313 Ga. 686 FINAL COPY
S22Y0687. IN THE MATTER OF PHILLIP NORMAN GOLUB.
PER CURIAM.
This disciplinary matter is before the Court pursuant to the
report and recommendation issued by Special Master Jack Jeffrey
Helms, Jr., who recommends that respondent Phillip Norman Golub
(State Bar No. 300503) be suspended from the practice of law for one
year with conditions on his reinstatement, based on his failure to
complete a client’s work, adequately communicate with her, and
refund his unearned fee.
In October 2019, the State Bar filed a formal complaint1
against Golub; Golub filed an answer; and the State Bar then filed
1 Golub previously had filed a petition for voluntary discipline related to
this disciplinary matter, seeking a public reprimand, which this Court rejected. See In the Matter of Golub, 306 Ga. 620, 621-622 (832 SE2d 332) (2019) (rejecting petition for voluntary discipline seeking public reprimand, because it was not entirely clear from the admitted facts that Golub violated Rule 8.4 (a) (4) of the Georgia Rules of Professional Conduct, which prohibits lawyers from engaging in professional conduct involving dishonesty, fraud, deceit, or misrepresentation, and because Golub had failed to refund his unearned fee or state his intention to do so). a motion for summary judgment, to which Golub responded.
Following oral argument, the Special Master granted the State Bar’s
motion for summary judgment and subsequently held a hearing on
the issue of level of discipline. Following that hearing, the Special
Master issued his report and recommendation, in which he
combined his rulings on the motion for summary judgment with the
recommendation of discipline. We agree with the Special Master
that a one-year suspension with conditions on reinstatement is the
appropriate discipline in this matter.
1. The facts.
In the report, the Special Master found the following facts to
be undisputed in the record. In 2014, a client retained Golub, who
has been a member of the State Bar since 1980, to represent her in
a matter involving a fraudulent transfer of real property. While
Golub agreed to represent the client, he did not have her sign an
engagement agreement. The client was elderly and in poor health,
and her condition impaired her ability to communicate. As a result,
Golub primarily communicated with her son. Golub charged the
2 client $7,500 in attorney fees related to this matter, which was paid
in three installments of $2,500 over the course of two years.
In 2015, Golub filed two lawsuits on the client’s behalf against
several defendants — one in January and one in June. After being
served with the lawsuits, some of the defendants filed motions to
dismiss, and Golub filed responses. Throughout his communications
with Golub, the client’s son was under the impression that the
defendants had not responded to the lawsuits and that the cases
would be placed on the trial calendar. The defendants also served
discovery requests and requested the client’s deposition; however,
due to the client’s health, Golub did not think she could handle a
deposition or engage in discovery, so he delayed her deposition and
continued to extend the discovery period in both cases. Discovery in
the January 2015 lawsuit was extended six times, and as of January
2017, two years after the lawsuit was filed, the parties still had not
conducted discovery. Moreover, during this two-year period, Golub
did not serve responses to the defendants’ written discovery
requests, serve written discovery requests on the defendants,
3 conduct depositions, file motions in the case, try to settle or
otherwise conclude the case, or make any efforts to get the case on
the trial calendar. Discovery in the June 2015 case also was
extended several times, and as of January 2017, a year-and-a-half
after that case was filed, the parties had not conducted discovery.
As in the first case, during this period of time, Golub did not serve
responses to the defendants’ written discovery requests, serve
written discovery requests on the defendants, conduct any
depositions, try to settle or otherwise conclude the case, or make any
efforts to get the case on the trial calendar.
The client’s son attempted to contact Golub on numerous
occasions regarding the status of his mother’s cases, but Golub did
not always respond to his requests and failed to inform the client or
her son when the trial court set the cases for a hearing in April 2017
on the defendants’ motions to dismiss.2 Golub ultimately filed
voluntary dismissals without prejudice in the cases, but failed to
2 The record shows that Golub was hospitalized for approximately 12
days in March and April 2017 and spent seven or eight of those days on full life support. 4 inform the client or her son that he did so until the son contacted
him in June 2017. Golub subsequently filed renewal actions in the
client’s cases in October 2017, but did not inform the client or her
son that he had done so, and also failed to serve the defendants in
the renewal actions. Prior to the refiling, in September 2017, the
client passed away, although Golub was unaware of this because he
did not attempt to communicate with her or her son even after he
filed the renewal actions.
As a result, Golub failed to substitute a party to the lawsuits
and did not file anything with the trial court regarding the client’s
death, and in October 2018, the defendants in one of the cases filed
a suggestion of death. The defendants also filed motions to dismiss
and asked the court to hold a hearing as soon as possible. Golub
again filed dismissals without prejudice in both cases, and again
failed to inform the son that he dismissed the lawsuits. Golub also
did not do any research to determine what, if any, impact dismissing
the lawsuits for a second time would have on the client’s estate being
able to continue to pursue her claims, and he also did not do any
5 research to determine whether the client’s estate would be
prevented from refiling the lawsuits once a representative was
appointed. Finally, the Special Master determined that Golub failed
to provide any billing records to the client or her son; failed to refund
the fee he was paid that he did not earn; and failed to complete work
on the client’s cases.
2. The Special Master’s conclusions of law.
The Special Master stated that the State Bar alleged in its
motion for summary judgment that Golub’s acts and omissions
violated Rules 1.2 (a), 1.3, 1.4 (a), 1.16 (d), 3.2, and 8.4 (a) (4) of the
Georgia Rules of Professional Conduct. The maximum sanction for
a violation of Rules 1.2, 1.3, and 8.4 (a) (4) is disbarment, while the
maximum sanction for a violation of Rules 1.4, 1.16, and 3.2 is a
public reprimand.
In regard to Rule 1.2 (a), the Special Master determined that a
lawyer is required to consult with the client and abide by the client’s
decisions concerning the scope of representation. See In the Matter
of Garnett, 278 Ga. 527, 528 (603 SE2d 281) (2004) (lawyer violated
6 Rule 1.2 when he failed to contact client about trial date or discuss
case with client prior to trial). With respect to the means by which
the client’s objectives are to be pursued, the Special Master further
determined that a lawyer shall consult with the client as required
by Rule 1.4 (a) (2) and may take such actions as impliedly authorized
in order to carry out the representation. See Rule 1.2, Comment [1].
See also In the Matter of Steckbauer, 293 Ga. 893, 894 (750 SE2d
363) (2013) (lawyer violated Rule 1.2 by failing to consult with client
and abide by her decisions). Here, the Special Master concluded that
Golub violated Rule 1.2 (a) when he did not inform his client or her
son about the trial calendar and when he dismissed the two lawsuits
he had filed on behalf of the client without consulting her. The
Special Master concluded that Golub also violated Rule 1.2 (a) when
he filed renewal actions on behalf of the client without notifying her
or her son that he intended to do so.
In regard to Rule 1.3, the Special Master determined that a
lawyer’s lack of diligence may result in prejudice to a client’s
interests, see, e.g., In the Matter of Shearouse, 266 Ga. 848, 848-849
7 (472 SE2d 294) (1996) (disbarring lawyer who allowed statute of
limitation to expire in one client’s case and failed to set aside
foreclosure for another client), and that Rule 1.3 requires a lawyer
to meet deadlines and appear at scheduled hearings. Moreover, the
Special Master noted that Rule 1.3, Comment [3] states that “[a]
client’s interests often can be adversely affected by the passage of
time or the change of conditions,” and that even when the client’s
interests are not affected in substance by delay, “unreasonable delay
can cause a client needless anxiety and undermine confidence in the
lawyer’s trustworthiness.”
The Special Master concluded that Golub violated Rule 1.3
when he failed to prosecute the lawsuits filed on behalf of his client,
and that while discovery was extended, Golub failed to serve
responses to the defendants’ discovery requests, did not serve
written discovery requests on the defendants, did not conduct any
depositions, did not file any motions, did not try to settle or
otherwise conclude the cases, and did not make any efforts to get the
cases on a trial calendar. The Special Master further concluded that
8 Golub did not serve the defendants in the renewal actions or
substitute a party after the client had passed away. Moreover, the
Special Master concluded that Golub admitted that he failed to
complete work on the client’s cases. Finally, the Special Master
concluded that Golub did not diligently represent his client as he
took no steps to advance or attempt to resolve the cases, and when
faced with motions to dismiss filed by the defendants, he simply
dismissed the cases instead of defending against such motions and
representing the client’s interests, resulting in significant detriment
to her and her cases. See, e.g., In the Matter of Graham, 306 Ga.
380, 380 (829 SE2d 67) (2019) (lawyer violated Rule 1.3 where he
filed lawsuit on client’s behalf but failed to appear at hearing
resulting in lawsuit’s dismissal); In the Matter of Raulin, 299 Ga.
283, 283-284 (787 SE2d 691) (2016); In the Matter of Lea, 297 Ga.
797, 797 (778 SE2d 229) (2015).
Next, in regard to Rule 1.4, the Special Master concluded that
a lawyer’s regular communication with clients will minimize the
occasions on which a client will need to request information
9 concerning the representation, see Rule 1.4, Comment [4], and that
a lawyer violates Rule 1.4 when he fails to keep his client updated
about the status of her case and fails to respond to a client’s requests
for information. See In the Matter of Murray, 295 Ga. 71, 72 (757
SE2d 134) (2014); see also In the Matter of Garcia, 303 Ga. 537, 537-
538 (813 SE2d 591) (2018). The Special Master determined that the
undisputed evidence showed a Rule 1.4 (a) violation where the
client’s son attempted to contact Golub on numerous occasions for
an update on his mother’s cases but did not always get a response
from Golub; that Golub also did not notify his client or her son that
he dismissed the lawsuits in April 2017 until two months later when
the son contacted him; that when Golub filed renewal actions, he did
so without communicating with his client or her son; and that after
he filed the renewal actions and until he dismissed them a year later
he had no communication with the son. Moreover, the Special
Master concluded that Golub failed to inform his client and her son
of significant proceedings and events in violation of Rule 1.4 (a).
10 The Special Master concluded that Golub violated Rule 1.16 (d)
when he failed to complete work on his client’s cases and failed to
refund any fee that he was paid that he did not earn. See In the
Matter of Fair, 300 Ga. 655, 656 (797 SE2d 490) (2017); In the Matter
of Hentz, 300 Ga. 413, 414 (794 SE2d 649) (2016). The Special
Master further concluded that while Golub maintained that he did
significant work on the client’s cases, he had not put forth any
evidence of doing so, nor had he made any effort to refund any
unearned fee.
The Special Master also concluded that Golub violated Rule 3.2
when he failed to prosecute and expedite the lawsuits filed on behalf
of the client. Specifically, the Special Master cited Golub’s failure,
for two years while discovery was extended, to serve responses to
the defendants’ discovery requests, to serve written discovery
requests on the defendants, to conduct any depositions, to file any
motions, to try to settle or otherwise conclude the cases, or to make
any efforts to get the cases on the trial calendar. Moreover, the
Special Master noted that Golub also failed to serve the defendants
11 in the renewal actions or substitute a party after the client passed
away, and generally failed to do anything of substance to advance
the cases or attempt to resolve the cases.
Finally, as to Rule 8.4 (a) (4), the Special Master stated that
Rule 1.0 (i) defines “fraud” as conduct that has a “purpose to
deceive,” and that while the Georgia Rules of Professional Conduct
do not define dishonesty, this Court has defined “conduct involving
dishonesty, fraud, deceit, or misrepresentation” under Rule 8.4 (a)
(4) to mean “conduct that is intended or likely to mislead another.”
In the Matter of Woodham, 296 Ga. 618, 625 (769 SE2d 353) (2015).
The Special Master further determined that misrepresentations
made to clients constitute misconduct under Rule 8.4 (a) (4), see,
e.g., In the Matter of Hardwick, 297 Ga. 808, 808-809 (777 SE2d 442)
(2015) (lawyer violated Rule 8.4 (a) (4) when he misrepresented to
client the filing status of a motion for expedited bond that lawyer
filed on behalf of client); In the Matter of Hardwick, 288 Ga. 60, 61
(701 SE2d 163) (2010) (lawyer violated Rule 8.4 (a) (4) when he
failed to respond to court order resulting in default judgment and
12 then failed to inform clients of default judgment); In the Matter of
Hammock, 278 Ga. 385, 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),
and that even a negligent misrepresentation is sufficient for the
imposition of discipline under Rule 8.4 (a) (4), see In the Matter of
Roberts, 284 Ga. 445, 446 (668 SE2d 256) (2008) (holding that
negligent misrepresentation is sufficient for the imposition of
discipline under Rule 8.4 (a) (4)).
Here, the Special Master concluded that the undisputed
evidence demonstrated that Golub misled the client’s son about the
client’s cases. Specifically, the Special Master noted that throughout
his communications with Golub, the son was under the impression
not only that the defendants had failed to answer and were in
default but also that Golub had initiated discovery on behalf of the
client and was making efforts to move the cases along and get them
on the court’s calendar. And although Golub denied telling the son
this, he had no explanation as to why the son would otherwise
13 believe that the cases were in default. Furthermore, the Special
Master determined that it was undisputed that Golub dismissed the
two lawsuits first in April 2017 but did not inform his client or her
son of the dismissals until June 2017 after the son contacted him;
that subsequently, Golub refiled the lawsuits but did not notify his
client or her son; and that it was, therefore, reasonable to conclude
that through Golub’s conduct and failure to communicate the status
of the cases, his client was misled into thinking that the cases were
either pending when they were not or that they were still dismissed
when, in fact, they had been refiled. The Special Master further
determined that while Golub’s actions and conduct may not have
been intended to mislead his client and her son, if his actions were
“likely to mislead” them, Golub was still in violation of Rule 8.4 (a)
(4). Woodham, 296 Ga. at 625.
Accordingly, the Special Master held that the State Bar had
carried its burden of proving that there was no genuine issue of
material fact on any of its claims that Golub violated the above rules
14 and that the Bar was entitled to summary judgment as a matter of
law.
3. The Special Master’s recommendation of discipline.
For his violations of Rules 1.2 (a), 1.3, 1.4 (a), 1.16 (d), 3.2, and
8.4 (a) (4), the Special Master recommended that Golub be
suspended for one year with reinstatement conditioned on his full
refund of the $7,500 in attorney fees paid to him for the underlying
matter and any cost associated with paying this money into the
client’s estate in probate so that the money can be paid back to the
client’s heirs. In determining the appropriate level of discipline, the
Special Master stated that he considered this Court’s precedent in
similar disciplinary cases and the ABA Standards for Imposing
Lawyer Sanctions. See In the Matter of Morse, 265 Ga. 353, 354 (456
SE2d 52) (1995), overruled on other grounds by In the Matter of
Cook, 311 Ga. 206, 207-208 (857 SE2d 212) (2021).
The Special Master stated that in imposing a sanction after
determining that there is lawyer misconduct, ABA Standard 3.0
provides that a court should consider the duty violated, the lawyer’s
15 mental state, the potential or actual injury caused by the lawyer’s
misconduct, and the existence of aggravating or mitigating factors.
The Special Master also determined that the rules violated by Golub
prescribe and proscribe some of the most important obligations and
prohibitions to which a lawyer’s conduct must conform, and that in
determining the nature of the ethical duty violated, the ABA
Standards assume that the most important ethical duties are those
obligations which a lawyer owes to clients including, but not limited
to, the duties of diligence, competence, and candor. See ABA
Standards II (theoretical framework).
In terms of Golub’s mental state, the Special Master
determined that Golub knowingly failed to work on his client’s cases
and that his violations in general were knowing and not inadvertent
or negligent. As to injury, the Special Master stated that the ABA
Standards define injury as “harm to a client, the public, the legal
system, or the profession which results from a lawyer’s misconduct,”
see ABA Standards III; that the ABA Standards further define
potential injury as “the harm to a client, the public, the legal system
16 or the profession that is reasonably foreseeable at the time of the
lawyer’s misconduct, and which, but for some intervening factor or
event, would probably have resulted from the lawyer’s misconduct,”
id.; and that the extent of the injury is defined by the type of duty
violated and the extent of actual or potential harm, with there being
various levels of injury, see ABA Standards II. Here, the Special
Master concluded that Golub’s failure to work on his client’s cases
resulted in Golub’s having no choice but to dismiss the lawsuits
when the cases were placed on a trial calendar; that after his client
passed away, having failed to substitute a party, Golub had no
choice but to dismiss the lawsuits a second time; and that while it
was uncertain what legal options his client’s estate may have had
then or may have now in the underlying litigation, the injury to the
client here was significant.
As for duties owed, the Special Master noted that a lawyer has
a duty to diligently perform the services he has been hired to
perform, see ABA Standard 4.0, and that ABA Standard 4.42 states
that a suspension is generally appropriate when a lawyer knowingly
17 fails to perform services for a client and causes serious or potentially
serious injury to a client, as was the case here where Golub
knowingly failed to perform services for his client and neglected
these matters by failing to communicate with her or her son and
failing to consult with them about the cases.
Finally, the Special Master evaluated the aggravating and
mitigating factors. As for aggravating factors, the Special Master
concluded that Golub had a prior disciplinary history, as he received
an investigative panel reprimand in 1999 for violations of Standards
4, 44, and 45 of the Code of Professional Responsibility,3 see ABA
Standard 9.22 (a); that he had substantial experience in the practice
of law given that he was admitted to the Bar in 1980, see ABA
Standard 9.22 (i); that there were multiple offenses, as he violated
six different rules, see ABA Standard 9.22 (d); and that his client
was a vulnerable victim “as a result of the trust [she] reposed in
[Golub],” In the Matter of Nesbitt, 294 Ga. 480, 482 (754 SE2d 363)
3 The Code of Professional Responsibility was supplanted in 2001 by our
adoption of the Georgia Rules of Professional Conduct. 18 (2014), see ABA Standard 9.22 (h). As for mitigating factors, the
Special Master concluded that Golub lacked a dishonest or selfish
motive, see ABA Standard 9.32 (b), where the evidence showed that
he took on a legal matter that became overwhelming and difficult
for him to pursue to its conclusion and that health matters also
prevented him from representing his client adequately. However,
the Special Master concluded that while Golub did not initially act
with a dishonest or selfish motive, Golub did intentionally fail to
keep his client apprised of the case and by his silence misled the
client and her son. In addition, the Special Master noted that Golub
experienced health issues during his representation of his client and
continued to experience some health issues during the course of this
disciplinary process, see ABA Standard 9.32 (c); that Golub had
expressed genuine remorse for his actions and the harm caused to
his client, see ABA Standard 9.32 (l); and that the prior disciplinary
matter was remote in time, dating back to 1999, see Standard 9.32
(m).
19 In conclusion, the Special Master recommended a one-year
suspension with the conditions on reinstatement listed above,
noting that “the purpose of lawyer discipline is to act as ‘a penalty
to the offender, a deterrent to others, and as an indication to laymen
that the courts will maintain the ethics of the profession,’ In the
Matter of Dowdy, 247 Ga. 488, 493 (277 SE2d 36) (1981).” In the
Matter of Csehy, 295 Ga. 853, 855 (764 SE2d 540) (2014). In
addition, the Special Master noted that this Court previously has
imposed discipline by suspending lawyers who failed to competently
and diligently represent clients, failed to consult with and abide by
client decisions, and abandoned client legal matters. See In the
Matter of Johnson, 303 Ga. 795, 798-799 (815 SE2d 55) (2018) (six-
month suspension for lawyer’s violation of Rules 1.3, 1.4, 1.5, 1.15
(I), 1.16 (d), and 5.5 with respect to six client matters he abandoned
and failed to make full and proper restitution); In the Matter of
Jaconetti, 291 Ga. 772, 772-773 (732 SE2d 447) (2012) (three-year
suspension with conditions for lawyer who violated Rules 1.2, 1.3,
1.4, 1.7, 1.16 (d), and 8.4 (a) (4) by abandoning or neglecting eight
20 clients); Hardwick, 288 Ga. at 61-62 (six-month suspension for
lawyer who violated Rules 1.3, 1.4, 3.2, and 8.4 (a) (4) for failing to
act on matter, resulting in default judgment against clients); In the
Matter of Bagwell, 286 Ga. 511, 511 (689 SE2d 316) (2010) (two-year
suspension with conditions for lawyer who violated Rules 1.3, 1.4,
and 3.2 related to five former clients, three of which had adverse
rulings entered against them due to his failure to timely and
properly pursue legal matters).
Neither Golub nor the State Bar has filed exceptions to the
Special Master’s report in this Court.
4. The Court’s conclusion.
Having reviewed the record, the Court agrees that a one-year
suspension with reinstatement conditioned upon his full refund of
the attorney fees paid to him for the underlying matter, as well as
any cost associated with paying this money into the client’s estate
in probate, is appropriate in this matter. See In the Matter of
Hudson, 283 Ga. 79, 79-80 (656 SE2d 531) (2008) (one-year
suspension for attorney who failed to do any substantive work on
21 two legal matters and failed to refund any portion of retainers paid,
violating Rules 1.3, 1.4, 1.16, and 9.3); In the Matter of Collins, 261
Ga. 802, 802-803 (411 SE2d 711) (1992) (one-year suspension for
attorney who abandoned legal matter entrusted to him, refused to
return client’s file, and failed to take reasonable steps to avoid
prejudice in violation of Standards 22, 44, and 68). At the conclusion
of the one-year suspension, Golub may seek reinstatement by
demonstrating to the State Bar’s Office of General Counsel that he
has met the conditions on reinstatement. If the State Bar agrees
that the conditions have been met, it will submit a notice of
compliance to this Court, and this Court will issue an order granting
or denying reinstatement. Golub is reminded of his duties under
Bar Rule 4-219 (b).
One-year suspension with conditions. All the Justices concur.
22 Decided May 3, 2022.
Suspension.
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.