In the Matter of David J. Farnham ( 2021 )

In the Supreme Court of Georgia
Decided: June 21, 2021
S21Y0597. IN THE MATTER OF DAVID J. FARNHAM.
PER CURIAM.
The State Bar initiated this disciplinary matter in 2019 with
the filing of a Formal Complaint, charging respondent David
Farnham (State Bar No. 255410),1 with numerous disbarable
violations of the Georgia Rules of Professional Conduct, see Bar Rule
4-102 (d), stemming from two grievances. Without holding a
hearing, the Special Master, LaVonda R. DeWitt, granted the State
Bar’s motion to strike Farnham’s answer and discovery responses as
a discovery sanction and thereafter issued a Final Report and
Recommendation, recommending that the Court disbar Farnham.
1 Farnham was admitted to the Bar in 1986 and previously received
disciplinary sanctions in the form of a public reprimand, a letter of admonition,
and two investigative panel reprimands. See In the Matter of Farnham, 300
Ga. 645, 647 (797 SE2d 84) (2017).
The Review Board, following briefing and oral argument,
recommended that this Court remand the matter to the Special
Master for the completion of discovery and consideration of the case
on the merits. We agree that a remand to the Special Master is
appropriate, but for the more limited purpose of a hearing on the
motion to strike.
The relevant procedural history is undisputed. The Bar mailed
the Formal Complaint to Farnham on April 12, 2019, and on June
14, he filed an acknowledgment of service, which was dated May 22.
Farnham filed his answer on June 25, after obtaining an extension
of time; in his answer, he denied any wrongdoing.
On August 5, the State Bar emailed Farnham and requested
that he provide dates on which he would be available for a deposition
over the next 45 days. Farnham’s assistant replied on August 7,
stating that Farnham had become very ill during the last week of
July; that Farnham’s doctor had recommended several treatments
that would prohibit his return to work until September; and that she
would be unable to schedule anything until there were further
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updates on his health. On August 12, the State Bar sent another
email requesting dates in September that Farnham would be
available for a deposition and asking Farnham to file a medical leave
of absence. One of Farnham’s employees promptly emailed the State
Bar an “Emergency Medical Leave of Absence” that included a
statement from a doctor indicating that Farnham had been in his
care since July 29 and would be able to return to work on August 26.
In response, the State Bar stated that it was willing to delay the
proceedings until the following month and requested that Farnham
provide dates that he would be available for a deposition in
September. After receiving no reply, the State Bar emailed
Farnham on August 15, stating that it was prepared to notice the
deposition for a date not covered by the medical leave if he did not
provide responses by 10:00 a.m. the following day addressing
whether there were any court dates that would conflict with a
deposition and Farnham’s preference for a location. The next
morning, Farnham’s assistant replied that the best dates for
Farnham were September 25 or 26 and that he would come to the
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State Bar’s headquarters. The State Bar then served Farnham with
discovery, including interrogatories and requests for admissions and
production of documents. Eventually, Farnham and the State Bar
agreed to set Farnham’s deposition for October 11 at the State Bar’s
headquarters, but then agreed to reschedule for October 15, and the
Bar noticed the deposition for that date.
Meanwhile, on September 8, the Special Master emailed the
parties to request a scheduling conference, and, after receiving no
response from Farnham, notified the parties on September 13 that
the conference would be held, by telephone, on September 19 at 4:00
p.m. Farnham responded on September 16, stating that his August
medical leave pushed his cases into September, making scheduling
difficult; and suggested September 20 as an alternate date for the
conference. The conference with the Special Master was held by
telephone on September 20, and during that conference, Farnham
requested that his deposition be rescheduled for November 5 and
that he be allowed an extension until October 28 to respond to the
State Bar’s outstanding discovery requests. With the State Bar’s
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agreement to those requests, the Special Master issued a scheduling
order on September 23, giving Farnham until October 28 to respond
to the discovery requests and setting the deposition for November 5
at the State Bar’s headquarters. The State Bar also formally noticed
the deposition. On October 29, Farnham filed a “Rule 5.2
Certificate,” see Unif. Superior Ct. R. 5.2 (2),2 stating that he had
served his discovery responses by mail on October 28. However, the
responses received by the State Bar were not verified and did not
include a response to the request for documents.
On November 4, at 5:58 p.m., the evening before his deposition,
Farnham emailed the State Bar, stating that he had been ill all
weekend and would not be able to appear for his deposition and that
the parties would need to modify the scheduling order to reschedule
2 Uniform Superior Court Rule 5.2 (2) provides that “[a] party serving
Interrogatories, Requests for Production of Documents, Requests for
Admission and Answers or responses thereto upon counsel, a party or a non-
party shall file with the court a certificate indicating the pleading which was
served, the date of service (or that the same has been delivered for service with
the summons) and the persons served.” This Court has not addressed whether
the Uniform Superior Court Rules apply in Bar disciplinary proceedings. See
In the Matter of Levine, 303 Ga. 284, 285 n.1 (811 SE2d 349) (2018).
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it. He indicated that his doctor would reevaluate him the following
week and suggested that the parties reschedule for another date
after November 15. The follow morning, Farnham provided to the
State Bar a doctor’s letter, which was dated November 4 and stated
that “it remains medically necessary that [Farnham] only work part
time for at least the next 2 weeks [and that he] cannot participate
in a jury trial for at least the next 2 weeks.” The State Bar
responded that it was not willing to suspend disciplinary
proceedings while Farnham continued to show up in court and
represent clients; that it intended to appear at the appointed time
and make a record; and that Farnham should present the Special
Master with any legally sufficient requests to reschedule. Farnham
responded with a lengthy email, stating that he had been quite ill,
he intended to defend himself, and he had confidence that when all
the facts were examined, the situation would appear much
differently than as alleged in the Formal Complaint. Farnham did
not appear for his deposition and did not contact the Special Master.
The State Bar went forward with the deposition, made a record of
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Farnham’s non-appearance, and offered various exhibits, including
the email threads about his non-appearance. On November 6, the
State Bar emailed the Special Master about Farnham’s failure to
appear, and although Farnham was copied on the email, he did not
respond.
On November 22, the State Bar filed its motion to strike
Farnham’s pleadings, citing Bar Rule 4-212 (c) (parties in
disciplinary matters may engage in discovery under rules applicable
in civil cases) and OCGA § 9-11-37 (providing for sanctions for
failure to comply with discovery orders and requests). After
obtaining an extension of time for responding, Farnham filed a brief
in opposition on December 26, stating that he had chronic fatigue
syndrome and thyroid issues; that as a result of Bar counsel
inappropriately providing information to the Special Master about
unrelated grievances, his symptoms flared the week before his
deposition; that he could not travel the two hours each way and sit
for a deposition on November 5; that he spent all of November 6 in
his doctor’s clinic receiving treatments; and that he was ready and
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able to sit for a deposition before January 10, 2020, when discovery
was scheduled to end, except for January 6 to 8, when he would be
out-of-town. He also asserted that he turned over to his staff full
discovery responses for mailing, including a response to the request
for documents and a signed sworn verification of his discovery
responses. He attached his response to the document request to his
brief and stated that his staff was out of the office and that he had
not been able to locate the signed verification. Additionally, he
provided details about personal difficulties that coincided with the
allegations of one of the grievances at issue here and that could be
relevant to mitigation. He cited case law supporting the proposition
that while a total failure to respond to discovery may authorize
immediate sanctions, striking pleadings is the harshest sanction,
which should be reserved for extreme cases. See Schrembs v.
Atlanta Classic Cars, Inc., 261 Ga. 182, 182-183 (402 SE2d 723)
(1991).
Without holding a hearing, the Special Master entered an
order on January 17, 2020, granting the State Bar’s motion to strike.
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In the order, the Special Master determined that Farnham’s
responses to the State Bar’s discovery requests were insufficient in
several ways; that Farnham acted willfully in failing to submit
adequate responses; that he willfully refused to be deposed; and that
his disregard of his obligations related to the disciplinary matter
were not the result of his health and medical issues but were due to
the backlog in his law practice. The Special Master concluded that
the State Bar was entitled to relief under OCGA § 9-11-37 (d) (1),
which provides that when a party fails to appear for a deposition,
answer interrogatories, or respond to document requests, a court
may impose those sanctions authorized by OCGA § 9-11-37 (b) (2)
(A)-(C), which includes the striking of pleadings. She also
determined that it was appropriate to impose the immediate
sanction of striking Farnham’s pleadings based on his willful refusal
to participate in discovery over a significant period of time and the
fact that his failure to comply was in violation of the scheduling
order. Pursuant to the order striking Farnham’s pleadings, the facts
alleged and violations charged in the formal complaint were deemed
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admitted, see Bar Rule 4-212 (a), and the Special Master concluded
that such facts and violations warranted disbarment.
The Review Board, however, in addressing the order striking
Farnham’s pleadings, noted that courts generally have been
reluctant to impose the harshest sanction without first determining
that a party’s failure to engage in discovery was willful following
notice and an opportunity to be heard. See Tenet Healthcare Corp.
v. Louisiana Forum Corp., 273 Ga. 206, 210 (538 SE2d 441) (2000)
(setting forth two-step process under OCGA § 9-11-37 for imposition
of dismissal as sanction). It concluded that the circumstances here
did not warrant the striking of Farnham’s pleadings and
recommended that this Court remand the matter to the Special
Master for the completion of discovery and consideration of the case
on the merits and that if Farnham fails to comply with discovery,
resulting in the imposition of other sanctions, the Special Master
should set a hearing on factors to consider in aggravation and
mitigation of the level of discipline that may be imposed.
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The State Bar has filed exceptions to the Review Board’s
report, arguing, in relevant part, that the Review Board lacked the
authority to recommend a remand. Instead, it asserts that this
Court must either treat the Review Board’s recommendation as a
nullity and issue our own conclusions of law based on the Special
Master’s factual findings or remand the matter to the Review Board
to either recommend the imposition of discipline or the dismissal of
the formal complaint. Farnham, in responding to the State Bar’s
exceptions, asks that the Court accept the Review Board’s
recommendation or impose a suspension of six months.
After our review of the lengthy record and the parties’
extensive briefs, we conclude that under these circumstances, a
hearing ought to be held on the State Bar’s motion to strike. As an
initial matter, we reject the State Bar’s contention that this Court’s
review of a disciplinary matter is somehow constrained. See In the
Matter of Turk, 267 Ga. 30, 31 (471 SE2d 842) (1996) (because this
Court has inherent and exclusive power to regulate the practice of
law, it exercises ultimate discretion in disciplinary proceedings); see
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also In the Matter of Wadsworth, 307 Ga. 311, 312 (835 SE2d 632)
(2019) (noting Court’s authority and discretion in bar disciplinary
matters); Bar Rule 4-218 (This Court will consider reports of Special
Master and Review Board, exceptions thereto, and responses, and
enter judgment upon the formal complaint).
Additionally, we note that the disciplinary cases in which we
have affirmed the imposition of the harshest sanction without a
hearing have involved a party’s total failure to respond to discovery
or to provide any explanation for the failure to meet his discovery
obligations, neither of which circumstance is present here. See In
the Matter of Johnson, 308 Ga. 233, 235 (838 SE2d 755) (2020)
(lawyer failed to respond in any way to discovery requests and or to
offer any explanation for the failure to respond); In the Matter of
Burgess, 293 Ga. 783, 784, 786 (748 SE2d 916) (2013) (special master
struck pleadings in six matters after respondent filed only three
timely answers, filed a petition for voluntary discipline without
producing any evidence to support contention that health and
personal information would serve to mitigate discipline, and failed
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to respond to discovery requests; in this Court, respondent did not
challenge striking of pleadings); In the Matter of Washington, 270
Ga. 60, 60 n.1 (504 SE2d 704) (1998) (special master struck answer
after respondent failed to produce requested documents and failed
to comply with two orders of the special master ordering him to
produce the documents); In the Matter of Henley, 267 Ga. 366, 367
n.4 (478 SE2d 134) (1996) (special master struck answer as sanction
for failing to respond to discovery requests that were served with
complaint even after being ordered to do so by special master). See
also In the Matter of Levine, 303 Ga. 284, 284-285 (811 SE2d 349)
(2018) (special master struck pleadings following an evidentiary
hearing on motion for sanctions for complete failure to respond to
discovery where respondent failed to attend hearing); In the Matter
of Jefferson, 307 Ga. 50, 51 (834 SE2d 73) (2019) (special master
struck pleadings following a hearing on motion for sanctions for
complete failure to respond to discovery where respondent attended
hearing but refused to offer testimony); In the Matter of Browning-
Baker, 292 Ga. 809, 810 (741 SE2d 637) (2013) (special master
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struck pleadings after respondent twice waited until day before
deposition to advise that she would not appear and failed to appear
at hearing on motion for sanctions).
Accordingly, we vacate the Special Master’s order striking
Farnham’s pleadings, the Special Master’s Report and
Recommendation, and the Review Board’s Report and
Recommendation, and we remand this matter to the Special Master
for a hearing on the State Bar’s motion to strike. If the Special
Master denies the motion to strike, the matter should proceed with
discovery and a hearing on the merits of the formal complaint. See
Bar Rule 4-213. If the Special Master again grants the motion to
strike and finds Farnham in default as a result, she should
nevertheless set a hearing to consider any matters in mitigation or
aggravation of punishment that the parties may wish to present.
See In the Matter of Nicholson, 299 Ga. 737, 738 (791 SE2d 776)
(2016) (noting that special master considered respondent’s evidence
in mitigation after denying respondent’s motion to set aside default);
In the Matter of Miller, 291 Ga. 30, 30 (727 SE2d 124) (2012) (noting
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that special master considered respondent’s evidence in mitigation
after granting State Bar’s motion for default); In the Matter of
Perkins, 255 Ga. 176, 176 (336 SE2d 254) (1985) (noting that special
master considered respondent’s evidence in mitigation after denying
respondent’s motion to open default). Compare Bar Rule 4-208.1 (b)
(unless Notice of Discipline is rejected, respondent shall be in default
and “shall have no right to any evidentiary hearing”) (emphasis
supplied).
Vacated and remanded with direction. All the Justices concur.
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