in the Matter of John B. Tucker ( 2014 )

In the Supreme Court of Georgia
Decided: June 16, 2014
S14Y0413.IN THE MATTER OF JOHN B. TUCKER.
PER CURIAM.
This matter is before the Court on the Petition for Voluntary Discipline
filed by Respondent John B. Tucker (State Bar No. 717750) prior to entry of a
Formal Complaint. In his petition Tucker admits that he violated Rules 5.3 (d)
and 5.5 (a) of the Georgia Rules of Professional Conduct, see Bar Rule 4-102
(d), and asks the Court to impose a Public Reprimand or up to a six-month
suspension. A violation of either rule may be punished by disbarment.
Tucker admits that in 2012 and 2013 he represented 26 clients in separate
bankruptcy cases in the U.S. Bankruptcy Court for the Northern District of
Georgia, and that in each of those cases, he worked with Samuel Brantley, a
former lawyer who had been disbarred as a result of a conviction to commit wire
fraud. Tucker knew that Brantley had been disbarred but nevertheless allowed
him to have contact with clients in person, by telephone and in writing; allowed
him to meet with clients in Tucker’s office; allowed him to discuss and advise
clients about the procedural and substantive aspects of their cases; did not tell
the clients that Brantley had been disbarred and told clients Brantley was a
lawyer; and allowed Brantley to prepare pleadings (although Tucker signed
them and appeared in court). In July 2013 the U. S. Bankruptcy Court entered
an order sanctioning Tucker in a case for allowing Brantley to effectively
represent the client except for making court appearances, and it suspended him
from practice in that court for six months.
In mitigation of discipline Tucker offers that he has cooperated with the
State Bar and expresses his sincere remorse, and notes that he already has been
sanctioned for his conduct by the bankruptcy court. This Court, however, in In
the Matter of Levin, 289 Ga. 170, 175 (709 SE2d 808) (2011), expressly rejected
as a mitigating factor the imposition of prior punishment for the same conduct,
citing In the Matter of Ortman, 289 Ga. 130 (709 SE2d 784) (2011), Nahmias,
J., concurring). In further support of his petition, Tucker submitted an affidavit
from a City of Newnan Municipal Court judge who avers that Tucker is the sole
public defender in the court; that he knows Tucker to be a person and
professional of the highest integrity; and that if Tucker were unavailable for
even a short period of time, the court’s administration would be seriously
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jeopardized. Although Tucker will agree to either a Public Reprimand or a six-
month suspension, he asks that the Court impose only a Public Reprimand in
light of these mitigating factors.
The State Bar filed a response to the petition in which it agreed that under
these circumstances and given the mitigating factors, discipline ranging from a
reprimand to a suspension appears appropriate, see In the Matter of Geary, 281
Ga. 554 (640 SE2d 253) (2007) (Hunstein, P.J. and Thompson, J., dissent).
Even though there are certain mitigating circumstances in this case, the
conduct was a knowing and intentional violation of the rule against permitting
a disbarred attorney to practice law, and not merely a mistake. The violation is
sanctionable by disbarment. Consequently, the violation in this case requires
more than just the public reprimand requested by the petitioner. We hereby
order that Tucker be suspended from the practice of law in this State for a period
of six months, effective as of the date of this opinion. He is reminded of his
duties under Bar Rule 4-219 (c).
Six-month suspension. All the Justices concur.
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NAHMIAS, Justice, concurring.
I concur fully in the Court’s opinion, and particularly in the Court’s
rejection of Tucker’s contention that his suspension by a federal bankruptcy
court as a result of the same misconduct should qualify as a mitigating factor in
determining the discipline that this Court should impose. As the Court
indicates, a few years ago we clarified that the imposition of a criminal penalty
relating to the same conduct at issue in a disciplinary matter should not be
viewed as a mitigating factor. See In the Matter of Levin, 289 Ga. 170, 175
(709 SE2d 808) (2011). Levin relied on my concurring opinion in In the Matter
of Ortman, 289 Ga. 130 (709 SE2d 784) (2011), where I explained that the
“imposition of other penalties or sanctions” mitigating circumstance, which is
included as Standard 9.32 (k) in the ABA Standards for Imposing Lawyer
Sanctions (1992), is properly interpreted, and has been interpreted by this Court,
as applying only to “other penalties arising during the disciplinary proceeding
itself,” such as a suspension pending final resolution of the case or a lengthy
delay that effectively served as such an interim suspension. See Ortman, 289
Ga. at 131-132 (Nahmias, J., concurring) (emphasis in original). Put another
way, it is proper to give a lawyer facing discipline here “credit for time served”
for the same misconduct in the same proceeding, but such credit is not normally
given for time served in a separate proceeding conducted by a separate
jurisdiction. See OCGA § 17-10-11 (“Each person convicted of a crime in this
state shall be given full credit for each day spent in confinement awaiting trial
and for each day spent in confinement, in connection with and resulting from a
court order entered in the criminal proceedings for which sentence was imposed
. . . .” (emphasis added)).
I note that we have one case that says, without citation of any authority,
that a disciplinary sanction imposed on a Georgia Bar member by a non-Georgia
court should mitigate the discipline imposed by this Court for the same
misconduct. See In the Matter of Kakol, 286 Ga. 469, 470 (689 SE2d 308)
(2010) (noting in mitigation that Kakol “was subjected to penalties and
sanctions by the Bankruptcy Court, whose requirements he has fulfilled”). But
we have at least four other cases, decided before and after Kakol, in which a
federal court imposed sanctions that this Court did not treat as mitigating. See
In the Matter of Bach, 291 Ga. 50, 50 (727 SE2d 496) (2012) (stating that Bach
had been suspended from practice in the bankruptcy court but not mentioning
that fact as mitigating); In the Matter of Ellison, 282 Ga. 647, 648-649 (651
SE2d 746) (2007) (stating that Ellison had been suspended for 180 days by the
bankruptcy court and that “[w]e find no mitigating factors”); In the Matter of
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Maxwell, 280 Ga. 304, 305 (627 SE2d 16) (2006) (stating that Maxwell was
sanctioned by the federal district court but not mentioning that fact in listing the
factors “appropriately considered in mitigation”); In the Matter of Randolph,
274 Ga. 482, 483-484 (554 SE2d 485) (2001) (stating that Randolph had been
suspended for six months and otherwise sanctioned by the bankruptcy court but
not mentioning that fact among others “[i]n mitigation”).
Moreover, this Court routinely decides discipline cases that follow the
imposition of sanctions by the licensing authority in another jurisdiction where
the attorney committed the misconduct at issue. The sanctions imposed by such
authorities – often the supreme courts of our sister states – are accorded more
deference than sanctions imposed by individual trial courts like the federal
bankruptcy court in this case, see In the Matter of Stubbs, 285 Ga. 702, 703 (681
SE2d 113) (2009), and such sanctions, while imposed on lawyers also licensed
in Georgia, normally relate to misconduct committed in the other jurisdiction
and directly affecting the other jurisdiction. Yet by rule that this Court
promulgated and regularly applies, when such “reciprocal” matters come to this
Court, the discipline we impose is almost always the same as that previously
imposed by the other jurisdiction. See Rule 9.4 (b) (3) of Bar Rule 4-102 (d) of
the Georgia Rules of Professional Conduct. There is no hint in our reciprocal
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discipline rule or cases that the lawyer’s prior sanction by a court in another
jurisdiction for the identical misconduct should be considered in mitigation of
the discipline to be imposed by this Court.
Finally, just like the argument that criminal penalties for the same conduct
should mitigate the discipline we impose, the logic of the argument leads to the
conclusion that the more serious the prior sanction in some other proceeding by
some other jurisdiction, the more mitigating we should consider it in our
proceeding, which seems backwards. See Ortman, 289 Ga. at 132 (Nahmias, J.,
concurring). If Tucker were correct, this Court should be reluctant to disbar a
lawyer when the poor fellow has already suffered the ultimate disciplinary
penalty – disbarment – by another jurisdiction for the same conduct. But we are
not reluctant. See, e.g., In the Matter of Sossomon, 293 Ga. 669, 669 (748 SE2d
925) (2013) (disbarring Sossomon based on his disbarment by consent in North
Carolina). Indeed, the fact that another court felt so strongly about the
misconduct that a Georgia attorney committed in its proceedings that it imposed
its own sanction, rather than merely referring the attorney to the disciplinary
authorities, should signal that the misconduct at issue is particularly serious and
worthy of professional discipline – that is, it should be viewed, if anything, as
an aggravating factor.
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The primary purpose of attorney discipline is to protect the public from
unqualified lawyers. See In the Matter of Skandalakis, 279 Ga. 865, 866 (621
SE2d 750) (2005). That purpose would not be served if this Court treated the
fact that an attorney has been suspended from practice in a federal court as an
indication that he is even slightly more qualified to practice as a Georgia lawyer
than if he had not been suspended. Accordingly, as we did for criminal penalties
in Levin, it is appropriate that the Court has clarified, for the benefit of the
lawyers we regulate and the State Bar Counsels, Special Masters, and Review
Panels who must apply our disciplinary precedents, that the imposition on a
Georgia lawyer of a sanction for professional misconduct by a federal court or
other jurisdiction distinct from this Court’s disciplinary proceeding will not be
deemed to mitigate the discipline imposed by this Court. And it should be clear
that our statement to the contrary in Kakol should not be followed.
I am authorized to state that Justice Blackwell joins in this concurrence.
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