In Re Erion ( 2000 )

Benham, Chief Justice,

dissenting.

I dissent because I am concerned about the Court’s institutional integrity with respect to maintaining predictability, certainty and stability in attorney discipline. I believe the discipline administered in this case is draconian in its scope, inconsistent with other recent impositions of discipline, and incompatible with appropriate goals of lawyer discipline.

While a violation of Standard 44 is punishable by disbarment, imposition of that penalty in the present case is excessive. As the majority opinion recites, the only effects of Erion’s failure to attend to his client’s legal matters were the loss of the $750 fee the client paid, some worry and concern by the client’s members, and the risk of the loss of legal rights. It is important to note that there is no suggestion that Erion’s behavior resulted in the actual loss of any rights. WTiile any violation of Standard 44 is a serious disciplinary breach that demands the imposition of an appropriate sanction, a violation that cannot be said to have caused any more actual loss to a client than the loss of the fee does not warrant what amounts to a professional death penalty.

Recent disciplinary decisions by this Court demonstrate the excessiveness of the penalty being imposed in the present case. Most telling in that regard is our decision in In the Matter of Zoota, 272 Ga. 496 (532 SE2d 107) (2000), where just four months ago we rejected the State Bar’s call for disbarment of a lawyer who accepted payment in advance for legal services which he did not complete, who failed to communicate with his client, and who failed, as Erion has done, to respond to the State Bar’s disciplinary actions against him. Zoota’s failures were the same as Erion’s, but we deemed it appropriate to suspend him for one year and impose conditions on his reinstatement to practice. The opinion in Zoota cited other cases in which attorneys charged with additional related ethical violations have been suspended with reinstatement conditional on meeting certain relevant requirements such as reimbursement of clients and completion of educational programs designed to prevent recurrence of the ethical violations. See also In the Matter of Voss, 272 Ga. 9 (525 SE2d 89) (2000) (18-month suspension for violation of Standards 22, 44, and 68); In the Matter of Gardner, 265 Ga. 482 (458 SE2d 355) (1995) (six-month suspension with conditional reinstatement for violation of Standards 22, 44, and 68); In the Matter of Kendall, 260 Ga. 767 (400 SE2d 13) (1991) (six-month suspension for violation of Standards 21, 44, and 68); In the Matter of Roberts, 257 Ga. 721 (363 SE2d 256) (1988) (six-month suspension for violation of Standards 22, 44, and 68). The punishment appropriate to Erion’s violations of ethical standards would be one consistent with those cases.

It is true that the opinion in Zoota also cited cases in which the same violations resulted in disbarment: In the Matter of Smith, 271 Ga. 432 (520 SE2d 903) (1999) (disbarred for violation of Standards 44 and 68); and In the Matter of Woodard, 270 Ga. 891 (515 SE2d 147) (1999) (disbarred for violation of Standards 22, 44, and 68). However, in each of those cases, the attorney was first suspended for the conduct and was disbarred only after suspension did not prompt the attorney to participate in the disciplinary process. That progression, from service of notice that a disciplinary proceeding has begun, to suspension for failure to respond, to disbarment upon continued failure to participate is a reasonable approach to lawyer discipline. The progress of the present case, moving straight to disbarment, may in an ultimate fashion serve the function of consumer protection by removing from the practice of law an attorney who has wronged a client, but it is wasteful and only partially effective. Comparing the approach taken in Zoota and the cases cited therein to the approach taken in the present case demonstrates the difference in effect. In the present case, the process of lawyer discipline will result in the destruction of one attorney’s career for the first disciplinary action in which he has been involved, and the client will not recover the fee or gain any other relief. Had the more moderate approach of Zoota been employed, Erion could have been suspended with conditions including return of the fee to the client and an educational program designed to forestall future violations. If he then complied, the client would be made whole and the attorney would have a chance to move his practice back in line with the standards of our profession. If the attorney still refused to participate or to meet the conditions, disbarment could follow as it did in Smith and Woodard, supra.

Decided October 30, 2000. William P. Smith III, General Counsel, E. Duane Cooper, Assistant General Counsel, for State Bar of Georgia.

In order for attorney discipline to be effective and to have meaningful impact, the process must have consistency. Our treatment of Erion is not consistent with our treatment of other similarly situated attorneys accused of violating ethical standards. Because that lack of consistency has produced an unfair result in the present case, I must dissent.

I am authorized to state that Justice Sears and Justice Carley join this dissent.