314 Ga. 200 FINAL COPY
S22Y0729. IN THE MATTER OF DANIEL KIRKLAND MCCALL.
PER CURIAM.
This disciplinary matter is before the Court on a petition for
voluntary discipline filed by Daniel Kirkland McCall (State Bar No.
481099), prior to the issuance of a formal complaint under Bar Rule
4-227 (b) (2). McCall, who has been a member of the Bar since 1981,
has been under an interim suspension since May 13, 2019, for failing
to adequately respond to the Bar’s Notices of Investigation. He now
admits violating Rules 1.2, 1.3, 1.4, 1.5 (a), 1.16 (d), 8.4 (a) (4), and
9.3 of the Georgia Rules of Professional Conduct (“GRPC”) found in
Bar Rule 4-102 (d) related to the three disciplinary matters that
resulted in his interim suspension. He seeks a six-month suspension
nunc pro tunc to May 13, 2019, with a condition for reinstatement.
The Bar has responded and recommends that the Court accept his
petition, but seeks to add an additional condition to his reinstatement. For the reasons discussed in more detail below, we
reject McCall’s petition for voluntary discipline.
As to State Disciplinary Board Docket (“SDBD”) No. 7325,
McCall admits that in June 2018 he was retained by a client to
represent him in a criminal matter in Cobb County Superior Court.
McCall received a flat fee of $4,000. After a few weeks passed
without any contact from McCall, the client reached out for a case
update and to provide his new address. McCall became angry when
he found out that the client had moved without consulting him, even
though the client had only relocated to a new local residence. On
August 1, 2018, the client received an e-mail from McCall stating in
part, “My law firm will require an additional $96,000.00 to move
forward at present.” The next day, the client responded that he
would not be able to afford the additional fee and reiterated the flat-
fee agreement for legal representation was for $4,000. McCall then
decided that he would only receive communication from the client
through e-mail and postal mail, and without explanation, all
telephone conversations and text messaging were discontinued.
2 Later that month, the client sent McCall a certified letter
terminating the representation and requesting a full refund.
Although McCall failed to file any pleadings, obtain discovery, or
attend court appearances, he refused to refund the fee paid by the
client.
As to SDBD No. 7326, McCall admits he was retained by a
client to pursue a personal injury claim arising from a vehicular
collision that occurred on June 16, 2016, in which the client was
injured as a patient riding inside an ambulance. In January 2018,
the client noticed that McCall began to exhibit paranoid behavior
that the client described as “out of context” and “bizarre,” and, in an
effort to expedite the case, the client requested that McCall make a
settlement offer to the opposing parties, but he refused. On one
occasion, McCall called the client at 3:00 a.m. in an intoxicated state,
“accusing and berating her for conduct that was unknown [to the
client].” Later, McCall was repeatedly asked to discontinue the
“bizarre” conduct of sending “inappropriate text messages” to the
client’s disabled teenage daughter.
3 In June 2018, McCall filed a lawsuit against the ambulance
operator and the operator’s employer, but failed to name the second
vehicle operator and his employer or to serve any of the parties. To
verify whether the lawsuit was actually filed, the client reached out
to McCall for a case update, but he was nonresponsive as to the
status of the case. The client then contacted a different attorney with
questions about the filing of her case, but that attorney was unable
to verify whether her case was filed.
By July 2018, McCall refused to respond to the client’s e-mails
and telephone calls, and refused to have a client meeting; through
e-mail, the client requested that McCall return her client file, but
McCall refused; and the client then went to McCall’s office and found
that he had posted a sign saying that he was on medical leave. On
July 16, 2018, the client mailed a certified letter to McCall’s
residence which terminated his legal services, along with a signed
consent-to-withdraw form; she provided all of this information
through e-mail as well; and the certified letter was soon returned to
her as unclaimed by the United States Postal Service (“USPS”).
4 The statute of limitation for the client’s claims expired on
September 22, 2018. McCall’s refusal to release the client file and to
properly withdraw as legal counsel adversely affected the client’s
case. Despite not performing any of the services for which he was
retained, McCall filed an attorney’s lien against the client’s case.
As to SDBD No. 7327, McCall admits that after he avoided
answering questions regarding the status of the SDBD No. 7326
client’s personal injury claim, the client contacted a new attorney
and stated that McCall was her attorney and that he was
demonstrating erratic behavior and refused to communicate with
her about the status of the filing of her lawsuit. The other attorney
was unable to verify whether the lawsuit was filed, but advised
McCall’s client to continue her attempts to communicate with
McCall regarding the status of her case. After the client finally
learned from McCall that he had filed the lawsuit and was on
medical leave, she terminated his representation and requested that
he return her client file, but he refused to do so.
On July 18, 2018, the client’s new attorney filed an entry of
5 appearance in Cobb County State Court, where McCall had filed the
lawsuit on behalf of the client. The new attorney filed a motion to
add the omitted driver involved in the motor vehicle accident as a
party defendant on July 19, 2018, but the statute of limitation had
expired as to the second driver’s employer. Additionally, the new
attorney discovered that none of the named defendants were served
with the lawsuit despite the expiration of the statute of limitation,
which required perfecting service as diligently as possible.
On July 23, 2018, the new attorney sent a certified letter to
McCall advising that he was retained as the client’s counsel in the
pending lawsuit and enclosed a notice of substitution of counsel; the
letter was also e-mailed to McCall. However, McCall failed to
acknowledge or respond to the letter or e-mail, and in mid-August
2018, the letter was returned to the new attorney by the USPS,
marked “unclaimed.”
On July 31, 2018, the new attorney directed another letter to
McCall advising him of the multiple attempts to solicit his
cooperation in transmitting the file documents to the client, and the
6 new attorney reminded him that he was required to personally
withdraw as the client’s counsel and return her file and that failure
to do so would adversely impact her ability to pursue her claims. On
August 24, 2018, the new attorney e-mailed McCall seeking his
cooperation in returning the client file to the client and attaching
copies of the previously sent letters. In response to this e-mail, the
new attorney received a two-word profane response from McCall.
The new attorney also “reviewed [other] documents where [McCall’s]
responses demonstrated that he might be incapacitated and unable
to adhere to the requirements of the [GRPC].”
The two clients and the new attorney all filed grievances
against McCall with the Bar, but he failed to respond to the
grievances, and he also failed to acknowledge service or respond to
the Notices of Investigation for these disciplinary matters as
required by Bar Rule 4-204.3. As a result, as noted above, on May
13, 2019, this Court entered an order suspending McCall’s bar
license until further order of the Court.
As to the GRPC, McCall now admits that by his conduct he
7 violated Rules 1.2, 1.3, 1.4, 1.5 (a), 1.16 (d), 8.4 (a) (4), and 9.3.
Specifically, he admits that he violated these rules by failing to abide
by his client’s decision to settle a case, to consult with his clients
regarding the means by which he would pursue their cases, to take
prompt action, to pursue actions on behalf of his clients, to
communicate adequately, to charge clients a reasonable fee, to
properly withdraw from representation and relinquish files, to
respond to the Notices of Investigation, and to provide his clients
with the accurate status of their cases. The maximum sanction for
violations of Rules 1.4, 1.5, 1.16, and 9.3 is a public reprimand, while
the maximum sanction for violations of Rules 1.2, 1.3, and 8.4 (a) (4)
is disbarment.
McCall states that he has been an attorney for over 30 years
with a good record and no prior disciplinary action. In addition, he
states that in early 2018 he began experiencing physical and mental
health issues, and after realizing that something was wrong, he
sought health care and answers for himself, recounting a number of
treatment facilities that he visited in 2018 and 2019. In 2019, he
8 arranged admission to one facility as part of “his bond conditions.”1
McCall states that he ultimately received a mental health diagnosis,
is being treated with medication and therapy, and has used no
alcohol or other substance — beside his prescribed medications —
since 2018.
McCall further notes that he notified his clients that he was on
medical leave beginning in 2018; he referred some of his clients to
other counsel, giving them credit for fees paid; and he posted this
information on his office door and told clients in person or otherwise.
As for the client in SDBD No. 7325, McCall states that he did some
work on his case and that while that client is seeking a full refund,
he is only willing to offer him a refund of the unearned fee, in an
amount agreed upon between the two; that this money will be paid
in the “near future” when the money is released from a bonding
company back to McCall; and that this process has begun and should
be completed within 60 days. He also states that he has provided the
1 Curiously, McCall does not explain the circumstances surrounding his arrest, including the charges, and the State Bar offers no explanation for why McCall is on bond.
9 Bar with proof of services rendered and fees earned and will provide
proof of payment to that client when it occurs.
Looking to the ABA Standards for Imposing Lawyer Sanctions,
which are to be used in determining the appropriate level of
discipline, see In the Matter of Von Mehren, 312 Ga. 345, 348 (862
SE2d 547) (2021), McCall notes that he violated his ethical duties to
his clients and the profession, and that under normal circumstances,
he knew or should have known that his actions and inactions would
result in harm, but that he was suffering from a psychotic episode.
He also notes that in some instances his conduct was negligent.
Regarding injury, he states that potential injury resulted in all of
these matters, but no actual injury occurred in his clients’ cases,
except to his client in SDBD No. 7325, based on the fees paid.
Regarding mitigating factors, McCall points to the absence of
a prior disciplinary record, see ABA Standard 9.32 (a); absence of a
selfish or dishonest motive, see ABA Standard 9.32 (b); and personal
and emotional problems, which include his serious mental health
issues that he asserts he has now addressed, see ABA Standard 9.32
10 (c). He also points to his “good faith effort to mitigate damages” as
he is “prepared to refund [his client in SDBD No. 7325] his unearned
retainer,” see ABA Standard 9.32 (d); his cooperative attitude and
full disclosure in the disciplinary proceedings, where he has
admitted to his problems and has cooperated fully, see ABA
Standard 9.32 (e); and the presence of a mental or physical
disability, as previously discussed, see ABA Standards 9.32 (h) and
(i). Regarding aggravating factors, McCall claims that none of the
factors outlined in ABA Standard 9.22 apply, except substantial
experience in the practice of law, see ABA Standard 9.22 (i).
McCall states that while he recognizes the seriousness of this
matter and takes full responsibility for his actions and inactions, he
believes that a six-month suspension, nunc pro tunc to May 13, 2019,
is appropriate here where all of the conduct in the Bar complaints
occurred during the time in which he was in the midst of a psychotic
episode and was seeking treatment. He asserts that he has complied
with the requirements as set forth in In the Matter of Onipede, 288
Ga. 156, 157 (702 SE2d 136) (2010) (setting out requirements for
11 applying suspension nunc pro tunc), because he voluntarily stopped
practicing law in 2018, he advised some of his remaining clients of
this cessation by mail, e-mail, text, and placing a note on his office
door, and he referred some clients to other counsel and returned
files. Finally, he states that as a condition for his reinstatement, he
should be required to demonstrate to the Office of the General
Counsel of the Bar that he is continuing to receive treatment and he
has been certified fit to return to the practice of law through a
licensed and board-certified mental health professional. He then
asserts that he already has met these conditions because a
psychologist evaluated him in 2020 and found him competent to
practice law and that he continues to receive therapy, medication,
and counseling; he also participates in group therapy.
The Bar has filed a response in which it agrees with the
underlying facts and particular rule violations. As for aggravating
factors, the Bar concludes that McCall had a dishonest or selfish
motive, see ABA Standard 9.22 (a), because rather than explain that
he had a health concern and was unable to provide legal
12 representation, he avoided communicating with his client in SDBD
No. 7326 and filed an incomplete lawsuit that was not served on any
of the party defendants, which was dishonest. In addition, the Bar
concludes that McCall inexplicably increased his fee for his client in
SDBD No. 7325 without any explanation, which was selfish. The Bar
further notes McCall’s substantial experience in the practice of law,
see ABA Standard 9.22 (i). As for mitigating factors, the Bar notes
McCall’s absence of a prior disciplinary history, see ABA Standard
9.32 (a); physical or mental disability or impairment, see ABA
Standard 9.32 (h); and his interim rehabilitation and commitment
to ongoing mental health treatment, see ABA Standard 9.32 (i).
As to the level of discipline, the Bar states that it does not
oppose McCall’s request for the Court to accept his petition and
impose a suspension nunc pro tunc to May 13, 2019, with his
proposed condition for reinstatement. It states that the suspension,
nunc pro tunc, is supported by the contents of his affidavit and
Onipede, and the fact that he has demonstrated that he has not
practiced law since May 2019 and continues to follow the regimen
13 provided by his mental health providers. However, the Bar also
notes that on April 13, 2021, McCall voluntarily participated in a
mental health evaluation by Dr. Matthew W. Norman, M.D., who
issued a Bar Fitness Evaluation and found that McCall was unfit to
practice law. Thus, the Bar requests that the interim suspension
remain active until proof of his fitness to practice law is provided by
a licensed and board-certified mental health professional. Moreover,
it states that as conditions for his reinstatement, McCall must
provide satisfactory proof to the Bar that he continues to adhere to
current medication regimens; continues treatment with his licensed
and board-certified psychiatrist and psychologist; continues
attendance with group therapy; and adheres to all recommendations
by his physicians. Moreover, the Bar contends that as a condition of
reinstatement, McCall should include proof that he has provided a
full refund to the client in SDBD No. 7325.
The facts as outlined in McCall’s petition support his admission
that he violated Rules 1.2, 1.3, 1.4, 1.5, 1.16 (d), 8.4 (a) (4), and 9.3.
A six-month suspension, as requested by the parties, is within the
14 range of discipline that this Court previously has imposed in cases
involving similar violations of Rules 1.2, 1.3, 1.4, 1.5, 1.16 and 9.3
and mitigating factors. See In the Matter of Kirby, 312 Ga. 341, 345
(862 SE2d 550) (2021) (accepting petition for voluntary discipline
and imposing six-month suspension for violating Rules 1.2, 1.3, 1.4,
and 1.16 in four separate matters, where attorney addressed his
mental health and practice management problems); In the Matter of
Johnson, 303 Ga. 795, 798-799 (815 SE2d 55) (2018) (accepting
petition for voluntary discipline and imposing six-month suspension
for violating Rules 1.3, 1.4, 1.5, 1.15 (I), 1.16 (d), and Rule 5.5 (a) in
seven separate matters, where attorney was suffering from personal
and emotional problems at time of misconduct and had taken
intervening efforts to improve himself and his law practice); In the
Matter of Huggins, 291 Ga. 92 (727 SE2d 500) (2012) (accepting
petition for voluntary discipline and imposing six-month suspension
with conditions for reinstatement for violations of Rules 1.3, 1.4,
1.15, 1.16, and 9.3 in five client matters, where attorney had no prior
disciplinary history and was receiving treatment for his personal
15 issues).
But “a violation of Rule 8.4 (a) (4) is among the most serious
violations with which a lawyer can be charged.” In the Matter of
West, 300 Ga. 777, 778 (798 SE2d 219) (2017) (citation and
punctuation omitted). And, we question whether the parties’
recommendation of a six-month suspension would be accepted
considering the discipline that this Court previously has imposed
involving similar violations of Rule 8.4 (a) (4) and mitigating factors.
See In the Matter of Golub, 313 Ga. 686, 694-695 (4) (___ SE2d ___)
(2022) (one-year suspension with conditions for reinstatement for
violations of Rules 1.2 (a), 1.3, 1.4 (a), 1.16 (d), 3.2, and 8.4 (a) (4) in
one client matter, where attorney had a prior disciplinary matter
from 22 years earlier and was experiencing health issues at the time
of the misconduct); In the Matter of Jaconetti, 291 Ga. 772, 772-773
(732 SE2d 447) (2012) (three-year suspension with conditions for
reinstatement for violations of Rules 1.2, 1.3, 1.4, 1.7, 1.16 (d), and
8.4 (a) (4) in eight client matters, where attorney had no prior
disciplinary history and was receiving treatment for her mental
16 health issues). However, we need not resolve this question because
after having carefully considered the petition and response, we
cannot agree to accept McCall’s petition for other reasons.
First, we have some general concerns with what McCall asserts
as mitigating circumstances. Specifically, while McCall has listed as
a mitigating factor his good faith effort to mitigate damages and his
cooperative attitude in the disciplinary proceedings, he also admits
in his petition that he has not yet paid back his client in SDBD No.
7325 in any amount, and he is accused of committing a Rule 9.3
violation by failing to respond to any of the Notices of Investigation.
Moreover, McCall states that his conduct caused no harm to his
clients’ cases, but it appears based on the admitted facts that he did
cause harm to his client in SDBD No. 7326 and her ability to pursue
her personal injury case. His petition also references “bond
conditions,” which suggests that criminal charges were filed against
him at some point, but no further information has been provided to
the Court in this regard.
More importantly, we have concerns with the conditions as
17 they are currently set forth by the parties. As to the condition
involving fitness to practice law, we agree that the facts and
McCall’s history of mental illness support conditioning any
reinstatement upon his demonstrating to the Office of the General
Counsel of the Bar that he is continuing to receive treatment and
that he has been certified mentally fit to return to the practice of law
through a licensed and board-certified mental health professional.
See In the Matter of Moore, 300 Ga. 407, 409 (729 SE2d 324) (2016)
(conditioning reinstatement “upon [lawyer] providing a detailed,
written evaluation by a licensed psychologist or psychiatrist
certifying that he is mentally competent to practice law”). And while
it may not be necessary to prove fitness at this juncture, it concerns
us that McCall claimed to be fit to practice law in his petition, even
though an April 13, 2021 Bar Fitness Evaluation concluded
otherwise. As to the condition involving repayment of fees, we also
agree with the Bar that McCall should include proof that he has
provided a full $4,000 refund to the client in SDBD No. 7325. McCall
claims that he did some work on the client’s case, but he provides no
18 evidence to support his assertion; rather, the facts demonstrate that
McCall failed to file any pleadings, obtain discovery, attend court
appearances, or complete any work on his client’s behalf. While we
agree with the Bar that a repayment condition should be included
as part of the discipline imposed, the GRPC do not contemplate
allowing the Court to accept a petition for voluntary discipline and
adding conditions to the petition that are more stringent than those
requested.
Finally, we conclude that McCall has not adequately
demonstrated that his suspension should be imposed nunc pro tunc
to the date of the suspension, because he attests that he only
informed “some” of his clients that he was closing his practice and
helped them retain new counsel. Moreover, based on the facts, it is
clear that he failed to assist the two clients at issue “in securing new
counsel and facilitating the transfer of client files and critical
information about ongoing cases to new counsel.” Onipede, 288 Ga.
at 157; see also In the Matter of Palazzola, 310 Ga. 634, 645 (6) (b)
(853 SE2d 99) (2020) (detailing steps attorney took to make the
19 showing required under Onipede to receive imposition of suspension
nunc pro tunc). Accordingly, we reject McCall’s petition for
voluntary discipline.
Petition for voluntary discipline rejected. All the Justices concur.
Decided June 30, 2022.
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.
Constance McManus, for McCall.