In re Holloway

Sears, Justice,

concurring.

I totally agree with Justice Hunstein’s dissent that Holloway’s surreptitious voyeurism constituted perverted behavior that is manifestly unacceptable for someone licensed to practice law in the State of Georgia. For such revolting behavior, this Court would be remiss if it failed to send a strong message regarding the ineluctability of imminent justice both to Holloway and the Bar at large. For such outrageous conduct, this Court also would be remiss if it failed to mete out an appropriate form of punishment to Holloway, who, as the dissent correctly emphasizes, has shown a wanton disregard for basic decency, and blatant contempt for the privacy rights of his victim.

Nonetheless, I respectfully disagree with the dissent’s conclusion that this Court has adopted a policy whereby it will not disbar an attorney who is guilty of a sexual offense perpetrated against a woman. The sexual victimization of women is a topic in the forefront of today’s social agenda, and I for one am overjoyed to see that the issue is receiving serious attention and is being earnestly discussed on all levels. However, my strong desire to see an end to such conduct cannot obviate my duty to evaluate each attorney disciplinary matter that comes before this Court on the basis of the particular facts attendant to each matter. My review of all of the facts relative to this disciplinary matter, and the mitigating factors as found by the special master, lead me to conclude that Holloway should be suspended from the practice of law for three years, rather than disbarred.

In this regard, I must also disagree with the dissent’s somewhat cursory determination that there are no mitigating factors which warrant imposing a lesser form of punishment than disbarment. In addition to finding that Holloway had committed the offense of unlawful invasion of privacy, the special master who presided over the evidentiary hearing found that Holloway had an unblemished record in the community and the Bar, free of complaints. The special master also found that prior to his heinous conduct at the cabin, Holloway had an outstanding reputation in his community as to truth, veracity, and his capabilities as a lawyer, and had a long history of civic, community, and charitable service. Moreover, the special master reported that, following his arrest, Holloway immediately sought out professional counseling, and was contrite and remorseful over his crime. Finally, the special master noted that Holloway’s crime did not involve illegal acts committed as an attorney, but rather as a private citizen, and that Holloway never neglected his professional duties to his clients.

I believe that our function in this case should be to dispense justice in a firm yet appropriate manner, and that we should not use our great power to inflict a punishment greater than that which is required to serve our purposes.³ In so doing, we cannot evaluate Holloway’s character and fitness to practice law on the basis of this single, albeit reprehensible, offense. More than most offenders, Holloway’s history indicates that he is capable of redeeming himself socially and professionally. Furthermore, Holloway’s gross infraction did not directly involve his duties as an attorney. Moreover, Holloway’s conduct was clearly that of an unbalanced and deranged individual, and it is very appropriate that he has sought out professional counseling. In light of these highly pertinent factors, while I find it a very close call indeed, I shall opt for a punishment which graces Holloway with an opportunity to redeem himself, rather than one which totally banishes him from the profession.

Finally, I am at a loss as to how this case can be distinguished from the rulings of this Court in In the Matter of Brooks⁴ and In the Matter of Yarbrough.⁵ Both of those cases involved disciplinary proceedings against members of the Bar, one of whom was a sitting judge, who had committed sexual battery involving the actual non-consensual sexual touching of a woman victim. As bereft of all reason as Holloway’s conduct was, I cannot say that it was more offensive than the conduct engaged in by the offenders in Brooks and Yarbrough, both of whom were suspended from the practice of law for three years. Consequently, I cannot adhere to the distinction implied by the dissent between misdemeanors in those two cases and the felony in this case. Were this Court to disbar Holloway, I would be greatly troubled by the disparity between that punishment and the ones inflicted in Brooks and Yarbrough. The law must be firm and constant, regardless of the personally offensive features of a particular matter.⁶ We cannot dispense “one law for Rome and another for Athens, one thing today and another tomorrow.”⁷ Accordingly, I concur in the ruling of the majority opinion.

3 See Colbert v. State, 91 Ga. 705, 711 (17 SE 840) (1893).

4 264 Ga. 583 (449 SE2d 87) (1994).

5 264 Ga. 720 (450 SE2d 414) (1994).

6 Southern Star Lightning Rod v. Duvall, 64 Ga. 263, 266 (1879); see Christensen v. State, 266 Ga. 474 (468 SE2d 188) (1996) (Sears, J., dissenting).

7 Cicero, The Commonwealth (cited in Standard Oil Co. v. Harris, 120 Ga. App. 768, 770 (172 SE2d 344) (1969)).