Disabled Vet sues Ex-lawyer for Lost Chance at Compensation

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2015 Georgia State Law Magazine-200x200
PLAINTIFF BLAMES State Bar for not warning of pending actions against attorney

When a disabled Army veteran found representation for a personal injury case in 2011, he had no idea that a year earlier his attorney had admitted in court to misappropriating client funds.

Michael Christ is suing his now-former attorney, Thomas Sunderland, for malpractice in Hall County State Court. Christ’s complaint states that Sunderland failed to meet a refiling deadline, forever denying Christ the chance to pursue compensation for his medical expenses and lost wages from a car accident.

Christ and his new lawyers, Linley Jones and Jennifer Ivey, partly blame the State Bar of Georgia for failing to warn the public of pending disciplinary action against Sunderland.

“I wish that [the bar] would have told me something,” Christ said. “It could have said that he was under investigation. I wouldn’t have hired that attorney.”

Sunderland, he said, had been recommended by friends who had used him in the past. A quick check of the bar’s website showed Sunderland in good standing—and it still does. That’s because Sunderland’s case is caught in a procedural gray area.

Even though Sunderland pleaded guilty in August to theft by conversion and surrendered his bar license as a condition of that plea, the state Supreme Court has not yet accepted it, leaving Sunderland legally able to continue practicing law.

Jones added that she wished the bar required members to carry malpractice insurance, because even if Christ prevails against Sunderland, he may not have any assets to pay a verdict.

Linley Jones says accused lawyers are entitled to due process, but more needs to be done to protect clients.

Sunderland could not be reached for comment. Calls to his office were answered by a recorded message stating that the office no longer provides legal services. Bar rules mandate that the bar not disclose complaints or pending investigations against lawyers until its investigative panel has filed the complaint with the state high court and that information becomes part of the public record. The bar also has a procedure for emergency suspension, but bar officials say it’s rarely used and only in situations that pose an imminent threat.

The bar began its investigation into Sunderland in July 2010 after Gwinnett County Probate Court Judge Walter Clarke sent a letter to the bar about Sunderland. Clarke wrote that Sunderland, whom the court had appointed as a conservator for a minor who had received a settlement in a wrongful death suit, “indicated he had borrowed approximately $188,000 from his ward. During a hearing on July 19, 2010, Mr. Sunderland admitted spending his ward’s funds without authorization from this court.”

It took the bar nearly three years to file a disbarment request with the Georgia Supreme Court. That request is pending. In the meantime, the Gwinnett County district attorney’s office prosecuted Sunderland, which resulted in a sentence of 10 years’ probation and a $1,000 fine.

Christ and his new lawyers said they were unaware of the allegations against Sunderland until they read an article in the Daily Report published Oct. 22 that detailed Sunderland’s bar disciplinary and criminal cases.

“We knew that he had been arrested, but we didn’t know that it had involved a client,” Jones said. “And we didn’t know that there had been an arrest until after the malpractice lawsuit was filed.”

Jones said she agrees with the bar that accused lawyers are entitled to due process, but she added there should greater emphasis on protecting clients. ”

As I see it, the bar is for the regulation of lawyers and the protection of consumers. The bar is not designed for the protection of lawyers,” Jones said. “I think that we lose tremendous credibility as a profession when we fail to put clients first. When we fail to do so individually, it’s called legal malpractice. When we do so collectively, it’s called a disgrace.”

The bar’s general counsel, Paula Frederick, was unavailable for comment, but she told the Daily Report in October that the bar followed its regular procedures in building its case against Sunderland.

Jennifer Ivey: Her client’s former attorney has said he doesn’t have insurance to cover the claim.

“It’s true we’ve got a lot of due process built into the rules and that does take time,” she said.

While Jones said she and her client would like to see Sunderland disbarred, their attention is on pursuing the malpractice claim against him. Jones and Ivey have filed for summary judgment in the case because, they say, Sunderland has failed to respond to discovery, including requests to admit, and has failed to appear for deposition.

According to his side’s pleadings, Christ hired Sunderland in 2011 to file a personal injury claim against the driver he said caused a wreck on Nov. 26, 2006, shortly before Christ was set to redeploy.

Christ sustained a disabling injury to his leg, which required surgery, and subsequently he developed an antibiotic-resistant infection. Christ was under medical care from March 2007 until June 2009 and received a medical discharge from the Army in July 2011. Christ, 56, said he felt he still had many years left in his military career, which had spanned more than three decades.

On Aug. 1, 2011, Sunderland dismissed the personal injury case without prejudice but he failed to refile it within the six-month deadline that expired on Feb. 1, 2012

“We don’t have any explanation for the failure, but we do know Mr. Christ—had he known [about Sunderland’s disciplinary background] —would never have hired such a lawyer to represent him,” Jones said.

Jones, whose practice is entirely comprised of legal malpractice cases, said she also didn’t know Sunderland was uninsured until after she filed Christ’s case. Even if her client prevails, he’s unlikely to collect, she said.

According to Sunderland’s bar disciplinary case, he claimed to have some form of insurance in 2012 but did not offer any details. Ivey said Sunderland has since told the firm that he didn’t have insurance to cover the malpractice claim.

“This is a huge issue with lawyers in Georgia,” Jones said. “There’s not a legal requirement that lawyers carry professional liability insurance, and there’s no ethical rule or bar recommendation that I’m familiar with.

“I’ve urged the bar for some time to pass a [malpractice insurance] requirement for lawyers that handle certain types of cases,” Jones added. “Certainly not all areas of the law require coverage, but for people handling plaintiff tort cases, they need to be insured.”

Jones said her laSt conversation on the topic was with past bar president Ken Shigley, whose term ended in the summer of 2012.

Shigley said he thought it would be hard to persuade the bar to mandate professional liability insurance for its members.

“We have to carry auto and workers compensation insurance, and it is generally imprudent to carry on an active private law practice without malpractice insurance. But clearly one size does not fit all types of law practice,” Shigley said. “Making malpractice coverage mandatory would raise questions about who needs it and who really does not, how much coverage to require for the infinite variety of types of law practice and how much power should be shifted to insurance companies. Lawyers whose practice necessarily involves representing people who are character risks, such as in criminal defense, have a real concern about being required to both carry malpractice insurance and disclose it to those clients.”

Shigley added that while some states does not require coverage, they do require lawyers to disclose whether they have it to their clients.

“However, I expect there would be strong resistance to even that limited disclosure rule in Georgia,” he said.

Christ’s malpractice suit is Christ v. Sunderland, 2013SV637D.