Fulton County Superior Court


 

 

IN THE SUPERIOR COURT OF FULTON COUNTY Cg?te?jeZEE/f??igo?tif?ggm
STATE OF GEORGIA 
GORDON L. JOYNER,
Plaintiff,
CIVIL ACTION FILE NO:
2018CV313290
V.
STATE ACCOUNTING OFFICE OF THE
STATE OF GEORGIA,
Defendant.
ORDER AND NOTICE

 

The above?captioned matter is before the Court on Plaintiff Gordon L. Joyner?s
(?Plaintiff?) Motion to Disqualify, which was ?led on February 27, 2019 and amended on June
11, 2019. The Court initially set this matter down for a hearing on May 13, 2019, but at the
request of the parties, this matter was reset for July 11, 2019. As scheduled, the Court held a
hearing on Defendant?s Motion to Disqualify on July 11, 2019, and both sides appeared and were
allowed an opportunity for oral argument. Now, having considered Plaintiff?s Motion to
Disqualify, the Response of Defendant State Accounting Of?ce of the State of Georgia
(?Defendant?) in opposition thereto, the arguments presented, the entire record in this matter, and
applicable Georgia law, the Court herein ?nds as follows:

In Plaintiff?s Motion to Disqualify, Plaintiff seeks to disqualify the Attorney General of
the State of Georgia (the Office?) from serving as counsel for Defendant in this case.

In furtherance thereof, Plaintiff asserts that the Of?ce has an inherent conflict in
defending a state agency and its of?cials in an Open Records Act case, while also possessing the
authority to prosecute violations of the Open Records Act pursuant to O.C.G.A. 
and 50-18-74. Additionally, Plaintiff asserts that because several attorneys in the Of?ce

provided legal advice to Defendant regarding the purported Open Records Act Violations at issue

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prior to the initiation of this litigation, these attorneys will be necessary witnesses in this case
and, as a result, are con?icted from representing Defendant herein.

First addressing Plaintiff?s assertion that the Of?ce cannot represent Defendant in
this ?enforcement of the Georgia Open Records Act matter,? while also ?carrying their corollary
prosecutorial responsibilities and duties,? the Court ?nds no merit to this claim.

Under the Georgia Constitution and governing Georgia law, the Of?ce has a
constitutional and statutory obligation to represent and defend the agencies of the State of
Georgia, including Defendant. See GA. CONST. ART. V, PARA. see also O.C.G.A. 45-
15-34. Here, Plaintiff failed to point to any authority or to present any evidence to overcome
this statutory and constitutional mandate obligating the Of?ce to represent Defendant in
this action.

Furthennore, a trial court has discretion to determine whether an attorney should be
disquali?ed, and ?the right to counsel is an important interest which requires that any curtailment
of the client?s right to counsel of choice be approached with great caution.? Blumenfeld V.
Borenstein, 247 Ga. 406, 408 (1981). In this case, Plaintiff failed to demonstrate to this Court
that the Of?ce should be disquali?ed as counsel for Defendant, and the Court will not

grant such an extraordinary remedy absent the proper showing. Bernocchi V. Forucci, 279 Ga.

 

460 (2005).

Additionally, the Court does not ?nd that the Of?ce?s discretionary authority to
bring an action to enforce the Open Records Act creates a con?ict in representing/defending
Defendant in this litigation. See O.C.G.A Governing Georgia law explicitly
provides that the Of?ce has no such con?ict in exercising this discretionary prosecutorial
authority and acting as legal advisor and counsel to state agencies. See Brown V. State, 177 Ga.
App. 284, 292 (1985); see also GA. CONST. ART. V, PARA. IV.

As such, Plaintiff?s Motion to Disqualify on this basis should be denied.

Turning now to Plaintiff?s argument that certain attorneys in the Of?ce will be

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necessary witnesses in this case, and thus, the Of?ce is impermissibly con?icted from
representing Defendant herein, the Court likewise ?nds no merit in this contention.

Pursuant to Rule 3.7 of the Georgia Rules of Professional Conduct, lawyer shall not
act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: 
the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of
legal services rendered in the case; or (3) disquali?cation of the lawyer would work substantial
hardship on the client.? Ga. R. Prof?l Conduct 

As the Georgia Court of Appeals held in Clough v. Richelo:

The purpose of Rule 3.7 is to prevent an attorney from being in the
awkward position of acting as both a witness and an advocate at
trial, which could create some of the following problems: the
possibility that, in addressing the jury, the lawyer will appear to
vouch for his own credibility; the unfair and difficult situation
which arises when an opposing counsel has to cross?examine a
lawyer-adversary and seek to impeach his credibility; and the
appearance of impropriety created, the likely implication that
the testifying lawyer may well be distorting the truth for the sake
of his client. Further, there is great potential for juror confusion
about which role the lawyer is serving during trial. A witness is
required to testify on the basis of personal knowledge, while an
advocate is expected to explain and comment on evidence given by
others. It may not be clear to the fact?nder whether a statement by
an advocate-witness should be taken as proof or as an analysis of
the proof.
Clough v. Richelo, 274 Ga. App. 129, 137 (2005) (citing Rule 3.7).

In this case, the Court ?nds that Plaintiff failed to demonstrate that the attorneys in
question are likely to be necessary witnesses in this litigation. Based upon the nature of the
claims and defenses in this action, the Court finds that the evidence at issue is available from
witnesses other than attorneys from the Of?ce. Moreover, even if certain of these
attorneys knew information relevant to the issues in this case, these attorneys will not serve as
advocates at trial and/or the information they know would likely be protected from disclosure by

the attorney-client privilege.

Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED AND

ADJ UDGED that Plaintiff? 3 Motion to Disqualify is DENIED.

Finally, turning to Plaintiff?s underlying claims giving rise to this litigation namely,
that Defendant failed to respond to Plaintiff?s Open Records Act requests pursuant to O.C.G.A.
50?18-71, the Court ?nds that based upon the record, Defendant has now fully complied with
Plaintiff?s request and produced all documents responsive thereto. However, the Court will hold
an evidentiary hearing in this case to address Defendant?s failure to timely respond to Plaintiff?s
Open Records Act request in 2017, as well as Plaintiff?s potential entitlement to reasonable
attorney?s fees and litigation expenses pursuant to O.C.G.A. 

In furtherance thereof, the Couit hereby issues the following briefing schedule and
hearing notice:

1. This matter will come before The Honorable Shawn Ellen LaGrua for a ?nal evidentiary
hearing on Thursday, October 17, 2019 at 10:15 am. in Courtroom 8D, Justice Center
Tower, 185 Central Avenue, Atlanta, GA 30303.

2. Parties wishing to ?le a brief in support of their positions may do so no later than ?rm
September 6, 2019.

3. Responses, if any, shall be ?led with the Court no later than Monday, October 7, 2019.

4. A courtesy copy of any such brief and/or response shall be submitted directly to the
Chambers of Judge LaGrua. The original shall be e?filed with the Office of the Clerk of
the Superior Court of Fulton County. 

5. Please note that our Court does not provide a Court Reporter for take downs in civil
cases, so if the parties would like the hearing reported, the parties will need to
provide their own Court Reporter.

6. No continuances will be granted unless good cause is shown. Any legal con?icts are to
be reported to Libby Baum, Staff Attorney to Judge LaGrua, at least gem days before
the hearing in a con?ict letter compliant with Uniform Superior Court Rule 17.1. Any

inquiries regarding this hearing should also be directed to Libby Baum, who may be

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SO ORDERED this the (is day of

 

Fullon County Supe (W Court
Atlanta Judicial Circuil

 

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