NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: November 7, 2023
S23Y0437. IN THE MATTER OF WALTER DOUGLAS ADAMS.
PER CURIAM.
This disciplinary matter arises from a fee dispute between
Walter Douglas Adams (State Bar No. 004650) and his former, long-
time client. In December 2022, this Court received a report and
recommendation of the State Disciplinary Review Board (the
“Review Board”), which reviewed the report and recommendation of
the Special Master, Jack J. Helms, Jr., at the request of Adams
pursuant to Bar Rules 4-214 and 4-216. In its report, the Review
Board adopted the Special Master’s findings of fact and conclusions
of law and agreed that Adams, who has been a member of the State
Bar since 1980, was in default1 and should be suspended from the
1 On September 10, 2020, the State Bar filed its formal complaint. While
Adams acknowledged service of the formal complaint, he failed to file a timely answer or obtain an extension of time to file an answer, and the Special Master practice of law for six months and provide restitution totaling
$2,732.81 to his former client based on his violations of Rules 1.4,
1.5, 1.15 (I), 1.15 (II) (a) and (b), 1.16, and 9.3 of the Georgia Rules
of Professional Conduct (“GRPC” or the “Rules”) found in Bar Rule
4-102 (d).2 On April 18, 2023, we issued an order remanding the
matter back to the Special Master. While we did not agree with
Adams that the Special Master erred in granting default judgment
given Adams’s failure to satisfy the requirements of Bar Rules 4-212
(b) and 4-221 (b) and OCGA § 9-11-55 (b), we ordered the Special
Master to clarify his findings of fact and conclusions of law, to
include citations to case law that supported his recommended level
of discipline, and to revise his report and recommendation consistent
with this Court’s order.
ultimately granted the State Bar’s Motion for Default and ruled against Adams’s Motion for Relief from Default. Nevertheless, the Special Master offered Adams an in-person meeting as he requested to allow him to provide input on the appropriate level of discipline, see Bar Rule 4-213. 2 The maximum penalty for a violation of Rules 1.4, 1.5, 1.16, and 9.3 is
a public reprimand, while the maximum penalty for a violation of Rules 1.15 (I) and (II) (a) and (b) is disbarment. 2 The Special Master held a second evidentiary hearing with
Adams and filed this amended report and recommendation in which
the Special Master now asks the Court to disbar Adams and order
that he make restitution based on his violations of the Rules. Adams
has filed exceptions to the revised report and requests review by the
Review Board,3 and the State Bar has filed a response. Having
reviewed the record, we agree with the Special Master that Adams
has violated Rules 1.4, 1.5, 1.15 (I), 1.15 (II) (a) and (b), 1.16, and
9.3. However, we disagree that disbarment is warranted under these
particular facts and instead impose a one-year suspension, which is
more consistent with our disciplinary precedent.
1. The Special Master’s Report and Recommendation
3 While Adams requests review by the Review Board, we already addressed the appropriate filing procedure to follow by directing in our remand order that the Special Master filed his revised report directly with this Court’s Clerk’s Office, and that Adams and the State Bar could file any such exceptions in this Court pursuant to Bar Rule 4-218. Thus, we deny Adams’s request. Importantly, we note that in our remand order, we did not vacate the previous report and recommendations of the Special Master and Review Board, compare In the Matter of Farnham, 312 Ga. 65, 70-71 (860 SE2d 547) (2018), which, consequently, might have permitted Adams to file exceptions before the Review Board before the disciplinary matter was again brought before this Court. See Bar Rule 4-214 (c) and (d). 3 a) Findings of Fact
By virtue of Adams’s default, and thus his admission of the
statement of facts in the formal complaint, and after two evidentiary
hearings, the Special Master made the following findings. Since
November 2013, Adams has agreed to represent a client in several
matters. On November 15, 2013, Adams and the client signed a
written contingency fee contract for him to represent her in a claim
for “improper items on credit reports.” He also represented the client
in a personal injury matter, and while he did not have a written
contingency fee agreement to handle that matter, the settlement
statement, signed August 19, 2016, showed that Adams took a one-
third contingency fee from the proceeds of that matter, plus
expenses. In both matters, Adams successfully represented the
client, and she was satisfied with the results. Beginning in 2015,
Adams also agreed to represent her in a second credit report matter
against credit reporting agency Trans Union LLC. Adams did not
have a written contingency fee agreement with the client to handle
the Trans Union matter or any other written communication with
4 her as to how he would be paid. The client believed that Adams was
handling the Trans Union matter on a contingency fee basis, and
Adams did not require her to pay him a retainer or provide her with
any bills for time expended or expenses incurred in the Trans Union
matter.
After the federal district court denied Trans Union’s motion to
dismiss, Trans Union offered $7,000 to settle the case. Adams then
communicated to the client that he had obtained a settlement offer
that would yield her $1,500, and she informed Adams that she would
accept such a settlement if that was all that Trans Union offered.
Adams did not inform the client that the total settlement amount
was $7,000 before she agreed to the lesser amount. And when she
appeared at his office in December 2018 to sign the release to
effectuate the settlement, she learned for the first time that the total
amount was $7,000. Adams was not present at the time the client
signed the release, and she believed he was mistaken that her share
was only $1,500; however, Adams later spoke to her and informed
her that he “had done considerably more work than the settlement
5 would produce in attorney[] fees than if [he] were paid on an hourly
basis.” Adams told her that she was only entitled to $1,500 and that
he was going to keep the remainder, but she did not believe that it
was fair for Adams to keep over 70% of the proceeds of the
settlement.
The client decided that she no longer trusted Adams and asked
him to give her the files for all of her cases, but Adams did not
comply. In the meantime, Trans Union informed Adams that
because the settlement check had not been issued in 2018, the client
would have to sign “new W-9 forms” that reflected a settlement in
2019. When the client met with Adams to find out why it was taking
him so long to give her the files, he asked her to sign the new W-9
forms. She refused to do so until she had reviewed all of her
settlements with him, so she could understand how his attorney fees
and expenses had been calculated, and he replied: “Those are old
closed files, they are in storage, and I’m through with it.” As Adams
said this to the client, he put his right hand up in the air toward her
and turned and walked away. Adams has never provided the client
6 with the files as requested, and she maintained her refusal to sign
the W-9 forms. In his sworn response to the Notice of Investigation
in this matter, Adams informed the State Bar that the client had not
contacted him since.
In January 2019, the client filed her grievance with the State
Bar, Adams filed a written response to the grievance, and the client
filed a rebuttal. In May 2019, the State Bar sent a letter to Adams
requesting a copy of his trust account record/ledger for all
settlements involving the client, and regarding all transactions
involving the client, his attorney-client agreements, settlement
statements, and copies of cancelled checks disbursing the
settlements. In response, Adams sent the State Bar a ledger card
accounting for the settlement proceeds in the first credit report and
personal injury matters, but Adams sent no documents accounting
for the proceeds of the Trans Union matter. In addition, he sent the
State Bar a copy of his contingency fee agreement in the first credit
report matter, a copy of his settlement statement in the first credit
report and personal injury matters, and a copy of his cancelled
7 checks disbursing proceeds in the first credit report and personal
injury matters. However, Adams failed to send the State Bar a copy
of any attorney-client agreement in the personal injury or Trans
Union matters, a copy of any settlement statement regarding the
proceeds in the Trans Union matter, or a copy of any cancelled check
in the Trans Union matter.
In February 2020, the client received a Form 1099-Misc. tax
form from Trans Union LLC memorializing that in 2019 the client
received a settlement of $7,000 from Trans Union. When the State
Bar asked Adams to account for the fact that the client received the
1099 Form (but received no such money), he replied in a letter:
The total amount of the settlement was $7,000.00. Trans Union never paid anything to [the client] through my office. Trans Union never paid anything to me. [The client] has not received any of the $7,000.00. The check in the amount of $7,000.00 is payable to her and to me jointly. She did not return to my office, and therefore, I could not negotiate the check. I still have the check.
Counsel for the State Bar asked Adams to send him a copy of
the check, and while Adams responded, he did not send a copy of the
check. Counsel again asked via email for a copy of the check, and he
8 responded in a letter:
I do need to correct a misstatement in my letter to you of August 12, 2020. I do have the check, which is made payable to me and it has never been cashed. . . . The check is from the law firm which represented Trans Union. . . . If you have any questions concerning this letter, please contact me.
Adams did not send a copy of the $7,000 check. However, he
did send a $1,500 check to the Bar in September 2020 to forward to
the client as payment of her portion of the settlement. As to his total
expenses in the Trans Union matter, Adams stated in his August 12,
2020 letter that his “out-of-pocket expenses were Court costs of
$101.50, and the bill for the Court reporter in the amount of
$332.35.” Adams initially claimed that he did not deposit the $7,000
check into his trust account or any other account, but after the
supplemental hearing, Adams provided bank documents that reflect
a deposit in October 2022 of the $7,000 check into his trust account
and stated that this was done at the urging of the Review Board. A
formal complaint was filed by the State Bar on September 10, 2020,
and on June 15, 2021, the Special Master granted the State Bar’s
9 Motion for Default due to Adams’s failure to timely answer or obtain
an extension of time to file an answer.
b) Rule Violations
By virtue of his default, the Special Master concluded that
Adams violated the following Rules.
Adams violated Rule 1.4 (a) (1), by failing to communicate
“information and explanation” regarding the $7,000 settlement in
the Trans Union matter that was “adequate” for the client to give
her informed consent to the settlement. He violated Rule 1.4 (a) (2)
by failing to “reasonably consult with” the client about how the
Trans Union matter would be resolved or inform her of the total
amount of the Trans Union settlement and Rule 1.4 (a) (3) by failing
to tell the client that her case settled for $7,000 when he asked her
to accept $1,500.
Adams violated Rule 1.5 (a), insofar as he charged and
intended to keep an unreasonable fee now that he has deposited the
$7,000 check. He also violated Rule 1.5 (c) (1) by failing to put the
contingency fee agreement in writing in regard to the personal
10 injury and the Trans Union matters, and in regard to the Trans
Union matter, failing to state the method by which the fee was to be
determined or state whether expenses were to be deducted before or
after the contingency fee was calculated. He also violated Rule 1.5
(c) (2) by failing to provide the client with a written settlement
statement.
For well over three years, Adams violated Rule 1.15 (I) (a) by
failing to keep the Trans Union settlement proceedings intact in an
IOLTA account. In addition, because Adams failed to pay any
amount of the proceeds to his client (before he sent a $1,500 check
to the State Bar in September 2020), he violated Rule 1.15 (I) (c). He
further violated Rule 1.15 (I) (c) by failing to account to the client for
the Trans Union settlement proceeds. Adams also violated Rule 1.15
(I) (d) by failing to keep the Trans Union settlement proceeds
separate until there could be an accounting and severance of his
interest versus the client’s. In sum, Adams was required to promptly
disburse to the client the portions of the Trans Union settlement
proceeds not in dispute, but he did not do so or take any affirmative
11 steps to reconcile with the client, until 20 months later when he sent
the State Bar a check for $1,500 – after two requests from the State
Bar’s Counsel and after a formal complaint had been filed against
him.
Adams violated Rule 1.15 (II) (a) by failing to administer the
Trans Union settlement proceeds from a trust account and Rule 1.15
(II) (b) by failing to keep and maintain trust account records on the
settlement proceeds as required.
Adams violated Rule 1.16 (d), insofar as he failed to surrender
to the client the portion of the Trans Union settlement funds to
which she was entitled in a reasonable and timely manner and then
only after a complaint was filed against him by the client. In
addition, he violated this Rule by failing to surrender to the client
her papers and her file from the first credit report matter, the
personal injury matter, and the Trans Union matter. (f) Adams
violated Rule 9.3 by failing to account to the State Bar for the
proceeds in the Trans Union matter (until about three years later),
provide the State Bar with the attorney-client agreement in the
12 personal injury or Trans Union matters, provide the State Bar with
the settlement statement in the Trans Union matter, and provide
the State Bar with any cancelled checks disbursing funds in the
Trans Union Matter or documentation that the $7,000 check had
been deposited until about three years later.
c) The American Bar Association Standards of Imposing Lawyers Sanctions
The Special Master determined that pursuant to the American
Bar Association (“ABA”) Standards for Imposing Lawyer Sanctions,
the factors to consider in imposing a sanction for lawyer misconduct
include the duty violated, the lawyer’s mental state, the actual or
potential injury caused by the lawyer’s misconduct, and the
existence of aggravating or mitigating factors. The Special Master
then determined that all of Adams’s violations of Rules 1.15 (I) and
(II) implicated ABA Standard 4.1 (failure to preserve client’s
property). As to Adams’s mental state, the Special Master found the
following. Adams acted with an intent to obtain a benefit by keeping
an unreasonably large share of the $7,000 settlement through his
13 superior position of power and control by maintaining control over
the money as the client’s attorney and fiduciary. Adams refused to
pay her anything until she agreed to his terms, and then paid her a
portion of her funds only after a formal complaint was filed against
him. His actions and refusal to cooperate fully demonstrated
selfishness by attempting to advance his own interests over those of
his client. Adams was given every opportunity to work with his
client to resolve this dispute, but at every turn he doubled down on
his refusal to take any responsibility or recognize that he violated
his professional duties and responsibilities. In addition, his actions
amounted to a gross abuse of his relationship with his client and a
knowing and intentional abuse of his fiduciary position. Adams
“again and again” failed to handle the disputed funds appropriately.
See generally GRPC 1.15 (I) Comment [3A] (“In those cases where it
is not possible to ascertain who is entitled to disputed funds or other
property held by the lawyer, the lawyer may hold such disputed
funds for a reasonable period of time while the interested parties
attempt to resolve the dispute. If a resolution cannot be reached, it
14 would be appropriate for a lawyer to interplead such disputed funds
or property.”).
Regarding injury, the Special Master determined that at a
minimum, the client suffered the injury of having to wait almost two
years for Adams to deliver to her the $1,500 that he did not dispute.
Adams repeatedly refused to recognize his duties to his client as a
professional with an intent to use his superior position to deprive
his client of a fair division of fees. According to the Special Master,
Adams still refuses to admit that the proposed division of the
settlement funds and his handling of the affairs ran afoul of his
duties under the GRPC, and indeed, he continued to assert that the
client suffered no loss in this case.
Next, the Special Master concluded that Adams’s violations of
Rule 1.4 violated his duty of diligence to the client. The Special
Master concluded that Adams deliberately omitted mention of the
amount of recovery to the client until after he told her how much she
would receive from the settlement; that, while he was not present,
he had his secretary oversee the client signing the release that for
15 the first time informed the client of the total settlement amount; and
that after she disputed the amount she was to receive, he abruptly
cut off communication with her and took no further action toward
the client until he sent the State Bar the $1,500 check in September
2020 in response to the Formal Complaint. The Special Master also
found that it was not until June 2023 that Adams represented to the
Bar that he had placed the check in his trust account in October
2022 at the urging of the Review Board and was holding it until this
matter could be resolved. As to his mental state, the Special Master
concluded that Adams acted with intent when he abused his duties
to communicate with the client in violation of Rule 1.4 because he
had not been completely candid or forthcoming with his client about
the settlement negotiations, the division of fees or her property
based on the final amount of the settlement, and he admitted at the
supplemental hearing that he had not sent the client any portion of
her settlement or made any effort to do so, until after a formal
complaint was lodged against him. The Special Master opined that
a simple phone call or letter or other effort may have easily headed
16 off this whole dispute; instead, the Special Master opined, Adams
“dug in his heels” and to this day maintains that he has not caused
any harm to his client, the public at large, or the profession. The
Special Master concluded that Adams knowingly engaged in conduct
that caused injury to his client due to the delay in her obtaining
some portion of the settlement and that he had done next to nothing
to remedy the injury in the interim.
Finally, the Special Master concluded that Adams’s violations
of Rules 1.5, 1.16, and 9.3 implicated ABA Standard 7.0 (violations
of duties owed as a professional) because he engaged in misconduct
with the “intent to obtain a benefit” for himself – that is, to keep an
unreasonably large share of the $7,000 and to frustrate or avoid an
investigation by the client or the State Bar as to what happened with
the $7,000, and the client was injured by this conduct as already
described above. As to his mental state, the Special Master found
that Adams’s failure to provide the client with a settlement
statement and her files in violation of Rules 1.5 (c) and 1.16 (d) was
done intentionally. The Special Master determined that Adams still
17 had not provided any documents or records that justified how he
decided to divide the ultimate settlement of $7,000.
Moreover, the Special Master determined that Adams’s
violation of Rules 1.5 (a) and (c), 1.16 (d), and 9.3 injured the public
and the legal profession insofar as any callous disregard of those
rules undermined the efforts, and indeed the reputation, of every
Georgia lawyer who abided by the rules while Adams did not.
Accordingly, the Special Master concluded that Adams’s violations
implicated ABA Standard 7.1 (“Disbarment is generally appropriate
when a lawyer knowingly engages in conduct that is a violation of a
duty owed as a professional with the intent to obtain a benefit for
the lawyer or another, and causes serious or potentially serious
injury to a client, the public, or the legal system.”).
Factors in Aggravation. The Special Master found that the
following aggravating factors applied here. Adams had a dishonest
or selfish motive. See ABA Standard 9.22 (b). He acted with intent
to deceive the client as to the settlement and how to divide the
money sent to him, and intentionally failed to comply with the
18 disciplinary process. See, e.g., In the Matter of Davis, 311 Ga. 797
(860 SE2d 467) (2021) (disbarring lawyer who did not respond to
client’s letter requesting a refund and otherwise abandoned client,
who did not respond to the grievance the client filed with the State
Bar, and who had a dishonest and selfish motive); In the Matter of
Arrington, 308 Ga. 486, 487 (841 SE2d 663) (2020) (disbarring
lawyer who hid misconduct and “intentionally failed to comply with
the disciplinary process” and acted “willfully, dishonestly, and with
a selfish motive”). Adams also committed multiple offenses, as he
violated six Rules and multiple paragraphs within each Rule. See
ABA Standard 9.22 (d); In the Matter of Coulter, 304 Ga. 81, 85 (816
SE2d 1) (2018) (lawyer’s many rule violations in a trust accounting
case with a single client constituted multiple offenses under ABA
Standard 9.22 (d)). Adams has at times obstructed the disciplinary
proceedings by intentionally failing to comply with rules or orders of
the disciplinary agency, see ABA Standard 9.22 (e), and this is a
significant aggravating factor as it shows that Adams has
consistently refused to take the client’s grievance and disciplinary
19 process seriously and to act with the utmost urgency given the
gravity of the proceedings. See, e.g., In the Matter of Harris, 301 Ga.
378, 379 (801 SE2d 39) (2017) (disbarring attorney and noting that
he ignored the gravity of the proceedings by his failure to respond).
While Adams did make some efforts to respond early on to the
complaint, he did not timely respond to the complaint, and he made
no effort to follow up as he should have to rectify his failure to timely
answer. To compound these offenses, Adams belatedly, and only
after prodding from the State Bar and Review Board, provided some
money to the client and finally produced banking records regarding
the $7,000 check. Finally, Adams has persistently failed to
acknowledge the wrongful nature of his conduct, see ABA Standard
9.22 (g); has substantial experience in the practice of law, see ABA
Standard 9.22 (i); and has shown indifference to making restitution,
see ABA Standard 9.22 (j), as his payment to the client was both
untimely and inadequate.
Factors in Mitigation. The Special Master found only one factor
in mitigation, which was that Adams had no prior disciplinary
20 record. See ABA Standard 9.32 (a).
d) The Special Master’s Recommendation
While initially recommending a six-month suspension plus
restitution, “after careful consideration of [this] Court’s remand and
instructions,” persuasive arguments of the State Bar, and Adams’s
position in this matter, the Special Master determined that the
correct recommendation was disbarment. The Special Master stated
that this conclusion came with “some reluctancy and hesitancy,” but
found that when applying the considerations and criteria as outlined
in prior case law with somewhat “similar facts” and given Adams’s
conduct, there was no other conclusion. As an additional sanction,
see ABA Standards, III (B) (2.8) (a), the Special Master determined
that the great weight of the evidence, including the two prior
matters Adams handled for the client, showed that Adams and the
client had a contingency fee agreement for 33.33% with expenses to
be reimbursed to Adams. Thus, the Special Master concluded that
restitution in the amount of $2,732.81 was due to the client; out of
the $7,000 settlement, this was the net figure due to the client after
21 deduction of expenses of litigation, the $1,500 Adams already paid
to her, and Adams’s 33.33% fee.
2. Adams’s Exceptions to the Special Master’s Report
Adams has filed exceptions to the Special Master’s report in
this Court. In his exceptions, he requests review by the Review
Board of the Amended Report pursuant to Bar Rule 4-216 (d). He
also claims that the Special Master failed to address pertinent
evidence in the record and made factual findings that are not
supported by the record.
In addition, regarding the Rule 1.5 (c) (1) violation, Adams
claims that while the Special Master found a violation because the
personal injury case contract was not in writing, the Special Master
also acknowledged that the client was satisfied with his
representation in that case, and information regarding
disbursements had been furnished to the State Bar. And while the
Special Master faults Adams for not having a written contingency
fee agreement in the Trans Union matter, Adams claims that he has
testified that he never would have taken this case on a contingency
22 fee basis because there was no evidence of actual damage. He also
claims that the Special Master has exceeded his authority by
ordering that Adams pay the client restitution and that the “tenor”
of the amended report also raises questions of “bias.”
Moreover, Adams contends that there were three errors of law,
including: (1) the finding that he was in default; (2) the Special
Master’s consideration of conduct that occurred after the June 12,
2020 formal complaint, which constituted a due process violation;
and (3) the Special Master’s finding that Adams had converted
funds, even though the formal complaint made no such allegation
and there was no evidence of conversion.
Finally, Adams claims that a number of cases show that the
Special Master committed an error in his recommendation of
discipline.4 See e.g., In the Matter of Hamilton, 315 Ga. 821, 824-825,
830-831 (884 SE2d 887) (2023) (six-month suspension imposed
4 In his report, the Special Master alluded to the cases cited by Adams
and stated that they did not support leniency as they all involved some element of remorse, acknowledgement of wrong, complete cooperation with the investigative process, or full restitution to the client. 23 where attorney with several prior disciplines and who filed petition
for voluntary discipline failed to return an unearned fee and made
false statements in a sworn answer to the complaint); In the Matter
of Cook, 311 Ga. 206, 215-216, 218-219 (857 SE2d 212) (2021)
(review panel reprimand, rather than two-year suspension
recommended by Review Board, where there were multiple
disbursements of trust account funds before fees received, but in
mitigation there was no allegation that attorney failed to adequately
or competently represent a client); In the Matter of Johnson, 302 Ga.
865, 866-867 (809 SE2d 797) (2018) (accepting petition for voluntary
discipline and imposing a six-month suspension where client funds
were put into operating account and trust account funds were used
to pay personal bills).
In sum, Adams requests a reprimand, pointing to the fact that
he has not previously been subject to any disciplinary action; the
State Bar took a considerable amount of time to file a formal
complaint; the member of the State Disciplinary Board appointed to
investigate this matter never contacted him; the formal complaint
24 was not filed within 30 days of the time that the Review Board found
probable cause of violations of the Rules; and the complaint includes
numerous assertions of conduct which had not occurred before the
Review Board made its decision.
3. The State Bar’s Response to Adams’s Exceptions
The State Bar has responded to Adams’s exceptions and
contends that the cases he cites are all fundamentally different
either on a procedural or substantive basis or both. Moreover, the
Bar has determined that in many of the cases, the respondents had
shown some level of timely remorse, acknowledged wrongdoing,
acted unintentionally, cooperated with the disciplinary process,
presented significant mitigating circumstances, or provided
restitution. And, here, it contends that the Special Master correctly
recommended disbarment as the appropriate discipline based on
relevant case law. See Davis, 311 Ga. at 798-799 (disbarment
warranted where attorney who failed to respond to disciplinary
authorities violated Rules 1.2 (a), 1.3, 1.4, 1.5 (a), 8.4 (a) (4), and 9.3
by intentionally making misrepresentations to and abandoning his
25 client facing criminal charges); In the Matter of Redwine, 311 Ga.
287, 288 (857 SE2d193) (2021) (surrender of license, which is
tantamount to disbarment, was appropriate sanction for attorney
who violated Rules 1.2 (a), 1.3, 1.4 (a), 3.2, 8.4 (a) (4), and 9.3 by
abandoning a client’s legal matter and failing to respond to the
grievance or ensuing notice of investigation); Arrington, 308 Ga. at
487 (disbarring attorney who did not respond to disciplinary
proceedings and by default admitted to violating Rules 1.3, 1.4, 1.15
(I), and 1.15 (II) (a) by abandoning his client, failing to keep $972.50
in a trust account separate from his own funds, and failing to deliver
or account for them upon the client’s request); In the Matter of
Butler, 283 Ga. 250, 251 (657 SE2d 245) (2008) (disbarring attorney
who was found in default, although he still engaged in disciplinary
process, for violating Rules 1.15 (I) (a), 1.15 (II) (b), 8.1, and 8.4 (a)
(4), where attorney failed to return $3,500 retainer and $50,000 that
client entrusted to attorney to hold in a trust account; aggravating
circumstances included attorney refusing to acknowledge the
wrongful nature of his conduct, having a dishonest or selfish motive,
26 being indifferent to making restitution, and obstructing the
disciplinary process); In the Matter of Noriega-Allen, 308 Ga. 398,
398-399 (841 SE2d 1) (2020) (disbarring attorney, who was in
default, based on her violations of Rules 1.2 (a), 1.3, 1.4, 1.5, 1.15 (I),
1.15 (II), 1.16 (d), and 3.2 in receiving retainer to represent client in
divorce matter but then abandoning client).
In addition, the State Bar states that while Adams claims that
the Special Master showed “bias” and exceeded his authority, Adams
did not cite any evidence of this in the record other than the Special
Master’s revised recommendation of discipline to support that claim.
Moreover, the State Bar notes that Adams is attempting to relitigate
his default, despite the Court having ruled against him on that issue
in its remand order, and while he complains of due process issues,
his arguments are not supported by the record. In conclusion, the
Bar asserts that the Special Master’s amended report reflects “th[is]
Court’s unqualified interest” in “the importance of protecting the
public from attorneys who are not qualified to practice law due to
incompetence, and the need for public confidence in the profession.”
27 In the Matter of Brown, 289 Ga. 912, 914 (717 SE2d 217) (2011).
Moreover, the Bar concludes that the Special Master was correct to
consider Adams’s “fierce refusal to acknowledge any wrongdoing or
further obligation to [the client] and how that fit into the larger
picture of [Adams] trying to take advantage of his client for his own
gain.” Accordingly, the State Bar requests that the Court accept the
recommendation of disbarment.
4. Adams’s Reply to the State Bar
Adams replies that the Special Master’s amended report
erroneously alleges matters that had not yet occurred at the time of
the notice of the finding of probable cause; that this matter simply
involves a misunderstanding on the part of the client who filed the
grievance; and that the imposition of a contingency fee in this matter
makes no sense.
5. This Court’s Analysis and Recommendation
While Adams again challenges the findings of fact in his
exceptions and seeks to challenge the Special Master’s
determination that Adams was in default, this Court already
28 rejected this argument in the remand order, stating that “we do not
agree with Adams that the Special Master erred in granting default
judgment given Adams’s failure to satisfy the requirements of Bar
Rules 4-212 (b) and 4-221 (b) and his failure to satisfy the
requirements of OCGA § 9-11-55 (b) for opening default.” His due
process argument also lacks merit. Bar Rule 4-213 (a) provides that
“[w]ithin 90 days after . . . the expiration of the time for filing of the
answer [i.e., following default] . . . the Special Master shall proceed
to hear the case. . . . When the hearing is complete, the Special
Master shall proceed to make findings of fact, conclusions of law and
a recommendation of discipline and file a report with the Clerk of
the State Disciplinary Boards as hereinafter provided” (emphasis
supplied). Thus, despite Adams’s default, the Special Master was
permitted to hold an evidentiary hearing and make additional
findings of fact after the formal complaint was filed, and, indeed, did
so not once, but twice, with this Court stating in the remand order
that such a hearing was authorized pursuant to Bar Rule 4-213 (a).
Adams does not actually challenge any of Special Master’s
29 conclusions of law, except the Special Master’s finding that he
violated Rule 1.5 (c) (1). However, the Special Master’s conclusion
that Adams was representing the client on a contingency fee basis
is not clearly erroneous, given that Adams previously represented
her in a credit report matter on a contingency fee basis, he had given
her no reason to believe that the Trans Union matter would be any
different, and he never billed her for the work or gave her any sort
of breakdown of the costs associated with the Trans Union
representation. Thus, it is likewise not clearly erroneous for the
Special Master to conclude that Adams should have explained the
rate and basis for a contingency fee in writing. Moreover, we note
that Adams does not challenge any of the Special Master’s findings
regarding the aggravating factors and his mental state, beyond
calling the Special Master “bias[ed].” And the cases Adams cites in
support of a Review Board reprimand appear distinguishable, in
that the attorneys had shown some sort of remorse and exhibited
greater participation with the State Bar in resolving those matters.
Nevertheless, we also do not find the cases cited by the Special
30 Master particularly relevant for determining the appropriate level
of discipline in this matter. In our remand order, we asked the
Special Master to show that his recommendation “is within the
range of discipline that this Court has previously imposed in cases
involving similar [Rule] violations and mitigating and aggravating
factors.” (Emphasis supplied). However, the Special Master only
cited a handful of cases in his discussion of the aggravating factors,
primarily focusing on cases in which this Court has disbarred
attorneys who have failed to comply with the disciplinary process.
He also cross-referenced cases cited in the State Bar’s “supplemental
brief.”5 However, those cases too appear distinguishable, not only
based on the conduct at issue, but in that they all include situations
where the attorney failed to engage and completely disregarded the
disciplinary proceedings. The only exception is In the Matter of
Butler, but the facts in that case are much more egregious in that
the attorney took over $50,000 entrusted to him and used the funds
5 Although the State Bar’s supplemental brief does not appear in the
record, the cases on which the State Bar relied appear to be the same cases cited in the State Bar’s response to the exceptions in this Court. 31 for his own benefit, never paid the client any amount, and failed to
actually complete work on behalf of his client. See Butler, 283 Ga. at
250-251.
Here, Adams failed to adequately communicate with his client
about the $7,000 settlement, charged an unreasonable fee for
obtaining the settlement, and failed to keep the settlement money
in a separate IOLTA account and maintain proper records of the
account. However, unlike Butler, Adams returned some of the
settlement money to his client, and he did engage in some of the
State Bar proceedings. Accordingly, we disagree with the Special
Master and the State Bar that disbarment is warranted in this case.
Instead, we conclude that under the particular facts of this case, and
given the aggravating and mitigating circumstances, a one-year
suspension from the practice of law, with reinstatement conditioned
on Adams providing restitution totaling $2,732.81, to his former
client, is a sufficient sanction for his conduct in this matter. See In
the Matter of Wright, 294 Ga. 289 (751 SE2d 817) (2013) (accepting
review panel’s report and recommendation and imposing one-year
32 suspension with conditions for attorney’s violations of Rule 1.4, 1.5
(c) (2), 1.15 (I) (b) and (c), and 1.15 (II) (b) related to her settlement
of client’s case, where attorney failed to send settlement statements
and retained settlement proceeds; attorney filed exceptions and
stated that review panel erred by overlooking facts in the record, by
crediting the clients’ testimony over hers, by finding a violation of
any Bar Rule, and by finding suspension appropriate); In the Matter
of Fitch, 289 Ga. 253 (710 SE2d 563) (2011) (accepting Special
Master’s report and recommendation and imposing one-year
suspension with conditions for attorney’s violations of Rules 1.15 (I)
(a), (b), and (c), 1.15 (II) (a) and (b), 1.3, and 1.4 and noting that while
attorney never acknowledged the wrongful nature of her conduct or
that her actions were inappropriate, “her actions were not theft, but
poor practice management, particularly the failure to enter into a
clear representation agreement and fee schedule,” and that
suspensions have been imposed for Rule 1.15 (I) and (II) violations).
At the conclusion of the one-year suspension, Adams may seek
reinstatement by demonstrating to the State Bar’s Office of General
33 Counsel that he has met the condition on reinstatement. If the State
Bar agrees that the condition has been met, it will submit a notice
of compliance to this Court, and this Court will issue an order
granting or denying reinstatement. Adams is reminded of his duties
under Bar Rule 4-219 (b).
One-year suspension with condition. All the Justices concur.