Classmates

The Georgia Supreme Court has rejected a proposed one-month suspension based on findings of misconduct in a federal court personal injury case and remanded for further proceedings.

The court directs that the Special Master consider and render a proposed  sanction based on the application of the ABA Standards.

The matter was referred to the Georgia Bar by a federal district court, which had imposed sanctions on Respondent and his former co-counsel C.M. 

The district court issued a sealed order disciplining Breault and his co-counsel, and it sent the order to the State Bar. In subsequent orders, the district court granted the State Bar permission to disclose the sealed disciplinary order to individuals aiding in the investigation and potential prosecution of disciplinary matters involving Breault, and allowed the State Bar to access related pleadings, exhibits, transcripts, and orders from the district court proceedings. In pertinent part, the district court concluded in the sealed disciplinary order that Breault had violated Rules 1.1, 1.3, 1.6, and 1.16 of the GRPC, and disciplined Breault by revoking his pro hac vice admission and ordering that he could reapply for admission to practice in the Southern District after six months, conditioned upon his completion of at least 30 continuing legal education credits in ethics.

C.M. “lacked experience in personal injury matters” and brought his law school classmate (Respondent) into the case to replace other counsel who had associated in the matter.

Things did not proceed well

C.M. attempted to fire Breault on August 8, but he had not received the clients’ permission to effectuate the firing. On August 16, 2017, C.M., with the clients’ permission, terminated Breault’srepresentation by letter, citing as a reason the difficulties with scheduling medical depositions. The Special Master noted that C.M. had been in contact with a well-known plaintiff’s lawyer and that after Breault was terminated, that lawyer became lead counsel. Breault was upset by the termination, believed the real reason was to deprive him of a fee, and did not believe that the clients had approved the termination. On August 17, he appeared unannounced at the clients’ home in South Carolina to try to remain on the case. The wife texted C.M., who told Breault over the telephone to leave. As Breault later stated in his response to another filing, he then told the husband to seek advice from a litigation funding company before leaving the clients’ home. After Breault left, the wife texted him confirming that he had been terminated. After receiving the text, Breault invited the wife to attend a “focus group” that he had purportedly scheduled for August 23, and indicated to the wife that he would file a notice of withdrawal the next day, but Breault failed to file the notice.

Because the withdrawal notice was not forthcoming

Because of Breault’s failure to file a notice of withdrawal, on October 4, 2017, C.M. filed on behalf of the clients a motion to revoke Breault’s pro hac vice admission (“Plaintiffs’ Motion to Revoke”). In that motion and Breault’s response thereto, C.M. and Breault accused each other of misconduct. Breault also included in his response privileged work-product and communications between himself and the clients concerning the admissibility and credibility of potential evidence. It was undisputed that these communications contained privileged information, which Breault disclosed by filing them with his response.

Based on these filings, the district court held a disciplinary hearing on October 30, 2017, instead of starting the trial as scheduled. Breault filed a notice of withdrawal on the same day. In its ruling at the end of the hearing, the district court found that the disclosures that Breault and C.M. had made in response to the Defendants’ Motion to Revoke were damaging to their clients. According to the district court, these disclosures gave the defendants “a strategy for undermining the [plaintiffs’] case,” and defense counsel testified that the disclosures gave him valuable cross-examination material against the plaintiffs’ experts and suggested an easy roadmap to damage the clients’ case.

On remand

Here, the duty to maintain client confidences, as part of a duty of loyalty to a client, was implicated by Breault’s disclosure of confidential client-related information in response to two motions to revoke his pro hac vice status in the district court. Breault argued that he was impliedly authorized to disclose the information under Rule 1.6 (a), and that he reasonably believed that disclosing the information was necessary to defend himself against civil or criminal claims under Rule 1.6 (b) (1) (iii). On remand, the Special Master should explicitly address these Rule 1.6 exceptions in determining whether Breault violated Rule 1.6, and if he did, state whether in doing so Breault violated the duty to maintain client confidences and a duty of loyalty to the client.

The Special Master should also consider whether Breault violated a lawyer’s duty to the legal system. Here, Breault’s duty to the legal system to refrain from improper conduct was implicated by the Special Master’s conclusion that he violated Rule 3.5 (d) by disrupting the district court proceedings on two occasions. The Special Master should consider whether Breault violated this duty.

Anger

Here, although the Special Master found that Breault’s actions were “clouded by anger,” he made no explicit findings as to Breault’s mental state as the ABA Standards define that term. That makes it difficult for this Court to determine appropriate discipline…Potential starting points in the record as to Breault’s mental state in relation to Rule 1.6 include Breault’s testimony at the disciplinary hearing that he “purposefully” filed the transcript of the conversation with the physician as part of a “brilliant grand strategy,” and his acknowledgement in his response to the Defendants’ Motion to Revoke that by making the disclosure, he was “tipping the ‘playing field’” in favor of the defendants.

Thus

Having reviewed the record, we conclude that the Special Master erred by failing to conduct a full analysis of the ABA Standards before recommending that Breault receive a one-month suspension, and the Review Board erred by adopting the Special Master’s recommendation. We therefore reject the Recommendations of the Review Board and the Special Master and remand to the Board, with direction that the Board remand this case to a Special Master, within ten business days of the publication of this opinion, for (1) a full analysis of the ABA Standards, including (a) the duties violated,  (b) Breault’s mental state, (c) the potential or actual injury caused by Breault’s misconduct, and (d) any aggravating or mitigating factors that might justify an upward or downward departure from the appropriate sanction; and (2) in light of this analysis and the record, a new recommendation as to the appropriate discipline to be imposed, consistent with the framework outlined in this opinion. 

(Mike Frisch)