In re Hine

314 Ga. 70

875 S.E.2d 716

In the MATTER OF Edward HINE, Jr.

S22Y0206

Supreme Court of Georgia.

Decided: June 22, 2022

Edward Hine, Jr., P.O. Box 5128, Rome, Georgia 30162-5128, for Appellant.

James Stephen Lewis, Assistant General Counsel, Paula J. Frederick, General Counsel, Jenny K. Mittelman, William Dallas NeSmith, III, Deputy General Counsel, State Bar of Georgia, 104 Marietta Street, NW, Atlanta, Georgia 30303, for Appellee.

Per Curiam.

This disciplinary matter is before this Court on the petition for voluntary discipline filed by Edward Hine, Jr. (State Bar No. 355775), prior to the issuance of a formal complaint, pursuant to Bar Rule 4-227 (b). In his petition, Hine, who has been a member of the Bar since 1976, admits that, by his conduct in failing to adequately communicate with his clients and in mishandling client funds, he has violated Rules 1.4 (requiring a lawyer to keep a client informed of matters requiring the client's informed consent and to consult with the client), 1.8 (a) (providing that a lawyer shall not enter into a business transaction with a client if the client expects the lawyer to exercise his professional judgment for the protection of the client, and that a lawyer shall not knowingly acquire an interest adverse to the client unless certain conditions are met) and (b) (providing that a lawyer shall not use information gained in the professional relationship to disadvantage of a client), 1.15 (I) (a) (requiring a lawyer to keep client funds separate from the lawyer's own funds), and 1.15 (II) (b) (providing that a lawyer's personal funds should not be deposited in his trust account and that trust account funds, except for earned attorney fees, not be withdrawn for the lawyer's personal use) of the Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d). The maximum sanction for a violation of Rules 1.4 and 1.8 (a) is a public reprimand, while the maximum sanction for a violation of Rules 1.8 (b), 1.15 (I) (a), and 1.15 (II) (b) is disbarment. Hine requests that he receive a six-month suspension as a sanction for his admitted violations of the rules. The State Bar has filed a response, in which it states that it "might" be appropriate for this Court to accept Hine's petition and impose a six-month suspension. For the reasons discussed below, we reject Hine's petition for voluntary discipline.

Hine begins his recitation of the underlying facts by recounting that his wife passed away in May 2021 after a 17-month battle with cancer, that he has transferred all of his clients save one to other counsel, that his one remaining client was in the process of selling off all of its assets, and that he intends to convert his Bar status to inactive once that sale has closed. Hine then states that, in November 2018, he was appointed as executor of a client's estate; he deposited the estate funds into his trust account, paid the estate's expenses, and made distributions from those funds to the estate's beneficiaries. Hine asserts that the will underlying the estate authorized him, in his role as executor, to make loans from the estate funds, and he acknowledges that he advanced funds from the estate to his operating account without the consent of the estate's beneficiaries. Hine states that he repaid these advances in February 2020. In March 2021, Hine noticed that an item pending against his trust account would overdraw that account, so he made a deposit to his trust account before the pending item presented, such that there was no overdraft, and he self-reported the matter to the Bar, attributing the issue to his failure to debit a distribution to the estate's beneficiaries against a deposit he made of personal funds to his trust account. In response to a query from the Bar, Hine investigated the matter, concluding that he was guilty of the aforementioned violations of the Rules, and made full disclosures to the Bar and to the beneficiaries, who he asserts have accepted his accounting and make no claim against him.

Hine acknowledges that he violated Rule 1.4 and Rule 1.8 (a) and (b) by failing to communicate with, and to seek the approval of, the estate's beneficiaries before advancing funds to his operating account and that he violated Rule 1.15 (1) (a) and Rule 1.15 (II) (b) by depositing estate funds into his operating account. Hine asserts that a suspension would be the appropriate penalty in this matter, given that he repaid the misappropriated funds in full, that he made an accounting to the estate beneficiaries, and that he self-reported the matter to the State Bar. Hine acknowledges that he acted knowingly in failing to obtain consent from the beneficiaries prior to advancing funds to his operating account from the estate and that, although no actual client harm occurred, his actions had the potential to cause harm to his clients and the legal system.

As to factors in aggravation of discipline, Hine states that, because of his considerable experience as an attorney, he was "very clearly someone who knew better than to act in such a reckless and improper manner." As to factors in mitigation, Hine asserts that he does not have a prior disciplinary history in his 45 years of practice; that he made a timely, good-faith effort to disclose his misconduct to the affected clients and the Bar and sought to rectify the consequences of his misconduct; that he has demonstrated a cooperative attitude in bringing this matter to the attention of the Bar and in submitting this petition prior to the commencement of proceedings by the Bar; and that he has otherwise exhibited good character, integrity, and a positive reputation in the community, as evidenced by letters of reference. Based on the foregoing, Hine requests the imposition of a six-month suspension.

The Bar filed a timely response to this petition, in which it provides additional facts regarding the estate matter, recounting that, during his administration of the estate, Hine transferred $129,071.50 in funds that had been entrusted to him to his operating account, despite the fact that, as of that time, the fees and expenses that Hine had charged to the estate totaled only $59,363.50. Hine explained in a letter to the beneficiaries that the $69,608 difference between the earned and allocated funds had been a loan, although the beneficiaries had been unaware of the existence of any such loan. Hine further explained to the beneficiaries that he had repaid $68,951.50 to the estate from his personal funds before making a distribution to the beneficiaries. These distributions apparently resulted in an overdraft of Hine's trust account in the amount of $3,344.31, which Hine covered with personal funds. The overdraft was reported to the Bar, with Hine explaining that he

had a credit balance of $85,000 in [his] ledger account in trust, [so he] planned to debit [his] trust account credit balance to cover the [estate] deficit. However, [he] failed to actually debit [his] personal trust account with the [estate] deficit, and on the trust account ledger, [his] account remained at $85,000 instead of the correct balance of $82,658.69 after debiting the [estate] deficit against [his] credit balance.

The Bar further recounts that Hine informed the estate's beneficiaries that, although the will authorized him to charge an hourly fee, the earned fees to which he was entitled totaled $43,526.00, as opposed to the $59,363.50 he had collected in fees from the estate; Hine did apparently refund the $15,837.50 fee overcharge to the beneficiaries.

In addition to providing additional details concerning the estate matter, the Bar's response contains a recitation of facts related to Hine's handling of a trust involving a different client, which Hine did not mention in his petition. The Bar recounts that Hine was the sole trustee of a trust established by a client, who died in October 2003, with a remainder interest to be distributed for the benefit of a college after the death of the client's wife, who passed in September 2018. In January 2011, Hine executed a promissory note to the client trust in exchange for an $85,000 loan from the trust to Hine, with an apparent maturity date on the note of December 31, 2011. Hine remained the trustee of the client trust and the...