In the Supreme Court of Georgia

Decided: June 21, 2021

S21Y0597. IN THE MATTER OF DAVID J. FARNHAM.

PER CURIAM.

The State Bar initiated this disciplinary matter in 2019 with 

the filing of a Formal Complaint, charging respondent David 

Farnham (State Bar No. 255410),

1 with numerous disbarable 

violations of the Georgia Rules of Professional Conduct, see Bar Rule 

4-102 (d), stemming from two grievances. Without holding a 

hearing, the Special Master, LaVonda R. DeWitt, granted the State 

Bar’s motion to strike Farnham’s answer and discovery responses as 

a discovery sanction and thereafter issued a Final Report and 

Recommendation, recommending that the Court disbar Farnham. 

 

1 Farnham was admitted to the Bar in 1986 and previously received 

disciplinary sanctions in the form of a public reprimand, a letter of admonition, 

and two investigative panel reprimands. See In the Matter of Farnham, 300

Ga. 645, 647 (797 SE2d 84) (2017).
2

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 Farnham 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 
3

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, the 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 
4

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 
5

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 “Rule 5.2 

Certificate,” see Unif. Superior Ct. R. 5.2 (2),

2 stating that he had 

served his discovery responses by mail on October 28. However, the 

responses received by the State Bar were not verified and did not 

include a response to the request for documents. 

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 

 

2 Uniform Superior Court Rule 5.2 (2) provides that “[a] party serving 

Interrogatories, Requests for Production of Documents, Requests for 

Admission and Answers or responses thereto upon counsel, a party or a nonparty shall file with the court a certificate indicating the pleading which was 

served, the date of service (or that the same has been delivered for service with 

the summons) and the persons served.” This Court has not addressed whether 

the Uniform Superior Court Rules apply in Bar disciplinary proceedings. See 

In the Matter of Levine, 303 Ga. 284, 285 n.1 (811 SE2d 349) (2018).
6

it. He indicated that his doctor would reevaluate him the following 

week and 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 participate 

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 
7

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 OCGA § 9-11-37 (providing for sanctions for 

failure to comply with discovery orders and requests). After 

obtaining an extension of time for responding, Farnham filed a brief 

in opposition on December 26, stating that he had chronic fatigue 

syndrome and thyroid issues; that as a result of Bar counsel 

inappropriately providing information to the Special Master about 

unrelated grievances, his symptoms flared the week before his

deposition; that he could not travel the two hours each way and sit 

for a deposition on November 5; that he spent all of November 6 in 

his doctor’s clinic receiving treatments; and that he was ready and 
8

able to sit for a deposition before January 10, 2020, when discovery 

was scheduled to end, except for January 6 to 8, when he would be 

out-of-town. He also asserted that he turned over to his staff full 

discovery responses for mailing, including a response to the request 

for documents and a signed sworn verification of his discovery 

responses. He attached his response to the document request to his 

brief and stated that his staff was out of the office and that he had 

not been able to locate the signed verification. Additionally, he 

provided details about personal difficulties that coincided with the 

allegations of one of the grievances at issue here and that could be 

relevant to mitigation. He cited case law supporting the proposition 

that while a total failure to respond to discovery may authorize 

immediate sanctions, striking pleadings is the harshest sanction, 

which should be reserved for extreme cases. See Schrembs v. 

Atlanta Classic Cars, Inc., 261 Ga. 182, 182-183 (402 SE2d 723) 

(1991). 

Without holding a hearing, the Special Master entered an 

order on January 17, 2020, granting the State Bar’s motion to strike. 
9

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 OCGA § 9-11-37 (d) (1), 

which provides that when a party fails to appear for a deposition, 

answer interrogatories, or respond to document requests, a court 

may impose those sanctions authorized by OCGA § 9-11-37 (b) (2) 

(A)-(C), which includes the striking of pleadings. She also 

determined that it was appropriate to impose the immediate 

sanction of striking Farnham’s pleadings based on his willful refusal 

to participate in discovery over a significant period of time and the 

fact that his failure to comply was in violation of the scheduling 

order. Pursuant to the order striking Farnham’s pleadings, the facts 

alleged and violations charged in the formal complaint were deemed 
10

admitted, see Bar Rule 4-212 (a), and the Special Master concluded 

that such facts and violations warranted disbarment.

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 OCGA § 9-11-37 for imposition 

of dismissal as sanction). It concluded that the circumstances here 

did not warrant the striking of Farnham’s pleadings and 

recommended that this Court remand the matter to the Special 

Master for the completion of discovery and consideration of the case 

on the merits and that if Farnham fails to comply with discovery, 

resulting in the imposition of other sanctions, the Special Master 

should set a hearing on factors to consider in aggravation and 

mitigation of the level of discipline that may be imposed. 
11

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 
12

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 discipline without 

producing any evidence to support contention that health and 

personal information would serve to mitigate discipline, and failed 
13

to respond to discovery requests; in this Court, respondent did not 

challenge striking of pleadings); In the Matter of Washington, 270 

Ga. 60, 60 n.1 (504 SE2d 704) (1998) (special master struck answer 

after respondent failed to produce requested documents and failed 

to comply with two orders of the special master ordering him to 

produce the documents); In the Matter of Henley, 267 Ga. 366, 367 

n.4 (478 SE2d 134) (1996) (special master struck answer as sanction 

for failing to respond to discovery requests that were served with 

complaint even after being ordered to do so by special master). See 

also In the Matter of Levine, 303 Ga. 284, 284-285 (811 SE2d 349) 

(2018) (special master struck pleadings following an evidentiary 

hearing on motion for sanctions for complete failure to respond to 

discovery where respondent failed to attend hearing); In the Matter 

of Jefferson, 307 Ga. 50, 51 (834 SE2d 73) (2019) (special master 

struck pleadings following a hearing on motion for sanctions for 

complete failure to respond to discovery where respondent attended 

hearing but refused to offer testimony); In the Matter of BrowningBaker, 292 Ga. 809, 810 (741 SE2d 637) (2013) (special master 
14

struck pleadings after respondent twice waited until day before 

deposition to advise that she would not appear and failed to appear 

at hearing on motion for sanctions).

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 

aggravation 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 
15

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).

Vacated and remanded with direction. All the Justices concur.