Originally created 06/03/01

Research uncovers 'client dumping'



Henry Brown knew he was caught. He said he just wanted to plead guilty to driving on a re-voked license after being declared a habitual violator.

He thought it would be quick and easy, and he retained Augusta attorney Jim Blanchard, paying $685 on the $2,500 fee Mr. Blanchard set for him, according to the law firm's billing statements. Court records show Mr. Blanchard went to arraignment with Mr. Brown and filed initial defense motions.

After that, Mr. Brown says, nothing happened.

"I never heard anything from (Mr. Blanchard) or the court," Mr. Brown said. He said he was never notified that Mr. Blanchard was withdrawing from his case, and neither was the court.

Mr. Brown was tracked down by bounty hunters and locked up in jail for missing a court date he never knew he had. And he no longer had an attorney.

Attorneys who practice criminal law in the Augusta Judicial Circuit call what happened to Mr. Brown "client dumping." A half-dozen attorneys described the practice to The Augusta Chronicle only under the condition of anonymity.

While other attorneys have withdrawn from criminal cases from August 1995 through August 2000 - the five-year period examined by The Chronicle - only members of the Fleming, Blanchard, Jackson, Ingram, Floyd, Fleming & Fleming law firm dropped clients without judges' orders. It happened 38 times, including Mr. Brown's case.

Mr. Blanchard denied any wrongdoing in the Brown case. He said his law firm works out payment plans with many clients and does its best to continue representing clients who are behind on payments.

Mr. Blanchard said he never knew what became of Mr. Brown after he paid a "nominal retainer" and never contacted the office again. Mr. Blanchard said he never heard back from Mr. Brown. Mr. Brown said he called but could never get Mr. Blanchard on the telephone.

According to court documents, Mr. Blanchard never received a judge's permission to withdraw from the case. When Mr. Blanchard was contacted by The Chronicle, he looked at his office file and said he assumed the case was still pending and he was still Mr. Brown's attorney.

As in Mr. Brown's case, most of the defendants dropped by their attorneys ended up with court-appointed counsel regardless of how much they might have paid their initial lawyers.

The withdrawal of an attorney leaves defendants disadvantaged, and that is unfair to them, said former attorney David Watkins, who is now a Richmond County state court judge. And it's wrong for taxpayers who end up paying for court-appointed lawyers in spite of the money clients have already paid to private attorneys.

"(The client) has been bled for all he's worth ... then we (taxpayers) pick up the tab," Judge Watkins said. "I think that's the reason it's right to ask why a person was permitted to withdraw."

When Mr. Brown didn't appear for a trial date June 4, 1997, the judge issued a bench warrant for his arrest and bounty hunters set on his trail. Mr. Brown said no one had informed him he was supposed to be in court before June 4. He found out later when neighbors told him bounty hunters had come looking for him.

Four months before that missed court date, Mr. Brown was in court when a law firm associate of Mr. Blanchard told Senior Judge Franklin H. Pierce that Mr. Blanchard was no longer involved in the case, according to Mr. Brown and court records. But Mr. Blanchard had not submitted a motion to withdraw, and no judge had signed an order allowing him to withdraw.

Mr. Brown was later arrested by bounty hunters, and the Indigent Defense Office paid a court-appointed attorney $35 to handle Mr. Brown's guilty plea in July 1997. Mr. Brown was sentenced to five years probation. That was 16 months after Mr. Blanchard officially signed on as Mr. Brown's attorney by appearing in court on his behalf.

Long after his case was over, Mr. Brown continued to get bills from Mr. Blanchard's firm saying he owed $1,815, according to at least one statement Mr. Brown showed The Chronicle. Mr. Brown did not have any other court cases pending, according to court documents.

The State Bar of Georgia and the Georgia Supreme Court have determined that not following through on representing a client can violate ethical standard 22: A lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client; and ethical standard 44: A lawyer shall not willfully abandon or disregard a legal matter to the client's detriment.

Since January 1999, at least 35 Georgia lawyers have been punished for violations having to do with how they withdrew from representing a client or abandoned a client's case. Some were disbarred, including Augusta attorneys Wayne Thigpen and Richard Ward, each accused of undertaking a client's case and failing to provide legal services.

Research by The Chronicle found 89 cases in the five-year study in which local attorneys dropped clients in Richmond County Superior Court. Sixty-nine of those cases, or 78 percent, came through the Fleming firm. That represents an estimated 9 percent of the cases that firm has had in Richmond County in the past five years, but it is three times more than all other area attorneys combined. The closest is attorney and state representative Ben Allen, who had four dropped cases.

Senior partner John Fleming denied any wrongdoing by his firm and warned against portraying any wrongdoing. If they withdrew from cases, they had permission from judges, and that's all the law requires, Mr. Fleming said.

"We have done everything absolutely legal," Mr. Fleming said.

The Fleming firm does have a large number of clients facing criminal charges in Richmond County Superior Court. But in 2000, the firm's clients represented just 7 percent of all defendants.

What happens

Many times, disputes over fees result in attorneys dropping their clients.

"(Lawyers who drop clients over fee disputes) are taking advantage of the poor," said Ray Patterson, an ethics professor at the University of Georgia School of Law.

Ethically, attorneys can quit, but they must follow the ethical guidelines, Dr. Patterson said.

The lawyer must obtain a judge's permission, inform the client, give the client time to get another lawyer, turn over all papers and property, and return any part of a fee not earned, according to the State Bar of Georgia's ethical standards.

The procedure was established to see that no harm comes to the client, Dr. Patterson said. But the procedure does contain some ethical wiggle room, he added.

"The lawyer should not accept a client accused of a crime unless the lawyer fully intends to represent him to the end," Dr. Patterson said.

Dropping clients also takes advantage of taxpayers, said several local attorneys, including Judge Watkins, the only local member of the bar willing to discuss the issue publicly.

Most of those left without counsel, including Mr. Brown, end up with court-appointed attorneys. Local and state taxpayers pay the bill for those attorneys through the Indigent Defense Office.

Mr. Brown is one of 54 dropped clients who had to go to the Indigent Defense Office during the five-year period investigated. Those cases cost taxpayers $41,375. Once again, the Fleming firm led the way, with 49 of those cases, totaling $38,868. Both totals will increase as attorneys submit bills not yet filed with the office.

"Once you start representation of a client ... it is abandonment to drop a client for nonpayment of a fee," Dr. Patterson said.

"We do tell lawyers if you get in a case, you are in it throughout," said Chief Judge William M. Fleming Jr., who founded the Fleming firm but is no longer associated with it and recuses himself from any case handled by the firm. Judge Fleming is the brother of the firm's senior partner, John Fleming, and the father of firm partners William Fleming and Brendan Fleming. The sons are the only members of the firm who have not dropped a client, according to court records.

"We tell them don't sign anything or you're in the case. Maybe I'm a little harsher than other judges in that regard," Judge Fleming said.

He might be.

Judge Fleming has allowed two attorneys to drop cases since 1995. Altogether, the six other Superior Court judges have signed 49 withdrawal orders. Judge Albert M. Pickett signed 18 orders; Senior Judge Bernard J. Mulherin Sr. signed 14; Judge J. Carlisle Overstreet signed 10; Judge Carl C. Brown Jr. signed three; Senior Judge Franklin H. Pierce signed two; and Judge Robert Lyn Allgood and former Judge Bettieanne Hart each signed one.

Judge Fleming said he doesn't know why his brother's law firm would have a much higher number of dropped clients than all other attorneys combined.

The judges' role

It's a judge's responsibility to ensure that an attorney has followed the proper procedure to formally withdraw from a case, said Judge Watkins, who handled hundreds of criminal cases as a defense attorney before becoming a judge in July 1997.

"I think each judge recognizes there is a duty there to ensure a defendant gets a fair shake ... that he's not being taken advantage of somehow," Judge Watkins said. "That's why a judge has discretion in this."

If an attorney claims he no longer represents a person in Judge Watkins' court, he must produce a judge's withdrawal order.

Without such an order, an attorney is considered an attorney of record, unless he has never appeared in court with the defendant nor signed or submitted any court documents on the defendant's behalf, Judge Watkins said. It's going to take more than an attorney's unchallenged statement in a courtroom, he said.

A prime example of an unchallenged claim was Eldo Ricky Jones' case, which was called for trial Aug. 14 before Judge Pickett. Defense attorney Richard Ingram told the judge he did not represent Mr. Jones, who was accused of selling cocaine, and Judge Pickett took Mr. Ingram at his word.

But Mr. Ingram had never filed a motion to withdraw as Mr. Jones' attorney, and no judge had signed an order allowing him to withdraw. Months later, Judge Pickett said he could not remember the case or the circumstances of that day. If a complaint were made, Judge Pickett said, he would call in all of the parties involved and investigate. It's possible, the judge said, that Mr. Ingram misspoke, that he did not intentionally mislead the court.

Mr. Ingram had represented Mr. Jones at his bond hearing, at his arraignment and when the case was called to trial for the first time. But the Indigent Defense Office appointed an attorney for Mr. Jones, who was convicted in December.

Judge Pickett explained that in such situations he takes lawyers at their word.

"I expect the lawyers to tell me the truth, to be honest. They are officers of the court," Judge Pickett said. Attorneys' statements in a courtroom are considered the same as sworn testimony.

For a judge to know if an attorney is being truthful about his status as a person's attorney, he would have to follow the case from start to finish. But in the Augusta Judicial Circuit, cases are not assigned to specific judges, and no one keeps track of such issues.

That might contribute to the problem, Judge Watkins said. "Maybe the judges (in Superior Court) don't know. The facts answer that in itself. From that point on, you're drawing conclusions. I don't know if there is a reasonable explanation."

Because judges here preside over cases in Columbia and Burke counties in addition to Richmond County, assigning cases would limit the judges and their ability to close cases efficiently, Judge Fleming has said. One judge going to Burke County or Columbia County can handle all the court's business that day.

But that can cause other problems.

Because cases are not assigned, David Marshall's armed robbery case bounced from judge to judge, with a prosecutor anxious to get it tried. John Fleming and his partner Maureen Floyd withdrew, and an attorney from another firm was appointed to defend Mr. Marshall just four days before trial in March 1996.

As the court-appointed attorney would later testify at a hearing, the prosecutor refused to join her in asking the judge to postpone the trial because the case had already been continued a number of times by the Fleming firm. Mr. Marshall was convicted and sentenced to life plus 20 years in prison without parole.

Cases such as Mr. Marshall's are perceived as rare and not a problem that clogs the local judicial system, Judge Pickett said. He's right about the rarity, according to The Augusta Chronicle's investigation. In the five-year study, 89 dropped cases were discovered, while Richmond County grand juries issued an estimated 7,500 indictments.

"This is not a problem that affects the entire system in any meaningful way," Judge Pickett said. Within a short time, such a defendant can hire another attorney or receive appointed counsel who can complete the case, the judge said.

That is true in the majority of cases, but the father of a little girl who was raped by her mother's boyfriend disagrees.

The criminal case had already stalled in legal limbo for 16 months when Ms. Floyd and Mr. Ingram filed a motion July 2 to withdraw, three days before the case was set, again, for trial. Ten more months would pass before the man pleaded guilty. The girl's father said he stopped counting the times he had to take off work and drive from Macon to Augusta to attend the man's hearings.

"Even then I waited two years and three months for justice. It is his fault, him and his lawyer changing," said the father, who asked not to be named so that his daughter's identity wouldn't be revealed. Her mother married the man, who eventually pleaded guilty to child molestation. Child custody has since been transferred to the girl's natural father.

Battling confusion

Confusion over legal representation, including cases in which the defense lacks an attorney, delays cases and frustrates judges who are in constant battle to prevent a staggering backlog such as the one that strangled Richmond County Superior Court in 1997.

Bernard Raines could be considered a casualty of that legal confusion.

When he appeared for trial in July 1997 without an attorney, Mr. Raines told Judge Overstreet he couldn't afford one. Mr. Raines had hired Ben Allen as his attorney, but Judge Fleming allowed Mr. Allen to drop the case a month before the trial date because, Mr. Allen and Mr. Raines agreed, he hadn't paid.

The Indigent Defense Office refused to appoint an attorney because Mr. Raines had recently quit his job just to qualify for a court-appointed attorney, the prosecutor told the judge at Mr. Raines' trial. At a later hearing, Mr. Raines and his family said he had quit because he was going blind.

Mr. Raines was tried without a defense attorney, convicted and sentenced to 10 years in prison for a Jan. 6, 1995, bank robbery. But last spring, the Georgia Court of Appeals reversed Mr. Raines' conviction because he had been forced to represent himself at trial.

"It's all about money," Mr. Raines said. With an attorney this year, he pleaded guilty to a reduced charge and was placed on probation. "If you're not set financially, you don't have a chance." While he understood that Mr. Allen wanted to be paid for his services, Mr. Raines said he thought the lawyer was obligated to him, if not legally then ethically.

Mr. Allen said he had no choice but to withdraw from Mr. Raines' case because Mr. Raines wasn't making the payments as agreed. "That's like if (your boss) said he wasn't going to pay your salary. Would you still work? It gets to the point you can't work for nothing."

Judge Pickett said he considers how much a client has paid before deciding whether an attorney can withdraw from a case, and generally denies such a motion if a "substantial" amount was paid. Several attorneys told The Chronicle they withdrew because the clients had not paid anything.

Judge Pickett said he doesn't consider a lawyer retained until he is paid. Like Judge Fleming, he tells attorneys that once they step in court with clients, they are indeed their attorneys of record. But when defendants show up for trial without an attorney because they haven't paid, it's the defendants he and the other judges order locked up. They haven't followed the rules: Defendants are told at arraignment they must have attorneys or face jail, Judge Pickett said.

Jeffery Williams ended up with a court-appointed attorney after he was dropped twice by the Fleming firm. Judge Pickett allowed Mr. Fleming to withdraw in February 1996 because Mr. Fleming reported that Mr. Williams wasn't cooperating or paying the fee.

Ten months later, Maureen Floyd of the same firm wrote she was hired only to handle a bench warrant for Mr. Williams. Judge Mulherin allowed her to withdraw. But Mr. Williams' family provided a receipt that showed Ms. Floyd was paid, and presumed working on Mr. Williams' behalf, months before the bench warrant was issued.

Mr. Williams said he was paying and cooperating with his attorneys, but he didn't want to plead guilty to the charge of trafficking cocaine. He estimated he paid the firm $2,700, but his family could find only a receipt that shows $1,500 was paid April 1, 1996.

John Fleming declined to say how much his firm charged or received from Mr. Williams, but he said the firm's withdrawal from Mr. Williams' case was approved by judges.

"We did everything proper we were supposed to do," Mr. Fleming said. "(Mr. Williams' payment) was not enough for us to get involved in the case."

The attorney who was appointed to represent Mr. Williams a year and a half after his arrest was paid $250. Judge Fleming sentenced Mr. Williams to 15 years in prison and imposed the mandatory $200,000 fine. He is still in prison.

Unlike Judge Pickett, Judge Fleming said the withdrawal of defense attorneys does cause major problems.

Once an attorney goes to court with a client or submits documents on that person's behalf, his name goes into the court system's computer program, which is used to schedule court hearings and trials. If a defense attorney later announces on the trial date that he doesn't represent that defendant, "Then the state's gone to a lot of unnecessary expense preparing for trial. The taxpayers should not be responsible for that," Judge Fleming said.

Georgia is not alone in restricting an attorney's ability to withdraw from a criminal case. Each state has its own rules, but generally a judge has to sign off, said Michael J. Oths, the president of the National Organization of Bar Counsel - an association of attorneys who investigate allegations of lawyer misconduct in the United States.

A motion to withdraw must be presented to a judge if the lawyer is considered "an attorney of record," Mr. Oths said.

"If I show up in court at arraignment and say I represent Billy Bob, then I am counsel of record," Mr. Oths said. A single court appearance with a client or a lawyer's signature on any court document means he is the attorney of record "at least in every system I know of," Mr. Oths said.

It's the same in Georgia.

Lawyers grouse about nonpaying clients, but once an attorney appears in court for a client or presents a court document on a defendant's behalf, the lawyer cannot walk away from the case - even if the client doesn't pay, said Nicholas Lotito of Atlanta, the past president of the Georgia Association of Criminal Defense Lawyers.

And judges, lawyers here and elsewhere say, are loathe to let attorneys withdraw in criminal cases because it does cause delay and confusion and lawyers have a heightened obligation to clients facing a loss of liberty. Judge Watkins said that, when he was practicing, lawyers understood that they shouldn't ask to withdraw in a criminal case.

Reach Sandy Hodson at (706) 823-3226.

About this series

Methodology

The Augusta Chronicle began this investigation four years ago. Dozens of attorneys, defendants, witnesses, victims, legal experts and judges were interviewed, and thousands of pages of court documents were examined.

The specific cases cited for this investigation include only non-indigent clients dropped by attorneys before their cases were concluded in Richmond County Superior Court. The investigative time period was August 1995 through August 2000. Each case cited arose, was pending or ended in that time period.

The investigation was further narrowed to those cases in which attorneys cited just a general "conflict" reason to withdraw, or cited payment issues with clients, with two exceptions.

In both exceptions, attorneys cited a conflict because of prior representation of clients. In one case, the attorney also wrote in the motion that he instructed indigent defense to appoint a new attorney. In the other, the attorney cited a conflict, telling the judge she had discovered three days before trial that a law firm colleague previously represented the client's co-defendant. But, according to court documents, she had appeared in court on behalf of that co-defendant at arraignment.

In the cases examined by The Chronicle in which there was no judge's order granting permission to withdraw, the only cases included were those in which defendants began with privately paid attorneys but ended with court-appointed attorneys.

Attorney disciplinary actions

The Georgia Supreme Court is responsible for disciplinary actions for attorneys in this state. Disciplinary actions can range from a private admonition, which does not affect an attorney's law license, to disbarment, a public action that prohibits the lawyer from practicing law. The State Bar of Georgia's Office of the General Counsel investigates complaints against attorneys. The office number is (404) 527-8720.