Reprimand For Failure To Submit Draft Order

A public reprimand has been imposed by the Georgis Supreme Court

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 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. 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 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 court accepted the Special Master’s proposed sanction. (Mike Frisch)