HAN Grievance Memorandum Against DAUGHERTY

8/8/2019 HAN Grievance Memorandum Against DAUGHERTY

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MEMORANDUM OF GRIEVANCE AGAINST

SHAUN M. DAUGHERTY, GEORGIA BAR NUMBER 205877

TO: Office of the General Counsel

State Bar of Georgia

104 Marietta St. NW

Suite 100

Atlanta, Georgia 30303

FROM: Sam S. Han, Ph.D.

Georgia Bar Number 322284

Assistant Professor of Law

Mail Stop 2772

The University of Dayton School of Law300 College Park Avenue

Dayton, OH 45469-2772

DATE: 2010 June 28

RE: Formal Grievance against Shaun M. Daugherty

Georgia Bar No. 205877

To the Office of the General Counsel of the State Bar of Georgia, Greetings.

I have always considered the field of law to be an honorable

profession, and my dealings with various members of the State Bar of

Georgia often confirms that our attorneys are, for the most part, honest and

honorable. Yet, today, I find myself lodging this grievance because one

attorney, Mr. Shaun M. Daugherty (Georgia Bar No. 205877), has soiled the

integrity of the legal profession by violating his ethical obligation to his

clients and to the bar. Specifically, Mr. Daugherty withheld a settlement


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offer from one or more of his client. Additionally, when confronted about

violating his ethical obligation, Mr. Daugherty showed a flagrant disregard

for the rules imposed by the State Bar of Georgia.1

It is not easy for me to lodge this grievance, because Mr. Daugherty is

a graduate of the University of Dayton School of Law, and I am currently a

law professor at the University of Dayton School of Law. Thus, filing this

grievance also places the University of Dayton in a negative light. Yet, I

feel compelled to uphold the integrity of the profession by bringing this

violation to your attention.2

Having said all of this, I thank you in advance for reviewing this

matter and for taking appropriate action.

I. FACTS RELEVANT TO GRIEVANCE

I represent Mr. Melvin Robinson who is the Plaintiff in a lawsuit that

1Mr. Daugherty has also violated his ethical obligations to his client by

disregarding an irreconcilable conflict-of-interest, despite being expressly

warned of the existing conflict and despite being reminded of his ethical

obligation to withdraw from representing the conflicted clients. Since a

conflict-of-interest affects both Mr. Daugherty and his entire law firm, that

violation will be the subject of a separate grievance.2

Comment [1] of Rule 8.3 states that "[r]eporting a violation is especially

important where the victim is unlikely to discover the offense." Here, Mr.

Daugherty still represents the victims, and continues to filter information

from the victims, thereby insulating himself at the expense of his clients.


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was filed on 2009 April 14.3

That lawsuit named, as Defendants:

(1) Correctional Medical Associates, Inc. ("CMA");

(2) Dr. Cecilia Babalola;

(3) Ms. Valerie Bolton;

(4) Ms. Carla Spells;

(5) Ms. Olivia Mgbeokwere; and

(6) Sheriff Myron Freeman.4

Mr. Daugherty and his firm undertook joint representation of all Defendants,

with the exception of Sheriff Freeman.

On 2009 December28, an aggregate settlement offer was conveyed to

all of the named Defendants, asking for a response by 2010 January 8.5

Defendants never responded to Plaintiff's settlement offer. Thus, Plaintiff

presumed that the offer was rejected and initiated discovery.

On 2010 May 24, almost six (6) months after Plaintiff's settlement

offer, and with less than forty (40) days to the close of discovery, Plaintiff

deposed Dr. Babalola, one of the named Defendants in the lawsuit. During

her deposition, Dr. Babalola was asked about the settlement offer.6

3Robinson v. Correctional Medical Associates, et al. , Civil Action No.

2009-CV-167587 (Fulton County Superior Court), now transferred to the

United States District Court for the Northern District of Georgia,Robinson

v. Correctional Medical Associates, et al., 1:09-cv-01509-JOF (N.D. Ga.).4Id.

5Settlement Offer, Mailed to Mr. Daugherty on 2009 December 28, attached

hereto as Exhibit A.6

Deposition of Dr. Cecilia Babalola ("Babalola Depo."), 2010 May 24,

relevant portions attached hereto as Exhibit B.


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Shockingly, Dr. Babalola testified that Mr. Daughery never conveyed to her

Plaintiff's settlement offer.7

When Mr. Daugherty was confronted with this ethical violation, Mr.

Daugherty indicated that Dr. Babalola had no settlement authority,8

and that

he allowed others to make the settlement decision on Dr. Babalola's behalf.9

Dr. Babalola was then asked about her settlement authority, to which she

7Babalola Depo., page 33, line 25 through page 34, line 5 ("33:25-34:5"),

referring to the written settlement offer:Q: Have you ever seen this document before today?

A: No.

Q: Did your attorney ever inform you of any settlement offer in

this case?

A: No.

Babalola Depo., 34:20-25, referring to the written settlement offer:

Q: (By Mr. DeWoskin) You've never seen this document before

today?

A: No.Q: And your attorney never called you and said they made an offer

to settle?

A: No.8

Babalola Depo., 35:11-19 (emphasis supplied):

Mr. DeWoskin: Well, for the record we are alleging bad faith and

that will be an exception to the --

Mr. Daugherty: Bad faith of what? This was presented to the

people that have authority to make the decisions. And if

you're questioning my ethics again on my practice of law then

we can take it up later.9

The conflict-of-interest is manifest from Mr. Daugherty's favoring one

client's authority to make the settlement decision at the expense of his other

clients' rights to make that decision. This, along with a host of other

evidence, will be filed in a separate grievance that addresses Mr.

Daugherty's disregard for an existing impermissible conflict-of-interest.


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responded that she was unaware that she had settlement authority.10

Mr. Daugherty was expressly informed that his continued disregard

for his ethical obligations may require the filing of a formal grievance, to

which he exclaimed, "Have at it!"11

thereby evidencing scorn for the rules

that govern his obligations to his clients.

Currently, all of Defendants' dispositive motions have been denied.

Thus, Mr. Daugherty's clients have a higher potential for liability. Since the

Plaintiff has expended significant time, effort, and resources in conducting

discovery, Mr. Daugherty's clients will not be receiving another aggregate

settlement offer that is as favorable as the initial offer, which was never

conveyed to Mr. Daugherty's clients. Thus, Mr. Daugherty's breach of his

ethical obligation has foreclosed an opportunity that would have otherwise

been available to his clients.

10Babalola Depo., 35:20-23:

Q: (By Mr. DeWoskin) Very Well. Dr. Babalola, are you aware

that you have no authority to settle this case?

A: No.11

Mr. Daugherty made this exclamation right before Plaintiff commenced

the deposition of Defendants' expert witness, Dr. Lawrence Mendel. Mr.

Daugherty's statement was made in the presence of: (1) Mr. Daniel

DeWoskin, who also represents Mr. Robinson; (2) Ms. Nikisha McDonald,

who represents Sheriff Freeman; and (3) the Court Reporter for Dr. Mendel's

deposition.


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II. STANDARDS OF CONDUCT

The conduct of attorneys is governed by the State Bar Rules and

Regulations, Rules of Professional Conduct ("Rules").

Rule 1.2(a) recites:

A lawyer shall abide by a client's decision whether to accept an

offer of settlement of a matter.12

Comment [5] to Rule 1.2 specifies that the client's settlement authority

cannot be waived. Furthermore, Rule 1.8(g) recites:

A lawyer who represents two or more clients shall not

participate in making an aggregate settlement of the claims for

or against the clients, . . . unless each client consents after

consultation, including disclosure of the existence and nature of

all claims or pleas involved and of the participation of each

person in the settlement.13

Comment [6], which explains Rule 1.8(g), "requires consent after

consultation."14

Furthermore, Comment [6] recites that "[t]his requirement

is not met by a blanket consent prior to settlement that the majority decision

12Rule 1.2(a), Rules of Professional Conduct, State Bar Rules and

Regulations, Georgia, emphasis supplied. The maximum penalty for

violating Rule 1.2(a) is disbarment.13

Rule 1.8(g), Rules of Professional Conduct, State Bar Rules and

Regulations, Georgia, emphasis supplied. The maximum penalty for

violating Rule 1.8(g) is a public reprimand.14

Comment [6] to Rule 1.8(g), Rules of Professional Conduct, State Bar

Rules and Regulations, Georgia.


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will rule."15

In addition to Rules 1.2(a) and 1.8(g), Comment [1A] of Rule 1.4

recites that "[a] lawyer who receives from opposing counsel an offer of

settlement in a civil controversy . . . should promptly inform the client of its

substance."16

Read in conjunction, Rules 1.2(a), 1.4, and 1.8(g) require the attorney

to promptly convey settlement offers to the client, consult with the client,

and abide by the client's decision on whether or not to settle a matter. For an

aggregate settlement offer, the attorney is required to promptly convey the

offer to each client, and is forbidden from settling a matter (or rejecting a

settlement offer) until each client has consented after consultation.

III. MR. DAUGHERTY'S VIOLATION OF THE GEORGIA RULES

OF PROFESSIONAL CONDUCT

Mr. Daugherty breached his ethical obligation to his clients by

deliberately withholding the settlement offer from his clients. Mr.

Daugherty's breach is not trivial, as evidenced by the fact that the maximum

penalty associated with violating Rule 1.2(a) is disbarment.

15Id.

16Comment [1A] to Rule 1.4, Rules of Professional Conduct, State Bar

Rules and Regulations, Georgia, emphasis supplied. The maximum penalty

for violating Rule 1.4 is a public reprimand.


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A. Mr. Daugherty's Violation of the Georgia Rules

Mr. Daugherty represents multiple clients in a single lawsuit, each

exposed to significant liability by virtue of being defendants in a lawsuit.

On 2010 December 28, Plaintiff extended an aggregate settlement offer to

all of the named Defendants, requesting a response by 2010 January 8.17

In accordance with Rules 1.2(a), 1.4, and 1.8(g), Mr. Daugherty was

required to promptly convey that settlement offer to each of his clients.18

Instead, Mr. Daugherty intentionally withheld that offer from some of his

clients, because Mr. Daugherty did not consider those clients to have

settlement authority.19

In violation of his ethical obligation to each of his

clients, Mr. Daugherty allowed someone else to reject the settlement offer on

behalf of some of his clients, without presenting the settlement offer to all of

his clients. Thus, Mr. Daugherty's clients were never provided with any

opportunity to even consider the settlement offer, let alone consent after

consultation.

Mr. Daugherty's clients now face a heightened exposure to liability

17 Settlement Offer, Mailed to Mr. Daugherty on 2009 December 28,attached hereto as Exhibit A.18

Rules 1.2(a) and 1.8(g), Rules of Professional Conduct, State Bar Rules

and Regulations, Georgia.19

Babalola Depo., 35:11-19 (Mr. Daugherty exclaiming: "This was

presented to the people that have authority to make the decisions.").


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since Defendants' dispositive motions have now been denied by the Court.

There can be no doubt that Mr. Daugherty breached his ethical

obligation to both his client and to his profession.

B. Aggravating Circumstances

In addition to breaching his ethical obligation, Mr. Daugherty's

subsequent behavior evidences an utter disregard for the Georgia Rules. For

example, Mr. Daugherty exclaimed that the settlement offer "was presented

to the people that have authority to make the decisions," showing that: (a) he

deliberately disregarded his ethical obligation to his clients; and (b)

disregarded a conflict-of-interest between the "people that have authority to

make the decisions" and his clients.20

Furthermore, Mr. Daugherty invited the filing of this grievance,

scorning the very rules that govern his behavior as an attorney. Specifically,

when warned that his continued violations would result in the filing of a

formal grievance, his response was "Have at it!"21

20It is worthwhile to note that Mr. Daugherty still represents all of the

named Defendants, despite being warned of an irreconcilable conflict-of-interest that exists among his clients. Specifically, one of the Defendants

has testified unfavorably against another of Mr. Daugherty's client.21

Mr. Daugherty made this exclamation right before Plaintiff commenced

the deposition of Defendants' expert witness, Dr. Lawrence Mendel. Mr.

Daugherty's statement was made in the presence of: (1) Mr. Daniel

DeWoskin, who also represents Mr. Robinson; (2) Ms. Nikisha McDonald,


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The evidence in aggravation of his ethical violations requires close

scrutiny by this governing body. This is especially so since Mr. Daugherty

still represents the victims, and continues to filter information from the

victims, thereby insulating himself at the expense of his clients.

IV. CONCLUSION

I have interacted with doctors, attorneys, pharmacists, and many other

professionals that are bound by ethical obligations. I have very high

expectations of all of those professionals. As an attorney, I have even higher

expectations of my fellow attorneys, especially since attorneys are charged

with the furtherance of justice.

Here, Mr. Daugherty violated his ethical obligations to his client,

going so far as to scorn the rules that govern his obligations to his clients.

This, despite being told that a grievance would be filed against him.

Because of this, I believe that Mr. Daugherty's actions require scrutiny

by this governing body.

I thank the Office in advance for its investigation into this matter.

Should the Office need additional information, please feel free to contact

me.

who represents Sheriff Freeman; and (3) the Court Reporter for Dr. Mendel's

deposition.


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Sincerely,

______________________________

Sam S. Han, Ph.D.

Assistant Professor of Law

The University of Dayton School of Law

Mail Stop 2772

300 College Park Avenue

Dayton, OH 45469-2772

Phone: +1 (937) 229-2256

Email: [email protected]


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Exhibit A:

Settlement Offer

Mailed to Mr. Daugherty on2009 December 28


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Documents

HAN Grievance Memorandum Against DAUGHERTY