In the Supreme Court of Georgia
Decided: October 20, 2014
S14Y1733. IN THE MATTER OF KENNETH H. SCHATTEN.
PER CURIAM.
This disciplinary matter is before the Court on the Report and
Recommendation of the special master, M.T. Simmons, Jr., who recommends
that the Court accept the petition for voluntary discipline filed by Respondent
Kenneth H. Schatten (State Bar No. 628813) after the issuance of a Formal
Complaint and that it impose, as requested, a Review Panel reprimand for
Schatten’s admitted violation of Rules 1.16 (d) and 9.3 of the Georgia Rules of
Professional Conduct, see Bar Rule 4-102 (d). The State Bar has no objection
to Schatten’s petition and we agree that a Review Panel reprimand is
appropriate.
Schatten admits that he represented a client in a number of matters where
she was the victim of domestic abuse. The client did not pay Schatten for these
representations until January 2010, when her father paid for the representation
through that date. At that time, the client and her father also signed a contract
of employment and paid Schatten a retainer to represent the client in a divorce
action filed by her in Fulton County and a family violence petition filed by her
husband against her in Cherokee County. Later that same month, the client
decided to seek reconciliation with her husband and dismissed Schatten, who
ceased working on her case. Although Schatten admits that the client and her
father had a remaining retainer balance of $2,727.50 at the time of his discharge,
due to his financial circumstances he was unable to refund that amount to her
and her father.1 The client and her father eventually initiated a fee dispute and
in May 2011, the arbitration panel entered an award of $4,727.50 in favor of the
client and her father, but Schatten remained unable to pay. The award was
confirmed in the Superior Court of Fulton County which entered judgment
against Schatten in February 2013. In April 2013, Schatten (acting through
counsel) negotiated a Payment Plan Agreement and when Schatten completed
payment under that plan in October 2013, the client and her father entered a
satisfaction of their judgment against him. In the meantime, the Investigative
Panel initiated a grievance against Schatten based on a referral from the
1
Schatten was not required to place the retainer in his trust account, but was still
obligated to return unearned fees to the client, see Formal Advisory Opinion 91-2.
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Committee on the Arbitration of Attorney Fee Disputes. As a result of
Schatten’s failure to respond to the grievance in a timely manner, Schatten
served an interim suspension from January 2012 through August 2012.
By his actions Schatten violated Rules 1.16 (d) and 9.3 of the Georgia
Rules of Professional Conduct in his dealings with the client and her father.
Although the maximum sanction for a violation of either rule is a public
reprimand, and although Schatten has two prior investigative panel reprimands
(the first from February 2011 and the second in July 2013 for inappropriate
conduct during the interim suspension related to this matter), various mitigating
factors exist. Specifically, Schatten had been suffering from personal or
emotional problems during the relevant time frame as evidenced by the fact that
he was diagnosed with severe depression in February 2012 and was told that he
likely had been suffering from this depression through most of the previous
seven years or longer. Schatten began intensive counseling with a licensed
clinical social worker in February 2012 and devoted almost all of the time he
was on suspension to tackling his depression. He has resumed the full time
practice of law, but continues counseling on at least a weekly basis and takes
appropriate medication. Further, Schatten worked out a reasonable payment
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plan to reimburse his client and kept to it until he fully paid the judgment
awarded in the fee arbitration process. And, although Schatten initially failed
to participate in the disciplinary process, he subsequently cooperated and has
expressed genuine remorse. Finally, Schatten has demonstrated his good
character and reputation in the legal community, given that he was instrumental
in the development of the Fulton County Superior Court Family Division in
Atlanta, that he was a Master in the Georgia Family Law American Inn of Court,
that he sits on the Board of Advisors of the Cardozo Program in Family Law,
Policy and Bioethics, that he has served on the faculty at the Emory University
School of Law Program for Trial Techniques, that he worked as an adjunct
professor in family law at John Marshall Law School, that he has published and
lectured extensively throughout the United States in the area of family law, and
that he served as vice chair of the Family Courts Committee of the American
Bar Association.
Based on our review of the record, this Court agrees with the special
master that repetition of the misconduct is unlikely inasmuch as it was related
to Schatten’s financial circumstances and personal problems which have now
been addressed. For that reason and because the State Bar does not object, we
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accept Schatten’s petition for voluntary discipline and order that he receive a
Review Panel reprimand in accordance with Bar Rules 4-102 (b) (4) and 4-220
(b) for his admitted violation of Rules 1.16 (d) and 9.3.
Petition for voluntary discipline accepted. Review Panel reprimand. All
the Justices concur.
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