In re Whiteside
| Docket Number | S23Y0579 |
| Decision Date | 31 May 2023 |
| Parties | IN THE MATTER OF BRIAN WALTON WHITESIDE |
| Court | Georgia Supreme Court |
This disciplinary matter is before the Court on the report and recommendation of special master Jo Carol Nesset-Sale, who recommends that the Court accept the amended petition for voluntary discipline filed by respondent Brian Walton Whiteside (State Bar No. 756040) after the filing of a formal complaint, see Bar Rule 4-227 (c), and impose a three-month suspension as discipline for his violation of various Georgia Rules of Professional Conduct ("GRPC"), see Bar Rule 4-102 (d), in two separate matters undertaken for the same client. Neither the State Bar nor Whiteside has filed exceptions to the special master's report, and we agree that the imposition of a three-month suspension is appropriate under the specific facts of this case.
According to the report and recommendation, Whiteside had a career in law enforcement prior to becoming a member of the Bar in 1996 at which point he engaged in private practice, primarily representing defendants charged in criminal cases. In 2018 he was elected as the Solicitor General for Gwinnett County-a position he held through January 1, 2023. Prior to his election, in January 2015, Whiteside agreed to represent a friend who was in law enforcement in a medical malpractice case that arose from the client's December 2014 visit to the emergency room at Piedmont Newnan Hospital. In February 2015, Whiteside sent a one-paragraph letter with the salutation: "Piedmont Legal Staff," demanding, on the client's behalf, five million dollars for "Grave Damage, Physical Harm, Mental Harm, Sexual Dysfunction," but including no date of medical treatment, no information about the diagnosis or treatment, no names of the treating professionals, and no explanation of how the client's treatment at the hospital caused the various general harms described. As noted, the letter was not directed to any individual, and, although it stated that it had been delivered by electronic mail "and/or" hand delivery, it bore no email address or physical address to which it was purportedly sent. Whiteside did not charge the client for this work. After sending the letter, Whiteside told the client that he had met with the hospital's lawyers over multiple days regarding the client's claims but he later admitted to the client that the statement was untrue. Over the ensuing months and years, the client made numerous requests for information about his legal matter but his requests went unanswered, and, finally, in late 2018, he checked the court's electronic docket and discovered that no case had been filed on his behalf. He contacted Whiteside who responded by attempting to file a medical malpractice complaint in Fulton County in December 2018, but Whiteside named the defendant incorrectly and failed to include the expert affidavit required by OCGA § 9-11-9.1 (a). And, more importantly, the statute of limitations already had expired on the client's claims. Ultimately, the case was dismissed in February 2019, but Whiteside did not advise the client of the dismissal. Instead, the client only learned that his case had been dismissed when he contacted the court and made an inquiry. The special master noted Whiteside's claim that he sent the names of potential experts to the client so that he could hire one for the case, but noted that there was no correspondence from Whiteside to the client notifying him about the date that the statute of limitations would expire or clearly advising him that his malpractice case depended upon his obtaining an expert who could make the averments required by OCGA § 9-11-9.1 (a). These failures, the special master concluded, were the result of Whiteside not having an adequate understanding of how to prosecute a medical malpractice claim.
In June 2015, Whiteside agreed to file and litigate a divorce action on behalf of the same client for $450. Although Whiteside filed the action in February 2016, he failed to serve the wife or to take any other action with respect to the case. The client made multiple requests for information about his divorce case, but Whiteside failed to respond to any of those inquiries. In February 2019, the client texted Whiteside once again asking about the status of the case and Whiteside responded that he had been elected to be the Solicitor General and that he was looking for an attorney to handle the divorce case, but Whiteside never found a new attorney and never withdrew from the representation. Eventually, the client was forced to hire substitute counsel to represent him in the divorce case.
Noting that Whiteside admitted all of the above facts and acknowledged that he should have declined to represent the client, particularly in the medical malpractice case, since he did not possess the requisite skills or experience to handle the case, the special master accepted Whiteside's admission that, during the course of his representation of the client in both the medical malpractice case and in the divorce case, he violated Rules 1.1 (), 1.3 ("lawyer shall act with reasonable diligence and promptness in representing a client"), 1.4 (lawyer shall "reasonably consult with the client"; "keep the client reasonably informed about the status of [his] matter"; and "promptly comply with reasonable requests for information"), 1.16 (d) (upon termination of representation, lawyer shall take steps "to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, and allowing time for employment of other counsel"), 3.2 ("lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client"), and 8.4 (a) (4) (lawyer shall not "engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation") of the GRPC. The special master noted that the maximum penalty for a violation of Rules 1.1, 1.3, and 8.4 (a) (4) is disbarment, while the maximum penalty for a violation of Rules 1.4, 1.16 (d), and 3.2 is a public reprimand.
In evaluating the appropriate discipline, the special master first acknowledged that this Court looks to the ABA Standards for Imposing Lawyer Discipline ("ABA Standards") for guidance in determining the appropriate sanction to impose on a lawyer for his or her violations of the GRPC, see In the Matter of Morse, 266 Ga. 652, 653 (470 S.E.2d 232) (1996), and noted that under ABA Standard § 3.0, the factors to consider in determining a sanction include the duty violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct, and the existence of aggravating and/or mitigating factors. The special master concluded that most of Whiteside's violations implicate the duties that lawyers owe to their clients: diligence, competence, and candor. See ABA Standards, §§ 4.4, 4.5, and 4.6. She noted that, with respect to Whiteside's violations of Rule 1.1, a suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he is not competent and causes injury to the client. ABA Standard, § 4.52. The special master considered Whiteside's admissions that he had no experience in medical malpractice cases and that he should have at least consulted an attorney with the requisite experience before accepting the client's medical malpractice case. She also considered the fact that Whiteside's numerous mistakes in prosecuting the case ultimately led to the dismissal of the client's lawsuit and to the loss of his right to pursue legal relief for any damages he suffered.
With regard to Whiteside's violations of Rules 1.3 and 3.2 the special master recited ABA Standard § 4.42, which provides that suspension is generally appropriate when a lawyer knowingly fails to perform services for a client...
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