Tuesday, April 16, 2024

Petition Rejected While Attorney On Pretrial Diversion

A petition for voluntary discipline was rejected by the Georgia Supreme Court

After the Bar filed a formal complaint, York filed a petition for voluntary discipline admitting the allegations against him. A disciplinary hearing was held on June 16, 2023. In his report, the Special Master recounted that York admitted the following facts. In early 2020, York represented a client who was arrested and charged with misdemeanor family violence against her husband. She was released on bond on the condition that she not contact her husband, but she was arrested a second time based on an allegation that she had violated the no-contact condition. Thereafter, she was again
released on bond with the added conditions that she wear an electronic monitoring device on her ankle and pay a monthly monitoring fee of $347.52.

York forged the signatures of a judge and an assistant district attorney on a court order dated March 4, 2020 that purportedly authorized the removal of the monitoring device from the client’s ankle. As a result, he was charged with felony forgery, and he entered into a 36-month Pretrial Diversion Agreement (“PDA”) with the district attorney’s office pursuant to OCGA § 15-18-80,1 requiring him, for the duration of the PDA, to (1) refrain from drug and alcohol use; (2) submit to random drug tests; (3) continue counseling with a psychologist until released; (4) continue counseling with a substance abuse counselor until released; (5) attend at least one weekly drug/alcohol support group meeting; (6)
attend monthly legal mentoring sessions; (7) follow the Bar’s recommendations; and (8) “not practice law until reinstated by the State Bar of Georgia.” The district attorney agreed to dismiss the criminal charges upon York’s completion of the conditions, but if York failed to meet those conditions, he could face prosecution.

The Special Master found mitigation

The Special Master thus recommended that the Court accept York’s petition and impose a three-year suspension with the following conditions during the suspension: (1) compliance with the terms of the PDA; (2) attending counseling with the psychologist and with the substance abuse counselor, weekly support group meetings, and monthly legal mentoring meetings; and (3) as preconditions to reinstatement, (a) obtaining a certification from a medical doctor or psychologist that he is fit to practice law and that his emotional and substance abuse problems have been addressed, (b) providing proof that he is in compliance with the PDA, and (c) providing proof that he complied with his obligations to attend counseling and support meetings pursuant to the second condition. Moreover, the Special Master noted that if York is convicted of a crime arising from the same facts as this disciplinary matter, the Bar may seek all disciplinary sanctions authorized by the Bar Rules, including disbarment. The Special Master concluded that, subject to York’s
compliance with the conditions for reinstatement, it would be appropriate for the suspension to be imposed nunc pro tunc to May 1, 2020, the date York stopped practicing law, because York provided a letter from his former law partner (who is also his father) regarding his efforts to withdraw from all of his cases by May 2020, and a letter from the clerk of court in the county where he primarily practiced indicating that he had not filed any court documents since May 2020. 


We commend the Special Master for his thorough analysis of the facts and issues in this case. We disagree, however, with the recommendation to accept York’s petition while his criminal forgery Although we recognize that a pretrial diversion agreement is considered an “alternative to prosecution,” see OCGA § 15-18-80 (b), the prosecution remains open during the pendency of the PDA, and York has admitted that his PDA will not expire until at least August 8, 2025, see n.3, supra. If we were to accept York’s petition, he would be eligible to have his three-year suspension imposed nunc pro tunc to May 1, 2020, the date on which he offered evidence that he stopped practicing law, and he would be
eligible for reinstatement because more than three years have passed since that date. But if he were permitted to resume practicing law before the PDA expires, “the public is likely to lose respect for the legal system,” just as it would if an attorney were permitted to resume the practice of law while serving criminal probation. In the Matter of Paine, 280 Ga. 208, 210 (625 SE2d 768) (2006). The same reasoning applies when felony charges remain pending, albeit under a pretrial diversion agreement.

(Mike Frisch)


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