The Supreme Court of Georgia on Monday issued the following two attorney discipline opinions:

In the Supreme Court of Georgia

Decided: August 20, 2018

S18Y0982. IN THE MATTER OF NATHANIEL ANTONIO BARNES, JR.

PER CURIAM.

This disciplinary matter is before the Court on the petition for voluntary discipline filed by Nathaniel Antonio Barnes, Jr. (State Bar No. 220785), pursuant to Bar Rule 4-227 (b). On November 9, 2017, Barnes, who has been a member of the State Bar of Georgia since 2007, pleaded guilty in the Superior Court of DeKalb County to a felony charge of possession of cocaine and a related misdemeanor charge of disorderly conduct, but sentencing was deferred subject to Barnes's completion of the DeKalb County Drug Court Program. Per the terms of the order accepting Barnes into the drug court program, upon his successful completion of the program, the State will dismiss the charges at issue and allow record restriction of the case's disposition. By this petition, Barnes seeks the imposition of a 21-month suspension, retroactive to the November 9, 2017 date of his entry into the drug court program and with conditions on reinstatement, specifically, his successful completion of the drug court program. The State Bar has submitted a response to the petition, recommending that it be accepted by this Court.

As recited by Barnes, the facts underlying his criminal prosecution were asfollows.Aneighbor inBarnes's condominiumcomplex observed, from inside her condominium, Barnes walking around the common areas of the complex in his underwear and holding a knife. Unbeknownst to the neighbor, Barnes was in the grip of a paranoid delusion — caused by the fact that Barnes had been ingesting cocaine and not sleeping for three days — to the effect that an (imagined) assailant had entered Barnes's condominium through an open window and fled out through the front door. The neighbor called the police, who arrived and received Barnes's explanation for the behavior observed by his neighbor. In the course of their investigation, the police observed cocaine in Barnes's condominium.

Barnes acknowledges that entry of his guilty plea for possession of cocaine is sufficient to invoke the disciplinary process. Under Rule 8.4 (a) (2), a felony conviction authorizes, but does not necessarily demand, disbarment. See In the Matter of Waldrop, 283 Ga. 80, 81 (656 SE2d 529) (2008).¹ Barnes notes that, shortly after his release, he admitted himself for voluntary inpatient treatment for his depression and addiction issues. Following his discharge from that treatment, he has participated in additional counseling and recovery treatment and views his entry into the drug court program as part of his commitment to rehabilitation and recovery. Barnes also notes that he changed the status of his Bar membership to “inactive” prior to the entry of his guilty plea and is employed full time outside of the legal profession. In mitigation, Barnes notes that he had no prior disciplinary record, did not have a dishonest or selfish motive,was suffering from depression and chemical dependency at the time of his conduct, has accepted full and unqualified responsibility for his behavior, made timely disclosure to the disciplinary authorities and has maintained a cooperative attitude throughout the process, is respected professionally and within the drug court program and his recovery community, and is remorseful.

In support of his suggested discipline, both Barnes and the State Bar cite, among other cases, the decision of this Court in In the Matter of Topmiller, 293 Ga. 667 (748 SE2d 919) (2013), in which we imposed an 18-month suspension where the lawyer pleaded guilty to possession of more than an ounce of marijuana, and we conditioned reinstatement upon successful completion of a drug court program. Topmiller is compelling authority as to the appropriateness of Barnes's suggested resolution of this disciplinary matter, given that both this case and that one involve petitions for voluntary discipline arising from guilty pleas to felony drug possession counts where the attorney volunteered to complete a drug court program and the court deferred sentencing. Moreover, neither Topmiller nor this case involved the representation of a client or any injury to a client, and Barnes, as in Topmiller, has no prior disciplinary record, did not act with a selfish or dishonest motive in regard to a client, was undergoing emotional difficulties, accepted responsibility for his actions, had voluntarily ceased the practice of law by the time of the entry of his guilty plea, and has expressed remorse and his need for substance abuse treatment. See Topmiller, 293 Ga. at 668. The additional factor of Barnes wielding a knife while walking in his condominium complex warrants a somewhat longer suspension than the 18 months imposed in Topmiller, and a 21-month suspension with conditions for reinstatement is within the range of sanctions we have imposed in similar cases. See Waldrop, 283 Ga. at 80-82 (two-year suspension following guilty plea to possession of controlled substance, with conditions for reinstatement including completion of first offender probation); In the Matter of Lewis, 282 Ga. 649 (651 SE2d 729) (2007) (two-year suspension following guilty plea to cocaine possession, with reinstatement conditioned upon successful participation in State Bar's Lawyer Assistance Program).

Therefore, having reviewed the record, the Court agrees that acceptance of this petition and imposition of a suspension is the appropriate sanction. Accordingly, we hereby order that Nathaniel Antonio Barnes, Jr. be suspended for a minimum of 21 months, retroactive to November 9, 2017, when he entered the DeKalb County Drug Court Program. At any time after the conclusion of 21 months, if Barnes wishes to seek reinstatement, he must present proof to the State Bar that he has successfully completed the DeKalb County Drug Court Program. If the State Bar agrees that this condition has been met, it will submit a notice of compliance to this Court, and the Court will issue an order granting or denying reinstatement.

Petition for voluntary discipline accepted. Twenty-one-month suspension with conditions for reinstatement. Hines, C. J., Melton, P. J., Benham, Hunstein, Nahmias, Blackwell, Boggs, and Peterson, JJ., concur.

¹ Rule 8.4 (b) (1) provides that, for purposes of the rule, “conviction” shall include a guilty plea “accepted by a court, whether or not a sentence has been imposed.”

In the Supreme Court of Georgia

Decided: August 20, 2018

S18Y1385. IN THE MATTER OF RICARDO L. POLK.

PER CURIAM.

This matter is before the Court on the petition for voluntary discipline filed by Ricardo L. Polk (State Bar No. 001354), which petition he filed pursuant to Bar Rule 4-227 (b) prior to the issuance of a formal complaint. This Court recently rejected a prior petition for voluntary discipline as to this matter, see In the Matter of Polk, ___ Ga. ___ (___ SE2d ___) (2018) (“Polk III”), in which petition Polk sought to have this Court impose discipline to run concurrently with the 30-month suspension with conditions he is already serving,¹ see In the Matter of Polk, 295 Ga. 215 (758 SE2d 830) (2014) (accepting fifth petition for voluntary discipline admitting violations of Rules 1.3, 1.4, and 1.16 in connection with representation of three clients; requiring restitution of $1,000 to one client and evaluation by Law Practice Management Dept. of State Bar) (“Polk I”); see also In the Matter of Polk, 299 Ga. 746 (791 SE2d 771) (2016) (accepting petition for voluntary discipline for violations of Rules 1.16 and 9.3 and imposing a suspension to run concurrently with that imposed in Polk I but adding as additional conditions on reinstatement that Polk repay $1,500 to two clients he represented in 2012 on an insurance matter and $1,500 to another client) (“Polk II”). In Polk III, this Court resolved matters presented by Polk's petition as to the Disciplinary Rules violated by his conduct and as to what factors could properly be considered in mitigation of discipline, see Polk III slip op. at 3-6, but ultimately rejected his petition because the level of discipline suggested therein was insufficient, see id. at 6-7. In the present petition, Polk suggests the imposition of a suspension of between three and six months in duration, to run consecutive to the suspension that he is already serving and with conditions on reinstatement, specifically that he fulfill his restitution obligation towards the client whose grievance prompted this matter, in addition to his fulfillment of the reinstatement conditions identified in Polk I and Polk II.

As to the client whose grievance initiated this matter, Polk, who has been a member of the Bar since 2004, admits that, in May 2013, the client retained him for representation with regard to two separate criminal charges in municipal court; that they agreed on a flat fee of $1,500 for each charge; that Polk appeared on his client's behalf multiple times between June and October of 2013; and that, at Polk's last appearance, both cases were transferred to state court because the client wanted a jury trial. Polk asserts that after this Court suspended his license to practice law in May 2014 (in Polk I), he notified all of his clients, including this particular client, of that suspension. Polk claims that he was honest and straightforward with the client and told the client that he could no longer represent the client; that the client needed to find another attorney right away; that he would assist the client in that regard; and that he would transfer the client's file to the new attorney. Polk asserts that at the time of these discussions the client had no scheduled hearings in state court or otherwise. Polk claims that the client contacted him a year later demanding a full return of his retainer, but that after discussion, he and the client agreed that Polk would return only $1,000 of the retainer. Polk claims that he told the client that he would be unable to return the $1,000 at that time, however, because he was unemployed. Polk says that his last communication with the client was on December 8, 2015, and that the client has not made any attempts to communicate since then. Polk asserts that it is still his intention to reimburse the $1,000 to the client, but admits that he has not yet done so.

As noted above, in Polk III, this Court determined that Polk's admitted conduct amounted to a violation of Rule 1.16 (d) ² but did not constitute a violation of Rule 8.4 (a) (4). ³ See slip op. at 3-4. This Court further concluded that, although the maximum sanction for a violation of Rule 1.16 (d) is ordinarily a public reprimand, given Polk's disciplinary history, a more severe punishment was appropriate under Bar Rule 4-103, which says that a finding of a third or subsequent disciplinary infraction shall constitute discretionary grounds for suspension or disbarment. See id. at 4. This Court also addressed mitigation in Polk III, concluding that it could accept as factors in mitigation Polk's suggestions that he lacked a dishonest or selfish motive, that he is remorseful, that he acknowledges the wrongful nature of his behavior, and that he has had a cooperative attitude toward these disciplinary proceedings. See id. at 4-5. This Court, however, rejected Polk's suggestions that it consider in mitigation his willingness to make restitution, the supposed remoteness of his prior discipline, or the financial difficulties he experienced resulting, at least in part, from his prior suspension. See id. at 5-6. In aggravation, this Court concluded that, in addition to his multiple suspensions for disciplinary matters involving clients, Polk also has had two administrative suspensions for failure to pay Bar dues in 2008 and 2015 and another administrative suspension from February 2010 to July 2011 for his failure to pay child support. See id. at 4. In its response, the State Bar recommends that this Court accept Polk's present petition and impose a six-month suspension with conditions.

Having reviewed the record, we find that a six-month suspension with conditions on reinstatement, to be served consecutively to the suspension Polk is already serving, is the appropriate sanction in this matter. Accordingly, we hereby order that Ricardo L. Polk is suspended from the practice of law in the State of Georgia for a period of time to end at the expiration of six months from the date of the conclusion of the suspension he is currently serving in connection with Polk I and Polk II. 4

At the conclusion of this consecutively entered suspension, Polk may seek reinstatement by demonstrating to the State Bar's Office of General Counsel that he has met the conditions for reinstatement, specifically, that he has complied with his reimbursement obligation towards the client whose grievance initiated this matter. If the State Bar agrees that the conditions have been met, it will submit a notice of compliance to this Court, and this Court will issue an order granting or denying reinstatement. Polk is reminded of his duties under Bar Rule 4-219 (c).

Petition for voluntary discipline accepted. Six-month suspension with conditions for reinstatement. Hines, C. J., Melton, P. J., Benham, Hunstein, Nahmias, Blackwell, Boggs, and Peterson, JJ., concur.

¹ As this Court noted in Polk III, although the time portion of the suspension imposed in connection with Polk I and Polk II has elapsed, Polk remains suspended because of his apparent failure to comply with the reinstatement conditions imposed in those prior matters.

² Rule 1.16 (d) says: “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.”

³ Rule 8.4 (a) (4) says it is a violation of the Rules for a lawyer to “engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation.”

4 The suspensions imposed in Polk I and Polk II shall continue until: (1) Polk provides proof to the State Bar's Office of General Counsel that he has fulfilled the restitution conditions on reinstatement that were imposed in those prior decisions; (2) the State Bar agrees that conditions have been met and submits a notice of compliance to this Court, and (3) this Court issues an order finding that the suspensions imposed in Polk I and Polk II have terminated and the new suspension period has begun to run.