Georgia Supreme Court: Liberal Opening of Default in Attorney Discipline When the Lawyer Has Cooperated—Strong Preference for Merits Determinations

1. Introduction

In the Matter of Oksana Klymovych (S26Y0042), decided March 3, 2026, addresses when a lawyer’s procedural default in a State Bar disciplinary case should be opened so the case can be decided on the merits. The State Disciplinary Review Board recommended a one-year suspension based on a special master’s determination that the respondent was in default (having failed to file a timely answer to the formal complaint), which resulted in the complaint’s allegations being treated as admitted.

The central issue before the Supreme Court of Georgia was not the ultimate truth of the underlying Georgia Rules of Professional Conduct (“GRPC”) allegations, but whether the special master abused discretion by refusing to open default where the record showed the respondent had repeatedly engaged with the Bar’s investigation, provided documents and substantive responses, and appeared at the default hearing.

2. Summary of the Opinion

The Court reversed in part, vacated in part, and remanded. It held that, under the particular circumstances, the special master abused his discretion in denying Klymovych’s motion to open default. The Court emphasized a “strong preference” in attorney discipline matters for deciding cases on their merits, especially where the lawyer has attempted to cooperate and participate. The case was remanded with directions for the special master to address the merits of Klymovych’s arguments under applicable rules and law.

Chief Justice Peterson concurred fully, explaining that the special master’s decision was “reasonable” at the time given earlier, conflicting guidance, but that the Court has now clearly narrowed the circumstances in which default should control in disciplinary cases.

3. Analysis

3.1. Precedents Cited

• In the Matter of Alexander, 323 Ga. 50 (2025)
  Cited for clarifying the Court’s strong preference for “deciding cases on their merits” in attorney discipline. Here, Alexander helps frame default as disfavored when the respondent is engaged rather than evasive.
• In the Matter of Bonnell, 322 Ga. 585 (2025)
  Bonnell is the opinion’s doctrinal backbone. The Court quotes Bonnell for multiple propositions: (i) merits determinations are strongly preferred; (ii) that principle is “particularly true” where the attorney has attempted to cooperate; (iii) defaults “most often involve” respondents who completely fail to respond; (iv) the “proper-case” ground for opening default should be “liberally applied”; and (v) special masters have “very ample powers to open defaults.” Bonnell also supplies the operational factors: whether the failure resulted from “willful or gross negligence” and whether opening default would harm or prejudice the other party.
• In the Matter of Turk, 267 Ga. 30 (1985)
  Turk establishes that OCGA § 9-11-55(b)—the Civil Practice Act’s default-opening mechanism—applies in disciplinary proceedings. That bridge to civil default law is the procedural vehicle Klymovych invoked to open default.
• In the Matter of Boyd, 315 Ga. 390 (2022)
  Boyd is used for the proposition that the “proper-case” ground for opening default should be liberally applied to align with the policy of deciding cases on the merits. Boyd thus supports a generous posture toward reopening when a respondent seeks to litigate the merits.
• In the Matter of Mylee, Case No. S25Y0888 (January 21, 2026)
  Mylee is cited for “liberally applying” the requirement that a party “set up a meritorious defense” when considering opening default. The Court uses Mylee to reject conclusory assertions that no meritorious defense exists, and to signal that the “meritorious defense” showing should not be used as an unduly rigid barrier in discipline cases.
• In the Matter of Sammons, 316 Ga. 885 (2023) (Peterson, P.J., concurring in judgment only)
  In the concurrence, Sammons illustrates a practical concern: when default is triggered by a failure to comply with procedural response requirements (including Rule 9.3’s command to respond “in accordance with State Bar Rules”), default can convert conduct otherwise warranting only a public reprimand into an automatic, much harsher sanction. This supports the merits-first approach as better aligned with public protection and proportional discipline.
• In the Matter of Brown, 319 Ga. 465 (2024)
  Cited in the concurrence for the Court’s “inherent and exclusive authority to regulate the practice of law.” This underpins the concurrence’s claim that the disciplinary system is “our process” and that the Court may recalibrate discretion in disciplinary defaults more freely than in ordinary civil litigation.
• Inquiry Concerning Judge Coomer, 316 Ga. 855 (2023)
  Used in the concurrence by analogy: in discipline systems overseen by the Supreme Court, review can be broader and less deferential than in ordinary appeals. This supports the Court’s institutional capacity to adjust standards governing default in disciplinary matters.

3.2. Legal Reasoning

The Court’s reasoning proceeds in three steps: (1) identify the governing procedural framework; (2) apply the modern merits-preference standard to the specific record; (3) conclude that denial of opening default was an abuse of discretion.

1. Governing framework: OCGA § 9-11-55(b) applies, but with discipline-specific preferences.
   Under In the Matter of Turk, OCGA § 9-11-55(b) governs opening default in disciplinary proceedings. But the Court emphasizes that, in discipline cases, this statute’s discretionary concept is filtered through the Court’s strong preference for merits adjudication articulated in In the Matter of Alexander and In the Matter of Bonnell.
2. The record showed substantial cooperation inconsistent with the usual default paradigm.
   The Court carefully cataloged Klymovych’s participation: prompt response when first notified, document production, written response to a Notice of Investigation, email responses to Board questions, and appearance at the default hearing (including filing an answer on the hearing date). This fact pattern resembles the “attempted to cooperate and participate” category highlighted in Bonnell, not the “completely fail to respond” category where default is typically appropriate.
3. Key factors favored opening default: lack of willfulness, no prejudice, and an overly rigid view of “meritorious defense.”
   Drawing from Bonnell, the Court observed:
   • No willful or gross negligence: the record supported that the late answer stemmed from misunderstanding the insufficiency of informal communications (and unfamiliarity with the disciplinary process), not deliberate disregard.
   • No harm or prejudice: the Bar did not establish it would be harmed by litigating the merits.
   • “Meritorious defense” not clearly absent: invoking In the Matter of Mylee, the Court criticized the Bar’s conclusory claim that no meritorious defense was shown, and suggested that this element should be applied liberally in the disciplinary context. Importantly, the Court declined to decide whether Klymovych’s defenses would ultimately prevail.
   Taken together, these factors made refusal to open default outside the permissible range of discretion “under these particular circumstances.”

3.3. Impact

The decision reinforces and operationalizes a now-clear line of authority (Alexander/Bonnell/Mylee) that default should not become the dominant mechanism for resolving attorney discipline where the respondent is engaged and the failure is procedural rather than evasive. Likely impacts include:

• Higher bar for default-driven discipline: Special masters must more carefully assess willfulness, cooperation, prejudice, and whether the respondent has articulated any plausible defense before treating allegations as admitted by default.
• More remands and more merits hearings: Where a respondent participated in the investigation but missed the formal-answer deadline, this case invites reopening to reach the merits rather than imposing suspension based solely on procedural default.
• Constraint on “meritorious defense” arguments by the Bar: Conclusory claims that no meritorious defense exists are less likely to suffice; parties should engage the standards and the respondent’s proffered defenses with specificity.
• Rulemaking pressure: The concurrence explicitly urges consideration of a Bar-specific default rule, recognizing that borrowing OCGA § 9-11-55(b) from civil litigation may not optimally fit the disciplinary system’s public-protection goals.
• Sanction proportionality: Echoing In the Matter of Sammons, the opinion’s approach helps prevent escalation of sanctions where the core misconduct may be largely procedural (e.g., failures to comply precisely with response rules) rather than substantive client-harm violations.

4. Complex Concepts Simplified

Default

A procedural status entered when a respondent fails to meet a formal deadline (here, failing to timely file an answer). In discipline cases, default can mean the complaint’s factual allegations are treated as admitted.

Opening default (OCGA § 9-11-55(b))

A mechanism allowing the decision-maker to set aside a default so the case can be litigated. The Court emphasized liberal use of this mechanism in discipline cases when the respondent is participating and the failure was not willful.

“Proper case” ground

A flexible basis to open default. The Court reiterated that it should be applied liberally to promote merits decisions, especially in attorney discipline.

Meritorious defense

A showing that the respondent has some plausible defense worth hearing on the merits. The Court suggested this requirement should not be applied rigidly in discipline cases and criticized conclusory assertions that it was not met.

Special master / Review Board

The special master functions like a trial-level factfinder in Bar discipline. The State Disciplinary Review Board reviews and makes a recommendation to the Supreme Court, which retains final authority.

IOLTA account

A client-trust account used to hold client funds. (The opinion references deposit and return of client funds as part of the factual background, without resolving the merits of any trust-account-related GRPC violations.)

Rule 9.3 (as discussed in the concurrence)

A disciplinary rule requiring lawyers to respond to disciplinary authorities “in accordance with State Bar Rules.” The concurrence notes that the maximum penalty for violating Rule 9.3 is a public reprimand, and cautions against defaults that effectively magnify that into suspension/disbarment when the lawyer is otherwise responsive.

5. Conclusion

In the Matter of Oksana Klymovych cements a discipline-specific application of default doctrine: when a lawyer has substantially cooperated with the Bar’s investigation and the failure to timely answer appears rooted in misunderstanding rather than willfulness or gross negligence—and where the Bar shows no prejudice—special masters should generally open default and proceed to a merits adjudication. The concurrence situates this shift within the Supreme Court of Georgia’s inherent authority over attorney regulation and calls for clearer, Bar-specific default rules. The decision’s broader significance is its insistence that disciplinary outcomes track substantive conduct and public protection, not merely procedural missteps.