in the Matter of Fred T. Hanzelik ( 2014 )

FINAL COPY
294 Ga. 727
S14Y0549, S14Y0550. IN THE MATTER OF FRED T. HANZELIK (two
cases).
PER CURIAM.
These disciplinary matters are before the Court on the Report and
Recommendation of the Review Panel, recommending that Respondent Fred T.
Hanzelik (State Bar No. 323950) be suspended for six months in Case No.
S14Y0549 and, in Case No. S14Y0550, for an additional 45 days following the
six-month suspension as reciprocal discipline for suspensions imposed in
Tennessee. The Review Panel also recommends that the suspensions continue
until such time as Hanzelik provides proof that he has been reinstated to practice
in Tennessee.
Case No. S14Y0549. The State Bar filed a notice of reciprocal discipline
in this matter, attaching a copy of the October 18, 2012 order of the Supreme
Court of Tennessee suspending Hanzelik from the practice of law in Tennessee
for a period of one year, with six months to be served with an actual suspension
and the remaining six months to be served on probation with a practice monitor,
see Bar Rule 9.4 (b), found in Bar Rule 4-102 (d). Hanzelik’s suspension was
based on a petition for voluntary discipline in three separate disciplinary
proceedings involving abandonment, failure to communicate and failure to
account for fees. Hanzelik acknowledged service of the notice and filed a
response. During the time this matter was pending the State Bar filed an
additional reciprocal proceeding against Hanzelik, see Case No. S14Y0550. In
his response filed in the Review Panel, Hanzelik requested a six-month
suspension with no probation because Georgia does not have a probation with
practice monitor form of discipline. The State Bar recommended a one-year
suspension but had no objection to the suspension being retroactive to the date
of the Tennessee suspension. The Review Panel reviewed the record and the
elements listed in Rule 9.4 (b) (3) to determine if imposition of a different
punishment was required, and concluded that none of the elements are present
in this case that would justify a recommendation of discipline different from that
imposed in Tennessee. With respect to what discipline would be “substantially
similar,” see id., the Review Panel agreed that Georgia does not have a
probation form of discipline and noted that in a recent reciprocal discipline case
from Tennessee, this Court approved the suspension term without adding time
for the probationary period, see In the Matter of Arthur, 291 Ga. 658 (732 SE2d
86) (2012). Therefore, the Review Panel recommended a six-month suspension
in this case. Regarding a retroactive suspension, the Review Panel again noted
recent cases from this Court declining to approve retroactive suspension unless
the respondent provides proof that he has ceased the practice of law in Georgia
during the period of the suspension in the other state, see In the Matter of
Hodges, 291 Ga. 830 (733 SE2d 775) (2012); In the Matter of Sossomon, 290
Ga. 677 (725 SE2d 243) (2012); In the Matter of Onipede, 288 Ga. 156 (702
SE2d 136) (2010). The Review Panel found nothing in the record to show that
Hanzelik voluntarily stopped practicing law in Georgia while he was suspended
in Tennessee, so it declined to recommend a retroactive suspension.
Accordingly, the Review Panel recommended a six-month suspension, to
continue until such time as Hanzelik provides proof that he has been reinstated
to practice law in Tennessee.
Case No. S14Y0550. In this matter, Hanzelik was suspended in Tennessee
for 45 days for attempting to charge his client and the client’s estate twice for the
same legal services in one case, and for failing to act with diligence and not
communicating clearly with his client in a divorce proceeding in another
disciplinary matter. On October 27, 2012, the Supreme Court of Tennessee
ordered the 45-day suspension. The State Bar filed a notice of reciprocal
discipline attaching the order, and Hanzelik acknowledged service but filed no
response. The Review Panel again considered the record and the elements listed
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in Rule 9.4 (b) (3), finding none present that would justify a recommendation of
discipline other than that imposed in Tennessee. The record in Tennessee was
unclear whether the 45-day suspension was concurrent or consecutive to the
suspension in Case No. S14Y0549, and the State Bar made no recommendation
as to that aspect of the discipline. The Review Panel recommended that, based
on the records in both cases, the 45-day suspension should begin at the conclusion
of the six-month suspension recommended in Case No. S14Y0549, and should
continue until such time as Hanzelik provides proof that he has been reinstated to
practice law in Tennessee.
Hanzelik filed exceptions to the Review Panel recommendation and shows
that he was reinstated to practice in Tennessee on April 28, 2013, at the end of the
one-year suspension. He raises two issues. First, he states that he ceased
practicing law in Georgia on April 1, 2013 and, since his one-year suspension did
not end until April 28, 2013, he did cease practicing in Georgia during his
Tennessee suspension, so he asks the Court to make his six-month suspension
retroactive to April 1, 2013. Second, he shows that the Tennessee suspensions
were partially concurrent — his 45-day suspension ran from October 7, 2012 until
November 21, 2012, and his one-year suspension began on October 28, 2012.
Therefore, he asks the Court to make both of his Georgia suspensions concurrent,
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beginning retroactively on April 1, 2013.
The State Bar filed a reply to Hanzelik’s exceptions. Because he did not
cease practicing law in Georgia until April 1, 2013, and only after the State Bar
made it a pre-condition to recommending a retroactive suspension, the State Bar
does not recommend that the 45-day suspension be retroactive, but it agrees that
the six-month suspension should be retroactive to April 1, 2013. The State Bar
does not recommend that the 45-day suspension run concurrently with the six-
month suspension because even if the Court begins the 45-day suspension
retroactive to April 1, 2013, the 45 days would not have been completed prior to
Hanzelik’s reinstatement in Tennessee on April 28, 2013, so his 45-day
suspension would be less in Georgia and thus not reciprocal discipline. The State
Bar concedes, however, that Hanzelik’s Tennessee suspensions overlapped by 24
days, so to make the Georgia discipline technically substantially similar, it states
that alternatively, the Court may chose to run 24 days of the 45-day suspension
concurrent with the six-month suspension.
We have reviewed and considered the record and all of the pleadings filed
by the parties. We note that Comment 4 to Rule 9.4 provides that the Review
Panel should recommend identical discipline in reciprocal discipline cases unless
one of the grounds specified in paragraph (b) (3) exists. The Review Panel
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expressly found none of those grounds to exist in these cases. Therefore, given
the facts that Hanzelik was reinstated to practice in Tennessee on April 28, 2013;
that he ceased practicing in Georgia on April 1, 2013; and that 24 days of his
Tennessee suspensions overlapped (thus making his total Tennessee suspensions
one year plus 21 days — October 7, 2012 to April 28, 2013), we hereby order that
Hanzelik be suspended for a period of six months beginning retroactively to April
1, 2013, and that he also be suspended for 45 days, with the first 24 days of that
suspension to run concurrently with the six-month suspension and the last 21 days
to run consecutively. Hanzelik is reminded of his duties under Bar Rule 4-219
(c).
Six-month suspension retroactive to April 1, 2013, followed by a 45-day
suspension with the first 24 days to run concurrently with the six-month
suspension and the last 21 days to run consecutively. All the Justices concur.
Decided March 5, 2014.
Suspension.
Luther-Anderson, Daniel J. Ripper, for Hanzelik.
Paula J. Frederick, General Counsel State Bar, Carmen R. Rafter, Assistant
General Counsel State Bar, for State Bar of Georgia.
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