315 Ga. 821 FINAL COPY
S23Y0201. IN THE MATTER OF L. NICOLE HAMILTON.
PER CURIAM.
This disciplinary matter is before the Court on the report and
recommendation of Special Master Quentin Marlin, who
recommends that the Court accept the April 14, 2021 petition for
voluntary discipline of L. Nicole Hamilton1 (State Bar No. 320909)
and impose a six-month suspension as discipline for Hamilton’s
failure to return unearned legal fees to a client after her discharge
and her failure to pay that client’s subsequent fee arbitration award
in a timely manner.
This same matter was previously before the Court in late 2020.
On September 20, 2020, the Special Master issued his initial report
and recommendation, in which he recommended that we accept
Hamilton’s first petition for voluntary discipline, filed in August
1 Hamilton was formerly known as L. Nicole Brantley and Nicole King. 2016, and impose a Review Board reprimand for Hamilton’s
professional misconduct. See In the Matter of Brantley, 311 Ga. 61
(855 SE2d 625) (2021) (“Brantley II”). In Brantley II, we rejected
the Special Master’s recommendation and remanded the matter for
an evidentiary hearing. See id. at 65.
On August 29, 2022, the Special Master held an evidentiary
hearing and issued the report and recommendation presently before
the Court. For the reasons explained below, the Court agrees that
— strictly in this case — a six-month suspension from the practice
of law is an acceptable sanction for Hamilton’s violation of Rule 1.16
(d) of the Georgia Rules of Professional Conduct. See Bar Rule 4-
102 (d).2
1. The underlying facts giving rise to this disciplinary
matter — as recounted in Brantley II3 — are as follows:
2 This Court issued an order on January 12, 2018, comprehensively amending Part IV of the Rules and Regulations for the Organization and Government of the State Bar of Georgia. The former rules govern this matter because it was commenced prior to July 1, 2018. 3 Nothing offered at the evidentiary hearing following Brantley II
necessitates any change to our previous recounting of the circumstances giving rise to this matter. 2 After being retained [by a client] in October 2013 [and paid $6,000 in advance], [Hamilton] was discharged by the client, who was dissatisfied with [Hamilton’s] lack of communication and failure to follow his instructions in handling his case. [Hamilton], however, never submitted a written request to withdraw, in violation of Uniform Superior Court Rule 4.3, and failed to appear at a February 2014 hearing in the case. In April 2014, after [Hamilton] had failed to return the unearned portion of her retainer, the client filed a fee arbitration petition, seeking a refund of $4,000. [Hamilton] submitted an answer, in which she agreed to be bound by the fee arbitration award, but thereafter failed to appear at the fee arbitration hearing. In March 2015, written notification of the fee award was sent to [Hamilton], with direction that the award be paid within 90 days. After the 90-day period elapsed, the client filed his grievance.
Brantley II, 311 Ga. at 61-62.
In April 2016, the State Bar filed a Formal Complaint against
Hamilton and charged her with violating Rule 1.16 (d), which
provides that,
[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.
3 The State Bar observed that Rule 1.16 sets “a maximum sanction for
a violation as a public reprimand,” but noted that Hamilton “had
been subject to discipline on multiple prior occasions[4] and that,
accordingly, she could be subject to suspension or disbarment.”
Brantley II, 311 Ga. at 62. See also Bar Rule 4-103. The State Bar
petitioned for the appointment of a Special Master in this
proceeding, and this Court appointed Daniel Brent Snipes5 as
4 These prior disciplinary matters will be addressed in more detail below. 5 Notably, in 2011, the Court also appointed Snipes to serve as the Special Master in several prior disciplinary matters against Hamilton, see Case Nos. S11B0774 and S11B0775 (February 8, 2011) (appointing Snipes as Special Master), which were docketed in this Court in 2014. See In the Matter of Hamilton, 295 Ga. 456 (761 SE2d 79) (2014) (“Hamilton I”). Hamilton I involved three disciplinary matters against Hamilton for conduct that occurred during 2009 and 2010. See id. at 456. Following a hearing, Snipes recommended that the Court accept Hamilton’s petition for voluntary discipline and impose as discipline a public reprimand with conditions. Id. This Court disagreed with Snipes that a public reprimand was an “appropriate level of discipline for Hamilton’s violations,” particularly in light of Hamilton’s past disciplinary history, which included two Investigative Panel reprimands in 2006 and 2010 and two letters of admonition in 2010 — disciplinary matters that were unrelated to the conduct giving rise to Hamilton I. Id. at 457. Accordingly, the Court rejected Hamilton’s petition for voluntary discipline and remanded the matter for an evidentiary hearing. Id. After remand, Snipes held an evidentiary hearing on August 10, 2015 — during which he took additional evidence on two new disciplinary matters against Hamilton (then Brantley) arising from conduct that occurred between December 2010 and the end of the calendar year 2011. See In the Matter of Brantley, 299 Ga. 732 (791 SE2d 783) (2016) (“Brantley I”), reinstatement granted 301 Ga. 653 (802 SE2d 252) (2017). Snipes then issued a new report and recommendation,
4 Special Master on April 19, 2016. See Case No. S16B1278 (April 19,
2016) (appointing Snipes as Special Master).
In June 2016, Hamilton filed an unsworn answer to the State
Bar’s Formal Complaint. In her answer,
[Hamilton] denied that she was terminated by the client; denied that she had failed to refund unearned fees; and claimed that she had “never received any notice of any [fee] award until this proceeding.” However, in August 2016, [Hamilton] filed her petition for voluntary discipline, admitting, unconditionally, that she had been discharged by the client, had failed to refund the client’s unearned fees, and, though she had agreed to be bound by the fee arbitration panel’s decision, had not paid the fee arbitration award. [Hamilton] made no representations as to whether she had received notice from the fee arbitration office regarding the hearing or the subsequent fee award. She offered, as mitigation, to pay the $4,000 fee arbitration award in monthly installments of $500.
Brantley II, 311 Ga. at 62.
In response to Hamilton’s August 2016 petition for voluntary
discipline, the State Bar conceded that “the interests of the public
and Bar would be best served by acceptance of the petition, but only
after [Hamilton] submitted proof that she had refunded the full
recommending a 180-day suspension with conditions, which this Court accepted. See id. at 732-733. 5 $4,000 fee award.” Brantley II, 311 Ga. at 62-63. Hamilton
submitted proof to the State Bar that she completed the installment
payments in June 2017. See id. at 63.
More than three years later, on July 22, 2020, H. Maddox
Kilgore, a Coordinating Special Master with the State Bar, filed a
motion in this Court, seeking to remove and replace Snipes as the
Special Master in this disciplinary matter. In the motion, the
Coordinating Special Master asserted that, after Snipes’s
appointment by this Court, Snipes was served with Hamilton’s
petition for voluntary discipline and the State Bar’s response;
however, Snipes did not respond to any e-mails or letters from the
State Bar, which were sent to him on several occasions in 2017,
2018, and 2019. The Coordinating Special Master asserted that he
had also been unsuccessful in reaching Snipes by telephone or e-mail
in 2020 and that the State Bar and Hamilton did not oppose
replacing Snipes as the Special Master in this disciplinary matter.
The Coordinating Special Master requested that the Court remove
Snipes and appoint Marlin — the current Special Master — as
6 Snipes’s replacement.
The Court entered an Order appointing Marlin as Special
Master on July 22, 2020. See Case No. S16B1278 (July 22, 2020)
(vacating order appointing former Special Master and appointing
Marlin as new Special Master). The Special Master then issued his
initial report and recommendation on September 22, 2020,
recommending that we accept Hamilton’s August 2016 petition for
voluntary discipline and issue a Review Board reprimand.
As noted above, this Court rejected the Special Master’s initial
recommendation. See Brantley II, 311 Ga. at 65. In doing so, we
acknowledged that “the maximum sanction for a violation of Rule
1.16 is a public reprimand,” but we explained that we could not “view
[Hamilton’s] conduct here apart from the larger context in which
this violation was committed” — i.e., her prior disciplinary history
— and “the apparent initial lack of candor [Hamilton] displayed in
this proceeding.” Id. at 63. And, the Court was quite concerned that
Hamilton “willfully refused, without apparent explanation, [(1)] to
refund several thousand dollars in client fees”; (2) to acknowledge
7 the wrongful nature of her conduct; and (3) to pay the arbitration fee
award in a timely manner. Id. at 64. The Court also observed that
Hamilton “made no representations regarding any personal
hardship that should be considered in mitigation in relation to this
violation.” Id.
2. Upon remand, Hamilton filed an amended petition for
voluntary discipline, seeking a six-month suspension based on her
violation of Rule 1.16 (d). In the amended petition, Hamilton
provides greater detail regarding her failure to participate in the fee
arbitration proceedings and to timely pay the award. To that end,
Hamilton states that, in April 2014, she sustained a severe head
injury in an automobile accident, requiring injections to control the
pain and a referral to the Neurological Institute of Savannah for
treatment until March 2015. In addition, Hamilton asserts that, in
August 2014, she received notice of the petition for fee arbitration at
her home address and filed her acknowledgment of service of the
petition in September 2014. However, she claims that, in October
2014, she moved out of her home with her son because she was afraid
8 of her then-husband, and when she filed her answer to the fee
arbitration petition in December 2014, she failed to include her new
address. Hamilton admits that she did not otherwise notify the
committee of her change of address, so she did not receive actual
notice of the fee arbitration hearing. Hamilton admits that she
failed to attend the fee arbitration hearing, and after the arbitration
award was issued — the amount of which she does not dispute —
she did not receive actual notice of the award by mail and thus failed
to pay the award as directed.
As to her denial of the allegations in the Formal Complaint,
Hamilton explains that she initially denied the allegations because
she intended to claim that she and the client had a disagreement
about their communications and his trial strategy, and she intended
to offer a good faith claim that she had earned all (or at least a
substantial portion) of the fees. Hamilton acknowledges that her
simple denial of many of the Bar’s allegations in the Formal
Complaint was insufficient and that she should have set forth facts
to support her responses. Hamilton also states that she did not
9 intend to mislead the State Bar, the Special Master, or this Court
into believing that she was unaware of the existence of the fee
arbitration proceedings or the possibility of an award since she was
served with the petition for fee arbitration in August 2014, and she
should have more precisely set forth those facts in her answer,
including that, because she moved residences in October 2014, she
did not receive actual notices of the hearing and the award until she
received the Formal Complaint. Further, Hamilton “acknowledges
that she disregarded the fee arbitration matter, but [again] explains
that[,] following [her] accident in 2014 [and continuing treatment in
2015], she was suffering severe financial hardship and physical
incapacity . . . and did not expect to be able to pay any award.”
Hamilton states that, in time, she was able to return to work, regain
some financial stability, and ultimately pay the arbitration award
in full. Hamilton attached exhibits supporting these claims to her
amended petition, including documentation regarding the accident,
her resulting treatment, and her financial hardship.
As for prior discipline, Hamilton admits that she received
10 Investigative Panel reprimands in 2006 and 2010; that she accepted
two formal letters of admonition in 2010; that she accepted a formal
letter of admonition in 2014; and that she was suspended from the
practice of law for a period of six months related to five disciplinary
matters in 2016. Hamilton also admits — as she did in her earlier
petition — that, in this case, she violated Rule 1.16 (d) when she did
not promptly refund unearned fees or pay the fee arbitration award
and that, while the maximum penalty for a violation of Rule 1.16 (d)
is a public reprimand, she may be suspended or disbarred in this
matter due to her prior misconduct. See Bar Rule 4-103.
In regard to her mental state, Hamilton asserts that the
violations here were the result of negligence and not committed
knowingly, and she did not intend to demonstrate a “lack of candor”
in her answer to the Formal Complaint. Brantley II, 311 Ga. at 63.
See also ABA Standard 7.3 (reprimand generally appropriate when
lawyer negligently engages in conduct that is a violation of a duty
owed as a professional and causes injury or potential injury to a
client, the public, or the legal system). Hamilton concedes that she
11 should have promptly issued a refund for some portion of the
attorney fees when the client terminated her representation, but
states that, because she had not reached an agreement with the
client as to the amount owed, the fee arbitration proceedings were
an appropriate forum for that issue to be decided. And Hamilton
asserts that she disregarded her obligations in that proceeding only
as a result of negligence and the personal hardships she was
experiencing and that, by the time she learned about the award, she
was facing suspension in other disciplinary matters and was in a
dire financial situation with no hope of promptly paying the award
in full. Hamilton claims that she did not willfully refuse to pay the
award, but argues that her mental state at the time was
“exacerbated” by her accident, her lingering injuries, leaving her
home, and going through a divorce. She admits that she caused
actual injury to her client by failing to pay the award, but contends
that she simply did not have the money to pay at the time and that
her client’s injuries were mitigated somewhat when she completed
the payment plan and paid the entire award.
12 As to the level of discipline, Hamilton submits that the
appropriate level of discipline to impose here is a six-month
suspension. See In the Matter of Polk, 304 Ga. 326, 327 (818 SE2d
495) (2018) (accepting the attorney’s second petition for voluntary
discipline, filed before the filing of a Formal Complaint, and
imposing a six-month suspension with conditions for reinstatement
for violating Rule 1.16 (d), with a suspension to run consecutive to
the suspension that the attorney was already serving in an
unrelated matter, where the attorney’s prior disciplinary history
had all occurred within the past decade and where the attorney
lacked a dishonest or selfish motive and was remorseful,
acknowledged the wrongful nature of his conduct, and was
cooperative). Hamilton argues that, like Polk, she has also
acknowledged the wrongful nature of her conduct and her prior
disciplinary history is not too “remote” in time, primarily occurring
within the “past decade.” In the Matter of Polk, 303 Ga. 675, 677
(814 SE2d 327) (2018). Moreover, Hamilton asserts that, while Polk
received numerous suspensions for his conduct — including a 30-
13 month suspension — Hamilton’s harshest discipline to date has
been a single, six-month suspension. Accordingly, she submits that
a six-month suspension is appropriate in this case. See In the Matter
of Johnson, 303 Ga. 795, 799 (815 SE2d 55) (2018) (accepting Special
Master’s recommendation that attorney’s second petition should be
accepted and imposing six-month suspension for attorney who
committed multiple prior similar offenses and had substantial
experience in the practice of law, but also had personal and
emotional problems at time of offense); In the Matter of Buckley, 291
Ga. 661 (732 SE2d 87) (2012) (accepting Special Master’s
recommendation to accept attorney’s petition and imposing four-
month suspension for violation of Rules 1.3, 1.4, and 1.16 in one
client matter, where there was prior disciplinary history, but
mitigating factors including that attorney had provided the client a
refund for unearned fee); In the Matter of Hardwick, 288 Ga. 60, 62
(701 SE2d 163) (2010) (accepting Special Master’s recommendation
that attorney’s petition should be accepted and imposing a six-
month suspension for violating Rules 1.3, 1.4, 3.2, and 8.4 (a) (2),
14 where attorney had personal issues at time of infraction and had
paid full restitution to his clients but where he had prior disciplinary
offenses and made a false statement during disciplinary process).
In the State Bar’s response to Hamilton’s amended petition,
the State Bar agrees that Hamilton’s misconduct in this case reflects
a pattern of negligence and a disregard of her duties to her client
and the profession — as opposed to a knowing and intentional
violation of those duties — and that the appropriate level of
discipline is a six-month suspension.
In the Special Master’s report and recommendation presently
before the Court, he agrees with Hamilton and the Bar that a six-
month suspension is appropriate and recommends that this Court
impose that discipline. First, the Special Master states that he is
“satisfied” that Hamilton did not intend to mislead him, the Bar, or
this Court. The Special Master also agrees that the violations
Hamilton committed in this case occurred as a result of negligence
and were not knowingly committed. The Special Master concludes
that, in light of the new evidence provided by Hamilton — including
15 supporting documentation of her move in October 2014 and her car
accident and medical treatment in 2014, among other records — she
did not intend to demonstrate a lack of candor in her answer to the
Formal Complaint or willfully refuse to appear at the fee arbitration
hearing or to pay the award. However, he notes that Hamilton
should have been more thorough and should have communicated
more candidly with her former client and the Bar. Nevertheless, the
Special Master concludes that Hamilton has honestly expressed her
remorse that she did not do what was required by Rule 1.16 (d).
On this basis, the Special Master concludes that, although
Hamilton admitted that she violated the duties she owed to her
client and the profession, she did so as a result of negligence and
because of a mental state that was exacerbated by personal
hardships occurring during this timeframe. The Special Master
further concludes that Hamilton caused actual injury to her client
by failing to refund an unearned fee and then by failing to pay the
fee arbitration award for a significant period of time. And,
notwithstanding her claims of penury, the Special Master states
16 that Hamilton’s conduct benefitted her at the expense of her client.
In aggravation, the Special Master considered Hamilton’s prior
disciplinary history, see ABA Standard 9.22 (a); her substantial
experience in the practice of law, see ABA Standard 9.22 (i); and her
indifference to making restitution, see ABA Standard 9.22 (j). As for
mitigating factors, the Special Master considered Hamilton’s
personal and emotional problems, see ABA Standard 9.32 (c); her
physical disability on account of the automobile accident,6 see ABA
Standard 9.32 (h); her cooperation with the Bar in submitting her
petitions, see ABA Standard 9.32 (e); and her remorse, see ABA
Standard 9.32 (l).
Finally, as for the level of discipline, the Special Master notes
that the crux of this matter is Hamilton’s failure to promptly return
an unearned fee, and after weighing the evidence with due
consideration of the ABA Standards, the Special Master concludes
that the presumptive penalty for her misconduct would be a
6 The Special Master noted that Hamilton began to pay restitution and
put together a proper response to the Formal Complaint after she completed treatment for her injuries. 17 reprimand or a short suspension. The Special Master also concludes
that the aggravating and mitigating factors mostly offset each other,
leaning if at all in the direction of aggravation given Hamilton’s
prior disciplinary history. And, in this regard, the Special Master
points out that, while this Court gives significant weight to personal
and emotional problems that actually cause a violation, see, e.g., In
the Matter of Cook, 311 Ga. 206 (857 SE2d 212) (2021), the problems
Hamilton cites occurred after her obligation to refund the unearned
fee accrued; thus, the personal problems are of less importance than
her significant disciplinary record. In consideration of these factors,
including that this case is one of several in a pattern of neglect, see
In the Matter of Kirby, 312 Ga. 341, 342-344 (862 SE2d 550) (2021),
the Special Master agrees that a six-month suspension is
appropriate in this matter. See Polk, 304 Ga. at 328 (concluding
that “although the maximum sanction for a violation of Rule 1.16 (d)
is ordinarily a public reprimand, given Polk’s disciplinary history, a
more severe punishment was appropriate under Bar Rule 4-103,
which says that a finding of a third or subsequent disciplinary
18 infraction shall constitute discretionary grounds for suspension or
disbarment”).
“[B]ecause this Court recognizes that the special master is in
the best position to determine the witnesses’ credibility, it generally
defers to the factual findings and credibility determinations made
by the special master unless those findings or determinations are
clearly erroneous.” In the Matter of Eddings, 314 Ga. 409, 416 (877
SE2d 248) (2022). Deferring to the Special Master’s factual findings
and credibility determinations here, which are not “clearly
erroneous,” id., we conclude that, as to mitigation, Hamilton
demonstrated on remand that, during the pertinent time period, she
suffered personal hardships and emotional problems that
contributed to her delay in paying the fee arbitration award and
helped to explain her lack of candor in her initial response in this
disciplinary proceeding. And we agree with the Special Master that
these mitigating circumstances are outweighed by Hamilton’s prior
disciplinary record, which demonstrates a concerning pattern of
misconduct over a lengthy period of Hamilton’s career. See In the
19 Matter of Jennings, 305 Ga. 133, 135 (823 SE2d 811) (2019)
(attorney’s violations of Rules 1.3, 1.4, 1.16 (d), and 3.2 relating to
his failure to return a file in a single matter “show[ed] a pattern of
misconduct, [which] support[ed] the sanction of disbarment”). In
fact, Hamilton’s significant disciplinary history — largely involving
her failure to adequately communicate with clients, her failure to
appear at hearings, and her failure to return unearned fees — has
been and remains of utmost concern to this Court.
Nevertheless, we observe that the resolution of this matter was
significantly delayed by the first Special Master’s unresponsiveness
and the State Bar’s oversight in allowing this case to languish for
several years — through no fault of Hamilton. And it does not
appear from the record that Hamilton has engaged in any
professional misconduct since the circumstances giving rise to this
disciplinary matter or her reinstatement to the Bar in 2017.7
Accordingly, based on the evidence in the record and the
7 On the other hand, the record does not show that Hamilton has actually
engaged in the practice of law during this time period. 20 particular circumstances of this case — where an unusual delay by
the State Bar prevented the timely resolution of this matter — we
agree with the Special Master that a six-month suspension is
appropriate for Hamilton’s single violation of Rule 1.16 (d). See
Johnson, 303 Ga. at 799; Hardwick, 288 Ga. at 62. See generally In
the Matter of Kirby, 309 Ga. 826, 831 (848 SE2d 429) (2020)
(concluding that this Court’s precedent “includes numerous cases in
which six-month suspensions have been imposed [in cases involving
Rule 1.16 violations] involving only a single client matter, where the
aggravating circumstances so warranted”). To be clear, the sanction
imposed here should not be relied upon as precedent for the level of
discipline we would ordinarily impose in a case with such a litany of
misconduct; it is only the result of the substantial delay in this case.
The suspension based on this opinion will take effect as of the
date this opinion is issued and will expire by its own terms six
months later. After this passage of time, there is no need for
Hamilton to take any action either through the State Bar or through
this Court to effectuate her return to the practice of law; however,
21 Hamilton is reminded of her duties pursuant to Bar Rule 4-219 (b).
Six-month suspension. All the Justices concur.
Decided March 7, 2023.
Suspension.
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.