In the Matter of L. Nicole Brantley ( 2021 )

In the Supreme Court of Georgia
Decided March 1, 2021
S21Y0339. IN THE MATTER OF L. NICOLE BRANTLEY.
PER CURIAM.
This disciplinary matter is before the Court on the report and
recommendation of Special Master Quentin Marlin recommending
that the Court accept the petition for voluntary discipline filed by L.
Nicole Brantley (State Bar No. 320909) and impose a Review Board
reprimand for Brantley’s failure to return unearned fees after being
discharged by a client, who then obtained a fee arbitration award
that Brantley failed to pay in a timely manner.1
1 This Court issued an order on January 12, 2018, comprehensively
amending Part IV of the Rules and Regulations for the Organization and
Government of the State Bar of Georgia. The former rules govern this matter
because it was commenced prior to July 1, 2018, but because the Review Panel
has been renamed the State Disciplinary Review Board, this opinion refers
only to the Review Board.
Brantley was admitted to the Bar in 2002 and, as detailed
below, has a lengthy history of disciplinary sanctions. The record
here shows that Brantley was retained to represent a client in a
criminal matter and paid $6,000 in advance, but after the client
discharged Brantley, Brantley failed to refund the balance of
unearned fees. The client filed a petition for fee arbitration with the
State Bar of Georgia, but after the arbitration panel issued a $4,000
award in the client’s favor, Brantley failed to pay the award. In July
2015, the client filed a grievance with the State Bar, and in April
2016, the State Bar filed a Formal Complaint.
In its complaint, the State Bar recited the following chronology.
After being retained in October 2013, Brantley was discharged by
the client, who was dissatisfied with Brantley’s lack of
communication and failure to follow his instructions in handling his
case. Brantley, however, never submitted a written request to
withdraw, in violation of Uniform Superior Court Rule 4.3, and
failed to appear at a February 2014 hearing in the case. In April
2014, after Brantley had failed to return the unearned portion of her
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retainer, the client filed a fee arbitration petition, seeking a refund
of $4,000. Brantley submitted an answer, in which she agreed to be
bound by the fee arbitration award, but thereafter failed to appear
at the fee arbitration hearing. In March 2015, written notification
of the fee award was sent to Brantley, with direction that the award
be paid within 90 days. After the 90-day period elapsed, the client
filed his grievance. Though Brantley attested, in her sworn
response to the Notice of Investigation, that she had never received
notice of the fee arbitration hearing or award, none of the written
communications from the fee arbitration office, which were sent to
her at the return address she had listed in responding to the fee
arbitration petition, had ever been returned as undeliverable.
In the Formal Complaint, the Bar charged only a violation of
Rule 1.16 (d) of the Georgia Rules of Professional Conduct found in
Bar Rule 4-102 (d). Rule 1.16 (d) addresses a lawyer’s obligations
upon the termination of a representation; requires, in relevant part,
that a lawyer refund any advance fee payment that has not been
earned; and sets a maximum sanction for a violation as a public
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reprimand. The complaint, however, also noted that Brantley had
been subject to discipline on multiple prior occasions and that,
accordingly, she could be subject to suspension or disbarment. See
Bar Rule 4-103 (third or subsequent infraction “shall, in and of itself,
constitute discretionary grounds for suspension or disbarment”).
In her unsworn answer to the Formal Complaint, filed in June
2016, Brantley denied that she was terminated by the client; denied
that she had failed to refund unearned fees; and claimed that she
had “never received any notice of any [fee] award until this
proceeding.” However, in August 2016, Brantley filed her petition
for voluntary discipline, admitting, unconditionally, that she had
been discharged by the client, had failed to refund the client’s
unearned fees, and, though she had agreed to be bound by the fee
arbitration panel’s decision, had not paid the fee arbitration award.
Brantley made no representations as to whether she had received
notice from the fee arbitration office regarding the hearing or the
subsequent fee award. She offered, as mitigation, to pay the $4,000
fee arbitration award in monthly installments of $500.
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In its response, the State Bar stated its position that the
interests of the public and Bar would be best served by acceptance
of the petition, but only after Brantley submitted proof that she had
refunded the full $4,000 fee award. After Brantley submitted proof
to the State Bar that she had completed the installment payments,
the Special Master issued his report and recommendation.2
The Special Master determined that Brantley’s conduct
violated Rule 1.16 (d); that, while Brantley had repaid the fee award,
she had not done so in a timely manner, as she should have
completed the payments in March 2017; and that she had been
sanctioned in 11 prior disciplinary cases. Specifically, the Special
Master noted that Brantley had received an Investigative Panel
reprimand in 2006; two Formal Letters of Admonition in 2010;
2 On July 22, 2020, this Court entered an order appointing Marlin as
Special Master; the order also vacated the 2016 order that had appointed a
prior special master. Marlin issued his report on September 20, 2020. His
thorough and helpful report reflects that Brantley submitted her proof of final
payment to the State Bar in July 2017. The record does not reflect why the
State Bar allowed the matter to sit idle for three years.
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another Investigative Panel reprimand in 2010; a third Formal
Letter of Admonition in 2014; and, in 2016, a 180-day suspension.
See In the Matter of Brantley, 299 Ga. 732 (791 SE2d 783) (2016)
(“Brantley I”).3 The Special Master then considered various
aggravating and mitigating factors as set forth in the ABA
Standards for Imposing Lawyer Sanctions. See In the Matter of
Morse, 266 Ga. 652, 653 (470 SE2d 232) (1996). While opining that
Brantley’s “disciplinary history suggests a more serious
consequence,” the Special Master noted that the maximum penalty
under Rule 1.16 is a public reprimand. Further noting that
Brantley’s misconduct, the fee arbitration, and the client grievance
all occurred while Brantley was litigating the matters giving rise to
her 2016 suspension, the Special Master concluded that Brantley’s
request for a Review Board reprimand should be accepted.
While we are mindful that the maximum sanction for a
violation of Rule 1.16 is a public reprimand, we are unable to view
3Brantley was reinstated in 2017. See In the Matter of Brantley, 301 Ga.
653 (802 SE2d 252) (2017).
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Brantley’s conduct here apart from the larger context in which this
violation was committed and the apparent initial lack of candor
Brantley has displayed in this proceeding. With regard to the
context, we note, as the Special Master did, that in 2016 this Court
suspended Brantley for 180 days based on professional misconduct
occurring in five matters. As set forth in Brantley I, that misconduct
involved Brantley’s neglect of client matters; her failure to respond
to disciplinary authorities; and her continued practice of law while
under administrative suspension for failure to pay her bar dues. See
299 Ga. at 733-734. The matters for which Brantley had been
previously disciplined, we noted, primarily involved her failure to
adequately communicate with her clients, as well as trust account
violations that did not result in any loss of client funds. See id. at
734. In Brantley I, we expressed concern with the seriousness of
Brantley’s misconduct but were persuaded that the significant
mitigating factors compelled leniency:
Although these violations are very serious and the
maximum sanction for a single violation of Rule 1.3, 5.5,
or 8.1 is disbarment, we agree that the record reveals
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various, significant factors in mitigation, including that
most of Brantley’s violations involve improper or
incomplete communication with her clients, that none of
her actions appears to have caused her clients lasting
harm, that all of her violations seem to be the result of
negligence as opposed to wilful behavior, and most arose
at a time of great emotional stress and/or physical
impairment. We further agree that Brantley has
expressed genuine remorse for her behavior, that she has
provided service to her community, both as an attorney
and as a volunteer, and that she has taken significant
steps to improve herself and her practice, resulting in no
known client-based grievances since 2011.[4]
Id. at 735.
Here, unlike in 2016, we face a situation in which Brantley,
having been disciplined on numerous prior occasions and while
litigating misconduct that ultimately resulted in her suspension,
willfully refused, without apparent explanation, to refund several
thousand dollars in client fees; failed to appear at the subsequent
fee arbitration hearing; and persisted in refusing to make any
payment until after a Bar grievance was filed and a Formal
Complaint was issued. Here, the misconduct occurred well after the
4 The record in Brantley I apparently contained no evidence of the
grievance at issue here.
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time period during which the misconduct at issue in Brantley I
occurred, and, unlike in Brantley I, Brantley has made no
representations regarding any personal hardship that should be
considered in mitigation in relation to this violation.
Furthermore, in addition to Brantley’s considerable
disciplinary history, there are significant aggravating factors
present in this case. These factors include Brantley’s initial refusal,
in her answer to the Formal Complaint, to acknowledge the
wrongful nature of her conduct; her initial denial, in that answer, of
various statements of fact regarding her conduct that she now
admits; and her failure to offer to pay the arbitration award until
some 18 months after it was issued.
Conversely, Brantley has demonstrated little in the way of
mitigation. The fact that she has made restitution carries no
mitigating weight given that she did so only after the initiation of
disciplinary proceedings. See In the Matter of Hunt, 304 Ga. 635,
641-642 (820 SE2d 716) (2018) (citing ABA Standard 9.4 (a), which
provides that forced or compelled restitution is neither aggravating
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nor mitigating); In the Matter of Thomson, 266 Ga. 157, 158 n.1 (1)
(464 SE2d 818) (1996) (restitution in response to court order was not
mitigating). And while Brantley also cites in mitigation that she
“has cooperated with the State Bar” in submitting her petition and
that she “expresses sincere remorse,” these assertions ring
somewhat hollow in the context of Brantley’s lengthy delay in
accepting responsibility for her misconduct here.
For these reasons, we conclude that Brantley’s proposed
discipline is insufficient. Accordingly, we reject Brantley’s petition
for voluntary discipline and remand for an evidentiary hearing. See
In the Matter of Veach, ___ Ga. ___ (851 SE2d 590, 592) (2020)
(noting Court’s practice, when finding proposed discipline
insufficient, of rejecting a petition for voluntary discipline rather
than imposing a greater sanction).
Petition for voluntary discipline rejected. All the Justices
concur.
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