Court of Appeals

of the State of Georgia

ATLANTA,

The Court of Appeals hereby passes the following order:

A06A2105. HUFFMAN v ARMENIA et al.

In a March 20, 2007 order, this Court directed attorney Neil Wilkinson and his law partner, Paul Wright, to show cause within ten days why they should not be held in contempt of this Court for making false statements in appellate briefs they filed on behalf of their client, appellant David Huffman, in the above-styled case. Wilkinson filed a response to the order on March 30, 2007, and Jeffrey Horst, the attorney for the appellees in that case, has responded to Wilkinson's affidavit.

In our opinion in the above-styled case,1 this Court concluded that Wright and Wilkinson made several false statements of fact in their appellate briefs which asserted that (1) the Board of Directors of HELP had unanimously authorized Huffman to file the bankruptcy petition on behalf of HELP before Huffman filed the petition, and (2) HELP successfully opposed motions to dismiss the bankruptcy petition and, in fact, cured the non-fatal defects in the petition. As explained in our opinion, the appellate record clearly shows that these statements are false. Moreover, during a July 2006 hearing in the trial court, Wilkinson acknowledged that the "Consolidated Reply Brief" he and Wright filed on behalf of Huffman contained statements that were not true, yet neither Wright nor Wilkinson filed a corrected brief in this Court. As a result, we ordered both attorneys to file affidavits with this Court to show cause while they should not be held in contempt.

In his response and accompanying affidavit, Wilkinson2 makes several arguments as to why he should not be held in contempt. Wilkinson claims that his co-
counsel, Wright, drafted the appellate briefs and that he simply deferred to Wright's statement of the facts and knowledge of corporate law. He also contends that he did not understand or appreciate the appellate standards of review and, as a result, made certain statements in Huffman's reply brief even though the statements contradicted the trial court's findings and the record. Wilkinson argues, therefore, that his conduct "in signing or allowing his name to be signed" to a brief that contained false factual statements was not a deliberate or intentional effort to deceive the Court or opposing counsel.3

During the July 7, 2006 contempt hearing in the trial court, however, Wilkinson admitted that he had reviewed the reply brief before it was filed in this Court. As noted above, he also acknowledged during that hearing that certain statements in the brief were not true. Having failed to notify this Court of the misstatements after admitting to them in the court below, Wilkinson's argument that he should not be held in contempt because he relied on his partner's knowledge of the facts and legal expertise completely lacks merit.4

Moreover, the false statements at issue do not require a specialized knowledge of corporate law, as Wilkinson suggests, but are simple statements of fact, to wit: the HELP board unanimously approved the resolution before Huffman filed the bankruptcy petition, and HELP successfully opposed the motion to dismiss the petition by curing the defects. Wilkinson's claim that he did not sufficiently understand corporate law or the significance of the board authorization for the bankruptcy petition is specious, given the fact that he was representing Huffman in a corporate shareholder suit in the trial court and in a bankruptcy case in federal court. Similarly, Wilkinson's claim that he did not understand the standards of appellate review – which is arguably one of the most basic concepts that must be comprehended when representing clients in the appellate courts – provides no excuse for his contumacious conduct.

In addition to his efforts to avoid responsibility for his actions, Wilkinson filed an affidavit which continues to perpetuate the myth that the HELP Board of Directors authorized the bankruptcy petition before it was filed. The resolution in the record, however, clearly shows on its face that it was only signed by one board member, Huffman, before Huffman filed the bankruptcy petition.5 Apparently recognizing this fatal defect, Wilkinson's affidavit now alleges for the first time that he "had been told" by an unnamed source that another board member, Ronald Baker, "orally agreed to the Board of Directors resolution" before Huffman filed the petition and that Baker had authorized his attorney to sign the authorization on his behalf. Obviously, Wilkinson has no first-hand knowledge of such an alleged oral agreement, and there is no evidence in the appellate record, or even in the unauthenticated documents Wilkinson attached to his affidavit, to support a finding of any oral agreement. More importantly, both Huffman and Baker testified in the trial court below, and their testimony does not support Wilkinson's statements. By continuing to assert such an untenable position after everything that has occurred in this case, Wilkinson has demonstrated that his lack of candor toward this Court is likely to continue unabated.

In our opinion in the above-styled case, this Court concluded that the appellate record clearly showed that certain statements by Wright and Wilkinson in the appellate briefs they filed on behalf of Huffman were false. The statements not only were unsupported by any evidence, but were actually contrary to the evidence in the record. In issuing the show cause order, this Court gave Wright and Wilkinson the opportunity to show why they should not be held in contempt for including these false statements in their appellate briefs. Instead of acknowledging that the statements were false and offering a plausible explanation, Wilkinson has chosen to stand behind the statements. He has also attempted to mitigate his culpability by blaming his law partner and by claiming a lack of understanding of even the most basic principles of corporate law and appellate practice. Unfortunately, this demonstrates to this Court that Wilkinson is unwilling to acknowledge and accept responsibility for his contumacious conduct and, in fact, that he intends to continue acting in this manner indefinitely.

We conclude that the preponderance of the evidence supports a finding that Neil Wilkinson is in civil contempt of this Court, pursuant to Court of Appeals Rule 7. In order to purge himself of this contempt, Wilkinson is ordered to pay $1,000, payable to the Court of Appeals of Georgia. This fine is intended to be remedial in nature and is intended to dissuade Wilkinson from further contumacious conduct in this Court. We further suspend Wilkinson's license to practice in this Court until the fine is paid in full.

In addition, we direct the Clerk of the Court of Appeals to send a copy of this order to the State Bar of Georgia.

Court of Appeals of the State of Georgia

Clerk's Office, Atlanta

I certify that the above is a true extract from

the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

, Clerk.