Summary Judgment And The Nobel Prize

The Georgia Supreme Court has rejected a special master’s report and recommendation proposing that partial summary judgment be imposed in an attorney discipline matter.

The special master considered the documents and affidavits filed in support of the State Bar’s motion for partial summary judgment and granted that motion, finding in essence that Tapley’s cognitive impairment warranted removing him from the practice of law. But Tapley submitted evidence creating a genuine issue of material fact that the special master erroneously disregarded, so we reject the special master’s recommendation and remand for an evidentiary hearing on Tapley’s competence and certain alleged violations of the Rules of Professional Conduct.

The issue concerning competence

the evidence shows that in February 2018, a Richmond County court held a hearing on Tapley’s motion to withdraw as counsel for a criminal defendant after the jury had been selected but before it had been sworn. At the hearing, Tapley represented to the court that he was in his 80s and that he had been practicing law for decades, but that he was no longer “physically and mentally able to adequately represent his clients.” He stated that he was “just not up to the pressure” of doing the things required to try a case; that “sometime back” he had begun to realize that he could no longer do the things he could do when he was 50 years old; that he was beginning to overlook things that he later realized might be able to help his clients; that he had trouble with dizziness; that, during jury selection, it “came home to [him]” that he could no longer hear as well as he used to; and that he was having increasing issues with stamina.

The attorney advised the court that he had current clients

After learning of the February 2018 hearing in Richmond County, chief judges of the Middle Judicial Circuit and the Oconee Judicial Circuit convened meetings with Tapley to discuss his competency and continued representation of clients in their circuits. After those meetings, each chief judge entered an order acknowledging Tapley’s agreement that he would withdraw from ongoing criminal cases and refrain from taking new cases in their judicial circuits.

Summary judgment was not permissible in light of the evidence, per this cited case

See Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75, 84 (3) (779 SE2d 334) (2015) (“‘[I]f a defendant . . . moves for summary judgment and points to the favorable testimony of a dozen winners of the Nobel Prize for Medicine . . . , but the plaintiff responds with the admissible testimony of a barely qualified medical expert . . . , the trial court must assume — as unlikely as it may be — that the jury will believe the plaintiff’s expert and disbelieve the expert array offered by the defendant.’” (citation omitted)). Therefore, we reject the special master’s recommendation as to Tapley’s competency. And we also reject the special master’s recommendation as the violations of Rules 1.1 and 1.3, because the special master’s findings were interrelated with the competency determination.

Sandy Hodson of the Augusta Journal reported

As a judge explained to jurors Wednesday why they were going home instead of hearing the evidence in a child molestation trial, he issued a scathing rebuke of the defense attorney who abandoned his client just as the trial was to begin.

What defense attorney Duston Tapley Jr. of Vidalia did was “unforgivable,” Judge Daniel J. Craig told the Richmond County Superior Court jury. “It was the worst kind of abandonment of a client this judge has ever seen.”

It is also a violation of the attorneys’ rules of conduct to abandon a client, a violation that can result in disbarment.

Tapley was guilty of several violations, Craig said. He also found out that Tapley had lied to him about where he went to school, how long he had been practicing law and even his age, Craig said.

Tapley told the judge that he didn’t feel competent to represent Kenneth Lawrence in the child molestation case and that he had been thinking that for months. But Tapley failed in his duty to Lawrence to tell him that, Craig said. Tapley had represented Lawrence since at least April 28, 2015. An attorney is duty bound not to accept a case he cannot effectively handle, Craig said.

Tapley also represents a person facing trial for murder and the child of a friend scheduled for trial Friday in Vidalia, Craig told the jury. If he isn’t competent to represent Lawrence he isn’t competent to represent anyone else charged with a crime, Craig said.

According to the State Bar of Georgia, Tapley has practiced law for 40 years.

Lawrence, 54, was indicted on April 14, 2015. He is accused of committing five sexual assault crimes against a child from April 2009 to September 2014. The victim is now 16 years old, said Assistant District Attorney Tom Watkins.

Lawrence has pleaded not guilty to the charges. On Monday, attorneys spent the day picking a jury. Testimony was scheduled to begin Wednesday morning.

Because Craig hadn’t sworn in the jury, no jeopardy was attached, he explained to the jury. It was critical because the Constitution prohibits trying someone twice for the same crime.

Craig said he was obligated to grant Tapley’s request to withdraw from the case because the Constitution also requires any person accused of a crime to have a competent attorney. Lawrence will be tried at another time with another jury.

(Mike Frisch)