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
S24Y0016. IN THE MATTER OF SHARON L. BARKSDALE.
PER CURIAM.
This disciplinary matter is before the Court on Special Master
William T. Davis’s report and recommendation. The Special Master
recommends that this Court accept the Petition for Voluntary Discipline
filed by Sharon L. Barksdale (State Bar No. 037981) in response to the
Bar’s formal complaint, see Bar Rule 4-227 (c), and that we impose a
public reprimand for Barksdale’s admitted violations of Rules 1.3 and 1.4
of the Georgia Rules of Professional Conduct (“GRPC”), found in Bar Rule
4-102 (d).1 We agree that a public reprimand is appropriate under the
circumstances of this case.
In response to the Bar’s formal complaint against her, Barksdale
filed a petition for voluntary discipline that was supported by the Bar.
1 The maximum sanction for a single violation of Rule 1.3 is disbarment,
while the maximum sanction for a single violation of Rule 1.4 is a public
reprimand.
The Special Master recounted that Barksdale admitted the following
facts in her petition.
A client retained Barksdale’s services to defend against a complaint
for modification of child custody and support filed by the child’s father.
During litigation, the superior court appointed a guardian ad litem. A
final hearing was held on July 22, 2019, during which the court heard
evidence of the father instigating unsubstantiated investigations by the
Georgia Division of Family and Children Services against the client,
starting a smear campaign against the client and her boyfriend with the
client’s employer, and behaving abusively towards the client in telephone
calls. The judge also spoke to the child privately in chambers. The court
found that there was no evidence of a material change in circumstances
to warrant a change in custody from the client to the father, and that the
client was adequately taking care of the child. The court then ordered
that the summer visitation schedule would be modified so that the client
would have the first three weeks and the final week, and the father would
have the four weeks in the middle; that the father would have visitation
over fall and spring breaks; that the father would pick the child up in
Georgia for visitation; and that the father would receive a $500 travel
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deviation in his favor on the child support worksheet. The court directed
Barksdale to prepare a proposed order and show it to opposing counsel
before the court signed it.
Barksdale did not prepare the order as directed. In October 2019,
the court’s office emailed counsel for both parties, seeking an update on
the proposed order. Barksdale did not respond to the email, but she later
called the court’s office to state that she was working on the order.
However, Barksdale did not tell the client that she had failed to prepare
and submit the order. The Special Master expressed concerns with
Barksdale’s “willful lack of communication with her client” and opined
that “[w]hile a lawyer’s discomfort in admitting a mistake to a client may
warrant stress in the lawyer, it is no excuse for not explaining the full
situation to the client.”
In March 2020, the father moved to modify the court’s oral order
from the July 2019 hearing. The father’s attorney sent service copies of
the motion and a notice of hearing to Barksdale at an incorrect address.
Thus, Barksdale never received service of the father’s motion to modify
or the notice of hearing. The court held the hearing on June 29, 2020.
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Barksdale did not appear for the hearing or inform the client about it
because she was unaware that it had been scheduled.
The trial court issued an order on the father’s motion on July 6,
2020. In the order, the court noted that Barksdale had not submitted a
proposed order, parenting plan, or child support worksheet
memorializing the court’s ruling from the July 2019 hearing. The court’s
July 2020 order was less beneficial to the client’s interests than the July
2019 ruling had been, especially as to visitation. Among other things, the
July 2020 order granted visitation to the father for every Thanksgiving
and for the first half of Christmas Day, with the client receiving visitation
only on the afternoon of Christmas Day in Virginia, and alternating
visitation for spring, fall, and winter breaks. The order also directed that
the exchange of visitation would occur at the father’s residence in
Virginia.
Neither Barksdale nor the client was aware of the July 2020 order
until July 22, 2020, when the father told the client that the child would
not be returning to Georgia but would stay in Virginia to attend school.
The client then contacted Barksdale to ask what happened in the
modification action. Barksdale told the client that she needed to “sleep
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on it” to determine how to resolve the issue. She did not file a motion for
new trial or a motion to set aside the July 2020 order. Up to this point,
Barksdale still had not told the client that she failed to submit the
proposed order in July 2019.
Barksdale admitted that she had no justifiable excuse for failing to
submit the proposed order after the July 2019 hearing. Instead, she
stated that it was because she was overwhelmed with other contested
domestic matters and was struggling to keep up with her cases.
The Special Master made a few additional observations about
Barksdale’s case. He observed that Barksdale did not blame any other
party for her actions; that she admitted that her inaction resulted in her
abandonment of the client’s matter; and that she was sincerely apologetic
to the client for the negative impact her inactions had on the outcome of
the case. The Special Master also noted that the client had retained
Barksdale through a pre-paid legal service provided by the client’s
employer, to which the client paid premiums toward legal representation,
and that the legal service paid the client’s attorney fees pursuant to a fee
arrangement between Barksdale and the legal service. The only legal fees
Barksdale received were $30 from the client for an office visit, and $1,500
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for representing the client in the modification action, which was paid by
the legal service. The only expenses paid by the client were a $750
guardian ad litem fee and $326.35 for a copy of the client’s deposition
transcript.2
Applying the ABA Standards for Imposing Lawyer Sanctions (“ABA
Standards”), the Special Master examined (1) the duty violated; (2) the
lawyer’s mental state; (3) the potential or actual injury caused by the
lawyer’s misconduct; and (4) the existence of aggravating or mitigating
factors. See In the Matter of Morse, 265 Ga. 353, 354 (2) (456 SE2d 52)
(1995). Barksdale admitted to violating Rule 1.33 by failing to promptly
prepare and present the proposed order, parenting plan, and child
support worksheet as directed by the court on July 22, 2019; failing to
communicate with the client about her delay in presenting the proposed
order to the court; and failing to collaterally attack the July 6, 2020 order
2 Barksdale noted in her petition for voluntary discipline that she – not
the client – paid for the transcript. But because she could not recall whether
the client reimbursed her, her petition stated out of an abundance of caution
that the client paid the expense.
3 Rule 1.3 provides that “[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.”
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after receiving notice of the issues caused by the father’s counsel mailing
service copies to an incorrect address. Barksdale admitted to violating
Rule 1.44 by not promptly informing the client of her failure to provide
the proposed order to the court or her failure to respond to the October
2019 email from the court; by failing to keep the client reasonably
informed about the status of her case; by failing to promptly respond to
the client’s requests for information after the discovery of the July 6, 2020
order; and by failing to promptly inform the client that she did not
prepare a collateral attack of the July 6, 2020 order.
Importantly, however, the Special Master found that Barksdale’s
conduct was not intentional. To the contrary, he found that Barksdale
4 Rule 1.4 provides in relevant part that
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance
with respect to which the client’s informed consent, as defined
in Rule 1.0 (l), is required by these rules;
(3) keep the client reasonably informed about the status of the
matter; [and]
(4) promptly comply with reasonable requests for
information[.]
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
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“appears to have been overwhelmed by her case load at the time that
these violations occurred, and she does not appear to have intended to
abandon [the client’s] case.” As to Barksdale’s failure to prepare the
proposed order after the July 2019 hearing, the Special Master credited
Barksdale’s explanation that after she obtained a favorable ruling for her
client, she intended to finalize the proposed order, but “inadvertently” let
it “slip through the cracks” while she attended to other matters. The
Special Master likewise found that Barksdale was “overwhelmed” when
she told the court in October 2019 that she was “working” on the proposed
order. And the Special Master observed that Barksdale was not properly
served with the father’s motion to modify or the notice of hearing. The
Special Master found that “all of the above factors had to collide in just
the right way for [the trial court] to issue the new order that was less
favorable” to the client. He noted that Barksdale had changed her
practice to prevent a similar “perfect storm” from affecting her and her
clients in the future.
Turning to the question of discipline, the Special Master noted that
“[r]eprimand is generally appropriate when a lawyer is negligent and
does not act with reasonable diligence in representing a client, and causes
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injury or potential injury to a client.” ABA Standard 4.43. The Special
Master found that those conditions were present here and concluded that
the presumptive penalty was a public reprimand.
The Special Master then considered factors in aggravation and
mitigation. He found in aggravation that Barksdale had substantial
experience in the practice of law and that her client was a vulnerable
victim. See ABA Standard 9.22 (h) – (i). But in mitigation, the Special
Master found that Barksdale had no prior disciplinary history and had
exhibited sincere remorse, see ABA Standard 9.32 (a), (l), and that she
had taken steps to change her practice so that what happened here would
not happen again. The Special Master commented that he was
“impressed by [Barksdale’s] willingness to accept full fault and blame for
the issues that gave rise to [the client’s] complaint.”
The Special Master briefly considered the question of restitution.
See In the Matter of Sneed, 314 Ga. 506, 510 n.2 (877 SE2d 608) (2022)
(noting that the issue of restitution is important to this Court’s review of
attorney disciplinary matters). The Special Master acknowledged that
Barksdale had not offered or made restitution to the client. But he
reasoned that it was unclear how she could do so, given that her attorney
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fees were paid by a legal service rather than by the client herself; it would
not satisfy the client if Barksdale were ordered to make restitution to the
legal service; and no financial contribution from Barksdale would reverse
the July 6, 2020 order that deprived the client of the previously ordered
custody arrangement.
Considering all of the above, the Special Master recommended that
the Court accept Barksdale’s petition for voluntary discipline and impose
a public reprimand. See In the Matter of Graham, 292 Ga. 901 (742 SE2d
735) (2013) (imposing public reprimand for lawyer who violated Rules 1.4
and 3.2; lawyer had no prior discipline and had made restitution); In the
Matter of Leslie, 300 Ga. 774 (798 SE2d 221) (2017) (imposing review
panel reprimand for lawyer who violated Rules 1.3, 1.4, and 3.2; evidence
indicated lawyer had no prior discipline, had depression following heart
surgery, and had significantly improved his law practice management);
In the Matter of Gantt, 302 Ga. 3 (804 SE2d 336) (2017) (imposing public
reprimand for lawyer who violated Rules 1.2, 1.3, and 1.4; significant
mitigating factors and no aggravating factors were present).
Having reviewed the record, we agree with the Special Master that
a public reprimand is an appropriate sanction in this matter. See In the
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Matter of Jordan, 305 Ga. 35 (823 SE2d 257) (2019) (accepting special
master’s recommendation of public reprimand based on petition for
voluntary discipline when lawyer violated Rules 1.2, 1.3, 1.4, and 1.16).
In reaching this conclusion, we accept the Special Master’s finding that
Barksdale’s conduct was negligent rather than knowing or intentional
and that several mitigating factors apply. Accordingly, we accept the
petition for voluntary discipline and direct that Sharon L. Barksdale
receive a public reprimand in accordance with Bar Rules 4-102 (b) (3) and
4-220 (c) for her admitted violations of Rules 1.3 and 1.4.
Petition for voluntary discipline accepted. Public reprimand. All the
Justices concur.
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