In the Matter of Edward Neal Davis

306 Ga. 381

• Court: Supreme Court of Georgia
• Decided: July 1, 2019
• Docket: S19Y0608
• Status: Published

Opinion

306 Ga. 381 FINAL COPY

S19Y0608. IN THE MATTER OF EDWARD NEAL DAVIS.

PER CURIAM.

This disciplinary matter is before the court for a second time.

See In the Matter of Davis, 303 Ga. 564 (814 SE2d 383) (2018)

(“Davis I”). In Davis I, this Court rejected Edward Neal Davis’s

petition for voluntary discipline that sought a Review Panel

reprimand. Upon remand, special master Michael E. Sumner was

appointed. Following a hearing, the special master issued a report

recommending a 90-day suspension for Davis’s misconduct in

notarizing a signature that he did not witness and for a technical

violation of rules governing trust accounts. But given the mitigating

factors present, we conclude that a public reprimand ⸺ a less severe

punishment than a suspension ⸺ is the appropriate sanction.

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

the record, show that the improper notarization arose out of Davis’s

representation of a client in its 2009 purchase of real estate jointly owned by a husband and wife. Davis knew the couple and previously

had represented them in real estate transactions. For the 2009

transaction, Davis prepared the Warranty Deed and Owners’

Affidavit in the couple’s names as grantors. At closing, Davis

notarized the signatures of both the husband and wife on the

Warranty Deed and Owners’ Affidavit; the wife was not present, but

the husband was. It later became apparent (in the couple’s 2012

divorce proceedings) that the wife had not signed either document.

Davis admitted that he failed to take any independent steps to verify

that the wife had signed the documents and that he relied on the

husband’s representations. Although it is not known who signed the

wife’s name, there is no evidence in the record that Davis forged her

signature. When the wife learned of the sale for the first time in

divorce proceedings, she retained counsel, and filed a quiet title

action against Davis’s client that had purchased the property. She

ultimately entered into a settlement agreement with Davis’s client

in which she ratified the sale and dismissed all claims to the

property, but did not receive any compensation.

2 As the special master correctly concluded, these facts support

a finding of violations of Rules 4.1 (a) and 8.4 (a) (4) of the Georgia

Rules of Professional Conduct found in Bar Rule 4-102 (d). See, e.g.,

In the Matter of Cherry, 305 Ga. 667 (827 SE2d 239) (2019)

(preparing and sending letter with false signature and notarization

violated Rules 4.1 and 8.4 (a) (4)); In the Matter of Davis, 291 Ga.

169 (728 SE2d 548) (2012) (violation of Rule 8.4 (a) (4) established

by attorney’s action of falsifying client’s signature on court

documents and having those signatures notarized).

The trust account violation arose out of a $15,000 loan Davis

obtained from a former client in 2011. In 2012, Davis obtained a loan

from a third party to repay the loan from the former client with

interest. Davis deposited the proceeds from the third party into his

trust account, thus mingling personal and trust funds. Davis then

repaid the former client with a check drawn on the trust account for

the amount he had just deposited, thus using the trust account for

personal use.

3 The special master found that the improper use of the trust

account was negligent, but unintentional, noting that Davis

maintained his trust account at the same bank as his personal

account. These facts support the conclusion that Davis’s conduct

constitutes a violation of Rules 1.15 (I) (a) and 1.15 (II) (b). See In

the Matter of Howard, 292 Ga. 413, 414 (738 SE2d 89) (2013)

(technical violation of Rule 1.15 occurred when attorney mistakenly

deposited check into operating account rather than in trust account

and mistake led to check drawn on trust account being returned for

insufficient funds).

With regard to the appropriate mitigating and aggravating

factors to consider, we look, as is our custom, to the American Bar

Association Standards for Imposing Lawyer Sanctions (1992). See

In the Matter of Morse, 266 Ga. 652, 653 (470 SE2d 232) (1996). In

this matter, we find pertinent that Davis has no prior disciplinary

history; that he lacked an intent to cause harm; that there was no

dishonest or selfish motive; that he has accepted responsibility for

his actions; that he has expressed remorse; and that he has

4 cooperated in the disciplinary process. See ABA Standards 9.32 (a),

(b), (e), and (l); see also In the Matter of Swain, 290 Ga. 678, 679 (725

SE2d 244) (2012) (recognizing lack of intent to cause harm as

mitigating factor for Rule 8.4 (a) (4) violation). The special master’s

report does not identify any aggravating factors, but we note that

Davis has substantial experience in the practice of law, as he has

been a member of the Bar since 1990. See ABA Standard 9.2.

Considering the facts and the mitigating and aggravating

factors, we conclude that a public reprimand is the appropriate

sanction in this case and is consistent with discipline imposed in

prior, similar cases. See In the Matter of West, 301 Ga. 901 (804 SE2d

340) (2017) (imposing Review Panel reprimand for violations arising

out of attorney having signed his client’s name to an application for

asylum without any intent to deceive or falsify); In the Matter of

Ellis, 296 Ga. 83 (764 SE2d 856) (2014) (imposing Review Panel

reprimand for attorney’s conduct in failing to supervise an employee

who signed client’s name, without authorization, to loan agreement

needed for obtaining medical treatment); In the Matter of Howard,

5 292 Ga. at 414 (imposing public reprimand for a lawyer for technical

violations of Rule 1.15 (II), where no harm was done to clients); In

the Matter of Davis, 291 Ga. at 170 (imposing Review Panel

reprimand for Rule 8.4 (a) (4) violation where attorney twice falsified

and notarized client’s signature on two documents filed in court but

where out-of-state client had signed identical documents before

notary, attorney informally advised opposing counsel, and attorney

filed client’s true originals three months later); In the Matter of

Swain, 290 Ga. 678 (725 SE2d 244) (2012) (imposing public

reprimand for Rule 8.4 (a) (4) violation where attorney notarized

document signed outside of attorney’s presence).

Accordingly, the Court orders that Edward Neal Davis be

administered a public reprimand in open court pursuant to Bar

Rules 4-102 (b) (3) and 4-220 (c) for his violations of Rules 1.15 (I)

(a), 1.15 (II) (b), 4.1, and 8.4 (a) (4).

Public reprimand. All the Justices concur.

6 Decided July 1, 2019.

Public reprimand.

Paula J. Frederick, General Counsel State Bar, Jenny K.

Mittelman, Andreea N. Morrison, Assistant General Counsel State

Bar, for State Bar of Georgia.