Accountability: Barnett Response — Daniel E. Holloway, Attorney

Vigorous advocacy is essential not only to the preservation of individual rights but also to the integrity of the judicial system…. We echo the United States Supreme Court’s admonition that trial judges must be on guard against confusing offenses to [] sensibilities with obstruction to the administration of justice.

— In re Jefferson, 283 Ga. 216 (2008)

SUMMARY OF ARGUMENT

It would suffice to respond to the Defense Motion for Sanctions with these two sentences: “Rule 4.2 prohibits Plaintiff’s counsel from contacting Dr. Hamilton. It is undisputed that we did not contact Dr. Hamilton.” That ends the Motion. But for good measure, we might add these two other sentences: “Rule 4.2 only forbids Plaintiff’s counsel from contacting Dr. Hamilton without Defense counsel’s consent. If Defense counsel’s giving her our letters counts as contact (which it does not), then Defense counsel consented to that contact.” That ends the Motion twice over.

Lawyers send demand letters all the time, bad faith letters all the time, and argument letters all the time. None of that is problematic. There was no effort whatsoever to contact Dr. Hamilton independently, so any bar rule violations are a nonstarter from the outset. The Motion is a vehicle to poison the Court with overclaims about prior settlements in this case and with unfounded accusations of ethical improprieties. The Motion is frivolous. However, the Defense seeks nuclear sanctions. So while the Motion merits no further response, prudence recommends a fuller response.

The Defense seeks the largest sanctions order in Georgia history — including dismissal of Jennifer Barnett’s case, disqualification of her counsel, and a multi-million-dollar fine. The Motion is fatally defective jurisdictionally and on its merits.

As to jurisdiction: The Motion does not claim a violation of a court order. The Motion (sort of, but not really) alleges a violation of an attorney ethics rule. But the Defense does not claim any harm, or ask for any remedial sanction to cure the (non-existent) harm. The Defense makes assertions about Plaintiff counsel’s supposed intention to “drive a wedge” and to “scare Dr. Hamilton and [the insurance company] into settling.” But the Defense does not claim that a wedge has in fact been driven. And obviously no one has been scared into settling. Rather than seeking a remedy for harm, the Defense seeks punishment for an ethics violation. That is, the Defense asserts an ethics grievance.

This Court therefore lacks jurisdiction to hear the Motion. See Stevens v. Thomas, 257 Ga. 645, 648 (1987) (“We find that the court lacked authority to impose sanctions upon the Browns or Stevens based upon a violation of the disciplinary rules. … The discipline of attorneys is solely within the province of the Supreme Court of Georgia.”). If the Defense had a non-frivolous grievance, they would file it with the State Disciplinary Board as provided by State Bar Rule 4-202.

Furthermore, even if the Court could hear the grievance, the Court would lack jurisdiction to order the sanctions requested. First, Jennifer Barnett is not an attorney and cannot be punished for attorney ethics violations — not by dismissal, not by any other means. See Stevens, supra, at 648.

Second, the Defense seeks a purely punitive multi-million-dollar fine; but Georgia law limits punitive fines to $1,000. See OCGA 15-7-4 (“Each state court shall have jurisdiction … over … The punishment of contempt by fines not exceeding $1,000.00….”). See also Carey Canada v. Hinely, 257 Ga. 150 (1987) (vacating a state court order imposing fines of $500 per day for past violations of a discovery order). The Defense seeks a fine beyond the jurisdiction of the Court.

Third, while trial courts have jurisdiction to disqualify counsel as a remedy for harm to the judicial process, a trial court lacks jurisdiction to do so as a purely punitive. Bernocchi v. Forcucci, 279 Ga. 460, 462 (2005) (“disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly.”). The Defense claims no harm and seeks no remedy; and attorney punishment remains in the exclusive jurisdiction of the Supreme Court.

The Motion is fatally defective on jurisdictional grounds.

———

The Motion is fatally defective on its merits, too. First, the Defense grudgingly concedes that Plaintiff’s counsel did not violate Rule 4.2: “although Plaintiff’s counsel may not have directly violated Rule 4.2 ….” (Motion, pg 7.) The lawyers debated whether Defense counsel had committed legal malpractice. Plaintiff’s counsel therefore did not violate Rule 4.2.[1]

The sole allegation concerns an unstated intention the Defense says lies behind the Rule — to prevent parties from being “scared” into settling cases. The Defense writes:

Although Plaintiff’s counsel may not have directly violated Rule 4.2, their conduct was calculated to do what Rule 4.2 prohibits: They hoped … [to] scare Dr. Hamilton and Curi into settling for any amount they demanded.

This theory of Rule 4.2 is unknown to legal history. Comment 7 to the Rule states the intentions behind the Rule. Preventing parties from being scared into settling is not mentioned. Indeed, pressuring the other party into settling is an inherent goal of essentially all litigation, civil and criminal. If you violate Rule 4.2 every time you point out something that could induce a settlement, then how do you practice law? How does a criminal prosecutor inform the defendant’s lawyer that the state will seek the death penalty? How do you disclose evidence that dooms the other side and could “scare” up a settlement? On the Defense theory, the courts should be shuttered, because litigation is inherently unethical.

Further, no one has been scared into settling; so the allegation is only that Plaintiff’s counsel hoped in vain to violate the Rule’s supposed unstated intent.

Finally, two gaping holes at the center of the Motion: First, the Motion assumes Defense counsel were ethically required to give Dr. Hamilton the letters by Plaintiff’s counsel. Even if that were true (which it’s not), that still would not mean Plaintiff’s counsel violated Rule 4.2 by writing to the lawyers. Writing to them enabled the lawyers to explain and contextualize the issues for Dr. Hamilton. That is the intent of Rule 4.2, as stated in Comment 7. But Defense counsel were not required to give the letters to Dr. Hamilton, and the Defense neither cites any authority for such a requirement or even tries to explain a basis for it. The rules require lawyers to keep their clients reasonably informed, but the rules do not require any particular manner of informing clients. If Defense counsel failed to read the rules and understand them, they and no one else are responsible for their own failure. If Defense counsel read the rules but were confused, they could have sought advice from an expert, or guidance from the State Bar. Plaintiff’s counsel was not party to Defense counsel’s decision to give Dr. Hamilton the letters. We did not know Defense counsel was doing that. We did not consent to it. Defense counsel are responsible for the manner in which they chose to inform their client.

Second, the Motion complains that Plaintiff’s counsel said Defense counsel and the insurance company committed torts against Dr. Hamilton; but the Defense does not even allege a prohibition against telling lawyers they have committed torts. And how could there be such a prohibition? All of tort law centers on telling people they have committed torts.

At bottom, the Motion is a cry by Defense counsel that when they commit legal malpractice against their clients, they would very much like the witnesses to their malpractice to keep quiet about it. And if a witness does speak up, they’ll suffer reprisals — here, a Motion for Sanctions.

———

Because the Motion seeks nuclear sanctions, we respond more fully below. Doing so risks making the Motion seem serious (which it is not). But the analysis shows that granting the Motion would require ignoring a mountain of Georgia law.

We have obtained independent ethics opinions from three experts: (i) Professor David Luban, the country’s most widely cited scholar of legal ethics; (ii) Shari Klevens, a lawyer specializing in ethics issues, who has written a regular ethics column in the Daily Report for over a decade; and (iii) Professor Clark Cunningham, the W. Lee Burge Chair of Law and Ethics at Georgia State University. We submit their opinions as Exhibits 3, 4, and 5.

Because the Motion is frivolous but required a full response, we ask the Court to order costs and fees pursuant to OCGA 9-15-14. That section provides for fees and expenses where a party asserts a position so frivolous that “it could not be reasonably believed that a court would accept the asserted [] position.” The Motion fits that description. Moreover, although the statute does not require it, we gave Defense counsel notice and an opportunity to withdraw the Motion. They declined.

FACTS

In November 2022, a couple months before a trial scheduled for January 2023 in Bibb County, Plaintiff’s counsel Lloyd Bell sent a settlement offer to Defense counsel, for $27 million. (Ex 1.6.) Two weeks later, a lawyer for the insurance company sent a rejection letter, on the ground that the offer exceeded Dr. Hamilton’s insurance coverage. (Ex 1.7.)

A couple weeks later, Plaintiff’s counsel Daniel Holloway responded to the insurance lawyer. Holloway pointed out that five years earlier, the insurer had passed up a chance to settle the claim for just Dr. Hamilton’s insurance coverage — $1 million. Therefore, Holloway argued, the insurance company would be liable for any “excess” verdict and it was in everyone’s interest to settle the case above the insurance limits but below the likely verdict amount. (Ex 1.8.)

The next day, a second in-house insurance lawyer, Crystal Mezzullo, called Holloway. Ms. Mezzullo said Dr. Hamilton had only recently consented to any settlement. Ms. Mezzullo also said Dr. Hamilton had separate legal counsel from near the beginning of the case. But Ms. Mezzullo would not identify this supposed personal counsel of Dr. Hamilton’s. (See Ex 1.9.)

Later that day, Holloway wrote to Ms. Mezzullo, explaining that if it were true Dr. Hamilton had personal counsel, then Jennifer Barnett would likely settle the case for a lower amount than otherwise (because the likelihood of collecting on a verdict would be lower). So it would help Dr. Hamilton to put Plaintiff’s counsel in touch with Dr. Hamilton’s personal counsel. (Ex 1.9.)

Days later, a third (outside) insurance lawyer, Philip Savrin, wrote to Holloway. Instead of identifying Dr. Hamilton’s supposed personal counsel, Mr. Savrin argued that, in the event of a financially ruinous verdict, Dr. Hamilton would have to face that verdict alone. (Ex 1.10.)

From that point, Holloway and Savrin exchanged a number of letters debating the issues. (Exs 1.11-15.)

A few days after those letters, at a pretrial hearing, Defense counsel finally revealed the name of Dr. Hamilton’s supposed personal counsel — a Mississippi (not Georgia) attorney. Plaintiff’s counsel Lloyd Bell reached the alleged personal counsel on the phone. That attorney said he was not personal counsel to Dr. Hamilton and never had been. He was a family friend and had spoken casually to Dr. Hamilton about the lawsuit, but he was not licensed in Georgia, was unfamiliar with Georgia medical malpractice law, had never reviewed the medical records or other evidence in the case, had never been retained or paid as Dr. Hamilton’s personal counsel, never evaluated the strength of the case against Dr. Hamilton, and never advised her on whether to consent to settle the case. Bell recited all this in a letter to Mr. Savrin. (Ex 1.16.) In other words, the insurance company refused to settle the case for just the insurance money, and then they justified their refusal with a falsehood.

Mr. Savrin responded with a letter that accused Bell of trying to drive a wedge between Dr. Hamilton and her lawyers. Of course neither Bell nor Holloway had communicated with Dr. Hamilton. Nor did Bell or Holloway have any reason to suspect anyone would forward their letters to Dr. Hamilton. However, Mr. Savrin assured Bell that in fact no wedge was being driven: “Suffice it to say that the wedge you are trying to drive between Dr. Hamilton and her Defense counsel by impugning their competency is not succeeding.” (Ex 1.17.)

The same day, Holloway responded to Mr. Savrin by email. Holloway said he was sure no wedge existed, in part because Dr. Hamilton was not receiving the letters:

I’m sure we have not created any wedge between Dr. Hamilton and Curi. But that’s only because Curi is keeping Dr. Hamilton in the dark. My guess is that Curi is not sharing this correspondence with her. So Dr. Hamilton does not yet have any idea that Curi has intentionally left her out in the cold, unprotected from looming catastrophe.

(Ex 1.20.)

A couple weeks later, Holloway forwarded to Mr. Savrin a series of emails with Defense counsel. The emails exhibit errors that would increase Defense counsel’s exposure to a legal malpractice claim — again suggesting that a settlement would be in everyone’s interests. (Exs 1.21, 1.22, 1.23.)

In a surprising admission against interest, Defense counsel now formally admit the allegation of their malpractice is serious enough that they were required to disclose it. (See Motion, pg 7.)

THE MOTION FOR SANCTIONS

The Allegation: A Futile Hope to Violate the Supposed Unstated Intention of Rule 4.2

As we discussed above in the Summary of Argument, the Motion does not allege a violation of a court order and does not allege that Plaintiff’s counsel contacted Dr. Hamilton (which would violate Rule 4.2). The Defense’s sole allegation is that we harbored a futile hope to violate the unstated intention behind Rule 4.2 — that our “strategy” was “calculated to do what Rule 4.2 prohibits.” They say Plaintiff’s counsel “hoped their inflammatory accusations … would scare Dr. Hamilton and Curi into settling.” (See Motion, pg 3, 7.)[2]

The Motion’s Unprecedented and Untenable Theory

The key passage of the Defense Motion is at page 7. Their logic works like this:

1. Rule 4.2 is intended to prohibit any conduct that might “scare [a party] into settling.”

2. Plaintiff’s counsel “strateg[ized],” “hoped” and “calculated” to violate the unstated intention of the Rule.

3. When lawyers inform their client of an issue noted by opposing counsel in a letter, the lawyers have no discretion in deciding how to inform their clients: They must give their clients the letter from opposing counsel.

(See Motion, page 7: “Defense counsel was required to share the letters with Dr. Hamilton (which Defense counsel did).”)

4. Additionally, if you raise an issue with a lawyer, and that lawyer is required to inform the client of the issue, then you have indirectly violated the Rule.

(See Motion, page 7: “to avoid an obvious violation of Rule 4.2, Plaintiff’s counsel used Defense counsel and Curi as his intermediaries”.)

5. The Rule therefore prohibits sending even simple settlement offers with no discussion of the issues in the case.

(See Motion, page 5, fn 4: “Plaintiff’s counsel have since increased their demand to $35 million, meaning that he intends for this conduct to continue.”)

This theory is unknown to American law.

The Motion’s Request for Purely Punitive Sanctions

The law distinguishes between remedial penalties and punitive penalties. See generally Cowart v. Georgia Power, 362 Ga. App. 574, 586 (2022) (“The purpose of civil contempt is to provide a remedy and to obtain compliance with the trial court’s orders. The distinction between criminal and civil contempt is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.”) (emphasis in original).

The Defense claims no harm from the lawyers’ exchange of letters. The closest the Defense comes to claiming actual harm is when they guess (wrongly) at Plaintiff counsel’s intentions — our strategy, calculations, and hope to “drive a wedge” and “compel” or “coerce” a settlement. (Motion, page 3.) But no settlement has occurred, so none has been coerced. As to a “wedge,” the insurance lawyer Mr. Savrin affirmatively stated that no wedge was being driven. (Ex 1.17.) The Defense claims no harm and seeks no remedy.

Instead, the Defense seeks only punitive sanctions as punishment for supposed violations of an ethics rule. Thus, the Defense tells the Court (incorrectly) that WellStar v. Kemp, 324 Ga. App. 629 (2013) affirms the power of the trial court to “punish[] lawyers for running afoul of the rules of the profession.” Actually, Wellstar addresses remedial sanctions, not punitive sanctions. But the Defense’s mischaracterization confirms they are asking only for punitive sanctions.

ARGUMENT

The Defense conjures up new prohibitions that have never existed in Georgia (or anywhere). The Defense asks the Court to impose punishment by retroactively applying these made-up prohibitions. The law rejects the request.

1. The Court lacks jurisdiction to decide the Defense’s ethics grievance.

The Motion states an ethics grievance — a meritless one — against Plaintiff’s counsel. But the Supreme Court holds exclusive jurisdiction over attorney ethics grievances. See Stevens v. Thomas, 257 Ga. 645, 648 (1987) (“We find that the court lacked authority to impose sanctions upon the Browns or Stevens based upon a violation of the disciplinary rules. … The discipline of attorneys is solely within the province of the Supreme Court of Georgia.”). See also Wall v. Thurman, 283 Ga. 533, 534 n.6 (2008) (same); Wallace v. State Bar, 268 Ga. 166, 167 (1997) (“The Supreme Court of Georgia is endowed with the inherent and exclusive authority to govern the practice of law in Georgia.”).

The Court of Appeals has recognized that it, too, like trial courts, lacks such jurisdiction. Millar v. Fayette County Sheriff’s Department, 241 Ga. App. 659, 660-61 (1999) (“[T]his Court does not have the jurisdiction to determine matters of attorney discipline. The Supreme Court of Georgia is endowed with the inherent and exclusive authority to govern the practice of law in Georgia.”).

The Supreme Court has created a thorough process for addressing ethics grievances. See State Bar Rule 4-201, et seq. The State Disciplinary Board has a specialized procedure with expert decision-makers. The Motion should be denied for lack of jurisdiction, and Defense counsel instructed to file their grievance with the proper body — the State Disciplinary Board.

2. Plaintiff’s counsel violated no ethics rule by documenting the insurance company’s liability to Dr. Hamilton for bad faith, and Defense counsel’s liability to her for legal malpractice.

The Defense Motion does not even assert that any rule prohibited Plaintiff’s counsel from telling lawyers that Defense counsel and the insurance company are liable to Dr. Hamilton for bad faith and legal malpractice. This is a conspicuous gap, since the emotional heat of the Motion is directed at that. (See Motion, pages 3-5.)

As part of their representation of Jennifer Barnett, it was proper for her counsel to point out the liability of the insurance company and Defense counsel. Those liabilities affect Jennifer’s ability to recover on a verdict. So while it may be painful for Defense counsel or the insurance company to confront their exposure, it was proper for Plaintiff’s counsel to confront them with it.

The ethics rules do not prohibit plain talk about painful facts. Even in the context of potential contempt of court, the Supreme Court has cautioned that “trial judges “must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” In re Jefferson, 283 Ga. 216, 221 (2008).

The Defense cites no authority for sanctioning lawyers for writing letters that point out opposing counsel’s exposure for legal malpractice, or an insurance company’s bad faith toward the insured defendant. No such authority exists.

3. Plaintiff’s counsel did not violate Rule 4.2 or its supposed unstated “intention,” which has no force or effect.

The Defense argument about Rule 4.2 fails for multiple reasons.

The Defense concedes that Plaintiff’s counsel did not violate the Rule itself.

Rule 4.2 says: “A lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order.” The Defense concedes we did not do that — we did not contact Dr. Hamilton.

Formal Advisory Opinion 86-4 says a lawyer may write to opposing counsel with information to be conveyed to opposing counsel’s client.

If there were ever any doubt whether a lawyer could write to opposing counsel with information to be conveyed to opposing counsel’s client, that doubt was put to rest 45 years ago. In 1987, Formal Advisory Opinion 86-4 — cited in the Defense Motion — stated that a lawyer can write such a letter to opposing counsel:

There is no unstated intention of the Rule to prevent lawyers from writing letters to each other, or even to prevent lawyers from using opposing counsel as a conduit to communicate to the client. But any unstated intention behind the actual Rule is not law anyhow.

Rule 4.2 forbids contacting an opposing party “unless the lawyer has the consent of the other lawyer.” The Defense says they gave Dr. Hamilton some of the letters written by Plaintiff’s counsel. If that’s true, then the Defense obviously consented to it. We didn’t make them do it. No one held a gun to their head. They chose to do it, of their own free will. So again, no violation of the Rule.

Of course the Defense says — wrongly — that they were required to give Dr. Hamilton copies of the letters written by Plaintiff’s counsel. (Motion, pg 7.) But there is no such requirement. The Defense cites no authority for it, because no such authority exists. To be sure, at times a lawyer might reasonably choose to give a client some correspondence from opposing counsel — actual settlement offers, for example. But the ethics rules do not require that. The rules do not require any particular manner of informing the client. Thus, Rule 1.4(a)(3) requires a lawyer to keep the client “reasonably informed about the status of the matter.” The Rule is silent as to the manner of communication. Certainly, the rules do not require simply passing opposing counsel’s letters to one’s own client. Even as to settlement offers, Comment 2 conspicuously requires only that the “substance” of the offer must be communicated — not any accompanying discussion or argument — but says nothing about the manner of informing the client. If Defense counsel had caused harm (which they do not claim) by the manner in which they informed their client, then they would have been responsible for the harm.

Defense counsel apparently operated under a flawed understanding of the ethics rules. But Defense counsel, and no one else, are responsible for their failure to know and understand the rules.

Finally, in a counterfactual universe in which Defense counsel had a plausible basis for thinking they were required to give their client the letters, they should have sought relief before doing so, not after. Defense counsel could have sought guidance from the State Bar or from an independent ethics expert. Indeed, Defense counsel might even have informed Plaintiff’s counsel that they intended to give our letters to Dr. Hamilton, and asked if we would please tone down the language out of respect for her feelings. But Defense counsel did none of that.

Defense counsel, and no one else, are responsible for their decision to give Dr. Hamilton some of the letters we wrote.[3]

The “intention” of statutes and rules is revealed by what they say. Unstated intentions are not law.

Our Supreme Court finds the “intention” of statutes and rules by looking to their words. The law rejects appeals to unstated “intentions” of legal texts. See, e.g.:

· Crowder v. State, 309 Ga. 66 (2020): “[B]ecause we presume that the General Assembly meant what it said and said what it meant when it comes to the meaning of statutes, we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.”

· Carroll v. Ragsdale, 192 Ga. 118, 120 (1941): “Seeking secret legislative meanings at variance with the language used is a perilous undertaking which is quite as apt to lead to an amendment of the law by judicial construction as it is to arrive at the actual thought in the legislative mind.”

Here — in applying rules written under the supervision of the Supreme Court — it would be especially perverse to rely on unstated intentions, because the Bar rules are supervised by the Supreme Court. See, e.g., Grecaa v. Omni Title Service, 277 Ga. 312, 313 (2003).

The Defense’s novel theory of the unstated intention behind Rule 4.2 is radically implausible.

Even if one entertains discussion of the unstated intentions behind Rule 4.2, the Defense is obviously wrong. First, Comment 7 to the Rule states the purposes of the Rule explicitly. There is nothing about preventing parties from being “scared into settling.” Comment 7 lists these purposes:

a) protecting against misuse of the imbalance of legal skill between a lawyer and layperson

b) safeguarding the client-lawyer relationship from interference by adverse counsel

c) ensuring that all valid claims and defenses are raised in response to inquiry from adverse counsel

d) reducing the likelihood that clients will disclose privileged or other information that might harm their interests

e) maintaining the lawyer’s ability to monitor the case and effectively represent the client.

Plaintiff’s counsel served those purposes by sending letters only to the lawyers. That allowed Defense counsel to advise Dr. Hamilton as they chose, with no undue influence by Plaintiff’s counsel.

Furthermore, it would be absurd to seek to prohibit scaring parties into settlement. The only reason people settle is to avoid a greater risk, a risk that might be “scary.” On the Defense theory, Rule 4.2 prevents a lawyer from revealing powerful evidence, because that might “scare” a party into settling. If the truth is “scary,” then on the Defense theory, it must be suppressed. But the law seeks the opposite: “The object of all legal investigation is the discovery of truth.” OCGA 24-1-1. The Defense theory is untenable.

The Motion’s cases do not support the Defense’s far-fetched theory.

At pages 6 and 8 of the Motion, the Defense cites a handful of cases. The cases do not support the Defense theory:

· WellStar v. Kemp, 324 Ga. App. 629 (2013). This case deals with the disqualification of attorneys who repeatedly attempted to prevent an expert witness from participating in the case. Nothing to do with Rule 4.2.

· Mirch v. Frank, CV-N-01-0443-ECR (RAM) 2005 WL 8170930, 2005 US Dist LEXIS 55597 (D. Nev. May 6, 2005). This case involves sanctions under a federal statute for abusive litigation. Nothing to do with Rule 4.2.

· Fineman v. Armstrong World, No. CIV. A. 84-3837, 1993 WL 414752, 1993 US Dist LEXIS 17390 (DNJ July 30, 1993). This case involves a lawyer who repeatedly provided information to the press in a manner the court found prejudicial to the corporate defendant, by requiring the opposition to divert resources from litigation to managing investor concerns. In discussing potential sanctions, the court likened the press communication to a violation of Rule 4.2, but did not hold that it in fact violated the rule. Further, the court imposed no sanctions. Instead, the court imposed a gag order going forward.

· Pugh-Ouza v. SpringHill Suites, No. 18CV01755 (RA) (DF), 2019 WL 3557794 (SDNY July 9, 2019). The decision attaches a prior, March 26, 2019, order. The March order deals with deposition questioning of a represented witness. The questioning lawyer asked about the advice the witness had been given by her lawyer about a proposed stipulation, and suggested that her lawyer was acting to her detriment. The court imposed no sanctions but ordered the questioning lawyer to refrain from such questions in a further deposition of the same witness.

· Pennington v. Pennington, 291 Ga. 165 (2012). When a party refused to participate in a hearing, the court struck the pleadings and entered judgment in favor of the other party. Nothing to do with Rule 4.2.

· Arbor International v. Reco Sales, No. 1:05 CV 256 GET, 2006 WL 2927518, 2006 U.S. Dist. LEXIS 40048 (ND Ga June 16, 2006). The court struck a plaintiff’s answer where the plaintiff had violated the court’s discovery order willfully and intentionally, and the discovery abuse severely prejudiced the defendant. Nothing to do with Rule 4.2.

· Malautea v. Suzuki, 987 F.2d 1536 (11th Cir. 1993). The court struck the defendant’s answer because of willful and prejudicial violations of the court’s discovery order. Nothing to do with Rule 4.2.

· Ward v. Nierlich, No. 99-14227 CIV, 2006 WL 5412626, 2006 US Dist LEXIS 97373 (SD Fla Sept 18, 2006). The plaintiff’s lawyer bribed a witness. The magistrate recommended denying the Motion to strike the complaint, but did recommend disqualifying the lawyer, on the ground that removal was necessary to ensure the integrity of the proceeding. Nothing to do with Rule 4.2.

None of the cases cited by the Defense support the Defense’s theory. We have looked extensively at caselaw in Georgia and nationwide. We have not found any authority that supports the Defense theory, either.

———

Plaintiff’s counsel did not violate Rule 4.2. The unstated intention behind the Rule is not law, but Plaintiff’s counsel neither violated the intention nor hoped to.[4]

There is no question of remedial sanctions, because the Defense claims no harm and seeks no remedy. But even if there were such a harm, the law would require any remedy to be tailored to that harm. See, e.g., Evans v. State, 360 Ga. App. 596, 599 (2021) (“Evans has failed to show that the extreme sanction of dismissal of the indictment was an appropriate remedy tailored to the alleged injury of a Garrity violation.”); Cowan Systems v. Collier, 361 Ga. App. 823, 827 (2021) (holding it was error to give a spoliation instruction, in part because “the ability to cure — or at least minimize — the prejudice does not weigh in support of the trial court’s harsh sanction”).

For example, the Defense cites a case, Pugh-Ouza v. SpringHill Suites, 2019 WL 3557794 (SDNY July 9, 2019). In that case, the court found that at a deposition, the examining lawyer engaged in a flagrantly improper line of questioning. The court found that the questioning was intended to do what the Defense (erroneously) alleges here — to “drive a wedge” between the witness and her lawyer, and to “scare [her] regarding the potential personal consequences.” But in Pugh-Ouza, the court imposed no sanctions at all. Rather, the court ordered the offending lawyer to refrain from such questions at a repeat deposition, and warned that if the lawyer violated the order, the court would then impose sanctions. That was a proper remedial order, and a proper warning of sanctions for violating a court order.

But again, here the Defense claims no harm. So there is no question of any remedy — let alone dismissal, disqualification, and multi-million-dollar fines. See, e.g., Lee v. Smith, 307 Ga. 815, 824 (2020) (“Trial courts must remain mindful that only in an extreme case should the plaintiff’s action be dismissed or the defendant be precluded from introducing evidence relating to his defense, because these remedies are too drastic if less harsh sanctions are appropriate.”); Ga. Trails & Rentals, Inc. v. Rogers, 359 Ga. App. 207, 213 (2021) (“We view disqualification as an extraordinary remedy that should be granted sparingly.”).

Additionally, since the correspondence at issue ended four months ago, there would be no basis for prospectivesanctions to prevent further communications even if Plaintiff counsel’s letters were improper (which they were not).

As for punitive sanctions: As noted in the Introduction, purely punitive monetary sanctions are limited to $1,000.[5]

—————

The Motion is meritless. We ask the Court to deny it.

PLAINTIFF’S MOTION FOR FEES & EXPENSES PURSUANT TO OCGA 9-15-14

OCGA 9-15-14 provides for “reasonable and necessary attorney’s fees and expenses of litigation” where a party asserts a position so frivolous that “it could not be reasonably believed that a court would accept the asserted [] position.” That describes the Defense Motion for Sanctions. The statute makes an exception where a party makes “a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority.” But the Defense does not do that, so the exception does not apply.

Good faith starts with honesty. A good faith attempt to extend the law starts with being honest about the current state of the law. Defense counsel have not candidly stated the existing law. Nor have they presented any “recognized precedential or persuasive authority” to support their theory.

Furthermore, although the Defense Motion is frivolous, the request for nuclear sanctions required a substantial response. In addition to the cost of Professor Luban’s, Ms. Klevens’, and Professor Cunningham’s work, Plaintiff’s counsel collectively spent at least 75 hours on the response. That is time taken away from other, meritorious matters. It is a cost imposed on us and our clients by a harassing Motion — a cost that should be borne instead by the Defense.

The Court obviously has substantial discretion in deciding whether “it could [] be reasonably believed that a court would accept” the Motion. However, if the Court decides that could not be reasonably believed, then at that point the statute a mandates the action: reasonable and necessary attorney’s fees and expenses of litigation shall be awarded.”

Additional considerations make that modest sanction advisable: There is a fair inference that the motivation for the Defense Motion is corrupt — that it was brought not merely to harass Plaintiff’s counsel in this case with a burdensome briefing chore, but that the Motion is intended for a broader purpose. If the Motion were granted, the effect would be to deter all Georgia plaintiff lawyers from sending letters to insurance lawyers, pointing out liability for bad faith or legal malpractice. That would leave defendants more exposed to bad faith by their insurers and by insurance defense lawyers. Dishonest insurers and disloyal lawyers would be protected by the courts. The Motion is corrupt and dangerous. The Defense, and no one else, should bear the cost of the response.

CONCLUSION

The Defense Motion embodies two other corruptions specific to this case. First, the Defense apparently hopes the Court will feel Jennifer Barnett does not deserve to have legal issues analyzed diligently, because she has already gotten enough money. The Defense again stresses that Jennifer has recovered millions of dollars. Throughout their court filings, the Defense makes this point so repeatedly, despite its irrelevance to the issues, that it has to be taken as purposeful. What purpose, then? The Defense seems to hope the Court is the sort of judge who will look at a woman rendered quadriplegic by medical negligence and resent her for recovering millions of dollars. The Defense theme insults the intelligence, judicial integrity, and human decency of the Court. The effort is futile, one assumes; but the theme is corrupt and dangerous all the same.

Second, the Defense Motion seems intended to give the impression that this case is just a squalid food fight, a mess unworthy of the time and effort to sort through the issues. Primitive and illicit though it is, that tactic can work.

We ask the Court to repudiate these tactics. Jennifer Barnett lives as a quadriplegic, unable to raise her two boys in a normal manner. She lost her husband largely because of the strain of her disabilities. Her boys were traumatized. She lost the ability to do work she loved, as a teacher of children with special needs. She largely lost the ability to socialize with others. She cannot participate normally even in Thanksgiving dinner with the people closest to her. She lost the capacity for physical intimacy and, with it, likely, romantic intimacy more generally. Dr. Hamilton is primarily responsible for the malpractice that took these things from Jennifer. Our law creates accountability because without accountability, recurrence is likely. There will be other Jennifers, other little boys.

The Defense Motion for Sanctions disparages the moral gravity of this case. The Motion demeans the case, the Court, and the justice system along with it. This case is not a sordid squabble. This case matters. Jennifer Barnett matters.

May 8, 2023

Respectfully submitted,

/s/ Lloyd N. Bell

LLOYD N. BELL

Georgia Bar No. 048800

DANIEL E. HOLLOWAY

Georgia Bar No. 658026

BELL LAW FIRM

1201 Peachtree Street, NE, Suite 2000

Atlanta, GA 30361

(404) 249-6768 (tel)

(404) 249-6764 (fax)

bell@belllawfirm.com

dan@belllawfirm.com

/s/ Darren Summerville

Darren Summerville

Georgia Bar No. 691978

THE SUMMERVILLE FIRM, LLC

1226 Ponce de Leon Avenue, NE

Atlanta, GA 30306

T: (770) 635-0030

F: (770) 635-0029

darren@summervillefirm.com

Attorneys for Plaintiffs

State Court of Cobb County

State of Georgia

Jennifer Barnett,

Plaintiff,

— versus —

Richisa Johnson, MD. and George Brown III, R.N,

Defendants.

Civil Action

File No. 23-A-526-6

Hon. Diana Simmons

Certificate of Service

The undersigned has served the foregoing document on all counsel of record, by filing the document with the Court’s efiling system.

May 8, 2023

/s/ Lloyd N. Bell

LLOYD N. BELL

Georgia Bar No. 048800

[1] Defense counsel concede that their potential liability for legal malpractice was not mere bluster by Plaintiff’s counsel. To the contrary, they concede it was serious enough that they were required to disclose it to Dr. Hamilton. (See Motion, pg 7.) As an admission against interest in a formal statement to the Court, this concession is evidence of legal malpractice by Defense counsel and failure to provide Dr. Hamilton a good-faith defense.

[2] Without a violation of a court order, the Court’s authority to control judicial proceedings and the conduct of the participants is not implicated. See, e.g., Truitt v. Housing Authority, 235 Ga. App. 92 (1998) (affirming sanctions for violating a court order). Of course, even when court orders are violated, “no harsher sanctions should be imposed than are necessary to vindicate the court’s authority.” Lee v. Smith, 307 Ga. 815, 821 (2020).

[3] The Motion suggests that Dr. Hamilton learn only recently, from Holloway’s letters, that a verdict in this case could bankrupt her. If Defense counsel did not make that clear at the beginning of this case, eight years ago, then that is another instance of legal malpractice.

[4] If a new rule were announced, limiting substantive rights to communicate with other lawyers, punishment based on retroactive application of the rule would violate Georgia’s constitution. See Ga. Const. of 1983, Art. I, Sec. I, Par. X (“No … retroactive law … shall be passed.”). See also DaimlerChrysler Corp. v. Ferrante, 281 Ga. 273, 274 (Ga. 2006) (“Although legislation which involves mere procedural or evidentiary changes may operate retrospectively, legislation which affects substantive rights may operate prospectively only.”).

[5] To cure one defect, the Defense will want to file a reply alleging some harm. Any alleged harm could only arise from a “wedge” between Dr. Hamilton and her lawyers. The Motion would still, on its face, suffer fatal defects. However, in a counterfactual universe where the Motion had some potential merit, a request for remedial sanctions to redress harm from a “wedge” would entitle Plaintiff to discovery of the evidence on the alleged facts, and an evidentiary hearing. The critical question would be whether any “wedge” arose from fault in the letters by Plaintiff’s counsel, or from Defense counsel’s malpractice or the insurance company’s bad faith. Jennifer and Plaintiff’s counsel would be entitled to cross-examination on those subjects. See, e.g., Ford v. Young, 322 Ga. App. 348 (2013) (on appeal from an order revoking attorney’s pro hac vice admission: “We [] vacate the trial court’s order and remand the case for the court to allow the attorneys such due process.”). So a claim of actual harm to the attorney/client relationship would create a waiver of attorney/client privilege and subject Defense counsel and Dr. Hamilton to cross-examination on the relevant subject. Indeed, the Defense has already waived privilege by discussing their communications with Dr. Hamilton.

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