297 Ga. 359
FINAL COPY

S15Y0904. S15Y0905. IN THE MATTER OF MELISSA JILL STARLING
                          (two cases).

      PER CURIAM.

      These disciplinary matters are before the Court on the Reports and

Recommendations of the Special Master, Jack J. Helms, Jr., in which he

recommends that Respondent Melissa Jill Starling (State Bar No. 676630) be

disbarred for her violations of Bar Rules 1.3, 1.4, 1.16 (b), 1.16 (d) and 3.2 in

S15Y0904, and Rules 1.3, 1.4 and 1.16 (d) in S15Y0905, see Georgia Rules of

Professional Conduct, Bar Rule 4-102 (d).

                                     Case No. S15Y0904

      In this case, a client paid Starling $1,000 in October 2008 to represent her

in a personal injury claim. Two weeks later Starling sent a letter to opposing

counsel describing the client’s injuries and in February 2009 Starling sent a

letter with copies of medical bills related to the injuries to State Farm Insurance

Company’s representative. In July 2009 Starling participated in a phone

conference in which her client provided a recorded statement to the

representative, and the next day Starling sent a letter to the representative stating
that she was enclosing diagnostic notes and other documents relating to her

client’s expenses. In December 2009 Starling sent a letter to a Cincinnati

Insurance Company representative demanding settlement in the amount of

$40,000. In April 2010 the State Farm representative advised Starling that

payment of medical expenses was available up to $5,000. In May 2010 Starling

replied that she would initiate litigation if there was no settlement offer, but she

did not inform her client that she was demanding $40,000, nor did she discuss

negotiation and alternate settlement with her client. The client obtained and

paid for her medical records and provided them to Starling, but Starling did not

forward them to the claims representative and did not consistently respond to his

calls. Starling did not file a complaint on her client’s behalf even though she

believed the statute of limitations would expire on or about June 15, 2010. On

or about July 22, 2010, after the limitations period had expired, Starling asked

her client to sign a verification for the complaint, which she did the next day.

Shortly thereafter, however, Starling called her client and told her that she

would not pursue the litigation and sent her a copy of the unfiled complaint with

no further explanation.

      The State Bar filed a Formal Complaint against Starling, who

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acknowledged service on August 10, 2012, but she did not submit an answer

within 30 days as required under Bar Rule 4-212. On January 17, 2013, the

State Bar filed a motion for default pursuant to Bar Rule 4-212 (a). On February

15, 2013, Starling faxed a Motion for Extension of Time to File Answer to the

special master, but she did not file it with the Clerk of the State Disciplinary

Board or serve it on Bar counsel. The special master found that the motion,

which was not supported by a brief, does not set forth a legally sufficient

explanation for Starling’s failure to file a timely answer. Although she

mentioned health problems, she did not provide any documentation in support.

The special master granted the State Bar’s motion for default and found that the

facts alleged and violations charged in the Formal Complaint are deemed

admitted. He held that Starling violated Rule 1.2 by failing to adequately

discuss and allow her client to make decisions regarding settlement options;

violated Rule 1.3 by failing to file an action on her client’s behalf before the

statute of limitations expired and abandoning the representation without taking

any action to protect her client’s interests; violated Rule 1.4 by failing to

maintain reasonable communications with her client; violated Rule 1.16 (b) and

(d) by terminating the representation without good cause, failing to provide

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adequate notice and failing to take any steps to protect her client’s interest; and

violated Rule 3.2 by failing to file her client’s complaint within the required

time. In aggravation of discipline the special master noted Starling’s 1993

Investigative Panel reprimand and the disciplinary matter pending against her

in S15Y0905. Because Starling’s client suffered the loss of her claim due to

Starling’s failure to take action to meet or preserve the statute of limitations, and

lost any opportunity for reimbursement of her medical expenses due to

Starling’s failure to convey the insurer’s offer, the special master deemed her a

danger to the public and recommended in his September 8, 2014 report that she

be disbarred.

      On September 29, 2014, after the special master issued his report, Starling

filed an untimely response to the motion for default seeking an extension of

time, but without citing any legal authority.          To afford Starling every

opportunity, the special master liberally construed the filing as a motion to open

default and scheduled a hearing that was held on January 12, 2015. Prior to the

hearing Starling was advised that she would need to address the statutory

requirements for opening default, see OCGA § 9-11-55 (b), but the special

master noted that at the hearing she “continued to display an alarming lack of

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familiarity with fundamental legal procedure.” She acknowledged that she did

not file an answer because she did not take the Formal Complaint seriously, but

blamed others for her lack of concern, did not file a formal motion to open

default, and did not show any legal basis for opening default. In her motion for

extension of time Starling stated that it was based on illness that had taken her

out of the county since May 2013 before the filing of the Formal Complaint.

But the Formal Complaint was filed in July 2012, she acknowledged service in

August 2012, and her answer was due in September 2012. The special master

applied OCGA § 9-11-55 (b), see In the Matter of Turk, 267 Ga. 30 (1) (471

SE2d 842) (1996) (OCGA § 9-11-55 (b) applies in disciplinary proceedings)

and found that Starling did not properly seek to open default before final

judgment, and her submission did not meet the requirements to open default as

she did not provide any sworn statements, affidavits or other admissible

evidence regarding how her health may have prevented her from filing a timely

answer, nor had she set up a meritorious defense as her untimely answer

contained only general denials. Absent compliance with the conditions to open

default, the special master held that he lacked discretion to grant that request.

See Jesson v. GCH & Assocs., 248 Ga. App. 97 (1) (545 SE2d 645) (2001).

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And even if the conditions precedent could be waived, the special master

opined, Starling did not establish any basis on which default could be opened

as she did not show providential cause, excusable neglect or a proper case to

authorize opening the default. See Turk, 267 Ga. at 30. The special master

concluded that Starling displayed a consistent inability or unwillingness to

comply with the disciplinary rules and the Georgia Civil Practice Act, and that

her failure to do so when her own license to practice law is at issue reflects an

inability to competently represent others and mirrors her complete lack of

diligence to her client’s great detriment in this matter. For those reasons, the

special master denied the motion for extension and request to open default, and

affirmed the recommendation in his report that Starling be disbarred.

                              Case No. S15Y0905

      In this matter, a client retained Starling to represent him on an aggravated

stalking charge. She filed an entry of appearance and request for discovery in

September 2012. In response to an arraignment calendar, Starling filed a request

for a continuance due to her hospitalization. An appointed counsel entered a not

guilty plea on the client’s behalf. Starling did not communicate with the client

during the representation, did not visit him, and did not respond to his letters

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requesting a bond hearing and motion for speedy trial. After six months of no

communication the client hired another attorney, who obtained a consent order

for bond and in August 2013, a judgment of nolle prosequi. Starling never filed

a motion to withdraw from the case nor refunded any of the $750 fee despite her

client’s request for a refund. The special master found that Starling violated

Rule 1.3 by failing to take action on her client’s case; violated Rule 1.4 by

failing to maintain reasonable communication with her client; and violated Rule

1.16 (d) by failing to file a motion to withdraw or refund the unearned fee. As

he did with S15Y0904, the special master viewed this case in light of the other

pending matter, and determined that Starling’s conduct presents a pattern of lack

of diligence in which her clients suffer harm. The special master again noted

Starling’s prior disciplinary history as an aggravating factor and recommended

that she be disbarred.

      As in S15Y0904, Starling did not file a response to the Formal Complaint

filed on June 2, 2014, and the State Bar filed a motion for default judgment. She

again filed an untimely answer on August 4, 2014, and then a response to the

motion for default and request for extension of time three weeks after the special

master issued his report. The special master held a combined hearing on both

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matters. Regarding the instant case, Starling stated that when she was served

with the Formal Complaint, “I was still under the impression that it was less

than formal,” which the special master found incredible, given that a default

motion had been pending against her in S15Y0904 for over a year and she had

been interim suspended in February 2014 for failure to respond. Although she

also stated that by February and March of 2014 she was taking everything very

seriously, the special master found that statement irreconcilable with her

statement that when served with the Formal Complaint in June 2014, she still

felt it was “less than formal.” The special master made the same findings as to

Starling’s failure to ever file a formal motion to open default, and failure to

establish any of the legal conditions or grounds for opening default. He reached

the same conclusions, denied Starling’s motion for extension of time and request

to open default, and affirmed his recommendation of disbarment.

      We have reviewed the records in these cases, and agree with the special

master’s thoughtful and thorough reports and orders that disbarment is the

appropriate sanction in these matters. For all the reasons set forth above, we

hereby order that the name of Melissa Jill Starling be removed from the rolls of

persons entitled to practice law in the State of Georgia. She is reminded of her

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duties under Bar Rule 4-219 (c).

     Disbarred. All the Justices concur.




                           Decided June 15, 2015.

     Disbarment.

     Paula J. Frederick, General Counsel State Bar, A. M. Christina Petrig,

Assistant General Counsel State Bar, for State Bar of Georgia.




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