In The Matter Of Nerrylle Manning-wallace.

• Decision Date: 17 May 2010
• Docket Number: No. S10Y0981.,S10Y0981.
• Citation: 695 S.E.2d 237,287 Ga. 223
• Parties: In the Matter of Nerrylle MANNING-WALLACE.
• Court: Georgia Supreme Court

287 Ga. 223

695 S.E.2d 237

In the Matter of Nerrylle MANNING-WALLACE.

No. S10Y0981.

Supreme Court of Georgia.

May 17, 2010.

Paula J. Frederick, General Counsel State Bar, for State Bar of Georgia.

PER CURIAM.

This matter is before the Court on Respondent Nerrylle Manning-Wallace's petition for voluntary discipline, filed after the issuance of a Formal Complaint and appointment of a special master. In her petition Manning-Wallace requests imposition of a Review Panel reprimand for her violations of Rules 3.3(a)(4) and 3.4(b)(1) of the Georgia Rules of Professional Conduct, see Bar Rule 4-102(d). The State Bar recommended that the special master approve the petition, which the special master did.

The facts show that Manning-Wallace was injured in an automobile accident in 2003 and underwent physical therapy. She filed a claim pro se against the other driver and at the 2006 trial Manning-Wallace offered into evidence two documents she had produced previously to the other driver's insurance company. One was an “Initial Evaluation” form from the therapist and the other was an account statement from the therapist listing treatment from July 29, 2003 to October 15, 2003. A representative from the therapist's office testified at trial that they had no such documents in their records, that Manning-Wallace was not listed on the sign-in sheets for those dates, and that the statement was not a bill from their office. In her petition, although Manning-Wallace admits that the documents were fabricated, that she knew or should have known that the documents were fabricated and that her conduct violated Rules 3.3 and 3.4, she nevertheless denies “creating” the fabricated documents.

Looking at the punishment this Court has imposed for the intentional creation of false documents to deceive a court and harm another party, we held in In the Matter of Dogan, 282 Ga. 783, 653 S.E.2d 690 (2007), that disbarment was appropriate because the lawyer was held in criminal contempt by the trial court and defaulted in the disciplinary proceeding. In another case where the lawyer fabricated what purported to be an order from a federal appellate court, the punishment was an Investigative Panel reprimand, see In the Matter of Rowan, State Disciplinary Board Docket No. 4194 (no longer confidential due to subsequent disciplinary proceedings, see Bar Rule 4-208), and in a similar case where the lawyer forged a judge's signature on an affidavit of garnishment to deceive his client but which was not submitted to the court or other party, the Court imposed a 30-day suspension. See In the Matter of Bagley, 267 Ga. 311, 477 S.E.2d 834 (1996).

Here, having reviewed the record, it does not appear that a Review Panel reprimand is the appropriate level of discipline in this case. Therefore, the Court hereby rejects Manning-Wallace's Petition for Voluntary Discipline.

Voluntary petition rejected.

All the Justices concur.

NAHMIAS, Justice, concurring.

In this disciplinary matter, attorney Nerrylle Manning-Wallace now admits that she “knew or should have known” that two documents she offered into evidence at a jury trial in superior court, and previously disclosed to her opposing party in discovery, were fabricated. To make matters worse, the falsified documents were not submitted on behalf of a client, but rather in a lawsuit that Manning-Wallace filed pro se, seeking damages for purported treatment of injuries she had sustained in an automobile accident. In other words, she intended to profit directly and personally from the false information she provided to her opponent and the court. Remarkably, the State Bar recommends that Manning-Wallace's petition for voluntary discipline, which proposes that a Review Panel reprimand is the appropriate sanction for this misconduct, be accepted.

Today the Court properly rejects that petition, but it does so in a brief opinion that could be read to suggest that our only concern is with the level of discipline proposed in the petition. I write separately to discuss numerous errors and misconceptions that I see in the State Bar's analysis of this matter. My hope is that, by identifying these issues, they will not be repeated as the Bar continues to address this case.

1. Among the most important ethical requirements for Georgia lawyers is the duty of candor to the courts in which they appear, as set forth in Rule 3.3 of the Georgia Rules of Professional Conduct, see Bar Rule 4-102(d). That rule provides specifically that “[a] lawyer shall not knowingly ... offer evidence that the lawyer knows to be false.” Rule 3.3(a)(4). As the comments to Rule 3.3 clearly explain, the lawyers' obligation not to pollute our tribunals with false evidence is so strong that it may trump the wishes and interests of their clients and even the attorney-client privilege.¹ Lawyers owe a similar duty of fairness to opposing parties and their counsel, which specifically includes the obligation not to “falsify evidence.” Rule 3.4(b)(1). This is one of the prohibitions that secures “[f]air competition in the adversary system.” Rule 3.4, Comment [1]. The maximum penalty for violation of both Rule 3.3 and Rule 3.4 is disbarment.

2. A more detailed discussion of the record will give context to many of my concerns about this case. This matter arises from an automobile accident involving Manning-Wallace on July 25, 2003. According to the State Bar and the record, the following facts are undisputed. On the date of the accident, Manning-Wallace was treated in an emergency room for muscle strain, soreness, and a headache. At the time, she was undergoing physical therapy for a problem that predated the accident. Her last treatment at the therapy clinic for that unrelated problem was scheduled for July 29, 2003.

Manning-Wallace filed a claim seeking damages from the other driver, who was insured by State Farm. The State Farm adjuster asked for documentation of her injuries and medical treatment. Among other things, Manning-Wallace provided the insurance company with the two documents at issue: an “Initial Evaluation” form from the therapy clinic, setting forth detailed information including a diagnosis and treatment plan for neck and back pain; and an account statement dated June 25, 2005, listing the type of and charge for treatments she received at the clinic on ten separate dates between July 29 and October 14, 2003, in the total amount of $630.

After Manning-Wallace was unable to settle her claim with State Farm, she filed a pro se lawsuit in Gwinnett County Superior Court in June 2005. During discovery she relied upon and referenced the two clinic documents. At the jury trial of the case in June 2006, Manning-Wallace introduced both documents into evidence in support of her claim of injuries and medical expenses due to the automobile accident. The defendant, however, called a records custodian from the clinic to testify that the clinic's records did not include either document, that the clinic had no record of Manning-Wallace receiving treatment after July 29, 2003 (the date of her last appointment for the pre-existing problem), that her name did not appear on the sign-in or sign-out sheets for any of the ten days listed on the purported account statement, and that the account statement was not a bill from the clinic, although it was similar in form and content. The Initial Evaluation form that Manning-Wallace had offered into evidence appears to be identical to a similar document that she received during her earlier treatment at the clinic, with only the date and diagnosis being changed. The trial jury, not surprisingly, returned a verdict for the defendant.

A grievance was filed with the State Bar in July 2008, and on February 12, 2009, the Bar filed a formal complaint against Manning-Wallace. In her response, which was filed pro se, she denied knowledge that the two clinic documents were fabricated. She also claimed that she could “neither deny nor admit” that she had offered the documents into evidence at trial. She further claimed that she “has been completely candid about all aspects of her person, life, activities, injuries, and the medical care received before and after the car accident.”

However, a few months later, in a petition for voluntary discipline seeking a Review Panel reprimand, Manning-Wallace admitted that the two documents were in fact fabricated, that she produced the medical record and medical bill to document her treatment by the therapy clinic, that at the time she used the documents as evidence “she knew or should have known” that the documents were fabricated, and that her conduct violated Rules 3.3 and 3.4. She denied, however, creating the fabricated documents, claiming that she received them from the clinic. The State Bar recommended that the special master approve the petition, which the special master did.

3. The State Bar asserts that numerous mitigating factors are present in this case. The majority opinion does not discuss those factors, but that silence should not be taken as tacit endorsement. Because it will be important for the State Bar to correctly view these factors as this case proceeds (and in other disciplinary cases raising similar issues), I will review each of the purported mitigating factors, as well as several aggravating factors that the State Bar does not mention.

First, the Bar notes that Manning-Wallace had no prior disciplinary history. That is a valid mitigating factor.

Second, the Bar asserts that Manning-Wallace has cooperated with the General Counsel's Office and the Investigative Panel during the investigation of this matter. I would give little weight to this factor, as it is not clear from the record what cooperation, if any, has been requested. What is clear is that in her pro se response to the formal complaint, Manning-Wallace denied that the two clinic documents were fabricated and claimed that she could not admit or deny that she had offered the documents into evidence at...