Tuesday, October 12, 2010

No Lesser Sanction

The South Carolina Supreme Court declined to impose a lesser or different sanction than disbarment after an attorney had been disciplined in Georgia:

Rule 4-104 of the Rules of the State Bar of Georgia clearly provides that a lawyer may be removed from the practice of law in Georgia if he suffers from a drug addiction that impairs his competency as a lawyer.  Pursuant to Rules 4-110(f) and 4-227, a lawyer may voluntarily submit to such discipline by filing a Petition for Voluntary Surrender of License, which is the equivalent of disbarment. 

Similarly, Rule 28(b)(6) of the South Carolina Rules for Lawyer Disciplinary Enforcement states that if this Court concludes a lawyer suffers from a physical or mental condition that adversely affects the lawyer's ability to practice law, it may enter any order appropriate to the circumstances, the nature of the incapacity and probable length of the period of incapacity.  In addition, after receipt of an examination report of an expert, ODC and the lawyer may agree on proposed findings of fact, conclusions, and a recommended disposition.  Rule 28(e), RLDE.  The stipulated disposition must be submitted to the hearing panel for a recommendation to the Court that it be approved or rejected.  Id.  The final decision on the recommendation is made by the Court.  Id.  If the Court accepts the stipulated disposition, an order is entered in accordance with its terms.  Id.  Accordingly, a lawyer in South Carolina may also consent to disbarment based on a physical or mental condition that adversely affects his ability to practice law.

Based on the language of the applicable Georgia and South Carolina rules, we agree with ODC that respondent cannot rely on Rule 29(d)(5) because while a transfer to incapacity inactive status, or an equivalent disposition, is available under both Rule 4-104 and Rule 28, such disposition was not imposed in this case.  Instead, respondent consented to a form of discipline under the Georgia rule that is equivalent to disbarment, an option that is also available under the South Carolina rule.  Moreover, respondent has failed to otherwise demonstrate that imposition of the same discipline in South Carolina is not appropriate.  We therefore find disbarment is the appropriate sanction to impose as reciprocal discipline in this matter.  Respondent is hereby disbarred from the practice of law in this state retroactive to June 28, 2010, the date respondent was disbarred from the practice of law in Georgia.

(Mike Frisch)

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