in the Matter of Gail S. Graziano

• Court: Supreme Court of Georgia
• Decided: April 26, 2016
• Docket: S16Y0838
• Status: Published

Opinion

In the Supreme Court of Georgia

Decided: April 26, 2016

S16Y0838. IN THE MATTER OF GAYLE S. GRAZIANO.

PER CURIAM.

This disciplinary matter is before the Court on special master J. Raymond

Bates, Jr.’s report and recommendation in which he recommends that this Court

accept the petition for voluntary discipline filed by Respondent Gayle S.

Graziano (State Bar No. 306650) and impose a six-month suspension with

conditions as discipline for her admitted violation of Rules 1.3, 1.4, and 1.16 of

the Georgia Rules of Professional Conduct, see Bar Rule 4-102 (d). Graziano’s

petition was filed pursuant to Bar Rule 4-227 (c), after the State Bar filed a

Formal Complaint. As the Bar has no objection, we agree that the recommended

discipline is appropriate.

According to the record, Graziano agreed to represent a client in a dispute

with a contractor over work being performed at the client’s home. Eventually,

Graziano filed a suit on behalf of the client and the contractor counterclaimed.

On March 30, 2013, Graziano closed her law office and advised her clients, including the client involved in this matter, to obtain new counsel. As this client

declined to do so, Graziano appeared on the client’s behalf at the trial of the

matter in June 2013, but the trial ended in a mistrial after the client made

statements to the opposing party intentionally within earshot of several jurors

selected to hear the case. Approximately ten days later, Graziano advised the

client to seek other counsel since Graziano anticipated being called as a witness

concerning the mistrial and its cause, but the client again failed to do so.

Graziano and the client then discussed whether to drop the case, but the client

was adamant about wishing to proceed to a second trial. On September 23, 2013,

Graziano began a month-long leave of absence that she had requested for health

reasons. On October 1, 2013, opposing counsel e-mailed to Graziano a Motion

for Contempt for Attorney Fees, which had been filed on September 25, 2013

in the client’s case seeking to recover for fees incurred at the aborted trial. No

hearing notice was included in the e-mail, but Graziano received prior notice of

a pre-trial conference which had been scheduled for November 1, 2013.

Graziano told opposing counsel that she was attending to a terminally ill aunt,

and had been unable to reach her client, but that she would try to address the

issues in the case. On October 29, 2013, Graziano mailed the client a letter

2 advising that she needed to withdraw due to health reasons, but that she would

stay on the case until the client could obtain new counsel. Graziano included a

copy of the contempt motion, but gave no indication of the upcoming pre-trial

conference.

On October 31, 2013, Graziano reached the client by telephone and told

her about her aunt’s critical condition and imminent passing and advised the

client to go to court on November 1st to explain Graziano’s absence and to

request a continuance or to obtain other counsel. Graziano also spoke to

opposing counsel, telling her of the situation with her aunt and advising that her

client would be in court alone the next day. Although Graziano was out of town

from October 31, 2013 through December 10, 2013 attending to her aunt until

her death and thereafter administering her aunt’s affairs, she did not submit a

formal request for leave of absence. Neither Graziano nor the client appeared in

court on November 1st and the court granted opposing counsel’s motion to

dismiss the complaint and entered a Rule Nisi setting a hearing for December

6th on the counterclaim and the contempt motion. Opposing counsel sent an e-

mail to Graziano on November 11th with notice of the dismissal and Rule Nisi,

but neither Graziano nor the client appeared on December 6th and the court

3 entered judgment against the client for $14,075 on the counterclaim ($4,125 of

the judgment was for attorney fees on the mistrial/contempt motion). On

December 12th Graziano received the dismissal order, which she contends was

her first indication that the client had failed to appear on November 1st.

Although Graziano then sent the client a letter advising her that her case had

been dismissed, and that she had 30 days to appeal, Graziano acknowledges that

the 30 days had already expired. On December 18th Graziano underwent

additional surgery and in January 2014, she withdrew from the client’s case at

the client’s request.

Based on these facts, Graziano admitted that she was negligent in not

seeing e-mails and in failing to follow up with opposing counsel and the court

to protect her client’s interest, that she did not act with reasonable diligence in

this matter, and that she therefore violated Rules 1.3, 1.4 and 1.16. Although the

maximum sanction for a single violation of Rule 1.3 is disbarment, Graziano

highlighted various factors in mitigation and requested a Review Panel

reprimand, but she agreed to accept up to a one-year suspension as discipline for

her actions. The State Bar argued that, given the harm suffered by Graziano’s

client, a suspension of at least six months with conditions on reinstatement is a

4 more appropriate discipline.

Due to the absence of any indication in the record as to the strength of the

client’s case or the basis for the award of attorney fees, we find no particular

factors in aggravation of discipline. We note in mitigation, however, that

Graziano has no prior disciplinary history, that she has been cooperative

throughout these disciplinary matters, that throughout the relevant time frame

she was dealing with personal health problems and with the sickness and

eventual death of a close family member for whom she was responsible

physically and financially, that she is remorseful for her failure to handle the

client’s matter with more diligence, and that she is willing to pay $2,000 to help

alleviate any harm suffered by her client.

Accordingly, we agree with the recommendation of the special master and

therefore accept Graziano’s petition for voluntary discipline, finding that the

appropriate discipline for her violations is a six-month suspension with her

reinstatement conditioned on payment of $2,000 to her client. At the conclusion

of the suspension imposed in this matter, Graziano may seek reinstatement by

demonstrating to the State Bar’s Office of General Counsel that she has met the

condition on reinstatement. If the State Bar agrees that the condition has been

5 met, it will submit a notice of compliance to this Court, and this Court will issue

an order granting or denying reinstatement. Graziano is reminded of her duties

under Bar Rule 4-219 (c).

Petition for voluntary discipline accepted. Six-month suspension with

conditions. All the Justices concur.