In re Woodham

BENHAM, Justice,

dissenting.

I respectfully disagree with the conclusion of the majority that the record fails to show clearly and convincingly a violation of Rule 8.4 (a) (4) as charged in the Bar’s formal complaint against Woodham. Instead, upon review of the record, I agree with the conclusion of the trial court judge in the underlying case in which Woodham’s conduct was manifested: Woodham’s conduct was “egregious, improper and appalling to the [c]ourt and to the practice of law.”* *****7 Accordingly, I dissent and would impose a six-month suspension and Review Panel reprimand, as recommended by the Report and Recommendation of the Review Panel.

Rule 8.4 (a) (4) forbids a lawyer to “engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation.” In reaching its conclusion that the case against Woodham fails to show a violation of that rule, the majority relies upon the language of the bond validation statute which permits a private citizen of the political subdivision desiring to issue the bonds to intervene in a bond validation proceeding. According to the majority, the fact that W°odham offered to dismiss his complaints in intervention in exchange for private gain does not establish dishonesty because the statute permits him to intervene for either public or private reasons. But no lawyer may, without ethical consequences, intervene in a civil action for dishonest reasons. The majority’s analysis of this issue ignores certain aspects of the record. The majority opinion looks only to the *627rationale of the Special Master’s Report and Recommendation, which it rejects, and ignores the clear and convincing evidence that nevertheless demonstrates violation of the Rule.8

First, the combined amount of the two validation proceedings in which Woodham intervened was $1.3 billion. Thus, when Woodham offered to dismiss his complaints in intervention in these two proceedings, immediately upon filing them, in exchange for payment of one percent of the bond issuance, he was demanding payment of $1.3 million. Woodham admitted that at about the same time as the conversation at issue in this disciplinary action, he also contacted by telephone the corporate counsel of another developer with a pending bond validation proceeding in which he had intervened, and similarly offered to dismiss his filings in that proceeding if the developer would pay him one percent of the bond issuance. The Special Master found from the evidence that Woodham also contacted in-house counsel for yet a third developer involved at that time in a bond proceeding, but that developer’s counsel declined to speak with Woodham and directed him back to counsel for the development authority that was to issue the bonds. This evidence supports the conclusion that Woodham engaged in a scheme to intentionally and purposefully misuse his right to intervene in these proceedings in a dishonest and fraudulent manner for the purpose of gaining a financial windfall. Had Wood-ham prevailed in these bond proceedings the result would have been denial of the bond validation petition, not recovery of substantial sums for himself. His complaints in intervention sought no monetary damages, other than a prayer for attorney fees incurred in the action. He alleged only that the bond transactions were unconstitutional and violated the statutory scheme.

Testimony was presented to the Special Master that authenticated the transcript of the telephone conversation between Wood-ham, the developer, and the developer’s litigation counsel, in which Woodham repeatedly states that he is prepared to litigate all the way to the Supreme Court unless the case is settled, saying: “Now, if you guys want to prevent that from happening, you have a way out, and I’ve just suggested it.” This statement, in conjunction with the other evidence in the case, leads me to conclude that Woodham’s demand for $1.3 million and his threat to drive up litigation expenses if this *628demand was not met, was not a legitimate attempt at settling his claim. Rather, it was a dishonest attempt to leverage his constitutional challenge into an extortion of money for himself.9

As the majority notes, a trial court may, and did in this case, award statutory attorney fees in the bond validation proceedings for the filing of frivolous claims or conduct that unnecessarily expand the proceedings. But the fact that sanctions were imposed pursuant to that statutory rule10 does not relieve a member of the bar from sanctions that may be imposed for violation of Rule 8.4 (a) (4).11

*629Decided February 16, 2015. Paula J. Frederick, General Counsel State Bar, Jenny K. Mittelman, Assistant General Counsel State Bar, for State Bar of Georgia. Rosalind A. Rubens-Newell, Hunton & Williams, Matthew J. Calvert, Douglass P. Selby, amici curiae.

It is not the fact that Woodham betrayed the public interest by his offer to settle for private gain that makes his conduct a violation of the Rule. Nor did the State Bar’s complaint alleging violation of Rule 8.4 (a) (4) charge that Woodham violated the Rule by offering to compromise the public interest in favor of private gain, as one might assume from the language of Division 4 of the majority opinion. Instead, the complaint sets forth a detailed description of Woodham’s conduct in the validation proceedings and charged that this conduct was a violation of the Rule. The complaint along with the evidence of record supports a finding by this Court that, with an obvious intent to misuse the statutory intervention procedure, Woodham dishonestly utilized his complaints in intervention for the improper purpose of attempting to gain a small fortune for himself. For purposes of this disciplinary proceeding it matters not that Woodham had a right to intervene. Woodham attempted to “shake down” developers involved in proposed bond transactions for payments to which he would never have been entitled even if he prevailed and obtained orders barring the bond transactions. In my opinion, an attorney’s scheme, as here, to extract, in effect, a payoff in exchange for dismissing a series of complaints that seek no damages whatsoever is unprofessional conduct involving a dishonest, fraudulent, and deceitful misuse of civil process that violates Rule 8.4 (a) (4).

I am authorized to state that Justice Hunstein joins in this dissent.

Georgia v. Atlanta Development Auth., Superior Court of Fulton County, Civil Action No. 2008CV159232, Order dated June 1,2011, p. 32. This order has been appealed and affirmed without opinion. Woodham v. Atlanta Development Auth., 318 Ga. App. XXIV, Case No. A12A2334 (Nov. 29, 2012).

This Court is not bound by the conclusions of law of the Special Master or the Review Panel. In the Matter of Morse, 265 Ga. 353 (1) (456 SE2d 52) (1995) (“In disciplinary proceedings, this court owes no deference to the review panel’s conclusions of law. Whether an attorney has violated a particular standard of conduct is a legal question.”); see also In the Matter of Ballew, 287 Ga. 371, 374 (695 SE2d 573) (2010).

At the hearing before the Special Master, the State Bar introduced into evidence the June 1, 2011, order of the trial court in the bond validation proceeding awarding attorney fees and litigation expenses in favor of the developers in the amount of $435,847.86, and against Woodham and the organization he represented, jointly and severally. Upon Woodham’s objection, the Special Master ruled that the trial court’s order was admitted only for demonstrating the procedural history of the case and not for the truth of the findings and conclusions contained in it. I recite some of the findings and conclusions contained in the order, however, because I believe they are instructive in this matter. The findings show that the trial court, after also having the opportunity to hear and consider witness testimony and other relevant evidence, made a number of findings and reached a number of conclusions of law that are consistent with the findings of the Special Master with respect to Woodham’s dishonest motives in filing his complaints in intervention in these actions and then promptly offering to dismiss them in exchange for personal gain. The trial court found, for example:

• that Woodham intervened in the bond cases “for the singular purpose of extracting a $1.3 million payment from parties against whom Intervenors [Woodham and the organization named as a co-intervenor] had no legal claims, as a condition for dismissing the [cjomplaints in [ijntervention.”
* Woodham’s threats to pursue the interventions all the way to the Supreme Court and thus to increase the developers’ litigation expenses were made “in order to drive up the [developers’] litigation expenses if his conditions were not met.”
' “Woodham, as a lawyer, is an officer of the court and engaged in egregious and improper conduct that no lawyer should engage in the practice of law. Woodham used his knowledge and deliberately tried to extract a large payment from [d]evelopers by his intervention in this matter when he knew he had no claims against these [djevelopers. His conduct is egregious, improper and appalling to the [c]ourt and to the practice of law.”

See June 1,2001, order of the trial court, cited herein at footnote 7, supra. The trial court’s order was affirmed without opinion by the Court of Appeals. Woodham v. Atlanta Development Auth., supra at footnote 7.

Further, the trial court’s order shows the amount of attorney fees awarded in the bond validation proceedings was based not only on the finding that Woodham had intervened in the proceedings without substantial justification, but also upon the finding that Woodham’s other conduct in the proceedings caused the opposing parties unnecessary expense - for example, his contemptuous failure to attend court-ordered hearings and the filing of various motions that were deemed baseless and interposed solely for purposes of delay. See June 1,2011 order of the trial court cited in footnote 7, supra. That conduct is unrelated to the conduct at issue in this disciplinary action.

See In the Matter of Tucker, 295 Ga. 357 (759 SE2d 854) (2014), and also Nahmias, J., concurring, at 358-359 (suspension by a federal bankruptcy court as a result of the same conduct involved in the disciplinary action does not qualify as a mitigating factor in determining the appropriate discipline); In the Matter of Ortman, 289 Ga. 130 (709 SE2d 784) (2011), *629Nahmias, J., concurring at 131-132 (prior criminal punishment for the same conduct involved in the disciplinary action should not qualify as a mitigating factor on the disciplinary sanction to be imposed).