In the Matter of Nevada Michael Tuggle

892 S.E.2d 761, 317 Ga. 255

• Court: Supreme Court of Georgia
• Decided: September 6, 2023
• Docket: S23Y0500, S23Y0501
• Status: Published

Opinion

317 Ga. 255 FINAL COPY

S23Y0500, S23Y0501. IN THE MATTER OF NEVADA MICHAEL TUGGLE (two cases).

PER CURIAM.

These disciplinary matters are before the Court on the

consolidated report and recommendation of the State Disciplinary

Review Board (“Review Board”), recommending that the Court

adopt the recommendation of Special Master Daniel S. Reinhardt

that Nevada Michael Tuggle (State Bar No. 301224), a member of

the State Bar of Georgia since 2011, be suspended for a period of one

month. The matters arose from two separate client matters in

which, in combination, Tuggle was alleged to have violated Rules 1.1,1 1.2 (a),2 1.3,3 1.4,4 1.16 (d),5 8.4 (a) (4),6 and 9.27 of the Georgia

Rules of Professional Conduct (“GRPC”), found in Bar Rule 4-102

1 Rule 1.1 imposes the duty of competence on lawyers, which “requires

the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The Rule defines “competent representation” to mean that “a lawyer shall not handle a matter which the lawyer knows or should know to be beyond the lawyer’s level of competence without associating another lawyer who the original lawyer reasonably believes to be competent to handle the matter in question.” 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.” 3 Rule 1.3 provides that “[a] lawyer shall act with reasonable diligence

and promptness in representing a client. Reasonable diligence as used in this rule means that a lawyer shall not without just cause to the detriment of the client in effect willfully abandon or willfully disregard a legal matter entrusted to the lawyer.” 4 Rule 1.4 provides, in relevant part, that

(a) A lawyer shall: ... (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; [and] (4) promptly comply with reasonable requests for information[.] 5 Rule 1.16 (d) 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

2 (d). The maximum penalty for a violation of Rules 1.1, 1.2 (a), 1.3,

8.4 (a) (4), and 9.2 is disbarment, and the maximum penalty for a

violation of Rules 1.4 and 1.16 (d) is a public reprimand.

Based on our careful review of the record, we agree with the

Special Master and Review Board that Tuggle violated Rules 1.1,

1.3, 1.4, 1.16 (d), 8.4 (a) (4), and 9.2 of the GRPC.8 But we disagree

with many of the Special Master’s conclusions—as adopted by the

Review Board—in applying the relevant factors that inform our

analysis of the appropriate discipline to impose. Much of this

disagreement originates in the Special Master’s rendition of the

facts, which we have concluded, after a thorough review of the

record, is materially incomplete, as it omits a significant measure of

client is entitled and refunding any advance payment of fee that has not been earned.” 6 Rule 8.4 (a) (4) provides that “[i]t shall be a violation of the [GRPC] for

a lawyer to . . . engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation.” 7 Rule 9.2 provides that a lawyer “shall not enter into an agreement

containing a condition . . . that requires [a] person to request dismissal of a pending disciplinary complaint.” 8 As discussed below, we pretermit whether Tuggle violated Rule 1.2 (a).

3 undisputed evidence, mostly coming from Tuggle’s own testimony,

that underscores the severity of his misconduct and undercuts his

arguments in favor of mitigation. Our review shows that Tuggle

committed multiple violations of the GRPC; that several of these

violations were committed with knowledge or intent; that he thereby

caused serious actual and potential injury to clients in both matters;

and that the aggravating factors substantially outweigh the

mitigating factors.

Based on these findings, it is plain to us that at least a lengthy

suspension, if not disbarment, is the appropriate discipline for

Tuggle’s misconduct in these matters, and we thus conclude that the

recommended discipline is insufficient. At present, however, we

decline to decide the appropriate discipline, because in one of the

two matters here, certain developments have occurred since the date

of the disciplinary hearing—developments on which we currently

have no evidence of record, but which may affect our determination

on the appropriate level of discipline. Accordingly, we reject the

recommendations below and remand the case to the Board, with

4 direction to remand the case to a Special Master for further fact-

finding of a limited nature and a new recommendation, consistent

with this opinion and the new evidence developed below.

1. Procedural History

Tuggle has been a member of the Florida Bar since 2008 and

the Georgia Bar since 2011. He is a solo practitioner who primarily

practices elder law and assists clients with applying for various

federal and state benefits.

This is Tuggle’s second appearance before this Court relative

to one of these disciplinary matters. Before the State Bar filed its

formal complaint in State Disciplinary Board Docket (“SDBD”) No.

7212, Tuggle filed a petition for voluntary discipline pursuant to Bar

Rule 4-227 (b), seeking to resolve that disciplinary matter. In the

petition for voluntary discipline, Tuggle admitted to violating

multiple Rules and requested either a Review Board reprimand or a

public reprimand. However, we rejected his petition, noting our

concerns about his “fail[ure] to accept any sort of financial

responsibility for the losses caused by his conduct or to provide

5 concrete information as to what amount of restitution is due,” and

about the lack of detail regarding the substance-abuse issues that

allegedly led to his misconduct. In the Matter of Tuggle, 307 Ga. 312,

316 (835 SE2d 634) (2019) (“Tuggle I”).

The State Bar subsequently filed the formal complaint in

SDBD No. 7212, charging Tuggle with violations of Rules 1.1, 1.2

(a), 1.3, 1.4 (a), 1.16 (d), and 8.4 (a) (4), and, in connection with a

separate client matter, the State Bar filed a second formal complaint

in SDBD No. 7402, charging Tuggle with violations of Rules 1.2 (a),

1.3, 1.4 (a), 1.5 (a), 8.4 (a) (4), and 9.2.9 The State Bar moved for

partial summary judgment as to all violations of the GRPC charged

in SDBD No. 7212, which the Special Master granted as to Rules

1.1, 1.3, 1.4, and 1.16 (d),10 but denied as to Rules 1.2 (a) and 8.4 (a)

(4). In SDBD No. 7402, the State Bar moved for partial summary

9 The State Bar ultimately chose not to proceed on Rule 1.5 (a).

10 The Special Master’s summary judgment order states that it was granting summary judgment as to Rule 1.16 (b), but the substance of the order makes clear that the Special Master actually granted summary judgment as to Rule 1.16 (d).

6 judgment as to all violations of the GRPC except Rule 1.2 (a), and

the Special Master granted summary judgment as to Rule 9.2 but

denied summary judgment as to Rules 1.3, 1.4 (a), and 8.4 (a) (4).

The Special Master held a consolidated final hearing on both

matters in April 2022 and subsequently issued his report and

recommendation. The State Bar filed exceptions and requested

review by the Review Board. The Review Board issued a report and

recommendation summarily adopting the Special Master’s findings

of fact, conclusions of law, and recommended discipline.

2. Standard of Review

At the outset, we note that “because 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) (emphasis supplied). Thus, if

factual findings “are supported by the record,” we will generally not

disturb them. In the Matter of Cook, 311 Ga. 206, 207 (1) (857 SE2d

7 212) (2021). But we afford no such deference to the conclusions of

law made by the Special Master or the Review Board. See In the

Matter of Morse, 265 Ga. 353, 354 (1) (456 SE2d 52) (1995)

(“[w]hether an attorney has violated a particular standard of

conduct is a legal question”), superseded on other grounds as stated

in Cook, 311 Ga. at 207-208 (1). Therefore, we generally defer to the

Special Master’s findings of fact (as adopted by the Review Board

here) so long as they are supported by the record, but we review de

novo the conclusions of law reached below on what rules were

violated and what level of discipline is appropriate.

But those are the general standards, and there are caveats to

them; one such caveat applies here. Our review of the record here

has revealed that the Special Master’s rendition of the facts was

incomplete in significant ways, omitting numerous undisputed

facts—derived from Tuggle’s own testimony and uncontested

exhibits admitted at the hearing—that are relevant to the proper

disposition of these matters. We have included these undisputed

material facts here, despite their absence from the orders below. See

8 generally In the Matter of Turk, 267 Ga. 30, 31 (1) (471 SE2d 842)

(1996) (noting that, because of its “inherent and exclusive power to

regulate the practice of law,” the Court exercises “the ultimate

discretion in disciplinary proceedings”). See also Inquiry Concerning

Coomer, 316 Ga. 855, 860 (2) (a) n.5 (___ SE2d ___) (2023) (noting

that, in judicial disciplinary matters, “the broad and discretionary

nature of our review . . . means that we need not always defer [to

fact-findings below] even in situations where we would defer to a

factfinder in an ordinary appeal”).

3. Relevant Facts

(a) SDBD No. 7212

In early 2016, a young client whom Tuggle had previously

represented in a probate matter contacted Tuggle after being served

with a separate but related civil suit. On February 16, 2016, he e-

mailed the client a legal services agreement with the retainer

language struck through, stating in his e-mail that he was not

requiring her to pay a retainer. On February 22, Tuggle e-mailed

the client, asking her to return the signed agreement so he could

9 begin work on the case. On February 24, the client returned the

executed agreement and a credit card authorization form. On March

2, the client requested an update from Tuggle; he did not respond,

but charged $1,000 on the client’s credit card on the same day.

Tuggle knew that the answer to the complaint was due on

February 27, but he did not file an answer until March 9. Tuggle

also knew that he could open the default by filing the answer and

paying costs within 15 days of the default, see OCGA § 9-11-55 (a),

but he did not pay costs when he filed the answer. According to

Tuggle, he “attempted to pay” costs but was told by the court clerk

that no costs were due at that time and that the court would send

him an invoice if payment was needed.

On the day he filed the untimely answer, Tuggle e-mailed the

client a copy of the answer and stated that he planned to file a

motion to dismiss the following week. He did not acknowledge then,

or tell her thereafter, that the answer had been filed late.

Thereafter, Tuggle performed no additional work on the case

and stopped communicating with the client, who e-mailed him

10 periodically for updates and never received a response. In addition

to ignoring the client’s communications, Tuggle also failed to

respond to discovery requests and other communications from

opposing counsel and took no action when served with the plaintiff’s

motion for default judgment or the court’s orders scheduling the case

for trial in December 2016 and again in April 2017. Ultimately, on

April 12, 2017, after the second calendar call at which neither

Tuggle nor the unsuspecting client appeared, a default judgment on

liability was entered against the client. In May 2017, after a

damages hearing at which no one appeared on the client’s behalf,

the court entered judgment against the client in the amount of

$815,460.

The client learned of the judgment only when she began

receiving garnishment notices in July 2017. The client tried to

contact Tuggle but was unable to reach him.

In the following weeks, the client made repeated attempts to

obtain her file from Tuggle, to no avail. Tuggle returned her file only

after she filed a Bar grievance against him.

11 Although Tuggle contends that he and the client mutually

agreed that she was going to retain another attorney, the client

disputes this claim. Tuggle testified that the client was unable to

afford his fees and had told him she “could have a friend jump on the

case.” Tuggle claims he sent the client a “disengagement letter,”

dated March 15, 2016, stating that he was withdrawing from the

representation, but the client denied having received such a letter.11

It is undisputed, however, that Tuggle never filed a motion to

withdraw and remained counsel of record in the case until

11 The purported “disengagement letter” is suspect, to say the least. Unlike Tuggle’s earlier communications with the client, which were sent via e- mail, the purported “disengagement letter” was apparently not sent via e-mail and lacks any other contemporaneous evidence of its transmission. The content of the letter, too, is incongruous, in that it refers to the client’s “failure to pay the initial $2500.00 retainer” as a “breach” of the legal services agreement— despite the fact that Tuggle waived the $2,500 retainer. It also contains the suspiciously prescient statement that “failure to secure representation by counsel may result in a judgment not in your favor.” And the client’s subsequent inquiries about case status—which gave no indication that the client believed anything other than that Tuggle was continuing to work on the case—also seem to belie Tuggle’s version of events. Although the Special Master did not make an express finding that the letter was not authentic, he did state that “[Tuggle’s] behavior subsequent to allegedly sending the letter is not consistent with” his having sent it.

12 September 2017, when the client retained new counsel to try to get

the judgment set aside.

Ultimately, the client was successful in getting the judgment

set aside based on the trial court’s finding that the default had

resulted from Tuggle’s “abandonment” of his client. She later settled

the case, agreeing to pay the plaintiff $15,000 in exchange for

dismissal of the suit. The client spent $31,857 in attorney fees to get

the judgment set aside. Tuggle admitted that he did not assist or

offer to assist in the effort to get the judgment set aside. Tuggle also

admitted that he had not reimbursed the client, testifying that he

did not know the “exact amount” of her attorney fees despite his

having submitted as part of his hearing exhibits the invoice

documenting those fees.

The client filed a malpractice suit against Tuggle in June 2018.

In April 2019, the client’s counsel moved for and was granted an

order requiring Tuggle to make himself available for a deposition in

the case. Tuggle admitted that on the day of his scheduled

deposition, he submitted a notice of bankruptcy—resulting in an

13 automatic stay of the proceedings. Tuggle admitted that he had not

yet given a deposition in the case.12

When asked whether he acknowledged making any mistakes

in his representation of the client, Tuggle testified that “maybe [he]

could have been more insistent” in getting the court to accept his

payment of fees with the untimely answer. He also testified that

“maybe the seriousness of the situation could have been

communicated a little better, or much better” and that he “could

have followed through in making sure [the client] did secure

counsel.” But he also insisted, “I sent her a disengagement letter, so

12 According to supplemental briefs filed by the State Bar after the case

was submitted to this Court, a final judgment in favor of the client was entered in the malpractice suit on March 28, 2023. In its supplemental briefs, the State Bar offered evidence of the final judgment, and other post-disciplinary-hearing developments in the malpractice suit, in further support of its position in this case. Tuggle argued in supplemental response briefs that it would be inappropriate for the Court to consider these post-hearing developments here. We decline to consider these developments, which are not part of the record before us and on which no fact-findings have been made below. But as we discuss below, we believe that the disposition of the malpractice suit and Tuggle’s conduct in those proceedings may be relevant to determining the proper level of discipline to impose, and we thus conclude that a remand is necessary for further fact-finding in this regard. We appreciate the State Bar bringing these matters to our attention, even if we cannot rely on them in this posture.

14 I felt like I kind of handled [it]. . . . I was a young attorney at the

time, and I thought that was enough.” And at another point, he

stated, “that’s not my job to find her [new] counsel. . . . I am not going

to drive her to another attorney’s office and say let’s hire counsel.”

When asked whether he had ever apologized to the client, he replied,

“Should I have sent flowers? I don’t know what you’re saying,” and,

after being instructed to answer the question, stated, “I don’t know

why it’s relevant.”13 After acknowledging that in his sworn response

to the client’s Bar grievance he had claimed the client “intentionally

deceived [him] to perform legal services without intending to pay”

and that by filing the grievance she was “blaming others for her own

malfeasance,” he maintained that he was not blaming the client but

also stated that “she should have maybe taken it a little more

serious[ly] in securing counsel.”

Tuggle also contended that his conduct in relation to this client

had been affected by a substance-abuse disorder. Tuggle testified

13 Similarly, at other points during the hearing, Tuggle responded to questions only after being instructed to answer and on at least three occasions replied with dismissive statements such as, “[t]his is ridiculous.”

15 that at the time he had been abusing Adderall during the day and

drinking alcohol “to help bring [him] down” and sleep at night. He

entered a 90-day outpatient treatment program for his Adderall

dependency in 2016 or 201714 and has not used Adderall since that

time. Tuggle testified that, after later realizing that his alcohol use

was problematic, he entered another outpatient treatment program

in June 2019.

An expert psychiatrist who evaluated Tuggle in 2022 opined

that his stimulant-use disorder was “under reasonable control” but

declined to say the same about Tuggle’s alcohol-use disorder.

Rather, the expert opined, due to Tuggle’s “lack of active treatment”

for his alcohol-use disorder, he was at moderate risk of relapse and,

14 Although treatment records state that Tuggle began this program in

June 2017, Tuggle testified that this date is incorrect and that he actually began in June 2016. The timing of his treatment is significant to the extent that Tuggle claims that his failure to respond to communications in the client’s case was in part attributable to the time and energy he was devoting to his recovery, as he testified at one point in that regard that during the time after he sent the disengagement letter, he “went into treatment” and “was really kind of taking care of myself at that point, not really aware of every detail on this case.” The Special Master did not make a specific finding on the date of Tuggle’s treatment, noting at the hearing that “irrespective of whether he was seeking treatment or not during that period of time,” it was undisputed that “his law office was open.”

16 because of his admitted occasional use of alcohol, his disorder was

not “in remission.” At the hearing, Tuggle admitted that he does still

drink alcohol “on special occasions” and that he is not in treatment

with a licensed health care professional, but he also testified that he

was participating in a recovery support group.

As far as the impact of his addictions on his work generally,

Tuggle testified that the Adderall caused him to “just want to sit at

[my] computer and do work, honestly. There is no better high than

getting that work done.” He did not testify specifically about any

impact of his alcohol use on his ability to work. As to the effect of his

Adderall addiction on his work for the client here, Tuggle testified,

“I don’t know if my impairment affected my representation of her,”

adding that “Maybe I didn’t communicate as strongly as I should

have.” He later reiterated that his addiction had nothing to do with

the quality of his work on the client’s case, but acknowledged that

he was “a little short-tempered” with his clients and not as

“thorough” in communicating with them as he should have been.

17 (b) SDBD No. 7402

In December 2018, Tuggle was hired by an elderly client to

assist in applying for Medicaid benefits for his wife, who had

recently been admitted to a nursing home. Tuggle understood that

filing the Medicaid application was “time sensitive” because the

wife’s Medicare benefits had expired and thus the clients would be

responsible for paying out-of-pocket until the Medicaid application

was approved. Because the client had dementia and was hard of

hearing, he was assisted in his affairs by his daughters and

granddaughters. Tuggle was paid $8,000 for his services.

As part of the process to qualify the clients for Medicaid, Tuggle

helped set up a qualified income trust (“QIT”), which was

established in mid-March 2019. The day after the trust was set up,

Tuggle sent a letter to the nursing home, which was copied to the

client, referring to her “pending” Medicaid application and stating

that “we applied for Medicaid benefits effective March 1, 2019.” It is

undisputed that Tuggle had not submitted an application at this

time.

18 During the next several months, the nursing home made

frequent inquiries to the family and Tuggle about the status of the

application. Although Tuggle testified that he had faxed15 an

application in May 2019, there was apparently no record of any

faxed application in the Department of Human Services’ system.

Tuggle finally submitted the application on July 15, 2019. In

August 2019, the application was granted, with benefits retroactive

to May 1, 2019. This meant that the family would be responsible for

the nursing home charges from December 2018 through April 2019.

In November 2019, one of the client’s daughters sent a demand

letter on the client’s behalf to Tuggle noting that the nursing home

had billed the client $26,156 for her mother’s nursing home care

through April 2019. Tuggle responded that he was preparing a

“formal appeal” to Medicaid but that he was also willing to pay

“monies totaling two months of care,” in the amount of $12,684,

which he would send to the nursing home in monthly installments

15 Tuggle admitted that he knew that the application could be submitted

electronically.

19 of $2,500. Tuggle did not file an appeal. But he did pay the nursing

home a total of $12,000 or $12,500.

The client ultimately hired new counsel and filed suit against

Tuggle. Tuggle failed to answer, and a default judgment was entered

in the amount of $22,176, plus $2,000 in attorney fees and costs. As

of the disciplinary hearing, Tuggle had not paid the judgment.

It is undisputed that, after the client filed a Bar grievance,

Tuggle attempted to negotiate a settlement conditioned on the

client’s dismissal of the grievance. Tuggle testified that he did not

know at the time that the GRPC prohibit lawyers from entering into

such agreements.

Tuggle contends that he was hampered in his ability to file the

application by the client’s family’s failure to provide necessary

documents in a timely manner. In his response to the Bar grievance,

he stated that the client’s daughter was unable to provide requested

documents because she “was having personal issues,” a claim he

repeated in his hearing testimony. By contrast, several of the client’s

family members testified that they consistently gave Tuggle all

20 documents he requested, that Tuggle had never told them he lacked

the proper documents to file the application in a timely manner, and

that they had great difficulty in contacting Tuggle, whose voicemail

was frequently full and who often failed to respond to calls and e-

mails.

Tuggle acknowledged at the hearing that he never told the

nursing home that the Medicaid application was being delayed due

to the family’s inability to provide documents but explained that he

was simply trying to avoid “throw[ing] them under the bus.” He also

acknowledged that he never wrote a letter to the family explaining

that their failure to provide documents was preventing him from

completing the application and never attempted to terminate the

representation due to their non-cooperation. But when asked about

the family’s claims that they provided all documents upon his

request, he testified that “they are sadly mistaken, and that’s my

word against theirs.” The Special Master, while making no express

findings of fact on whether the clients had provided documents in a

21 timely manner, did conclude on this point that “the evidence is

overwhelming against [Tuggle’s] position.”

In contrast to his contention in SDBD No. 7212, Tuggle does

not claim that his substance-abuse disorders affected his

performance in the matter underlying SDBD No. 7402. Rather,

when asked whether any “impairment issues” played a role in the

matter underlying SDBD No. 7402, Tuggle responded, “Absolutely

not. Didn’t have anything to do with this case,” and later reiterated

that those issues “didn’t affect my services whatsoever.”

4. The Special Master’s Orders

As we discuss in detail in our analysis in Division 6, we take

issue with many of the Special Master’s determinations and

conclusions. The following discussion is merely a narrative of these

determinations and conclusions, and, except in a few instances, we

reserve our commentary for Division 6.

22 (a) Rules Violated

In SDBD No. 7212, the Special Master granted the Bar’s

motion for summary judgment as to Tuggle’s violations of Rules 1.1,

1.3, 1.4, and 1.16 (d). In his report and recommendation, the Special

Master concluded that Tuggle had also violated Rule 1.2 (a) but had

not violated Rule 8.4 (a) (4).

As to Rule 1.1, the Special Master concluded that Tuggle

violated his duty of competence by failing to pay costs when he filed

the untimely answer. He noted that OCGA § 9-11-55 (a) is “clear and

basic” in requiring the payment of costs to open a default and that,

notwithstanding whether Tuggle was misinformed by a court

employee about whether costs were due, “[t]he competence required

of a general practitioner demanded that [Tuggle] pay the costs.”

As to Rules 1.3, 1.4, and 1.16 (d), the Special Master found that,

whether or not Tuggle had sent the purported “disengagement

letter,” Tuggle’s failure to file a notice of withdrawal, his failure to

communicate with the court or opposing counsel, and his failure to

communicate with the client and protect her interests amounted to

23 violations of his duties of diligence and communication and his

obligations upon the termination of representation.

As to Rule 1.2 (a), the Special Master stated that this particular

rule “appears to be inapposite to this circumstance” because it “is

more appropriately invoked” when the lawyer “fails to abide by the

client’s decisions concerning scope and objectives of the

representation.” But the Special Master went on to note that the

rule “does require compliance with Rule 1.4,” which Tuggle had

already been found to have violated, and that, even if Tuggle did in

fact send the client the purported disengagement letter, he still

should have followed up when he continued to receive documents

about the case, and his failure to do so was a violation of Rule 1.2

(a).

In finding no violation of Rule 8.4 (a) (4), the Special Master

stated, “If one believes [Tuggle’s] testimony that [the client] told him

that she would obtain substitute counsel, then she would not have

been misled with respect to subsequent events that occurred. If such

a conversation did not occur, as [the client] claims, then [Tuggle] did

24 not mislead [the client] of subsequent events because of his failure

to communicate at all.” It thus appears that the Special Master

reasoned that Tuggle, in failing to tell the client about the untimely

answer and its consequences, had no intent to deceive her either

because (a) she was getting another lawyer, who presumably would

apprise her of the case status, or (b) he was simply abandoning her.16

The Special Master also concluded that Tuggle “was suffering from

impairment issues which would seem to negate the intent and

hurtful purposefulness required to be dishonest, commit fraud,

deceit, or misrepresentation.”

In SDBD No. 7402, the Special Master granted the Bar’s

motion for summary judgment only as to Rule 9.2. In his report and

16 For whatever reason, the Special Master seems to have taken pains to

avoid making any credibility determinations here, even when Tuggle’s testimony was diametrically opposed to that of other witnesses. We take this opportunity to emphasize that the making of credibility determinations is a fundamental part of the Special Master’s duty as factfinder, and when this duty is not fulfilled, it can be difficult for this Court to fulfill its duty to determine the appropriate discipline in the matter at hand. See Bar Rule 4- 210 (i), (j) (giving Special Master power and duty to “decide questions of . . . fact raised” during disciplinary hearings and “make findings of fact” for consideration by this Court); see also Mercer Univ. v. Stofer, 306 Ga. 191, 202 (5) (830 SE2d 169) (2019) (“where there is a conflict in the evidence . . . , it is for the fact finder to resolve the conflict” (citation and punctuation omitted)).

25 recommendation, the Special Master concluded that Tuggle had also

violated Rules 1.2 (a), 1.3, 1.4, and 8.4 (a) (4).

In the summary judgment order, the Special Master noted that

it was undisputed that Tuggle had entered an agreement with his

clients’ “successor counsel” under which he agreed to “make a

payment” if they dismissed their bar complaint against him. While

finding that Tuggle had “made payment in full to the clients,”17 the

Special Master concluded that Tuggle’s agreement was “technically”

a violation of Rule 9.2.

In his report and recommendation, the Special Master

concluded that Tuggle had violated Rule 1.2 (a) by failing to (a) file

the Medicaid application by the date he had promised; (b) provide

specific information about what documents he needed to complete

the application or terminate the representation for non-cooperation;

and (c) communicate with the client about the “truthful status” of

the application.

17 The Special Master did not explain what he meant by this statement

and provided no record support for it.

26 As to Rule 1.3, the Special Master stated that whether Tuggle

was diligent depended on whether he had a valid reason for not filing

the application until seven months after the client retained him.

Without expressly saying so, the Special Master appears to have

rejected Tuggle’s assertions about the client’s family’s failure to

provide the necessary documents and thus to have found that Tuggle

did not have a valid reason for his delay.18 The Special Master also

cited Tuggle’s representation to the nursing home in March 2019

that the application was “pending,” rejecting as “unreasonable”

Tuggle’s claim that in his mind “pending” meant he was “working on

the application” and finding that this characterization was intended

to hold the nursing home “at bay.”

The Special Master found that Tuggle had violated Rule 1.4 in

that, to the extent he needed documents to complete the Medicaid

18 On this topic, the Special Master stated, “the problem with [Tuggle’s]

position is the lack of clarity in his actions and communications with the [client’s] family. Why is there no correspondence on this issue; why is there [no] correspondence with respect to specific missing documents; why is there no discussion of this issue with [the nursing home].” The Special Master also noted that “there is no evidence as to what specific missing docs [sic] were finally received which enabled [Tuggle] to file the application.”

27 application, “his requests were neither specific nor in writing” and

thus were “inadequate.” The Special Master noted the substantial

evidence about the difficulties the client and nursing home had in

communicating with Tuggle and, while allowing that “clients can be

difficult and their expectations unreasonable,” observed that it was

Tuggle’s responsibility to either “get[ ] the job done” or let the client

know if he could not do so in a timely manner.

As to Rule 8.4 (a) (4), the Special Master concluded that Tuggle

had violated this rule by misrepresenting to both the client and the

nursing home that he had filed the Medicaid application in March

2019, when in fact Tuggle did not file the application until July 2019.

(b) Factors in Determining the Appropriate Discipline

Having determined that Tuggle had violated Rules 1.1, 1.2 (a),

1.3, 1.4, 1.16 (d), 8.4 (a) (4), and 9.2,19 the Special Master proceeded

to consider the appropriate level of discipline, referring to the ABA

19 Although the Special Master found a Rule 9.2 violation in his summary

judgment order in SDBD No. 7402, there was no mention of this violation in the report and recommendation. It is thus unclear whether this violation was considered in determining the appropriate level of discipline.

28 Standards for Imposing Lawyer Sanctions. See Morse, 265 Ga. at

354 (2). The relevant factors for consideration include (1) the duty

violated; (2) the lawyer’s mental state; (3) the potential or actual

injury caused by the lawyer’s misconduct; and (4) the existence of

aggravating or mitigating factors. See id.

Duties Violated. The Special Master concluded that in both

disciplinary matters, Tuggle violated his duties of diligence,

competence and candor.

Mental State. The Special Master concluded in regard to SDBD

No. 7212 that Tuggle’s mental state was one of negligence. He

concluded that there was not clear and convincing evidence that

when Tuggle filed the answer, he failed to pay costs with the intent

to render the filing ineffective; rather, “Tuggle’s mistake was to rely

on what the clerk told him.” The Special Master concluded that

Tuggle’s “[f]ailure to pay costs because of ignorance or incompetence

could not result in intentional or knowing misleading of” the client.

The Special Master also reiterated that Tuggle’s “impairment

issues” “negate[d]” any “intent and hurtful purposefulness.” In

29 regard to SDBD No. 7402, the Special Master concluded that

Tuggle’s Rule 8.4 (a) (4) violation—misrepresenting the status of the

Medicaid application in order to “hold [the nursing home] at bay”—

was knowing and intentional. The Special Master determined that,

as to any other allegations, there was not clear and convincing

evidence of a knowing or intentional mental state.

Actual or Potential Injury. The Special Master noted that

Tuggle’s conduct in SDBD No. 7212 resulted in “potentially serious

financial injury” in the form of the judgment against the client and

the “actual expense” of attorney fees incurred to get the judgment

set aside. But the Special Master also observed that “Tuggle testified

he would be willing to pay” the attorney fees, noting in addition that

“[a] resolution of the [malpractice suit] has not as yet been accepted

by the parties.” In regard to SDBD No. 7402, the Special Master

concluded that the client had “suffered no actual injury and,

potentially, two months of [nursing home] expense not paid by

Medicaid.” He went on to explain that the client would not have

qualified for Medicaid until the QIT had been established in March

30 2019; that, because there was no evidence that Tuggle had been

tardy in setting up the QIT, and because benefits were received

retroactive to May 1, 2019, the only injury was the cost of the

nursing home for March and April; and that, because Tuggle paid

$12,000 to the nursing home, Tuggle had “made [the client] whole.”

As for the unpaid judgment against Tuggle, the Special Master

concluded that “[u]nder the circumstances, that is a civil rather than

a disciplinary matter.”

Aggravating and Mitigating Factors. As aggravating factors,

the Special Master found that (1) the conduct in these two matters

evidenced a pattern of misconduct—while also noting the absence of

evidence of any prior instances of similar misconduct; (2) Tuggle had

violated several rules; and (3) the victims in both matters were

“vulnerable” in that one was “a young mother” and the other was an

elderly man with dementia—while also finding that “both were able

to take active, appropriate steps to protect their interests” during

Tuggle’s representation.

31 In mitigation, the Special Master first noted that Tuggle had

no prior disciplinary history. In addition, he concluded that Tuggle

had not acted with a dishonest or selfish motive, in that his conduct

“in both cases was negligent and affected by impairment,” and that,

even as to his intentional misrepresentation in SDBD No. 7402, the

eventual approval of the Medicaid application in combination with

Tuggle’s payments to the nursing home rectified the harm caused by

his delay. The payments to the nursing home were also cited as

evidence of Tuggle’s remorse and good faith effort to make

restitution, and the Special Master found these mitigating factors

also to apply in SDBD No. 7212, stating—without citing any record

support—that Tuggle “remains open to” reimbursing the client’s

attorney fees in connection with getting the default judgment set

aside. The Special Master also noted that Tuggle had exhibited a

cooperative attitude toward the disciplinary proceedings by

“participat[ing] appropriately in the disciplinary process” and

“attempt[ing] to resolve these matters through negotiation with the

Bar,” and that he had presented evidence of his good character and

32 reputation through his own testimony and the testimony of four

character witnesses: Tuggle’s father, his legal assistant, a long-time

friend, and a “fellow lawyer.”20

The Special Master also concluded that Tuggle’s substance use

disorders were a substantial mitigating factor in these matters,

finding that “[t]o a significant extent,” Tuggle’s misconduct in both

matters “was caused, or materially contributed to, by his Stimulant

and/or Alcohol Use Disorders,” and noting that, even though Tuggle

was not “technically” in remission, he had been adjudged as

currently fit to practice law.

20 As to whether Tuggle’s experience in the practice of law qualified as

aggravating (in that he had “substantial experience”) or mitigating (in that he was “inexperienced”), the Special Master’s conclusions are unclear. In discussing aggravation, the Special Master noted without elaboration that Tuggle was admitted to practice in Florida in 2008 and in Georgia in 2011. He also noted that, at the time of the events in SDBD No. 7212, Tuggle had “little litigation experience.” In discussing mitigation, the Special Master simply recited that, at the time of the events in SDBD No. 7212, Tuggle had been practicing for five years in Georgia and eight years total, and that, at the time of SDBD No. 7402, Tuggle had been practicing for eight years in Georgia and 11 years total.

33 (c) Recommendation of Discipline

Based on his findings of fact, conclusions as to Tuggle’s Rule

violations, and application of the relevant factors, the Special

Master recommended that Tuggle be suspended from the practice of

law in Georgia for one month with no conditions for reinstatement.

Noting that this Court does not act punitively in disciplinary

matters and that discipline should be no more severe than necessary

to accomplish its established purposes, the Special Master opined

that (1) a penalty more severe than a one-month suspension was

unnecessary to protect the public because Tuggle’s misconduct was

largely caused by his substance-use disorders, from which he has

been largely rehabilitated; (2) “[a] suspension of any length seriously

penalizes a lawyer” because notices of suspension are publicized via

various channels, see Bar Rule 4-219 (a); (3) a one-month suspension

would send a message to other lawyers facing substance-use

disorders that, while the Court “will take action necessary to

maintain the ethics of the profession,” it will also “not impose

discipline so harsh as to imperil” the practice of a lawyer successfully

34 coping with disorders that contributed to disciplinary violations; (4)

disciplinary sanctions must be commensurate with the particular

facts of each case; and (5) the mitigating factors here—particularly

Tuggle’s recovery from his substance-use disorders and current

fitness to practice law—outweighed the factors in aggravation.

5. State Bar’s Exceptions and Tuggle’s Response

The State Bar argues that the Review Board erred in (1)

adopting the Special Master’s conclusion that Tuggle did not violate

Rule 8.4 (a) (4) in SDBD No. 7212; and (2) adopting the

recommendation of a one-month suspension with no conditions. On

the first issue, the State Bar contends that the Special Master’s

findings of fact do not support his conclusions that Tuggle did not

intentionally mislead the client about the status of her case and that

his “impairment issues” somehow negated the intent required for a

Rule 8.4 (a) (4) violation.

As to the recommended discipline, the State Bar argues that

the Special Master and the Review Board erred in their findings on

Tuggle’s mental state—which the State Bar contends was knowing

35 rather than negligent—and the extent of the injury suffered by the

clients, which the State Bar contends was both financial and

emotional. The State Bar also contends that the Special Master

erred by declining to apply certain aggravating factors—such as a

dishonest or selfish motive; refusal to acknowledge the wrongful

nature of conduct; vulnerability of the victims; and indifference to

making restitution—and, conversely, by applying the mitigating

factors of a lack of a dishonest or selfish motive; timely good faith

effort to make restitution; evidence of good character or reputation;

and remorse. In addition, the State Bar disputes the Special

Master’s finding that Tuggle participated appropriately in the

disciplinary process, contending that he demonstrated contempt for

the disciplinary proceedings, conditioned his willingness to resolve

the matters only if he received a less-severe penalty, and acted

confrontationally by arguing with the Special Master and Bar

Counsel at the disciplinary hearing. The State Bar contends further

that the Special Master erred by considering Tuggle’s substance-use

disorders mitigating, noting Tuggle’s testimony that he did not know

36 whether his Adderall dependency impaired his representation in

SDBD No. 7212 and his affirmative denial that his alcohol use

affected his representation in SDBD No. 7402, and citing the opinion

of the psychiatrist who examined him in 2022 that he was at risk of

relapse for his alcohol addiction because he was not completely

abstinent and was not participating in psychotherapy.

The State Bar argues that the recommendation of a one-month

suspension is not appropriate, given the significant consequences of

Tuggle’s actions, this Court’s need to protect the public, and this

Court’s precedent, and contends that the Court should impose a

suspension of at least 18 months, with several conditions of

reinstatement, including restitution to both clients and a

psychiatrist or psychologist’s timely certification of current fitness

to practice law.

Tuggle responds that the Special Master did not err in his

findings or conclusions and that its recommendation of a one-month

suspension was appropriate given the circumstances.

37 6. Analysis

“The primary purpose of a disciplinary action is to protect the

public from attorneys who are not qualified to practice law due to

incompetence or unprofessional conduct, but this Court is also

concerned with the public’s confidence in the profession generally.”

Cook, 311 Ga. at 213 (3) (a). The sanction imposed for disciplinary

infractions should be one that is sufficient to penalize the offender

for his wrongdoing, deter other attorneys from engaging in similar

behavior, and indicate to the general public that the courts will

maintain the ethics of the profession. See id. The ABA Standards

are “generally instructive as to the question of punishment,” but

“they are not controlling.” Id. “Instead, the level of punishment

imposed rests in the sound discretion of this Court.” Id.

(a) Rules Violated

Bearing in mind that the State Bar has the burden of proving

violations of the GRPC by clear and convincing evidence, see Bar

Rule 4-221.2 (b), we now turn to the Special Master’s conclusions as

to Tuggle’s violations of the GRPC.

38 SDBD No. 7212. The Special Master concluded in SDBD No.

7212 that Tuggle violated Rules 1.1, 1.2 (a), 1.3, 1.4, and 1.16 (d).

Neither Tuggle nor the State Bar contests any of these conclusions.

The Special Master also concluded that Tuggle did not violate Rule

8.4 (a) (4), a conclusion that the State Bar does contest.

We agree that the State Bar has shown by clear and convincing

evidence that Tuggle violated Rules 1.1, 1.3, 1.4, and 1.16 (d). He

violated his duty of competence, as prescribed in Rule 1.1, by failing

to file a timely answer and thereafter failing to take the necessary

steps to open the default. He violated his duty of diligence, as

prescribed in Rule 1.3, by filing the client’s answer late and

ultimately, after failing to open the default, abandoning the client

and her matter. He violated his duty of communication, as

prescribed in Rule 1.4 (a), by failing to inform the client about the

status of and developments in her case and failing to respond to her

communications about the case. And he violated his duties upon

termination of representation, as prescribed in Rule 1.16 (d), by

failing to take any steps to protect his client’s interests when he

39 terminated his representation—allowing her case to progress to a

default judgment and failing to communicate this to her while he

was still counsel of record—and later refusing to return her file upon

her request.

With respect to Rule 8.4 (a) (4), we conclude that the Special

Master erred and that the State Bar has shown by clear and

convincing evidence that Tuggle engaged in conduct involving

dishonesty and misrepresentation. We have held that Rule 8.4 (a)

(4) encompasses conduct that is “intended or likely to mislead

another,” In the Matter of Woodham, 296 Ga. 618, 625 (3) (769 SE2d

353) (2015) (emphasis supplied), which may include

misrepresenting to a client the status of a case. See In the Matter of

Hardwick, 297 Ga. 808, 808-809 (777 SE2d 442) (2015) (lawyer

violated Rule 8.4 (a) (4) by misrepresenting to client the filing status

of a motion for expedited bond); In the Matter of Hammock, 278 Ga.

385, 386-387 (602 SE2d 658) (2004) (lawyer violated Rule 8.4 (a) (4)

where he misled his client into believing that her cases were pending

long after they were time-barred or dismissed).

40 Here, it is undisputed that Tuggle, knowing he had filed the

answer late and without fully complying with the requirements of

OCGA § 9-11-55 (a), e-mailed his client that same day with a

message that was intended to—and did in fact—make her believe

the representation was proceeding apace. Further, he knowingly

perpetuated the client’s misapprehension by failing to respond to

her communications about the case after his purported withdrawal,

particularly as he was made aware of further developments in the

case. It is undisputed that the client was unaware of any problems

with her case until she began receiving garnishment notices—a

clear illustration of the misleading effect of Tuggle’s acts and

omissions. As for the Special Master’s conclusion that Tuggle’s

“impairment issues” somehow prevented him from forming the

requisite intent to violate Rule 8.4 (a) (4), we are aware of no

precedent—certainly, the Special Master cited none—that permits

a mitigating factor to preclude the finding of a Rule violation, as

opposed to justifying a lighter penalty for the violation found.

41 Therefore, we conclude that Tuggle violated Rule 8.4 (a) (4) in SDBD

No. 7212.

SDBD No. 7402. The Special Master concluded in SDBD No.

7402 that Tuggle violated Rules 1.2 (a), 1.3, 1.4, 8.4 (a) (4), and 9.2.

Neither Tuggle nor the State Bar contests any of these conclusions.

We agree that the State Bar has shown by clear and convincing

evidence that Tuggle violated Rules 1.3, 1.4, 8.4 (a) (4), and 9.2. He

violated his duty of diligence by failing to file the Medicaid

application until four months after the QIT was established. And if,

as Tuggle claims, he lacked necessary documents to be able to file

the application, then he also violated his duty of diligence by failing

to request those documents from his client with the requisite

specificity and urgency to enable him to do his job in a timely

manner. Likewise, if one is to believe Tuggle’s claim that he lacked

necessary documents, then he violated Rule 1.4 (a) by failing to

communicate clearly that he needed specific documents to be able to

accomplish the client’s objectives. And regardless, Tuggle violated

Rule 1.4 (a) by failing to respond to communications from the client

42 and his family. He violated Rule 8.4 (a) (4) by baldly misrepresenting

to both the client and the nursing home that he had filed the

Medicaid application in March 2019. And he violated Rule 9.2 by

entering into a pre-suit settlement with the client conditioned on his

agreement to drop his Bar grievance. In sum, we conclude that

Tuggle has violated Rules 1.1, 1.3, 1.4 (a), 1.16 (d), 8.4 (a) (4), and

9.2 in these matters.21

As noted above, in determining the appropriate discipline, we

examine (1) the duty violated; (2) the lawyer’s mental state; (3) the

potential or actual injury caused by the lawyer’s misconduct; and (4)

the existence of aggravating or mitigating factors. See Morse, 265

Ga. at 354 (2).

21 The Special Master also concluded that Tuggle violated Rule 1.2 (a) in

both matters, and neither party contests this conclusion. However, we note that Rule 1.2 (a) requires a lawyer to “abide by a client’s decisions concerning the scope and objectives of representation,” and in our view, Tuggle did not necessarily violate this provision in either matter. But whether Tuggle violated Rule 1.2 (a), in addition to all the other Rules he violated, is not material to the ultimate disposition of this case, and thus we pretermit this issue.

43 Duties Violated. We agree with the Special Master that Tuggle

violated his duties of diligence, competence and candor. We note

further that he violated his duties of communication, his duties upon

termination of representation, and his obligation not to enter

agreements conditioned on dismissal of a pending disciplinary

complaint.

Mental State. With respect to SDBD No. 7212, we disagree with

the Special Master’s determination that Tuggle’s mental state was

exclusively one of negligence. We agree that, if one credits Tuggle’s

claim that the court clerk told him not to pay costs when he filed the

untimely answer, his failure to submit fees with the answer was, at

least arguably, merely negligent. But the evidence is undisputed

that Tuggle knew the answer was due no later than February 27,

yet made no effort to file the answer until March 9. The evidence is

also undisputed that Tuggle knowingly failed to inform his client

that the answer was not timely filed and knowingly perpetuated his

client’s ignorance by cutting off his communications with her after

allegedly terminating his representation; the inescapable conclusion

44 from this evidence is that Tuggle intended to mislead the client into

believing her case was being properly handled. Tuggle also

knowingly ignored communications from opposing counsel and the

court, neither of which had been informed of his purported

withdrawal. And to the extent the Special Master determined that

Tuggle’s substance-use disorders somehow negated his intent or

knowledge, we reject that reasoning, which would have the effect of

“double-counting” Tuggle’s substance-use disorders as a mitigating

factor—a subject we address below. Thus, we conclude that, in

SDBD No. 7212, Tuggle acted with intent or at least knowledge in

most of his acts of misconduct.

With respect to SDBD No. 7402, we agree with the Special

Master that Tuggle acted with the intent to mislead when he sent

the March 2019 letter to his client and the nursing home stating that

the Medicaid application had been filed and was pending. To the

extent the Special Master determined that Tuggle’s $12,000

payment to the nursing home somehow negated or mitigated this

mental state, we reject that determination as another instance of

45 the double-counting of a mitigating factor. And although Tuggle

claimed not to have known that the GRPC prohibit agreements

conditioned on the dismissal of a Bar complaint, his ignorance of the

Rules is no excuse, see Preamble to GRPC, Par. 11 (“Every lawyer is

responsible for observance of the [GRPC].”)—and because he knew

he was entering into the agreement, his state of mind was knowing.

As to Tuggle’s other deficiencies in this matter—his delay in filing

the application and his failures in communicating—we conclude

that Tuggle’s conduct was merely negligent.

In sum, Tuggle’s misconduct was committed with a mix of

intent, knowledge, and negligence.

Actual or Potential Injury. We conclude that Tuggle’s

misconduct caused both actual and potential injury to the clients in

both matters.

In SDBD No. 7212, it is undisputed that Tuggle’s late-filed

answer, deficient effort to open default, and subsequent

abandonment of his client exposed the client to serious financial

injury in the form of a more than $800,000 adverse judgment and

46 required the client to spend more than $30,000 in attorney fees to

get the default judgment set aside. We thus agree with the Special

Master that Tuggle’s misconduct caused serious actual and potential

injury.22

In SDBD No. 7402, we conclude that the Special Master erred

by finding that the client suffered no actual injury. Even if, as the

Special Master found, Tuggle’s lack of diligence was the cause of only

two months’ worth of forfeited Medicaid payments and his $12,000

payment fully covered those costs, there is still the matter of the

unpaid civil judgment of more than $22,000 and the attorney fees

spent seeking that relief. Characterizing the judgment as a “civil”

matter, as the Special Master did, does not alter the fact that the

client had to hire another lawyer to seek redress over Tuggle’s

mishandling of his case. Added to the actual financial injury was the

potential injury the client faced—being unable to continue his wife’s

22 Although the Special Master apparently credited Tuggle’s testimony

that he “would be willing to pay” the client’s attorney fees, the fact remains that, at this point in time, the client has parted with more than $30,000 with no guarantee that she will recover it.

47 nursing home care—as a result of Tuggle’s delay and

mismanagement of the matter.

In sum, Tuggle’s misconduct caused both actual and potential

injury of a serious nature to his clients in both matters.

Aggravating and Mitigating Factors. We agree with several of

the Special Master’s determinations on aggravating and mitigating

factors. As to aggravation, we agree that Tuggle’s conduct in these

matters amounts to a pattern of misconduct characterized by a lack

of diligence, misrepresentations designed to prevent the detection of

his dereliction, and the failure to communicate with clients. We

agree that this pattern of misconduct resulted in the violation of

multiple rules of professional conduct. And we agree that the victims

in both matters—an overly trusting young client in SDBD No. 7212,

and an elderly man with dementia in SDBD No. 7402—were

vulnerable. As to mitigation, it is undisputed that Tuggle has no

prior disciplinary history and that he presented four witnesses that

48 attested to his good character and reputation.23 We agree that the

evidence does not show a selfish motive because there is no

indication that Tuggle’s conduct was motivated by a desire for

personal gain—although he clearly had a dishonest motive in lying

to his clients and others. Like the Special Master, we view Tuggle’s

experience in the practice of law as neither particularly aggravating

nor mitigating.24

Where we significantly part ways with the Special Master,

however, is in his determinations as to Tuggle’s acknowledgment of

wrongdoing and his remorse, his timely good-faith efforts to make

restitution, and the mitigating effect of his substance-use

disorders.25

23 It is, however, difficult to assign a great deal of weight to the unsurprisingly favorable opinions of Tuggle’s father, legal assistant, and long- time friend. 24 Note, however, that in at least one case we have suggested that five to

seven years in practice constitutes “substantial experience” for these purposes. See In the Matter of Arrington, 308 Ga. 486, 487-488 (841 SE2d 663) (2020) (suggesting that lawyer had substantial experience when he was admitted in 2008 and misconduct occurred from 2013 to 2015). 25 We also disagree with the Special Master’s conclusion that we should

weigh in mitigation Tuggle’s “cooperative attitude” in the disciplinary

49 First, as to Tuggle’s acknowledgment of wrongdoing and

remorse, the hearing testimony on its face shows that Tuggle was

willing to concede that he had committed only minor infractions, and

only with caveats, excuses, and victim-blaming. In SDBD No. 7212,

Tuggle acknowledged that “maybe [he] could have been more

insistent” in getting the court to accept his payment of fees with the

untimely answer, and that “maybe the seriousness of the situation

could have been communicated a little better, or much better” to the

client and that he “could have followed through in making sure [the

client] did secure counsel.” Even then, Tuggle followed up by noting

that he did send her a disengagement letter so he “felt like [he] kind

of handled [it],” and that it was “not [his] job to find her [new]

proceedings. The Special Master found in this regard that Tuggle had “participated appropriately in the disciplinary process” and “attempted to resolve these matters through negotiation with the Bar.” Although there may be some truth to these findings, we also note that the transcript of the disciplinary hearing on its face shows that Tuggle was at times not just argumentative but acerbic, prompting the Special Master and his own lawyer to chastise him. Although lawyers have every right to defend themselves zealously against disciplinary charges—including in their responses to Bar counsel—when they cross the line from zealous advocacy into blatant disrespect for the disciplinary proceedings and those involved in it, they may not claim cooperativeness as a mitigating factor. Such was the case here, and we thus decline to weigh this factor in mitigation.

50 counsel,” at one point quipping, “Should I have sent flowers?” Even

on a cold record, such comments are not indicative of

acknowledgment and remorse.26

In SDBD No. 7402, Tuggle’s record on acknowledgment of

wrongdoing and remorse is mixed. To this day, he has never

expressly acknowledged any wrongdoing, insisting that his delay in

filing the Medicaid application was a result of the client’s family’s

failure to provide the necessary documents. Particularly given the

Special Master’s finding that “the evidence is overwhelming against

[Tuggle’s] position” in this regard, Tuggle’s blaming of the family

looks like the opposite of accepting responsibility. On the other

hand, it is undisputed that Tuggle made $12,000 in payments to the

26 And all this is not to mention the “disengagement” letter—the elephant

in the room that the Special Master declined to directly confront. As noted above, the Special Master, while not making a finding on whether Tuggle actually sent this letter, nonetheless observed that “[Tuggle’s] behavior subsequent to allegedly sending the letter [was] not consistent with” his having done so. If one believes—as the Special Master appears to have suggested— that this letter was a post-hoc effort to paper over Tuggle’s abandonment of his client, then the letter is further proof of, among other things, Tuggle’s willful refusal to accept responsibility for his misconduct.

51 nursing home on the client’s behalf, which was a significant implicit

acknowledgment of responsibility. So while Tuggle has refused to

admit in words that he acted less than diligently, his effort to

compensate for some costs of the delay was a concession of sorts.

The payment to the nursing home is, of course, also relevant to

the issue of restitution. We agree with the Special Master that the

$12,000 payment is evidence of a timely good-faith effort at

restitution in SDBD No. 7402. We note, however, that such payment

appears not to be full restitution, given the more than $22,000

judgment entered against Tuggle that, at the time of the disciplinary

hearing, Tuggle had failed to satisfy. See In the Matter of Farmer,

307 Ga. 307, 310 (835 SE2d 629) (2019) (attorney’s failure to satisfy

a judgment in a civil RICO case was aggravating factor); In the

Matter of Briley-Holmes, 304 Ga. 199, 207 (815 SE2d 59) (2018)

(attorney’s failure to make payment toward arbitration awards was

aggravating factor). So as to this factor, too, Tuggle’s record in SDBD

No. 7402 is mixed at best.

52 In SDBD No. 7212, however, there is no evidence of a good-

faith effort at restitution. Although the Special Master found that

Tuggle was willing to reimburse the client for her attorney fees for

getting the default judgment set aside, the testimony the Special

Master relied on does not support this finding. As noted above,

Tuggle claimed he “would’ve been more than happy to reimburse”

the client for her attorney fees but that he “was provided no

documentation” of the fees and thus did not know their “exact

amount.” But it is undisputed that Tuggle himself actually

submitted, as part of his hearing exhibits, the invoice documenting

the client’s legal fees. As far as we can tell, Tuggle has made no effort

to make restitution in any amount to the client in SDBD No. 7212.

So we conclude that Tuggle’s indifference to restitution is an

aggravating factor in SDBD No. 7212.

Finally, we conclude that Tuggle’s substance-use disorders are

not mitigating in either of the matters here. The ABA Standards

provide that a “chemical dependency[,] including alcoholism or drug

abuse” may be a mitigating factor when:

53 (1) there is medical evidence that the respondent is affected by a chemical dependency . . . ; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.

ABA Standard 9.32 (i). Tuggle’s substance-use disorders do not

satisfy this ABA Standard for the simple reason that in neither case

is there evidence that his “chemical dependency . . . caused the

misconduct.” In SDBD No, 7212, Tuggle testified that his Adderall

addiction caused him to focus too much on his work; his disorder

thus would offer no explanation for his untimely answer, failure to

effectively open the default, and abrupt termination of the

representation with no follow-up communication. And to the extent

Tuggle attributed his failure to maintain communications with the

client to the fact that he was occupied with his treatment and

recovery, we note first that the record is unclear as to the timing of

his treatment (see footnote 14 above) and also that, regardless—and

54 as the Special Master noted—“[Tuggle’s] law office was open” and

thus, whether in treatment or not, he remained obligated to his

clients. As to SDBD No. 7402, the evidence is undisputed that

Tuggle was not using Adderall at the time of his representation, and

Tuggle testified without reservation that his alcohol-use disorder

“[d]idn’t have anything to do with” and “didn’t affect my services

whatsoever” in that case.27

On balance, the aggravating factors we have identified—

pattern of misconduct; multiple rules violated; vulnerable clients;

lack of remorse or acknowledgment of wrongdoing; failure to make

any restitution in one case and failure to make full restitution in the

other—substantially outweigh the mitigating factors—no prior

discipline; no selfish motive; attestations of good character.

27 In concluding that Tuggle’s substance-use disorders are not mitigating

here, we do not in any way intend to minimize Tuggle’s efforts to confront his chemical dependency, which are to be applauded. We reiterate that our basis for concluding that his chemical dependency is not mitigating is that there is simply no evidence of a causal link between the dependency and the misconduct. We also note, however, that the evidence here does not establish Tuggle’s full recovery from his alcohol-use disorder, so to the extent that disorder had been shown to be a cause of his misconduct, his less-than-full recovery might not have been a mitigating factor in any event.

55 56 (c) Appropriate Level of Discipline

To recap, the record before us establishes that Tuggle violated

six provisions of the GRPC in two client matters. In both matters,

among the rules violated is Rule 8.4 (a) (4), which is “among the most

serious violations with which a lawyer can be charged.” In the Matter

of McCall, 314 Ga. 200, 206 (875 SE2d 765) (2022). Violation of that

rule, along with three of the other rules violated, is punishable by

disbarment. In our consideration of the factors relevant to assigning

discipline, we have concluded that Tuggle violated the duties of

competence, diligence, and candor, as well as his duties in

communicating with clients, upon termination of his relationship

with clients, and with respect to agreements conditioned on

dismissal of disciplinary complaints. We have also determined that

many of Tuggle’s actions were committed with intent or at least

knowledge; that he caused serious actual and potential injury to

both clients; and that the aggravating factors significantly outweigh

the mitigating factors in both matters.

57 On such a record, the recommendation of a one-month

suspension is grossly inadequate. Neither the Special Master nor

the Review Board cited a single case supporting this level of

discipline, and our own research shows that such a short suspension

is rare and certainly not sufficient discipline in circumstances like

those here.28

Instead, for Tuggle’s pattern of serious misconduct in violation

of Rules 1.1, 1.3, 1.4 (a), 1.16 (d), 8.4 (a) (4), and 9.2 in these two

matters, with a number of factors in aggravation that substantially

outweigh any mitigating factors, a significant disciplinary sanction

in the form of either a lengthy suspension with conditions or

disbarment is warranted. Compare In the Matter of Roberts, 314 Ga.

28 We have imposed a one-month suspension as reciprocal discipline, see

In the Matter of Bounds, 294 Ga. 724 (755 SE2d 745) (2014), and in a few cases involving far less egregious circumstances. See In the Matter of Branan, 300 Ga. 779 (798 SE2d 218) (2017) (imposing one-month suspension and Review Panel reprimand for single act of misconduct involving no harm to clients, where no aggravating factors were present and several mitigating factors were); In the Matter of Wilkinson, 284 Ga. 548 (668 SE2d 707) (2008) (imposing one-month suspension and public reprimand for negligent misconduct involving no finding of harm to clients, where no aggravating factors were presented and several mitigating factors were).

58 510 (877 SE2d 266) (2022) (disbarring attorney with no prior

disciplinary record for multiple rule violations in two client matters

where attorney failed to respond to filings and appear at court

hearings and failed to communicate and consult with clients to the

substantial detriment of both clients, where attorney refused to

acknowledge wrongful conduct and showed indifference to making

restitution); In the Matter of Holliday, 308 Ga. 216 (839 SE2d 518)

(2020) (disbarring attorney with no prior disciplinary record for

multiple rule violations in three client matters where attorney

effectively abandoned clients’ cases and failed to communicate with

clients, to their detriment); and In the Matter of Koehler, 297 Ga. 794

(778 SE2d 218) (2015) (disbarring attorney with no prior

disciplinary record for multiple rule violations in a single client

matter in which, among other aggravating factors, attorney failed to

acknowledge his wrongful conduct when numerous aggravating

factors were present), with In the Matter of Iwu, 303 Ga. 539 (813

SE2d 336) (2018) (imposing three-year suspension on attorney with

no disciplinary record for multiple rule violations where aggravating

59 factors outweighed mitigating factors); and In the Matter of Lea, 296

Ga. 79 (764 SE2d 859) (2014) (imposing three-year suspension with

reinstatement conditions on attorney with no disciplinary record

where attorney abandoned two clients and failed to make

restitution).

In determining the appropriate discipline, it will be useful to

have the benefit of fact-finding on the post-hearing developments in

the malpractice suit arising from the matter in SDBD No. 7212,

referenced in footnote 12 above. The disposition of that suit, as well

as Tuggle’s conduct in those proceedings, may be relevant in

determining the proper level of discipline to impose. We have

therefore concluded that it is necessary to remand this case for

additional fact-finding as to those post-hearing developments. See

In the Matter of Van Dyke, 311 Ga. 199 (857 SE2d 194) (2021)

(remanding to special master for additional fact-finding as to

matters addressed in supplemental briefing, among other things).

In addition, because restitution is at issue in both matters and may

be relevant to Tuggle’s reinstatement after any suspension we may

60 ultimately impose, additional fact-finding is necessary as to the

amount of restitution (including unpaid judgments, attorney fees,

and any other amounts) the Bar contends is still owed to the client-

grievants.

We therefore reject the recommendations of the Review Board

and the Special Master and remand to the Board, with direction that

the Board remand this case to a Special Master, within ten days of

the publication of this opinion, for (1) further fact-finding on the

limited subjects of the post-hearing developments in the malpractice

suit arising from the matter in SDBD No. 7212 and the amount of

restitution, if any, that is currently owed to the client-grievants in

both matters; and (2) a new recommendation as to the appropriate

discipline to be imposed, consistent with the findings and

conclusions in this opinion and informed by the Special Master’s

additional fact-finding on the two issues outlined above. The Special

Master is directed to submit an amended report and

recommendation with additional findings of fact and conclusions of

61 law, and a new recommendation, within 90 days of the date of the

Review Board’s order remanding the case.

Review Board recommendation rejected and case remanded with direction. All the Justices concur.

Decided September 6, 2023.

Disciplinary matter.

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.

Wilson Morton & Downs, James E. Spence, Jr., for Tuggle.