In the Matter of Edward Shuff Cook ( 2021 )

In the Supreme Court of Georgia
Decided: April 5, 2021
S20Y1501. IN THE MATTER OF EDWARD SHUFF COOK.
PER CURIAM.
This disciplinary matter, which began with the filing of a
grievance in October 2012, is before this Court on the Report and
Recommendation of the State Disciplinary Review Board,1 which
recommends that Respondent Edward Shuff Cook (State Bar No.
1 On January 12, 2018, this Court entered an order amending Part IV of
the Rules and Regulations for the Organization and Government of the State
Bar of Georgia (“Bar Rules”), including Bar Rule 4-102 (d), which contains the
Georgia Rules of Professional Conduct. The January 12 order said that “these
amendments shall be effective as of July 1, 2018 and shall apply to disciplinary
proceedings commenced on or after that date,” except for the amendments to
Bar Rules 4-201 (b) and 4-201.1 (b) concerning the composition of the State
Disciplinary Board and the State Disciplinary Review Board, which the order
then addressed separately. The order also said that “the former rules shall
continue to apply to disciplinary proceedings commenced before July 1, 2018”
— such as this one — “provided that, after July 1, 2018, the State Disciplinary
Board shall perform the functions and exercise the powers of the Investigative
Panel under the former rules, and the State Disciplinary Review Board shall
perform the functions and exercise the powers of the Review Panel under the
former rules.”
183741) be suspended from the practice of law for two years as
discipline for his violations of various Rules of Professional Conduct.
After considering the extensive record and the parties’ exceptions to
the Review Board’s report and recommendation, this Court finds
that a public reprimand is a sufficient sanction given the specific
circumstances of this case.
This matter arose from a grievance filed by one or both of
Cook’s former law partners in the midst of the dissolution of their
partnership. After an investigation, the Bar filed a formal complaint
charging Cook with a variety of Rules violations, but it later
amended its formal complaint to leave only the allegations that
Cook’s handling of the firm’s trust account and his responses to this
disciplinary matter violated Rules 1.15 (I) (a), l.15 (II) (a) and (b),
and 8.4 (a) (4), as set out in Bar Rule 4-102 (d). Ultimately, Cook
stipulated that he violated Rules 1.15 (I) (a) and (II) (a) and (b),2 but
2He also twice petitioned for voluntary discipline based on his admission
that he had violated those two Rules, but the Bar objected, and the special
master rejected his petitions in favor of hearing the Bar’s full presentation of
evidence in the case.
2
denied that he had done so knowingly or that he violated Rule 8.4
(a) (4). After extensive hearings, special master Bryan Downs made
factual findings; concluded that Cook violated Rules 1.15 (I) (a) and
Rules 1.15 (II) (a) and (b), but not Rule 8.4 (a) (4); and found, in the
light of a number of mitigating factors, that a one-year suspension
was the appropriate punishment. After considering the exceptions
filed by both parties, see former Bar Rule 4-217 (d), the Review
Board disagreed with some of the special master’s factual findings
underlying the conclusion that Cook had not violated Rule 8.4 (a)
(4). The Review Board substituted its own different factual findings
on that point and concluded that Cook had violated Rule 8.4 (a) (4)
in addition to his stipulated violations of Rules 1.15 (I) and (II). The
Review Board concluded that Cook should face a two-year
suspension for his violations.
1. Under the Bar Rules controlling this case, we are to defer to
the special master’s factual findings.
This Court generally defers to the factual findings made below
where they are supported by the record. But in this case, the Court
3
is presented with conflicting sets of factual findings. Before setting
out the facts of this case, we must decide whether we should defer to
the factual findings made by the Review Board or to those made by
the special master. A review of the applicable rules and case law
shows that we are to defer to the special master’s findings.
We have often cited In the Matter of Morse, 265 Ga. 353 (1) (456
SE2d 52) (1995), for the proposition that we are “bound by the
[R]eview [Board]’s findings of fact when there is ‘any evidence’ to
support them.” Id. at 353. But Morse relied on the then-controlling
Bar Rule 4-219 (a), which provided in part that “[f]indings of fact by
the Review Panel shall be conclusive if supported by any evidence.”
In 1997, the Bar Rules were amended and the language relied upon
in Morse was removed from Bar Rule 4-219 (a). After the
amendments of 1997, the Bar Rules continued to allow for the
Review Panel to make its own factual findings “based on the record,”
but they did not speak to what deference this Court was to afford
those findings, particularly when they conflicted with the factual
4
findings made by a special master.3 See former Bar Rule 4-218 (a)
(the special master’s findings of fact and conclusions of law “shall
not be binding on the Panel and may be reversed by it on the basis
of the record submitted to the Panel”). Under former Bar Rule 4-218
(a) (which applies in this case), we have held that we defer to factual
findings made by the special master when they conflict with those
made by the Review Board, noting that the special master “was in a
best position to observe the parties’ demeanor and credibility.” In the
Matter of Ballew, 287 Ga. 371, 376 (695 SE2d 573) (2010). As Ballew
involved the same operative Bar Rules that apply to this case,
Ballew teaches that we generally defer to the special master’s
factual findings if there is a conflict.
2. The special master’s findings and recommendations.
The special master found that Cook, who has been a member
of the Bar since 1993, was a partner in the law firm Cook, Hall &
3 The current Bar Rules specifically limit the Review Board’s ability to
set aside a special master’s factual findings to cases in which the Review Board
finds them to be clearly erroneous or manifestly in error. See Bar Rule 4-216
(a). That new Rule, however, applies only to cases initiated after July 1, 2018
and so does not apply here.
5
Lampros, LLP (“CHL”), a three-partner plaintiff’s personal injury
firm, which formed in early 2004 and dissolved in August 2012.
Within CHL, Cook was the managing partner and the principal
originator of business, while Christopher Hall and Andrew Lampros
(the other two partners in the firm) were the principal litigators for
the firm. A large part of CHL’s practice was personal injury cases
against railroads, in part because Cook had prior long-standing
relationships with a number of labor organizations and was one of
the railroad union’s designated attorneys for representing union
members in cases against railroads.
Although all three partners of CHL had signature authority on
the firm’s bank accounts and access to the firm’s financial books and
records (and, for that matter, a fiduciary duty under the Bar Rules),
Cook was the partner primarily responsible for managing the firm’s
cash flow and bank accounts. Cook’s oversight of those accounts was
lax at best, as he mainly just reviewed the monthly trust account
reconciliation reports produced with the firm’s QuickBooks software
and periodically made “sure that there . . . were funds in the
6
account.” Indeed, Cook admitted that he did not keep up with the
amounts held in trust for particular clients and that the firm kept
no ledger or other discrete bookkeeping of any specific client’s trust
account activity so as to reflect at all times the exact balance held
for each client, although those amounts could be calculated from the
information the firm maintained.
When CHL settled a case, Cook’s assistant, who performed
various administrative and paralegal duties for the firm, gathered
receipts and invoices from the firm’s attorneys and prepared a
settlement statement, which showed the calculation leading to the
net amount of settlement funds due to the client after reduction for
CHL’s fees and expenses and amounts due to third parties. At the
same time, Cook’s assistant would prepare the checks necessary to
pay (or reimburse the firm for) the identified expenses and to
transfer earned fees from the trust account to the firm’s operating
account. When the settlement check “cleared” into the firm’s trust
account, Cook’s assistant would disburse the checks. Although most
settlement checks came in within a week of the settlement,
7
sometimes there was a delay while the firm waited on certain
expenses to post or for a Medicare issue or some other matter to be
resolved. Both Cook and his assistant claim to have understood that
the checks could not be sent or the disbursements made out of the
trust account until after the funds were received into the trust
account, but sometimes Cook would sign the checks as soon as his
assistant prepared them, purportedly with the understanding that
those checks were to be held until the appropriate time. In addition,
during 2010, CHL was required to hold in trust large portions of the
settlement funds received in the cases of three separate clients to
await the resolution of certain liens or other third-party claims. The
aggregate amount of those funds varied over time, but from January
1, 2011 until August 15, 2012, that minimum required balance was
never less than $571,568.
In 2012, the CHL partners became aware that significant
discrepancies existed in the trust account and that the trust account
held less than the minimum required balance. A series of meetings
between the partners ensued, the relevant results of which were
8
that the trust account apparently was made whole through
contributions from Cook and the other partners without any client
losing money or suffering actual harm; the partners then became
embroiled in a civil lawsuit against each other and undertook to
dissolve the partnership. The two other CHL partners filed the
underlying grievance against Cook and formed a new firm.4
A subsequent investigation revealed that, in the several years
prior to the summer of 2012, on dozens of occasions, checks were
negotiated early such that funds were prematurely transferred from
the CHL trust account to the firm’s operating account before the
clients’ settlement proceeds had been received. As a general
proposition, all three partners benefitted from these premature
transfers since the monies went into the firm’s operating account to
4 According to the testimony before the special master, after CHL
dissolved in 2012, Cook opened his own law firm and adopted a different
method of bookkeeping to ensure that the trust account issues would never
happen again. He testified that he now employs not only a bookkeeper, but also
a CPA, both of whom oversee his books. In addition, Cook now keeps track of
each client’s individual trust account balance as required by the Bar Rules.
Cook has practiced in this manner since 2012 without any reported incidents
or complaints.
9
run the firm and to compensate the partners. Further, a review of
the bank balance for CHL’s trust account during that same time
frame revealed numerous instances where the trust account balance
was less than the minimum required balance, often much less and
sometimes for weeks at a time. The special master found ⸺ and
Cook stipulated ⸺ that this conduct constituted multiple violations
of Rules 1.15 (I) (a) and 1.15 (II) (a) and (b), the maximum penalty
for which is disbarment.
As mentioned above, the Bar also charged that Cook violated
Bar Rule 8.4 (a) (4) because, in its view, his handling of the trust
account was inherently dishonest and deceitful and he made false
statements about his knowledge of the situation and his actions
during the course of this disciplinary proceeding. As to this issue,
the special master agreed that some of Cook’s answers to questions
under oath were evasive or inconsistent with other evidence, but he
nevertheless concluded that the evidence did not clearly and
convincingly show dishonesty or deceit. Although the Review Board
saw the evidence differently, we defer to the special master’s finding,
10
which leads us to conclude, as did the special master, that Cook did
not violate Rule 8.4 (a) (4).
Having thus found violations only of Rules 1.15 (I) (a) and (II)
(a) and (b), the special master turned his attention to the
appropriate level of discipline. He correctly noted that this Court
generally looks to the ABA’s Standards for Imposing Lawyer
Sanctions for guidance in determining punishment in disciplinary
cases, and that ABA Standard 3.0 provides for consideration of the
following factors in imposing discipline: the duty violated; the
lawyer’s mental state; the actual or potential injury caused by the
lawyer’s misconduct; and the existence of aggravating or mitigating
factors. Noting that Rules 1.15 (I) and (II) involve the duty to
safeguard property, the special master considered Cook’s mental
state. The special master considered the record evidence as a whole,
including the timing of the disbursements — which often came when
the balance of the firm’s operating account was dangerously low (or
even negative) — and found that it clearly and convincingly
established that Cook knew or should have known about the issues
11
in the trust account. With regard to the issue of injury or potential
injury, the special master found that no client was actually harmed
because they all ultimately received their settlement proceeds on a
timely basis. He concluded, however, and we agree, that the
potential for injury created by Cook’s mismanagement of the trust
account was substantial as the aggregate amount of money
prematurely removed from the trust account was large and the trust
account’s balance was repeatedly depleted well beyond the amounts
that should have been held in trust for disputed contingencies
related to client matters.5
The special master noted that ABA Standard 4.12 generally
approves suspension when a lawyer knows or should know that he
is dealing improperly with client property and causes a client injury
or potential injury. He then considered factors in mitigation and
aggravation of that discipline. In mitigation, the special master
5 Any premature withdrawal from an attorney’s trust account is serious,
and the raw number of premature withdrawals in this case appears
particularly egregious. But given the amount of activity in the CHL trust
account during the relevant time frame, it appears that the vast majority of
the transfers were made in a proper and timely manner.
12
noted that Cook had no prior disciplinary history, see ABA Standard
9.32 (a); and that Cook presented testimony from many of his peers
to the effect that he is a person of good character who enjoys an
excellent reputation in the legal community, is passionate about and
dedicated to his clients, and would never steal from his clients, see
ABA Standard 9.32 (g). The special master noted that Cook suffered
serious personal issues during the first seven months of 2012, in that
his wife suffered medical issues requiring her to spend a significant
amount of time at the Cleveland Clinic in Ohio and ultimately
leading to open heart surgery, see ABA Standard 9.32 (c). The
special master also found that Cook made a good faith effort at
making restitution and rectifying the consequences of his
misconduct by contributing substantially to restoring the trust
account before any client suffered losses, see ABA Standard 9.32 (d),
but he found this factor discounted somewhat because the effort to
make restitution was not necessarily timely; because it was made
only after the other CHL partners confronted him in the late
summer of 2012; and because his partners also contributed to the
13
restoration of the trust account balance. The special master further
found that, although Cook expressed remorse, see ABA Standard
9.32 (l), and testified that he understood why the early withdrawals
from the trust account were improper, his attitude during these
disciplinary proceeds reflected an unwillingness to appreciate the
seriousness of his misconduct or the obligations an attorney has as
a fiduciary of clients’ funds.
The special master addressed another proposed mitigating
factor submitted by Cook, namely, that his discipline should be
mitigated somewhat because Hall and Lampros — who were also
lawyers and partners in the firm, who had duties to CHL’s clients
and others, and who therefore shared the obligation to monitor
CHL’s trust account — wholly abdicated their responsibility in that
regard during the relevant time, and yet have not been pursued by
the Bar for their failures. The special master found the Bar’s
seeming indifference to the other partners’ complicity and its
decision to single out Cook for discipline troubling, particularly
where the underlying grievance was filed not by clients or injured
14
third parties, but by those same former law partners. The special
master noted that Cook would lose his status as “designated
counsel” for the railroad union if suspended, that Cook losing this
status would be tantamount to disbarment given that the
substantial majority of his practice was representing railroad
workers in injury cases, and that his former law partners, who
practice in the same area of specialty as Cook, had a pecuniary
interest that would benefit from any discipline imposed on Cook.
Noting that the logical consequence of such uneven treatment by the
Bar would be the erosion, among members of the Bar, of the
principle that law firm partners have a shared responsibility for the
firm’s trust account, he considered these circumstances to be
mitigating.
In aggravation, the special master found that, by virtue of the
repeated instances of mismanagement of the trust account as shown
in this case, there was both a pattern of misconduct, see ABA
Standard 9.22 (c), and multiple offenses, see ABA Standard 9.22 (d).
He also found that Cook had substantial experience in the practice
15
of law, see ABA Standard 9.22 (i), but concluded that the record did
not show by clear and convincing evidence that Cook acted with a
dishonest or selfish motive, see ABA Standard 9.22 (b). Based on
that record, the special master concluded that a one-year suspension
was the most appropriate discipline for Cook’s actions.
The Review Board took a different view of the evidence and
found a violation of Rule 8.4 (a) (4)6 in addition to Rules 1.15 (I) and
(II). It also took a different view of the mitigating and aggravating
factors and, ultimately, recommended that Cook be suspended for
two years. Both Cook and the Bar filed exceptions to the Review
Board’s report and recommendation.
3. Our review of the case.
We have reviewed the record in this case, including Cook’s
stipulation that he repeatedly violated Rules 1.15 (I) (a) and 1.15 (II)
(a) and (b) and the testimony and documents presented at the
lengthy evidentiary hearing. As in Ballew, the special master “was
6The Review Board technically concluded that Cook violated a different
sub-section of Bar Rule 8.4 (a), but, taking its report as a whole, it is clear that
it meant to find a violation of Rule 8.4 (a) (4).
16
in the best position to observe the parties’ demeanor and credibility.”
287 Ga. at 376. We therefore accept the special master’s conclusions
that Cook did not act with an intention to deceive and that the record
does not contain clear and convincing evidence that Cook violated
Rule 8.4 (a) (4). See In the Matter of Woodham, 296 Ga. 618, 625 (3)
(769 SE2d 353) (2015) (concluding that attorney did not violate Rule
8.4 (a) (4) where his conduct did not show evidence that he misled or
attempted to mislead others). We must next determine the
appropriate discipline to be imposed on Cook for his stipulated
violations of Rules 1.15 (I) and (II).
(a) The appropriate level of discipline under the totality of the
circumstances is a public reprimand.
The primary purpose of a disciplinary action is to protect the
public from attorneys who are not qualified to practice law due to
incompetence or unprofessional conduct, but this Court is also
concerned with the public’s confidence in the profession
generally. See In the Matter of Ortman, 289 Ga. 130, 130-131 (709
SE2d 784) (2011). The sanction imposed for disciplinary infractions
17
should be sufficient to penalize the offender for his wrongdoing, to
deter other attorneys from engaging in similar behavior, and to
indicate to the general public that the courts will maintain the ethics
of the profession. See In the Matter of Dowdy, 247 Ga. 488, 493 (4)
(277 SE2d 36) (1981). Although the ABA standards are generally
instructive as to the question of punishment, see In the Matter of
Noriega-Allen, 308 Ga. 398, 399 (841 SE2d 1) (2020), they are not
controlling. Instead, the level of punishment imposed rests in the
sound discretion of this Court. See Dowdy, 247 Ga. at 493 (4).
Here, we note that the evidence did not prove that Cook acted
dishonestly, intentionally, or maliciously, and, although the
potential for harm was undeniably great, it appears that no client or
third party suffered any actual harm as a result of the violations —
as no client or third party ever suffered any delay in obtaining the
funds owed to him or her. Moreover, this is Cook’s first disciplinary
infraction in what appears to have been a long and distinguished
legal career, and, during the many years since these infractions,
Cook has taken steps to prevent any additional issues of this nature.
18
Further, the record contains no evidence, or even an allegation, that
Cook failed to adequately or competently represent a client.
Although we wish to emphasize the seriousness of Cook’s
misconduct and the non-delegable obligation he has as a fiduciary of
his clients’ property, given the special considerations discussed
above, this Court concludes that the mitigating factors present in
this case ⸺ which do not include the Bar’s disparate treatment of
Cook compared to his former partners ⸺ outweigh the aggravating
factors of multiple violations and substantial experience in the
practice of law such that a suspension is not warranted.
Although violations of Rule 1.15 are always serious, we have
accepted a reprimand as an appropriate sanction in similar cases
involving that rule. See, e.g., In the Matter of Brock, 306 Ga. 388(830 SE2d 736) (2019) (imposing Review Board reprimand for
multiple violations of Rules 1.15 and 5.3); In the Matter of Ralston,
300 Ga. 416 (794 SE2d 646) (2016) (imposing Review Panel
reprimand for violations of Rules 1.15 and 1.8); In the Matter of
Brown, 297 Ga. 865, 865 (778 SE2d 790) (2015) (imposing a public
19
reprimand for multiple violations of the Rules of Professional
Conduct, including trust account violations); In the Matter of
Francis, 297 Ga. 282 (773 SE2d 280) (2015) (imposing a Review
Panel reprimand where attorney commingled personal and fiduciary
funds, and had a prior disciplinary history); In the Matter of Howard,
292 Ga. 413 (738 SE2d 89) (2013) (imposing public reprimand where
attorney admitted violations of trust account rules, but no actual
harm was done to clients); In the Matter of Grant, 287 Ga. 131 (694
SE2d 647) (2010) (imposing a Review Panel reprimand when
attorney’s poor supervision permitted paralegal to steal client funds
and attorney mismanaged other client funds). Compare In the
Matter of Butler, 283 Ga. 250 (657 SE2d 245) (2008) (disbarment for
violations of Rules 1.15 (I) and (II), 8.1, and 8.4 (a) (4) with respect
to attorney’s conversion of one client’s funds for personal use, in the
light of numerous aggravating factors, including an indifference to
making restitution); In the Matter of Wright, 294 Ga. 289 (751 SE2d
817) (2013) (one-year suspension for intentional violation of Rule
1.15 and other rules where client was harmed and lawyer engaged
20
in dishonesty; reinstatement conditioned on repayment of client and
other things); Dowdy, 247 Ga. at 494 (4) (indefinite suspension
imposed for violations of trust account rules, which resulted in client
failing to receive funds owed to her in a timely manner). Although
we acknowledge that there is precedential support both for a
reprimand and for a suspension, based on the facts of this case and
the mitigating factors, we believe that the appropriate punishment
is a public reprimand. Accordingly, we order that Cook receive a
public reprimand in accordance with Bar Rules 4-102 (b) (3) and 4-
220 (c) as punishment for his violations of Rules 1.15 (I) (a) and 1.15
(II) (a) and (b).7
(b) Some members of the Court have additional concerns.
Some members of this Court consider it necessary to address
concerns raised by the special master. Like him, some of us are
7 The dissent reads our precedents as suggesting a stronger sanction, and
also relies on the ABA Standards in arriving at that conclusion. But the kind
of discretion that we exercise in selecting a sanction in disciplinary cases is not
so limited. The ABA Standards are instructive, not binding, and while we try
generally to treat like cases alike, none of our precedents has exactly the same
facts as any other.
21
concerned about the manner in which this disciplinary matter arose
and the seemingly unequal manner in which it has been prosecuted.
As noted above, this grievance was filed not by any client of CHL,
but by one or both of Cook’s former law partners at a time when CHL
was dissolving and their new firm stood to benefit from any
discipline imposed upon Cook. In addition, this case includes no
proof that Cook benefited uniquely from the premature transfers;
instead, it appears that the benefits flowed to all of the CHL
partners. Under the Bar Rules, Cook’s partners bore responsibility,
along with Cook, for the trust account and for the safekeeping of
their clients’ funds and other property.
Yet the Bar chose not to exercise its authority to initiate an
investigation into the actions of either of Cook’s partners, explaining
to this Court that Cook never filed a grievance against those
partners, and that, if he had believed they were complicit, he could
have done so. The Bar further argues that factors like motivation
behind the grievance and uneven treatment should not be
22
considered in mitigation because the ABA Standards do not
separately recognize them as mitigating factors.
Regardless of whether we should consider these as mitigating
factors, the Bar had the authority to initiate investigations of
attorney misconduct on its own without waiting for a grievance to
be filed. See former Bar Rule 4-203 (a) (2) (discussing power of
Investigative Panel of the State Disciplinary Board prior to July 1,
2018 to initiate grievances against attorneys). The Bar has not
offered any explanation of why it did not exercise its authority to
investigate the other law firm partners, and its failure to do so could
be seen as lowering the standards imposed on law partners who are
not specifically tasked with managing their firm’s trust account.
And such failure could encourage lawyers to use the Bar’s
disciplinary process to resolve internal law firm disputes and settle
old scores with former partners. Such weaponization of the
disciplinary process must not be encouraged.
All the Justices concur, except Melton, C. J., and Nahmias, P.
J., who dissent.
23
NAHMIAS, Presiding Justice, dissenting.
I agree with much of what is said in the majority opinion, but
I do not agree that a mere reprimand is the appropriate sanction for
Cook’s repeated and serious violations of his obligation to safeguard
his clients’ funds. Some details not discussed in the majority opinion
reveal the extent of Cook’s improper conduct.
The Special Master found that
[b]etween November 2009 and August 2012, there were
45 instances in which Cook signed a trust account check
payable to [his law firm] CHL for attorney fees earned or
litigation expenses incurred, which was deposited into the
CHL operating account before corresponding settlement
funds were received and deposited into the CHL trust
account. One such instance occurred in 2009, 13 in 2010,
18 in 2011, and 13 in the eight and a half months of 2012
before the firm broke up. The 45 checks related to 20
different client settlements. The aggregate dollar amount
of those improper, premature disbursements was
$1,776,868.07.
(Emphasis in original.) Thus, the scope of these violations of Rules
1.15 (I) (a) and (II) (a) and (b) was extensive – dozens of separate
violations over nearly three years affecting 20 clients’ settlements
24
and putting an enormous amount of those clients’ funds at risk.8
Although, fortunately, no client actually lost money, the law firm
was in essence borrowing funds that were supposed to be held in
trust, sometimes for days, sometimes for weeks, and sometimes for
8 It is worth a reminder of what these rules of professional conduct
require of all Georgia lawyers. Rule 1.15 (I) (a) says:
A lawyer shall hold funds or other property of clients or third
persons that are in a lawyer’s possession in connection with a
representation separate from the lawyer’s own funds or other
property. Funds shall be kept in one or more separate accounts
maintained in an approved institution as defined by Rule 1.15 (III)
(c) (1). Other property shall be identified as such and appropriately
safeguarded. Complete records of such account funds and other
property shall be kept by the lawyer and shall be preserved for a
period of six years after termination of the representation.
And Rule 1.15 (II) (a) and (b) says in pertinent part:
(a) Every lawyer who practices law in Georgia, . . . and who
receives money or property on behalf of a client or in any other
fiduciary capacity, shall maintain or have available one or more
trust accounts as required by these Rules. All funds held by a
lawyer for a client and all funds held by a lawyer in any other
fiduciary capacity shall be deposited in and administered from a
trust account.
(b) No personal funds shall ever be deposited in a lawyer’s trust
account, except that unearned lawyer’s fees may be so held until
the same are earned. . . . Records on such trust accounts shall be
so kept and maintained as to reflect at all times the exact balance
held for each client or third person. No funds shall be withdrawn
from such trust accounts for the personal use of the lawyer
maintaining the account except earned lawyer’s fees debited
against the account of a specific client and recorded as such.
25
months.
Moreover, as to the three large settlements that the majority
opinion mentions, which were required to be held in trust pending
the resolution of disputed and then-uncertain third-party claims, at
least $571,568 was supposed to be held between January 1, 2011
and August 15, 2012. But the balance in the CHL trust account often
dropped below that level, sometimes far below and sometimes for
months at a time. In July 2012, the trust account balance dropped
to just $288.82 (making the account short by more than half a
million dollars), and a check written in January 2012 to one
claimant for more than $288,700 fortunately was not negotiated by
that claimant for more than six months, as the trust fund balance
often had insufficient funds to cover the check during that period.
And while the Special Master found that the State Bar had not
shown by clear and convincing evidence that Cook engaged in
dishonest or deceitful conduct with regard to the trust account or the
disciplinary proceedings and thus that he did not violate Rule 8.4 (a)
26
(4)9 as the Bar had alleged, the evidence did establish that Cook
knew or should have known that funds held in trust were
occasionally disbursed before they should have been.
When the scope of Cook’s misconduct is detailed, it becomes
clear that none of the trust-account cases imposing reprimands that
the majority opinion cites as “similar” to this case really are similar
in terms of the extent of the violations or the amount of client funds
put at risk.10 Moreover, the majority opinion ignores numerous
9Rule 8.4 (a) (4) says that a lawyer shall not “engage in professional
conduct involving dishonesty, fraud, deceit or misrepresentation.”
10 The majority opinion cites these reprimand cases: In the Matter of
Brock, 306 Ga. 388, 388-390 (830 SE2d 736) (2019) (imposing a Review Board
reprimand for a violation of Rules 1.15 and 5.3 where the lawyer was unaware
of his paralegal’s theft of about $21,000 from his clients’ trust account funds;
the lawyer did not keep records of the account balance for each of his clients;
he made one student loan payment from earned attorney fees improperly
retained in the trust account and two mortgage payments from the account on
behalf of a former client, whose funds the lawyer had failed to promptly deliver;
and several mitigating factors were present); In the Matter of Ralston, 300 Ga.
416, 416-418 (794 SE2d 646) (2016) (holding that a Review Panel reprimand
was the appropriate sanction for a lawyer’s violation of Rules 1.15 and 1.8
where he used earned but undisbursed fees in his trust account to provide his
clients with a no-interest loan through 12 disbursements totaling $22,000 and
several mitigating factors were present); In the Matter of Brown, 297 Ga. 865,
865-867 (778 SE2d 790) (2015) (imposing a public reprimand with conditions
for a violation of Rule 1.15 and other rules where the lawyer failed, among
other things, to hold in her trust account funds generated by the sale of
property during her client’s divorce proceeding, although the lawyer did keep
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attorney discipline cases in which violations of Rule 1.15 – even with
no actual harm to clients, no major aggravating factors like lying to
the funds segregated from her own funds; delayed distributing a share of those
funds to the client’s ex-husband to protect her client; disbursed the funds from
her trust account using money she had deposited there from earned legal fees;
and several mitigating factors were present); In the Matter of Francis, 297 Ga.
282, 282-283 (773 SE2d 280) (2015) (concluding that a Review Panel reprimand
was warranted for a lawyer’s violation of Rule 1.15 where he did not maintain
an operating account for his law firm; allowed some of his clients to deposit
earned legal fees into his trust account; wrote a check to himself from his trust
account for $1,300, believing that those funds were owed to him as fees, which
resulted in an overdraft of about $41; and no clients were harmed, although
the lawyer had three prior instances of confidential discipline); In the Matter
of Howard, 292 Ga. 413, 413-414 (738 SE2d 89) (2013) (imposing a public
reprimand for a lawyer’s violation of Rule 1.15 where he mistakenly caused a
$3,552 litigation funding check to be deposited into the firm’s operating
account rather than his trust account, resulting in the trust account being
overdrawn, and he deposited personal funds into his trust account so that he
could distribute anticipated settlement funds to his clients without waiting for
the settlement drafts to clear the bank, but when the settlements did not occur
as planned, he began withdrawing the personal funds from his trust account
for day-to-day operations of the law firm); In the Matter of Grant, 287 Ga. 131,
131-133 (694 SE2d 647) (2010) (holding that a Review Panel reprimand was
the appropriate sanction for a lawyer’s violation of Rules 1.15 and 5.3 where
she failed, among other things, to adequately supervise a paralegal who stole
$2,000 from her client trust account or keep records reflecting the account
balance for each of her clients). Indeed, our opinion in Howard suggested that
at least a public reprimand should be the discipline imposed for even minor,
technical violations of trust account rules that cause no harm to clients. See
292 Ga. at 414 (“We also agree that the appropriate punishment is a public
reprimand, rather than a Review Panel reprimand, because the infraction in
this case involved an admitted violation of trust account rules, and, although
no harm was done to clients, a trust account is a high honor and privilege
afforded to a member of the Bar, so even a technical violation should have
public discipline so as to protect clients, courts, and the public.”).
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clients or disciplinary authorities, and various mitigating factors –
have resulted in suspensions.11 I also note that the Special Master,
11 See, e.g., In the Matter of Smith Fitch, 289 Ga. 253, 253-256 (710 SE2d
563) (2011) (imposing a one-year suspension with conditions for a lawyer’s
violation of Rules 1.15, 1.3, and 1.4 where she transferred nearly $7,000 from
a client’s trust account to her law firm’s operating account without the client’s
permission and failed to timely return funds held for the client or provide to
the client an accounting of the money or any billing statements, noting that
the lawyer’s “actions were not theft, but poor practice management” but that
“[s]uspensions have been imposed for violations of Rules 1.15 (I) and (II) where
the lawyer has made restitution, shown remorse and cooperated with the State
Bar”); In the Matter of Jones, 280 Ga. 302, 302 (627 SE2d 24) (2006) (holding
that a 12-month suspension was an appropriate sanction for a lawyer’s
violation of Rule 1.15 where he used over $43,000 from his clients’ trust
account to pay a promissory note that he had guaranteed for a friend, his law
partner filed the underlying grievance with the State Bar, and there were
several factors in mitigation, including that the lawyer’s “actions caused no
harm to any clients”); In the Matter of Summers, 278 Ga. 57, 57 (597 SE2d 364)
(2004) (imposing a six-month suspension for a lawyer’s violation of Rule 1.15
where he held $25,000 in his trust account for a client for about five years; for
periods of time, the balance of the account was insufficient to cover the
obligation to the client; and there were several factors in mitigation, including
that the lawyer had “ma[d]e the client whole”); In the Matter of Dansby, 274
Ga. 393, 393-394 (553 SE2d 157) (2001) (holding that a three-year suspension
with conditions was appropriate where a lawyer violated the predecessor of
Rule 1.15 by comingling a client’s settlement funds with the lawyer’s personal
funds and paying the client, who “ultimately [was] not harmed,” a portion of
the settlement proceeds with checks drawn on the law firm’s operating
account; two dissenting Justices believed disbarment was appropriate); In the
Matter of Frazier, 273 Ga. 878, 878 (546 SE2d 272) (2001) (imposing a one-year
suspension with conditions for a lawyer’s violation of the predecessor to Rule
1.15 where over a three-month period, he wrote seven checks on his clients’
trust account for amounts between $20 and $70, all of which were returned for
insufficient funds, wrote a number of checks on the trust account for personal
expenses, commingled his personal funds with the trust account funds,
withdrew funds from the account that were not earned attorney fees, and there
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Review Board, and State Bar all recommended a suspension (of one,
two, and three years, respectively) as the appropriate sanction for
Cook, although the longer periods recommended by the Review
Board and State Bar should be discounted somewhat because they
relied in part on a violation of Rule 8.4 (a) (4) that is not supported
by the Special Master’s factual findings (to which I agree with the
majority opinion we should defer).
The Special Master recommended a one-year suspension
despite his consideration in mitigation of the Bar’s “seeming
indifference” to the “complicity” in the Rule 1.15 violations of Cook’s
two law partners, who were the source of the grievance filed against
Cook, and of the loss of Cook’s “designated counsel” status for
were several mitigating factors, including that there was “no evidence or
allegation that [the lawyer’s] improper behavior resulted in clients failing to
receive funds timely or in full”); In the Matter of Hayes, 272 Ga. 376, 376-377
(532 SE2d 371) (2000) (concluding that an 18-month suspension with
conditions was appropriate for a lawyer’s violation of the predecessor to Rule
1.15 where his client trust account contained “substantial negative balances”
over an eight-month period, leading the Special Master to conclude that the
lawyer’s personal use of the account “constituted continuing and serious
violations of his duty as an attorney,” and various mitigating circumstances
were present, including that “no clients were actually injured” and “all
deficiencies were ‘covered’ by subsequent deposits”).
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railroad union cases if he were suspended, which Cook characterized
as “tantamount to disbarment” because most of his practice consists
of such cases. In Division 3 (a), the majority opinion says without
explanation that “the mitigating factors present in this case . . . do
not include the Bar’s disparate treatment of Cook compared to his
former partners” and makes no mention of the effect of a suspension
on Cook’s practice. But then in Division 3 (b), the opinion says that
“[s]ome members of this Court” (suggesting less than the majority
that concur in the whole opinion) agree with the Special Master’s
concerns about the seemingly unequal manner in which this
disciplinary matter has been prosecuted against Cook but not his
two partners and the benefit that their new firm may receive if Cook
is suspended, “[r]egardless of whether we should consider these as
mitigating factors.”
Even if I agreed with what is said in Division 3 (b) about the
Bar’s apparent indifference to Cook’s law partners’ own professional
obligation to safeguard their clients’ funds as well as their apparent
use of the disciplinary process to benefit financially by receiving
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more railroad-union cases if Cook is suspended and cannot receive
those cases, those would be issues as to which the Bar’s Office of
General Counsel should face scrutiny. But in my view (which was
also the view of the Review Board), they are not proper
considerations in mitigation of Cook’s discipline. Whether other
lawyers affiliated with Cook committed similar misconduct and
should also be disciplined does not minimize the seriousness of what
Cook did and the sanction that he should receive for his own
misconduct. Nor should we consider the collateral consequences of
the level of discipline that we appropriately impose based upon his
misconduct. Attorney discipline – especially suspensions from the
practice of law – routinely affects the ability of a lawyer to keep his
or her clients (which is forbidden while a lawyer is suspended) and
to obtain new clients if the lawyer is reinstated to practice. If such a
suspension is warranted based on the seriousness of the professional
misconduct, we should pay no heed to the lawyer’s complaint about
his or her business being impaired. A suspension is certainly not
“tantamount to disbarment,” because even if a suspension leaves a
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lawyer struggling to attract new clients, unlike disbarment it allows
the lawyer to return to practicing law without waiting at least five
years, seeking recertification of fitness from the Fitness Board and
this Court, and passing the bar exam again. See Part A, § 10, Rules
Governing Admission to the Practice of Law.
It is telling that these supposed mitigating factors are not
included in the ABA’s Standards for Imposing Lawyer Sanctions and
that the majority opinion cites no Georgia disciplinary case in which
we have considered either of them. So while the majority opinion
gives no explanation for its rejection of the disparate-enforcement
factor and is unclear about its view of the collateral-consequence
factor, it is clear to me that neither factor is properly considered in
mitigation of Cook’s discipline – which makes the imposition of a
suspension even more appropriate in this case.
For these reasons, I cannot agree that other lawyers will be
deterred, or that the public will be given confidence that this Court
will maintain the ethics of the legal profession, when they see that
the penalty for Cook’s repeated and serious violations of Rule 1.15 –
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violations that put large amounts of many clients’ funds at great risk
– is just a public admonition not to do that again. I respectfully
dissent.
I am authorized to state that Chief Justice Melton joins in this
dissent.
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