In the Matter of Ashutosh S. Joshi

FINAL COPY

      S23Y0975. IN THE MATTER OF ASHUTOSH S. JOSHI.


      PER CURIAM.

      This is the second time this disciplinary matter has come

before the Court. In In the Matter of Joshi, 

 (

) (2023) (“Joshi I”), this Court rejected a special master’s

recommendation to accept the amended petition for voluntary

discipline filed by Ashutosh S. Joshi (State Bar No. 405375), which

he submitted after the filing of a formal complaint, see Bar Rule 4-

227 (c). In that petition, Joshi sought a six-month suspension from

the date he stopped practicing law. This Court rejected Joshi’s

petition because, despite his admission of violating Rule 4.2 (a) of

the Georgia Rules of Professional Conduct (“GRPC”),1 the more

serious alleged violations in the case were not addressed, such that




      1 Rule 4.2 (a) provides that “[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.”
the Court could not determine if the proposed six-month suspension

was appropriate. See Joshi I, 

. The Court

remanded the matter to the special master with direction to address

the additional alleged misconduct and what level of sanction, if any,

was appropriate. See 

.

     The matter is now again before the Court on the special

master’s report and recommendation that this Court accept Joshi’s

newly amended petition for the voluntary surrender of his bar

license. Although Joshi continues to deny the more serious

misconduct and violations of the GRPC alleged in this case, because

he admits to violating Rule 4.2 (a) — the maximum sanction for a

single violation of which is disbarment — and swore under oath that

he would never apply for readmission to the State Bar, the Court

accepts the voluntary surrender of his license, which is tantamount

to disbarment. See GRPC Rule 1.0 (s) (“A voluntary surrender of

license is tantamount to disbarment.”).

     The factual background, as recounted in Joshi I, is as follows.

          The formal complaint stated that Joshi, who has

                                    2
been a member of the Bar since 1996, represented a client
accused of murder and other offenses. The case against
the client, Kenneth Jackson, who was allegedly the
highest-ranking member of a gang in Georgia, involved a
shooting in which several women were injured and an
infant was killed. A co-conspirator pled guilty and agreed
to testify against Jackson. After the co-conspirator, who
was represented by attorney Brad Gardner, agreed to
cooperate against Jackson, he was moved away from
Jackson and their placement at the Georgia Diagnostic
and Classification Prison to the Rockdale County Jail.
The co-conspirator’s location was kept confidential out of
concern for his safety.
      The formal complaint goes on to allege that, prior to
the trial, the Assistant District Attorney filed a witness
list showing the co-conspirator as a witness and Gardner
as his attorney. She served that list on Joshi by e-mail on
August 28, 2017. Later that same day, Joshi traveled to
the Diagnostic and Classification Prison and met with
Jackson. Joshi then traveled to the Rockdale County Jail.
Joshi had never represented the co-conspirator, and he
allegedly knew that the co-conspirator was represented
by Gardner. Joshi did not attempt to secure Gardner’s
permission to meet with the co-conspirator.
      Upon arriving at the Rockdale County Jail, Joshi
approached the visitor registration desk and notified the
intake deputy that he was there to meet with the co-
conspirator — whom he allegedly identified as his client.
The intake deputy reviewed the jail database and noticed
that, although it showed prior attorney visits for the co-
conspirator, Joshi had never visited him. After clarifying
that Joshi was, in fact, there to visit his “client,” the
intake deputy notified the supervisor for the co-
conspirator’s housing pod that the co-conspirator had an
attorney visitor. But when the intake deputy notified

                               3
Joshi that there would be a short delay so that the pod
could be cleared, Joshi, unlike prior attorney-visitors,
requested to have the visit occur in the attorney visitation
booth, which permitted confidential conversation. Once
the co-conspirator had been moved to the attorney
visitation booth, another officer escorted Joshi there.
      Very shortly after Joshi entered the booth, the
intake deputy heard the co-conspirator pounding on the
booth window, asking to be removed because Joshi was
not his attorney. After the co-conspirator was removed
and Joshi had exited the booth, officers observed that the
co-conspirator was extremely agitated and visibly upset,
stating that Joshi was Jackson’s attorney. After Joshi left
the facility, he e-mailed Gardner to inform him of his visit
with the co-conspirator, and Gardner told Joshi not to
visit the co-conspirator again. Joshi thereafter sent
correspondence to the co-conspirator and Gardner
reviewing the substance of his meeting with the co-
conspirator.
      The formal complaint charged Joshi with having
violated Rules 4.1 (a) (providing that, in the course of
representing a client, a lawyer shall not knowingly make
a false statement of material fact or law to a third person)
and 8.4 (a) (4) (providing that a lawyer shall not engage
in professional conduct involving dishonesty, fraud, deceit
or     misrepresentation)      for    having      knowingly
misrepresented to staff at the Rockdale County Jail that
he was the co-conspirator’s attorney. The maximum
sanction for a single violation of either of those Rules is
disbarment. The complaint also charged Joshi with a
violation of Rule 4.2 (a) for having met with the co-
conspirator while knowing that the co-conspirator was
represented, without permission from the co-conspirator’s
counsel.


                                4
Joshi I, 

.

     Joshi I then detailed the procedural background of this

disciplinary proceeding, which is summarized as follows. After

answering the formal complaint and engaging in discovery, Joshi

moved for summary judgment, arguing, in essence, that he did not

have actual knowledge that the co-conspirator was represented by

Gardner and that he did not misrepresent to jail personnel that he

was the co-conspirator’s attorney, such that he had not committed

any of the charged Rule violations. After holding a hearing, the

special master entered an order denying Joshi’s motion for summary

judgment because there were circumstances in the record from

which an inference could be drawn that Joshi knew that the co-

conspirator was represented in advance of their meeting and

because there was conflicting testimony between Joshi and jail

personnel regarding whether he told them that he represented the

co-conspirator, leaving genuine issues of material fact.

     Joshi then filed a petition for voluntary discipline admitting

only a single violation of Rule 4.2 (a) for having sent to the co-

                                    5
conspirator   the   post-meeting   correspondence    reviewing   the

substance of their meeting. Joshi did not address the other Rule

violations charged. For this single violation, Joshi sought a three-

month suspension, nunc pro tunc to the November 30, 2021 date on

which he says he stopped practicing law. The Bar recommended that

Joshi’s petition be accepted despite the unaddressed alleged Rule

violations. The special master entered an order denying Joshi's

initial petition because, although the petition admitted conduct

sufficient to authorize the imposition of discipline under Rule 4-227

(a) without admitting other Rule violations alleged in the formal

complaint, the special master believed that “any discipline less than

a six-month suspension would not be appropriate.”

     Joshi amended his petition, changing only the requested

suspension from three months to six months. The Bar again

recommended acceptance of the petition, and this time so did the

special master. But we rejected Joshi’s petition for a six-month

suspension because “[t]he violations alleged in the formal complaint

[were] substantially more serious than the single, comparatively

                                    6
trivial violation to which Joshi [ ] admitted” in his petition, and

“nothing before us [gave] any indication that either the Bar or the

special master ha[d] concluded that those more serious violations

did not occur.” Joshi I, 

. The Court remanded the

matter to the special master with direction that any future attempts

to resolve Joshi’s disciplinary matter should address the more

serious allegations and determine whether that conduct could be

proved and whether it was sanctionable. 

.

     On remand, Joshi filed a post-remand petition for voluntary

surrender of his license to practice law, in which he continued to

deny the allegations of the formal complaint but nonetheless sought

to surrender his law license. The State Bar responded by

recommending that Joshi’s petition be rejected, in part, because

there were no assurances in the record that Joshi would not at some

point seek to return to the practice of law without addressing the

serious allegations pending against him. On April 15, the special

master entered an order rejecting Joshi’s petition for voluntary

surrender of license.

                                    7
     Joshi then filed a second post-remand petition for voluntary

surrender of license, in which he continued to maintain that he

never misrepresented to the intake deputy that he was the co-

conspirator’s   attorney,   never   knew   the   co-conspirator   was

represented when he went to the jail to meet him, and never made

any kind of threat toward the co-conspirator (though acknowledging

that the co-conspirator could have felt threatened due to Joshi’s

representation of Jackson); Joshi maintained that the intake deputy

was mistaken in assuming he represented the co-conspirator and

that the co-conspirator told him he needed to contact Gardner, who

was his attorney. Joshi stated that, after confirming that Gardner

represented the co-conspirator, he then sent the letter to the co-

conspirator. Joshi admitted that his conduct violated Rule 4.2 (a),

but he made no mention of the other charged violations. Joshi also

represented in his second post-remand petition that he had closed

his law practice and does not intend to practice law in the future. He

attached a sworn affidavit which, as amended, averred,

     I will never apply for readmission to the State Bar of

                                     8
     Georgia, and I understand that the State Bar of Georgia
     is relying upon this representation as a prerequisite to its
     consent to my surrender of my license to practice law . . .
     . I understand the Special Master is relying on my
     representation that I will never apply for readmission to
     the State Bar of Georgia, if he decides to accept my
     Voluntary Surrender of license.

     On the same day, the special master issued an Interim Order

Regarding Second Petition for Voluntary Surrender of License,

explaining that he was reluctant to accept Joshi’s second petition for

voluntary surrender of license based on the same admission of a

violation of Rule 4.2 (a) without resolving the additional alleged

misconduct in this case, per this Court’s direction in Joshi I. The

special master also recognized, however, that because Joshi

admitted to a disbarrable offense and sought to surrender his

license, which is tantamount to disbarment, there was no apparent

need for additional fact-finding to calibrate the appropriate level of

discipline. Nonetheless, the special master also expressed concerns

regarding whether acceptance of Joshi’s second petition for

voluntary surrender of license without fact-finding regarding the

alleged Rule violations could work in Joshi’s favor if he ever sought

                                     9
readmission to the Bar and whether such acceptance would fulfill

the purposes of the disciplinary system. The special master

therefore ordered the Bar to file a response to Joshi’s second petition,

addressing the special master’s concerns. The special master also

invited Joshi to submit an optional brief in support of his second

petition — an invitation that Joshi declined.

     The Bar recommended acceptance of the second petition for

voluntary surrender of license because Joshi’s admission of conduct

in violation of Rule 4.2 (a), which carries a maximum sanction of

disbarment, was sufficient to authorize the imposition of discipline.

The Bar indicated that it was satisfied with Joshi’s sworn averment

that he would never seek readmission to the Georgia Bar and that

it believed the public would be protected by this resolution.

     The special master then issued his report recommending the

acceptance of Joshi’s second petition for voluntary surrender of

license. The special master found that Joshi met with the co-

conspirator in jail and later acknowledged that the co-conspirator

might have felt threatened by any contact from Jackson’s attorney,

                                     10
but the special master made no findings in regard to the formal

complaint’s allegations that Joshi violated Rules 4.1 (a) and 8.4 (a)

(4) by knowingly misrepresenting to jail personnel that he was the

co-conspirator’s attorney or that Joshi violated Rule 4.2 (a) by

knowing that the co-conspirator was represented at the time he met

with him at the jail without permission. The special master did find,

however, that when Joshi sent the follow-up letter to the co-

conspirator, Joshi knew that the co-conspirator was represented, did

not have Gardner’s permission to send the letter, and knew it was

an improper communication.

     The special master acknowledged that Joshi’s admitted

violation of Rule 4.2 (a) was the same admission he made in his

earlier petition for a six-month suspension, which was rejected by

this Court in Joshi I with direction that any future attempts to

resolve Joshi’s disciplinary matter should address the additional

allegations of misconduct to determine the appropriate level of

sanction. But the special master concluded that acceptance of Joshi’s

post-remand petition for voluntary surrender was “consistent” with

                                   11
Joshi I because, although there were unresolved allegations, “the

proper interpretation of the Court’s direction is that these matters

must be addressed only if necessary to ensure that Joshi’s discipline

is not too lenient.”

     The special master stated that his conclusion was based on his

interpretation of In the Matter of Hine, 

 (

)

(2022), In the Matter of Van Dyke, 

 (

)

(2021), and In the Matter of Rigdon, 

 (

)

(2020), in which this Court had rejected petitions for voluntary

suspension because they did not address fully matters that might

warrant additional discipline. The special master concluded that,

because Joshi’s voluntary surrender of his license would be

tantamount to disbarment, “unlike in Hine, Van Dyke, and Rigdon,

there is no reason to fear that the discipline might be too lenient if

the serious misconduct alleged in the Formal Complaint and the

alleged threats to [the co-conspirator] are not addressed.”

     The special master further opined that “[t]he dearth of

precedent for rejecting a petition for voluntary surrender also

                                    12
supports the conclusion that acceptance of the Second Petition for

Voluntary Surrender is consistent with” Joshi I. The special master

also concluded that acceptance of Joshi’s post-remand petition for

voluntary surrender would fulfill the purposes of the disciplinary

system to protect the public from unethical attorneys and to protect

the public’s confidence in the legal system.

     Under the unique facts and circumstances of this case, we

agree with the special master’s recommendation and accept Joshi’s

post-remand petition for voluntary surrender of license. See In the

Matter of Hine, 

 (

) (2022)

(accepting voluntary surrender of license after earlier petition for

voluntary suspension of six months was rejected); In the Matter of

Temple, 

 (

) (2017) (accepting voluntary

surrender of license after earlier petitions for voluntary suspensions

of one year and four years were rejected); In the Matter of Gaines,

 (

) (2017) (accepting voluntary surrender

of license after earlier petition for voluntary suspension of three

years was rejected). Indeed, this Court generally accepts petitions

                                    13
for voluntary surrender of license absent some exceptional

circumstances, including but not limited to the failure to provide for

restitution, see, e.g., In the Matter of Thomas, Case No. S07Y1134

(June 4, 2007) (unpublished), which is not an issue here.

     Although Joshi has not admitted to the more serious

misconduct alleged in this case, his petition’s admissions of facts and

conduct in violation of Rule 4.2 (a) are sufficient to authorize the

imposition of discipline up to disbarment. See Bar Rule 4-227 (a).

And although this resolution leaves unaddressed the additional

misconduct allegedly committed by Joshi, it remains true that even

if that alleged misconduct were addressed and Joshi were found to

have committed additional Rules violations, the maximum sanction

that could be imposed for such — disbarment — would be no greater

than the surrender of Joshi’s law license already presented to the

Court here. See Rule 1.0 (s).

     In accepting Joshi’s petition for voluntary surrender of license,

we emphasize that Joshi has sworn under oath that he would “never

apply for readmission to the State Bar of Georgia,” and we are

                                    14
accepting the voluntary surrender of license upon that condition.

Although the more serious allegations of misconduct have not been

resolved, under these circumstances, there is no reason to further

delay these proceedings. Accordingly, it is ordered that the name of

Ashutosh S. Joshi be removed from the rolls of persons authorized

to practice law in the State of Georgia. Although Joshi represents

under oath that he has closed his practice, he nevertheless is

reminded of his duties pursuant to Bar Rule 4-219 (b).

     Voluntary surrender of license accepted. All the Justices concur,
except LaGrua, J., disqualified.




                       Decided December 19, 2023.

     Voluntary surrender of license.

     Paula J. Frederick, General Counsel State Bar, William D.

NeSmith III, Deputy General Counsel State Bar, Jenny K.

Mittelman, Wolanda R. Shelton, Assistant General Counsel State

Bar, for State Bar of Georgia.

     Chandler Law, Douglas V. Chandler, for Joshi.

                                    15