295 Ga. 4

FINAL C OPY S13Y186 0. IN THE MATTER OF DENISE L. MAJETTE. PER CURIAM. This disciplinar y matter is before the Cou rt on the Rep ort and Recom menda tion of the Review Pane l, concluding that Denise L . Majette (Sta te Bar No. 746843) comm

itted m ultipleviolati ons of the Rules of Pr ofessional Conduct in manufacturing tim e s heets a nd invoice s in conne ction wi th litiga tion inv ol ving a trust. Althou gh the Review Panel r ecommends a three-year suspensio n with conditi ons for r einstatemen t, the State Bar continu es to seek disbarment, as recommended by the special master, Harol d T. Dan iel, Jr. Beca use the rec ord fully

supports the

conclus ion of thespecial master, we agree that dis barment is theproper sa nction. Following

the filing of a fo rmal comp laint a nd a len gthy evi dentia

ry hearing , the special ma ster concluded that Maj ette violated Rules 1 .5 (a) (1), 3.3 (a) (1), 7.1 (a) (1), 8.1 (a), and 8.4 ( a) (4) of t he Georgia Rules of

Professio nal Conduct found

in Bar Rule 4-102 (d). The Review Panel accepted the special master ’s findings and c onclusion s, but also det ermined that the evid ence showed that Majette violated Rul e 1.16 (d), as well as ad ditional vi olations o f Rules 1.52

(a) (1), 8.1 (a), a

nd8.4 (a) (4). The m aximu m sanc tion for a

violati on of any

of these Rules, except Rul es 1.5 (a) (1) an d 1.16 (d) , is disbarment. The facts , as found b y the special master and Review Panel, and supp orted bythe evidence, show t

h at Majette, who was admit ted to the Bar in 1 983 and had a distin guishe d career, w as having financial difficultie s in 2008 while workingpart-time as a

lawyer and part-time as a re al estate agent. As a result, she sought a lo an from a l awyer with whom she was acquain ted. The lawyer declined to loan Majette money, but offered to associa te her in a litigati on matter in which the lawyer and an ass ociate repres ented two cli ents in l itigati on involving a

trust of which the clients were beneficiarie s. Majetteacce pted the offer; the lead lawyer and Majette agreed that Majette’s fee woul d be $200 p er hour. The lawyer paid

Majet te $2,000 as a re tainer

on Septe mber 2 , 2009, a

nd additional sums tot aling$22,500 through March 2010. Th e lawyer considered these sums to be an a dvance to be ap plied a gainst fe es ea rned. M ajett e did not keep contem

poraneou s time

records , but reconst

ructed her tim e shee ts and invoice s from m emory

and from

notes on her calendar or c ompute r. She prepared a time shee t in No vem ber 2009 r eflecting 46 h ours of wo rk between August and November 20, 2009; she p repare d a one-l ine tim e shee t in Janua ry3

2010, refle cting 50 ho urs of work b etwee n December 1 , 2009, and Janu ary 24, 2010. Hearings were held in the lit igation ov er three days in Mar ch an d April 2010; Majet

te part icipat ed in the

hearin gs with t

he lead lawyer and the oth er associated lawye

r. The trial judge in dicated that bot h sides could seek attor ney fees, and Majet te prep ared a

motion f or fees for the c lients. The m otion, which Majette did not pr ovide to th e lead lawye r for re view before fili ng, stated that Majet te’s billing ra

te wa s $500 per ho ur and tha t she ha d spent 260 hours on the

caseas of April 6, 2010. The m oti on st ated that the bill ing rate for th e lead lawyer was $300 and

that he had expend ed 140.9 ho urs on th e case. The lead lawyer had aut horized Majet te to use $300 per hour

for hi mself

and $260 for Majette in connec tion with th e motion, and he had planned to in form the trial judge tha t his cli ent had been bil led at a lowe r rate . Howe ver, Ma jettedid not give the lead l awye r a draf

tof the motion before she file d it. The lead lawyer was stunned b y the filing and eventually caused it t o be withdrawn

. A few days afte r the last he aring, M ajett e aske d the le ad law yer for paym ent of

$38,000, b ut did not pr esent a bill or time sheet, and h e responded that she would hav e to seek payment directly fro m the clients. Majette cal le d4

one of the clients on April 13, 2010, at 1 0 :30 p.m . and de mande d paym ent of $39,400 in fees by the n ext day , tell ing the c lient tha t she wa s in a bind

and needed the money right awa y. The client asked Majette i f she had s ubmitt ed a bill to the lead lawy er, and Majette misrepresented to the

client that sh e had. The client asked that a

copy of the bill be sent to her and agreed to wi re transfer $15,000 to Majette the foll owing day, but stated that she would pay the balance afterreview ing and a

pproving the

bill. A lthough the

client sent the wire transfer

as promise d, Majette did not send a bill until Ma y 10, 2010, and when she did send the bill , it did no t conta in deta ils of wor kdone or timeattribu

table to any specific work, but in s tead si mply l isted 170 hours as t he numb er of hours allegedly worked. The fol lowing da y the c lient re quested

that Ma jetteprovide

a pr oper invoice, which Majette sent on May 11, 2010. Tha t in voic e

summ arize d, in two bri ef para graphs, the 170 hour s from Fe bruary 2 010 t hro ugh April 6, 2010. T

he clie nt aske d a frie nd to help h er obt ain mo re information from Majet te about the invoi ce. T

he frie nd asked Majette for a more detai led bill that also show ed cre dit for the fees already

paid, but Majette refus ed to deal with the client’s intermediary. At the lead law yer ’s reque st, Ma jetteprepare d a new , detailed bil ling5

state ment dated May 2 2, 2010. Th e statement showed 18 0 hours o f work at $200 an hour, plus $232.60 in costs, most of which w as for mileage from Majet te’s house to the lead la wyer’ s office and to the courthouse. Ma jette informed the client that the additiona l 10 hours over the ea

rlier st atem ent represented hours spent

in preparing the statement. The statement also sho wed

a credit of $15 ,00 0 and amount due of $21,262.60 . The c lient sc rutinize d the bill and sent the lead la

wyer the billwith ann otations disputing t he bill, noting

numero us problems with the bill, includin g exce ssive ti me c harged f or reading e-mails (forty ho urs from Februar y 1 to Ma

rch 24); bi lling for a

teleph one conference that did not take place ; twelv e hours for

attend ing a Co ntinuing Legal Education (“CLE”) se minar on appellate practi ce; travel time to and from the leadlawye r’s o ffice on six day s; twelve hours for each hearin g date; and billingf or a social outing . The client concluded that no fur ther payment was due and stated that Majet

te should repay

some o f the funds previousl y adva nced. On Jun e 30, 20 10, Maj ette s ent thestate ment to the le ad law yer a nd demanded payment within a week or sh e w ould take legal action. The lead lawyer responde d that he

conside red her billing for 180 hours to be

exce ssive becau se he was le ad counse l and ha d spent more t ime on the ca se than

anyone6

and beca use theclient s had ra ised num erous questio ns regardin g her represe ntations of the wo rk

performed and thetimecharge d. In Augus t 2010, the lead lawyer sent a letter to Majett e d eta iling the sp ecific challenges raised by the clients. In response , Maje tte m ade a serie s of filing s in t he trust litigation in Septe mber

2010 seekin g payment, includin g a notice of with drawal, a n attorne y’s lien, and an ac tion for breach of contract. In November 2010 Majette filed a motion to forecl ose thelien, a nd in Janua

ry 2011 Ma

jettefiled a

motion to intervene, seeking to sa tisfy the lien. The

lead lawyer filed ple a dings opposing Majet

te’s fil ings on beha

lf of theclient s. The trial court ultim ately dismissed the con tract action and th e motion to for eclose the lien. The client filed a grieva nce a gainst M ajett e with t he Bar. Majette denied she had bee n paid a

$24,500 re tainer , stating that t he first $2, 000 payment was for a persona l mat

ter and that the remaining $ 22,500 was f or earned fees. After being shown a c opy

of the check for $2 ,000, which sh owed that it was a retain er for the trust litigation, Majet te claim ed that her failure to in clude it was an honest mista ke and then re calc ulated the bal ance due. T hroughout the disciplinary

process , Majette never conceded any possibility of error in the time7

sheets or billing state ments , showe d no re mo rse, and steadfastl y maintained entitlement to additio nal pay ments
. The specia

l mas ter found t

hat by s ubmitting wholly unsupporte d and materially

misleading tim e sheets and invoices to her cli ent, m isrepre senting

her hours and fee s to the c ourt, an d misre present ing in thediscipl inary p rocess the payments rece ived, Majett e com mitte d severa

l violations of the

Rules of Profes sional Conduct. The sp ecial master found as a mitigati ng factor that Majette has no prio r disciplin ary record, but fo und as ag gravat ing factors t hat there were m

ultipleoffense s, subm ission of falsestate ments or evide nce in t he trust litigat ion and the

di scip linary

process , refusa

l to ac knowledge

the wron gful natureof her c onduct, a

nd substant

ial exp eri ence in the practi ce of la w. The special ma ster determine d that the proper sanction was disba rment. Majette sought review by t he Review Panel , and both she and the State Bar filed exception s regarding the special master’s fin dings. The Review P anel adopted the spe cial master’ s fi ndings, but conclud ed there were additio nal finding s. The Panel rejected Majette’s arguments that the special master had erred in failing to require the State Bar to provide her with a free transcript o f th e8

evidenti ary

hearin g, see

Bar Ru le 4-213 (b ); by al lowing a witnes s to bring a dog t o the he aring; a

nd in allo wing Ba

r counse l to quest

ion Maje tte abo ut persons she mayhave contac ted about a loan . With regard to her other excep tions, the Review Panel determ ined tha t the spe cial master’ s concl usions regarding Majette’ s v iolatio ns of the R ules were sound a

nd supporte d by the evidence. The State Bar’s e xcepti ons conce rned the specia l mas ter’s failure

to find

a violati on regarding Maje tte’s c harge fo r atte nding the C LE sem inar an d for Majet te’s failure

to refund u

nearned fees. The Review Panel made additional findings that Majet

te and the le ad law

yer a ttende d a CLE

semi nar on February 26, 2010, because they had to c omple te thei r CLE ho urs for 2009 by

March 31, 2010. Majet

te’s c harge fo r

attend ing the seminar

did not app ear on a

ny of the invoices prepared befor e M ay 22, 2010. During the evidentiary hea ring, Majette stated that the lead lawye

r had sa id that t

he clie nt would ta

ke careof the c ost of the seminar and Ma

jette assume d that it wo uld inclu de the t ime a ttending the semi nar. Majet

te furthe r s tated that she believed t he seminar would b etter prepare her for re present ing the c lient. Majet

te tes tified t

hat thecharge

for the CLE attendance was an issu e to be resolved; she has never removed the charge.9

The leadlawyertestifi ed that the cl ient did n ot authori ze at tendanc e at th e seminarat

her expense and th at he never told Maj ette that the client would pay for their CLE attendance. He furt her testified that the CLE semina

r on appellate practice had nothing to do with th e trust litig ation and was chosen b ecaus e of the need to com

plete C LE req

uirem ents. H e paid f

or the CLE a

nd d id not cha

rge the client for his attendance. Based on th ese ad ditionalfi ndings and its determ ination that Majette failed to ac count f or and re turn unea

rned fee s, the Review Panel concluded that, in additi on to the vi olations found by th e special mast er, Majette violated Rule 1.16 (d) , as well as addition al violations of Rules 1.5 (a) ( 1), 8.1 ( a), a

nd 8.4 (a) (4). The Review Panel c onsidered the full record, and while stating that th e

recom menda tion of disbarment was “ certainly justif ied given the v ery s erious facts in this case,” it nevertheless recom mended a three -year suspensio n w ith condition s upon reins tatem ent, so lely be cause this was Ma jette’s only disciplinary

proceeding “in an otherwise distinguis hed c areer.” Majette filed exceptions to the Review Panel’s rep ort. 1. Majet te first contends th at

she should

have be en provide d a copy of the transcript. However, we find th at the special mast er did not abuse hi s discre tion10

in this regard. Bar Rule 4-2 13 (b) pr ovides that “[u]pon a showing of necessity and a showing of

financi a l inabil ity by the Re spondent t o pay for the transc ription, the Spec ial Ma ster shall order the State Bar of Georgia to provide the transc ript.”However, Maj ette failed to m ake this showing, as the only attem ptto sh ow fin ancial inabil ity wa s her util izati on of this C ourt’s form for

a pauper’ s a ffidavit. Where the record r eflects that Majette has lo ng been gainf ully emplo yed a

nd is ca pable of gainful employ

ment, the sim

pl e submission of the Court’ s form affidavit is insuff icient. 2. Beca use Maj ette f

ailed to raisean issue

at theevident

iary he aring regarding the pre sence

of the c lient’s dog at the hearin g, we a

gree w ith the Review Panel t

hat shemay

not raise the issue for the fi rst tim e long af

ter the hearing has con cluded. 3. Majette exce

pts to the findings of fact a

ndconclus ions of la

w rega rding each violation found by the Revie w Panel . Howe ver, a review of the re cord shows ample support f

or the special master and Review Panel’s factual findings and for the conclusion that Majett e commi tted multiple violati ons of the Rules of Professi onal Cond

uct by s ubmitting wholly unsupporte d and mat erially misle ading time sheets and invoic es to he r clie nt and misre present ing her hour s11

and fees to a court

. See Douglas R. Richmond , For a Few Dollar s More: T

he Perplex ing Problems of Un ethical Billing P ractices by Law yers , 60 S.C. L. Re v. 63, 64, n. 8 (2008) (col lecting case s imposing discipl inary s anctio ns, incl uding disbarment, on lawy ers for fraudulen tor abusive

billing practice s). Cont

rary to Majet te’s content

ions, the misc onduct e xhibited in this c ase c annot be characterized as a fee dispute. Additionally, despite theconsistent and wellsupport edfindi n gs that Majette c ommitted num erous violations of multiple disciplinary

rules, Majette has failed to express any remor se. See In the Matter of Friedman , 270 Ga. 5, 6 (505 SE2d 727) (1998) (noting this Court’s “little tolerance for a la

wyer w ho lies du ri ng d isciplinary proceedings or engages in conduct inv olving d ishonesty, fr aud, deceit or misrepr esentation”). Accordingly, we conclude that the special ma ster’s recomm endati on of disbarment, reac hed aft er ca reful and thorough co nsidera

tion of live

testimony and documentary e vidence, is the proper sanc tio n in this matter. See In the Matterof Clea

ver-Ba scombe , 290 G a. 78 (717 SE2d 47 8) (2011) (di sbarm ent

as reciprocal discip line for sub mission of fr audulent pay voucher and giving of

sworn testimony

defending t he voucher and insisting it fairly reflected services rendere d). There fore , it

is here by order ed that

the name of De nise L. Majet te be removed from the

rolls of persons auth orized to prac tice l aw in the State of12

Georgia . Maje tte is r emind ed of her duties pu rsuant to Bar Ru le 4-219 (c ). Disbarr ed. All the

Justice s concur , exce

pt Thom pson, C. J., a

nd Melton , J., who dissent. Benha

m, J. , not par

ticipa ting

.

MELTO N, Justi ce, di ssenting. While I agree

that the conduct involved in this ca se merits a severe punishment, I believe that a p rolonge d suspensi on with c onditions fo r reinstatement, rather

than disb arment, would

be a m ore appropriate sanction. As the Revie w Panel

conclud ed in thi s case , the re spondent’s over thir ty ye ars of distingu ished service to the bench an d bar wi th no disci plin ary pro blems wh atsoever should ser

ve as a signific ant mi tigatin g facto r with re spe ct to th e punishmentimposed here. See, e.g., I n the Matter of Shelf er , 278 Ga . 55, 56 (597 SE2d 365) (20 04) (After consid ering several mitiga ting fac tors, inc luding “the absenc e of a

prior disciplinary re cord durin g [the a ttorney ’s] thre e and a half decades of practic e,” the Court impose d a two-year susp ension for an attorney who stole over $100,000 from his client over two years). Indeed, withregard

to unearned fees and misleading bi lling practices s uch as those invo lved in this case, reim

bursem ent to the

client for any unearne d fees a

nd, at t he very least, the additional

require ments recom

mende d by

the Review Panel (i.e., that the respondent successfully partic ipate in the State B ar’s Law Practi c e Manage ment

Program and comple te six hours of c ontinuing le gal educ ation on legal ethics at he r own expense) would certainly seem to be a

ppropriate condition s to impose

for the responde nt to be re instate d followin g an ext ensive suspensio n from the practice of law. See In the Ma tter of C hampi on , 275 Ga. 140 (562 SE2d 179) (2002) (at torney who conve rted cl ient funds to her ow n use and initial ly lie d to State

Bar a bou t doing s o given 12-month suspension with

c ond itions for reinstatement ( including condition to attend State Bar Eth ics School at her own expens e) where she had no prior dis ciplinary hist ory and had reimbursed client

). In any event, beca

use, in my vie

w, theultima

te sanc tion

of disbarm ent

does not pr operly tak e into a ccount t he respo ndent’s ot

herwise distingu ished career as a significant mitigating fa ctor, I must respec tfully dissent. I am authorized to state th at Chief Justice Thomps on joins in this dissent.2 Decid ed Marc h 28, 2014. Disbarment. Paula J. Frede rick, G enera l Counse l State Bar, J onathan

W

. Hewett, Assistant Gener al Counsel State Bar , for State Bar of Geo rgia.