In the Matter of Daveniya Fisher ( 2021 )

In the Supreme Court of Georgia
Decided: March 1, 2021
S21Y0582. IN THE MATTER OF DAVENIYA FISHER.
PER CURIAM.
This disciplinary matter is before the Court on the report and
recommendation of Special Master Adam Marshall Hames, who
recommends that the Court accept the petition for voluntary
discipline filed by respondent Daveniya Elisse Fisher (State Bar No.
553414) after the filing of a Formal Complaint. See Bar Rule 4-227
(c). The special master further recommends that this Court accept
Fisher’s proposed discipline and impose a Review Board reprimand
for her admitted violation of Rules 1.3, 1.4 (a) (3), and 9.3 of the
Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d).
While the maximum sanction for a single violation of Rule 1.3 is
disbarment, and the maximum sanction for the other rules is a
public reprimand, we agree to accept Fisher’s request that this
matter be resolved by a Review Board reprimand, as the State Bar
and the special master recommend.
After reviewing the petition and the Bar’s response, the special
master found that Fisher, who has been a member of the Bar since
2009, was hired to represent a client in a criminal case. The client
had been arrested in March 2015, along with a number of other
individuals, and charged with possession with intent to distribute
marijuana and conspiracy. In April 2015, the district attorney filed
a civil forfeiture action against the client’s property, including her
residence and automobile. Fisher agreed to handle the forfeiture
matter as part of the criminal case for no additional fee but
explained that she could not guarantee that opposition to the
forfeiture action would result in the return of any of the property.
Fisher responded to the forfeiture matter, raising all available
defenses, and took steps to have the forfeiture matter continued
until after resolution of the criminal matter. In June 2017, a jury
convicted the client of two felony charges, and the court sentenced
her to a total of ten years to serve four.
2
Fisher was paid a separate fee to represent the client on appeal
and spoke with the client several times. She also stayed in touch
with the client’s brother as she began to work on the appeal. In
September 2017, Fisher sent the court clerk a Notice of Emergency
Leave of Absence after an immediate family member passed away.
Thereafter, Fisher received a letter from the client, indicating that
she was terminating Fisher’s services. Although Fisher claimed to
have interpreted the letter as applying to both the forfeiture matter
and the appeal, the special master noted that her assertion was
undercut by the subsequent actions she admittedly took in the
forfeiture matter. In any event, the client retained new counsel, and
Fisher spoke to that attorney and provided the new attorney with
the client’s files. As Fisher apparently never formally withdrew from
the representation, however, she continued receiving notices from
the trial court relating to both the appeal and the forfeiture action.
The forfeiture matter began appearing on hearing calendars in
February 2018 and was rescheduled multiple times at the request of
either the State or Fisher. But, beginning in September 2018, Fisher
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did not appear at multiple scheduled hearings. Although she
contended that she spoke to the State prior to three of those hearings
and understood that the hearings were to be continued, the State did
not move to continue those hearings and neither did she, so it
appeared to the court that she simply failed to appear. Ultimately,
the matter was set for a hearing on February 11, 2019, but Fisher
once again failed to appear.1 The trial court nevertheless heard the
matter and ordered the complete forfeiture of the client’s property to
the State. Although Fisher learned of that development, she did not
immediately alert the client or her family and failed to file a formal
motion to set aside or to appeal the order. Finally, Fisher failed to
respond either to the client’s grievance or to the subsequent Notice
of Investigation properly served on her by the Bar.
1 Although Fisher acknowledged that she is responsible for seeing to the
efficient operations of her law office and for the acts and omissions of her
support staff, she blamed her failure to appear at the February 11, 2019
hearing on an assistant whom she “believed” may have failed to timely relay
notice of that hearing. Fisher contended that, once she saw notice of the
February 11 hearing, it was too late to submit a conflict letter in accordance
with court rules, but stated that she orally informed the court of her conflict.
Regardless, Fisher admitted that she was responsible for the confusion and for
failing to attend the February 11 hearing.
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After the Bar filed its Formal Complaint, Fisher obtained two
extensions of time for answering that complaint and negotiated with
counsel for the State Bar. Fisher then filed the underlying petition
for voluntary discipline, admitting that she violated Rules 1.3, 1.4,
and 9.3; describing her military and professional background, her
personal history,2 and her civic involvement and pro bono work; and
detailing the steps she has taken in her practice to ensure that there
are no further errors of this nature. Acknowledging that this Court
uses the ABA Standards for Imposing Lawyer Sanctions in
determining the proper sanction Fisher argued that, under those
standards, a Review Board reprimand would be the appropriate
sanction for her conduct. In its response, the Bar did not dispute
Fisher’s recitation of her military and professional history or her
2 During the relevant time, Fisher had to devote energy and time to the
care of her ill mother (who had been the sole caregiver for Fisher’s brother, who
has schizophrenia) and to ensure that her brother was taken care of by other
family members. She was also raising her child as a single mother, while
running a solo practice. Fisher’s mother passed away in 2018. Fisher related
that the strain of her personal life coupled with running her law office
ultimately caused her to seek professional help, and that, with the help of these
professionals, she “has returned to a state of wellness.”
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civic and pro bono work; it did not contest Fisher’s asserted remorse
or lack of prior discipline; it did not object to Fisher’s requested
discipline; and it indicated its satisfaction with the steps Fisher had
taken to address the failures she attributed to her staff. It did,
however, dispute her assertion that her conduct caused no actual or
potential injury to her client.
The special master found that Fisher had violated Rules 1.3,
1.4 (a) (3), and 9.3, and noted that, although the Bar did not contest
Fisher’s expressions of remorse, he was unable to make any
determination as to Fisher’s credibility in the absence of a hearing
(although he did note that by filing a petition for voluntary
discipline, she seemed to accept responsibility for her actions, which
he found indicative of remorse). The Special Master recited that a
disciplinary sanction was meant to be “a penalty to the offender, a
deterrent to others and . . . an indication to laymen that the courts
will maintain the ethics of the profession.” In the Matter of Dowdy,
247 Ga. 488, 493 (4) (277 SE2d 36) (1981). He looked to the ABA
Standards for Imposing Lawyer Sanctions for guidance in gauging
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the appropriate punishment for Fisher’s misconduct, see In the
Matter of Morse, 266 Ga. 652, 653 (470 SE2d 232) (1996), and noted
that those standards require consideration of the duty violated, the
lawyer’s mental state, the potential or actual injury caused by the
lawyer’s misconduct, and the existence of aggravating or mitigating
factors. See ABA Standard 3.0. The Special Master found that
Fisher violated her duty of diligence and that her violations likely
arose from her negligence, which would indicate that a reprimand
generally would be appropriate. In mitigation of punishment, he
noted that Fisher had no prior discipline; that she lacked a dishonest
or selfish motive; that she was dealing with significant personal
problems related to her loved one’s medical issues at the time of her
offenses; that she ultimately had a cooperative attitude toward the
disciplinary proceedings; that she seemed to accept responsibility for
her actions, which he found indicative of remorse; and that she had
a good character and a good reputation. See ABA Standard 9.32 (a),
(b), (c), (e), (g) and (l). The Special Master agreed with the Bar that,
in aggravation, Fisher had substantial experience in the practice of
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law. See ABA Standard 9.22 (i). Given her years of experience, the
Special Master opined that Fisher should have taken better steps to
protect her client’s interests.
In terms of evaluating the harm or potential harm suffered by
the client, the Special Master noted that, based on the admissions
contained in Fisher’s petition, her absence from the February 11,
2019 hearing was, at minimum, a contributing factor to the outcome
of the forfeiture order, but he found it highly unlikely that Fisher’s
actions caused actual harm to the client. Although he agreed that
there was some potential that the forfeiture matter could have been
resolved in a manner of some benefit to the client, he reasoned that
the client would have had an uphill battle in her forfeiture action
because she was convicted of a drug conspiracy and possession with
intent to distribute. Ultimately, the Special Master noted that
whenever a lawyer fails to appear and an order is entered in her
absence, the potential for injustice and harm is strong, but he found
it relevant that, here, Fisher had taken steps to minimize any
potential future violations of these ethics rules. Given those
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findings, the Special Master concluded that a Review Board
reprimand was the appropriate punishment. See In the Matter of
Gantt, 305 Ga. 722, 723 (827 SE2d 683) (2019) (reprimand from the
Review Board’s predecessor when attorney acknowledged violating
Rules 1.2, 1.3, 1.4, and 1.5 by failing to timely perform the necessary
work on an adoption, causing a significant delay in the proceedings,
and failing to adequately communicate with the client); In the Matter
of Leslie, 300 Ga. 774, 776 (798 SE2d 221) (2017) (reprimand from
the Review Board’s predecessor for admitted violations of Rules 1.3,
1.4, and 3.2); In the Matter of Jones, 299 Ga. 736, 737 (791 SE2d 774)
(2016) (reprimand from the Review Board’s predecessor for attorney
who violated of Rules 1.3, 1.4, and 9.3 by failing to file a complaint
and accurately keep the client informed of the status of his case in
one matter and failing to file a timely, sworn answer to the Bar’s
notice of investigation of another matter).
Recognizing that the discipline requested was a result of
negotiations between the State Bar and Fisher, we agree that, under
the circumstances presented herein, a Review Board reprimand is
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an appropriate sanction for the violations identified. Therefore, we
accept Fisher’s petition for voluntary discipline and direct that she
receive a Review Board reprimand in accordance with Bar Rules 4-
102 (b) (4) and 4-220 (b) for her admitted violations of Rules 1.3, 1.4
(a) (3), and 9.3 of the Georgia Rules of Professional Conduct.
Petition for voluntary discipline accepted. Review Board
reprimand. All the Justices concur.
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