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: May 31, 2023
S23Z0402. IN THE MATTER OF DAVID ROBERSON.
PER CURIAM.
This is an appeal from a final order of the Board to Determine
Fitness of Bar Applicants (the “Board”) denying an application for
readmission to the State Bar of Georgia (the “State Bar”) filed by
David Roberson, who was disbarred in 2001 for multiple violations
of the Georgia Rules of Professional Conduct.1 Roberson argues that
Roberson was disbarred on April 5, 2001. In 2021, Roberson applied
1
for readmission to the State Bar by submitting to the Board an Application for
Certification of Fitness to Practice Law. On October 7, 2021, the Board
conducted an informal conference to determine Roberson’s fitness to practice
law. Following the informal conference, the Board issued a Tentative Order of
Denial, and Roberson timely requested a formal hearing. The Board provided
Roberson with the specifications for the denial on February 14, 2022, which
Roberson answered on March 8, 2022. On April 25, 2022, this Court appointed
a hearing officer, and a formal hearing was held on August 10, 2022. On
October 14, 2022, the hearing officer issued a report and recommendation,
recommending that Roberson’s application be denied. On November 10, 2022,
the Board adopted the hearing officer’s recommendation and issued its final
order denying Roberson’s application. Roberson timely filed his notice of
the record demonstrates by clear and convincing evidence that (1)
he is rehabilitated from the conduct for which he was disbarred; (2)
he appreciates the scope and harm of the conduct for which he was
disbarred; and (3) he has satisfied the reinstatement condition
established by this Court. For the reasons that follow, we conclude
that the evidence supports the Board’s decision to deny Roberson’s
certification and affirm.
1. The record shows that Roberson was admitted to the State
Bar in 1980. In 2001, this Court disbarred Roberson for his
mishandling of a medical malpractice case. See In re Roberson, 273
Ga. 651, 652-656 (544 SE2d 715) (2001). This Court concluded that
the State Bar had shown by clear and convincing evidence that
Roberson violated multiple standards of former Bar Rule 4-102 (d)2
appeal in this Court.
2Specifically, this Court concluded that Roberson violated the following
standards of former Bar Rule 4-102 (d):
4 (a lawyer shall not engage in professional conduct involving
dishonesty, fraud, deceit, or wilful misrepresentation); 30 (except
with the written consent of or written notice to his client after full
disclosure a lawyer shall not accept or continue employment if the
exercise of his professional judgment on behalf of his client will be
2
by improperly issuing checks from his client’s settlement funds to
himself, his co-counsel, and non-parties without the court’s approval
of the final settlement; knowingly inflating the value of the client’s
or reasonably may be affected by his own financial, business,
property or personal interests); 31 (a) (a lawyer shall not enter into
an agreement for, charge, or collect an illegal or clearly excessive
fee); 31 (d) (2) (upon conclusion of a contingent fee matter, the
lawyer shall provide the client with a written statement stating
the following: (i) the outcome of the matter; and, (ii) if there is a
recovery: (aa) the remittance to the client; (bb) the method of its
determination; (cc) the amount of the attorney fee; and (dd) if the
attorney’s fee is divided with another lawyer who is not a partner
in or an associate of the lawyer’s firm or law office, the amount of
fee received by each and the manner in which the division is
determined); 36 (a lawyer shall not continue multiple employment
if the exercise of his independent professional judgment on behalf
of a client will be or is likely to be adversely affected by his
representation of another client, except to the extent permitted
under Standard 37); 44 (a lawyer shall not without just cause to
the detriment of his client in effect wilfully abandon or wilfully
disregard a legal matter entrusted to him); 61 (a lawyer shall
promptly notify a client of the receipt of his funds, securities or
other properties and shall promptly deliver such funds, securities
or other properties to the client); 63 (a lawyer shall maintain
complete records of all funds, securities, and other properties of a
client coming into the possession of the lawyer and promptly
render appropriate accounts to his client regarding them); and 65
(A) (a lawyer shall not commingle his client’s funds with his own,
and shall not fail to account for trust property, including money
and interest paid on the client’s money, if any, held in any fiduciary
capacity).
Id. at 651.
3
future medical expenses in the settlement papers he filed with the
court in order to justify the attorney’s fees he had already paid to
himself and his co-counsel; collecting an excessive fee;3 failing to
provide the client with a written statement detailing the
contingency fee arrangement; willfully disregarding legal matters
entrusted to him by failing to attend the first settlement hearing
and failing to establish a trust for the client’s children; failing to
disclose client conflicts and personal financial interests; and failing
to promptly deliver client funds and maintain adequate records of
the settlement funds received. See id. This Court also imposed as a
condition for reinstatement that Roberson “make full restitution to
the estate of all moneys he received in regard to his representation
of the estate.” Id. at 656.
In 2021 — twenty years after his disbarment — Roberson
applied for readmission to the State Bar by submitting to the Board
his Application for Certification of Fitness to Practice Law. In his
3 In his answer to the State Bar’s specifications, Roberson admitted
paying himself and his co-counsel approximately $2,333,000 from the client’s
$3,325,000 cash settlement.
4
application, Roberson described the circumstances leading to his
disbarment as an “[i]mproper handling of proceeds from a personal
injury recovery,” and disclosed that he had settled a legal
malpractice claim filed against him by the client’s estate for
$449,385.26. Roberson also submitted to the Board a statement of
rehabilitation, in which he stated that he “fully accept[ed]
responsibility for [his] past conduct.” In his statement, Roberson
also described his work experience and community service since his
disbarment, which included teaching law and remedial mathematics
courses and becoming involved in his church and other nonprofit
organizations. However, Roberson omitted in his statement any
mention of the specific conduct that led to his disbarment or the
harm his conduct caused his client and her children.
After receiving his application, the Board requested that
Roberson participate in an informal conference. At the informal
conference, Roberson mischaracterized the circumstances leading to
his disbarment as an issue over calculating attorney’s fees,
explaining that his co-counsel incorrectly advised him that the
5
attorney’s fees collected should be based on the total amount the
client was to collect rather than the present cash value, which
“turned out not to be the right thing to do.” In his explanation,
Roberson failed to mention that he misappropriated his client’s
settlement funds, engaged in dishonest behavior with the court, and
abandoned legal matters entrusted to him. Further, when asked if
he would do anything differently if he could go back to that time
period, Roberson responded that he would have told his co-counsel
that “the attorney’s fee [should be] based on the present cash value.”
When the Board further questioned Roberson about the role he
believed his co-counsel played in his disbarment, Roberson
responded:
I was the lawyer, I was retained by the family, and it was
my responsibility. No matter what I delegated to [my cocounsel], I should have . . . looked at that myself. . . . I take
all the blame upon myself.
The Board also asked Roberson whether he believed the legal
malpractice settlement constituted full restitution and whether he
believed the approximately $800,000 he retained as a fee after
6
paying the settlement was fair. Roberson responded that he had not
given “a whole lot of thought” to whether the settlement constituted
full restitution, but that he believed “the estate was made whole”
because “the lawyers agreed that [the settlement] would be
sufficient.” Roberson was unable to unequivocally answer the
question about whether the fee he retained was fair, stating, “It
would have been fair to get 40 percent of whatever the present cash
value of the settlement was.” Further, Roberson incorrectly stated
that his co-counsel was the one who filed the settlement papers with
the court and that the court had approved the settlement before he
paid himself the attorney’s fees.
Following the informal conference, the Board issued a tentative
denial of Roberson’s application, finding that Roberson “failed to
carry [his] burden of establishing that [he] possess[es] the requisite
character and fitness for admission to the practice of law in
Georgia.” The Board further explained that Roberson’s record
“evidences a lack of insight and rehabilitation,” and that it was
unable to confirm whether he had made full restitution to the estate.
7
After receiving the Board’s tentative denial, Roberson timely
requested a formal hearing, and the Board served Roberson with the
specifications for the tentative denial. In the specifications, the
Board stated that Roberson improperly characterized his
misconduct as “a disagreement with [co-counsel] over . . . attorney’s
fees,” made multiple statements to the Board that “w[ere] not
accurate,” and “did not accept responsibility for [his] own actions
that were done independently of [co-counsel].” Further, the Board
asserted that Roberson “failed to show any understanding or
remorse” for his past actions and “failed to show rehabilitation.”
In his answer to the Board’s specifications, Roberson denied
the Board’s allegation that he had not shown remorse for his past
actions or proof of rehabilitation. Roberson further stated that he
was “not seeking exoneration” by “shifting the blame from [himself]
to [his co-counsel]” and that, when he made incorrect statements to
the Board, he was “relating what [he] recalled of the incident, more
than 20 years ago.”
At the formal hearing, Roberson testified on his own behalf,
8
explaining that he felt “ashamed” of what happened and that “there
was no way [he] was trying to avoid [his] responsibility” by blaming
his co-counsel. Roberson testified about his involvement in his
community since his disbarment but again failed to explain the
specific conduct that led to his disbarment. On cross-examination,
Roberson was asked about his failure to set up the trust for the
client’s children. Roberson explained the purpose behind setting up
such a trust without explaining why he never established the trust
or how this harmed the client and her children. Roberson also
introduced into evidence letters of support for his reinstatement
from several attorneys, including the special master involved in
Roberson’s disbarment proceeding, which praised his good
character.
On October 14, 2022, the hearing officer issued his report and
recommendation that the Board should deny Roberson’s application
for certification of fitness. The hearing officer noted that Roberson
had “taken positive action demonstrating rehabilitation” and that it
was unclear whether Roberson’s misstatements to the Board were
9
due to “the natural erosion of memory” or a “matter of a lack of
candor.” However, the hearing officer ultimately concluded that
Roberson had not met his burden of showing he was rehabilitated,
noting that Roberson failed to show an “appreciation of the scope
and harm of his actions.” Further, the hearing officer concluded that
Roberson had failed to meet this Court’s condition for reinstatement
that he make full restitution to the client’s estate.
On November 10, 2022, the Board adopted the hearing
officer’s report and recommendation and denied Roberson’s
application for certification of fitness.
2. In his first enumeration of error, Roberson asserts that the
record demonstrates by clear and convincing evidence that he is
rehabilitated from the conduct for which he was disbarred.
Specifically, Roberson argues that he has met his burden of showing
rehabilitation because the record demonstrates that, since his
disbarment, he has taken responsibility for his past actions and has
appreciated the harm his conduct caused; established a good
reputation, as evidenced by the letters of support recommending his
10
reinstatement; and engaged in positive action demonstrating
rehabilitation, as evidenced by his teaching and ministry work. We
conclude, however, that the Board did not clearly err in finding that
Roberson was not sufficiently rehabilitated.
“An applicant for reinstatement as a practicing lawyer has the
burden of providing by clear and convincing evidence that [he] has
been sufficiently rehabilitated.” In the Matter of Davis, 307 Ga. 276,
279 (834 SE2d 93) (2019). To show rehabilitation, “the applicant is
required by the Board to produce evidence of, among other things,
the taking of responsibility for past conduct, insight and
appreciation for why the conduct raises fitness concerns, candor
with the Board, good reputation and assurances of a desire and
intention to conduct one’s self in an exemplary fashion in the future,
and positive action demonstrating rehabilitation by things such as
occupation, religion, or community or civic service.” In re Robbins,
295 Ga. 64, 67 (2) (757 SE2d 54) (2014). Further, “if there is any
evidence to support the Board’s decision to deny certification, [this
Court] will uphold it.” Davis, 307 Ga. at 279.
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Here, ample evidence supported the Board’s conclusion that
Roberson was not sufficiently rehabilitated to be reinstated to
practice law. Although Roberson made blanket statements
throughout the proceedings that he “blamed” himself for his
disbarment, he failed to demonstrate that he has taken
responsibility for his actions and appreciates the harm his conduct
caused and why it raised fitness concerns. Roberson repeatedly
mischaracterized the circumstances leading to his disbarment as an
issue with co-counsel over calculating appropriate attorney’s fees
without adequately addressing his own unethical and dishonest
conduct and how the client and her children were harmed by his
behavior. “This Court does not countenance such dishonesty and
blame shifting in those who seek to practice law in the State of
Georgia.” Davis, 307 Ga. at 280 (affirming the Board’s decision to
deny reinstatement where the applicant showed an “inability to take
responsibility for her prior misdeeds” by shifting the blame for her
misconduct to her clients). See also Robbins, 295 Ga. at 67 (2)
(affirming the Board’s decision to deny reinstatement where the
12
applicant “was equivocal with respect to demonstrating a
recognition of the wrongdoing that resulted in disbarment”); In re
Lee, 275 Ga. 763, 764 (571 SE2d 720) (2002) (affirming the Board’s
decision to deny reinstatement, concluding that the applicant “has
shown no remorse for his conduct and continues to justify, minimize,
or blame others,” which “does not add up to a showing of
rehabilitation by clear and convincing evidence”). Moreover,
although Roberson argues that any misstatements he made during
the proceedings were due to a lapse in his memory, rather than a
lack of candor, Roberson continued to make misleading and evasive
statements in the way he characterized the events surrounding his
disbarment even after the Board served him with the specifications,
which detailed his past conduct and rule violations. Making such
“[f]alse, misleading, or evasive answers to bar application
questionnaires may be grounds for a finding of lack of requisite
character and fitness.” In the Matter of Odion, 314 Ga. 427, 429 (2)
(877 SE2d 182) (2022).
Further, although the several letters of support Roberson
13
introduced into evidence may demonstrate that he has a good
reputation, and his teaching and ministry work since his disbarment
may show that Roberson has engaged in positive action toward
rehabilitation, this is “not enough to establish rehabilitation in this
case since this evidence is offset by [Roberson’s] failure to meet the
burden of proof with respect to other elements of rehabilitation, such
as candor and credibility, as well as appreciation and insight into
why his previous conduct raises fitness concerns.” Robbins, 295 Ga.
at 68 (2). Moreover, “[t]o the extent that the evidence of good
character and community service presented by [Roberson] could
have raised a question about the extent of [his] rehabilitation, any
doubts about [his] rehabilitation are resolved in favor of protecting
the public rather than reinstating [him] to the practice of law.”
Davis, 307 Ga. at 280. Accordingly, Roberson’s claim that the board
clearly erred in concluding that he had not established
rehabilitation fails.
3. In his second enumeration of error, Roberson asserts that
the record demonstrates by clear and convincing evidence that he
14
appreciates the wrongfulness of his conduct and the harm his
conduct caused. As this is an element of rehabilitation, see Robbins,
295 Ga. at 68 (2), we have already addressed Roberson’s failure to
demonstrate his appreciation for the wrongfulness of his conduct
and the harm it has caused in Division 2, and Roberson asserts no
new arguments in this enumeration. Accordingly, this claim fails.
4. Finally, Roberson asserts that the record demonstrates by
clear and convincing evidence that he has satisfied the
reinstatement condition requiring him to make full restitution to his
client’s estate. According to Roberson, he has satisfied this condition
because he “voluntarily made restitution making the estate whole”
by settling the legal malpractice suit filed against him for
approximately $450,000. We disagree.
The record shows that, following the legal malpractice
settlement, Roberson has retained approximately $800,000 from his
representation of his client. Thus, he has not satisfied our condition
that he make “full restitution to the estate of all moneys he received
in regard to his representation of the estate.” In re Roberson, 273
15
Ga. at 656 (emphasis supplied). Accordingly, we agree with the
Board that Roberson has failed to satisfy his condition for
reinstatement and affirm the Board’s denial of his application for
certification of fitness. See In the Matter of Bartko, 312 Ga. 630, 631
(864 SE2d 39) (2021) (affirming the Board’s decision to deny the
applicant reinstatement in part because the applicant “has made
little progress toward satisfying his obligation to pay restitution”).
Denial of Certification of Fitness to Practice Law affirmed. All
the Justices concur.
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