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: January 18, 2023
S23Y0155. IN THE MATTER OF ASHUTOSH S. JOSHI.
PER CURIAM.
This disciplinary matter is before the Court on the report and
recommendation of Special Master Patrick Longan, who
recommends that we accept the amended petition for voluntary
discipline submitted by respondent Ashutosh S. Joshi (State Bar No.
405375) after the filing of a formal complaint. See Bar Rule 4-227
(c). Joshi seeks the imposition of a six-month suspension, nunc pro
tunc to November 30, 2021, for his admitted violation of Rule 4.2 (a)
(providing that a lawyer who is representing a client in a matter
shall not communicate about the subject of the representation with
a person the lawyer knows to be represented by another lawyer in
the matter, unless the lawyer has the consent of the other lawyer or
is authorized to do so by law or court order), the maximum sanction
for a single violation of which is disbarment. However, Joshi’s
petition does not admit to — or even meaningfully address — the
conduct alleged in the formal complaint, which appears to be
substantially more serious than the conduct to which Joshi does
admit. And although the Bar and the special master recommend
acceptance of Joshi’s petition, neither the Bar nor the special master
gives any indication that they have concluded that the conduct
charged in the formal complaint did not occur. Accordingly, we reject
Joshi’s petition and remand this matter with direction to resolve
whether these more serious matters — as well as an additional
matter gleaned from our review of the record — in fact occurred.
The formal complaint stated that Joshi, who has been a
member of the Bar since 1996, represented a client accused of
murder and other offenses. The case against the client, Kenneth
Jackson, who was allegedly the highest-ranking member of a gang
in Georgia, involved a shooting in which several women were injured
and an infant was killed. A co-conspirator pled guilty and agreed to
testify against Jackson. After the co-conspirator, who was
2
represented by attorney Brad Gardner, agreed to cooperate against
Jackson, he was moved away from Jackson and their placement at
the Georgia Diagnostic and Classification Prison to the Rockdale
County jail. The co-conspirator’s location was kept confidential out
of concern for his safety.
The formal complaint goes on to allege that, prior to the trial,
the Assistant District Attorney filed a witness list showing the coconspirator as a witness and Gardner as his attorney. She served
that list on Joshi by email on August 28, 2017. Later that same day,
Joshi traveled to the Diagnostic and Classification Prison and met
with Jackson. Joshi then traveled to the Rockdale County Jail. Joshi
had never represented the co-conspirator, and he allegedly knew
that the co-conspirator was represented by Gardner. Joshi did not
attempt to secure Gardner’s permission to meet with the coconspirator.
Upon arriving at the Rockdale County Jail, Joshi approached
the visitor registration desk and notified the intake deputy that he
was there to meet with the co-conspirator — whom he allegedly
3
identified as his client. The intake deputy reviewed the jail database
and noticed that, although it showed prior attorney visits for the coconspirator, Joshi had never visited him. After clarifying that Joshi
was, in fact, there to visit his “client,” the intake deputy notified the
supervisor for the co-conspirator’s housing pod that the coconspirator had an attorney visitor. But when the intake deputy
notified Joshi that there would be a short delay so that the pod could
be cleared, Joshi, unlike prior attorney-visitors, requested to have
the visit occur in the attorney visitation booth, which permitted
confidential conversation. Once the co-conspirator had been moved
to the attorney visitation booth, another officer escorted Joshi there.
Very shortly after Joshi entered the booth, the intake deputy
heard the co-conspirator pounding on the booth window, asking to
be removed because Joshi was not his attorney. After the coconspirator was removed and Joshi had exited the booth, officers
observed that the co-conspirator was extremely agitated and visibly
upset, stating that Joshi was Jackson’s attorney. After Joshi left the
facility, he emailed Gardner to inform him of his visit with the co4
conspirator, and Gardner told Joshi not to visit the co-conspirator
again. Joshi thereafter sent correspondence to the co-conspirator
and Gardner reviewing the substance of his meeting with the coconspirator.
The formal complaint charged Joshi with having violated Rules
4.1 (a) (providing that, in the course of representing a client, a
lawyer shall not knowingly make a false statement of material fact
or law to a third person) and 8.4 (a) (4) (providing that a lawyer shall
not engage in professional conduct involving dishonesty, fraud,
deceit or misrepresentation) for having knowingly misrepresented
to staff at the Rockdale County Jail that he was the co-conspirator’s
attorney. The maximum sanction for a single violation of either of
those Rules is disbarment. The complaint also charged Joshi with a
violation of Rule 4.2 (a) for having met with the co-conspirator while
knowing that the co-conspirator was represented, without
permission from the co-conspirator’s counsel.
Joshi filed an initial and amended answer to the complaint, the
parties engaged in discovery, and numerous depositions were taken.
5
Joshi also filed a motion for summary judgment, arguing, in essence,
that he did not possess actual knowledge of the fact that the coconspirator was represented by Gardner prior to meeting with him
and did not misrepresent to personnel at the Rockdale County Jail
that he was the co-conspirator’s attorney, such that he had not
committed any of the charged Rules’ violations.
On November 12, 2021, a hearing was held on Joshi’s motion
for summary judgment, and the special master entered an order
denying that motion on November 17, 2021. The special master first
considered the alleged Rule 4.2 (a) violation, noting that the only
issue controlling whether there had been a violation was whether
Joshi knew at the time at which he met with the co-conspirator that
he was represented. The special master pointed to Rule 1.0 (m),
which provides that, where a rule requires knowledge on the part of
the disciplinary respondent, it must be actual knowledge, but that
the respondent’s knowledge may be inferred from the circumstances.
The special master stated that there were circumstances in the
record from which an inference could be drawn that Joshi knew that
6
the co-conspirator was represented in advance of their meeting,
which created a genuine issue of material fact.
Turning to the alleged violations of Rules 4.1 (a) and 8.4 (a) (4),
the special master acknowledged that Joshi denied making any false
statement of fact or engaging in any dishonesty, deceit, or
misrepresentation in connection with his visit to the jail, but noted
that a member of the jail staff had testified that Joshi had falsely
told her that he represented the co-conspirator. The special master
concluded that, although Joshi had argued that this testimony was
not reliable, issues of reliability and credibility could not be resolved
on a motion for summary judgment.
On December 1, 2021, the special master entered an order
stating that he had been informed by counsel for Joshi and the Bar
that the parties were “working together on the terms of a Petition
for Voluntary Discipline” that Joshi intended to submit. Joshi then
filed such a petition, but made no attempt to address directly the
alleged Rules’ violations charged by the Bar’s formal complaint.
Instead he highlighted that he did not enter an appearance on
7
Jackson’s behalf until 15 months after the co-conspirator had pled
guilty, and that his paralegal’s research indicated that the coconspirator’s case was closed, assertions which appear to have been
calculated to imply that Joshi would have had no reason to suspect
that the co-conspirator was represented at the time of their meeting.
Joshi also did not attempt to address directly the testimony on which
the Bar’s charged Rules violations were based — instead, for
instance, condensing his account of his interactions with the intake
deputy to having notified her “that he was an attorney and was there
to visit [the co-conspirator].” Joshi did, however, admit to a single
violation of Rule 4.2 (a) for having sent to the co-conspirator the
post-meeting correspondence reviewing the substance of his meeting
with the co-conspirator. For this single Rule 4.2 violation, Joshi
sought a three-month suspension, nunc pro tunc to the November
30, 2021 date on which he ceased practicing law.1
1 It is not altogether clear from the record whether Joshi merely ceased
practicing law in anticipation of discipline being imposed on this matter, or if
he intends to cease practicing law altogether. For example, in his recitation of
alleged mitigating factors, Joshi stated that “[i]n the event Mr. Joshi decides
8
The Bar filed a response to Joshi’s petition, recommending that
it be accepted. The Bar also did not address directly the matters at
issue in the formal complaint, although it made statements that
appear to imply that it continued to believe that those violations had
occurred. For example, the Bar’s response described at length the
circumstances of Gardner’s continued representation of the coconspirator; reciting that, several weeks before Joshi’s meeting with
the co-conspirator, the DA’s office had served “discovery to all
attorneys of record that included a lengthy recording of [the coconspirator’s] interview that implicated Defendant Jackson in the
murder and other crimes, the plea agreement and requirement for
truthful testimony” and that “listed Mr. Gardner’s office address as
the address for [the co-conspirator] on discovery for all attorneys of
record.”
to practice law again, he will ensure that he does not reach out to anyone who
he learns to be represented by counsel without prior permission of counsel for
the represented individual.” Joshi’s attached affidavit of law practice closure
provided no additional insight; the Bar’s website indicates only that Joshi is
currently ineligible to practice because of unpaid license fees.
9
The special master then entered an order denying Joshi’s
initial petition. The special master briefly recited the allegations of
the formal complaint and noted that the petition did not admit to
those violations and instead admitted to a violation not identified in
the formal complaint. Nevertheless, the order stated that “[t]he
Petition for Voluntary Discipline complies with Rule 4-227 (a)[2] in
that it admits conduct that is sufficient to authorize the imposition
of discipline.” The order proceeded to analyze whether the petition
sought appropriate discipline, concluding that it did not, because (in
the special master’s view) any discipline less than a six-month
suspension would not be appropriate.
Joshi next submitted an amended petition, essentially the
same except for changing the requested nunc pro tunc suspension to
six months. The Bar again recommended acceptance of the petition.
In its response, the Bar asserted that, although Joshi’s initial and
amended petitions did not admit to the violations alleged in the
2Rule 4-227 (a) provides that “[a] Petition for Voluntary Discipline shall
contain admissions of fact and admissions of conduct in violation of Part IV,
Chapter 1 of these Rules sufficient to authorize the imposition of discipline.”
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formal complaint, Rule 4-227 (a) did not require him to do so, and
that the admissions of his petition were sufficient to authorize the
imposition of discipline.
The special master recommended acceptance of the amended
petition. First, regarding the alleged violations of Rules 4.1 (a) and
8.4 (a) (4), the special master noted that, although Joshi testified
that he did not represent himself to Rockdale County Jail personnel
as the co-conspirator’s attorney, there was evidence to the contrary.
The intake deputy, for example, testified that Joshi twice identified
himself as the co-conspirator’s attorney. And another member of the
jail staff testified that, at the time of Joshi’s visit, there was a policy
in place at the jail that restricted visits by attorneys such that
inmates could only be visited by attorneys who represented the
inmate or sought to represent the inmate — suggesting Joshi would
have had to hold himself out as the co-conspirator’s attorney to visit
him. The special master did not resolve this factual dispute. Second,
and as to the Rule 4.2 (a) violation alleged in the formal complaint
(as opposed to the separate Rule 4.2 (a) violation to which Joshi
11
admitted), the special master stated that “there were circumstances
in the record from which a factfinder might infer that Mr. Joshi
knew that [the co-conspirator] was represented at the time of their
meeting.” The special master acknowledged that the prosecutor in
Joshi’s client’s case testified that: (1) she made discovery materials
available to Joshi on August 7, 2017, three weeks before the meeting
at the Rockdale County Jail; (2) that these materials revealed that
the co-conspirator was a cooperating witness; and (3) that, in her
ordinary practice, she would have mailed the discovery materials to
Joshi if Joshi did not pick them up. The special master further noted
that Joshi had conceded that if he had known that the co-conspirator
was a cooperating witness, he would have had reason to know that
the co-conspirator was represented by counsel. But the special
master acknowledged that Joshi denied knowing that the coconspirator was a cooperating witness before August 28, 2017 and
stated that there was no documentation in the record to show that
Joshi received the discovery materials mentioned in the August 7
email or that they were mailed to him.
12
Despite the Bar and the special master’s recommendation to
accept Joshi’s petition for voluntary discipline — which, as discussed
below, we find puzzling — it is clear that the petition is due to be
rejected. The violations alleged in the formal complaint are
substantially more serious than the single, comparatively trivial
violation to which Joshi has admitted. Joshi is accused of knowingly
communicating directly with a represented co-conspirator and lying
to jail staff to make that happen — and yet the only thing he admits
is that he should not have, after the underlying events occurred
(which, in his telling, did not involve either of the wrongs alleged),
sent a letter to the co-conspirator memorializing the contents of
their conversation. And nothing before us gives any indication that
either the Bar or the special master has concluded that those more
serious violations did not occur.
The record contains additional evidence that heightens our
concerns. During an interview with the District Attorney’s office
following the meeting with Joshi, the co-conspirator repeatedly
asserted that, after Joshi had identified himself to the co13
conspirator as Jackson’s attorney, Joshi had told the co-conspirator
“let me help you, you need my help,” and the co-conspirator had told
Joshi that there was nothing he could do for him. According to the
co-conspirator, Joshi got angry, asked the co-conspirator when he
was being moved back to his prior facility, and made a threatening
gesture at the co-conspirator — which the co-conspirator interpreted
as conveying a threat to his life. Given that the co-conspirator had
been moved to the Rockdale County Jail because of concerns over his
safety with regard to the potential for retribution from Joshi’s client
and his gang associates, this testimony is profoundly troubling. If
such conduct occurred as the co-conspirator alleged, it would appear
not only to provide a basis for additional, substantial discipline
under the Rules of Professional Conduct, but also to raise a question
about whether criminal witness intimidation occurred.
Given all of this, we find it difficult to know what to make of
the Bar and the special master recommending that we accept Joshi’s
petition for voluntary discipline. Some of the comments made by the
Bar and the special master, particularly those regarding Joshi’s
14
compliance with Rule 4-227 (a), appear to reflect a belief that that
they had no choice but to accept Joshi’s petition, since it adequately
acknowledged conduct on the basis of which discipline could be
imposed. We are not aware, however, of any authority compelling
the acceptance of a petition admitting to substantially less serious
conduct than that charged in a related formal complaint — a notion
that would significantly undermine the disciplinary process — and
the Rules do not appear to support such a construction. See
generally Rule 4-227 (c) (3) (providing that, where a petition for
voluntary discipline has been filed subsequent to the filing of a
formal complaint, that petition may be rejected by a special master
“for such cause or causes as seem appropriate to the Special Master,”
which “may include but are not limited to” the specific findings noted
in (c) (3) (i – iv)). Alternatively, it may be that the Bar felt it was
unnecessary to fully resolve the issues from the formal complaint for
some other reason, like the possibility that Joshi did not intend to
resume the practice of law. See n.1, supra. If so, then the Bar should
explain so and explain why we can be confident that Joshi will not
15
change his mind at some point in the future. For the moment,
though, there does not appear to be anything in the record
precluding Joshi from resuming the practice of law. Indeed, given
his request to have the proposed six-month suspension imposed
nunc pro tunc to November 30, 2021, and the lack of conditions
proposed as to his reinstatement, Joshi could resume practicing law
immediately after the issuance of an opinion imposing the requested
suspension.
Accordingly, given that this matter, as currently presented to
us, fails to resolve the questions of whether the serious allegations
presented in the formal complaint occurred as alleged and whether
Joshi threatened his client’s co-conspirator, Joshi’s petition for
voluntary discipline is rejected.3 Although we express no view at
3 Our concerns regarding this matter are heightened in the light of the
fact that Joshi has been sanctioned at least once before. In 2009, this Court
accepted Joshi’s petition for voluntary discipline and imposed a public
reprimand for his admitted violation of Rule 1.11 (providing that a lawyer shall
not represent a private client in connection with a matter in which the lawyer
participated personally and substantially as a public officer or employee,
unless the appropriate government entity consents after consultation). See In
the Matter of Joshi, Case No. S09Y0429 (Feb. 23, 2009). Specifically, in that
matter, Joshi admitted that, shortly after representing the State in its criminal
16
this stage regarding the merits of these unresolved questions, this
matter is remanded with direction that “[a]ny future attempts to
resolve [Joshi’s] disciplinary matter should address this additional
conduct and the question of whether it provides any basis for
discipline, and, if so, at what level of sanction.” See In the Matter of
Hine, 314 Ga. 70, 76 (875 SE2d 716) (2022).
Petition for voluntary discipline rejected. All the Justices
concur, except LaGrua, J., disqualified.
prosecution of a defendant, he spoke with the defendant’s family about
representing the defendant on appeal and that during those discussions he
stated that certain witnesses at the defendant’s trial had testified falsely.
17