In re Golub

• Decision Date: 03 May 2022
• Docket Number: S22Y0687
• Citation: 313 Ga. 686,872 S.E.2d 699
• Parties: In the MATTER OF Phillip Norman GOLUB.
• Court: Georgia Supreme Court

313 Ga. 686

872 S.E.2d 699

In the MATTER OF Phillip Norman GOLUB.

S22Y0687

Supreme Court of Georgia.

Decided: May 3, 2022

Andreea N. Morrison, Assistant General Counsel, State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303, Paula J. Frederick, General Counsel, Jenny K. Mittelman, William Dallas NeSmith, III, Deputy General Counsel, State Bar of Georgia, 104 Marietta Street, N.W., Suite 100, Atlanta, Georgia 30303-2934, for Appellant.

Phillip Norman Golub, Phillip N. Golub PC, 124 Highway Avenue, Ste. B, Blackshear, Georgia 31516-0308, for Appellee.

Jack J. Helms, Jr., The Helms Law Firm, P.C., P.O. Box 537, Homerville, Georgia 31634-0537, for Other Party.

Per Curiam.

This disciplinary matter is before the Court pursuant to the report and recommendation issued by Special Master Jack Jeffrey Helms, Jr., who recommends that respondent Phillip Norman Golub (State Bar No. 300503) be suspended from the practice of law for one year with conditions on his reinstatement, based on his failure to complete a client's work, adequately communicate with her, and refund his unearned fee.

In October 2019, the State Bar filed a formal complaint¹ against Golub; Golub filed an answer; and the State Bar then filed a motion for summary judgment, to which Golub responded. Following oral argument, the Special Master granted the State Bar's motion for summary judgment and subsequently held a hearing on the issue of level of discipline. Following that hearing, the Special Master issued his report and recommendation, in which he combined his rulings on the motion for summary judgment with the recommendation of discipline. We agree with the Special Master that a one-year suspension with conditions on reinstatement is the appropriate discipline in this matter.

1. The facts.

In the report, the Special Master found the following facts to be undisputed in the record. In 2014, a client retained Golub, who has been a member of the State Bar since 1980, to represent her in a matter involving a fraudulent transfer of real property. While Golub agreed to represent the client, he did not have her sign an engagement agreement. The client was elderly and in poor health, and her condition impaired her ability to communicate. As a result, Golub primarily communicated with her son. Golub charged the client $7,500 in attorney fees related to this matter, which was paid in three installments of $2,500 over the course of two years.

In 2015, Golub filed two lawsuits on the client's behalf against several defendants – one in January and one in June. After being served with the lawsuits, some of the defendants filed motions to dismiss, and Golub filed responses. Throughout his communications with Golub, the client's son was under the impression that the defendants had not responded to the lawsuits and that the cases would be placed on the trial calendar. The defendants also served discovery requests and requested the client's deposition; however, due to the client's health, Golub did not think she could handle a deposition or engage in discovery, so he delayed her deposition and continued to extend the discovery period in both cases. Discovery in the January 2015 lawsuit was extended six times, and as of January 2017, two years after the lawsuit was filed, the parties still had not conducted discovery. Moreover, during this two-year period, Golub did not serve responses to the defendants’ written discovery requests, serve written discovery requests on the defendants, conduct depositions, file motions in the case, try to settle or otherwise conclude the case, or make any efforts to get the case on the trial calendar. Discovery in the June 2015 case also was extended several times, and as of January 2017, a year and a half after that case was filed, the parties had not conducted discovery. As in the first case, during this period of time, Golub did not serve responses to the defendants’ written discovery requests, serve written discovery requests on the defendants, conduct any depositions, try to settle or otherwise conclude the case, or make any efforts to get the case on the trial calendar.

The client's son attempted to contact Golub on numerous occasions regarding the status of his mother's cases, but Golub did not always respond to his requests and failed to inform the client or her son when the trial court set the cases for a hearing in April 2017 on the defendants’ motions to dismiss.² Golub ultimately filed voluntary dismissals without prejudice in the cases, but failed to inform the client or her son that he did so until the son contacted him in June 2017. Golub subsequently filed renewal actions in the client's cases in October 2017, but did not inform the client or her son that he had done so, and also failed to serve the defendants in the renewal actions. Prior to the refiling, in September 2017, the client passed away, although Golub was unaware of this because he did not attempt to communicate with her or her son even after he filed the renewal actions.

As a result, Golub failed to substitute a party to the lawsuits and did not file anything with the trial court regarding the client's death, and in October 2018, the defendants in one of the cases filed a suggestion of death. The defendants also filed motions to dismiss and asked the court to hold a hearing as soon as possible. Golub again filed dismissals without prejudice in both cases, and again failed to inform the son that he dismissed the lawsuits. Golub also did not do any research to determine what, if any, impact dismissing the lawsuits for a second time would have on the client's estate being able to continue to pursue her claims, and he also did not do any research to determine whether the client's estate would be prevented from refiling the lawsuits once a representative was appointed. Finally, the Special Master determined that Golub failed to provide any billing records to the client or her son; failed to refund the fee he was paid that he did not earn; and failed to complete work on the client's cases.

2. The Special Master's conclusions of law.

The Special Master stated that the State Bar alleged in its motion for summary judgment that Golub's acts and omissions violated Rules 1.2 (a), 1.3, 1.4 (a), 1.16 (d), 3.2, and 8.4 (a) (4) of the Georgia Rules of Professional Conduct. The maximum sanction for a violation of Rules 1.2, 1.3, and 8.4 (a) (4) is disbarment, while the maximum sanction for a violation of Rules 1.4, 1.16, and 3.2 is a public reprimand.

In regard to Rule 1.2 (a), the Special Master determined that a lawyer is required to consult with the client and abide by the client's decisions concerning the scope of representation. See In the Matter of Garnett , 278 Ga. 527, 528, 603 S.E.2d 281 (2004) (lawyer violated Rule 1.2 when he failed to contact client about trial date or discuss case with client prior to trial). With respect to the means by which the client's objectives are to be pursued, the Special Master further determined that a lawyer shall consult with the client as required by Rule 1.4 (a) (2) and may take such actions as impliedly authorized in order to carry out the representation. See Rule 1.2, Comment [1]. See also In the Matter of Steckbauer , 293 Ga. 893, 894, 750 S.E.2d 363 (2013) (lawyer violated Rule 1.2 by failing to consult with client and abide by her decisions). Here, the Special Master concluded that Golub violated Rule 1.2 (a) when he did not inform his client or her son about the trial calendar and when he dismissed the two lawsuits he had filed on behalf of the client without consulting her. The Special Master concluded that Golub also violated Rule 1.2 (a) when he filed renewal actions on behalf of the client without notifying her or her son that he intended to do so.

In regard to Rule 1.3, the Special Master determined that a lawyer's lack of diligence may result in prejudice to a client's interests, see, e.g., In the Matter of Shearouse , 266 Ga. 848, 848-849, 472 S.E.2d 294 (1996) (disbarring lawyer who allowed statute of limitation to expire in one client's case and failed to set aside foreclosure for another client), and that Rule 1.3 requires a lawyer to meet deadlines and appear at scheduled hearings. Moreover, the Special Master noted that Rule 1.3 Comment [3] states that "[a] client's interests often can be adversely affected by the passage of time or the change of conditions," and that even when the client's interests are not affected in substance by delay, "unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness."

The Special Master concluded that Golub violated Rule 1.3 when he failed to prosecute the lawsuits filed on behalf of his client, and that while discovery was extended, Golub failed to serve responses to the defendants’ discovery requests, did not serve written discovery requests on the defendants, did not conduct any depositions, did not file any motions, did not try to settle or otherwise conclude the cases, and did not make any efforts to get the cases on a trial calendar. The Special Master further concluded that Golub did not serve the defendants in the renewal actions or substitute a party after the client had passed away. Moreover, the Special Master concluded that Golub admitted that he failed to complete work on the client's cases. Finally, the Special Master concluded that Golub did not diligently represent his client as he took no steps to advance or attempt to resolve the cases, and when faced with motions to dismiss filed by the defendants, he simply dismissed the cases instead of defending against such motions and representing the client's interests, resulting in significant detriment to her and her cases. See, e.g., In the Matter of Graham , 306 Ga. 380, 380, 829 S.E.2d 67 (2019) (lawyer violated Rule 1.3 where he filed lawsuit on client's behalf but failed to appear at hearing resulting in lawsuit's dismissal); In the Matter of Raulin , ...