In the Matter of Sherri Jefferson

307 Ga. 50

• Court: Supreme Court of Georgia
• Decided: October 7, 2019
• Docket: S19Y0527
• Status: Published

Opinion

307 Ga. 50 FINAL COPY

S19Y0527. IN THE MATTER OF SHERRI JEFFERSON.

PER CURIAM.

This disciplinary matter is before us on the State Disciplinary

Review Board’s report and recommendation that this Court disbar

Sherri Jefferson (State Bar No. 387645) from the practice of law.1

The formal complaint upon which these disciplinary proceedings

were based alleged that Jefferson, who has been a member of the

Bar since 2003, violated Rules 3.3, 4.2, 8.1, and 8.4 set forth in the

Georgia Rules of Professional Conduct. See Bar Rule 4-102 (d). The

1 These disciplinary proceedings were commenced before July 1, 2018,

and so the most recent revisions to Part IV of the Rules and Regulations for the Organization and Government of the State Bar of Georgia (“Bar Rules”) do not apply. Rather, the former rules shall continue to apply to disciplinary proceedings commenced before July 1, 2018 . . . provided that, after July 1, 2018, the State Disciplinary Board shall perform the functions and exercise the powers of the Investigative Panel under the former rules, and the State Disciplinary Review Board shall perform the functions and exercise the powers of the Review Panel under the former rules. In the Matter of Podvin, 304 Ga. 378 n.1 (818 SE2d 651) (2018). maximum sanction for a violation of each of the relevant rules is

disbarment.

Jefferson filed, in response to the formal complaint, an answer

and other pleadings. After the resolution of some preliminary

matters, including Jefferson’s challenges to the competency,

qualifications, and impartiality of the special master, Patrick E.

Longan, discovery was initiated. However, Jefferson failed to

respond to discovery, and the State Bar moved to sanction Jefferson

for her failure. The special master granted the motion for sanctions

after a hearing at which Jefferson appeared but refused to testify on

the grounds that she would be “pleading the Fifth Amendment.” In

its order, the special master struck Jefferson’s answer, found her in

default, and deemed the allegations of the complaint to be admitted.

See former Bar Rule 4-212 (a) (facts alleged and violations charged

in formal complaint shall be deemed admitted if respondent fails to

file an answer).

In summary, the facts as found by the special master based on

Jefferson’s default show the following. Jefferson represented an

2 individual from 2008 to 2010 in a custody modification action;

during the representation, Jefferson and that individual were

romantically involved. This relationship led to the filing of a

disciplinary matter against Jefferson, but the matter was

subsequently dismissed by this Court in 2014. During the pendency

of that disciplinary matter, Jefferson’s former client began dating

another woman and, following the dismissal of that matter,

Jefferson hired a private investigator to conduct an investigation

including surreptitious surveillance of the former client, his son, and

the other woman. Additionally, Jefferson falsely disparaged the

other woman to the woman’s employer, including making false and

misleading statements about the custody proceeding.

Jefferson’s actions led the former client and the other woman

to file applications for criminal warrants against Jefferson on

charges of stalking and defamation. During the warrant proceedings

initiated by the former client, Jefferson made false statements to the

Magistrate Court of Houston County that she was bound to continue

having contact with her former client due to being his attorney in a

3 pending court case; that a visit to her former client in December

2014 was for legal purposes only; that the other woman was not

supposed to have contact with the former client’s son; and that the

former client’s and the other woman’s alcohol consumption was in

violation of the final order granting the former client custody.

During the warrant proceedings initiated by the other woman in the

Magistrate Court of Fulton County, Jefferson submitted writings in

response, some of them sworn, including baseless and disparaging

statements about the former client and the other woman and false

statements about her communications with them and others.

Jefferson also filed two verified complaints against the Georgia

Governor and Attorney General in the United States District Court

for the Northern District of Georgia challenging the

constitutionality of the Georgia statutes authorizing the warrants

described above. In the first complaint, she alleged that, as an

attorney, she had conducted a child custody investigation involving

the other woman, and that the other woman had filed a falsified

police report seeking a warrant. The allegations were false, except

4 for Jefferson being an attorney, and Jefferson knew they were false.

After the first complaint was dismissed, Jefferson made similar false

allegations in a second complaint. Jefferson also communicated

directly with the other woman concerning the disputes between

them, despite Jefferson’s knowledge that the woman was

represented by counsel in connection with the warrant application

as well as the bar grievance that she had made against Jefferson.

Based on Jefferson’s conduct, the special master concluded that

Jefferson had violated Rules 3.3 (a) (1) (knowingly making false

statements to a tribunal), 4.2 (a) (knowingly communicating with a

person represented by counsel), and 8.4 (a) (4) (engaging in

professional conduct involving dishonesty, fraud, deceit, or

misrepresentation). The special master also found that Jefferson

had violated Rule 8.1 (a) (knowingly making false statements of

material fact in connection with a disciplinary matter) in that she

had made knowing misrepresentations of material fact in the course

of the disciplinary proceedings by falsely representing to the special

master that she did not receive the Bar’s discovery request in May

5 2017 and that she did not receive the Bar’s motion for sanctions until

September 2017.2

In recommending discipline, the special master considered the

American Bar Association Standards for Imposing Lawyer

Sanctions, see In the Matter of Morse, 266 Ga. 652, 653 (470 SE2d

232) (1996), and found that the presumptive sanction for her conduct

was disbarment. The special master also found the following

aggravating factors, including: the existence of prior discipline,

specifically, Jefferson’s receipt of an Investigative Panel Reprimand

in two cases in 2006; a selfish and dishonest motive, as Jefferson

made misrepresentations to multiple tribunals with the intent to

deceive and communicated with the other woman with the intent to

intimidate her and otherwise affect the outcome of the relevant

proceedings; a pattern of misconduct and the existence of multiple

violations; bad faith obstruction of, and the submission of false

2 Alternatively to the findings reached as a result of the sanctions order, the special master inferred from Jefferson’s invocation of her Fifth Amendment right against self-incrimination throughout the disciplinary proceedings that she had admitted the essential allegations of the charges against her. See footnote 4, infra.

6 statements in, the disciplinary proceedings; and the refusal to

acknowledge the wrongful nature of her conduct. The only factor in

mitigation recognized by the special master was the remoteness in

time of Jefferson’s prior disciplinary violations, and the special

master excluded those prior violations from consideration in

recommending sanctions. The special master recommended that

Jefferson be disbarred.

Jefferson asked that the Review Board review the report and

recommendation of the special master.3 In its report and

recommendation to this Court, the Review Board approved the

special master’s order on motion for sanctions striking Jefferson’s

answer to the formal complaint.4 The Review Board further

3 Jefferson also asked for a de novo hearing before the Review Board.

The Review Board denied the request. See former Bar Rule 4-218 (c) (“There shall be no de novo hearing before the Review Panel except by unanimous consent of the Panel.”). 4 The Review Board also concluded that, in a disciplinary proceeding, an

adverse inference may be drawn against a respondent as result of his or her refusal to testify or respond to discovery in reliance on the Fifth Amendment right against self-incrimination. See In the Matter of Henley, 271 Ga. 21, 22 (2) (518 SE2d 418) (1999) (respondent risked the drawing of an adverse inference had he refused production of documents based upon his privilege against self-incrimination); In the Matter of Redding, 269 Ga. 537, 537 (501

7 approved and incorporated the special master’s findings of fact, and

it agreed, with one exception, with the special master’s conclusion

that Jefferson violated the Bar Rules. More specifically, the Review

Board agreed with the special master that Jefferson violated Rules

3.3 (a) (1), 4.2 (a), and 8.4 (a) (4), but it disagreed with the special

master that Jefferson had violated Rule 8.1.5 The Review Board

recommends that Jefferson be disbarred from the practice of law.

Notwithstanding the motion for sanctions resulting in her

default, Jefferson now contends that, in light of OCGA § 15-19-32,6

SE2d 499) (1998) (a response in disciplinary proceedings invoking the Fifth Amendment may result in an adverse inference being drawn by the factfinder). Thus, the Review Board agreed with the special master that either the imposition of the sanctions order or the drawing of an adverse inference against Jefferson would have virtually the same outcome with regard to the findings in the case. 5 The Review Board disagreed with the special master that Jefferson

violated Rule 8.1 (a) because Jefferson’s false statements regarding her receipt of discovery requests and the motion for sanctions did not occur until after the filing of the formal complaint. The Review Board agreed with the special master that Jefferson’s conduct during the course of the proceedings was dishonest, disrespectful, and disruptive, and found that such conduct could be considered an aggravating factor in determining the appropriate level of discipline. 6 OCGA § 15-19-32 (previously Ga. Code Ann. § 9-703, enacted 1963) provides: “The rules and regulations governing the unified state bar shall provide that before a final order of any nature or any judgment of disbarment

8 she may elect to have a superior court jury determine any material

issues of fact before a judgment of disbarment is issued. She has

filed a motion in this Court purporting to invoke such election.

Notwithstanding OCGA § 15-19-32, “[t]he judicial branch of

government has the inherent power to regulate the conduct of

attorneys and supervise the practice of law[.]” Henderson v. HSI

Financial Svcs., 266 Ga. 844, 844 (1) (471 SE2d 885) (1996) (footnote

omitted). This power includes attorney “discipline, suspension, and

disbarment from the practice of law in this state.” Id. at 845 (1)

(footnote omitted). See also In re Oliver, 261 Ga. 850, 851 (2) (413

SE2d 435) (1992) (“[M]atters relating to the practice of law,

including the admission of practitioners, their discipline,

suspension, and removal, are within the inherent and exclusive

power of this court.” (citations and punctuation omitted)); Wallace v.

Wallace, 225 Ga. 102, 111-112 (3) (166 SE2d 718) (1969) (“[T]hat the

legislature has in the past enacted statutes concerning the practice

is entered the attorney involved may elect to have any material issues of fact determined by a jury in the superior court of the county of his residence.”

9 of law [does not] indicate that such is a legislative function. This

court’s recognition of such legislative enactments . . . does not mean

that this court intended to, or even could relinquish this judicial

responsibility to the legislature.”). Jefferson is not entitled to a jury

trial under the applicable Bar Rules. See In the Matter of Ervin, 271

Ga. 707, 708 (521 SE2d 561) (1999) (“[A]s jury trials are no longer

permissible in disciplinary proceedings [given changes to the Bar

Rules in 1997, respondent] lacks authority to make a jury trial

demand.”). Accordingly, Jefferson’s motion is denied.

In her exceptions to the Review Board’s report,7 Jefferson

contends, among other things, that the special master’s report

7 Jefferson’s exceptions and her supporting memorandum contain no page references to the voluminous record of the disciplinary proceedings. See Supreme Court of Georgia Rules 19 (although the Court prescribes no particular arrangement for briefs, motions, or other papers, “page references to the record (R-) and transcript (T-) are essential”), 49 (filings in disciplinary matters should comply with Supreme Court rules). Thus, it is not apparent to us whether, or to what extent, many of Jefferson’s arguments are supported by the record, nor whether the texts of numerous e-mails embedded within the body of the exceptions constitute an improper attempt to supplement the record. Given the sheer volume of Jefferson’s exceptions, we do not list all of them here. To the extent we can understand her arguments, however, we find them to be without merit.

10 contained numerous misstatements of material fact. However, we

agree with the Review Board that the special master did not abuse

his discretion in striking Jefferson’s answer and finding her in

default for her willful failure to respond to discovery. See In the

Matter of Levine, 303 Ga. 284, 288 (811 SE2d 349) (2018); In the

Matter of Burgess, 293 Ga. 783, 784 (748 SE2d 916) (2013); In the

Matter of Browning-Baker, 292 Ga. 809, 809-810 (741 SE2d 637)

(2013). See also former Rule 4-212 (c) (both parties to disciplinary

proceeding may engage in discovery under the rules of practice and

procedure applicable to civil cases); OCGA § 9-11-37 (b) (2) (C) and

(d) (1) (where party fails to serve answers to interrogatories or

respond to request for inspection, court may make such orders as are

just, including an order striking pleadings or rendering a judgment

by default against disobedient party).

In light of Jefferson’s default, the facts alleged in the complaint

were deemed admitted. See former Rule 4-212 (a); In the Matter of

Hawk, 269 Ga. 165, 166 (496 SE2d 261) (1998) (as the special master

struck respondent’s answer for intentionally or consciously failing to

11 act under the discovery rules, the facts alleged and violations

charged in the formal complaint were deemed admitted). The factual

findings of the special master, as approved by the Review Board, are

consistent with the allegations of the complaint and the reasonable

inferences to be drawn therefrom. See Stroud v. Elias, 247 Ga. 191,

193 (1) (275 SE2d 46) (1981) (a default on the part of the defendant

serving to eliminate his answer to the complaint admits only the

definite and certain allegations of the complaint and the fair

inferences and conclusions of fact to be drawn therefrom).

We agree with the Review Board that these admitted facts

support a finding that Jefferson violated Rules 3.3 (a) (1), 4.2 (a),

and 8.4 (a) (4), a violation of any one of which is sufficient to support

disbarment. Having reviewed the record, we agree with the Review

Board that disbarment is the appropriate sanction. See In the Matter

of Koehler, 297 Ga. 794, 796 (778 SE2d 218) (2015) (disbarment was

appropriate sanction where lawyer repeatedly asserted frivolous

claims in multiple tribunals and made materially deceitful and

misleading statements in court filings); In the Matter of Minsk, 296

12 Ga. 152, 153 (765 SE2d 361) (2014) (disbarment was appropriate

sanction where lawyer had pattern of making knowingly false

statements to his client, the court, and third parties); In the Matter

of Jones-Lewis, 295 Ga. 861, 862 (764 SE2d 549) (2014) (disbarment

was appropriate sanction where lawyer made false statements to

juvenile court). It is hereby ordered that the name of Sherri

Jefferson be removed from the rolls of persons authorized to practice

law in the State of Georgia. Jefferson is reminded of her duties

pursuant to former Bar Rule 4-219 (c).8

Disbarred. All the Justices concur, except Benham, J., not participating.

DECIDED OCTOBER 7, 2019. Disbarment. Paula J. Frederick, General Counsel State Bar, Jenny K. Mittelman, William Van Hearnburg, Jr., Assistant General Counsel State Bar, for State Bar of Georgia.

8 This provision is now located at Rule 4-219 (b).