in the Matter of Denise L. Majette

• Court: Supreme Court of Georgia
• Decided: March 28, 2014
• Docket: S13Y1860
• Status: Published

Opinion

295 Ga. 4 FINAL COPY

S13Y1860. IN THE MATTER OF DENISE L. MAJETTE.

PER CURIAM.

This disciplinary matter is before the Court on the Report and

Recommendation of the Review Panel, concluding that Denise L. Majette (State

Bar No. 746843) committed multiple violations of the Rules of Professional

Conduct in manufacturing time sheets and invoices in connection with litigation

involving a trust. Although the Review Panel recommends a three-year

suspension with conditions for reinstatement, the State Bar continues to seek

disbarment, as recommended by the special master, Harold T. Daniel, Jr.

Because the record fully supports the conclusion of the special master, we agree

that disbarment is the proper sanction.

Following the filing of a formal complaint and a lengthy evidentiary

hearing, the special master concluded that Majette violated Rules 1.5 (a) (1), 3.3

(a) (1), 7.1 (a) (1), 8.1 (a), and 8.4 (a) (4) of the Georgia Rules of Professional

Conduct found in Bar Rule 4-102 (d). The Review Panel accepted the special

master’s findings and conclusions, but also determined that the evidence showed

that Majette violated Rule 1.16 (d), as well as additional violations of Rules 1.5 (a) (1), 8.1 (a), and 8.4 (a) (4). The maximum sanction for a violation of any of

these Rules, except Rules 1.5 (a) (1) and 1.16 (d), is disbarment.

The facts, as found by the special master and Review Panel, and supported

by the evidence, show that Majette, who was admitted to the Bar in 1983 and

had a distinguished career, was having financial difficulties in 2008 while

working part-time as a lawyer and part-time as a real estate agent. As a result,

she sought a loan from a lawyer with whom she was acquainted. The lawyer

declined to loan Majette money, but offered to associate her in a litigation matter

in which the lawyer and an associate represented two clients in litigation

involving a trust of which the clients were beneficiaries. Majette accepted the

offer; the lead lawyer and Majette agreed that Majette’s fee would be $200 per

hour. The lawyer paid Majette $2,000 as a retainer on September 2, 2009, and

additional sums totaling $22,500 through March 2010. The lawyer considered

these sums to be an advance to be applied against fees earned. Majette did not

keep contemporaneous time records, but reconstructed her time sheets and

invoices from memory and from notes on her calendar or computer. She

prepared a time sheet in November 2009 reflecting 46 hours of work between

August and November 20, 2009; she prepared a one-line time sheet in January

2 2010, reflecting 50 hours of work between December 1, 2009, and January 24,

2010.

Hearings were held in the litigation over three days in March and April

2010; Majette participated in the hearings with the lead lawyer and the other

associated lawyer. The trial judge indicated that both sides could seek attorney

fees, and Majette prepared a motion for fees for the clients. The motion, which

Majette did not provide to the lead lawyer for review before filing, stated that

Majette’s billing rate was $500 per hour and that she had spent 260 hours on the

case as of April 6, 2010. The motion stated that the billing rate for the lead

lawyer was $300 and that he had expended 140.9 hours on the case. The lead

lawyer had authorized Majette to use $300 per hour for himself and $260 for

Majette in connection with the motion, and he had planned to inform the trial

judge that his client had been billed at a lower rate. However, Majette did not

give the lead lawyer a draft of the motion before she filed it. The lead lawyer

was stunned by the filing and eventually caused it to be withdrawn.

A few days after the last hearing, Majette asked the lead lawyer for

payment of $38,000, but did not present a bill or time sheet, and he responded

that she would have to seek payment directly from the clients. Majette called

3 one of the clients on April 13, 2010, at 10:30 p.m. and demanded payment of

$39,400 in fees by the next day, telling the client that she was in a bind and

needed the money right away. The client asked Majette if she had submitted a

bill to the lead lawyer, and Majette misrepresented to the client that she had.

The client asked that a copy of the bill be sent to her and agreed to wire transfer

$15,000 to Majette the following day, but stated that she would pay the balance

after reviewing and approving the bill. Although the client sent the wire transfer

as promised, Majette did not send a bill until May 10, 2010, and when she did

send the bill, it did not contain details of work done or time attributable to any

specific work, but instead simply listed 170 hours as the number of hours

allegedly worked. The following day the client requested that Majette provide

a proper invoice, which Majette sent on May 11, 2010. That invoice

summarized, in two brief paragraphs, the 170 hours from February 2010 through

April 6, 2010. The client asked a friend to help her obtain more information

from Majette about the invoice. The friend asked Majette for a more detailed

bill that also showed credit for the fees already paid, but Majette refused to deal

with the client’s intermediary.

At the lead lawyer’s request, Majette prepared a new, detailed billing

4 statement dated May 22, 2010. The statement showed 180 hours of work at

$200 an hour, plus $232.60 in costs, most of which was for mileage from

Majette’s house to the lead lawyer’s office and to the courthouse. Majette

informed the client that the additional 10 hours over the earlier statement

represented hours spent in preparing the statement. The statement also showed

a credit of $15,000 and amount due of $21,262.60. The client scrutinized the

bill and sent the lead lawyer the bill with annotations disputing the bill, noting

numerous problems with the bill, including excessive time charged for reading

e-mails (forty hours from February 1 to March 24); billing for a telephone

conference that did not take place; twelve hours for attending a Continuing

Legal Education (“CLE”) seminar on appellate practice; travel time to and from

the lead lawyer’s office on six days; twelve hours for each hearing date; and

billing for a social outing. The client concluded that no further payment was

due and stated that Majette should repay some of the funds previously advanced.

On June 30, 2010, Majette sent the statement to the lead lawyer and

demanded payment within a week or she would take legal action. The lead

lawyer responded that he considered her billing for 180 hours to be excessive

because he was lead counsel and had spent more time on the case than anyone

5 and because the clients had raised numerous questions regarding her

representations of the work performed and the time charged. In August 2010,

the lead lawyer sent a letter to Majette detailing the specific challenges raised

by the clients.

In response, Majette made a series of filings in the trust litigation in

September 2010 seeking payment, including a notice of withdrawal, an

attorney’s lien, and an action for breach of contract. In November 2010 Majette

filed a motion to foreclose the lien, and in January 2011 Majette filed a motion

to intervene, seeking to satisfy the lien. The lead lawyer filed pleadings

opposing Majette’s filings on behalf of the clients. The trial court ultimately

dismissed the contract action and the motion to foreclose the lien.

The client filed a grievance against Majette with the Bar. Majette denied

she had been paid a $24,500 retainer, stating that the first $2,000 payment was

for a personal matter and that the remaining $22,500 was for earned fees. After

being shown a copy of the check for $2,000, which showed that it was a retainer

for the trust litigation, Majette claimed that her failure to include it was an

honest mistake and then recalculated the balance due. Throughout the

disciplinary process, Majette never conceded any possibility of error in the time

6 sheets or billing statements, showed no remorse, and steadfastly maintained

entitlement to additional payments.

The special master found that by submitting wholly unsupported and

materially misleading time sheets and invoices to her client, misrepresenting her

hours and fees to the court, and misrepresenting in the disciplinary process the

payments received, Majette committed several violations of the Rules of

Professional Conduct. The special master found as a mitigating factor that

Majette has no prior disciplinary record, but found as aggravating factors that

there were multiple offenses, submission of false statements or evidence in the

trust litigation and the disciplinary process, refusal to acknowledge the wrongful

nature of her conduct, and substantial experience in the practice of law. The

special master determined that the proper sanction was disbarment.

Majette sought review by the Review Panel, and both she and the State

Bar filed exceptions regarding the special master’s findings. The Review Panel

adopted the special master’s findings, but concluded there were additional

findings.

The Panel rejected Majette’s arguments that the special master had erred

in failing to require the State Bar to provide her with a free transcript of the

7 evidentiary hearing, see Bar Rule 4-213 (b); by allowing a witness to bring a

dog to the hearing; and in allowing Bar counsel to question Majette about

persons she may have contacted about a loan. With regard to her other

exceptions, the Review Panel determined that the special master’s conclusions

regarding Majette’s violations of the Rules were sound and supported by the

evidence.

The State Bar’s exceptions concerned the special master’s failure to find

a violation regarding Majette’s charge for attending the CLE seminar and for

Majette’s failure to refund unearned fees. The Review Panel made additional

findings that Majette and the lead lawyer attended a CLE seminar on February

26, 2010, because they had to complete their CLE hours for 2009 by March 31,

2010. Majette’s charge for attending the seminar did not appear on any of the

invoices prepared before May 22, 2010. During the evidentiary hearing, Majette

stated that the lead lawyer had said that the client would take care of the cost of

the seminar and Majette assumed that it would include the time attending the

seminar. Majette further stated that she believed the seminar would better

prepare her for representing the client. Majette testified that the charge for the

CLE attendance was an issue to be resolved; she has never removed the charge.

8 The lead lawyer testified that the client did not authorize attendance at the

seminar at her expense and that he never told Majette that the client would pay

for their CLE attendance. He further testified that the CLE seminar on appellate

practice had nothing to do with the trust litigation and was chosen because of the

need to complete CLE requirements. He paid for the CLE and did not charge

the client for his attendance. Based on these additional findings and its

determination that Majette failed to account for and return unearned fees, the

Review Panel concluded that, in addition to the violations found by the special

master, Majette violated Rule 1.16 (d), as well as additional violations of Rules

1.5 (a) (1), 8.1 (a), and 8.4 (a) (4).

The Review Panel considered the full record, and while stating that the

recommendation of disbarment was “certainly justified given the very serious

facts in this case,” it nevertheless recommended a three-year suspension with

conditions upon reinstatement, solely because this was Majette’s only

disciplinary proceeding “in an otherwise distinguished career.” Majette filed

exceptions to the Review Panel’s report.

1. Majette first contends that she should have been provided a copy of the

transcript. However, we find that the special master did not abuse his discretion

9 in this regard. Bar Rule 4-213 (b) provides that “[u]pon a showing of necessity

and a showing of financial inability by the Respondent to pay for the

transcription, the Special Master shall order the State Bar of Georgia to provide

the transcript.” However, Majette failed to make this showing, as the only

attempt to show financial inability was her utilization of this Court’s form for

a pauper’s affidavit. Where the record reflects that Majette has long been

gainfully employed and is capable of gainful employment, the simple

submission of the Court’s form affidavit is insufficient.

2. Because Majette failed to raise an issue at the evidentiary hearing

regarding the presence of the client’s dog at the hearing, we agree with the

Review Panel that she may not raise the issue for the first time long after the

hearing has concluded.

3. Majette excepts to the findings of fact and conclusions of law regarding

each violation found by the Review Panel. However, a review of the record

shows ample support for the special master and Review Panel’s factual findings

and for the conclusion that Majette committed multiple violations of the Rules

of Professional Conduct by submitting wholly unsupported and materially

misleading time sheets and invoices to her client and misrepresenting her hours

10 and fees to a court. See Douglas R. Richmond, For a Few Dollars More: The

Perplexing Problems of Unethical Billing Practices by Lawyers, 60 S.C. L. Rev.

63, 64, n. 8 (2008) (collecting cases imposing disciplinary sanctions, including

disbarment, on lawyers for fraudulent or abusive billing practices). Contrary to

Majette’s contentions, the misconduct exhibited in this case cannot be

characterized as a fee dispute. Additionally, despite the consistent and well-

supported findings that Majette committed numerous violations of multiple

disciplinary rules, Majette has failed to express any remorse. See In the Matter

of Friedman, 270 Ga. 5, 6 (505 SE2d 727) (1998) (noting this Court’s “little

tolerance for a lawyer who lies during disciplinary proceedings or engages in

conduct involving dishonesty, fraud, deceit or misrepresentation”).

Accordingly, we conclude that the special master’s recommendation of

disbarment, reached after careful and thorough consideration of live testimony

and documentary evidence, is the proper sanction in this matter. See In the

Matter of Cleaver-Bascombe, 290 Ga. 78 (717 SE2d 478) (2011) (disbarment

as reciprocal discipline for submission of fraudulent pay voucher and giving of

sworn testimony defending the voucher and insisting it fairly reflected services

rendered). Therefore, it is hereby ordered that the name of Denise L. Majette be

removed from the rolls of persons authorized to practice law in the State of 11 Georgia. Majette is reminded of her duties pursuant to Bar Rule 4-219 (c).

Disbarred. All the Justices concur, except Thompson, C. J., and Melton,

J., who dissent. Benham, J., not participating.

MELTON, Justice, dissenting.

While I agree that the conduct involved in this case merits a severe

punishment, I believe that a prolonged suspension with conditions for

reinstatement, rather than disbarment, would be a more appropriate sanction. As

the Review Panel concluded in this case, the respondent’s over thirty years of

distinguished service to the bench and bar with no disciplinary problems

whatsoever should serve as a significant mitigating factor with respect to the

punishment imposed here. See, e.g., In the Matter of Shelfer, 278 Ga. 55, 56

(597 SE2d 365) (2004) (After considering several mitigating factors, including

“the absence of a prior disciplinary record during [the attorney’s] three and a

half decades of practice,” the Court imposed a two-year suspension for an

attorney who stole over $100,000 from his client over two years). Indeed, with 12 regard to unearned fees and misleading billing practices such as those involved

in this case, reimbursement to the client for any unearned fees and, at the very

least, the additional requirements recommended by the Review Panel (i.e., that

the respondent successfully participate in the State Bar’s Law Practice

Management Program and complete six hours of continuing legal education on

legal ethics at her own expense) would certainly seem to be appropriate

conditions to impose for the respondent to be reinstated following an extensive

suspension from the practice of law. See In the Matter of Champion, 275 Ga.

140 (562 SE2d 179) (2002) (attorney who converted client funds to her own use

and initially lied to State Bar about doing so given 12-month suspension with

conditions for reinstatement (including condition to attend State Bar Ethics

School at her own expense) where she had no prior disciplinary history and had

reimbursed client). In any event, because, in my view, the ultimate sanction of

disbarment does not properly take into account the respondent’s otherwise

distinguished career as a significant mitigating factor, I must respectfully

dissent.

I am authorized to state that Chief Justice Thompson joins in this dissent. Decided March 28, 2014.

Disbarment.

Paula J. Frederick, General Counsel State Bar, Jonathan W. Hewett,

Assistant General Counsel State Bar, for State Bar of Georgia.