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: October 11, 2023
S23Y0635. IN THE MATTER OF DAVID CARLETON HEAD.
PER CURIAM.
This disciplinary matter is before the Court on a Notice of
Discipline seeking a public reprimand for David Carleton Head
(State Bar No. 341467), based on his abandonment of a client.
According to the Bar’s notice of service, Head, who has been a
member of the Bar since 1990, was served personally with the Notice
of Discipline. However, Head failed to file a Notice of
Rejection. Therefore, he is in default, has waived his right to an
evidentiary hearing, and is subject to such discipline and further
proceedings as may be determined by this Court. See Bar Rule 4-208.1 (b). However, because the Bar fails to describe several
instances of prior discipline that Head received, and that the Bar
cites as aggravating factors, we reject the Notice of Discipline.
The facts, deemed admitted by Head’s default, are as follows.
In June 2020, Head agreed to represent a client in a criminal matter.
Head received a fee of $1,500 from the client, filed a motion for bond
on the client’s behalf, and represented the client at two bond
hearings. Head’s representation of the client ended on June 1, 2021,
but despite being informed by the client that the client would be
unable to obtain the services of a public defender until Head
withdrew, Head failed to take any action to effectuate such a
withdrawal until December 8, 2021. Head also failed to respond to
numerous requests between June 1, 2021 and December 8, 2021 for
updates regarding whether he had moved to withdraw. The client
was finally able to obtain the services of a public defender on
January 14, 2022.
The Bar has alleged that, by his misconduct, Head violated the
following provisions of the Georgia Rules of Professional Conduct
(“GRPC”): (1) Rule 1.3,1 by failing to timely withdraw when his
1 Rule 1.3 requires that an attorney “act with reasonable diligence and
promptness in representing a client.” The maximum sanction for a single
violation of this Rule is disbarment.
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representation was terminated by the client; (2) Rule 1.4 (a) (4),2 by
failing to respond to numerous requests by the client for information
regarding whether Head had withdrawn; and (3) Rules 1.16 (a) (3),3
1.16 (c),4 and 1.16 (d),5 by failing to timely withdraw after the client
had informed Head that withdrawal was necessary in order for the
client to be able to obtain the services of a public defender. The Bar
then stated that Head had been subject to discipline on three prior
occasions, receiving Investigative Panel reprimands on April 13,
2007, and August 15, 2008, and a letter of admonition on August 6,
2009.
2 Rule 1.4 (a) (4) requires that an attorney “promptly comply with
reasonable requests for information.” The maximum sanction for a single
violation of this Rule is a public reprimand.
3 Rule 1.16 (a) (3) requires that an attorney withdraw from the
representation of a client if the attorney is discharged. The maximum sanction
for a single violation of this Rule is a public reprimand.
4 Rule 1.16 (c) requires that, “[w]hen a lawyer withdraws it shall be done
in compliance with applicable laws and rules.” The maximum sanction for a
single violation of this Rule is a public reprimand.
5 Rules 1.16 (d) requires that, “[u]pon termination of representation, a
lawyer shall take steps to the extent reasonably practicable to protect a client’s interests.” The maximum sanction for a single violation of this Rule is a public
reprimand.
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Moving to the guidance provided by the ABA Standards in
assessing the appropriate level of discipline, the Bar stated that,
under ABA Standard 4.43, a reprimand is the presumptively
appropriate sanction where a lawyer has been negligent, has not
acted with reasonable diligence in representing a client, and causes
injury or potential injury. The Bar asserted that Head had been
negligent in failing to promptly move to withdraw, which caused a
delay in the client’s ability to obtain the services of a public defender,
and had failed to act with reasonable diligence in failing to respond
to the client’s requests for information regarding the withdrawal.
Under ABA Standard 7.3, a reprimand is the presumptively
appropriate sanction where a lawyer has negligently engaged in
conduct that violates his duties as a professional, and which has
caused injury or potential injury to a client, the public, or the legal
system. As for this Standard, the Bar again noted that Head acted
negligently in failing to timely withdraw, which caused a delay in
the client’s ability to obtain the services of a public defender. The
Bar concluded that two aggravating factors were present: that Head
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has substantial experience in the practice of law, see ABA Standard
9.22 (i), and that Head had previously been subject to discipline, see
ABA Standard 9.22 (a).The Bar concluded that no mitigating factors
were applicable and recommended that Head receive a public
reprimand, citing several cases in support of such a level of
discipline. See In the Matter of Fisher, 311 Ga. 77 (855 SE2d 640)
(2021); In the Matter of Woodward, 313 Ga. 112 (868 SE2d 231)
(2022); In the Matter of Robinson, 288 Ga. 30 (701 SE2d 142) (2010).
Despite Head’s default, we conclude that it would not be
appropriate to move forward with the sanction recommended by the
Bar. Unfortunately, it is not clear from the Bar’s filing how
aggravating Head’s prior disciplinary offenses should be, as the Bar
has provided no information regarding the misconduct that led to
the three cited prior instances of discipline imposed on Head.
Because we lack that information, we cannot determine to what
extent these prior disciplinary matters should be aggravating as to
the appropriate level of discipline to be imposed here.
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Under Rule 4-208.1, we may decline to impose discipline that
varies from the Bar’s recommendation, and we may instead reject
the Bar’s Notice of Discipline. See In the Matter of Wadsworth, 307
Ga. 311 (835 SE2d 632) (2019). Considering these precedents, and
given the state of the record before us, we reject the Notice of
Discipline. In doing so, we advise the Bar that any future attempts
to resolve Head’s disciplinary matter should provide adequate
context to his previous disciplinary proceedings to allow for an
assessment of their impact on this matter, if any. Additionally, we
caution the Bar that, despite Head’s default, should the Bar seek to
impose a more serious sanction on Head than the one sought here,
he should be given a renewed opportunity to respond to any such
filing by the Bar.
Notice of Discipline rejected. All the Justices concur.
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