Bad Advice

The Georgia Supreme Court disbarred an attorney

As deemed admitted, the facts show that Herbert, who has been a member of the Bar since 1975, was consulted by two individuals in October 2009  concerning their discharge from their former employer. Herbert advised these individuals concerning their discharge and further advised them to start their own company in order to continue serving their customers. In conjunction with this representation, Herbert advised these individuals to destroy physical and electronic records relating to their work for their former employer. In December 2009, the individuals’ former employer brought suit against them, and Herbert was retained to represent the individuals in this action. Herbert filed an answer and defenses, including a counterclaim, on behalf of the individuals, but failed to adequately communicate with the individuals during the course of his representation, did not devote the necessary preparation and thoroughness to his representation, did not conduct any discovery, and allowed the discovery period to elapse without responding to any discovery. In a December 2012 order in that action, the trial court found that the individuals had intentionally spoliated evidence, including the records Herbert instructed them to destroy; struck the individuals’ answer and defenses to the suit; and entered an injunction preventing the individuals from providing services or materials to customers of their former employer. Herbert advised the individuals to file an appeal as to the injunction, they agreed, and Herbert filed a notice of appeal. In the January 24, 2013 notice of appeal, Herbert indicated that, among other items, the transcript of a February 1, 2011 hearing should be included and that such had been requested from the court reporter. In a January 23, 2013 communication with his clients, Herbert indicated that he would order the transcript the next day. Despite this assurance to his clients and a February 18, 2013 letter from the clerk of the superior court indicating that no transcript had been received, Herbert failed to order or file the transcript, which was needed to advance the appeal. After it became clear to the clients in late August 2013 that Herbert had not ordered or filed the hearing transcript, Herbert was discharged from the representation.

The attorney had a record of prior discipline. (Mike Frisch)