Hello and welcome to this Ethics Alert blog which will discuss the recent Georgia Supreme Court opinion which disbarred a lawyer who, inter alia, provided a false response to a disciplinary complaint. The opinion is In the Matter of Donald O. Nelson, Ga. Supreme Court Case No. S13Y1024 (September 9, 2013). The opinion is attached and online here: https://www.gasupreme.us/sc-op/pdf/s13y1024.pdf
According to the opinion, the lawyer (who was admitted to practice in 1969) “represented the lender in a refinancing of property owned by a married couple.At the closing, the Husband signed the security deed and believed he was a joint borrower with his Wife. However, in October 2005, a quitclaim deed transferring Husband’s interest in the property to Wife was prepared in Nelson’s office. Someone other than Husband executed the quitclaim deed. Nelson witnessed, and his legal assistant notarized, Husband’s signature. The quitclaim deed was filed in February 2006, and in March 2006, Wife obtained a second mortgage on the property unbeknownst to Husband. The husband first learned of the forged quitclaim deed in mid-2006.”
“In response to inquiries by the State Bar, Nelson made intentional misrepresentations of fact, writing in January 2008 that after the refinancing closing, it was discovered that Husband had inadvertently failed to sign the quitclaim deed, but that upon notification by Nelson’s office, Husband came to the office and executed the quitclaim deed. In another written response provided in March 2008, Nelson stated his ‘belief that Husband signed the Quit Claim Deed on the day following the closing.’ In January 2009 Nelson again wrote to the State Bar reiterating that his prior written responses were true and correct, adding that he had ‘very deliberately and methodically explained to [Husband] that the loan had been approved in his wife’s name only’ and that it would be necessary for him to execute a quitclaim deed to Wife so the loan could be closed in her name only. Nelson admitted at the evidentiary hearing that he made the written statements in January 2008 and January 2009 without having any specific recollection of the events.”
The lawyer had two prior disciplinary offenses including a “lengthy suspension” following a 1995 guilty plea to one count of money laundering along with a reprimand in 1994. The special master found in aggravation that the lawyer had obstructed the disciplinary proceeding in bad faith, submitted false and misleading statements during the disciplinary proceeding, refused to acknowledge the wrongful nature of his conduct, and had substantial experience in the practice of law. The special master also noted that under Georgia Bar Rule 4-103, a third or subsequent disciplinary infraction constitutes grounds for disbarment. The opinion approved the special master’s recommendation of disbarment.
Bottom line: This lawyer would most likely have been in serious trouble even if he had been truthful in responding to the allegations in the Bar complaint; however, the false responses and statements pretty much cinched the deal. The lawyer admitted that he made the written statements “without having any specific recollection of events.” As I have said many times and in many forums, as bad as it is to have to respond to a Bar complaint, it is even worse for the lawyer to either lie or rely solely on memory in making the response. As was also said many years ago, “the cover up is worse than the crime”.
Be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
Warren Hinds
Joe: Excellent points. Even minor transgressions can result in serious discipline if the respondent is not forthright with the State Bar. “Makng false statements to the Bar during the disciplinary process is a very serious matter which typically results in, at least, a significant suspension from the practice of law.” In Re Carriman, 288 Ga. 239 (2010).
jcorsmeier
Thanks, Warren. In my years of practice, I have seen lawyers accused of making misrepresentations when it may have been, or actually was, a failure confirm facts and/or trying to respond by memory only. As painful as responding to the complaint may be, the lawyer should try to focus and carefully prepare the response or potentially retain a good disciplinary defense lawyer to assist!