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
S23Y0579. IN THE MATTER OF BRIAN WALTON WHITESIDE.
PER CURIAM.
This disciplinary matter is before the Court on the report and
recommendation of special master Jo Carol Nesset-Sale, who
recommends that the Court accept the amended petition for voluntary
discipline filed by respondent Brian Walton Whiteside (State Bar No.
756040) after the filing of a formal complaint, see Bar Rule 4-227 (c),
and impose a three-month suspension as discipline for his violation of
various Georgia Rules of Professional Conduct (“GRPC”), see Bar Rule
4-102 (d), in two separate matters undertaken for the same client.
Neither the State Bar nor Whiteside has filed exceptions to the special
master’s report, and we agree that the imposition of a three-month
suspension is appropriate under the specific facts of this case.
According to the report and recommendation, Whiteside had a
career in law enforcement prior to becoming a member of the Bar in
1996, at which point he engaged in private practice, primarily
representing defendants charged in criminal cases. In 2018, he was
elected as the Solicitor General for Gwinnett County—a position he
held through January 1, 2023. Prior to his election, in January 2015,
Whiteside agreed to represent a friend who was in law enforcement in
a medical malpractice case that arose from the client’s December 2014
visit to the emergency room at Piedmont Newnan Hospital. In
February 2015, Whiteside sent a one-paragraph letter with the
salutation: “Piedmont Legal Staff,” demanding, on the client’s behalf,
five million dollars for “Grave Damage, Physical Harm, Mental Harm,
Sexual Dysfunction,” but including no date of medical treatment, no
information about the diagnosis or treatment, no names of the treating
professionals, and no explanation of how the client’s treatment at the
hospital caused the various general harms described. As noted, the
letter was not directed to any individual, and, although it stated that
it had been delivered by electronic mail “and/or” hand delivery, it bore
no email address or physical address to which it was purportedly sent.
Whiteside did not charge the client for this work. After sending the
letter, Whiteside told the client that he had met with the hospital’s
2
lawyers over multiple days regarding the client’s claims, but he later
admitted to the client that the statement was untrue. Over the ensuing
months and years, the client made numerous requests for information
about his legal matter but his requests went unanswered, and, finally,
in late 2018, he checked the court’s electronic docket and discovered
that no case had been filed on his behalf. He contacted Whiteside, who
responded by attempting to file a medical malpractice complaint in
Fulton County in December 2018, but Whiteside named the defendant
incorrectly and failed to include the expert affidavit required by OCGA
§ 9-11-9.1 (a). And, more importantly, the statute of limitations
already had expired on the client’s claims. Ultimately, the case was
dismissed in February 2019, but Whiteside did not advise the client of
the dismissal. Instead, the client only learned that his case had been
dismissed when he contacted the court and made an inquiry. The
special master noted Whiteside’s claim that he sent the names of
potential experts to the client so that he could hire one for the case,
but noted that there was no correspondence from Whiteside to the
client notifying him about the date that the statute of limitations
would expire or clearly advising him that his malpractice case
3
depended upon his obtaining an expert who could make the averments
required by OCGA § 9-11-9.1 (a). These failures, the special master
concluded, were the result of Whiteside not having an adequate
understanding of how to prosecute a medical malpractice claim.
In June 2015, Whiteside agreed to file and litigate a divorce
action on behalf of the same client for $450. Although Whiteside filed
the action in February 2016, he failed to serve the wife or to take any
other action with respect to the case. The client made multiple
requests for information about his divorce case, but Whiteside failed to
respond to any of those inquiries. In February 2019, the client texted
Whiteside once again asking about the status of the case and
Whiteside responded that he had been elected to be the Solicitor
General and that he was looking for an attorney to handle the divorce
case, but Whiteside never found a new attorney and never withdrew
from the representation. Eventually, the client was forced to hire
substitute counsel to represent him in the divorce case.
Noting that Whiteside admitted all of the above facts and
acknowledged that he should have declined to represent the client,
particularly in the medical malpractice case, since he did not possess
4
the requisite skills or experience to handle the case, the special master
accepted Whiteside’s admission that, during the course of his
representation of the client in both the medical malpractice case and
in the divorce case, he violated Rules 1.1 (“lawyer shall provide
competent representation to a client” and “shall not handle a matter
which the lawyer knows or should 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”), 1.3 (“lawyer shall act with reasonable diligence and
promptness in representing a client”), 1.4 (lawyer shall “reasonably
consult with the client”; “keep the client reasonably informed about the
status of [his] matter”; and “promptly comply with reasonable requests
for information”), 1.16 (d) (upon termination of representation, lawyer
shall take steps “to the extent reasonably practicable to protect a
client’s interests, such as giving reasonable notice to the client, and
allowing time for employment of other counsel”), 3.2 (“lawyer shall
make reasonable efforts to expedite litigation consistent with the
interests of the client”), and 8.4 (a) (4) (lawyer shall not “engage in
professional conduct involving dishonesty, fraud, deceit or
5
misrepresentation”) of the GRPC. The special master noted that the
maximum penalty for a violation of Rules 1.1, 1.3, and 8.4 (a) (4) is
disbarment, while the maximum penalty for a violation of Rules 1.4,
1.16 (d), and 3.2 is a public reprimand.
In evaluating the appropriate discipline, the special master first
acknowledged that this Court looks to the ABA Standards for Imposing
Lawyer Discipline (“ABA Standards”) for guidance in determining the
appropriate sanction to impose on a lawyer for his or her violations of
the GRPC, see In the Matter of Morse, 266 Ga. 652, 653 (470 SE2d 232)
(1996), and noted that under ABA Standard § 3.0, the factors to
consider in determining a sanction 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 and/or
mitigating factors. The special master concluded that most of
Whiteside’s violations implicate the duties that lawyers owe to their
clients: diligence, competence, and candor. See ABA Standards, §§ 4.4,
4.5, and 4.6. She noted that, with respect to Whiteside’s violations of
Rule 1.1, a suspension is generally appropriate when a lawyer engages
in an area of practice in which the lawyer knows he is not competent
6
and causes injury to the client. ABA Standard, § 4.52. The special
master considered Whiteside’s admissions that he had no experience
in medical malpractice cases and that he should have at least
consulted an attorney with the requisite experience before accepting
the client’s medical malpractice case. She also considered the fact that
Whiteside’s numerous mistakes in prosecuting the case ultimately led
to the dismissal of the client’s lawsuit and to the loss of his right to
pursue legal relief for any damages he suffered.
With regard to Whiteside’s violations of Rules 1.3 and 3.2, the
special master recited ABA Standard § 4.42, which provides that
suspension is generally appropriate when a lawyer knowingly fails to
perform services for a client and causes injury or potential injury to a
client, or a lawyer engages in a pattern of neglect that causes injury or
potential injury. She recited that, here, Whiteside failed to file the
medical malpractice action within the statute of limitations and failed
to serve the defendant in the divorce case.1 The special master pointed
1 The special master recited Whiteside’s assertions that he met with the
client’s wife in December 2016, but she would not acknowledge the complaint;
that his attempts to have her served failed; that the client reported that he
7
out that, regardless of whether Whiteside knowingly abandoned the
divorce case or negligently failed to give it due attention, he knowingly
did not perform the services he had agreed to undertake, and held that
his failures in these cases constituted both a knowing failure to
perform necessary services for a client and a pattern of neglect of the
client’s legal matters.
Relating to the violations of Rule 1.4, the special master recited
ABA Standard § 4.63, which provides that a reprimand is generally
appropriate when a lawyer negligently fails to provide a client with
accurate or complete information and causes injury or potential injury
to the client. She then recounted that Whiteside failed to respond to
the client’s inquires as to either of his cases; failed to explain the
statute of limitations applicable in the medical malpractice action; and
failed to inform the client that his malpractice action had been
dismissed. The special master determined that, giving Whiteside the
benefit of the doubt, these failures could be seen as negligent rather
received an occasional text or call from his estranged wife, who was periodically
homeless; and that, although the wife stated that she would file something on
her own with the court, she never did so.
8
than knowing or intentional, but that the violations were still serious
since confidence in the legal system is hurt when a client has to find
out on his own that his case had been dismissed and because the client
was injured as the result of Whiteside’s actions. With regard to the
violation of Rule 1.16 (d), the special master found that the duty
violated was one owed to the legal profession and that suspension was
the presumptive sanction when a lawyer knowingly engages in conduct
that is a violation of that duty and thereby causes injury or potential
injury to a client, the public, or the legal profession. See ABA Standard
§ 7.2. She recited that, here, Whiteside failed to give his client notice
of his withdrawal from the divorce case, or to formally withdraw from
that representation. With regard to Whiteside’s violation of Rule 8.4
(a) (4) by falsely telling his client that he had met with the hospital’s
lawyers, the special master found that Whiteside violated his duty to
his client to refrain from engaging in deceit or misrepresentation and
that a suspension is the presumptive sanction when a lawyer
knowingly deceives a client, and causes injury or potential injury to
the client. See ABA Standard § 4.62.
9
The special master then considered whether the presumptive
discipline should be enhanced (or reduced) by virtue of the existence of
aggravating or mitigating circumstances. In aggravation, the special
master found that, by his actions in these cases, Whiteside engaged in
multiple offenses and in a pattern of misconduct, and that he has
substantial experience in the practice of law. See ABA Standard § 9.22
(c), (d), (i). In mitigation, the special master noted that Whiteside had
no prior disciplinary history; that, although he took some steps in an
attempt to cover up his mistakes, he lacked a dishonest or selfish
motive (having agreed to represent the client as a favor to a fellow law
enforcement officer, charging him nothing for the medical malpractice
case and a flat fee of $450 for the divorce case); that he was
experiencing personal and emotional problems as a result of his
responsibility for caring for his dying mother out of state; that
Whiteside fully cooperated in the disciplinary process and admitted his
violations; that Whiteside had demonstrated that he possesses good
character and reputation as demonstrated by his history of serving the
public through various law enforcement positions and by the various
letters from people in the community attesting to his good character
10
and reputation;2 and that Whiteside has demonstrated remorse for his
misconduct. ABA Standard § 9.32 (a), (b), (c), (e), (g) and (l).
The special master then noted that for similar violations, this
Court has imposed sanctions that run the gamut from public
reprimand to suspension to disbarment,3 suggesting that the
appropriate sanction for such behavior is highly fact-dependent.
2 Specifically, the special master referenced letters Whiteside attached
to his amended petition from seven members of the public, two of whom were
attorneys, and all of whom attested to his honesty, good character, and
commitment to his community.
3 See In the Matter of Bell, 313 Ga. 615 (872 SE2d 290) (2022)
(disbarment, e.g., for lawyer’s failure to act diligently and adequately
communicate with client; lawyer made numerous misrepresentations to client,
exhibited a dishonest or selfish motive, and had two instances of prior
discipline and failed to respond to the Bar’s motion for summary judgment); In
Matter of Golub, 313 Ga. 686 (872 SE2d 699) (2022) (one-year suspension for
lawyer who failed to complete legal work and failed to adequately communicate
with client; one instance of prior discipline); In the Matter of Van Johnson, 313
Ga. 151 (868 SE2d 794) (2022) (accepting petition for voluntary discipline and
imposing six-month suspension for lawyer with no prior disciplinary history
who misappropriated, but repaid, client funds and who failed to perform
diligently or to adequately communicate with two clients); In the Matter of
Kirby, 312 Ga. 341 (862 SE2d 550) (2021) (accepting fourth petition for
voluntary discipline and imposing six-month suspension for lawyer, with one
prior instance of discipline, who neglected and mishandled multiple client
matters over several years); In the Matter of Gantt, 302 Ga. 3 (804 SE2d 336)
(2017) (accepting petition for voluntary discipline and imposing public
reprimand for lawyer with no prior disciplinary history, who failed to notify a
client of the dismissal of a lawsuit and failed to timely file a renewal action).
11
Noting that Whiteside had requested a public reprimand, but had
agreed to accept up to a three-month suspension from the practice of
law as discipline for his misconduct, the special master indicated that
a reprimand might have been appropriate if Whiteside’s misconduct
was solely the result of negligence, but that, here, Whiteside accepted
the malpractice case knowing that he had no relevant experience; his
false statement was knowing, if not intentional; his failure to inform
his client about the statute of limitations was knowing; his filing of the
malpractice complaint without the required affidavit and after the
statute of limitations had expired suggested that Whiteside acted
knowingly and intentionally to cover up his mistakes; and his failure
to advise his client that his malpractice action had been dismissed was
done knowingly and as part of a pattern of behavior intended to hide
his misconduct. The special master concluded that, while the knowing
and intentional nature of Whiteside’s actions rendered a reprimand an
inadequate sanction, the mitigating factors suggested that a short
suspension would be appropriate discipline. For those reasons, the
special master recommended that this Court grant Whiteside’s
12
amended petition for voluntary discipline and impose a three-month
suspension as discipline for his misconduct.
Having reviewed the record in this case, this Court agrees that a
three-month suspension is appropriate in this matter, given
Whiteside’s lack of any prior discipline, his full cooperation in these
disciplinary proceedings, and the other mitigating factors identified by
the special master. See In the Matter of Powell, 289 Ga. 215 (710 SE2d
145) (2011) (accepting petition for voluntary discipline and imposing
three-month suspension for attorney’s violations of Rules 1.3, 1.4, and
3.2; no prior disciplinary history). Because there are no conditions on
Whiteside’s reinstatement other than the passage of time, there is no
need for him to take any action either through the State Bar or through
this Court to effectuate his return to the practice of law. Instead, the
suspension based on this opinion will take effect as of the date this
opinion is issued and will expire by its own terms three months later.
Whiteside is reminded of his duties pursuant to Bar Rule 4-219 (b).
Petition for voluntary discipline accepted. Three-month
suspension. All the Justices concur.
13