Tuesday, February 28, 2017

Threats Conviction Needs More Than Reprimand

The Georgia Supreme Court rejected a public reprimand as the sanction for an attorney's behavior in his own divorce

In his petition, Spain, who became a member of the Georgia Bar in 1999, admits that he pled nolo contendere in the State Court of Fayette County, Georgia to one misdemeanor violation of OCGA § 16-5-90 (stalking), and one misdemeanor violation of OCGA § 16-11-39.1 (harassing communications). He was sentenced to one year of probation on each count to be served consecutively. He states that the charges to which he pled nolo contendere were based on numerous emails that he sent over an approximately two-day period to opposing counsel in a divorce case, in which he is the defendant, and that he was acting pro se at the time, although he has since retained counsel. Spain further admits that the emails included inappropriate threatening language, intimidation and personal attacks directed to opposing counsel, including inappropriate remarks about counsel and members of her family, and ad hominem statements about his wife. He admits that by virtue of his convictions, he has violated Rule 8.4 (a) (3) of the Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d)... 

Spain offers in mitigation that he has no prior disciplinary record and at the time of his misconduct he was suffering from personal and emotional problems related to his marriage, compounded by the divorce which, contrary to his expectations based on a prenuptial agreement, entailed substantial litigation for which his bankruptcy practice provided no helpful experience. Spain states that he has since retained an attorney to represent him in the divorce action and that he has sought professional help for these problems. In addition, he states that he acted in good faith to rectify the consequences of his conduct by entering nolo contendere pleas, and he has cooperated fully with the State Bar in bringing this matter to a voluntary resolution. Finally, he states that his misconduct did not involve his own practice or his own clients, he is deeply remorseful and recognizes that his conduct was contrary to his professional obligations and longstanding personal values, and he wishes that he could reverse his actions. Spain asks this Court to impose a Review Panel reprimand or, if this Court disagrees, he states that he is willing to accept a public reprimand. 

The State Bar also favored reprimand under the "unique set of circumstances" but

Having reviewed the record as a whole, we disagree with Spain’s and the State Bar’s recommendation that a Review Panel or public reprimand is an appropriate sanction for his Rule 8.4 (a) (3) violation. Accordingly, this Court rejects Spain’s petition for voluntary discipline.

(Mike Frisch)


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