IN THE SUPERIOR COURT OF CHATHAM COUNTY

STATE OF GEORGIA

BACARRA MAULDIN, )
)
Plaintiff, ) CIVIL ACTION FILE
) NO. SPCV21-00140-CO
v. )
)
CHATHAM AREA TRANSIT )
AUTHORITY AND TABITHA )
O’DELL )
)
Defendants. )
)

DEFENDANT’S EXPEDITED MOTION FOR SANCTIONS, ATTORNEY’S

FEES, AND DISQUALIFICATION OF COUNSEL DUE TO VIOLATION OF
RULE 4.2 OF THE GEORGIA RULES OF PROFESSIONAL CONDUCT

COMES NOW Defendant Chatham Area Transit Authority (“CAT”) and hereby

moves on an expedited basis for sanctions and to disqualify Edward Buckley and the entire

law firm of Buckley Beal LLP (“Plaintiff’s Counsel) for blatantly violating of Rule 4.2 of

the Georgia Rules of Professional Conduct 4.2.

STATEMENT OF FACTS

This case arises out of the termination of Bacarra Mauldin, the former Chief

Executive Officer of CAT. As reflected in CAT’s Brief in Opposition to Plaintiff’s Motion

for Preliminary Injunction, the supporting affidavits attached thereto, and in Plaintiff’s own

pleadings, CAT has had a long-standing relationship with Bouhan Falligant, which serves

as the Board’s general counsel. In addition, Plaintiff is well-aware of the fact that CAT

also has an attorney-client relationship with her preferred law firm, Jackson Lewis P.C.,

-1-
with whom she communicated on over 40 out of the 66 work days between July and

September 2020. (See Affidavit of Deidrick Cody, ¶ 8, Ex. A). Thus, Plaintiff knew that

CAT was an organization represented by counsel at the time of her termination.

Plaintiff’s subsequently retained Mr. Buckley and Buckley Beal, LLP. The

undisputable record demonstrates that, beyond Plaintiff’s personal knowledge of CAT’s

attorney-client relationship with both Jackson Lewis and Bouhan Falligant at the time of

her January 26, 2021 termination, Mr. Buckley also knew that Bouhan Falligant was

advising CAT in connection with Plaintiff’s termination by no later than February 4, 2021.

(See Affidavit of John D. Bennett, attached hereto as Exhibit 1, Ex. A). This is because

M. Tyus Butler, Jr. of Bouhan Falligant wrote to Mr. Buckley via email and letter about

Plaintiff’s threatened litigation on February 4, 2021. (Id.) Mr. Buckley then responded to

Mr. Butler’s letter on February 8, 2021, acknowledging that “I am in receipt of your letter

of February 4, 2021 … I noticed that you have signed this letter as ‘Legal Counsel,

Chatham Area Transit Authority.’” (Id.) (Emphasis added).

The undersigned counsel, John D. Bennett, and the law firm of Freeman Mathis &

Gary, LLP were subsequently retained to represent CAT and to replace Bouhan Falligant

as litigation counsel in this matter. (Bennett Aff. ¶ 5). Shortly thereafter, Mr. Bennett

became very concerned about whether or not individuals associated with Buckley Beal,

LLP may have been communicating with managerial employees and/or members of CAT’s

Board of Directors. (Id.) One such individual was Clinton Edminster, who is a member

of CAT’s Board of Directors, and is therefore a “managerial” level representative of Cat

under Rule 4.2 of the Georgia Rules of Professional Conduct. (Id.)

-2-
 Today, the undersigned counsel learned of grave violations of Rule 4.2. What

follows is a description of privileged and confidential attorney-client communications

between the undersigned counsel and Mr. Edminster, which will be redacted from the

public record, and submitted unredacted for in camera review:

At no time, has CAT, or its current or former counsel, authorized Plaintiff’s counsel

to communicate with managerial or supervisory employees, let alone members of its

Board of Directors, whose statements could bind CAT. Therefore, counsel’s

communications with Mr. Edminster violated Georgia Rules of Professional Conduct 4.2-

Communication with Person Represented by Counsel.

-3-
 ARGUMENT AND CITATION TO AUTHORITY

A. Plaintiff’s Counsel Violated Georgia Rules of Professional Conduct 4.2 –

Communication with Person Represented by Counsel.

Rule 4.2 of the Georgia Rules of Professional Conduct states in pertinent part as

follows:

(a) 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.

(b) Attorneys for the State and Federal Government shall be subject to this
Rule in the same manner as other attorneys in this State. The maximum
penalty for a violation of this Rule is disbarment.

(Emphasis added). Comment [4A] of Rule 4.2 also explains in relevant part that:

[i]n the case of an organization, this Rule prohibits communications with

an agent or employee of the organization who supervises, directs or
regularly consults with the organization's lawyer concerning the matter
or has authority to obligate the organization with respect to the matter,
or whose act or omission in connection with the matter may be imputed
to the organization for purposes of civil or criminal liability.

(Emphasis added). “The anti-contact rule serves important public interests which preserve

the proper functioning of the judicial system and the administration of justice by a)

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

b) safe-guarding 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; and e) maintaining the lawyers ability to

-4-
monitor the case and effectively represent the client.” See Comment [7] to Rule 4.2

(Emphasis added).

Rule 4.2 is pretty darn clear. While the undersigned counsel has a positive and very

professional relationship with Mr. Buckley and respects him both as an attorney and as an

excellent advocate for justice, the applicable rules were plainly violated.

As the Georgia Court of Appeals articulated in Askins v. Colon, 270 Ga. App. 737,

740 (2) (2004), “This rule is designed to protect a represented party's right to effective

representation of counsel by preventing adverse counsel from taking advantage of such

party through undisclosed contact.” (Citation omitted, emphasis added). Yet, the

undersigned counsel was never aware of the communications at issue until today. He also

never disclosed the communication to Bouhan Falligant or Ms. Odell’s personal attorneys.

Moreover, as stated in Askins, because Mr. Edminster disclosed his personal knowledge

of facts relevant to the dispute to Mr. Buckley during these private conversations, this is

precisely the type of unauthorized communication that directly impedes the ability of

CAT’s counsel to effectively represent CAT.

There is additional case law that speaks directly to this very issue. For instance, in

NationsBank, N.A. v. Southtrust Bank of Georgia, N.A., 226 Ga. App. 888, 896 (1997),

the Court of Appeals instructed that “[u]nder the common law of Georgia, as codified in

O.C.G.A. §§ 24–9–21(2), 24–9–24, and 24–9–25, the attorney-client privilege bars

revelation, discovery, and testimony of [attorney-client privileged materials by] a lawyer

except when waived by the client or in very limited circumstances.” No waiver has been

pled in this instance, nor can it be established. Thus, the law of governing the waiver of

-5-
the attorney-client privilege and/or the work product doctrine provides no excuse for the

communication with Mr. Edminster, meaning the Rule has been violated.

B. Sanctions And Attorney’s Fees Are Appropriate.

Courts are authorized to, and have, disqualified attorneys for violating Rule 4.2.

The “determination of whether an attorney should be disqualified from representing a client

in a judicial proceeding rests in the sound discretion of the trial judge.” Ford Motor Co. v.

Young, 322 Ga. App. at 357 (citing Piedmont Hosp. v. Reddick, 267 Ga. App. 68, 75

(2004)). See also In re Estate of Peterson, 255 Ga. App. 303 (565 SE2d 524) (2002)

(affirming superior court's disqualification of an attorney serving as executor of a will on

the basis of violation of State Bar Rules); Clos v. Pugia, 204 Ga. App. 843, 844-846 (1)

(1992) (similar). Here, the violation of Rule 4.2 irretrievably taints the litigation and was

not inadvertent, therefore Plaintiff’s counsel should be disqualified. As such a

disqualification would be very early in the litigation, doing so is also permitted because it

will not sufficiently delay the litigation.

Additionally, or in the alternative, the Court should strike Plaintiff’s Emergency

Motion for Preliminary Injunction. The Northern District of Georgia fashioned a similar

remedy in Lazar v. Mauney, 192 F.R.D. 324, 330-331 (N.D. Ga. Mar. 24, 2000). In

resolving an analogous dispute, the court in Lazar ruled in pertinent part as follows:

This court requires that all lawyers practicing before it comply with the Code
of Professional Responsibility and Standards of Conduct of the State Bar of
Georgia. See L.R. 83.1(C.), NDGa. …. Accordingly, they are prohibited
from engaging in professional conduct involving dishonesty, fraud, deceit,
or misrepresentation. See Ga. State Bar Rules & Regs., Rule 4–102, Standard
4; Ga. State Bar Rules & Regs., Rule 3–101, Directory Rule 1–102(A)(4).
Additionally, they have a duty to “be courteous to opposing counsel and

-6-
 should accede to reasonable requests” of opposing counsel which do not
prejudice the rights of their clients. Ga. State Bar Rules & Regs., Canons of
Ethics, Rule 3–107, Ethical Consideration 7–38. They must assist in
maintaining the integrity and competence of the legal profession. Ga. State
Bar Rules & Regs., Canons of Ethics, Canon 1, Rule 3–101….Pursuant to
this court’s inherent powers to manage discovery as well as its discretion to
award protective orders conferred by Federal Rule of Civil Procedure 26(c),
plaintiff’s motion to strike defendants’ response to plaintiff’s motion to
compel [21–1] is GRANTED. Consequently, defendants have no
response to plaintiff’s motion to compel.

(Emphasis added). In essence, the Court held that due to a violation the Georgia Rules of

Professional Conduct, an appropriate sanction would be the striking of the defendant’s

response in that case to the plaintiff’s motion to compel. Under that highly persuasive

authority, an appropriate alternative to disqualification would be to strike and deny

Plaintiff’s Emergency Motion for Preliminary Injunction.

A New Jersey court also dealt with a similar situation in Erickson v. Winthrop

Laboratories, 249 N.J.Super. 137 (1991). That case dealt with unauthorized ex-parte

communications to a director represented by counsel. Similar to Erickson, Mr. Edminster

is one of the Board of Directors of CAT and when it comes to this type of situation the

Court in Erickson stated, “In the end, Judge Politan found it more ‘logical to hold that such

individuals are off limits except for formal discovery because they may make statements

which can be imputed’ to the corporate defendant.’” Just like the director in Erickson, Mr.

Edminster is a member of the CAT Board and any statements he made to Mr. Buckley may

be imputable to CAT as a whole.

Erickson also spelled out an additional remedy to be used in such a situation.

Specifically, the Court directed the plaintiff’s counsel in that case to “turn over any notes,

-7-
statements and transcriptions of any kind taken during any past and future contacts. Any

statements taken must be memorialized in their entirety and shall contain identifying data

and the date obtained.” Id. Similarly, CAT is requesting that Plaintiff’s counsel turn over

any and all documents related to their phone call with Mr. Edminster on February 5, 2021,

which includes notes, statements, transcriptions of any kind, audio recordings, electronic

phone records establishing the length of the calls and which party called the other, and

memorandums. Furthermore, and most importantly, CAT is requesting that the Court

invoke its inherent and expansive authority under O.C.G.A. § 9-11-26 to limit and

suppress from the use at any trial or hearing in this matter, any statements, testimony,

(admissions or otherwise) of Mr. Edminster that relate to the defamation claims against

Tabitha Odell and the breach of contract/retaliation claims against CAT.

Finally, CAT requests its attorney’s fees for all time associated with this motion –

including drafting the motion, speaking with Mr. Edminster about the improper conduct,

any oral arguments associated with the motion, and preparing a fee request. It cannot

plausibly be disputed that a violation of Rule 4.2 can result in attorney fee sanctions by a

Georgia trial court. Under O.C.G.A. § 9-15-14(b), “the court may assess reasonable and

necessary attorney’s fees and expenses of litigation in any civil action in any court of record

if, upon the motion of any party or the court itself, it finds that an attorney or party …

unnecessarily expanded the proceeding by other improper conduct, including, but not

limited to, abuses of discovery procedures.” (Emphasis added). A violation of Rule 4.2

in the context of discovery is both an abuse of discovery procedures and improper conduct

within the contemplation of O.C.G.A. § 9-15-14. In addition, Uniform Superior Court Rule

-8-
4.4 provides that “[t]he [trial] court's … authority includes, without limitation, the court’s

and State Bar of Georgia’s Rules of Professional Conduct, contempt and sanctions

orders, local court rules, and court policies and procedures.” (Emphasis supplied.) See also

Ford Motor Co. v. Young, 322 Ga. App. 348 (2013) (observing that trial courts have the

authority to discipline lawyers for violating the Rules of Professional Conduct and, in that

case, to disqualify the attorneys and revoke their pro hac vice admissions).

CONCLUSION

For the foregoing reasons, CAT requests that Plaintiff and her counsel be sanctioned

for violation of Georgia Rules of Professional Conduct 4.2. Specifically, CAT requests that

it be awarded the attorney’s fees accrued in having to draft this motion, as well as the time

spent attending the upcoming hearing to argue this matter, under O.C.G.A. § 9-15-14(b).

CAT also requests that the Court: (1) disqualify Plaintiff’s counsel; (2) alternatively strike

and deny Plaintiff’s Motion for Preliminary Injunction; (3) order Plaintiff’s Counsel and

his entire law firm to fully comply with Georgia Rules of Professional Conduct 4.2 in all

future cases; (4) order Plaintiff’s counsel to disclose all information obtained related to Mr.

Edminster; and (5) issue an order from the Court that forbids Plaintiff’s counsel from ever

introducing or arguing any evidence that is based on or otherwise related to the subject

matter of their unauthorized communications with Clinton Edminster.

CAT has produced along with this motion redacted exhibits and will present copies

of the unredacted exhibits to the Court in-camera review at the hearing for this motion.

Respectfully submitted this 24th day of February, 2021.

-9-
FREEMAN MATHIS & GARY, LLP

/s/ John D. Bennett

John B. Bennett
Georgia Bar No. 059212
Attorney for Defendant Chatham Area Transit
Authority
FREEMAN MATHIS & GARY, LLP
100 Galleria Parkway, Suite 1600
Atlanta, Georgia 30339-5948
(770) 818-0000 (telephone)
(770) 937-9960 (facsimile)

- 10 -
 CERTIFICATE OF SERVICE

I hereby certify that I have this day submitted the foregoing DEFENDANT’S

EXPEDITED MOTION FOR SANCTIONS, ATTORNEY’S FEES, AND

DISQUALIFICATION OF COUNSEL DUE TO VIOLATION OF RULE 4.2 OF THE

GEORGIA RULES OF PROFESSIONAL CONDUCT to the Clerk of Court via Odyssey

E-Filing system, which will send automatic notification to all counsel of record.

This 24th day of February, 2021.

/s/ John D. Bennett

John B. Bennett
Georgia Bar No. 059212
[email protected]

- 11 -