CourtListener 10680094

Testo completo

316 Ga. 474
FINAL COPY

S23Z0402. IN THE MATTER OF DAVID ROBERSON.

PER CURIAM.

This is an appeal from a final order of the Board to Determine

Fitness of Bar Applicants (the “Board”) denying an application for

readmission to the State Bar of Georgia (the “State Bar”) filed by

David Roberson, who was disbarred in 2001 for multiple violations

of the Georgia Rules of Professional Conduct.1 Roberson argues that

the record demonstrates by clear and convincing evidence that (1)

1 Roberson was disbarred on April 5, 2001. In 2021, Roberson applied
for readmission to the State Bar by submitting to the Board an Application for
Certification of Fitness to Practice Law. On October 7, 2021, the Board
conducted an informal conference to determine Roberson’s fitness to practice
law. Following the informal conference, the Board issued a Tentative Order of
Denial, and Roberson timely requested a formal hearing. The Board provided
Roberson with the specifications for the denial on February 14, 2022, which
Roberson answered on March 8, 2022. On April 25, 2022, this Court appointed
a hearing officer, and a formal hearing was held on August 10, 2022. On
October 14, 2022, the hearing officer issued a report and recommendation,
recommending that Roberson’s application be denied. On November 10, 2022,
the Board adopted the hearing officer’s recommendation and issued its final
order denying Roberson’s application. Roberson timely filed his notice of
appeal in this Court.
he is rehabilitated from the conduct for which he was disbarred; (2)

he appreciates the scope and harm of the conduct for which he was

disbarred; and (3) he has satisfied the reinstatement condition

established by this Court. For the reasons that follow, we conclude

that the evidence supports the Board’s decision to deny Roberson’s

certification and affirm.

1. The record shows that Roberson was admitted to the State

Bar in 1980. In 2001, this Court disbarred Roberson for his

mishandling of a medical malpractice case. See In the Matter of

Roberson, 273 Ga. 651, 652-656 (544 SE2d 715) (2001). This Court

concluded that the State Bar had shown by clear and convincing

evidence that Roberson violated multiple standards of former Bar

Rule 4-102 (d)2 by improperly issuing checks from his client’s

2 Specifically, this Court concluded that Roberson violated the following

standards of former Bar Rule 4-102 (d):
4 (a lawyer shall not engage in professional conduct involving
dishonesty, fraud, deceit, or wilful misrepresentation); 30 (except
with the written consent of or written notice to his client after full
disclosure a lawyer shall not accept or continue employment if the
exercise of his professional judgment on behalf of his client will be
or reasonably may be affected by his own financial, business,
property or personal interests); 31 (a) (a lawyer shall not enter into

2
settlement funds to himself, his co-counsel, and nonparties without

the court’s approval of the final settlement; knowingly inflating the

value of the client’s future medical expenses in the settlement

papers he filed with the court in order to justify the attorney fees he

an agreement for, charge, or collect an illegal or clearly excessive
fee); 31 (d) (2) (upon conclusion of a contingent fee matter, the
lawyer shall provide the client with a written statement stating
the following: (i) the outcome of the matter; and, (ii) if there is a
recovery: (aa) the remittance to the client; (bb) the method of its
determination; (cc) the amount of the attorney fee; and (dd) if the
attorney’s fee is divided with another lawyer who is not a partner
in or an associate of the lawyer’s firm or law office, the amount of
fee received by each and the manner in which the division is
determined); 36 (a lawyer shall not continue multiple employment
if the exercise of his independent professional judgment on behalf
of a client will be or is likely to be adversely affected by his
representation of another client, except to the extent permitted
under Standard 37); 44 (a lawyer shall not without just cause to
the detriment of his client in effect wilfully abandon or wilfully
disregard a legal matter entrusted to him); 61 (a lawyer shall
promptly notify a client of the receipt of his funds, securities or
other properties and shall promptly deliver such funds, securities
or other properties to the client); 63 (a lawyer shall maintain
complete records of all funds, securities, and other properties of a
client coming into the possession of the lawyer and promptly
render appropriate accounts to his client regarding them); and 65
(A) (a lawyer shall not commingle his client’s funds with his own,
and shall not fail to account for trust property, including money
and interest paid on the client’s money, if any, held in any fiduciary
capacity).
Id. at 651.

3
had already paid to himself and his co-counsel; collecting an

excessive fee;3 failing to provide the client with a written statement

detailing the contingency fee arrangement; willfully disregarding

legal matters entrusted to him by failing to attend the first

settlement hearing and failing to establish a trust for the client’s

children; failing to disclose client conflicts and personal financial

interests; and failing to promptly deliver client funds and maintain

adequate records of the settlement funds received. See id. This

Court also imposed as a condition for reinstatement that Roberson

“make full restitution to the estate of all moneys he received in

regard to his representation of the estate.” Id. at 656.

In 2021 — twenty years after his disbarment — Roberson

applied for readmission to the State Bar by submitting to the Board

his Application for Certification of Fitness to Practice Law. In his

application, Roberson described the circumstances leading to his

disbarment as an “[i]mproper handling of proceeds from a personal

3 In his answer to the State Bar’s specifications, Roberson admitted
paying himself and his co-counsel approximately $2,333,000 from the client’s
$3,325,000 cash settlement.
4
injury recovery,” and disclosed that he had settled a legal

malpractice claim filed against him by the client’s estate for

$449,385.26. Roberson also submitted to the Board a statement of

rehabilitation, in which he stated that he “fully accept[ed]

responsibility for [his] past conduct.” In his statement, Roberson

also described his work experience and community service since his

disbarment, which included teaching law and remedial mathematics

courses and becoming involved in his church and other nonprofit

organizations. However, Roberson omitted in his statement any

mention of the specific conduct that led to his disbarment or the

harm his conduct caused his client and her children.

After receiving his application, the Board requested that

Roberson participate in an informal conference. At the informal

conference, Roberson mischaracterized the circumstances leading to

his disbarment as an issue over calculating attorney fees, explaining

that his co-counsel incorrectly advised him that the attorney fees

collected should be based on the total amount the client was to

collect rather than the present cash value, which “turned out not to

5
be the right thing to do.” In his explanation, Roberson failed to

mention that he misappropriated his client’s settlement funds,

engaged in dishonest behavior with the court, and abandoned legal

matters entrusted to him. Further, when asked if he would do

anything differently if he could go back to that time period, Roberson

responded that he would have told his co-counsel that “the attorney’s

fee [should be] based on the present cash value.” When the Board

further questioned Roberson about the role he believed his co-

counsel played in his disbarment, Roberson responded:

I was the lawyer, I was retained by the family, and
it was my responsibility. No matter what I delegated to
[my co-counsel], I should have . . . looked at that myself. .
. . I take all the blame upon myself.

The Board also asked Roberson whether he believed the legal

malpractice settlement constituted full restitution and whether he

believed the approximately $800,000 he retained as a fee after

paying the settlement was fair. Roberson responded that he had not

given “a whole lot of thought” to whether the settlement constituted

full restitution, but that he believed “the estate was made whole”

6
because “the lawyers agreed that [the settlement] would be

sufficient.” Roberson was unable to unequivocally answer the

question about whether the fee he retained was fair, stating, “It

would have been fair to get 40 percent of whatever the present cash

value of the settlement was.” Further, Roberson incorrectly stated

that his co-counsel was the one who filed the settlement papers with

the court and that the court had approved the settlement before he

paid himself the attorney fees.

Following the informal conference, the Board issued a tentative

denial of Roberson’s application, finding that Roberson “failed to

carry [his] burden of establishing that [he] possess[es] the requisite

character and fitness for admission to the practice of law in

Georgia.” The Board further explained that Roberson’s record

“evidences a lack of insight and rehabilitation,” and that it was

unable to confirm whether he had made full restitution to the estate.

After receiving the Board’s tentative denial, Roberson timely

requested a formal hearing, and the Board served Roberson with the

specifications for the tentative denial. In the specifications, the

7
Board stated that Roberson improperly characterized his

misconduct as “a disagreement with [co-counsel] over . . . attorney’s

fees,” made multiple statements to the Board that “w[ere] not

accurate,” and “did not accept responsibility for [his] own actions

that were done independently of [co-counsel].” Further, the Board

asserted that Roberson “failed to show any understanding or

remorse” for his past actions and “failed to show rehabilitation.”

In his answer to the Board’s specifications, Roberson denied

the Board’s allegation that he had not shown remorse for his past

actions or proof of rehabilitation. Roberson further stated that he

was “not seeking exoneration” by “shifting the blame from [himself]

to [his co-counsel]” and that, when he made incorrect statements to

the Board, he was “relating what [he] recalled of the incident, more

than 20 years ago.”

At the formal hearing, Roberson testified on his own behalf,

explaining that he felt “ashamed” of what happened and that “there

was no way [he] was trying to avoid [his] responsibility” by blaming

his co-counsel. Roberson testified about his involvement in his

8
community since his disbarment but again failed to explain the

specific conduct that led to his disbarment. On cross-examination,

Roberson was asked about his failure to set up the trust for the

client’s children. Roberson explained the purpose behind setting up

such a trust without explaining why he never established the trust

or how this harmed the client and her children. Roberson also

introduced into evidence letters of support for his reinstatement

from several attorneys, including the special master involved in

Roberson’s disbarment proceeding, which praised his good

character.

On October 14, 2022, the hearing officer issued his report and

recommendation that the Board should deny Roberson’s application

for certification of fitness. The hearing officer noted that Roberson

had “taken positive action demonstrating rehabilitation” and that it

was unclear whether Roberson’s misstatements to the Board were

due to “the natural erosion of memory” or a “matter of a lack of

candor.” However, the hearing officer ultimately concluded that

Roberson had not met his burden of showing he was rehabilitated,

9
noting that Roberson failed to show an “appreciation of the scope

and harm of his actions.” Further, the hearing officer concluded that

Roberson had failed to meet this Court’s condition for reinstatement

that he make full restitution to the client’s estate.

On November 10, 2022, the Board adopted the hearing

officer’s report and recommendation and denied Roberson’s

application for certification of fitness.

2. In his first enumeration of error, Roberson asserts that the

record demonstrates by clear and convincing evidence that he is

rehabilitated from the conduct for which he was disbarred.

Specifically, Roberson argues that he has met his burden of showing

rehabilitation because the record demonstrates that, since his

disbarment, he has taken responsibility for his past actions and has

appreciated the harm his conduct caused; established a good

reputation, as evidenced by the letters of support recommending his

reinstatement; and engaged in positive action demonstrating

rehabilitation, as evidenced by his teaching and ministry work. We

conclude, however, that the Board did not clearly err in finding that

10
Roberson was not sufficiently rehabilitated.

“[A]n applicant for reinstatement as a practicing lawyer has

the burden of proving by clear and convincing evidence that [he] has

been sufficiently rehabilitated.” In the Matter of Davis, 307 Ga. 276,

279 (834 SE2d 93) (2019) (citation and punctuation omitted). To

show rehabilitation,

the applicant is required by the Board to produce evidence
of, among other things, the taking of responsibility for
past conduct, insight and appreciation for why the
conduct raises fitness concerns, candor with the Board,
good reputation and assurances of a desire and intention
to conduct one’s self in an exemplary fashion in the future,
and positive action demonstrating rehabilitation by
things such as occupation, religion, or community or civic
service.

In re Robbins, 295 Ga. 64, 67 (2) (757 SE2d 54) (2014). Further, “if

there is any evidence to support the Board’s decision to deny

certification, [this Court] will uphold it.” Davis, 307 Ga. at 280

(citation and punctuation omitted).

Here, ample evidence supported the Board’s conclusion that

Roberson was not sufficiently rehabilitated to be reinstated to

11
practice law. Although Roberson made blanket statements

throughout the proceedings that he “blamed” himself for his

disbarment, he failed to demonstrate that he has taken

responsibility for his actions and appreciates the harm his conduct

caused and why it raised fitness concerns. Roberson repeatedly

mischaracterized the circumstances leading to his disbarment as an

issue with co-counsel over calculating appropriate attorney fees

without adequately addressing his own unethical and dishonest

conduct and how the client and her children were harmed by his

behavior. “This Court does not countenance such dishonesty and

blame shifting in those who seek to practice law in the State of

Georgia.” Davis, 307 Ga. at 280 (affirming the Board’s decision to

deny reinstatement where the applicant showed an “inability to take

responsibility for her prior misdeeds” by shifting the blame for her

misconduct to her clients). See also Robbins, 295 Ga. at 68 (2)

(affirming the Board’s decision to deny reinstatement where the

applicant “was equivocal with respect to demonstrating a

recognition of the wrongdoing that resulted in disbarment”); In the

12
Matter of Lee, 275 Ga. 763, 764 (571 SE2d 720) (2002) (affirming the

Board’s decision to deny reinstatement, concluding that the

applicant “has shown no remorse for his conduct and continues to

justify, minimize, or blame others,” which “does not add up to a

showing of rehabilitation by clear and convincing evidence”).

Moreover, although Roberson argues that any misstatements he

made during the proceedings were due to a lapse in his memory,

rather than a lack of candor, Roberson continued to make

misleading and evasive statements in the way he characterized the

events surrounding his disbarment even after the Board served him

with the specifications, which detailed his past conduct and rule

violations. Making such “[f]alse, misleading, or evasive answers to

bar application questionnaires may be grounds for a finding of lack

of requisite character and fitness.” In the Matter of Odion, 314 Ga.

427, 429 (2) (877 SE2d 182) (2022) (citation and punctuation

omitted).

Further, although the several letters of support Roberson

introduced into evidence may demonstrate that he has a good

13
reputation, and his teaching and ministry work since his disbarment

may show that Roberson has engaged in positive action toward

rehabilitation, this is “not enough to establish rehabilitation in this

case since this evidence is offset by [Roberson’s] failure to meet the

burden of proof with respect to other elements of rehabilitation, such

as candor and credibility, as well as appreciation and insight into

why his previous conduct raises fitness concerns.” Robbins, 295 Ga.

at 68 (2). Moreover, “[t]o the extent that the evidence of good

character and community service presented by [Roberson] could

have raised a question about the extent of [his] rehabilitation, any

doubts about [his] rehabilitation are resolved in favor of protecting

the public rather than reinstating [him] to the practice of law.”

Davis, 307 Ga. at 280. Accordingly, Roberson’s claim that the Board

clearly erred in concluding that he had not established

rehabilitation fails.

3. In his second enumeration of error, Roberson asserts that

the record demonstrates by clear and convincing evidence that he

appreciates the wrongfulness of his conduct and the harm his

14
conduct caused. As this is an element of rehabilitation, see Robbins,

295 Ga. at 68 (2), we have already addressed Roberson’s failure to

demonstrate his appreciation for the wrongfulness of his conduct

and the harm it has caused in Division 2, and Roberson asserts no

new arguments in this enumeration. Accordingly, this claim fails.

4. Finally, Roberson asserts that the record demonstrates by

clear and convincing evidence that he has satisfied the

reinstatement condition requiring him to make full restitution to his

client’s estate. According to Roberson, he has satisfied this condition

because he “voluntarily made restitution making the estate whole”

by settling the legal malpractice suit filed against him for

approximately $450,000. We disagree.

The record shows that, following the legal malpractice

settlement, Roberson has retained approximately $800,000 from his

representation of his client. Thus, he has not satisfied our condition

that he make “full restitution to the estate of all moneys he received

in regard to his representation of the estate.” Roberson, 273 Ga. at

656 (emphasis supplied). Accordingly, we agree with the Board that

15
Roberson has failed to satisfy his condition for reinstatement and

affirm the Board’s denial of his application for certification of fitness.

See In the Matter of Bartko, 312 Ga. 630, 631 (864 SE2d 39) (2021)

(affirming the Board’s decision to deny the applicant reinstatement

in part because the applicant “has made little progress toward

satisfying his obligation to pay restitution”).

Denial of Certification of Fitness to Practice Law affirmed. All

the Justices concur.

Decided May 31, 2023.

Certification of fitness to practice law.

Kimberly L. Copeland, for Roberson.

John A. Earles, Rebecca S. Mick, for Office of Bar Admissions.

Christopher M. Carr, Attorney General, Bryan K. Webb, Deputy

Attorney General, Russell D. Willard, Jennifer Colangelo, Senior

Assistant Attorneys General, for Board to Determine Fitness of Bar

Applicants.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia

Decided: May 31, 2023

S23Z0402. IN THE MATTER OF DAVID ROBERSON.

PER CURIAM.

This is an appeal from a final order of the Board to Determine

Fitness of Bar Applicants (the “Board”) denying an application for

readmission to the State Bar of Georgia (the “State Bar”) filed by

David Roberson, who was disbarred in 2001 for multiple violations

of the Georgia Rules of Professional Conduct.1 Roberson argues that

Roberson was disbarred on April 5, 2001. In 2021, Roberson applied
1

for readmission to the State Bar by submitting to the Board an Application for
Certification of Fitness to Practice Law. On October 7, 2021, the Board
conducted an informal conference to determine Roberson’s fitness to practice
law. Following the informal conference, the Board issued a Tentative Order of
Denial, and Roberson timely requested a formal hearing. The Board provided
Roberson with the specifications for the denial on February 14, 2022, which
Roberson answered on March 8, 2022. On April 25, 2022, this Court appointed
a hearing officer, and a formal hearing was held on August 10, 2022. On
October 14, 2022, the hearing officer issued a report and recommendation,
recommending that Roberson’s application be denied. On November 10, 2022,
the Board adopted the hearing officer’s recommendation and issued its final
order denying Roberson’s application. Roberson timely filed his notice of
the record demonstrates by clear and convincing evidence that (1)

he is rehabilitated from the conduct for which he was disbarred; (2)

he appreciates the scope and harm of the conduct for which he was

disbarred; and (3) he has satisfied the reinstatement condition

established by this Court. For the reasons that follow, we conclude

that the evidence supports the Board’s decision to deny Roberson’s

certification and affirm.

1. The record shows that Roberson was admitted to the State

Bar in 1980. In 2001, this Court disbarred Roberson for his

mishandling of a medical malpractice case. See In re Roberson, 273

Ga. 651, 652-656 (544 SE2d 715) (2001). This Court concluded that

the State Bar had shown by clear and convincing evidence that

Roberson violated multiple standards of former Bar Rule 4-102 (d)2

appeal in this Court.

2Specifically, this Court concluded that Roberson violated the following
standards of former Bar Rule 4-102 (d):
4 (a lawyer shall not engage in professional conduct involving
dishonesty, fraud, deceit, or wilful misrepresentation); 30 (except
with the written consent of or written notice to his client after full
disclosure a lawyer shall not accept or continue employment if the
exercise of his professional judgment on behalf of his client will be

2
by improperly issuing checks from his client’s settlement funds to

himself, his co-counsel, and non-parties without the court’s approval

of the final settlement; knowingly inflating the value of the client’s

or reasonably may be affected by his own financial, business,
property or personal interests); 31 (a) (a lawyer shall not enter into
an agreement for, charge, or collect an illegal or clearly excessive
fee); 31 (d) (2) (upon conclusion of a contingent fee matter, the
lawyer shall provide the client with a written statement stating
the following: (i) the outcome of the matter; and, (ii) if there is a
recovery: (aa) the remittance to the client; (bb) the method of its
determination; (cc) the amount of the attorney fee; and (dd) if the
attorney’s fee is divided with another lawyer who is not a partner
in or an associate of the lawyer’s firm or law office, the amount of
fee received by each and the manner in which the division is
determined); 36 (a lawyer shall not continue multiple employment
if the exercise of his independent professional judgment on behalf
of a client will be or is likely to be adversely affected by his
representation of another client, except to the extent permitted
under Standard 37); 44 (a lawyer shall not without just cause to
the detriment of his client in effect wilfully abandon or wilfully
disregard a legal matter entrusted to him); 61 (a lawyer shall
promptly notify a client of the receipt of his funds, securities or
other properties and shall promptly deliver such funds, securities
or other properties to the client); 63 (a lawyer shall maintain
complete records of all funds, securities, and other properties of a
client coming into the possession of the lawyer and promptly
render appropriate accounts to his client regarding them); and 65
(A) (a lawyer shall not commingle his client’s funds with his own,
and shall not fail to account for trust property, including money
and interest paid on the client’s money, if any, held in any fiduciary
capacity).
Id. at 651.

3
future medical expenses in the settlement papers he filed with the

court in order to justify the attorney’s fees he had already paid to

himself and his co-counsel; collecting an excessive fee;3 failing to

provide the client with a written statement detailing the

contingency fee arrangement; willfully disregarding legal matters

entrusted to him by failing to attend the first settlement hearing

and failing to establish a trust for the client’s children; failing to

disclose client conflicts and personal financial interests; and failing

to promptly deliver client funds and maintain adequate records of

the settlement funds received. See id. This Court also imposed as a

condition for reinstatement that Roberson “make full restitution to

the estate of all moneys he received in regard to his representation

of the estate.” Id. at 656.

In 2021 — twenty years after his disbarment — Roberson

applied for readmission to the State Bar by submitting to the Board

his Application for Certification of Fitness to Practice Law. In his

3 In his answer to the State Bar’s specifications, Roberson admitted
paying himself and his co-counsel approximately $2,333,000 from the client’s
$3,325,000 cash settlement.
4
application, Roberson described the circumstances leading to his

disbarment as an “[i]mproper handling of proceeds from a personal

injury recovery,” and disclosed that he had settled a legal