In Re Ballew
Lead Opinion
This matter is before the Court on the Report and Recommendation of the Review Panel, which adopted some of the Special Master’s findings of fact and conclusions of law, and rejected others. The State Bar filed a Formal Complaint against Respondent Marcus Stan Ballew charging him with violating Rules 1.2 (a), 1.3, 1.4, 1.8 (e), 1.15 (I), 1.15 (II), 3.2, 8.4 (a) (4), and 9.2 of the Georgia Rules of Professional Conduct, see Bar Rule 4-102 (d). The Special Master, Laverne Lewis Gaskins, held an evidentiary hearing after which she issued her report finding that Ballew violated all the rules with which he was charged and recommending disbarment. The Review Panel found that Ballew violated only Rules 1.8 (e), 1.15 (I), 1.15 (II) and 8.4 (a), and recommended that he receive a one-year suspension with the condition for reinstatement that he successfully participate in the State Bar’s Law Office Management Program. Both parties filed exceptions to the Review Panel’s report and both filed responses to each other’s exceptions.
The Special Master found as fact that a client retained Ballew to represent her and her children in connection with a 2001 automobile accident. Although the client instructed Ballew to tell her of any settlement offers and keep her informed about the case, she testified that he did not tell her about the $14,000 settlement, about which she was unaware until 2007; the client also does not recall Ballew telling her about settlement offers for her children before 2006 or 2007. Ballew settled his client’s claim for $14,000 and received a check in August 2003, but he did not provide the client with an accounting reflecting distribution of that money. Ballew settled the children’s claims for $17,500 and endorsed the settlement checks by signing the client’s name; the client does not recall approving the settlement. Pearson, Ballew’s former employee, testified that she recalled discussing settlement offers with the client but stated she was not present when Ballew and the client may have discussed the $14,000 settlement by telephone. Pearson testified that the client knew about and approved the children’s settlement offers. The Special Master found that Pearson lacked credibility because she testified that she would not have notarized the settlement documents without the client’s approval, but she also testified that she falsely notarized documents regarding the client’s case indicating
The Review Panel issued its report in which it found that Pearson’s testimony was credible as she no longer was employed by Ballew at the time she testified so had no interest in the outcome of the case and she had personal knowledge of the client’s case. The Review Panel found Pearson’s testimony credible as to the number of visits and telephone calls the client made to the office, her general knowledge of the case and the numerous conversations she had with the client about the status of the case and the settlement. The Review Panel found the evidence in conflict regarding whether the client consented to the settlement and that it thus did not support a finding by the clear and convincing standard that she did not know about or approve the settlement. The client said
The State Bar filed an exception to the Review Panel report in which it noted that this Court is not bound by the Review Panel’s findings of fact or conclusions of law. The State Bar argued that the Special Master observed Pearson’s demeanor and was in the best position to determine her credibility, and that her previous false swearing by falsifying the notary confirmed her lack of credibility. The State Bar contends Pearson testified only about her opinions, not firsthand knowledge (in that she only put the client on the phone with Ballew but does not know if they discussed the settlement or not, and thought the client was aware of and authorized the settlements, but she did not tell the client herself) and argues that Pearson voluntarily chose to testify for Ballew so obviously had an interest in the outcome. The State Bar claims the record shows the client clearly did not authorize the settlements. It argues that the Review Panel found (by adopting those portions of the Special Master’s findings) that Ballew filed the complaint in Superior Court without consulting his client, without providing her with the pleadings and despite having settled some of the claims, and dismissed the suit without telling her, which conduct violated Rules 1.2 (a), 1.3, 1.4 and 3.2. The Review Panel also found (by not rejecting the Special Master’s findings) that Ballew did not diligently seek a greater recovery in the children’s cases, which violated Rules 1.2 (a), 1.3 and 3.2; did not account for or make the payments to medical providers but simply kept the money, which violated Rules 1.2 (a), 1.3, 1.4 and 1.15 (I); did not pursue Social Security benefits and falsely told the client he was continuing to research that issue, which violated Rules 1.2 (a), 1.3 and 1.4; did not advise his client of the status of her case, which violated Rule 1.4; and offered money and gifts to the client to “buy the peace,” which violated Rule 9.2. The State Bar contends the Review Panel thus failed to make the appropriate legal conclusions despite its factual findings of the underlying misconduct. It urges the Court to disbar Ballew based on his conduct in this matter as it regularly does when a lawyer fails to remit funds to a client and forges signatures, see In the Matter of Turner,
In his exception Ballew admits he violated Rule 1.8 (e) by providing his client financial assistance outside of the litigation in order to help her through financial hardship. He contends the violations of Rules 1.15 (I) and 1.15 (II) were inevitable based on his actions
In response to Ballew’s exception, the State Bar rejects Ballew’s assertion that his decision to give the client money for “humanitarian needs” obviated his obligation to comply with the Bar Rules regarding his trust fund and accounting requirements. It also rejects his argument that his trust fund violations were inevitably caused by his largesse to this client because Ballew “unilaterally chose to appropriate his client’s money,” Response of State Bar, 6. The State Bar notes that there is no way to determine if the client received the correct amount, or more, because of Ballew’s failure to keep adequate records. It also points out that Ballew incorrectly states that the Review Panel found he had not falsified and forged documents; the Review Panel did not reject that finding by the Special Master, and Ballew stipulated that he signed his client’s name to settlement documents and had the documents notarized. The State Bar asserts that the record does not support a punishment of a public reprimand.
We have reviewed the record in this case and conclude that the Special Master was in the best position to observe the parties’ demeanor and credibility. We find the State Bar’s arguments and citation to authority persuasive. Accordingly, after careful consideration of all the evidence submitted, the reports of the Special Master and the Review Panel, and the arguments advanced by all parties, we hereby order that Marcus Stan Ballew be disbarred and that his name be stricken from the rolls of attorneys authorized to practice law in the State of Georgia. He is reminded of his duties under Bar Rule 4-219 (c).
Disbarred.
Dissenting Opinion
dissenting.
I respectfully dissent from the denial of Mr. Ballew’s Motion for Reconsideration regarding his disbarment from the practice of law on April 19, 2010. I would grant the motion and, rather than disbarment, I would suspend Mr. Ballew from the practice of law for a term of two years.
I am authorized to state that Justice Melton and Justice Nahmias join in this dissent.