319 Ga. 176 FINAL COPY
S24Y0549. IN THE MATTER OF EPHRAIM L. MICHAEL.
PER CURIAM.
This disciplinary matter is before the Court on a petition for
voluntary discipline filed by Respondent Ephraim L. Michael (State
Bar No. 503995) before the issuance of a formal complaint. See Bar
Rule 4-227 (b). In the petition, Michael agrees to accept the
imposition of a State Disciplinary Review Board reprimand or a
public reprimand as discipline for his admitted violations of Rules
1.2 (a), 1.4 (a), and 5.3 (b) of the Georgia Rules of Professional
Conduct, found in Bar Rule 4-102 (d).1 The State Bar has responded,
indicating that it does not oppose Michael’s petition. We agree to
accept the petition and impose a public reprimand.
1 The maximum sanction for a violation of either Rule 1.2 (a) or 5.3 (b) is
disbarment, while the maximum sanction for a violation of Rule 1.4 (a) is a public reprimand. In his petition, Michael, who has been a member of the State
Bar of Georgia since 1996, admits that in June 2019, his law firm
was hired to represent a client in a personal injury case, which
Michael worked on with his nonlawyer assistant. Michael timely
filed suit in state court on the client’s behalf. In March 2021, the
nonlawyer assistant informed Michael that the defendant’s insurer
had made a settlement offer of $110,000, and Michael instructed her
to convey that offer to the client. A few days later, the assistant
informed Michael that, with the client’s consent, the parties had
reached a settlement of $115,000. However, when Michael spoke
with the client, she denied authorizing the settlement. On March 16,
2021, Michael voided the settlement check and returned it to the
insurer. The defendant filed a motion to enforce the settlement,
which the client opposed through new counsel. The state court
denied the motion, finding that Michael’s nonlawyer assistant
“performed more than ministerial duties and it [did] not appear that
the settlement was negotiated by [Michael] on behalf of [the client].”
2 Based on those facts, Michael admits that he violated Rules 1.2
(a),2 1.4 (a),3 and 5.3 (b).4 Citing the American Bar Association
Standards for Imposing Lawyer Sanctions (“ABA Standards”), see
In the Matter of Morse, 265 Ga. 353, 354 (2) (456 SE2d 52) (1995)
(disciplinary authority should consider (a) the duty violated, (b) the
lawyer’s mental state, (c) the potential or actual injury caused by the
misconduct, and (d) aggravating and mitigating factors), Michael
2 Rule 1.2 (a) provides in relevant part that
a lawyer shall abide by a client’s decisions concerning the scope and objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. . . .” 3 Rule 1.4 (a) provides in relevant part that
[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; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; [and] (3) keep the client reasonably informed about the status of the matter[.]” 4 Rule 5.3 (b) provides that “[w]ith respect to a nonlawyer employed or
retained by or associated with a lawyer: . . . a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer[.]”
3 observes that his misconduct implicates ABA Standard 4.43, which
provides that a reprimand is an appropriate sanction when a lawyer
negligently engages in conduct that is a violation of a duty owed as
a professional and causes injury or potential injury to his client. As
to his mental state, Michael states that he did not knowingly engage
in misconduct and that, at the time of his misconduct, he was
dealing with the aftermath of health issues that affected his
professional judgment. He admits that the potential for injury
existed due to his inattentiveness to the client’s case and his failure
to adequately supervise his nonlawyer assistant.
Michael notes that there are two applicable aggravating factors
here: the presence of multiple offenses and his substantial
experience in the practice of law. See ABA Standards 9.22 (d) and
(i). He states, however, that the aggravating factors are
substantially outweighed by the following mitigating factors: the
absence of any prior disciplinary record; his timely, good faith effort
to rectify the consequences of his misconduct by promptly informing
defense counsel and returning the settlement check upon learning
4 that the client did not agree to the settlement; his making a full and
free disclosure to the State Bar and displaying a cooperative attitude
toward the proceedings; good character or reputation in the form of
letters from his colleagues; and his remorse, as shown by his
consultation with the Bar’s Law Practice Management Division and
adoption of its recommended measures for the administration of his
law office and supervision of his employees. See ABA Standards 9.32
(a), (d), (e), (g), (l). In addition, Michael contends that ABA Standard
9.32 (c) (personal or emotional problems) applies, because at the
time of his misconduct, he was burdened with and distracted by
health issues. Specifically, in March 2019, Michael was diagnosed
with cancer and had to undergo several surgeries and radiation,
leading to other health-related maladies. Michael admits that his
medical procedures preceded the unauthorized settlement in 2021,
but states that the associated stress was still affecting him
personally and professionally at the time the unauthorized
settlement occurred.
5 Michael asserts that the imposition of some type of reprimand
would conform with this Court’s disciplinary precedent. He requests
that this Court impose either a Review Board or public reprimand.
In its response, the State Bar does not dispute Michael’s
recitation of the facts. The State Bar agrees that ABA Standard 4.43
applies and that a reprimand is appropriate for Michael’s negligence
in delegating the communication with the client and the insurer to
the nonlawyer assistant, in failing to adequately supervise the
nonlawyer assistant in her duties and her involvement in the
settlement negotiations, and in failing to personally consult and
communicate with the client. The Bar does not dispute the
aggravating and mitigating factors that Michael has identified and
agrees that he implemented the changes in his practice
recommended by the Law Practice Management Division.
Having reviewed the record, we conclude that a public
reprimand is the appropriate sanction in this matter.5 See, e.g., In
5 By way of background, Bar discipline falls into two categories: (1) “confidential discipline”—which includes a confidential reprimand or a formal
6 the Matter of Pass, 314 Ga. 805 (879 SE2d 454) (2022) (adopting
special master’s recommendation and imposing public reprimand
for attorney’s violations of Rules 1.15 (I), 1.15 (II), and 5.3 (b)); In
the Matter of Woodward, 313 Ga.
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319 Ga. 176 FINAL COPY
S24Y0549. IN THE MATTER OF EPHRAIM L. MICHAEL.
PER CURIAM.
This disciplinary matter is before the Court on a petition for
voluntary discipline filed by Respondent Ephraim L. Michael (State
Bar No. 503995) before the issuance of a formal complaint. See Bar
Rule 4-227 (b). In the petition, Michael agrees to accept the
imposition of a State Disciplinary Review Board reprimand or a
public reprimand as discipline for his admitted violations of Rules
1.2 (a), 1.4 (a), and 5.3 (b) of the Georgia Rules of Professional
Conduct, found in Bar Rule 4-102 (d).1 The State Bar has responded,
indicating that it does not oppose Michael’s petition. We agree to
accept the petition and impose a public reprimand.
1 The maximum sanction for a violation of either Rule 1.2 (a) or 5.3 (b) is
disbarment, while the maximum sanction for a violation of Rule 1.4 (a) is a public reprimand. In his petition, Michael, who has been a member of the State
Bar of Georgia since 1996, admits that in June 2019, his law firm
was hired to represent a client in a personal injury case, which
Michael worked on with his nonlawyer assistant. Michael timely
filed suit in state court on the client’s behalf. In March 2021, the
nonlawyer assistant informed Michael that the defendant’s insurer
had made a settlement offer of $110,000, and Michael instructed her
to convey that offer to the client. A few days later, the assistant
informed Michael that, with the client’s consent, the parties had
reached a settlement of $115,000. However, when Michael spoke
with the client, she denied authorizing the settlement. On March 16,
2021, Michael voided the settlement check and returned it to the
insurer. The defendant filed a motion to enforce the settlement,
which the client opposed through new counsel. The state court
denied the motion, finding that Michael’s nonlawyer assistant
“performed more than ministerial duties and it [did] not appear that
the settlement was negotiated by [Michael] on behalf of [the client].”
2 Based on those facts, Michael admits that he violated Rules 1.2
(a),2 1.4 (a),3 and 5.3 (b).4 Citing the American Bar Association
Standards for Imposing Lawyer Sanctions (“ABA Standards”), see
In the Matter of Morse, 265 Ga. 353, 354 (2) (456 SE2d 52) (1995)
(disciplinary authority should consider (a) the duty violated, (b) the
lawyer’s mental state, (c) the potential or actual injury caused by the
misconduct, and (d) aggravating and mitigating factors), Michael
2 Rule 1.2 (a) provides in relevant part that
a lawyer shall abide by a client’s decisions concerning the scope and objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. . . .” 3 Rule 1.4 (a) provides in relevant part that
[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; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; [and] (3) keep the client reasonably informed about the status of the matter[.]” 4 Rule 5.3 (b) provides that “[w]ith respect to a nonlawyer employed or
retained by or associated with a lawyer: . . . a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer[.]”
3 observes that his misconduct implicates ABA Standard 4.43, which
provides that a reprimand is an appropriate sanction when a lawyer
negligently engages in conduct that is a violation of a duty owed as
a professional and causes injury or potential injury to his client. As
to his mental state, Michael states that he did not knowingly engage
in misconduct and that, at the time of his misconduct, he was
dealing with the aftermath of health issues that affected his
professional judgment. He admits that the potential for injury
existed due to his inattentiveness to the client’s case and his failure
to adequately supervise his nonlawyer assistant.
Michael notes that there are two applicable aggravating factors
here: the presence of multiple offenses and his substantial
experience in the practice of law. See ABA Standards 9.22 (d) and
(i). He states, however, that the aggravating factors are
substantially outweighed by the following mitigating factors: the
absence of any prior disciplinary record; his timely, good faith effort
to rectify the consequences of his misconduct by promptly informing
defense counsel and returning the settlement check upon learning
4 that the client did not agree to the settlement; his making a full and
free disclosure to the State Bar and displaying a cooperative attitude
toward the proceedings; good character or reputation in the form of
letters from his colleagues; and his remorse, as shown by his
consultation with the Bar’s Law Practice Management Division and
adoption of its recommended measures for the administration of his
law office and supervision of his employees. See ABA Standards 9.32
(a), (d), (e), (g), (l). In addition, Michael contends that ABA Standard
9.32 (c) (personal or emotional problems) applies, because at the
time of his misconduct, he was burdened with and distracted by
health issues. Specifically, in March 2019, Michael was diagnosed
with cancer and had to undergo several surgeries and radiation,
leading to other health-related maladies. Michael admits that his
medical procedures preceded the unauthorized settlement in 2021,
but states that the associated stress was still affecting him
personally and professionally at the time the unauthorized
settlement occurred.
5 Michael asserts that the imposition of some type of reprimand
would conform with this Court’s disciplinary precedent. He requests
that this Court impose either a Review Board or public reprimand.
In its response, the State Bar does not dispute Michael’s
recitation of the facts. The State Bar agrees that ABA Standard 4.43
applies and that a reprimand is appropriate for Michael’s negligence
in delegating the communication with the client and the insurer to
the nonlawyer assistant, in failing to adequately supervise the
nonlawyer assistant in her duties and her involvement in the
settlement negotiations, and in failing to personally consult and
communicate with the client. The Bar does not dispute the
aggravating and mitigating factors that Michael has identified and
agrees that he implemented the changes in his practice
recommended by the Law Practice Management Division.
Having reviewed the record, we conclude that a public
reprimand is the appropriate sanction in this matter.5 See, e.g., In
5 By way of background, Bar discipline falls into two categories: (1) “confidential discipline”—which includes a confidential reprimand or a formal
6 the Matter of Pass, 314 Ga. 805 (879 SE2d 454) (2022) (adopting
special master’s recommendation and imposing public reprimand
for attorney’s violations of Rules 1.15 (I), 1.15 (II), and 5.3 (b)); In
the Matter of Woodward, 313 Ga. 112 (868 SE2d 231) (2022)
(accepting petition for voluntary discipline and imposing public
reprimand for attorney’s violations of Rules 1.2, 1.4, 1.15 (I), and
1.15 (II)); In the Matter of Cherry, 305 Ga. 667 (827 SE2d 239) (2019)
(accepting petition for voluntary discipline and imposing public
letter of admonition administered by the State Disciplinary Board — see Ga. Bar Rule 4-102 (b) (5), (6); and (2) “public discipline” — which includes disbarment, suspension, a public reprimand, or a Review Board reprimand. Id. at (b) (1)-(4). “Confidential discipline” is imposed by the State Bar without involving this Court and is not publicly disclosed on the Bar website; whereas “public discipline” follows a published decision of this Court and is publicly disclosed on the State Bar website. With respect to the alternative methods of discipline requested here — both of which constitute forms of “public discipline” — a public reprimand is imposed in open court by a superior court judge in the community in which the attorney receiving the discipline practices, but a Review Board reprimand is imposed in a nonpublic meeting of the State Bar’s Review Board. This Court has long approved the inclusion of a Review Board (formerly, Review Panel) reprimand as a form of public discipline. See, e.g., Bar Rule 4-102 (b) (4) (Order of Supreme Court of January 12, 2018). However, some of us now question whether imposing Review Board reprimands as they have long existed is consistent with the very purpose that animates public discipline: that it be imposed in a forum open to the public. We would therefore welcome a motion to amend the rules in a way that avoids imposition of public discipline in a private setting. See Bar Rule 5-101 (“The Supreme Court of Georgia may, on motion of the State Bar of Georgia, amend the Rules of the State Bar at any time[.]”).
7 reprimand for attorney’s violations of Rules 1.15 (I) (b), 4.1, and 8.4
(a) (4)). Accordingly, we accept the petition for voluntary discipline
and direct that Ephraim L. Michael receive a public reprimand in
accordance with Bar Rules 4-102 (b) (3) and 4-220 (c) for his
admitted violations of Rules 1.2 (a), 1.4 (a), and 5.3 (b).
Public reprimand. All the Justices concur.
Decided May 29, 2024.
Public reprimand.
Warren R. Hinds, for Michael.
Paula J. Frederick, General Counsel State Bar, William D.
NeSmith III, Deputy General Counsel State Bar, Jenny K.
Mittelman, Andreea N. Morrison, Assistant General Counsel State
Bar, for State Bar of Georgia.