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 17, 2024
S23Y0807. IN THE MATTER OF CHRISTOPHER RYAN
BREAULT.
PER CURIAM.
This disciplinary matter is before the Court on the report and
recommendation of the State Disciplinary Review Board (“Review
Board”), recommending that the Court adopt the recommendation of
Special Master Daniel S. Reinhardt that Christopher Ryan Breault
(State Bar No. 207142), a member of the State Bar of Georgia since
2013, be suspended for a period of one month.1 The conduct
underlying this matter occurred while Breault was litigating a
personal injury case in the United States District Court for the
Southern District of Georgia, resulting in Breault being charged
1 The Special Master recommended a suspension of 30 days, while the Review
Board recommended a suspension of one month. Throughout this opinion, we refer to
the recommended suspension as a one-month suspension, for consistency.
with violating Rules 1.1, 1.6 (a), 1.16 (a) (3), and 3.5 (d) of the
Georgia Rules of Professional Conduct (“GRPC”), found in Bar Rule
4-102 (d). The maximum penalty for a single violation of Rules 1.1
and 1.6 is disbarment, while the maximum penalty for a single
violation of Rules 1.16 and 3.5 (d) is a public reprimand.
After carefully reviewing the record, we conclude that the
Special Master failed to adequately analyze Breault’s conduct under
the framework found in the American Bar Association Standards for
Imposing Lawyer Sanctions (“ABA Standards”), a framework that
though not controlling, is “generally instructive as to the question of
punishment.” In the Matter of Cook, 311 Ga. 206, 213 (3) (a) (857
SE2d 212) (2021). Thus, we decline to determine at this juncture
whether a one-month suspension is an appropriate sanction for
Breault’s conduct. We reject the recommendations below and
remand the case to the Review Board, with direction to remand the
case to a Special Master to conduct a full analysis of Breault’s
conduct under the helpful ABA Standards and to issue a new
recommendation consistent with this opinion. At this stage, we do
2
not decide whether the Special Master and Review Board correctly
concluded that Breault violated the provisions of the GRPC with
which he was charged, nor do we decide Breault’s exceptions to these
conclusions.
1. Procedural History
This matter was referred to the State Bar by a federal district
court, which held a disciplinary hearing regarding the conduct of
Breault and his co-counsel during the personal injury case. The
district court issued a sealed order disciplining Breault and his cocounsel, and it sent the order to the State Bar. In subsequent orders,
the district court granted the State Bar permission to disclose the
sealed disciplinary order to individuals aiding in the investigation
and potential prosecution of disciplinary matters involving Breault,
and allowed the State Bar to access related pleadings, exhibits,
transcripts, and orders from the district court proceedings. In
pertinent part, the district court concluded in the sealed disciplinary
order that Breault had violated Rules 1.1, 1.3, 1.6, and 1.16 of the
GRPC, and disciplined Breault by revoking his pro hac vice
3
admission and ordering that he could reapply for admission to
practice in the Southern District after six months, conditioned upon
his completion of at least 30 continuing legal education credits in
ethics.2
On January 11, 2019, the State Disciplinary Board found
probable cause to file a formal complaint against Breault for
violating Rules 1.1, 1.6, 1.16, and 3.5 (d).3 A formal complaint was
filed on May 6, 2019, and a Special Master was appointed on May 7,
2019.4 See Case No. S19B1185. On July 22, 2019, Breault filed a
timely answer after being personally served with the notice of a
finding of probable cause, the formal complaint, the petition for
appointment of a Special Master, and the order appointing a Special
2 The federal district court’s discipline only governed Breault’s ability to
practice in that court. See In re Stubbs, 285 Ga. 702, 703-04 (681 SE2d 113) (2009) (“While the federal district court had authority to discipline or suspend [an attorney] from the practice of law in its court for misconduct or violation of its local rules . . . it has no authority to confer or revoke [the attorney’s] license to practice law.”
(emphasis added)). This Court has the exclusive authority to determine whether
Breault should be disciplined under the GRPC. See Cook, 311 Ga. at 213 (3) (a) (“The level of punishment imposed rests in the sound discretion of this Court.”).
3 Breault was also charged with violating Rule 1.3, but the State Bar later
abandoned that charge.
4 This Court appointed Special Master Reinhardt on November 10, 2020, after
the original special master was no longer able to continue performing his duties.
4
Master. During litigation, the Special Master entered a protective
order in an attempt to maintain compliance with the then-sealed
district court orders. The Special Master held an evidentiary
hearing on March 14, 2022, and entered his report and
recommendation on October 17, 2022. Breault filed timely
exceptions and requested review by the Review Board. The Review
Board entered its report and recommendation on March 27, 2023,
summarily adopting the Special Master’s findings of fact and
conclusions of law, and rejecting all of Breault’s arguments.5
2. The Special Master’s Report and Recommendation
(a) The Facts
The Special Master recounted that on October 14, 2015, a man
from South Carolina was injured in an automobile accident in
5 When the matter was filed in this Court, the State Bar initially sought
permission from this Court to file certain portions of the disciplinary record under seal to maintain compliance with the sealed district court orders and protective
orders entered by the Special Master. This Court denied that motion without
prejudice because the Bar had provided no authority for filing those records under seal. The State Bar ultimately sought and received an order from the district court allowing it to file those records in this Court with the name of Breault’s co-counsel redacted therefrom. Accordingly, throughout this opinion, we refer to Breault’s cocounsel by his initials, C.M.
5
Savannah. The man and his wife hired a Georgia attorney, C.M., to
represent them in the ensuing personal injury case. C.M. lacked
experience in personal injury matters, so he associated a more
experienced personal injury firm, which filed a lawsuit on behalf of
the couple (collectively referred to as “clients,” individually referred
to as “husband” and “wife”) in federal district court in Savannah in
February 2016. C.M. formally appeared as counsel of record in
September 2016. The personal injury firm completed the
substantive work on the case, and the district court entered a
pretrial order, setting trial to start on June 27, 2017. In May 2017,
C.M. became dissatisfied with the personal injury firm because he
believed that the husband had suffered a cognitive injury and
thought that the personal injury firm had failed to fully develop
evidence of damages. On the other hand, a partner from the personal
injury firm believed that C.M. wanted to remove the firm from the
case so that he could receive a larger percentage of any recoverable
fee. With his clients’ permission, C.M. terminated the services of the
6
personal injury firm, and the partner filed a motion to withdraw on
behalf of the firm, which was granted in June 2017.
In May 2017, C.M. associated his former law school classmate,
Breault, on the case. Breault assumed the role of lead counsel
knowing that the case was set for trial in June and that he only had
one month to develop additional evidence. He filed an appearance,
was admitted pro hac vice on June 5, 2017, and then immediately
associated additional lawyers to assist with research, writing, and
other legal work. Breault and C.M. decided that it was necessary to
depose the husband’s treating physician. On May 24, Breault
contacted the physician’s office and scheduled a deposition, which
Breault later cancelled. On June 7, Breault and C.M. met with the
physician at the physician’s office, where, unbeknownst to Breault
and the physician, C.M. recorded their conversation. On June 20,
Breault called the physician’s office manager about rescheduling the
deposition for a date before the trial, indicating that he would have
to subpoena the physician to appear in court if the deposition could
not be scheduled. The physician agreed to give a deposition, which
7
was set for June 23. Because of confusion arising from the
scheduling of the deposition, defense counsel contacted the
physician’s office and was told by the office manager that Breault
had been threatening towards her. As a result, on June 21, the
defendants filed a motion to revoke Breault’s pro hac vice admission
(“Defendants’ Motion to Revoke”), arguing that he had violated
provisions of the district court’s guidelines for courtroom conduct
with respect to his interactions with the office manager.
On June 22, Breault and C.M. filed a response brief in which
they incorporated portions of the recorded conversation they had
with the physician and attached a transcript of the conversation as
an exhibit.6 They also sent the audio recording of the conversation
to the district court and defense counsel. It was undisputed that the
transcript contained privileged information that Breault and C.M.
gained in their professional relationship with the clients. Yet, the
lawyers did not obtain the clients’ permission to disclose that
6 Breault testified at the disciplinary hearing before the Special Master
that C.M. and two other lawyers had agreed with Breault to include the
transcript in their response to the Defendants’ Motion to Revoke.
8
information by filing the transcript and the recording. Moreover,
Breault and C.M. indicated in their response brief that while they
understood they were “tipping the ‘playing field’” in favor of the
defendants by disclosing work product via the recording and
transcript, they felt that “the esteem and confidence of [the district
court] [were] more important.” Later at the disciplinary hearing
before the Special Master, Breault admitted to making the
disclosures public to make defense counsel look like “a disingenuous
a**hole.” The district court denied the Defendants’ Motion to Revoke
after a hearing, but specifically found that the disclosure of the
conversation was unnecessary and damaging to the plaintiffs’ case.
In other orders, the district court allowed Breault and C.M. to
add as a witness the neuropsychologist that the physician had
previously recommended, extended the time for discovery, and
postponed trial until October 30, 2017. The district court also
ordered the parties to depose the neuropsychologist by mid-August
to allow the defendants a fair opportunity to respond to his
testimony. On July 20, Breault emailed defense counsel that the
9
neuropsychologist’s deposition would occur on the morning of
August 14. On August 9, Breault responded to a defense inquiry
about the neuropsychologist’s curriculum vitae, stating that the
neuropsychologist could not appear for deposition on August 14. In
reality, Breault had never confirmed the deposition date with the
neuropsychologist. Breault advised defense counsel that he would
file a request for more time to conduct the deposition, but he never
did.
C.M. attempted to fire Breault on August 8, but he had not
received the clients’ permission to effectuate the firing. On August
16, 2017, C.M., with the clients’ permission, terminated Breault’s
representation by letter, citing as a reason the difficulties with
scheduling medical depositions. The Special Master noted that C.M.
had been in contact with a well-known plaintiff’s lawyer and that
after Breault was terminated, that lawyer became lead counsel.
Breault was upset by the termination, believed the real reason was
to deprive him of a fee, and did not believe that the clients had
approved the termination. On August 17, he appeared unannounced
10
at the clients’ home in South Carolina to try to remain on the case.
The wife texted C.M., who told Breault over the telephone to leave.
As Breault later stated in his response to another filing, he then told
the husband to seek advice from a litigation funding company before
leaving the clients’ home. After Breault left, the wife texted him
confirming that he had been terminated. After receiving the text,
Breault invited the wife to attend a “focus group” that he had
purportedly scheduled for August 23, and indicated to the wife that
he would file a notice of withdrawal the next day, but Breault failed
to file the notice.
Because of Breault’s failure to file a notice of withdrawal, on
October 4, 2017, C.M. filed on behalf of the clients a motion to revoke
Breault’s pro hac vice admission (“Plaintiffs’ Motion to Revoke”). In
that motion and Breault’s response thereto, C.M. and Breault
accused each other of misconduct. Breault also included in his
response privileged work-product and communications between
himself and the clients concerning the admissibility and credibility
of potential evidence. It was undisputed that these communications
11
contained privileged information, which Breault disclosed by filing
them with his response.
Based on these filings, the district court held a disciplinary
hearing on October 30, 2017, instead of starting the trial as
scheduled. Breault filed a notice of withdrawal on the same day. In
its ruling at the end of the hearing, the district court found that the
disclosures that Breault and C.M. had made in response to the
Defendants’ Motion to Revoke were damaging to their clients.
According to the district court, these disclosures gave the defendants
“a strategy for undermining the [plaintiffs’] case,” and defense
counsel testified that the disclosures gave him valuable crossexamination material against the plaintiffs’ experts and suggested
an easy roadmap to damage the clients’ case.
(b) Rules Violated
The State Bar argued that Breault violated Rule 1.17 by filing
a response to the Defendants’ Motion to Revoke that violated Rule
7 Rule 1.1 imposes the duty of competence on a lawyer representing a client,
meaning that “a lawyer shall not handle a matter which the lawyer knows or should
12
1.6 (a),8 and by advising the husband to seek advice from a litigation
funding company. The Special Master rejected the first argument
because he viewed the requirement of competence in Rule 1.1 “more
broadly” and observed that even if a single violation of Rule 1.6 could
also constitute a violation of Rule 1.1, Breault’s background still
qualified him to represent a client in a serious personal injury case
arising from an automobile accident. The Special Master rejected
the second argument because the State Bar had “not produced any
expert opinion evidence” to support it.
Next, the Special Master noted that the State Bar had
abandoned its claim that Breault had violated Rule 1.3,9 and that
the State Bar argued the misconduct underlying that alleged
know to be beyond the lawyer’s level of competence without associating another
lawyer who the original lawyer reasonably believes to be competent to handle the
matter in question.”
8 Rule 1.6 (a) provides, in relevant part, that “[a] lawyer shall maintain in
confidence all information gained in the professional relationship with a client,
including information which . . . would likely be detrimental to the client, unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation[.]”
9 Rule 1.3 states: “A lawyer shall act with reasonable diligence and promptness
in representing a client. Reasonable diligence as used in this rule means that a lawyer shall not without just cause to the detriment of the client in effect willfully abandon or willfully disregard a legal matter entrusted to the lawyer.”
13
violation was part of a pattern of misconduct supporting a finding
that Breault violated Rule 3.5 (d).10
The Special Master concluded that Breault violated Rule
3.5 (d) because, by failing to timely withdraw, he “effectively rewrote the District Court’s schedule with respect to his client[s’]
case,” which was unfair to the clients. The Special Master stated
that Breault’s explanation about “his decision not to withdraw and
whether and when he finally believed that his services had been
terminated strains belief.”11 Moreover, the Special Master found
that Breault violated Rule 3.5 (d) by failing to schedule and take the
neuropsychologist’s deposition by mid-August as ordered by the
district court. At the disciplinary hearing, Breault had testified that
the neuropsychologist was busy and nonresponsive. But if
scheduling the deposition was difficult, the Special Master
10 Rule 3.5 (d) provides that “[a] lawyer shall not, without regard to whether
the lawyer represents a client in the matter . . . engage in conduct intended to disrupt a tribunal.”
11 Here, the Special Master referenced a transcript from the district court,
which does not appear to be in the record before this Court. It is unclear how Breault explained his actions to the district court.
14
explained, Breault could have issued a subpoena, contacted the
district court, or filed a motion for an extension of the time for
discovery – none of which occurred. Also, the Special Master found
that Breault disrupted the litigation process by giving “opposing
counsel unequivocal factual information about the date and time of
a scheduled deposition” even though Breault never got the
neuropsychologist to firmly agree to that date. Finally, the Special
Master pointed to Breault’s failure to seek an extension of time to
take the deposition despite his promise to opposing counsel that he
would do so.12
As for Rule 1.6 (a), the Special Master found a violation in two
ways. First, the Special Master noted that Breault disclosed the
transcript and recording of the conversation with the physician in
response to the Defendants’ Motion to Revoke – which the
defendants filed due to Breault’s phone interactions with the
physician’s office manager. The Special Master noted that while
12 The Special Master does acknowledge that Breault could no longer
reschedule a deposition after August 16 because that was the date on which he was
terminated.
15
disclosing the recording helped Breault defeat the motion since the
recording lacked evidence of Breault using aggressive tactics
towards the physician, no one disputed that the recording contained
privileged information. The Special Master also stated that he
believed that if the physician had been deposed, “most of the facts
disclosed in the recording would have been forthcoming based on
[the physician’s] records alone.” Nonetheless, the Special Master
reiterated that it was improper to disclose that information without
the clients’ consent.
Breault contended that the disclosure was strategic because it
changed the case from an orthopedic case to a case with a brain
injury component. And, Breault pointed out, the district court
denied the Defendants’ Motion to Revoke, and the decision to
disclose the conversation was made by all of the clients’ attorneys,
including C.M. The Special Master rejected this argument,
reasoning that there were ways to defeat the motion without
disclosing the privileged information in the transcript and
recording, such as using redaction or asking the district court to
16
conduct an in camera review. The Special Master found that Breault
sought neither of these remedies and disclosed the information
without his client’s permission. And, the Special Master indicated
that Breault’s testimony showed he had disclosed privileged
information in order to show that defense counsel was a
“disingenuous a**hole.”
Second, the Special Master found that Breault violated Rule
1.6 by disclosing privileged information in response to Plaintiffs’
Motion to Revoke his pro hac vice status, which the plaintiffs filed
after Breault failed to withdraw. The Special Master found that
Breault’s disclosure of privileged information here was designed
solely to further his own interests and did not benefit his former
clients.
As for Rule 1.16 (a) (3),13 the Special Master found Breault in
violation by failing to timely move to withdraw as he said he would.
The Special Master recounted that C.M. delivered a termination
13 Rule 1.16 (a) (3) provides that a lawyer “shall withdraw from the
representation of a client if . . . the lawyer is discharged.”
17
letter to Breault on August 16; Breault appeared unannounced on
August 17 at the house of the clients, who told him that they did
intend to terminate his representation; and despite indicating that
he would withdraw the next day on August 18, Breault failed to file
a motion to withdraw until his disciplinary hearing before the
district court on October 30.
(c) Recommendation of Discipline
In evaluating discipline, the Special Master did not analyze
three components of the ABA Standards: (1) the duty violated, (2)
the lawyer’s mental state, and (3) the actual or potential injury to
the clients. See In the Matter of Morse, 265 Ga. 353, 354 (2) (456
SE2d 52) (1995), superseded on other grounds by Rule as stated in
Cook, 311 Ga. at 207-08 (1). Instead, he analyzed only the applicable
aggravating and mitigating factors. In aggravation, the Special
Master found that Breault had not acknowledged the wrongful
nature of his conduct or the personal nature of his actions. The
Special Master did not deem the case to involve a pattern of
misconduct because “[a]lthough there are multiple offenses, they all
18
arise in one representation.” In mitigation, the Special Master found
that Breault had no prior disciplinary offenses and that he was
inexperienced in the practice of law because he had only been
practicing for four years when his misconduct occurred. The Special
Master then indicated that he found the other aggravating and
mitigating factors as listed in the ABA Standards to be inapplicable.
Throughout his report and recommendation, the Special Master also
commented that: (1) the clients were not harmed financially and
that Breault did not steal money from them, but that (2) Breault was
angry about how C.M. treated him and how his work would go
unrewarded, and he let his anger drive and cloud his actions.14 The
Special Master recommended that Breault be suspended from the
practice of law for one month without conditions for reinstatement.
The Special Master did not cite any case law supporting a one-month
suspension as the appropriate form of discipline.
14 It is unclear whether the Special Master’s comments on anger and the lack
of stealing and financial harm factored into his recommendation of discipline, and whether or where he intended them to fit into the ABA Standards analysis. However, we mention these comments because the next Special Master may or may not elect to
analyze these comments on remand.
19
3. Review Board’s Report and Recommendation
Breault sought review by the Review Board, arguing that the
Special Master erred by recommending a one-month suspension
because clear and convincing evidence was not presented that
Breault violated any provision of the GRPC. The State Bar
responded that the Special Master’s recommendation of a onemonth suspension was appropriate.
The Review Board affirmed the Special Master’s factual
findings, legal conclusions, and recommendation of discipline. First,
it did not find clear error in the Special Master’s factual findings,
and adopted those findings and incorporated them by reference.
Next, the Review Board did not find error in the Special Master’s
conclusions of law and adopted them, stating that it weighed all of
Breault’s arguments, including Breault’s argument that his conduct
was excused by Rule 1.6 (b) (1) (iii).15 According to the Review Board,
15 Rule 1.6 (b) (1) (iii) provides that a lawyer “may reveal information covered
by paragraph (a) which the lawyer reasonably believes necessary . . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer
20
Breault argued that Rule 1.6’s exceptions excused his disclosure of
client confidential information and that his violation of Rule 1.6
ultimately benefitted the client. The Review Board found these
arguments unavailing, concluding that “[w]hether a violation of the
Rules ultimately leads to a benefit to a client does not excuse the
underlying violation,” particularly when Breault would not have
violated Rule 1.6 if he had obtained informed consent from the
clients before disclosing the privileged information. The Review
Board observed that Breault used Comment 16 to Rule 1.616 to argue
that unlimited disclosure is permitted any time a lawyer is accused
of violating the law. The Review Board rejected this argument, too,
based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client [.]”
16 Comment 16 to Rule 1.6 provides, in relevant part:
Where a legal claim or disciplinary charge alleges . . . misconduct of the
lawyer involving representation of the client, the lawyer may respond to
the extent the lawyer reasonably believes necessary to establish a
defense. . . . In any event, disclosure should be no greater than the
lawyer reasonably believes is necessary to vindicate innocence, the
disclosure should be made in a manner which limits access to the
information to the tribunal or other persons having a need to know it,
and appropriate protective orders or other arrangements should be
sought by the lawyer to the fullest extent practicable.
21
reasoning that Breault had ways to respond to the motions to revoke
while reasonably safeguarding the clients’ privileged information.
The Review Board stated that it was adopting the Special
Master’s analysis of the ABA Standards as to the duties violated,
Breault’s mental state, the potential or actual injury caused by
Breault’s misconduct,17 and the aggravating and mitigating
factors.18 The Review Board recommended that this Court suspend
Breault from the practice of law for one month with no conditions
for reinstatement.19
4. Analysis
“The primary purpose of a disciplinary action is to protect the
public from attorneys who are not qualified to practice law due to
17 The Review Board did not address the Special Master’s lack of analysis on
duty, mental state, and potential or actual injury.
18 The Review Board then discussed several aspects of Breault’s unprofessional
conduct in the proceedings before it, but because much evidence of that alleged
conduct is not in the disciplinary record and because the Board did not clearly tie its professionalism discussion to its recommendation of discipline, we do not consider it for the purposes of this opinion.
19 Though the Review Board mentioned the ABA Standards and case law on
the factors that should be considered in determining an appropriate sanction, it did not cite any authority to support imposing a one-month suspension.
22
incompetence or unprofessional conduct, but this Court is also
concerned with the public’s confidence in the profession generally.”
Cook, 311 Ga. at 213 (3) (a). The sanction imposed for disciplinary
infractions should be one that is sufficient to penalize the offender
for his wrongdoing, deter other attorneys from engaging in similar
behavior, and inform the general public that the courts will
maintain the ethics of the profession. See id. The ABA Standards
are “generally instructive as to the question of punishment,” though
“they are not controlling.” Id. See also In the Matter of Hunt, 304 Ga.
635, 640 (820 SE2d 716) (2018) (“[T]his Court relies on the [ABA
Standards] for general guidance in determining the appropriate
level of discipline”); In the Matter of Morse, 266 Ga. 652, 653 (470
SE2d 232) (1996) (“[W]e look to the American Bar Association’s
standards for guidance in determining the appropriate sanction to
impose.”). Ultimately, “the level of punishment imposed rests in the
sound discretion of this Court.” Cook, 311 Ga. at 213 (3) (a).
23
(a) ABA Standards
To properly determine the appropriate sanction for attorney
discipline, the Special Master “should look to the [ABA Standards]
for guidance.” Morse, 265 Ga. at 354 (2) (remanding case to review
panel to consider the disciplinary matter under the ABA Standards).
As we have repeatedly indicated in our prior decisions, those
standards offer several factors for consideration in imposing
discipline: “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.” Cook, 311 Ga. at 210
(2). See also Morse, 265 Ga. at 354 (2); ABA Standards at II &
III.C.3.0.
Here, although the Special Master discussed aggravating and
mitigating factors, he did not first analyze the duty violated, the
lawyer’s mental state, and any actual or potential injury. Thus, we
refrain at this point from deciding what sanctions are appropriate,
if any, and remand the case for a full analysis of the ABA Standards
24
consistent with our discussion below. That analysis, in turn, may
affect the recommendation of discipline.
(b) Duty Violated
The GRPC prescribes duties for attorneys authorized to
practice law in Georgia. See e.g., Matter of Tuggle, 317 Ga. 255, 271
(6) (a) (892 SE2d 761) (2023) (concluding that an attorney “violated
his duty of competence, as prescribed in Rule 1.1,” his “duty of
diligence, as prescribed in Rule 1.3,” and “his duties upon
termination of representation, as prescribed in Rule 1.16 (d)”
(emphasis added)); In re Skinner, 292 Ga. 640, 641 (740 SE2d 171)
(2013) (“Rule 1.6 of the [GRPC] requires a lawyer to maintain in
confidence all information gained in the professional relationship
with a client” subject to certain exceptions (emphasis added)).
The ABA Standards—though themselves not controlling, see
Cook, 311 Ga. at 213 (3) (a)—assist the Court in its determination of
sanctions by providing a non-exhaustive list of the duties explicitly
or implicitly prescribed by the GRPC and by grouping those duties
into several categories: duties that a lawyer owes to his clients;
25
duties that he owes to the general public; duties he owes to the legal
system; and duties he owes to the legal profession. See ABA
Standards at II & III.C.4.0-7.0. On remand, the Special Master
should consider which of these duties Breault may have violated by
his violations, if any, of the GRPC.
For example, the Special Master should consider the duty of
loyalty owed by a lawyer to a client, which includes the duty to
maintain client confidences. See Rule 1.6 (a); ABA Standards at II.
Rule 1.6 safeguards these duties by requiring a lawyer to obtain
informed consent before disclosing a client’s confidential
information, subject to certain exceptions. These exceptions include
Rule 1.6 (a), whereby a lawyer may disclose confidential client
information that he is “impliedly authorized [to disclose] in order to
carry out the representation,” and Rule 1.6 (b) (1) (iii), whereby a
lawyer may disclose the client’s confidential information that he
“reasonably believes [is] necessary” to defend himself against
criminal or civil claims based on his representation of the client.
26
Here, the duty to maintain client confidences, as part of a duty
of loyalty to a client, was implicated by Breault’s disclosure of
confidential client-related information in response to two motions to
revoke his pro hac vice status in the district court. Breault argued
that he was impliedly authorized to disclose the information under
Rule 1.6 (a), and that he reasonably believed that disclosing the
information was necessary to defend himself against civil or
criminal claims under Rule 1.6 (b) (1) (iii). On remand, the Special
Master should explicitly address these Rule 1.6 exceptions in
determining whether Breault violated Rule 1.6, and if he did, state
whether in doing so Breault violated the duty to maintain client
confidences and a duty of loyalty to the client.
The Special Master should also consider whether Breault
violated a lawyer’s duty to the legal system. Here, Breault’s duty to
the legal system to refrain from improper conduct was implicated by
the Special Master’s conclusion that he violated Rule 3.5 (d) by
disrupting the district court proceedings on two occasions. The
Special Master should consider whether Breault violated this duty.
27
In addition, lawyers owe duties to the legal profession,
including a duty to properly terminate representation of a client.
This duty was implicated by the Special Master’s conclusion that
Breault violated Rule 1.16 (a) (3) when he failed to promptly
withdraw from representing the clients. The Special Master should
consider whether Breault violated this duty.
We recognize that sometimes it may be apparent, even without
explicit explanation, which duty or duties were violated (and that a
duty was violated) by a Rules violation. For example, a violation of
Rule 1.6 (a)’s requirement that a lawyer “maintain in confidence all
information gained in the professional relationship with a client
[subject to exceptions],” will, likely in every case, be a violation of
the “duty” to maintain client confidences and “duty” of loyalty owed
to the client. But even if so, it is often helpful for this Court’s
determination of discipline when a Special Master explicitly uses the
framework of duty—that is, when a Special Master, for every Rule
that he or she deems violated, discusses whether that Rule violation
entails a violation of a duty to the client, to the general public, to the
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legal system, to the legal profession, or to a combination thereof.
Thus, to assist our determination of discipline, we ask the Special
Master on remand—and encourage Special Masters in general—to
use the framework of duty, even though the ABA Standards, again,
are not controlling. See Cook, 311 Ga. at 213 (3) (a).
(c) Mental State
The ABA Standards also provide helpful, albeit non-binding,
definitions of three mental states: intent, knowledge, and
negligence. See ABA Standards at III (Definitions); Tuggle, 317 Ga.
at 273-74 (6) (b) (analyzing lawyer’s mental state through the
categories of intent, knowledge, and negligence). A lawyer acts with
intent—the most culpable mental state—when he acts with the
“conscious objective or purpose to accomplish a particular result.”
ABA Standards at III. A lawyer acts with knowledge when he acts
with “conscious awareness of the nature or attendant circumstances
of the conduct but without the conscious objective or purpose to
accomplish a particular result.” Id. And a lawyer acts with
negligence—the “least culpable mental state”—when a lawyer “fails
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to be aware of a substantial risk that circumstances exist or that a
result will follow, which failure is a deviation from the standard of
care that a reasonable lawyer would exercise in the situation.” Id. at
II.
Here, although the Special Master found that Breault’s actions
were “clouded by anger,” he made no explicit findings as to Breault’s
mental state as the ABA Standards define that term. That makes it
difficult for this Court to determine appropriate discipline. Thus, to
aid our determination of discipline in this case, the Special Master
on remand should consider, based on the record, which mental
state(s) Breault acted with when he committed the Rules violations,
if any. Potential starting points in the record as to Breault’s mental
state in relation to Rule 1.6 include Breault’s testimony at the
disciplinary hearing that he “purposefully” filed the transcript of the
conversation with the physician as part of a “brilliant grand
strategy,” and his acknowledgement in his response to the
Defendants’ Motion to Revoke that by making the disclosure, he was
“tipping the ‘playing field’” in favor of the defendants.
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(d) Potential or Actual Injury
An analysis of actual or potential injury to a client is a helpful
factor for this Court to consider in ultimately determining what
sanction is appropriate for a lawyer’s violations of the GRPC, so the
Special Master should explicitly consider the actual or potential
injury suffered by the client. The ABA Standards define “[p]otential
injury” to include “harm to a client . . . that is reasonably foreseeable
at the time of the lawyer’s misconduct and which, but for some
intervening factor or event, would probably have resulted from the
lawyer’s misconduct.” ABA Standards at III (Definitions).
Here, the Special Master found that Breault’s clients were “not
financially hurt,” that Breault “did not steal money,” that “no one
raised the issue of improper disclosure” at various proceedings
before the district court, and that if the physician had been deposed,
most of the matters disclosed in the recording would have been
“forthcoming” based only on the physician’s records. But the Special
Master did not explicitly link any of these findings to a discussion of
actual or potential injury, and the Review Board purported to adopt
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the Special Master’s findings on injury even though the Special
Master had made no explicit findings.
However, the record contains evidence suggesting that
Breault’s disclosures in response to both of the motions to revoke,
may have resulted in actual or potential injury to his clients. For
example, in its ruling on the Defendants’ Motion to Revoke, the
district court found that Breault’s disclosures damaged the
plaintiffs’ case, and that defense counsel testified that the recording
of the conversation with the physician gave the defense valuable
cross-examination material against the plaintiffs’ experts. And
Breault’s response to the Plaintiffs’ Motion to Revoke could have
damaged the clients’ case by disclosing information on the credibility
and admissibility of potential plaintiff evidence. On remand, taking
into account facts such as these and the record as a whole, the
Special Master should consider whether any of Breault’s misconduct
caused actual or potential injury to the clients.
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(e) Aggravating and Mitigating Circumstances
After determining the appropriate sanction based on his
findings as to duties violated, mental state, and injury, the Special
Master should turn to the aggravating and mitigating
circumstances to determine whether the balance of those factors
warrants a departure from the appropriate sanction. See ABA
Standards at II (“[A]fter making the initial determination as to the
appropriate sanction, the court would then consider any relevant
aggravating or mitigating factors.”). The ABA Standards define
aggravation as “any considerations or factors that may justify an
increase in the degree of discipline to be imposed,” and mitigation as
“any considerations or factors that may justify a reduction in the
degree of discipline to be imposed.” Id. at III.C.9.21 & C.9.31.
Here, the Special Master considered some aggravating and
mitigating factors and found that in aggravation, Breault refused to
acknowledge the wrongful nature of his conduct. See id. at III.C.9.22
(g). The Special Master specifically declined to apply the
aggravating factor of a pattern of misconduct. See id. at III.C.9.22
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(c). In mitigation, the Special Master found only that Breault did not
have a prior disciplinary record and he was inexperienced in the
practice of law. See id. at III.C.9.32 (a) & (f).
On remand, the Special Master should reconsider the
application and balance of aggravating and mitigating factors after
and in light of his analysis of duty, mental state, and injury. See id.
at II. In other words, the Special Master should first determine an
appropriate sanction based on these three elements, and then
determine what aggravating and mitigating factors exist and
whether their balance calls for an upward or downward departure
from the appropriate sanction.
5. Conclusion
Having reviewed the record, we conclude that the Special
Master erred by failing to conduct a full analysis of the ABA
Standards before recommending that Breault receive a one-month
suspension, and the Review Board erred by adopting the Special
Master’s recommendation. We therefore reject the
Recommendations of the Review Board and the Special Master and
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remand to the Board, with direction that the Board remand this case
to a Special Master, within ten business days of the publication of
this opinion, for (1) a full analysis of the ABA Standards, including
(a) the duties violated,20 (b) Breault’s mental state, (c) the potential
or actual injury caused by Breault’s misconduct, and (d) any
aggravating or mitigating factors that might justify an upward or
downward departure from the appropriate sanction; and (2) in light
of this analysis and the record, a new recommendation as to the
appropriate discipline to be imposed, consistent with the framework
outlined in this opinion. The Special Master is directed to submit an
amended report and recommendation with additional findings of
fact and conclusions of law, and a new recommendation, within 90
days of the date of the Review Board’s order remanding the case.
After the Special Master submits the amended report and
20 Before the Special Master assesses whether Breault violated the duty
of loyalty and duty to maintain client confidences by violating Rule 1.6, the
Special Master should first analyze the two exceptions to Rule 1.6 raised by
Breault and mentioned earlier in this opinion, to determine whether Breault
violated Rule 1.6 at all.
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recommendation, both the State Bar and Breault may, if they so
desire, file exceptions with the Review Board.
Recommendation rejected and matter remanded with direction.
All the Justices concur.
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