IN THE MATTER OF DAVID J. FARNHAM.
S21Y0597
In the Supreme Court of Georgia
Decided: June 21, 2021
PER CURIAM.
Thе State Bar initiated this disciplinary matter in 2019 with the filing of a Formal Complaint, charging respondent David Farnham
The Review Board, following briefing and oral argument, recommended that this Court remand the matter to the Special Master for the completion of discovery and consideration of the case on the merits. We agree that a remand to the Special Master is appropriate, but for the more limited purpose of a hearing on the motion to strike.
The relevant procedural history is undisputed. The Bar mailed the Formal Complaint to Farnhаm on April 12, 2019, and on June 14, he filed an acknowledgment of service, which was dated May 22. Farnham filed his answer on June 25, after obtaining an extension of time; in his answer, he denied any wrongdoing.
On August 5, the State Bar emailed Farnham and requested that he provide dates on which he would be available for a deposition over the next 45 days. Farnham‘s assistant replied on August 7, stating that Farnham had become very ill during the last week of July; that Farnham‘s doctor had recommended several treatments that would prohibit his return to work until September; and that she would be unable to schedule anything until there were further updates on his health. On August 12, the State Bar sent another email requesting dates in September that Farnham would be available for a deposition and asking Farnham to file a medical leave of absence. One of Farnham‘s employees promptly emailed the State Bar an “Emergency Medical Leave of Absence” that included a statement from a doctor indicating that Farnham had been in his care since July 29 and would be able to return to work on August 26. In response, the State Bar stated that it was willing to delay the proceedings until the following month and requested that Farnham provide dates that he would be available for a deposition in September. After receiving no reply, thе State Bar emailed Farnham on August 15, stating that it was prepared to notice the deposition for a date not covered by the medical leave if he did not provide responses by 10:00 a.m. the following day addressing whether there were any court dates that would conflict with a deposition and Farnham‘s preference for a location. The next morning, Farnham‘s assistant replied that the best dates for Farnham were September 25 or 26 and that he would come to the State Bar‘s headquarters. The State Bar then served Farnham with discovery, including interrogatories and requests for admissions and production of documents. Eventually, Farnham and the State Bar agreed to set Farnham‘s deposition for October 11 at the State Bar‘s headquarters, but then agreed to reschedule for October 15, and the Bar noticed the deposition for that date.
Meanwhile, on September 8, the Special Master emailed the parties to request a scheduling conference, and, after receiving no response from Farnham, notified the parties on September 13 that the conference would be held, by telephone, on September 19 at 4:00 p.m. Farnham responded on September 16, stating that his August medical leave pushed his cases into September, making scheduling difficult; and suggested September 20 as an alternate date for the conference. The conference with the Special Master was held by telephone on September 20, and during that conference, Farnham requested that his deposition be rescheduled for November 5 and that he be allowed an extension until October 28 to respond to the State Bar‘s outstanding discovery requests. With the State Bar‘s agreement to those requests, the Special Master issued a scheduling order on September 23, giving Farnham until October 28 to respond to the discovery requests and setting the deposition for November 5 at the State Bar‘s headquarters. The State Bar also formally noticed the deposition. On October 29, Farnham filed a
On November 4, at 5:58 p.m., the evening before his deposition, Farnham emailed the State Bar, stating that he had been ill all weekend and would not be able to appear for his deposition and that the parties would need to modify the scheduling order to reschedule it. He indicated that his doctor would reevaluate him the following week аnd suggested that the parties reschedule for another date after November 15. The follow morning, Farnham provided to the State Bar a doctor‘s letter, which was dated November 4 and stated that “it remains medically necessary that [Farnham] only work part time for at least the next 2 weeks [and that he] cannot pаrticipate in a jury trial for at least the next 2 weeks.” The State Bar responded that it was not willing to suspend disciplinary proceedings while Farnham continued to show up in court and represent clients; that it intended to appear at the appointed time and make a record; and that Farnham should present the Special Master with any legally sufficient requests to reschedule. Farnham responded with a lengthy email, stating that he had been quite ill, he intended to defend himself, and he had confidence that when all the facts were examined, the situation would appear much differently than as alleged in the Formal Complaint. Farnham did not appear for his deposition and did not contact the Special Master. The State Bar went forward with the deposition, made a record of Farnham‘s non-appearance, and offered various exhibits, including the email threads about his non-appearance. On November 6, the State Bar emailed the Special Master about Farnham‘s failure to appear, and although Farnham was copied on the email, he did not respond.
On November 22, the State Bar filed its motion to strike Farnham‘s pleadings, citing Bar Rule 4-212 (c) (parties in disciplinary matters may engage in discovery under rules applicable in civil cases) and
Without holding а hearing, the Special Master entered an order on January 17, 2020, granting the State Bar‘s motion to
In the order, the Special Master determined that Farnham‘s responses to the State Bar‘s discovery requests were insufficient in several ways; that Farnham acted willfully in failing to submit adequate responses; that he willfully refused to be deposed; and that his disregard of his obligations related to the disciplinary matter were not the result of his health and medical issues but were due to the backlog in his law practice. The Special Master concluded that the State Bar was entitled to relief under
The Review Board, however, in addressing the order striking Farnham‘s pleadings, noted that courts generally have been reluctant to impose the harshest sanction without first determining that a party‘s failure to engage in discovery was willful following notice and an opportunity to be heard. See Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 210 (538 SE2d 441) (2000) (setting forth two-step process under
The State Bar has filed exceptions to the Review Board‘s report, arguing, in relevant part, that the Review Board lacked the authority to recommend a remand. Instead, it asserts that this Court must either treat the Review Board‘s recommendation as a nullity and issue our own conclusions of law based on the Special Master‘s factual findings or remand the matter to the Review Board to either recommend the imposition of discipline or the dismissal of the formal complaint. Farnham, in responding to the State Bar‘s exceptions, asks that the Court accept the Review Board‘s recommendation or impose a suspension of six months.
After our review of the lengthy record and the parties’ extensive briefs, we conclude that under these circumstances, a hearing ought to be held on the State Bar‘s motion to strike. As an initial matter, we reject the State Bar‘s contention that this Court‘s review of a disciplinary matter is somehow constrained. See In the Matter of Turk, 267 Ga. 30, 31 (471 SE2d 842) (1996) (because this Court has inherent and exclusive power to regulate the practice of law, it exercises ultimate discretion in disciplinary proceedings); see also In the Matter of Wadsworth, 307 Ga. 311, 312 (835 SE2d 632) (2019) (noting Court‘s authority and discretion in bar disciplinary matters); Bar Rule 4-218 (This Court will consider reports of Special Master and Review Board, exceptions thereto, and responses, and enter judgment upon the formal complaint).
Additionally, we note that the disciplinary cases in which we have affirmed the imposition of the harshest sanction without a hearing have involved a party‘s total failure to respond to discovery or to provide any explanation for the failure to meet his discovery obligations, neither of which circumstance is present here. See In the Matter of Johnson, 308 Ga. 233, 235 (838 SE2d 755) (2020) (lawyer failed to respond in any way to discovery requests and or to offer any explanation for the failure to respond); In the Matter of Burgess, 293 Ga. 783, 784, 786 (748 SE2d 916) (2013) (special master struck pleadings in six matters after respondent filed only three timely answers, filed a petition for voluntary
Accordingly, we vacate the Special Master‘s order striking Farnham‘s pleadings, the Special Master‘s Report and Recommendation, and the Review Board‘s Report and Recommendation, and we remand this matter to the Special Master for a hearing on the State Bar‘s motion to strike. If the Special Master denies the motion to strike, the matter should proceed with discovery and a hearing on the merits of the formal complaint. See Bar Rule 4-213. If the Special Master again grants the motion to strike and finds Farnham in default as a result, she should nevertheless set a hearing to consider any matters in mitigation or аggravation of punishment that the parties may wish to present. See In the Matter of Nicholson, 299 Ga. 737, 738 (791 SE2d 776) (2016) (noting that special master considered respondent‘s evidence in mitigation after denying respondent‘s motion to set aside default); In the Matter of Miller, 291 Ga. 30, 30 (727 SE2d 124) (2012) (noting that special master considered respondent‘s evidence in mitigation after granting State Bar‘s motion for default); In the Matter of Perkins, 255 Ga. 176, 176 (336 SE2d 254) (1985) (noting that special master considered respondent‘s evidence in mitigation after denying respondent‘s motion to open default). Compare Bar Rule 4-208.1 (b) (unless Notice of Discipline is rejected, respondent shall be in default and “shall have no right to any evidentiary hearing“) (emphasis supplied).
Vacаted and remanded with direction. All the Justices concur.