel for a criminal defendant after the jury had been selected but before it had been sworn. At the hearing, Tapley
represented to the court that he was in his 80s and that he had been
practicing law for decades, but that he was no longer “physically and
mentally able to adequately represent his clients.” He stated that he
was “just not up to the pressure” of doing the things required to try
a case; that “sometime back” he had begun to realize that he could
no longer do the things he could do when he was 50 years old; that
he was beginning to overlook things that he later realized might be
able to help his clients; that he had trouble with dizziness; that,
during jury selection, it “came home to [him]” that he could no longer
hear as well as he used to; and that he was having increasing issues
with stamina.
In response to the court’s inquiry about Tapley’s other cases,
Tapley indicated that he was no longer taking felony cases; that he
was focusing on misdemeanor cases; and that he was avoiding more
complicated cases. But, when confronted, he admitted that he still
represented defendants in felony cases in other courts. Indeed,
Tapley advised the court that he planned to appear two days later at a hearing scheduled in a felony case in another county because it
was a “nothing case,” and he felt compelled to continue that
representation because that client was a family friend. Similarly,
Tapley acknowledged that he still represented a defendant accused
of murder in another county. He initially stated that he was “going
to have to try” that case if it came to it, but then conceded that he
“may not handle it” and that he had told his client that he did not
believe he should handle the case. The court explained to Tapley
that, if what he was saying about his lack of capacity was true, then
he had a professional responsibility to withdraw from
representation of all of his clients. Tapley suggested that he
understood that fact.
After learning of the February 2018 hearing in Richmond
County, chief judges of the Middle Judicial Circuit and the Oconee
Judicial Circuit convened meetings with Tapley to discuss his
competency and continued representation of clients in their circuits.
After those meetings, each chief judge entered an order
acknowledging Tapley’s agreement that he would withdraw from ongoing criminal cases and refrain from taking new cases in their
judicial circuits.1 Tapley did not timely appeal either order, but in
March 2018 he obtained an evaluation, in which a psychologist, Dr.
Donald Meck, appeared to conclude that Tapley’s cognitive ability
was, for the most part, within the “normal” range for a person his
age. Tapley then moved to vacate the chief judges’ orders and to
recuse the chief judges. When his motions were denied, he appealed,
but his appeals were dismissed as procedurally improper.
The State Bar initiated disciplinary proceedings against
Tapley. Although Tapley filed sworn statements that he had not
violated Rules 1.1 and 1.3 and that he does not have cognitive issues
affecting his ability to practice law, the special master found that
those statements, even when construed in the light most favorable
to him, failed to create a genuine issue of material fact as to his
alleged violations of Rules 1.1 and 1.3, particularly where he had
1 Despite his agreement and the entry of these orders, Tapley continued
to tell clients that he could represent them in court, requiring one chief judge to convene a status conference in a criminal case to make clear to the defendant that, despite Tapley’s representations to the contrary, Tapley could no longer represent him and that he needed to obtain new counsel. made solemn, in-court representations as to his lack of competency;
where his later sworn statements directly contradicted his previous
in judicio statements; and where he had not offered any reasonable
explanation for the change in his testimony.
With regard to the allegation that Tapley was not competent to
practice law under Bar Rule 4-104, the special master considered
Dr. Meck’s deposition testimony regarding his March 2018 report as
to Tapley’s cognitive abilities. In his evaluation and deposition, Dr.
Meck stated that, although Tapley has experienced “age appropriate
cognitive decline exacerbated by auditory deficits,” his “general
cognitive ability . . . is in the average range.” Dr. Meck found no
evidence of psychological or mental health issues. Dr. Meck made
clear, however, that he evaluated Tapley’s ability to function
generally, rather than his ability to practice law.
After noting that Dr. Meck had never been qualified as an
expert on the issue of whether a person had the capacity or
competency to practice law, the special master concluded that,
because Dr. Meck had not addressed the relationship between the “cognitive impairment” that Tapley admitted in three different fora
and his capacity or competency to practice law, Tapley had not
presented any competent evidence to rebut his admissions about his
lack of capacity and the statements of multiple judges who had
expressed concerns about Tapley’s cognitive decline. Thus, the
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308 Ga. 577 FINAL COPY
S20Y0754. IN THE MATTER OF D. DUSTON TAPLEY, JR.
PER CURIAM.
This disciplinary matter is before the Court pursuant to the
Report and Recommendation issued by a special master who was
appointed following the filing of a Formal Complaint, in which the
State Bar asserted that respondent D. Duston Tapley, Jr. (State Bar
No. 697875), who has been a member of the Bar since 1977, had
violated a variety of the Georgia Rules of Professional Conduct and
lacked the mental competence to continue to practice law. See Bar
Rule 4-104 (“[C]ognitive impairment . . . , to the extent of impairing
competency as a lawyer, shall constitute grounds for removing a
lawyer from the practice of law.”). After the Formal Complaint was
personally served on Tapley, he answered, and the State Bar moved
for partial summary judgment as to the issue of incompetence under
Bar Rule 4-104 and as to Tapley’s violations — essentially based on
his alleged incompetence — of Rules 1.1 (competent representation) and 1.3 (reasonable diligence) of the Georgia Rules of Professional
Conduct. The special master considered the documents and
affidavits filed in support of the State Bar’s motion for partial
summary judgment and granted that motion, finding in essence that
Tapley’s cognitive impairment warranted removing him from the
practice of law. But Tapley submitted evidence creating a genuine
issue of material fact that the special master erroneously
disregarded, so we reject the special master’s recommendation and
remand for an evidentiary hearing on Tapley’s competence and
certain alleged violations of the Rules of Professional Conduct.
We review the grant or denial of a motion for summary
judgment de novo, and “we must view the evidence, and all
reasonable inferences drawn therefrom, in the light most favorable
to the nonmovant.” Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697
SE2d 779) (2010) (citation and punctuation omitted).
So viewed, the evidence shows that in February 2018, a
Richmond County court held a hearing on Tapley’s motion to
withdraw as counsel for a criminal defendant after the jury had been selected but before it had been sworn. At the hearing, Tapley
represented to the court that he was in his 80s and that he had been
practicing law for decades, but that he was no longer “physically and
mentally able to adequately represent his clients.” He stated that he
was “just not up to the pressure” of doing the things required to try
a case; that “sometime back” he had begun to realize that he could
no longer do the things he could do when he was 50 years old; that
he was beginning to overlook things that he later realized might be
able to help his clients; that he had trouble with dizziness; that,
during jury selection, it “came home to [him]” that he could no longer
hear as well as he used to; and that he was having increasing issues
with stamina.
In response to the court’s inquiry about Tapley’s other cases,
Tapley indicated that he was no longer taking felony cases; that he
was focusing on misdemeanor cases; and that he was avoiding more
complicated cases. But, when confronted, he admitted that he still
represented defendants in felony cases in other courts. Indeed,
Tapley advised the court that he planned to appear two days later at a hearing scheduled in a felony case in another county because it
was a “nothing case,” and he felt compelled to continue that
representation because that client was a family friend. Similarly,
Tapley acknowledged that he still represented a defendant accused
of murder in another county. He initially stated that he was “going
to have to try” that case if it came to it, but then conceded that he
“may not handle it” and that he had told his client that he did not
believe he should handle the case. The court explained to Tapley
that, if what he was saying about his lack of capacity was true, then
he had a professional responsibility to withdraw from
representation of all of his clients. Tapley suggested that he
understood that fact.
After learning of the February 2018 hearing in Richmond
County, chief judges of the Middle Judicial Circuit and the Oconee
Judicial Circuit convened meetings with Tapley to discuss his
competency and continued representation of clients in their circuits.
After those meetings, each chief judge entered an order
acknowledging Tapley’s agreement that he would withdraw from ongoing criminal cases and refrain from taking new cases in their
judicial circuits.1 Tapley did not timely appeal either order, but in
March 2018 he obtained an evaluation, in which a psychologist, Dr.
Donald Meck, appeared to conclude that Tapley’s cognitive ability
was, for the most part, within the “normal” range for a person his
age. Tapley then moved to vacate the chief judges’ orders and to
recuse the chief judges. When his motions were denied, he appealed,
but his appeals were dismissed as procedurally improper.
The State Bar initiated disciplinary proceedings against
Tapley. Although Tapley filed sworn statements that he had not
violated Rules 1.1 and 1.3 and that he does not have cognitive issues
affecting his ability to practice law, the special master found that
those statements, even when construed in the light most favorable
to him, failed to create a genuine issue of material fact as to his
alleged violations of Rules 1.1 and 1.3, particularly where he had
1 Despite his agreement and the entry of these orders, Tapley continued
to tell clients that he could represent them in court, requiring one chief judge to convene a status conference in a criminal case to make clear to the defendant that, despite Tapley’s representations to the contrary, Tapley could no longer represent him and that he needed to obtain new counsel. made solemn, in-court representations as to his lack of competency;
where his later sworn statements directly contradicted his previous
in judicio statements; and where he had not offered any reasonable
explanation for the change in his testimony.
With regard to the allegation that Tapley was not competent to
practice law under Bar Rule 4-104, the special master considered
Dr. Meck’s deposition testimony regarding his March 2018 report as
to Tapley’s cognitive abilities. In his evaluation and deposition, Dr.
Meck stated that, although Tapley has experienced “age appropriate
cognitive decline exacerbated by auditory deficits,” his “general
cognitive ability . . . is in the average range.” Dr. Meck found no
evidence of psychological or mental health issues. Dr. Meck made
clear, however, that he evaluated Tapley’s ability to function
generally, rather than his ability to practice law.
After noting that Dr. Meck had never been qualified as an
expert on the issue of whether a person had the capacity or
competency to practice law, the special master concluded that,
because Dr. Meck had not addressed the relationship between the “cognitive impairment” that Tapley admitted in three different fora
and his capacity or competency to practice law, Tapley had not
presented any competent evidence to rebut his admissions about his
lack of capacity and the statements of multiple judges who had
expressed concerns about Tapley’s cognitive decline. Thus, the
special master found that the State Bar had carried its burden of
showing by clear and convincing evidence that Tapley lacked the
mental capacity to continue the practice of law such that he should
be removed under Bar Rule 4-104. As neither party requested review
by the State Disciplinary Review Board (“Review Board”), see Bar
Rule 4-214 (c), the report and recommendation was filed in this
Court pursuant to Bar Rule 4-214 (c).
Tapley filed a response to the special master’s report, asserting
among other things that there was insufficient evidence to support
it.2 Tapley is partly correct inasmuch as the special master’s grant
of summary judgment was not supported by the evidence.
2 The Bar argues that we should disregard Tapley’s response because he
waived his right to file exceptions to the report and recommendation by failing Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as
a matter of law[.]” OCGA § 9-11-56 (c). To prevail on its motion for
summary judgment, the State Bar had to demonstrate that there is
no genuine issue of material fact. See Montgomery v. Barrow, 286
Ga. 896, 898 (692 SE2d 351) (2010). Tapley, as the party opposing
summary judgment, was not required to produce evidence
demanding judgment for him, but was “only required to present
evidence that raises a genuine issue of material fact.” Johnson v.
Omondi, 294 Ga. 74, 75 (751 SE2d 288) (2013) (citation omitted). By
presenting the testimony of Dr. Meck, Tapley has done so.
to request review by the Review Board under Bar Rule 4-214 (c). But the Bar’s argument ignores Bar Rule 4-218, which specifically states that “[a]fter the Special Master’s report and any report of the . . . Review Board are filed with the Supreme Court of Georgia, the respondent and the . . . Bar . . . may file with the Court any written exceptions, supported by written argument, either may have to the reports.” Citing In the Matter of Moore, 305 Ga. 419, 421 (825 SE2d 225)
(2019), the special master found that Dr. Meck’s evaluation of
Tapley was not relevant because he did not assess whether Tapley
was mentally competent to practice law. In Moore, the attorney had
been temporarily suspended for violating several rules (without
reference to Bar Rule 4-104), and we conditioned his reinstatement
on “providing a detailed, written evaluation by a licensed
psychologist or psychiatrist certifying that [he] was mentally
competent to practice law[.]” Id. at 420. Moore underwent a
psychological evaluation, but the evaluation did not address his
competency to practice law, so we concluded that he did not meet his
burden of providing sufficient evidence to prove that satisfied the
conditions of reinstatement. Id. at 419-421.
But our holding in Moore was limited to Moore’s failure to
satisfy the specific condition we had imposed that Moore provide a
psychological evaluation certifying that he was competent to
practice law. Id. In concluding that Moore did not meet his burden,
we did not hold that a psychologist’s generalized evaluation of an attorney is relevant to the issue of competence only if the
psychologist assesses whether that attorney has the capacity or
competency to practice law. And Moore should not be read in this
manner, because it would confuse two distinct evidentiary concepts.
As we have said before,
[r]elevance is a binary concept ⸺ evidence is relevant or it is not — but probative value is relative. Evidence is relevant if it has “any tendency” to prove or disprove a fact, whereas the probative value of evidence derives in large part from the extent to which the evidence tends to make the existence of a fact more or less probable. Generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value. And the extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered.
Jones v. State, 301 Ga. 544, 546-547 (1) (802 SE2d 234) (2017)
(citations and punctuation omitted; emphasis in original).
Here, Dr. Meck’s evaluation of Tapley was certainly relevant
as to Tapley’s competency to practice law. Dr. Meck’s evaluation,
while potentially less probative than a specific evaluation of Moore’s
competency to practice law would be, was enough to create a genuine issue of material fact sufficient to defeat the State Bar’s motion for
summary judgment as to Tapley’s competency. See Nguyen v.
Southwestern Emergency Physicians, P.C., 298 Ga. 75, 84 (3) (779
SE2d 334) (2015) (“‘[I]f a defendant . . . moves for summary
judgment and points to the favorable testimony of a dozen winners
of the Nobel Prize for Medicine . . . , but the plaintiff responds with
the admissible testimony of a barely qualified medical expert . . . ,
the trial court must assume — as unlikely as it may be — that the
jury will believe the plaintiff’s expert and disbelieve the expert array
offered by the defendant.’” (citation omitted)). Therefore, we reject
the special master’s recommendation as to Tapley’s competency.
And we also reject the special master’s recommendation as to the
violations of Rules 1.1 and 1.3, because the special master’s findings
were interrelated with the competency determination.3 As a result,
we reject the recommendation and remand for an evidentiary
hearing on the alleged violations.
3 There do appear to be considerable undisputed facts supporting other
violations, but they are not before us because the special master made no ruling on them. Recommendation rejected and case remanded for an evidentiary hearing. All the Justices concur, except Ellington, J., disqualified.
DECIDED APRIL 20, 2020. Competency to practice law. Paula J. Frederick, General Counsel State Bar, William D. NeSmith III, Deputy General Counsel State Bar, Jenny K. Mittelman, James S. Lewis, Assistant General Counsel State Bar, for State Bar of Georgia.