304 Ga. 836 FINAL COPY
S19Y0122. IN THE MATTER OF MELODY YVONNE CHERRY.
PER CURIAM.
Respondent Melody Yvonne Cherry (State Bar No. 123395) filed the
underlying petition for voluntary discipline pursuant to Bar Rule 4-227 (b) to
resolve two pending disciplinary matters. See Bar Rule 4-227 (b) (2). In the
petition, Cherry admits violations of Rules 1.15 (I) (b), 4.1, and 8.4 (a) (4) of the
Georgia Rules of Professional Conduct. See Bar Rule 4-102 (d). Although the
maximum penalty for a violation of any of these Rules of Professional Conduct
is disbarment, Cherry seeks imposition of a public reprimand, and the Bar agrees
that the requested discipline is appropriate.
State Disciplinary Board Docket No. 7135
With regard to State Disciplinary Board (“SDB”) Docket No. 7135,
Cherry, who joined the State Bar in 1992, admits that in 2015 she was retained by a client to represent him in a personal injury claim arising from an incident
occurring on May 24, 2015. Because several people were injured in the
accident, the limits of insurance coverage under the policy were insufficient to
settle all of the claims, and the client was not able to receive what he believed
was full compensation for his injuries and special damages. Cherry filed suit on
the client’s behalf, and after some discovery the claim was settled in September
2016 for a gross amount of $16,300. Cherry knew at that time that a lien had
been asserted against the claim by a hospital and therefore made only a limited
disbursement to her client. In February 2017, however, after the hospital notified
Cherry that its lien had been released, Cherry prepared a settlement statement
reflecting the client’s wishes that the remaining funds, after reduction for
attorney fees, costs, and repayment of a litigation loan, be paid directly to him
to the exclusion of certain healthcare providers, including a doctor who Cherry
knew had provided chiropractic care to her client. By signing the settlement
statement, the client agreed that he would be “responsible for all outstanding
medical expenses and [that he would] pay the same.” Thereafter, Cherry paid
the balance of the net proceeds of the settlement to her client.
Cherry admits, however, that in June 2015, she had sent a letter to the
2 doctor who provided chiropractic care to the client advising him that “any
medical expenses incurred on behalf of [her client] shall be protected at the time
of settlement of this case” and that “[s]aid funds shall be forwarded to your
office upon conclusion of this matter.” The recitation of facts by the Bar
indicates that the doctor provided medical treatment to the client in reliance on
Cherry’s written assurance that medical expenses incurred by the client would
be protected at the time of the settlement of the case and that funds would be
forwarded to the doctor upon conclusion of the case. The Bar’s response
indicates the doctor submitted a bill in the amount of $2,444 for services to the
client. The Bar’s response also refers to a grievance filed by the doctor, but the
record does not contain a copy of that grievance. Cherry admits that by
following her client’s directive at the time of the disbursement in disregard of
the interests of the doctor and his practice, she violated Rule 1.15 (I) (b)1 of the
1 Rule 1.15 (I) relates to the safekeeping of property, and subsection (b) states in pertinent part: For the purposes of this Rule, a lawyer may not disregard a third person’s interest in funds or other property 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; (ii) A final judgment addressing disposition of those funds or property; or
3 Georgia Rules of Professional Conduct.
State Disciplinary Board Docket No. 7136
With regard to SDB Docket No. 7136, Cherry admits that on April 19,
2017, a woman contacted her by phone concerning an April 18, 2017
automobile accident, providing the woman’s address, the name of the at-fault
driver, the at-fault driver’s insurance company, and the assigned claim number.
That same day, Cherry sent a letter of representation to the insurance company,
referring to the woman who had called her as “my client” and requesting
information about potentially applicable liability insurance coverage. The letter
purported to include the woman’s signature, notarized by Cherry’s employee,
but the woman did not actually sign the letter, and Cherry’s employee notarized
the signature at Cherry’s direction. Cherry admits she is responsible for the
false signature and that she intended for the insurance company to rely on the
(iii) A written agreement by the client or the lawyer on behalf of the client guaranteeing payment out of those funds or property. ...
4 notarized signature in providing the requested information, which Cherry
intended to use to help the woman promptly resolve any personal injury claim.
An early e-mail from the woman may have given Cherry a basis for believing
that the woman would soon be officially hiring her, but Cherry heard nothing
more until mid-May when an attorney called, on the woman’s behalf, advising
Cherry that the woman had never hired Cherry or authorized her to
communicate with the liability insurer. Cherry immediately notified the
insurance company that she no longer represented the woman, but she admits
that by preparing and sending the April 19 letter, she violated Rules 4.12 and 8.4
(a) (4)3 of the Georgia Rules of Professional Conduct.
Discussion
2 Rule 4.1 states in pertinent part: In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. 3 Rule 8.4 (a) (4) states it is a violation of the Rules for a lawyer to “engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”
5 Cherry admits no factors in aggravation of discipline, but offers some in
mitigation — most of which go to SDB Docket No. 7136. Specifically, Cherry
asserts that she has no prior disciplinary history; that she harbored no selfish or
dishonest motive in that she mistakenly believed that the woman was going to
formally retain her and expedited the process in an effort to provide prompt
assistance to the woman; that she made a timely and good-faith effort to rectify
the consequences of her misconduct by promptly withdrawing upon learning
that the woman disputed the existence of an attorney-client relationship; that she
has exhibited a cooperative attitude toward these disciplinary proceedings; and
that she possesses good character and a positive reputation in the community,
as evidenced by a character letter from a practicing attorney.
The Bar has responded to Cherry’s petition for voluntary discipline,
agreeing generally with Cherry’s version of events and the various factors she
sets out in mitigation of discipline. The Bar notes in aggravation, however, that
Cherry has substantial experience in the practice of law, and that this case
involves multiple offenses in that Cherry is admitting violations of three
different Rules in the two incidents.
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304 Ga. 836 FINAL COPY
S19Y0122. IN THE MATTER OF MELODY YVONNE CHERRY.
PER CURIAM.
Respondent Melody Yvonne Cherry (State Bar No. 123395) filed the
underlying petition for voluntary discipline pursuant to Bar Rule 4-227 (b) to
resolve two pending disciplinary matters. See Bar Rule 4-227 (b) (2). In the
petition, Cherry admits violations of Rules 1.15 (I) (b), 4.1, and 8.4 (a) (4) of the
Georgia Rules of Professional Conduct. See Bar Rule 4-102 (d). Although the
maximum penalty for a violation of any of these Rules of Professional Conduct
is disbarment, Cherry seeks imposition of a public reprimand, and the Bar agrees
that the requested discipline is appropriate.
State Disciplinary Board Docket No. 7135
With regard to State Disciplinary Board (“SDB”) Docket No. 7135,
Cherry, who joined the State Bar in 1992, admits that in 2015 she was retained by a client to represent him in a personal injury claim arising from an incident
occurring on May 24, 2015. Because several people were injured in the
accident, the limits of insurance coverage under the policy were insufficient to
settle all of the claims, and the client was not able to receive what he believed
was full compensation for his injuries and special damages. Cherry filed suit on
the client’s behalf, and after some discovery the claim was settled in September
2016 for a gross amount of $16,300. Cherry knew at that time that a lien had
been asserted against the claim by a hospital and therefore made only a limited
disbursement to her client. In February 2017, however, after the hospital notified
Cherry that its lien had been released, Cherry prepared a settlement statement
reflecting the client’s wishes that the remaining funds, after reduction for
attorney fees, costs, and repayment of a litigation loan, be paid directly to him
to the exclusion of certain healthcare providers, including a doctor who Cherry
knew had provided chiropractic care to her client. By signing the settlement
statement, the client agreed that he would be “responsible for all outstanding
medical expenses and [that he would] pay the same.” Thereafter, Cherry paid
the balance of the net proceeds of the settlement to her client.
Cherry admits, however, that in June 2015, she had sent a letter to the
2 doctor who provided chiropractic care to the client advising him that “any
medical expenses incurred on behalf of [her client] shall be protected at the time
of settlement of this case” and that “[s]aid funds shall be forwarded to your
office upon conclusion of this matter.” The recitation of facts by the Bar
indicates that the doctor provided medical treatment to the client in reliance on
Cherry’s written assurance that medical expenses incurred by the client would
be protected at the time of the settlement of the case and that funds would be
forwarded to the doctor upon conclusion of the case. The Bar’s response
indicates the doctor submitted a bill in the amount of $2,444 for services to the
client. The Bar’s response also refers to a grievance filed by the doctor, but the
record does not contain a copy of that grievance. Cherry admits that by
following her client’s directive at the time of the disbursement in disregard of
the interests of the doctor and his practice, she violated Rule 1.15 (I) (b)1 of the
1 Rule 1.15 (I) relates to the safekeeping of property, and subsection (b) states in pertinent part: For the purposes of this Rule, a lawyer may not disregard a third person’s interest in funds or other property 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; (ii) A final judgment addressing disposition of those funds or property; or
3 Georgia Rules of Professional Conduct.
State Disciplinary Board Docket No. 7136
With regard to SDB Docket No. 7136, Cherry admits that on April 19,
2017, a woman contacted her by phone concerning an April 18, 2017
automobile accident, providing the woman’s address, the name of the at-fault
driver, the at-fault driver’s insurance company, and the assigned claim number.
That same day, Cherry sent a letter of representation to the insurance company,
referring to the woman who had called her as “my client” and requesting
information about potentially applicable liability insurance coverage. The letter
purported to include the woman’s signature, notarized by Cherry’s employee,
but the woman did not actually sign the letter, and Cherry’s employee notarized
the signature at Cherry’s direction. Cherry admits she is responsible for the
false signature and that she intended for the insurance company to rely on the
(iii) A written agreement by the client or the lawyer on behalf of the client guaranteeing payment out of those funds or property. ...
4 notarized signature in providing the requested information, which Cherry
intended to use to help the woman promptly resolve any personal injury claim.
An early e-mail from the woman may have given Cherry a basis for believing
that the woman would soon be officially hiring her, but Cherry heard nothing
more until mid-May when an attorney called, on the woman’s behalf, advising
Cherry that the woman had never hired Cherry or authorized her to
communicate with the liability insurer. Cherry immediately notified the
insurance company that she no longer represented the woman, but she admits
that by preparing and sending the April 19 letter, she violated Rules 4.12 and 8.4
(a) (4)3 of the Georgia Rules of Professional Conduct.
Discussion
2 Rule 4.1 states in pertinent part: In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. 3 Rule 8.4 (a) (4) states it is a violation of the Rules for a lawyer to “engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”
5 Cherry admits no factors in aggravation of discipline, but offers some in
mitigation — most of which go to SDB Docket No. 7136. Specifically, Cherry
asserts that she has no prior disciplinary history; that she harbored no selfish or
dishonest motive in that she mistakenly believed that the woman was going to
formally retain her and expedited the process in an effort to provide prompt
assistance to the woman; that she made a timely and good-faith effort to rectify
the consequences of her misconduct by promptly withdrawing upon learning
that the woman disputed the existence of an attorney-client relationship; that she
has exhibited a cooperative attitude toward these disciplinary proceedings; and
that she possesses good character and a positive reputation in the community,
as evidenced by a character letter from a practicing attorney.
The Bar has responded to Cherry’s petition for voluntary discipline,
agreeing generally with Cherry’s version of events and the various factors she
sets out in mitigation of discipline. The Bar notes in aggravation, however, that
Cherry has substantial experience in the practice of law, and that this case
involves multiple offenses in that Cherry is admitting violations of three
different Rules in the two incidents.
As noted, each of the three Rules Cherry admits to violating carries a
6 maximum penalty of disbarment. Cherry contends, and the Bar agrees, that in
light of the mitigating circumstances, a public reprimand would be in conformity
with prior decisions of this Court. See, e.g., In the Matter of Davis, 291 Ga. 169
(728 SE2d 548) (2012) (Review Panel reprimand for two Rule 8.4 (a) (4)
violations where attorney twice signed client’s name and had signature notarized
on documents filed in the client’s civil case); In the Matter of Swain, 290 Ga.
678 (725 SE2d 244) (2012) (public reprimand for violation of Rules 1.2 and 8.4
(a) (4) where the client’s signatures on court documents were notarized outside
of the client’s presence). See also In the Matter of Turner, 289 Ga. 563 (713
SE2d 867) (2011) (Review Panel reprimand for violation of Rules 1.5, l.15 (I),
1.15 (II), and 8.4 (a) (4), where a respondent with no prior disciplinary history
failed to obtain the client’s written authorization to make changes to the legal
fee, failed to keep detailed accounting of funds paid to her firm, removed funds
from her IOLTA account as earned fees without the client’s written
authorization, and created a contract for legal services after the fact); In the
Matter of Mathis, 286 Ga. 728 (691 SE2d 202) (2010) (Review Panel reprimand
for admitted violations of Rules 1.3, 1.4, and 8.4 (a) (4), for failing to
communicate with client or promptly file her petition to change custody, and
7 then ultimately filing the petition with a signed client verification attached even
though the client signed the verification without ever reading or seeing the
petition). Compare In the Matter of Davis, 303 Ga. 564 (814 SE2d 383) (2018)
(rejecting petition seeking Review Panel reprimand where attorney admitted
violations of Rules l.15 (I) (a) and 1.15 (II) (b), but denied violating Rule 8.4 (a)
(4) even though he knowingly notarized a signature on a deed, thereby falsely
attesting that the deed had been signed in his presence by the person whose
signature appeared thereon).
Aware that this Court looks to the American Bar Association’s Standards
for Imposing Lawyer Sanctions for guidance in determining the appropriate
sanction to impose, see In the Matter of Morse, 265 Ga. 353, 354 (456 SE2d 52)
(1995), the Bar adds that a reprimand is generally appropriate when a lawyer
knowingly engages, as Cherry did in SDB Docket No. 7136, in conduct that
involves dishonesty, fraud, deceit, or misrepresentation that adversely reflects
on the lawyer’s fitness to practice law (see ABA Standard 5.13), or when a
lawyer’s negligence in dealing with client property causes injury or potential
injury to a client, as Cherry did in SDB Docket No. 7135 when she deliberately
disregarded the doctor’s lien at the behest of her client and in apparent ignorance
8 of the rules that prohibit such conduct (see ABA Standard 4.13). Cherry asserts
that her conduct did not appear ultimately to harm either her client or her
potential client, and that Cherry’s proposed resolution of these disciplinary
matters is the result of negotiation between the Bar and Cherry. The Bar asserts
that a public reprimand is sufficient to act as a penalty for Cherry, a deterrent to
others, and an indication to laymen that the courts will maintain the ethics of the
profession. See In the Matter of Dowdy, 247 Ga. 488, 493 (277 SE2d 36)
(1981).
The ABA’s Standards for Imposing Lawyer Sanctions, however, instructs
the Bar to consider, among other things, “the potential or actual injury caused
by the lawyer’s misconduct . . . .”4 We have reviewed the record in this case and
are troubled by the absence of any information as to the ultimate resolution of
the doctor’s claim. Both parties to this matter address whether Cherry’s conduct
in SDB Docket No. 7135 harmed her client, but neither the Bar nor Cherry
address whether the third-party doctor who provided care in reliance upon
Cherry’s representations about payment from settlement proceeds, and who filed
4 See ABA, Center for Professional Responsibility, Standards for Imposing Lawyer Sanctions, Para. 3.0.
9 a grievance, has been made whole. Cherry admits she violated Rule 1.15 (I) (b),
which prohibits a lawyer from disregarding a third person’s interest in funds in
the lawyer’s possession where, as here, the third person’s interest is based on a
written agreement by the lawyer, on behalf of the client, guaranteeing payment
out of these funds. It appears the third person in this case, a doctor, provided
medical treatment to Cherry’s client in reliance on the written agreement, but it
is not possible from the record to determine whether the doctor has been paid.
As the Bar noted, this case involves multiple offenses in two different incidents.
Without further information regarding the resolution of the doctor’s claim to
settlement funds received by Cherry in SDB Docket No.7135, we are unable to
determine whether the proposed resolution of these two matters is reasonable.
See In the Matter of Bozeman, 286 Ga. 510 (689 SE2d 318) (2010) (ordering
disbarment where lawyer failed to pay third-party medical care providers,
comingled settlement funds with lawyer’s personal funds, and made false
representations to Bar investigators). See also In the Matter of Dorer, 304 Ga.
442 (819 SE2d 7) (2018) (not accepting recommended Review Panel reprimand
for a putative Rule 8.4 (a) (4) violation without a full understanding of the
facts). Accordingly, we reject Cherry’s petition for voluntary discipline.
10 Petition for voluntary discipline rejected. All the Justices concur.
11 Decided January 7, 2019.
Petition for voluntary discipline.
Warren R. Hinds, for Cherry.
Jenny K. Mittelman, General Counsel State Bar, Paula J. Frederick, James
S. Lewis, Assistant General Counsel State Bar, for State Bar of Georgia.