312 Ga. 65
Ga.2021Background
- The State Bar filed a formal complaint (2019) against attorney David J. Farnham alleging multiple disciplinary violations. Farnham had prior sanctions.
- The Bar served discovery and noticed Farnham’s deposition after scheduling negotiations; Farnham cited medical issues and provided some discovery responses (unverified) and intermittent medical notes.
- Farnham did not appear for his November 5 deposition; the State Bar proceeded and made a record of his nonappearance.
- The State Bar moved to strike Farnham’s pleadings under OCGA § 9-11-37 and Bar Rule 4-212(c); the Special Master, without holding a hearing, granted the motion, deemed the complaint’s facts admitted, and recommended disbarment.
- The Review Board recommended remanding for completion of discovery and consideration on the merits, noting courts usually afford notice and an opportunity to be heard before imposing the harshest sanction.
- The Georgia Supreme Court vacated the Special Master’s orders and remanded for a hearing limited to the State Bar’s motion to strike; if strike is granted, the Special Master must still hold a hearing on mitigation/aggravation before recommending discipline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether striking pleadings as a sanction may be imposed without a hearing | State Bar: Strike was warranted because Farnham willfully failed to comply with discovery and missed deposition | Farnham: Illness and partial responses explain failures; striking pleadings is unduly harsh without a hearing | Court: A hearing is required before imposing the harsh sanction here; vacated strike and remanded for hearing on the motion to strike |
| Whether the Special Master’s factual findings (willfulness) must be reviewed by the Court | State Bar: Review Board lacked authority to order remand; Court should adopt Special Master’s findings | Farnham: Review Board’s remand recommendation should be accepted | Court: Court exercises ultimate discretion; remand for a hearing on the motion to strike is appropriate rather than simply adopting findings |
| Proper remedy if strike is again granted | State Bar: Default should permit immediate discipline recommendation | Farnham: If default entered, should still be allowed mitigation evidence | Court: Even if pleadings are struck and default found, Special Master must hold a mitigation/aggravation hearing before recommending discipline |
| Scope of appellate review in bar disciplinary matters | State Bar: Court should be constrained to Review Board recommendations | Farnham: Court should follow Review Board and allow merits hearing | Court: Court has inherent, exclusive authority over attorney discipline and freely reviews Special Master and Review Board reports; remand is an appropriate exercise of that authority |
Key Cases Cited
- In the Matter of Farnham, 300 Ga. 645 (2017) (respondent’s prior disciplinary history)
- Turk v. In the Matter of Turk, 267 Ga. 30 (1996) (Court’s ultimate authority in disciplinary proceedings)
- Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206 (2000) (two-step OCGA § 9-11-37 process before dismissal)
- In the Matter of Levine, 303 Ga. 284 (2018) (discussing applicability of Uniform Superior Court Rules and sanctions practice)
- In the Matter of Johnson, 308 Ga. 233 (2020) (affirming strike where there was total failure to respond to discovery)
- In the Matter of Burgess, 293 Ga. 783 (2013) (striking pleadings after extensive discovery failures and lack of response)
- In the Matter of Browning-Baker, 292 Ga. 809 (2013) (striking pleadings after repeated last-minute deposition withdrawals and failure to appear at sanctions hearing)
- In the Matter of Nicholson, 299 Ga. 737 (2016) (consideration of mitigation after default)
- In the Matter of Miller, 291 Ga. 30 (2012) (consideration of mitigation after State Bar’s motion for default)
- Perkins v. In the Matter of Perkins, 255 Ga. 176 (1985) (special master’s consideration of mitigation following default)