In THE MATTER OF DERRIC CROWTHER (Two Cases)
This text of 318 Ga. 277 (In THE MATTER OF DERRIC CROWTHER (Two Cases)) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
318 Ga. 277 FINAL COPY
S23Y1117, S23Y1119. IN THE MATTER OF DERRIC CROWTHER (two cases).
PER CURIAM.
These disciplinary matters arose from the conduct of Derric
Crowther (State Bar No. 198838) in two separate cases. The matters
are currently before the Court on the report and recommendation of
the State Disciplinary Review Board (“Review Board”), which
reviewed the report and recommendation of Special Master Jo Carol
Nesset-Sale at the request of Crowther pursuant to Bar Rules 4-214
and 4-216. The Special Master recommended that Crowther be
disbarred for his violations of Rules 1.3, 1.4, 1.5, 1.8 (e), 1.15 (I), 1.15
(II), and 8.4 (a) (4) of the Georgia Rules of Professional Conduct
(“GRPC”), found in Bar Rule 4-102 (d). The maximum penalty for a
single violation of Rule 1.3, 1.15 (I), 1.15 (II), or 8.4 (a) (4) is
disbarment, and the maximum penalty for a single violation of Rule
1.4, 1.5, or 1.8 (e) is a public reprimand. The Review Board adopted the Special Master’s findings of fact and conclusions of law but
recommended that Crowther receive a four-year suspension. Both
the Bar and Crowther filed exceptions in this Court.
The misconduct at issue involves allegations of Crowther’s
systematic violations of the trust accounting rules, as well as his
failure to resolve a dispute with one of his clients over settlement
funds, charging that client an excessive fee, and disbursing all of the
settlement funds to himself or his law firm despite the ongoing
dispute with the client. In recommending a four-year suspension,
the Review Board disagreed with the Special Master only about the
balance of aggravating and mitigating factors and relied on In the
Matter of Favors, 283 Ga. 588 (662 SE2d 119) (2008), to support its
recommendation. However, as explained below, the Board’s
recommendation is not supported by our precedent, including
Favors, or by the records in these matters. Accordingly, after
considering the records and both parties’ exceptions to the Board’s
report and recommendation, we conclude that disbarment is
appropriate for Crowther’s misconduct in these two cases.
2 1. Procedural History
The State Bar initially pursued four separate complaints
against Crowther but dismissed two of the matters. The remaining
cases were State Disciplinary Board Docket (“SDBD”) No. 7134 and
SDBD No. 7390. In SDBD No. 7134, Crowther was charged with
violating Rules 1.8 (e); 1.15 (I) (a), (b), (c), and (d); and 1.15 (II) (a)
and (b). In SDBD No. 7390, he was charged with violating Rules 1.3,
1.4, 1.5, 1.15 (I), 1.15 (II), and 8.4 (a) (4). During litigation of these
matters, Crowther filed two petitions for voluntary discipline,
requesting either a public reprimand or a three-month suspension
to resolve all pending matters. The Special Master rejected both
petitions. Based on Crowther’s admissions, the Bar filed a motion
for summary judgment in SDBD No. 7134, which was granted as to
Rules 1.8 (e); 1.15 (I) (a), (b), and (c); and 1.15 (II) (b). The Special
Master granted summary judgment to Crowther only on Rule 1.15
(II) (a),1 concluding that he did not violate that subsection by
1 Rule 1.15 (II) (a) provides, in relevant part, that all funds “held by a
lawyer in any other fiduciary capacity shall be deposited in and administered from a trust account.”
3 delegating to his office manager the task of administering his trust
account. As to SDBD No. 7390, the Bar filed a motion for summary
judgment, which the Special Master granted in its entirety. The
Special Master held a hearing on aggravation and mitigation on May
24 and 25, 2022.
In her report and recommendation, the Special Master noted
that SDBD No. 7390 arose from a 2019 grievance filed by a client
who had previously filed a grievance against Crowther in 2013 that
was dismissed in 2014. The instant formal complaint was based on
Crowther’s actions that occurred between 2014 and 2019. The
Special Master concluded that the four-year statute of limitation
and two-year tolling provision in Bar Rule 4-222 (a) “authorize[d] a
look-back to February 4, 2014, the date of the dismissal [of the 2013
grievance], or September 4, 2013, the date of the [2013] grievance,
which would be the farthest reach of the six-year look-back.” The
Special Master observed that she could consider matters outside of
the statute of limitation, which would provide “essential context”
and would be relevant to resolving issues involving aggravation and
4 mitigation, Crowther’s mental state, restitution, and a pattern of
misconduct.
2. Special Master’s Report and Recommendation
(a) SDBD No. 7390
In 2006, the client filed a pro se medical malpractice action
against a Macon hospital on behalf of herself, her siblings, and as
the administratrix of her mother’s estate (collectively, “plaintiffs”),
alleging malpractice by the hospital’s nurses in connection with her
mother’s death. Crowther entered the case in 2007. The attorney-
client relationship was governed by a 2009 Retainer Agreement,
which contained a handwritten amendment stating that “[t]his
contract was modified due to client agreeing to pay a portion not to
exceed $25,000.00 of the legal expenses.” The client paid Crowther
$25,000 for legal expenses between 2007 and 2009. The Retainer
Agreement also provided that if the case settled, Crowther’s law firm
would “endorse any check made out to us or to either you or us and
deposit it in our trust account. If the check requires your signature
as well, we will advise you immediately so that you can come in and
5 endorse the check”; the firm would then schedule a meeting with the
client to collect her money and review how the funds had been
disbursed, which would include a statement detailing “exactly
where the money has gone (your proceeds, attorney[ ] fees, payments
to medical providers, other expenses, etc.).” (Emphasis supplied.)
In 2012, Crowther learned from a new expert that the nurses
had not actually deviated from the applicable standard of care. He
pursued settlement with the hospital, and the parties settled in
August 2012. The hospital issued two checks totaling $187,500, with
a $7,500 check paid directly to a defense expert and the remaining
$180,000 paid to the order of the client, individually and as
administratrix of her mother’s estate; to her siblings; and to
Crowther and his law firm. At the time Crowther received the check,
he had not obtained releases of liability from the plaintiffs, which
were required under the terms of the settlement. The reverse side of
the check showed that Crowther deposited it into an account that is
now closed, and that he had endorsed it for himself and “w/p per k”
for the plaintiffs. No one else endorsed the check. Crowther claimed
6 during the disciplinary proceedings that the Retainer Agreement
authorized him to endorse and deposit the check and that the client
had given him permission over the phone to endorse it, but the client
testified that she never gave Crowther such permission. The Special
Master found Crowther’s testimony not credible and rejected his
reading of the Retainer Agreement, noting that the phrase “w/p per
k” meant “with permission per contract,” but the Retainer
Free access — add to your briefcase to read the full text and ask questions with AI
318 Ga. 277 FINAL COPY
S23Y1117, S23Y1119. IN THE MATTER OF DERRIC CROWTHER (two cases).
PER CURIAM.
These disciplinary matters arose from the conduct of Derric
Crowther (State Bar No. 198838) in two separate cases. The matters
are currently before the Court on the report and recommendation of
the State Disciplinary Review Board (“Review Board”), which
reviewed the report and recommendation of Special Master Jo Carol
Nesset-Sale at the request of Crowther pursuant to Bar Rules 4-214
and 4-216. The Special Master recommended that Crowther be
disbarred for his violations of Rules 1.3, 1.4, 1.5, 1.8 (e), 1.15 (I), 1.15
(II), and 8.4 (a) (4) of the Georgia Rules of Professional Conduct
(“GRPC”), found in Bar Rule 4-102 (d). The maximum penalty for a
single violation of Rule 1.3, 1.15 (I), 1.15 (II), or 8.4 (a) (4) is
disbarment, and the maximum penalty for a single violation of Rule
1.4, 1.5, or 1.8 (e) is a public reprimand. The Review Board adopted the Special Master’s findings of fact and conclusions of law but
recommended that Crowther receive a four-year suspension. Both
the Bar and Crowther filed exceptions in this Court.
The misconduct at issue involves allegations of Crowther’s
systematic violations of the trust accounting rules, as well as his
failure to resolve a dispute with one of his clients over settlement
funds, charging that client an excessive fee, and disbursing all of the
settlement funds to himself or his law firm despite the ongoing
dispute with the client. In recommending a four-year suspension,
the Review Board disagreed with the Special Master only about the
balance of aggravating and mitigating factors and relied on In the
Matter of Favors, 283 Ga. 588 (662 SE2d 119) (2008), to support its
recommendation. However, as explained below, the Board’s
recommendation is not supported by our precedent, including
Favors, or by the records in these matters. Accordingly, after
considering the records and both parties’ exceptions to the Board’s
report and recommendation, we conclude that disbarment is
appropriate for Crowther’s misconduct in these two cases.
2 1. Procedural History
The State Bar initially pursued four separate complaints
against Crowther but dismissed two of the matters. The remaining
cases were State Disciplinary Board Docket (“SDBD”) No. 7134 and
SDBD No. 7390. In SDBD No. 7134, Crowther was charged with
violating Rules 1.8 (e); 1.15 (I) (a), (b), (c), and (d); and 1.15 (II) (a)
and (b). In SDBD No. 7390, he was charged with violating Rules 1.3,
1.4, 1.5, 1.15 (I), 1.15 (II), and 8.4 (a) (4). During litigation of these
matters, Crowther filed two petitions for voluntary discipline,
requesting either a public reprimand or a three-month suspension
to resolve all pending matters. The Special Master rejected both
petitions. Based on Crowther’s admissions, the Bar filed a motion
for summary judgment in SDBD No. 7134, which was granted as to
Rules 1.8 (e); 1.15 (I) (a), (b), and (c); and 1.15 (II) (b). The Special
Master granted summary judgment to Crowther only on Rule 1.15
(II) (a),1 concluding that he did not violate that subsection by
1 Rule 1.15 (II) (a) provides, in relevant part, that all funds “held by a
lawyer in any other fiduciary capacity shall be deposited in and administered from a trust account.”
3 delegating to his office manager the task of administering his trust
account. As to SDBD No. 7390, the Bar filed a motion for summary
judgment, which the Special Master granted in its entirety. The
Special Master held a hearing on aggravation and mitigation on May
24 and 25, 2022.
In her report and recommendation, the Special Master noted
that SDBD No. 7390 arose from a 2019 grievance filed by a client
who had previously filed a grievance against Crowther in 2013 that
was dismissed in 2014. The instant formal complaint was based on
Crowther’s actions that occurred between 2014 and 2019. The
Special Master concluded that the four-year statute of limitation
and two-year tolling provision in Bar Rule 4-222 (a) “authorize[d] a
look-back to February 4, 2014, the date of the dismissal [of the 2013
grievance], or September 4, 2013, the date of the [2013] grievance,
which would be the farthest reach of the six-year look-back.” The
Special Master observed that she could consider matters outside of
the statute of limitation, which would provide “essential context”
and would be relevant to resolving issues involving aggravation and
4 mitigation, Crowther’s mental state, restitution, and a pattern of
misconduct.
2. Special Master’s Report and Recommendation
(a) SDBD No. 7390
In 2006, the client filed a pro se medical malpractice action
against a Macon hospital on behalf of herself, her siblings, and as
the administratrix of her mother’s estate (collectively, “plaintiffs”),
alleging malpractice by the hospital’s nurses in connection with her
mother’s death. Crowther entered the case in 2007. The attorney-
client relationship was governed by a 2009 Retainer Agreement,
which contained a handwritten amendment stating that “[t]his
contract was modified due to client agreeing to pay a portion not to
exceed $25,000.00 of the legal expenses.” The client paid Crowther
$25,000 for legal expenses between 2007 and 2009. The Retainer
Agreement also provided that if the case settled, Crowther’s law firm
would “endorse any check made out to us or to either you or us and
deposit it in our trust account. If the check requires your signature
as well, we will advise you immediately so that you can come in and
5 endorse the check”; the firm would then schedule a meeting with the
client to collect her money and review how the funds had been
disbursed, which would include a statement detailing “exactly
where the money has gone (your proceeds, attorney[ ] fees, payments
to medical providers, other expenses, etc.).” (Emphasis supplied.)
In 2012, Crowther learned from a new expert that the nurses
had not actually deviated from the applicable standard of care. He
pursued settlement with the hospital, and the parties settled in
August 2012. The hospital issued two checks totaling $187,500, with
a $7,500 check paid directly to a defense expert and the remaining
$180,000 paid to the order of the client, individually and as
administratrix of her mother’s estate; to her siblings; and to
Crowther and his law firm. At the time Crowther received the check,
he had not obtained releases of liability from the plaintiffs, which
were required under the terms of the settlement. The reverse side of
the check showed that Crowther deposited it into an account that is
now closed, and that he had endorsed it for himself and “w/p per k”
for the plaintiffs. No one else endorsed the check. Crowther claimed
6 during the disciplinary proceedings that the Retainer Agreement
authorized him to endorse and deposit the check and that the client
had given him permission over the phone to endorse it, but the client
testified that she never gave Crowther such permission. The Special
Master found Crowther’s testimony not credible and rejected his
reading of the Retainer Agreement, noting that the phrase “w/p per
k” meant “with permission per contract,” but the Retainer
Agreement did not authorize Crowther to endorse a check made out
to both his law firm and the plaintiffs without also getting the
plaintiffs to endorse it. The Special Master observed that the client
did not even see the settlement check until 2016, when an attorney
for the hospital gave her a copy.
On September 19, 2012, the parties informed the court of the
settlement and that Crowther had not yet obtained the requisite
releases from the plaintiffs. The court dismissed the case without
prejudice, ordering that Crowther “shall not distribute the proceeds
of any settlement funds until all plaintiffs have executed the
negotiated releases.” A medical lienholder was entitled to some of
7 the settlement funds pursuant to a medical lien, but before making
any disbursements, Crowther needed to negotiate and reduce the
amount of the lien. During the disciplinary hearing, Crowther
asserted that he believed that the order prohibited a distribution to
the plaintiffs until they signed the releases but did not prohibit a
distribution to himself and his firm. Thus, Crowther distributed to
himself $46,875, which he testified was his attorney fee, calculated
as 25 percent of the total $187,500 settlement. However, the Special
Master found that the order was “unequivocal” that Crowther had
to obtain executed releases from the plaintiffs before he could
disburse any of the funds. In October 2012, when the releases had
still not been executed, the hospital filed a motion to enforce the
settlement agreement, requesting that the court dismiss the case
with prejudice to prevent any attempt by the client to relitigate the
claims. The court gave Crowther two weeks to respond, and
dismissed the case with prejudice when he did not. To date, the
plaintiffs have not signed the releases and have received no money
from the settlement.
8 The Special Master found that between the dismissal of the
first grievance in February 2014 and April 2016, Crowther had
removed the settlement funds from his now-closed trust account.
The Special Master stated that in addition to attorney fees,
Crowther distributed to his law firm reimbursements for costs, fees,
and expenses totaling $131,476.08. Crowther could not say how the
funds had been spent because he did not keep individual client
ledgers, and he testified that he no longer had the bank records and
could not obtain them because the bank did not keep records that
far back. He testified at his 2020 deposition in the disciplinary
proceedings that expenses and attorney fees consumed all the funds,
so his client was entitled to nothing.
The client requested an accounting from Crowther in two
certified mailings in 2014, to which he did not respond and which he
later claimed he did not receive. On April 14, 2016, the client made
a written request for her file; Crowther acknowledged that request
and said she could pick it up in June of that year. In further
correspondence during the summer of 2016, the client expressed
9 frustration about not receiving the file yet. An attorney reached out
to Crowther on behalf of the client, and in an August 4, 2016 letter,
Crowther stated that if the attorney represented the client, he would
no longer communicate with the client directly. He also mentioned
that the client owed him $5,997.20 for a copy of her file that he had
made. The Special Master found that the attorney did not become
the client’s lawyer as a result of this communication, and no lawyer
except Crowther had ever represented the client in the post-
settlement phase of the case. The Special Master observed that the
client had requested her original file, and she did not agree to pay
for copies.
By September 2019, the client had received neither proceeds
from nor an accounting of the $180,000, so she filed a second
grievance. In his response to the formal complaint, Crowther stated
under oath that, per the terms of the 2012 court order, he could not
distribute the funds until the plaintiffs had executed releases of
liability and he had negotiated the medical lien. Crowther also
stated that the client had incurred additional expenses for the copies
10 of her file. However, the medical liens were never negotiated or
settled, and none of the proceeds were held separately for the
lienholder or the client until a determination of their interests had
been made. The Special Master found that Crowther had declared
unilaterally that there was no fee dispute and that he had spent all
of the money because the funds were not presently held in any of his
trust accounts.
In response to the 2013 and 2019 grievances, and at the 2022
aggravation/mitigation hearing, Crowther submitted three “draft
closeout statements” reflecting the breakdown of fees, costs, and
expenses, which he had never previously provided to the client. The
2013 draft closeout reflected attorney fees of $62,500 (calculated
based on 33.33 percent instead of 25 percent as stated in the
Retainer Agreement) and expenses of $95,154.34, and the portion
owed to the client was $34,081.16. The Special Master observed that
the Retainer Agreement provided that the firm would “pay up front
any costs in proceeding with your claim, such as travel, fees for
copying records, court costs, and the like,” and those expenses would
11 be reimbursed from the settlement funds. The Special Master noted
that some of the itemized fees in the 2013 draft closeout were
$20,341.12 for photocopies; “standard telephone fee[s]” for
maintaining a landline and cell phone; meals billed at the per diem
rate rather than actual cost; and various office supplies. The 2013
draft closeout also included the cost of providing every student in
Crowther’s trial advocacy class2 with a complete set of discovery and
pleadings, and costs associated with a mock trial, focus groups, and
a psychodramatist. While the attorney fees were correctly calculated
as 25 percent of the settlement in the 2019 and 2022 draft closeouts,
the 2022 draft closeout had a line item of “0” for the medical lien,
and in the 2019 draft closeout, the copying fees included $15,364 in
post-settlement copying costs, reflecting in part the cost of the two
copies of the client’s file made in 2016, billed at $5,997.20 each.
2 In his November 25, 2013 response to the client’s 2013 grievance (which
he attached as “Ex. 2” to his 2020 supplemental answer to the notice of investigation of the 2019 grievance), Crowther stated that the client allowed him to use her case as a case study for his trial advocacy students, that they reviewed parts of the case in class each week, that he printed all of the discovery and pleadings for his students, and that he had printed more than 55,000 pages in connection with the client’s case.
12 Crowther testified in his 2020 disciplinary deposition that the
client’s up-front $25,000 payment was an advance of attorney fees
because he had agreed to reduce his contingency fee to 25 percent.
In contrast, the client testified that she had asked Crowther how
much the case would cost, and he said the total expenses would be
$25,000, but she also contradictorily testified that she may have
been obligated to pay expenses beyond that amount. Citing
principles of statutory construction in construing the fee agreement,
the Special Master resolved this ambiguity and found that the
handwritten amendment in the Retainer Agreement limited the
client’s responsibility for expenses to $25,000. The Special Master
found neither the 2013 nor the 2019 draft closeout documents had a
line item for this payment, and Crowther did not give the client an
accounting of or invoice for the payment.
(i) Rule 1.33
3 Rule 1.3 provides that “[a] lawyer shall act with reasonable diligence
and promptness in representing a client,” and defines “reasonable diligence” to mean that “a lawyer shall not without just cause to the detriment of the client in effect willfully abandon or willfully disregard a legal matter entrusted to the lawyer.”
13 The Special Master concluded that Crowther violated Rule 1.3
by failing to pursue strategies to close the case other than futilely
attempting to have the plaintiffs sign releases, opining that
“[l]eaving the matter in a moribund, unattended state for a decade
was not the answer.” The Special Master further concluded that
Crowther violated Rule 1.3 by ceasing all communication with the
client in 2016, indicating that he had abandoned her, and by failing
to diligently return her file after she requested it.
(ii) Rule 1.44
The Special Master concluded that Crowther violated Rule 1.4
by failing to provide reasonable, necessary, and honest
4 Rule 1.4 provides in relevant part that
(a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0 (l), is required by these rules; ... (3) keep the client reasonably informed about the status of the matter; [and] (4) promptly comply with reasonable requests for information[.] ... (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 14 communication to the client about his disbursal of the settlement
funds. In particular, the Special Master noted that in his response
to the 2013 grievance, Crowther stated that the client was aware
that the settlement proceeds had not been disbursed because she
had not signed the release, and in his 2020 supplemental answer to
the notice of investigation, he stated that he had not made the
disbursements because the case had not concluded.
(iii) Rule 1.5
The Special Master stated that to comply with Rule 1.5 (a),5 a
lawyer must determine a reasonable basis for costs and fees charged
5 A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client;
15 to a client; that fees cannot be used to generate profit; and that only
“hard costs” like court reporter fees and costs of a deposition
transcript can be passed to the client if the fee agreement permits.
But “soft costs” like in-house copying must be calculated to
determine the appropriate basis for the per-copy charge, and
imposing administrative fees to cover soft costs or to increase office
profits to the detriment of the client is prohibited under Rule 1.5.
See also Comment 1 to Rule 1.5 (providing that lawyer may seek
reimbursement of services like in-house copying or phone services
“either by charging a reasonable amount to which the client has
agreed in advance or by charging an amount that reasonably reflects
the cost incurred by the lawyer”).
The Special Master stated that Crowther knew or should have
known that the Retainer Agreement did not allow him to charge the
client over $131,000 in costs and expenses. She examined each of the
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.
16 draft closeouts in detail, and concluded that they contained “clearly
excessive, unreasonable fees and deceptive fees,” in violation of Rule
1.5 (a). The Special Master further noted that the draft closeouts
contained charges for administrative costs (such as photocopies and
phone lines) for the maintenance of Crowther’s law firm, to which
the client did not consent. The Special Master stated that line items
that were not actual reimbursements (such as meals, phone lines,
and copying costs) allowed Crowther to make extra profit from the
client. The Special Master found that the fees and rates in the draft
closeouts were not disclosed in the Retainer Agreement and that
many of the fees were not comparable to the types listed in the
Agreement.
The Special Master further concluded that Crowther violated
Rule 1.5 (a) by charging the client $5,997.20 for a copy of the file he
made for himself before giving her the original file. The Special
Master concluded that this action violated Crowther’s fiduciary
obligation to the client, and his communications about it were
deceptive, including his failure to disclose that he did not intend to
17 give her the original file and that the charge for the copy would be
taken out of the settlement funds.
As to Rule 1.5 (c),6 the Special Master observed that Crowther
acted as though the case was completed, even though he had not
obtained the executed releases from the plaintiffs; negotiated with
the medical lienholder; assessed his outstanding expenses and fees
6 (1) A fee may be contingent on the outcome of the matter for
which the service is rendered . . . . A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. (2) Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the following: (i) the outcome of the matter; and, (ii) if there is a recovery showing: (A) the remittance to the client; (B) the method of its determination; (C) the amount of the attorney fee; and (D) if the attorney’s fee is divided with another lawyer who is not a partner in or an associate of the lawyer’s firm or law office, the amount of fee received by each and the manner in which the division is determined.
18 with invoices and receipts; provided a final accounting; or held a
closeout meeting with the client. The Special Master stated that
Crowther prematurely paid himself the wrong amount because he
treated the client’s $25,000 payment as extra attorney fees and
secretly took the remaining money as costs and fees. The Special
Master concluded that Crowther violated Rule 1.5 (c) (2) (ii) by
failing to provide the written statement required in contingency fee
cases to inform the client about her recovery and how the amount
was determined, which required him to detail the litigation costs,
expenses, and fees.
(iv) Rule 1.15 (I)7
7 Rule 1.15 (I) provides in relevant part:
(a) A lawyer shall hold funds . . . of clients or third persons that are in a lawyer’s possession in connection with a representation separate from the lawyer’s own funds . . . . Funds shall be kept in one or more separate accounts maintained in an approved institution . . . . Complete records of such account funds . . . shall be kept by the lawyer and shall be preserved for a period of six years after termination of the representation. (b) For the purposes of this rule, a lawyer may not disregard a third person’s interest in funds . . . in the lawyer’s possession if: (1) the interest is known to the lawyer, and (2) the interest is based upon one of the following: (i) a statutory lien . . . . The lawyer may
19 The Special Master observed that it was not ascertainable from
any bank records when the settlement funds were disbursed because
Crowther did not manage, account for, or identify funds with
specificity. In fact, he admitted that for years, he systematically
failed to maintain individual client account ledgers or separate
client funds and that he misused his law firm’s local operating and
trust accounts by making payments from one account that should
have been made from the other and not timely moving his own funds
out of the trust account. The Special Master concluded that
disregard the third person’s claimed interest if the lawyer reasonably concludes that there is a valid defense to such lien[.] (c) Upon receiving funds . . . in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds . . . that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (d) When in the course of representation a lawyer is in possession of funds . . . in which both the lawyer and a client or a third person claim interest, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the funds or property as to which the interests are not in dispute.
20 Crowther violated Rule 1.15 (I) (a) by failing to separate the client’s
settlement funds, to maintain a separate ledger for any client’s
funds, or to keep his own funds separate from funds belonging to the
client and the medical lienholder; Rule 1.15 (I) (b) by disregarding
the lienholder’s interest in the settlement funds; and Rule 1.15 (I)
(c) by failing to notify the client and the lienholder about the receipt
of the funds, to promptly disburse the funds due to them, and to
render a full accounting of the funds upon the client’s written
request.
Rule 1.15 (I) (d) by failing to separate the portion of funds subject to
the third-party claim by the lienholder and contested by the client;
to promptly distribute to the lienholder and the client the funds not
in dispute; and to hold the funds separate until there was an
accounting and severance of their interests or until any dispute was
resolved. The Special Master observed that in his response to the
2013 grievance, Crowther did not mention whether he had
distributed any money to himself or his firm, and he had not
21 completed an accounting, so he could not have known how much of
the settlement funds would be owed to the lienholder or how much
would be distributed to the client. Thus, the Special Master
presumed that Crowther “had kept a substantial amount of the
money in his trust account to cover those distributions.” The Special
Master then noted the “missed opportunities” to resolve the
distribution issue, including Crowther’s failure to file a response to
the hospital’s motion to enforce the settlement agreement, or to seek
a judicial remedy such as interpleader.
(v) Rule 1.15 (II) (b)8
In the formal complaint, the Bar alleged that Crowther
violated Rule 1.15 (II) (b) by failing to keep and maintain trust
8 Rule 1.15 (II) (b) provides that
[n]o personal funds shall ever be deposited in a lawyer’s trust account, except that unearned attorney’s fees may be so held until the same are earned. Sufficient personal funds of the lawyer may be kept in the trust account to cover maintenance fees such as service charges on the account. Records on such trust accounts shall be so kept and maintained as to reflect at all times the exact balance held for each client or third person. No funds shall be withdrawn from such trust accounts for the personal use of the lawyer maintaining the account except earned lawyer’s fees debited against the account of a specific client and recorded as such. 22 account records showing the exact balance of the funds held for the
client and the lienholder, and by withdrawing funds for his personal
use without first debiting the amount against his trust account
records and recording it. The Special Master summarily concluded
that Crowther admitted to violating Rule 1.15 (II) (b) in his answer
to the formal complaint.
(vi) Rule 8.4 (a) (4)9
The Special Master concluded that Crowther violated Rule 8.4
(a) (4) because, at some point between February 2014 and April
2016, he took the entire amount of the settlement proceeds
“surreptitiously, in a manner to avoid scrutiny or accountability.”
The Special Master also concluded that Crowther violated Rule 8.4
(a) (4) by knowingly making false statements about the nature of the
client’s $25,000 advance payment during the disciplinary
proceedings because during his 2020 deposition, he claimed that the
meaning of “legal expenses” was ambiguous, resulting in a
9 Rule 8.4 (a) (4) provides that a lawyer violates the GRPC when he
“engage[s] in professional conduct involving dishonesty, fraud, deceit or misrepresentation.” 23 difference of interpretation between him and the client. The Special
Master observed that OCGA § 13-2-2 provides rules of contract
interpretation, including that “[t]he custom of any business or trade
shall be binding only when it is of such universal practice as to
justify the conclusion that it became, by implication, a part of the
contract,” and that “[i]f the construction is doubtful, that which goes
most strongly against the party executing the instrument or
undertaking the obligation is generally to be preferred.” OCGA § 13-
2-2 (3), (5). The Special Master noted that attorneys routinely
differentiate between attorney fees and expenses, so under OCGA §
13-2-2 (3) and (5), the client’s understanding of the payment as being
for expenses prevailed. The Special Master then stated that in his
response to the 2013 grievance, Crowther had only admitted that
the $25,000 was for “initial” expenses, contrary to the Retainer
Agreement’s characterization of it as the upper limit of the client’s
responsibility for expenses. Moreover, in his response to the 2013
grievance, Crowther stated that the client was given an accounting
showing that the $25,000 had been exhausted during litigation.
24 However, the alleged accounting was never produced, and the client
denied receiving it.
Rule 8.4 (a) (4) by stating in his 2020 supplemental answer to the
notice of investigation that he had not made the disbursements
because the case had not concluded. The Special Master concluded
that this statement, which was made under oath, was false and
misleading, and was carefully crafted to give the client hope for a
disbursement, though Crowther knew all of the money had been
distributed to him and his firm by 2016.
(b) SDBD No. 7134
In 2016, Crowther settled two personal injury matters on
behalf of two sets of clients. A financing company had provided
“settlement financing” in both matters in exchange for which the
clients granted it a lien on any settlement. After Crowther settled
the matters, money was deposited into his trust account. He paid
other lienholders, but did not pay the financing company, even
though its liens were designated on the closeout documents in each
25 case. A representative of the financing company filed a grievance in
2018, claiming that Crowther failed to pay liens of $3,298 and
$1,220. Crowther paid those amounts to the financing company after
the grievance was filed with personal funds that he deposited into
his trust account. He acknowledged that his management of the
accounts was deficient and admitted to improperly advancing $100
to one of the clients so that she could buy a medically recommended
bed. The Special Master found that Crowther failed to protect the
interests of the financing company at the time the settlement funds
were disbursed to the clients, and he did not notify the financing
company of the settlements.
The Special Master observed that the investigation of the
grievance included an examination of the trust and operating
accounts for Crowther’s law firm, which focuses on personal injury
cases involving contingency fee agreements. Three years of bank
statements were produced in discovery, as well as ledgers and other
accounting documents. The Special Master noted that, contrary to
the trust accounting rules, Crowther initially deposited all of the
26 money he earned into his trust account, even money from flat-fee
cases and rents he was owed, which mingled with funds owed to
clients and third parties. Sometimes, his trust account would fall
below the amount he needed to pay clients, which required him to
put his own money in the account, pay liens on settlement funds via
credit card or from his operating account, or transfer money from his
operating account to his trust account. He also left much of the
financial administration up to his bookkeeper’s discretion. The
Special Master opined that Crowther’s careless administration and
poor recordkeeping of his trust account resulted from inadequate
protocols and a failure to regularly account for the status of
individual client funds.
(i) Rule 1.8 (e)10
The Special Master concluded that Crowther violated Rule 1.8
(e) because he admitted that before the settlement funds were
received in one of the personal injury cases, he advanced money to
10 Rule 1.8 (e) provides that “[a] lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation,” subject to exceptions not relevant here.
27 the client so that she could purchase a medically recommended bed.
The Special Master further observed that Crowther occasionally
used his credit cards to pay clients’ medical bills and expenses before
reimbursing himself from client funds transferred from his trust
account to his operating account.
(ii) Rule 1.15 (I)
The Special Master concluded that Crowther violated Rule 1.15
(I) (a) based on his admission that he was responsible for the funds;
that his trust account lacked proper safeguards, resulting in
temporary shortfalls; that he sometimes paid client expenses,
including liens, out of his operating account; and that he failed to
maintain trust account records showing the exact balances for each
client or to preserve such records for six years. She concluded that
Crowther violated Rule 1.15 (I) (b) based on his admission that he
disregarded the financing company’s interest in the funds by failing
to maintain in his trust account the amount of the liens, even though
the closeout documents in both personal injury cases referenced the
liens. The Special Master concluded that Crowther violated Rule
28 1.15 (I) (c) by failing to notify the financing company of the
settlement or to promptly deliver its funds.
(iii) Rule 1.15 (II)
The Special Master concluded that Crowther admitted to
violating Rule 1.15 (II) (b) by depositing personal funds into the
trust account and by failing to maintain the required records.11
(c) Application of ABA Standards
The Special Master then turned to the ABA Standards for
Imposing Lawyer Sanctions (“ABA Standards”), to analyze in both
matters (1) the duties violated; (2) Crowther’s mental state; (3) the
actual or potential injury caused by his misconduct; and (4)
applicable aggravating and mitigating factors. See In the Matter of
Morse, 265 Ga. 353, 354 (456 SE2d 52) (1995).
(i) Duties Violated
The Special Master noted that, in connection with SDBD No.
7390, she considered only the duties Crowther violated after the
11 The Special Master reiterated that she had granted summary judgment to Crowther on Rule 1.15 (II) (a), and the Bar does not contest this conclusion.
29 2013 grievance was dismissed, which included the duties of
diligence; communication; transparency and reasonableness in
matters regarding fees and expenses; candor; and integrity in
professional practice. As to SDBD No. 7134, the Special Master
found that Crowther violated his duty to avoid conflicts of interest.
As to both matters, the Special Master found that he violated his
duty of safekeeping property and trust accounts.
(ii) Mental State
With respect to Rule 1.15 (I) (a), the Special Master found that
the Bar did not produce evidence that Crowther intentionally set up
his trust account to be out of compliance with the trust accounting
rules, and that there was no evidence that he had attended CLEs on
trust accounts or consulted with other attorneys or the Bar’s Law
Practice Management Program (the “Program”). However, she found
that Crowther declined an offer from the Program to review the
firm’s trust account. Moreover, by delegating to his bookkeeper
authority over his accounts without guidance or direction, Crowther
knowingly ignored trust account rules. The Special Master found
30 that Crowther intended that money be deposited into and released
from his trust account pursuant to the scheme created by the
bookkeeper; that client funds would not be separated or accounted
for with accurate ledgers; and that records would not be kept on the
funds. The Special Master found that Crowther intentionally put
earned fees or other personal funds into the trust account and
knowingly paid client expenses using credit cards or the firm’s
operating account. Additionally, the Special Master stated that
Crowther intentionally failed to resolve the medical lien in SDBD
No. 7390 or to hold the settlement funds until the lien was paid, and
he paid the financing company’s lien in SDBD No. 7134 only after
the grievance was filed. In SDBD No. 7390, the Special Master found
that Crowther acted intentionally, exhibiting a pattern of behavior
driven by “unrestrained greed and profiteering,” when he signed the
settlement check without the client’s permission, disbursed the
settlement funds to himself in violation of the 2012 court order, and
continued to misrepresent to the Bar and the client that the
31 settlement funds were available until he admitted at his 2020
deposition that they had all been disbursed.
(iii) Actual or Potential Injury
The Special Master found that the grievants in both matters
suffered serious injury. In SDBD No. 7134, the financing company
suffered actual injury when Crowther failed to notify it and pay the
liens from the settlement funds, but that injury was remediated
when Crowther paid the liens after the grievance was filed. In SDBD
No. 7390, the client and her siblings suffered actual injury due to
the unresolved medical lien and because Crowther paid himself the
settlement funds that belonged to them. The Special Master noted
that the 2022 draft closeout reflected that he owed the client
$34,148.92, and Crowther testified that he was prepared to pay that
amount.
(iv) Aggravation and Mitigation
The Special Master then summarized testimony from the
aggravation/mitigation hearing, with particular focus on SDBD No.
7390 and the client’s testimony, and testimony from Crowther’s
32 numerous character witnesses. The Special Master also summarized
in detail Crowther’s own testimony, in which he referred to the client
and her sister in SDBD No. 7390 as “elderly ladies” and “like family,”
and stated that he did not intend for the case to go unresolved for so
long and that he wished they could reach an agreement about how
much money the plaintiffs were owed. Nonetheless, he maintained
that under the Retainer Agreement, he was entitled to all of the fees
and expenses he had disbursed to his firm.
Crowther also testified that he often adjusts a client’s expenses
where “real money” was not involved (such as legal research, phone
lines, and making copies), and in automobile accident cases, he
waives fees until his attorney fee is less than the amount the client
will receive. Crowther has a new bookkeeper to handle his bank
accounts, tracks costs and expenses appropriately, and has hired an
accountant to conduct quarterly audits. Crowther’s experience in
law firms before starting his own practice did not include education
about trust accounts, though he acknowledged that he was
responsible for knowing the trust account rules. Crowther testified
33 about being active in his church, supporting programs that help low-
income students improve their college admissions scores and
increase their chances of getting into good colleges, and allowing law
students to shadow him.
In aggravation, the Special Master found that Crowther acted
with a dishonest or selfish motive in connection with SDBD No.
7390, engaged in a pattern of misconduct, and committed multiple
offenses. See ABA Standard 9.22 (a), (c)-(d). The Special Master
found that Crowther submitted false evidence or statements or
engaged in deceptive practices during the disciplinary process, see
ABA Standard 9.22 (f), because in connection with SDBD No. 7390,
he made false statements during the investigatory phase of the 2013
grievance; failed to correct those statements until his 2020
deposition; gave false deposition testimony about the nature of the
client’s $25,000 payment; and gave false testimony at the
aggravation/mitigation hearing about receiving verbal permission
from the client to endorse the settlement check. The Special Master
found that Crowther refused to acknowledge the wrongful nature of
34 his conduct, see ABA Standard 9.22 (g), because for a long time, he
maintained a belief that his bookkeeper bore some responsibility for
his accounting practices not being compliant with the GRPC; that in
connection with SDBD No. 7390, he did not acknowledge any
wrongdoing except for his systemic trust accounting issues, and his
2022 draft closeout still charged the client for fees and expenses that
were not permitted by the Retainer Agreement; and that when
asked by Bar counsel whether he believed he had been diligent in
resolving the client’s case, he gave several non-responsive answers,
which “typifies the strained efforts [he] made to avoid responsibility
and accountability.”
The Special Master found that Crowther, a member of the
State Bar of Georgia since 2000, had substantial experience in the
practice of law; that he was indifferent to making restitution
because he did not make restitution in SDBD No. 7134 until after
the grievance was filed, and has never made restitution in SDBD
No. 7390; and that the plaintiffs in SDBD No. 7390 were vulnerable
victims due to their advanced ages, among other reasons. See ABA
35 Standard 9.22 (h)-(j). Finally, the Special Master found that
Crowther had committed illegal conduct in SDBD No. 7390, see ABA
Standard 9.22 (k), noting that in 2014, the client contacted law
enforcement to have him investigated for fraud, but that
investigation was closed without charges being filed. Nonetheless,
the Special Master found that Crowther’s actions, including
misrepresenting his authority to endorse the settlement check,
siphoning money from the settlement funds, and misrepresenting
from 2014 until 2020 that the money was still available for
distribution, constituted theft under OCGA § 16-8-2 and forgery
under OCGA § 16-9-1 (d).
In mitigation, the Special Master found that Crowther had no
prior disciplinary record; he had a good reputation as an attorney;
he presented testimony of his good character; and he served low-
income students through mentoring and scholarships. See ABA
Standard 9.32 (a), (g).
(d) Recommendation of Discipline
36 Crowther sought a six-month suspension, while the Bar sought
disbarment. The Special Master extensively reviewed cases cited by
Crowther and the Bar. See, e.g., In the Matter of Cook, 311 Ga. 206
(857 SE2d 212) (2021) (rejecting recommendations of the special
master and review board and imposing public reprimand for
attorney’s violations of Rules 1.15 (I) and 1.15 (II) when clients were
not harmed; substantial mitigating factors were present; and the
only aggravating factors were substantial experience and pattern of
misconduct); In the Matter of Berry, 310 Ga. 158, 158-159 (848 SE2d
71) (2020) (disbarring attorney in default on a notice of discipline for
violations of Rules 1.2 (a), 1.3, 1.4, 1.5 (b) and (c) (2), 1.15 (I), and 8.4
(a) (4) when numerous aggravating factors were present); In the
Matter of Gorman, 294 Ga. 726, 726-727 (755 SE2d 746) (2014)
(accepting special master’s recommendation and disbarring
attorney for violations of Rules 1.3, 1.4, 1.15 (I), 1.15 (II), and 8.4 (a)
(4) when no mitigating factors and three aggravating factors were
present). The Special Master also examined Favors, 283 Ga. at 588-
589, in which an attorney filed a petition for voluntary discipline and
37 received a three-year suspension for her violations of Rules 1.15 (I),
8.1 (a), and 8.4 (a) (4), for spending part of the settlement funds for
herself instead of paying a third party who was entitled to the
money, lying about where the funds had gone, and lying to the
investigative panel during the disciplinary proceeding.
After observing that the aggravating factors significantly
outweighed the mitigating factors, the Special Master recommended
that Crowther be disbarred and that he make restitution to the
client in SDBD No. 7390 in the amount of $140,625, plus interest at
the statutory rate, calculated starting in August 2012. The Special
Master noted that the amount of restitution represented the total
settlement amount of $187,500, less Crowther’s 25 percent attorney
fee ($46,875), and crediting the client with the $25,000 she had
already paid as expenses pursuant to the Retainer Agreement.
Crowther filed exceptions to the Special Master’s report and
recommendation and sought review by the Review Board.
3. Review Board’s Report and Recommendation
38 The Review Board found that the Special Master’s factual
findings were not clearly erroneous or manifestly in error and that
her conclusions of law were correct. See Bar Rule 4-216 (a). The
Board thus adopted and incorporated by reference the Special
Master’s findings and conclusions. Turning to the ABA Standards,
the Board also agreed with the Special Master’s analysis of the
duties violated, the lawyer’s mental state, and the potential or
actual injury.
The Board disagreed, however, with the Special Master’s
balancing of aggravation and mitigation. The Board opined that the
Special Master erred by finding that Crowther’s experience in the
practice of law was aggravating instead of mitigating because
Crowther’s “inexperience, specifically the lack of mentors,
contributed to his conduct.” The Board further opined that the
length of time one has practiced law does not negate the fact that
issues may arise if a lawyer does not have proper training or
mentors, and it believed that Crowther did not receive proper
training in law firm management, which explained but did not
39 excuse his conduct. The Board then stated that the Special Master
“did not give enough weight” to the mitigating factors, noting that
Crowther had shown significant evidence of his good reputation and
character and his lack of prior discipline and opining that the
Special Master did not fully appreciate his service to
underprivileged students. Moreover, the Board stated that it was
apparent during Crowther’s oral argument before the Board that his
remorse was genuine. Therefore, the Board recommended that
Crowther be suspended for four years, with reinstatement
conditioned upon paying restitution to the client in SDBD No. 7390
in the amount of $140,625, plus statutory interest from August
2012. The Board stated that it relied on Favors, 283 Ga. at 588, a
case in which the defendant who sought voluntary discipline
received a three-year suspension, as a similar case that resulted in
discipline short of disbarment. The Review Board did not cite any
authority from Georgia or otherwise that supports imposition of a
four-year suspension instead of disbarment.
40 Both the Bar and Crowther filed exceptions in this Court as to
the Board’s report and recommendation.
4. State Bar’s Exceptions and Crowther’s Response
The Bar contends that the Board erred by concluding that
Crowther’s legal experience was not an aggravating factor, even
though he had been practicing for 14 years at the start of the
limitation period for the 2019 grievance. The Bar observes that the
Special Master found Crowther admitted it was his responsibility to
know the trust accounting rules, and that he had substantial
experience as a plaintiff’s lawyer in contingency fee cases. As to
Crowther’s false deposition testimony during the disciplinary
proceeding, the Bar asserts that “[n]o Georgia lawyer should require
a mentor or training or a CLE to know not to lie or misrepresent
facts during a deposition.” The Bar further contends that the Board
erred by reweighing the aggravating and mitigating factors because
there is no evidence of Crowther’s remorse in the disciplinary
records, and the Special Master did credit the voluminous evidence
of Crowther’s good character, reputation, and service to
41 underprivileged students. The Bar argues that although the Special
Master purported to find four mitigating factors, those factors fall
under only two categories in the ABA Standards — lack of prior
discipline and good character or reputation, see ABA Standard 9.32
(a) and (g) — and that two (or four) mitigating factors do not
outweigh nine aggravating factors.
Finally, the Bar asserts that the Board erred by recommending
a four-year suspension instead of disbarment because (1)
“[g]enerally, suspension should be for a period of time equal to or
greater than six months, but in no event should the time period prior
to application for reinstatement be more than three years”; (2) this
Court previously rejected a five-year suspension in a different
disciplinary case because it was unsupported by precedent, the
evidence supported a more severe sanction, and the grievances
revealed “a disturbingly extensive pattern of similar misconduct
extending over a period of several years,” In the Matter of Briley-
Holmes, 304 Ga. 199, 208 (815 SE2d 59) (2018); and (3) Favors is
distinguishable because it was initiated as a petition for voluntary
42 discipline and the attorney presented evidence of numerous
mitigating factors not present in either of Crowther’s matters. The
Bar maintains that disbarment is the appropriate sanction. See In
the Matter of Hunt, 304 Ga. 635, 636-637, 641-644 (820 SE2d 716)
(2018) (accepting special master’s recommendation and disbarring
attorney who stole client funds from his trust account and converted
them to his own use and the aggravating factors outweighed the
mitigating factors).
In response, Crowther argues that the Board correctly
reweighed the aggravating and mitigating factors because when he
was hired by the client in SDBD No. 7390 in 2007, he had little
experience with the trust accounting rules; that Hunt is
distinguishable because that attorney intentionally stole client
funds but here, Crowther believed he was entitled to a portion of the
settlement funds for his attorney fees and expenses; and that his
violations of the trust accounting rules were merely negligent
instead of intentional, but he has remedied those deficiencies and he
43 promptly paid the financing company’s liens in SDBD No. 7134 once
he became aware of them.
5. Crowther’s Exceptions and State Bar’s Response
In Crowther’s exceptions, he first argues that the Board
erroneously approved the Special Master’s summary judgment
rulings, which improperly resolved disputed issues of fact in SDBD
No. 7390 as to his belief about whether he could disburse the
settlement funds to himself, whether his statements in response to
the 2013 grievance were untrue, and whether his conduct violated
Rule 8.4 (a) (4). Second, Crowther contends that the Board
erroneously approved the Special Master’s consideration of matters
that occurred before the 2013 grievance was dismissed because the
Bar stipulated that he was not subject to discipline for that conduct,
since it fell outside the four-year statute of limitation in Bar Rule 4-
222 (a). Crowther further contends that the Bar was not entitled to
rely on the two-year tolling provision in Bar Rule 4-222 (a) because
the Bar failed to show that Crowther or his actions were unknown
during that period. Third, Crowther contends that there was no
44 clear and convincing evidence in SDBD No. 7390 that he violated
Rule 1.5 because the Bar presented no evidence that the rates he
used to calculate expenses for meals, copies, and travel were
unreasonable; that there was no clear and convincing evidence that
he violated Rule 8.4 (a) (4) because the Special Master did not find
that he intended to be deceitful, fraudulent, dishonest, or to make
misrepresentations; and the Special Master erred in SDBD No. 7134
by finding that he was indifferent to making restitution to the
financing company and that his violations of the GRPC were
intentional and knowing, rather than negligent.
Finally, Crowther observes that he came from a low-income
background, but ultimately went to college, served in the Army, and
attended law school, and he now mentors and teaches law students
from his community, who are historically underrepresented in the
legal profession. He argues that a four-year suspension is excessive
and not supported by case law, and he requests a two-year
suspension with restitution to be paid to the client in SDBD No.
45 7390, though he contends the amount should be adjusted to reflect
the expenses documented in the 2013 draft closeout.
The Bar responds that the Special Master properly granted
summary judgment; that her conclusions as to each of the Rules
Crowther violated were correct; and that her findings as to
Crowther’s restitution to the financing company and as to his mental
state were supported by the evidence. The Bar argues that although
it did not allege that Crowther violated the GRPC before February
2014, that did not limit inquiry by the Special Master and Board into
the history of the case and the facts giving rise to his ongoing
violations of the GRPC. The Bar argues that it was entitled to tolling
because Crowther’s offenses were unknown at the time it dismissed
the 2013 grievance because the violations had not yet occurred and
the client had not yet notified the Bar. See In the Matter of Allison,
267 Ga. 638, 641-642 (481 SE2d 211) (1997) (in a case where the
investigative panel initiated a grievance in 1992 for acts occurring
between 1986 and 1988, holding that when a victim does not come
forward within the statute of limitation, the Bar may take
46 advantage of the two-year tolling provision). The Bar also asserts
that Crowther is estopped from arguing that the Special Master
erred by considering evidence from before February 2014 because
Crowther himself presented that evidence to support his defense.
The Bar notes that the Special Master explicitly limited her
consideration of Crowther’s violations of the GRPC to conduct that
occurred after February 2014, and she correctly considered all
relevant evidence in her analysis of the ABA Standards.
6. Analysis and Conclusion
In reviewing the Special Master’s findings of fact and
conclusions of law, the Review Board reweighed facts found by the
Special Master, even though the Review Board did not conclude that
the Special Master’s factual findings were clearly erroneous. With
respect to this reweighing, we note the following.12 We disagree with
12 We note that the Bar Rules do not expressly prohibit the Review Board
from reweighing the Special Master’s findings as to aggravation and mitigation. But to the extent that the Review Board made additional findings with respect to disputed issues (e.g., findings about Crowther’s community service or his level of remorse), we caution the Review Board that these are the sort of fact and credibility findings that generally should be left to the Special Master in the first instance. See Bar Rule 4-216 (a).
47 the Review Board that Crowther’s legal experience was mitigating.
In 2014, the earliest time of the misconduct for which the Bar seeks
discipline, Crowther had been practicing law for 14 years in total,
and he had been a solo practitioner at least since 2007, when the
elderly client hired him. Under the circumstances presented by this
case, Crowther’s alleged lack of mentors and experience with
handling trust accounting matters is immaterial to the question of
whether he had substantial experience in the practice of law.13
Moreover, we agree with the Bar that the Board placed more
emphasis on Crowther’s service to his community than was
appropriate. Additionally, we note that even if the Board was correct
that the Special Master erred by failing to find that Crowther
exhibited remorse, the balance of aggravating and mitigating factors
would still weigh heavily in favor of aggravation. Finally, we agree
with the Bar that Favors is distinguishable. Although Favors
13 The Review Board’s reliance on Crowther’s alleged lack of mentoring
rings particularly hollow in light of Crowther’s own assertion that he should be given the benefit of mitigation for serving as a mentor to underprivileged students.
48 involved similar violations of the GRPC, it came before the Court on
a petition for voluntary discipline and numerous mitigating factors
were present — including the fact that the attorney had made
restitution, which Crowther has failed to do in SDBD No. 7390 —
and resulted in a three-year, rather than a four-year, suspension.
Further, the Board cited no authority from Georgia or otherwise to
support a four-year suspension, and “a three-year suspension . . . is
generally the maximum amount of time this Court will consider for
a suspension.” In the Matter of Van Dyke, 316 Ga. 168, 177 (886
SE2d 811) (2023).
We reject all of Crowther’s exceptions. As a threshold matter,
we note that while the Special Master summarized matters that
occurred outside of the statute of limitation in SDBD No. 7390, she
did so only to establish the background of the case, to examine the
aggravating and mitigating evidence, and to determine the
appropriate amount of restitution. Her conclusions as to Crowther’s
violations of the GRPC only deal with his misconduct during the
applicable limitation period, 2014 to 2019. Moreover, the Bar was
49 entitled to take advantage of the two-year tolling provision in Bar
Rule 4-222 (a) because when it dismissed the 2013 grievance in
2014, Crowther’s future violations of the GRPC (i.e., disbursing all
of the settlement funds at some point between 2014 and 2016;
attempting to charge the client for two copies of her voluminous file
even though she had requested the original; and lacking diligence in
returning the client’s file, providing an accounting, or resolving the
dispute over the funds) were unknown and in fact, had not yet
occurred.
Second, Crowther’s argument that the Special Master erred by
granting summary judgment as to alleged disputes of material fact
in SDBD No. 7390 lacks merit. The Special Master properly
reviewed the record and concluded that, as a matter of law,
Crowther’s conduct from 2014 to 2019 violated the provisions of the
GRPC with which he was charged because (1) the superior court’s
2012 order prohibited Crowther from making any distributions until
the plaintiffs had executed releases of liability, but Crowther
distributed the settlement funds to himself between 2014 and 2016
50 even though the plaintiffs had never executed the releases, and (2)
Crowther’s response to the 2013 grievance stated that the client
knew the funds had not been distributed because she had not yet
executed a release of liability, indicating that the funds were still
available to be distributed at that point.
As to Crowther’s argument that there was no clear and
convincing evidence that he violated Rule 8.4 (a) (4), we have defined
“conduct involving dishonesty, fraud, deceit, or misrepresentation”
under Rule 8.4 (a) (4) to mean “conduct that is intended or likely to
mislead another.” In the Matter of Woodham, 296 Ga. 618, 625 (769
SE2d 353) (2015). The Bar charged Crowther with violating Rule 8.4
(a) (4) by making false statements to “[his client] and others about
the status of settlement funds” and by converting those funds for his
own use. While the Special Master granted summary judgment on
Rule 8.4 (a) (4) based on Crowther’s misleading statements to the
client that funds were still available to be distributed, the Special
Master also granted summary judgment on Rule 8.4 (a) (4) based on
conduct that was not charged. To the extent the Special Master
51 found Crowther in violation of conduct under Rule 8.4 (a) (4) that
was not charged, we do not address that conduct and consider it only
in aggravation. Cf. Inquiry Concerning Coomer, 316 Ga. 855, 873
(892 SE2d 3) (2023).14
Crowther’s argument that the Special Master erroneously
granted summary judgment on Rule 1.5 similarly lacks merit, as the
Special Master correctly concluded that it was undisputed that the
draft closeouts submitted by Crowther reflected expenses of over
$130,000 and included exorbitant charges for soft costs such as
copying and telephone lines that were impermissible under the
Rule. Pretermitting whether his payments to the financing company
after the grievance was filed in SDBD No. 7134 preclude a finding
of indifference to making restitution in that matter, the Special
14 As we explained in a recent judicial discipline matter, “imposing discipline on a judge solely based on the judge’s response to a JQC inquiry, without the JQC first filing formal charges against the judge alleging such conduct constituted a violation of the Code of Judicial Conduct, might raise due process concerns.” Inquiry Concerning Coomer, 316 Ga. at 874 n. 19. Similarly, in this Bar discipline case, we consider uncharged offenses that arose during the disciplinary process only as an aggravating factor in determining the proper sanction.
52 Master also found that this aggravating factor applied in SDBD No.
7390, because Crowther had never made restitution to the client in
that matter.
Finally, Crowther’s argument that a two-year suspension is
warranted in light of his good character and service to his
community is unpersuasive. While we commend his community
service, a two-year suspension is not supported by precedent or by
the records in these two disciplinary matters. We have previously
disbarred attorneys for violating the trust accounting rules and
other provisions of the GRPC when numerous aggravating factors
are present, even if the attorney provides evidence of his good
character and reputation. See, e.g., Berry, 310 Ga. at 158-159
(disbarring attorney in default on a notice of discipline for violations
of Rules 1.2 (a), 1.3, 1.4, 1.5 (b) and (c) (2), 1.15 (I), and 8.4 (a) (4)
when numerous aggravating factors were present); Hunt, 304 Ga. at
636-637, 641-644 (disbarring attorney for violations of Rules 1.15 (I),
1.15 (II), and 8.4 (a) (4) when numerous aggravating factors were
present); In the Matter of Harris, 301 Ga. 378, 379 (801 SE2d 39)
53 (2017) (accepting special master’s recommendation and disbarring
attorney for violating Rules 1.15 (I) and 1.15 (II); attorney in default
on formal complaint); Gorman, 294 Ga. at 726-727 (accepting special
master’s recommendation and disbarring attorney for violations of
Rules 1.3, 1.4, 1.15 (I), 1.15 (II), and 8.4 (a) (4) when no mitigating
factors and three aggravating factors were present).
Having carefully reviewed the records, we agree with the
Special Master that disbarment is the appropriate sanction for
Crowther’s misconduct in these two disciplinary matters, in which
he violated Rules 1.3, 1.4, 1.5, 1.8 (e), 1.15 (I), 1.15 (II), and 8.4 (a)
(4), with reinstatement conditioned upon the payment of restitution
to the client in SDBD No. 7390 in the amount of $140,625, plus
interest at the statutory rate from August 2012. See In the Matter of
Davis, 316 Ga. 30 (885 SE2d 771) (2023) (disbarring attorney for
violations of Rules 1.7, 1.15 (I), 1.15 (II), 3.4, 3.5 (d), 8.1 (b), and 8.4
(a) (5), with reinstatement conditioned upon the full payment of a
probate judgment that arose from the attorney’s professional
misconduct); In the Matter of Anderson, 286 Ga. 137 (685 SE2d 711)
54 (2009) (disbarring attorney for violations of Rules 1.15 (I) and 1.15
(II), with reinstatement conditioned upon repayment of a judgment,
making restitution, and completing the State Bar’s Law Practice
Management Program); In the Matter of Oellerich, 278 Ga. 22 (596
SE2d 156) (2004) (disbarring attorney for using his client’s estate as
a source of funds for his close corporation, with reinstatement
conditioned upon his making full restitution to the estate).
Accordingly, it is hereby ordered that the name of Derric Crowther
be removed from the rolls of persons authorized to practice law in
the State of Georgia. Crowther is reminded of his duties pursuant to
Bar Rule 4-219 (b).
Disbarred. All the Justices concur.
55 Decided January 17, 2024 — Reconsideration denied February 20,
2024.
Disbarment.
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.
Ivan A. Gustafson; Bovis Kyle Burch & Medlin, Kim M.
Jackson, D. Garrett Anderson, for Crowther.
Related
Cite This Page — Counsel Stack
318 Ga. 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-derric-crowther-two-cases-ga-2024.