In THE MATTER OF GRADY ALEXANDER ROBERTS III (Four Cases) ( 2022 )

In the Supreme Court of Georgia
Decided: August 9, 2022
S22Y0665, S22Y0666, S22Y0667, S22Y0668, IN THE MATTER OF
GRADY ALEXANDER ROBERTS III (four cases).
PER CURIAM.
These four matters are before this Court on four separate
reports and recommendations of the State Disciplinary Review
Board, each of which reviewed separate reports and
recommendations made by Special Master Catherine H. Hicks.1 The
Review Board reports recommend that respondent Grady Alexander
Roberts III (State Bar No. 609540), who has been a member of the
1 The Rules and Regulations of the State Bar of Georgia governing
disciplinary proceedings were amended on January 12, 2018, based on an
Order of the Supreme Court of Georgia. The Order provides in part that “the
former rules shall continue to apply to disciplinary proceedings commenced
before July 1, 2018[.]” Because these cases were commenced prior to July 1,
2018, they are proceeding under the former Rules. In the Matter of Podvin, 304
Ga. 378, 378 n.1 (818 SE2d 651) (2018).
Bar since 1994, be disbarred for a number of violations of the
Georgia Rules of Professional Conduct in four separate client
matters. For the reasons discussed below, we accept the
recommendation of the Review Board and disbar Roberts.
At the outset, a note about the scope of this opinion. The Bar
alleged a number of violations against Roberts in these four
disciplinary matters: State Disciplinary Board Docket (“SDBD”)
Nos. 6875, 6876, 6963, and 7027.2 But the special master and the
Review Board reached different conclusions about whether certain
Rules had been violated. And for certain other alleged violations,
even where the special master and the Review Board agreed, the
issues appear to us to be debatable. That said, from our review of
the record, it cannot be reasonably disputed that Roberts committed
numerous violations of multiple Rules, including several for which
disbarment is an available sanction, and that disbarment is the
2 In addition to these four matters, the special master was considering
seven other matters against Roberts, two of which appear to have since been
dismissed. A special master has also been appointed in five additional
disciplinary matters against Roberts. We do not consider those additional
matters here.
2
appropriate sanction in the light of these violations. So we address
here only those violations the record clearly supports. See In the
Matter of Morris, 302 Ga. 862, 864, n.3 (809 SE2d 799) (2018)
(declining to reach question of whether attorney violated Rule 8.4
(a) (3) because attorney clearly violated a number of other Rules for
which disbarment was an appropriate sanction). Specifically, we
address only the violations established in SDBD Nos. 6963 and
7027, and we do not address the allegations in SDBD Nos. 6875 and
6876.
Procedural Issues
As a threshold matter, Roberts has raised a number of
procedural objections to these disciplinary proceedings. None have
merit.
First, Roberts contends that he did not receive fair notice of the
charges against him. The formal complaints listed numerous factual
assertions followed by a recitation of the Rules that he was charged
with violating, and he contends that it was “simply impossible” to
discern which conduct supposedly established a violation of which
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Rule. Roberts is correct that he is entitled to fair notice of the
charges against him in a proceeding that could result in his
disbarment. See In re Ruffalo, 390 U.S. 544, 550 (88 SCt 1222, 20
LE2d 117) (1968). But here, “no new charges were added following
the filing of the formal complaint and [Roberts] was given ample
notice and a full opportunity to present a defense to those charges.”
In the Matter of Henley, 271 Ga. 21, 22 (3) (518 SE2d 418) (1999).
And Roberts’s assertion that it was “simply impossible” to discern
which conduct established a violation of which Rule is not supported
by a review of the formal complaints.
Next, in several related objections, Roberts contends that the
Bar failed to satisfy its burden of proof by failing to introduce
sufficient evidence of the alleged Rules violations; that it was
improper for the Bar, the special master, and the Review Board to
rely on rulings made in the underlying cases by the trial and
appellate courts; and that the Review Board failed to review the
record, instead making a blanket adoption of the special master’s
findings of fact and conclusions of law. Each of these contentions
4
fails. The record contains abundant documentation about the
underlying civil proceedings, testimony on these matters was taken
at a number of hearings, and numerous facts to which Roberts
expressly stipulated in separately filed documents were admitted
during these proceedings. A review of the special master’s orders on
summary judgment, as well as her reports and recommendations,
shows that she relied extensively on this evidence in rendering her
decisions, rather than simply relying on the contents of the various
court rulings. Similarly, the four reports and recommendations filed
by the Review Board show no sign that the Board failed to
independently review the records before it or that it simply made a
blanket adoption of the rulings made by the special master.
Finally, Roberts contends that he is entitled to constitutional
due process protections, including those recognized in Brady v.
Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963). He argues
that his “motion for discovery, inspection, production and copying of
evidence favorable to the respondent,” which he filed in the
underlying disciplinary proceedings, should have been granted. But
5
Roberts offers no authority showing that Brady applies to
disciplinary proceedings, we are aware of no case in which we have
applied Brady in any lawyer disciplinary matter before us, and Rule
4-212 (c) (which provides that “[b]oth parties to the disciplinary
proceeding may engage in discovery under the rules of practice and
procedure then applicable to civil cases in the State of Georgia”)
indicates that discovery in disciplinary proceedings is governed by
the rules of civil procedure.3 See also former Rule 4-221 (e) (2)
(generally, “the procedures and rules of evidence applicable in civil
cases” apply in disciplinary proceedings). In the alternative, Roberts
maintains that, independent of due process considerations, the
Office of General Counsel is bound by Rule 3.8, which sets out
“special responsibilities of a prosecutor,” because the Office
3 Moreover, in its response to Roberts’s underlying discovery motion, the
Bar asserted that, despite the fact that these matters had by then been pending
for some time, Roberts had not conducted the discovery to which he was
entitled, and he was using his motion as a means to sidestep his failure to
engage in the appropriate process. That fact further counsels against
concluding that these proceedings were defective because Roberts’s discovery
motion was denied.
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functions in disciplinary proceedings as a prosecutor.4 However, that
Rule applies only to prosecutors in criminal cases, and Roberts cites
no authority that supports extending it to cover the Bar’s Office of
General Counsel in a disciplinary proceeding. 5
SDBD No. 6963
The facts underlying this matter—as found by the special
master and supported by the record—are as follows.6 Roberts filed a
complaint for wrongful foreclosure on behalf of a client. The
defendants were not satisfied with Roberts’s responses to discovery
and so moved for sanctions or to compel discovery. Roberts did not
respond and instead dismissed the action. Roberts did not inform
the client of either the motion for sanctions or the dismissal of the
4 Among other things, this Rule imposes a duty to “make timely
disclosure to the defense of all evidence or information known to the prosecutor
that tends to negate the guilt of the accused or that mitigates the offense.”
Rule 3.8 (d).
5Although Roberts challenges the use of a summary judgment procedure
in SDBD Nos. 6875 and 6876, we need not address this contention given our
conclusion that disbarment is proper without regard to the dispositions in
those cases.
6See In the Matter of Cook, 311 Ga. 206, 215-16 (1) (857 SE2d 212) (2021)
(Court defers to fact-findings of the special master where they are supported
by the record).
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suit. The defendants then sought attorney fees related to their
motion to compel discovery, but Roberts again did not respond or
inform his client. The client learned about the motion through other
means.
Neither Roberts nor the client appeared for a hearing on the
request for attorney fees, and the trial court entered a substantial
award of fees against Roberts and his client, jointly and severally,
about which Roberts failed to inform his client. Roberts sought to
appeal the order on sanctions and moved to set aside the order in
the trial court, but the appeal was dismissed, and the trial court
denied the motion to set aside. Roberts did not inform his client that
the appeal had been dismissed. Roberts then continued a similar
pattern of actions and inactions, resulting in, among other things,
the imposition of more fees and the dismissal of another appeal.
Roberts yet again failed to inform his client about those.
Among other rules, the Bar alleged that Roberts’s conduct
violated Rules 1.1 (lawyer shall provide competent representation to
a client) and 1.2 (a) (lawyer shall abide by a client’s decisions
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concerning the scope and objectives of representation and shall
consult with the client as to the means by which they are to be
pursued). The maximum sanction for a single violation of either Rule
is disbarment.
The Bar alleged that Roberts violated Rule 1.1 by failing to
respond to the motions for sanctions and attorney fees, attend
hearings, or follow the proper procedures for filing appeals. Roberts
contends that he was not obligated to respond to the motions for
sanctions and fees, but he does not explain how his inaction was
competent representation. Failing to respond to a motion for
sanctions can violate Rule 1.1. See In the Matter of Hooks, 292 Ga.
781 (741 SE2d 645) (2013) (attorney who did not respond to the
opposing party’s discovery, motion to compel, or motion for sanctions
did not provide competent representation to the client). And
although Roberts insists that his appeal of the fees award was
improperly dismissed, he cites no authority to support that
conclusion, and he did not seek review of the dismissal order by
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either motion for reconsideration in the Court of Appeals or a
petition for writ of certiorari in this Court.
The Bar alleged that Roberts violated Rule 1.2 (a) by failing to
communicate with the client about matters including the motions
for sanctions and attorney fees and the judgments entered against
him, and by failing to obtain the client’s informed consent as to
Roberts’s actions and inactions in response to the motions and
judgments, which deprived the client of the ability to make informed
decisions about his cases. Roberts contends that he obtained the
client’s informed consent at the beginning of the representation and
communicated and consulted with him throughout, but the client’s
testimony in the underlying disciplinary proceedings contradicts
this assertion and establishes that Roberts failed to inform the client
about numerous matters including his dismissal of the underlying
suit, the entry of fee awards against him, and the status of case-
related matters.
10
SDBD No. 7027
According to the special master, and as shown in the record,7
in 2014 Roberts was retained by a client, who was 68 years old and
living on Social Security, to get a mortgage modification. The client
was never presented with a modification document to review and
was not updated on the status of her application. When the client
asked about the status of her loan modification, Roberts’s staff
informed her that they were waiting to hear from the mortgage
company. She eventually learned from Roberts’s staff that her loan
modification had been denied. Roberts informed the client that he
believed she had a good case and that he could help her keep her
house, and she understood that he had discovered a problem with
the mortgage paperwork that would absolve her of her mortgage
obligations altogether, although he did not explain the problem or
process to her. Later, the client received a notice of acceleration from
the mortgage lender threatening foreclosure of her home. When she
7 See Cook, 311 Ga. at 215-16 (1).
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called Roberts about the notice, he assured her that there could be
no foreclosure while the house was the subject of litigation. Despite
that assurance, the client’s home was sold in an April 2015 non-
judicial foreclosure sale. Then, without the client’s knowledge or
consent, Roberts filed a wrongful foreclosure action on the client’s
behalf, but the superior court granted motions to dismiss filed by the
defendants on several bases. Roberts never informed the client
about filing the action or the dismissal, brushing off her inquiries
about the status of her situation. She continued to make fee
payments to Roberts.
Some time later, the buyer of the client’s home filed a
dispossessory action against the client in magistrate court, to which
Roberts filed an answer and counterclaim, but after a hearing, the
court granted a writ of possession to the buyer and dismissed the
client’s counterclaim. The court also entered a monetary award
against the client and ordered that, if she elected to appeal, she
would be required to pay significant costs into the court’s registry.
Roberts failed to inform the client about the monetary award or the
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appeal-related costs, and, despite these costs, Roberts filed an
appeal to the superior court. The client received a notice of eviction,
and Roberts advised the client to file bankruptcy to forestall the
eviction. Although the client agreed to do so and paid the filing fee
to one of Roberts’s employees, she later learned that the bankruptcy
case was dismissed because of a failure to pay the filing fee. After
the appeal of the writ of possession was docketed in the superior
court, the magistrate court entered another order allowing for
execution of the writ of possession. Roberts filed an application for
discretionary appeal in the Court of Appeals, but the application was
dismissed.
Roberts then failed to appear in superior court at the hearing
on his client’s appeal from the magistrate court’s order. The superior
court entered an order dismissing the appeal, deeming the client to
have abandoned it. Roberts filed an application for discretionary
appeal in this Court, which transferred the application to the Court
of Appeals. Roberts filed a non-notarized affidavit of indigency on
his client’s behalf, but he had not discussed the affidavit with the
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client and she did not authorize its filing. Once the application was
transferred to the Court of Appeals, it was granted, but the later
appeal was dismissed because Roberts failed to file a timely notice
of appeal.8 The superior court later granted the buyer an immediate
right of possession and denied all of the client’s counterclaims, after
which Roberts again requested fees from the client. Roberts
appealed the superior court’s order, but the application for
discretionary appeal was denied. Roberts took no further action on
the client’s behalf.
Among other rules, the Bar alleged that Roberts’s conduct
violated Rules 1.1, 1.2 (a), 1.3 (lawyer shall act with reasonable
diligence and promptness in representing a client), and 1.4 (lawyer
shall reasonably consult with the client about the means by which
the client’s objectives are to be accomplished, shall keep the client
8 The Court of Appeals’ order included a statement noting Roberts’s
repeated prior untimely filings in that court and directing its clerk to transmit
a copy of the dismissal order to the Bar’s Office of General Counsel. The Court
of Appeals later issued an order revoking Roberts’s permission to practice in
that court, at which point Roberts owed it more than $23,000 in unpaid filing
fees.
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reasonably informed about the status of the matter, and shall
explain a matter to the client to the extent reasonably necessary to
permit the client to make informed decisions regarding the
representation). The maximum available sanction for a single
violation of Rule 1.3 is disbarment, while the maximum available
sanction for a single violation of Rule 1.4 is a public reprimand.
The Bar alleged that Roberts violated Rule 1.1 by failing to
follow deadlines for filing appeals, by intentionally failing to attend
hearings, and by causing his client’s bankruptcy case to be dismissed
by failing to pay the filing fee. In his exceptions, Roberts simply
states that he had the professional discretion to determine the
manner in which matters should be pursued and asserts that the
Bar failed to show that his actions were unsupported by the law. But
the record shows that the manner in which Roberts chose to pursue
these matters was not reasonable or competent and he failed to
explain how his actions constituted a reasonable exercise of
professional discretion or were supported by Georgia law. Roberts
further asserts that he did not timely receive notice of the Court of
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Appeals’ order granting the discretionary application and suggests
that the Court of Appeals could have set aside and re-entered its
order so that a notice of appeal could have been timely filed. But the
notice of appeal filed by Roberts does not mention any purported
defect in service (nor does the order granting the application, for that
matter) and there is no indication that Roberts complained of a
defect in service or sought to have the order granting the application
set aside and re-entered or to otherwise remedy the dismissal.
As for Rule 1.2 (a), the record demonstrates that Roberts failed
to consult with his client about the action for wrongful foreclosure
that he filed on her behalf. And Roberts’s communications with the
client about the appeals that he filed on her behalf did not include
consulting with the client about the means by which her objectives
were to be pursued, as Rule 1.2 (a) requires.
With respect to Rule 1.3, the record shows that Roberts failed
to diligently pursue matters for the client, abandoned certain court
filings, failed to ensure filing fees were paid, and disregarded
deadlines.
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Finally, as to Rule 1.4, Roberts failed to inform, consult with,
and explain to the client matters regarding her litigation. Before this
Court, Roberts contends that he was unable to reach the client once
she was contacted by the Bar about Roberts’s handling of her case,
but the client testified that her communication with the Bar
happened after the entirety of Roberts’s representation had
occurred. So his argument about being unable to reach the client,
even if true, does not address his failures to communicate with her
throughout the representation.
Sanction Analysis
In considering the appropriate sanction for these matters, the
Review Board applied the ABA Standards for Imposing Lawyer
Sanctions, see In the Matter of Morse, 266 Ga. 652, 653 (470 SE2d
232) (1996) (applying ABA Standards). Our review of the record
supports the Board’s conclusions in this regard, which we recount
here.
To determine the appropriate sanction after a finding of lawyer
misconduct, the ABA Standards explain that courts should consider
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the duty violated, the lawyer’s mental state, the potential or actual
injury caused by the lawyer’s misconduct, and the existing
aggravating or mitigating factors. See ABA Standard 3.0. The
Review Board determined that Roberts violated his duty to the legal
system, under ABA Standard 6.0, and violated his duties to his
client, under Standard 4.0. As for Roberts’s mental state, the Review
Board concluded that Roberts knowingly and intentionally engaged
in the Rules-violating conduct in SDBD Nos. 6963 and 7027. The
Review Board also concluded that Roberts caused actual harm to his
clients in SDBD Nos. 6963 and 7027, including the award of fees
against the client in SDBD No. 6963.
Moving to the factors in aggravation and mitigation, the
Review Board considered the following to be aggravating: that
Roberts has substantial experience in the practice of law; that he
had a dishonest or selfish motive; that his misconduct was part of a
pattern; that his misconduct involved multiple offenses; that he has
refused to acknowledge the wrongful nature of his conduct; that his
client in SDBD No. 7027 was a vulnerable victim; and that Roberts
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has demonstrated an indifference to making restitution. See ABA
Standard, 9.22 (b), (c), (d), (g), (h), (i) and (j). As for mitigating
factors, the Review Board agreed that Roberts had not been subject
to discipline before, see ABA Standard 9.32 (a), but it disagreed with
his assertions that he lacked a dishonest or selfish motive; that he
had made a full and free disclosure to the disciplinary authorities
and had demonstrated a cooperative attitude towards the
proceedings; that his character witness testimony was mitigating;
and that he had been prejudiced by a delay in the disciplinary
proceedings.
Conclusion
Having considered the record, we agree that disbarment is the
appropriate sanction in this matter. As shown above, Roberts clearly
committed violations that support disbarment: violations of Rules
1.1 and 1.2 (a) in SDBD No. 6963, and violations of Rules 1.1, 1.2 (a),
and 1.3 in SDBD No. 7027.9 Together, these violations support
9 Roberts also clearly committed lesser violations of Rule 1.4 in SDBD
No. 7027.
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disbarment, particularly given the actual harm to clients caused by
Roberts’s conduct in SDBD Nos. 6963 and 7027, multiple
aggravating factors, and only one factor—a lack of prior discipline—
in mitigation. See In the Matter of Lain, 311 Ga. 427 (857 SE2d 668)
(2021) (disbarring attorney for conduct including failing to appear
for scheduled court appearances without notifying the court in
advance, resulting in the court finding her in contempt and
assessing attorney fees against her and her client); In the Matter of
Hayes, 285 Ga. 400 (677 SE2d 132) (2009) (disbarring attorney who
failed to inform clients about status of case, that defendant made
motion for attorney fees and sanctions, or that attorney fees had
been assessed against them); In the Matter of Lenoir, 282 Ga. 311(647 SE2d 572) (2007) (disbarring attorney for failing to file
pleadings on clients’ behalf or to adequately communicate with
clients).
Thus, it is hereby ordered that the name of Grady Alexander
Roberts III be removed from the rolls of persons authorized to
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practice law in the State of Georgia. Roberts is reminded of his
duties under former Bar Rule 4-219 (c).
Disbarred. All the Justices concur, except Peterson, P .J., not
participating.
21