Confidentiality Violation Draws Suspension

Litigation misconduct drew a six-month suspension by the Georgia Supreme Court of an attorney in a serious injury matter

The Special Master recounted that on October 14, 2015, a man from South Carolina suffered two breaks in his back and a skull fracture after a tractor trailer struck his truck, which caused the truck to go over the side of a bridge and into the Savannah River. The man and his wife (collectively referred to as “Clients,” individually referred to as “Husband” and “Wife”) hired a Georgia attorney, C.M., to represent them. C.M. associated lawyers from a personal injury firm, which filed a lawsuit on behalf of the Clients in the District Court for the Southern District of Georgia. However, C.M. then fired the firm and, with the clients’ approval, C.M. associated Breault to act as lead counsel in the case. On June 5, 2017, Breault was admitted pro hac vice to the District Court for the Southern District of Georgia, and the case was set for a trial on June 27, 2017.

In preparing for the trial, Breault came to believe that the Clients needed to pursue a claim based on a traumatic brain injury and learned that the Husband had been treated by a neurologist. Breault contacted the treating physician’s office manager to schedule a meeting and deposition with the physician. The office manager informed Breault that the physician would be available for a meeting on June 7, 2017, and available for a deposition on June 15, 2017. On June 7, Breault and C.M. met with the physician and, unbeknownst at the time to Breault or the physician, C.M. made an audio recording of this meeting. During this meeting, the physician described the Husband’s purported brain injury as “all kind of speculative” and made remarks casting doubt on the possible brain injury claim. Following this meeting, on June 14, 2017, Breault contacted the office manager and canceled the deposition. On June 20, 2017, Breault had another telephone conversation with the office manager regarding whether the physician would be available to testify at trial. The office manager informed Breault that the physician would not be able to testify because of his workload, and Breault responded in a threatening manner by stating that the physician would have to do a deposition or Breault would subpoena him for trial. The following day, the defendants in the suit filed a motion to revoke Breault’s pro hac vice admission because his actions violated the court’s guidelines for courtroom conduct and included with the motion an affidavit by the office manager detailing the conversation. Without discussing it with the Clients, Breault filed a response to the defendants’ motion to revoke and attached a transcript of the audio recording of the June 7 meeting. Breault also obtained the actual audio recording of the meeting from C.M. and emailed it to all counsel in the case and to the court. In his response to the defendant’s motion to revoke, Breault admitted that the recording was “attorney work product and includes many insights into how the Plaintiff[s] view every part of this case,” and that his actions “tipp[ed] the ‘playing field’ in favor of the Defendants by disclosing this work product,” but that he “fe[lt] the esteem and confidence of this Honorable Court are more important.” Later at a disciplinary hearing held by the first Special Master, Breault admitted to making the disclosures public to make the defense counsel look like “a disingenuous a**hole.” Although the district court denied the defendants’ motion to revoke, it specifically found that the disclosure of the conversation was unnecessary and damaging to the Clients’ case.

Subsequently, on June 27, 2017, the date on which the trial was originally scheduled, the district court allowed Breault to add a neuropsychologist to the Clients’ witness list and ordered that the neuropsychologist be deposed by the middle of August 2017. The addition of the neuropsychologist resulted in the district court continuing the trial from June 27 to October 30, 2017. On July 6, 7 2017, defense counsel asked Breault to provide suggested dates for the neuropsychologist’s deposition. After receiving no response from Breault, defense counsel asked Breault again to provide suggested dates and then volunteered to contact the neuropsychologist’s office regarding dates for the deposition. On July 20, 2017, Breault responded to defense counsel, stating that August 14, 2017, would work for the deposition. When defense counsel replied to ask about the time, Breault told him 10:00 a.m. However, Breault had not confirmed this date and time with the neuropsychologist. And, upon later learning that Breault had told defense counsel that the deposition had been scheduled for this date, the neuropsychologist informed the parties that he would not be available that day. In response, Breault told defense counsel that he would ask the court for more time to schedule the deposition, but he never filed the request.

On August 16, 2017, the Clients discharged Breault by a hand-delivered letter, instructing him to cease communication with them and refer all communications to C.M, and to file the appropriate 8 documents to withdraw from the case. On the following day, Breault went to the Clients’ home in South Carolina unannounced. During this visit, Breault called into question the competency of the Clients’ remaining counsel and told them that they would lose out on funding for medical treatment should he be removed from the case. After Breault left the Clients’ home, the Wife sent him a text message informing him that she did not want him to represent them. Breault acknowledged receipt of this message, and told the Wife that he would file withdrawal paperwork on the following day. However, Breault failed to file his paperwork and, instead, advised the Husband to seek legal advice from a litigation funding company and reached out to the Wife to request her to attend a focus group regarding the case.

The Clients then filed a motion to revoke Breault’s pro hac vice admission, in which they alleged that Breault had lied about scheduling the neuropsychologist’s deposition, made an unannounced visit to the Clients’ home after he had been terminated as their attorney, and had invited the Clients to attend a focus group 9 after receiving the termination letter. Fifty-four days after he had been discharged as counsel, Breault filed a response to the Clients’ motion to revoke, again disclosing confidential information that he gained in the course of his representation of the Clients. Specifically, Breault disclosed that he had a disagreement with C.M. regarding a potential $90,000 loan to pay for evaluation and treatment of the Husband, that he advised the Husband to contact a litigation funding company, and that the Husband had followed his advice and obtained an opinion from the company.

On October 11, 2017, the district court determined that the parties could not proceed to trial as scheduled because of the serious allegations raised in the Clients’ motion to revoke. Instead, the district court scheduled a disciplinary hearing regarding Breault’s conduct for October 30, 2017, which was the date the trial was supposed to commence. Following the October 30 disciplinary hearing, Breault finally filed his withdrawal paperwork, and the district court entered a Disciplinary Order, in which it found that Breault had violated several provisions of the GRPC and that his disclosures of the Clients’ protected information had been damaging to the Clients, and revoked Breault’s pro hac vice admission.

Sanction

in distinguishing Breault’s case from our recent cases concerning 1.6 (a) violations, considering the Special Master’s application of the ABA Standards, and reiterating that the maximum penalty for two of the Rules GRPC that Breault violated—Rules 1.1 and 1.6 (a)—is disbarment, we conclude that a six-month suspension is appropriate in this case.

(Mike Frisch)