Opinion
44461.
ARGUED MAY 5, 1969.
DECIDED SEPTEMBER 4, 1969. REHEARING DENIED SEPTEMBER 24, 1969.
Disbarment. Fulton Superior Court. Before Judge Williams.
Thomas H. Antonion, for appellant.
Mallory C. Atkinson, Alexander Cocalis, for appellee.
1. It was not error to disallow exceptions to the report of the State Disciplinary Board which were filed beyond the time allowed by Rule 4-212 ( 219 Ga. 910), or to refuse to grant an extension for filing.
2. The standard of proof required in proceedings before the Grievance Tribunal, or before the State Disciplinary Board, is that the offense charged against an attorney must be established beyond a reasonable doubt under Rule 4-215 (f), but when the report, findings and recommendations of the disciplinary board are before the superior court these may be sustained if supported by any evidence under Rule 4-213.
3. No double jeopardy is involved in the application of one of the several sanctions recommended by the disciplinary board; the proceeding against the respondent was not criminal in nature.
ARGUED MAY 5, 1969 — DECIDED SEPTEMBER 4, 1969 — REHEARING DENIED SEPTEMBER 24, 1969 — CERT. APPLIED FOR.
The Grievance Tribunal of the State Bar of Georgia, having found the existence of probable cause, did, pursuant to Rule 4-205 ( 219 Ga. 907), lodge a formal complaint in four counts against Bert C. Cushway, charging in Count 1 that in January, 1966, he agreed to represent Harold John Kitchen in connection with a purchase of 20 acres of land and agreed to accept as his fee for doing a title search and procuring a policy of title insurance the sum of $192.60, and that at the appointed time for closing the purchase on March 7, 1966, he received from Kitchen the full $192.60, of which $45.50 was to be used in procuring the title insurance but that Cushway failed to procure the insurance until February 2, 1967, and failed to pay the premium thereon until November 14, 1967; that the $45.50 had been deposited in an escrow account at the Bank of Georgia, but that the balance in that account had, on numerous occasions, been less than $45.50; by reason of which he had committed acts of unprofessional conduct and that he failed to account for trust property within the meaning of Rule 4-102 ( 219 Ga. 902).
In Count 2 he was charged with committing acts of unprofessional conduct within the meaning of Rule 4-102 by taking advantage of the confidence reposed in him by his client, Kitchen, in connection with the matters set out in Count 1.
In Count 3 he was charged with violations of Rule 4-102 by "failing to account for trust property held in a fiduciary capacity," being funds entrusted to him by Major James R. Scruggs, who had employed Cushway to represent him in arranging with his creditors a plan for the monthly retirement of his debts, the money to be supplied by an allotment from Major Scruggs' salary to an escrow account at the American Bank of Atlanta for that purpose. A total of $8,820 was paid into the account from the allotment, and Scruggs made additional payments totaling $475.76, so that the total deposited to the account was $9,295.76.
On at least six occasions Major Scruggs requested of Cushway an accounting, which Cushway failed to give until Scruggs threatened to take action against him through the Department of the Army, after which, on September 2, 1967, a purported but incomplete accounting was submitted, showing disbursements to Scruggs' creditors of a total of $4,441.72, when in truth and in fact the total disbursements to creditors had amounted to only $3,947 and charges of fees (to which Scruggs had not agreed, although the services for which the charges were made were of the nature contemplated by the agreement of hiring), $975 for setting up the program of payment to creditors, $250 for setting up child support payments, and $150 for setting a schedule of payments to Associates Discount, or a total of $1,375 in fees, leaving unaccounted for the sum of $5,348.76; that from time to time the amount in the escrow account had been less than the unaccounted for balance.
In Count 4 it was charged that Cushway had violated Rule 4-102 in that he had charged the sum of $5,185 as fees for making disbursements to creditors of Scruggs totaling $3,947, thus taking advantage of the confidence which had been reposed in him by his client.
After full hearing the Grievance Tribunal made its report, finding, inter alia, that the facts charged in Counts 1, 2, 3 and 4 were true, except that as to Count 3 the evidence showed the total unaccounted for in the Scruggs escrow account to be $4,854 instead of $5,348.76, and that Cushway had made unauthorized disbursements totaling $4,854 to himself from the account which he had converted to his own use (these being sums which Cushway claimed as disbursements for fees). While Cushway did have authority to draw checks on the escrow account for the making of proper disbursements, he did not have authority unilaterally to withdraw the money and apply it to his own use on the pretext of paying himself fees for which there had been no agreement between himself and his client, Major Scruggs.
As findings of law the tribunal concluded that Cushway had committed acts of unprofessional conduct and had taken advantage of the confidence reposed in him by his clients, Kitchen and Scruggs, within the meaning of Rule 4-102, and recommended as to Count 1 that he be suspended from the practice of law for a period of one year, as to Count 2 that he be publicly reprimanded, as to Count 3 that he be disbarred, and as to Count 4 that he be publicly reprimanded.
The report, with a transcript of the evidence, was transmitted to the State Disciplinary Board, which in turn, after a hearing and a consideration thereof, transmitted the same, with its report and recommendations to Fulton Superior Court. In its report to the court the board adopted the findings of fact as made by the tribunal, and approved the recommendations made as to sanctions.
Cushway filed exceptions to the findings and report of the board, urging that the punishment recommended was cruel, unjust and unusual, in violation of Georgia Constitution Art. I, Sec. I, Par. IX ( Code Ann. § 2-109); that the offenses charged in Counts 1 and 2 were the same, resulting in punishment twice for the same offense; that the offenses charged in Counts 3 and 4 were the same, resulting in punishment twice for the same offense; that the board did not carry the burden of proof as to the Scruggs matter; and excepted to the failure of the judge of the superior court to grant time beyond that provided by law for the filing of exceptions, and to the failure of the court to consider amendments to the exceptions filed after expiration of the time for filing.
Cushway contended, before the tribunal, the board and the court that he had been employed by Scruggs, not for the purpose of effecting a common law compromise of his debts, but for the purpose of avoiding a bankruptcy which would result in his mustering out of the military service; that he had experienced a great deal of trouble in handling the Scruggs matters, both from Scruggs and his creditors, and that it had been difficult to keep accurate books on the matter because of irregular payments into the account and the appearance from time to time of additional creditors, requiring a refiguring of the apportionment. He asserted that there had been no set agreed charge for his services, but that for this additional trouble he had charged as his fee the balance in the escrow account above that which had been disbursed to creditors, and that it was a reasonable charge.
After a hearing before the superior court an order was entered (a) sustaining objections to amendments to the objections to the report of the board as not filed within the time required by Rule 4-212, (b) finding that the findings of fact were sustained by some evidence; denying and overruling all grounds of exceptions to the report of the board, (c) sustaining and affirming the report subject to the condition, inter alia, that if the disbarment provided as to Count 3 be imposed, the imposition of all other sanctions be suspended, and finally, disbarring Cushway, striking his name from the roll of attorneys and providing that he be denied the right and privilege of engaging in the practice of law in all courts of this State.
From this judgment he appeals.
While constitutional issues were raised in certain of the exceptions which appellant filed in the trial court to the recommendations of the Disciplinary Board of the State Bar of Georgia, none are raised in the enumerations of error filed in this court and appellant asserts in his brief that "no constitutional question is presented." The appeal is, therefore, properly before this court.
1. It was not error either to disallow the amendments to the exception to the report of the State Disciplinary Board or to deny an extension of time for the filing of additional exceptions beyond the time for filing prescribed by the rules. State Bar of Ga. v. Ellis, 116 Ga. App. 721 (4) ( 158 S.E.2d 280).
2. Although under Rule 4-215 (f) the burden of proof lies with the State Bar in establishing the charges made before the Grievance Tribunal or before the Disciplinary Board, and the quantum of proof required is that which establishes the charge "beyond a reasonable doubt," when the findings and report of the board are on judicial review before the superior court, they may, under Rule 4-213, be sustained if supported by any evidence. In its order of disbarment the court recited that there was some evidence to sustain the findings, and we find no error.
Under the rules of the State Bar the Grievance Tribunals and the Disciplinary Board are composed of members of the State Bar. Absent a clear and convincing showing to the contrary, it is to be presumed that those who served on the tribunals and on the board were familiar with the rules under which disciplinary action is instituted and tried against a member, including the quantum of proof required for the establishment of charges, and that they, as well as the judge of the superior court, followed and applied the rules in the performance of their duties. Cf. Gardner v. State, 117 Ga. App. 262, 265 ( 160 S.E.2d 271). As to the meaning of proof "beyond a reasonable doubt" in civil proceedings, see Schnell v. Toomer, 56 Ga. 168 (3).
An analogous situation is in a review of the findings of fact by the Board of Workmen's Compensation, "The finding of that body upon the facts can not be reviewed in the superior court, if there is evidence to support its finding. Such finding can not be reviewed in the appellate court." Maryland Cas. Co. v. England, 160 Ga. 810, 812 ( 129 S.E. 75). Another is the consideration on appeal of a criminal conviction, as to which, see Waters v. State, 15 Ga. App. 342 ( 83 S.E. 200); Mitchell v. State, 15 Ga. App. 803 (7) ( 84 S.E. 205); Mathis v. State, 16 Ga. App. 381 (6) ( 85 S.E. 352); Williams v. State, 17 Ga. App. 724 ( 88 S.E. 215).
3. There is no double jeopardy as to Counts 1 and 2 or as to Counts 3 and 4. The only sanction imposed is that provided in the recommendations of the tribunal and the board as to Count 3, disbarment. The order specifically provides that the imposition of all other sanctions recommended is suspended.
This proceeding is not a criminal one. City of Atlanta v. Stallings, 198 Ga. 510 ( 32 S.E.2d 256); Gordon v. Clinkscales, 215 Ga. 843 (2) ( 114 S.E.2d 15); State of Ga. v. Walker, 88 Ga. App. 413 ( 76 S.E.2d 852). It is "an action taken by the court to protect itself from having as one of its officers one who has demonstrated a manifest unsuitability therefor, and to protect from imposition by him upon an unsuspecting public." Yarbrough v. State, 119 Ga. App. 46, 48 ( 166 S.E.2d 35). Appellant is not placed in jeopardy of life or liberty. The power of the Grievance Tribunal was limited to making finding of fact and recommendations to the court as to appropriate sanctions, and the power of the court was limited to reprimanding, suspending or disbarring. A matter is criminal only if imprisonment or the assessment of a fine may follow conviction. "A prisoner is in jeopardy within the meaning of the Constitution, and can not be tried again, when in a court of competent jurisdiction, and upon a sufficient indictment, he has been arraigned, has pleaded, and the jury has been impaneled and sworn." Peavey v. State, 153 Ga. 119 (1) ( 111 S.E. 420). "Jeopardy," in its constitutional and common law sense, has a strict application to criminal prosecutions only. Yoder v. State, 66 Okl. Crim. 178 ( 90 P.2d 669); Ex parte Lewis, 152 Kan. 193 ( 102 P.2d 981); People v. Carver, 174 Misc. 325 ( 20 N.Y.S.2d 533). Only actions intended to authorize criminal punishment, as distinguished from remedial actions, subject the defendant to "jeopardy." "[T]he double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense. The question . . . is thus whether [the statute in question] imposes a criminal sanction." United States v. Hess, 317 U.S. 537, 549 ( 63 SC 379, 87 LE 443). And see Helvering v. Mitchell, 303 U.S. 391 ( 58 SC 630, 82 LE 917) to the same effect. In the Hess case a qui tam action was brought on behalf on the Government to invoke a forfeiture and damages in consequence of a fraudulent claim which Hess had made against the Government and for which he had already been indicted and fined.
The sanctions in a disbarment proceeding are not criminal in nature.
The requirement of proof beyond a reasonable doubt by Rule 4-215 (f) does not convert the proceeding into a criminal one. There are other instances where that quantum of proof is required in civil actions. See, e.g., Durham v. Holeman, 30 Ga. 619 (7); Muller v. Rhuman, 62 Ga. 332 (7); Beall v. Clark, 71 Ga. 818 (3); Conley v. Thornton, 81 Ga. 154 (1) ( 7 S.E. 127); Adkins v. Flagg, 147 Ga. 136 (la) ( 93 S.E. 92); Crosby v. Higgs, 181 Ga. 314 ( 182 S.E. 10). But, as the Supreme Court asserted in Schnell v. Toomer, 56 Ga. 168 (3), supra, "The exclusion of reasonable doubt, in some civil cases, as held requisite in 11 Ga. 160, and 30 Ga. 619, means no more than that the jury [or trior of fact] must be clearly satisfied," and further that "[t]here is certainly a difference in the strength of conviction required by the law in the two classes of cases." P. 170.
A lawyer does not have a vested interest in his status as a member of the State Bar of Georgia. "The right to practice law is not a natural or constitutional right, nor an absolute right or a right de jure, but is a privilege or franchise." 7 CJS 708, Attorney and Client, § 4 b, quoted approvingly in Gordon v. Clinkscales, 215 Ga. 843, 845, supra. "It has never been the law of this State that a lawyer holds an irrevocable license to practice law . . . The State Bar Act does not deprive the [appellant] of his freedom of contract, conscience, speech, and liberty, or deprive him of his property without due process of law." Sams v. Olah, 225 Ga. 497, 504 ( 169 S.E.2d 790).
Nor does the procedure for disciplining a member of the State Bar, as provided in the rules prescribed by the Supreme Court and followed in this case deprive him of these rights.
None of the enumerations of error is meritorious, and the judgment is
Affirmed. Bell, P. J., Jordan, P. J., Hall, Pannell Deen, Quillian and Whitman, JJ., concur. Felton, C. J., dissents.
As I understand the record, Mr. Cushway was charged by his client with charging an exhorbitant fee. The only evidence of that fact is the opinion of the client that it was exhorbitant. The evidence, in my opinion, renders the conclusion that the fee was immorally exhorbitant very, very doubtful.
As to the fact that in rendering his account Mr. Cushway reported $497.72 paid to creditors was more than was actually paid, the error in reporting the excess paid to creditors was a miscalculation. What the attorney meant by the accounting was that he paid out so much money and had so much money left in his hands and that he wrote a check for the balance to himself as a fee for services rendered. The attorney had authority from his client to issue a check to himself for his fee. The charge made against the attorney is simply that the amount of fee was unconscionably excessive. I do not think that the evidence authorizes the finding that the attorney stole the $497.72 and that the fee charged, which included the $497.72, was morally excessive. The mere opinion of the client, as against the record in this case, is simply insufficient to warrant the disbarment of the attorney in this case. This is especially true when the quantum of proof, as held by the majority, is evidence beyond a reasonable doubt. There is no assurance in this case that the proceedings were held under this theory. The rule on the subject is contradictory, in my opinion, and a presumption that the judge correctly interpreted the rule is unwarranted. Since there was no jury and no charge to a jury, the record should have shown whether the case was tried under a mere any-evidence rule or the correct rule, any evidence beyond a reasonable doubt. There is quite a difference. It is unfortunate that the evidence is not set out in more detail.
As to the other sanctions it is my opinion that the rules should not be held to impose two sanctions for the same identical conduct. Think what untoward injustice that could lead to.