In re CARLSON
In re CARLSON
Opinion of the Court
Kenneth Raymond Carlson pled guilty in a Kentucky state court to the charge of flagrant nonsupport, a class D felony (the least severe class) in the Commonwealth of Kentucky. See Kentucky Revised Statutes § 530.050.
It is in accord with our state’s public policy to recognize Carlson’s Kentucky conviction for purposes of this Georgia disciplinary proceeding. Furthermore, the conduct for which Carlson was convicted
We find it appropriate to suspend Carlson from the practice of law in this state for 12 months or until such time as his obligation for child support arrearage under the Kentucky court’s order of probation is fulfilled, whichever period of time is longer. This comports with the provisions of OCGA § 19-6-28.1 and Bar Rule 1-209.
Suspended.
KRS § 530.050 provides in pertinent part:
A. person is guilty of flagrant nonsupport when he persistently fails to provide support which he can reasonably provide and which he knows he has a duty to provide by virtue of a court or administrative order to a minor ... and the failure results in: (a) An arrearage of not less than one thousand dollars ($1,000); or (b) Six (6) consecutive months without payments of support; or (c) The dependent has been placed in destitute circumstances....
Standard 66 (a) provides that: “Conviction of any felony or misdemeanor involving moral turpitude shall be grounds for disbarment.”
The Code section, effective July 1,1996, allows for the suspension of, denial of application, or renewal of a license for noncompliance with a child support order. Rule 1-209 provides that when a court of competent jurisdiction makes a finding under the Code section that a member of the bar has wilfully failed to timely pay a child support obligation and such refusal continues for 30 days after the determination becomes final, the bar member “shall be deemed not to be in good standing and shall remain in such status until such time as the noncompliance is corrected.”
Concurring Opinion
concurring.
I agree with the level of discipline imposed in this case, and therefore concur in the judgment. I write to explain my thoughts regarding how this Court should treat, for purposes of Standard 66, a felony committed in another state and to explain why I believe that the suspension imposed by this Court is appropriate.
This Court has recently explained that under Standard 66 a conviction of any felony authorizes discipline, but that “discipline for misdemeanor violations is limited to those crimes which relate to the lawyer’s fitness to practice law [i.e., those crimes involving moral turpitude].”
First, as a matter of comity, the courts of this state will usually enforce the laws of another state if they are not contrary to the public policy of this State.
I therefore turn to the appropriate level of discipline in this case. Although the State Bar seeks Carlson’s disbarment, I find that that discipline is inappropriate for two reasons. First, by amending its probation order to provide that Carlson would make “payment toward licenses in Michigan and Georgia which were administratively suspended for non-payment of dues,” the Kentucky court that sentenced Carlson has implicitly expressed its opinion that disbarment is not warranted. Second, relying on the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991),
In the Matter of David Wayne Williams, 266 Ga. 132, n. 1, 133, n. 4 (464 SE2d 816) (1996).
Georgia has no crime of flagrant nonsupport, and the most comparable Georgia crime, abandonment, would be a misdemeanor under the facts of Carlson’s case. See OCGA § 19-10-1.
University of Iowa Press v. Urrea, 211 Ga. App. 564 (440 SE2d 203) (1993).
266 Ga. 132 (464 SE2d 816) (1996).
See ABA Standard 9.32 (h).
In the Matter of Marc H. Wittes, 267 Ga. 52 (472 SE2d 429) (1996); In the Matter of Linell A. Bailey, 267 Ga. 370 (478 SE2d 131) (1996).
Dissenting Opinion
dissenting.
This disciplinary action presents two issues for this Court’s resolution: (1) whether a felony conviction in another state should be treated as a felony conviction in this State for purposes of Standard 66 and (2) whether a lawyer is subject to discipline by the Bar for failure to abide by a court order in a matter unrelated to the lawyer’s professional activities under Standard 6.0 et seq. of the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991). On the first issue, I concur with the majority’s holding that Carlson’s felony conviction in Kentucky constitutes a violation of Standard 66. “Conviction of any felony or misdemeanor involving moral turpitude shall be grounds for disbarment.” Id. That language is plain and unambiguous and admits of no exceptions for attorneys who commit crimes in other jurisdictions. It is an attorney’s duty to uphold the law and that duty applies to all laws to which the attorney is subject. Carlson had a duty to obey the laws of the State of Kentucky and it is his knowing failure to obey those laws, rather than the nature of the criminal activity he committed, that reflects now on his fitness to practice law in the State of Georgia.
As to the second issue, I agree with the majority’s implicit rejection of ABA Standard 6.0 as a standard applicable to this case, although I would openly cite the ABA Standard expressly applicable where a lawyer is convicted of a felony offense, ABA Standard 5.11, which provides that disbarment is generally appropriate for “serious” criminal conduct, absent mitigating circumstances.
[i]f the law is to be respected, the public must be able to respect the individuals who administer it. By failing to swiftly discipline an attorney found guilty of a serious offense, we necessarily impair the public’s confidence in the law and in this Court’s willingness to enforce the law evenhandedly. [Cit.]
(Punctuation omitted.) In the Matter of Stoner, 246 Ga. 581, 582 (1) (272 SE2d 313) (1980).
Although I concur with the result reached by the majority on these two issues, I must respectfully dissent to the majority’s rejection of disbarment as the appropriate disciplinary sanction in this case. The majority reasons that Carlson’s discipline for the commission of a felony should be mitigated by his mental illness and alcoholism. However, it cannot be controverted that Carlson’s mental illness and alcoholism did not impair his ability to support his children, given that the felony of flagrant nonsupport to which Carlson pled
The punishment imposed by the majority diminishes the seriousness of Carlson’s offense and the harm he has caused not only to his children and former spouse, but to the public generally. See Garrett v. State, 125 Ga. App. 743, 745-746 (188 SE2d 920) (1972). In recognition of the public’s interest in parents supporting their children, this Court recently passed Bar Rule 1-209, which provides that a Georgia lawyer may be deemed no longer in good standing when he or she wilfully refuses to pay child support obligations.
I am authorized to state that Justice Thompson joins in this dissent.
Thus, to the extent that the majority intimates otherwise in its statement that “the
Standard 5.11 provides that disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
Although Justice Hines in his concurrence also references as a mitigating factor the Kentucky court’s order that Carlson should make payments to reactivate his license to practice law in Georgia, I agree with the majority’s implicit rejection of this matter in that the Kentucky court’s order is irrelevant to our determination whether a lawyer convicted of a felony in another state should be allowed to practice law in Georgia. There is no basis in comity or any other public policy that would justify this State allowing a felon convicted in another state to practice law here solely because the other state’s court has not only authorized but encouraged the felon to do so. I would note that the Kentucky court order cannot damage the interests of the State of Kentucky, in that nothing in the record indicates Carlson has a license to practice law in Kentucky.
Although the majority considers Carlson’s alcoholism and mental illness severe enough to mitigate against disbarment for Carlson’s felony conviction, the majority chooses to ignore the obvious impact of these impairments on Carlson’s ability to practice law in this State.
Rule 1-209 provides that in the event a court of competent jurisdiction makes a finding, under the procedures of OCGA § 19-6-28.1, that a member has wilfully failed to timely pay a child support obligation and continues such refusal for 30 days after the determination becomes final, the member “shall be deemed not to be in good standing and shall remain in such status until such time as the noncompliance is corrected.”
Because I would disbar Carlson, I do not address the propriety of conditioning Carlson’s suspension upon his payment of sums due under a Kentucky court order.
Concurring Opinion
concurring.
I concur fully in the determinations that Carlson’s out-of-state felony conviction for flagrant nonsupport violates Standard 66, subjecting him to discipline, and that the sanction of suspension is warranted. I do so based on traditional notions of comity and in consideration of the importance of preserving the integrity of the practice of law in Georgia.
In this case, our inquiry should focus first on the weight we are required to afford another state’s classification of a crime in the context of a disciplinary proceeding. The doctrine of comity generally compels us to recognize and enforce foreign laws except where those laws are contrary to this state’s public policy.
The next question is whether to recognize the Kentucky felony as a felony under the disciplinary rules, or as a misdemeanor. This distinction is crucial because under Standard 66, a conviction of any felony authorizes discipline, while a conviction of a misdemeanor warrants discipline only where the crime is one of moral turpitude.
I have no difficulty determining that flagrant nonsupport is a crime of moral turpitude, and thus, relates to Carlson’s fitness to practice law. Moreover, the aggravated circumstances incorporated in the elements of flagrant nonsupport amount to a wilful violation of a court order.
The final question is the discipline to be imposed, and Carlson’s conduct should be assessed under the guidelines of the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991). I disagree with the special master’s recommendation, in the event this Court found discipline to be appropriate, of a public reprimand. Under ABA Standard 6.23, a reprimand is appropriate discipline for a lawyer’s failure to comply with a court order or rule where the lawyer’s noncompliance is negligent. The elements of the Kentucky crime of flagrant nonsupport preclude a finding of negligence on Carlson’s part.
Nor can I agree with the State Bar’s recommendation that Carl-
Consequently, I agree to suspend Carlson from the practice of law in this state. Chief Justice Benham and Justice Carley join in this concurrence.
See Nasco, Inc. v. Gimbert, 239 Ga. 675 (238 SE2d 368) (1977); Ullman &c. Woolen Co. v. Magill, 155 Ga. 555 (117 SE 657) (1923).
Nonsupport is, of course, punishable by contempt in this state, as is any other violation of a court order. See generally OCGA § 15-1-4.
OCGA § 19-10-1 (a) and (b) provide that a child abandoned by its father or mother shall be considered in a dependent condition when the parent does not furnish sufficient food, clothing or shelter for the needs of the child, and that a parent who wilfully and voluntarily leaves a child in a dependent condition is guilty of a misdemeanor.
In the Matter of David Wayne Williams, 266 Ga. 132, 133, n. 4 (464 SE2d 816) (1996).
Id. While the special master cited cases holding abandonment not to be a crime of moral turpitude, those cases were not decided in the context of a disciplinary proceeding, where moral turpitude has a particular definition.
The crime of abandonment, n. 5, supra, is a misdemeanor in most instances, except where the parent leaves the state in which the child resides, in which case the crime, is a felony.
See DR1-102 (A) (5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice) and DR7-106 (A) (a lawyer shall not disregard a court ruling). See also People v. Tucker, 837 P2d 1225, 1229 (Colo. 1992), in which the Colorado Supreme Court, citing the foregoing directory rules, found the respondent lawyer’s refusal to comply with the trial court’s order twice resulting in criminal contempt, to constitute aggravating circumstances warranting professional discipline. See also In the Matter of Anderson, 795 P2d 64, 67 (Ks. 1990), in which the Kansas Supreme Court held that the attorney’s wilful violation of a child support order of another state, including the fact that he quit his job solely to avoid support payments, evidenced a “contempt for judicial process and an indifference to his legal obligations,” warranting an indefinite suspension; Florida Bar v. Taylor, 648 S2d 709 (Fla. 1995), holding that the respondent lawyer’s contempt in another state of a support order did not authorize discipline absent a finding of fraudulent or dishonest conduct, or where the failure to pay support rose to the level of criminal contempt.
In February 1996, the Kentucky court amended its order of probation to provide that Carlson would submit an application to obtain a license to practice law in Illinois and/or that he would make payment to reactivate his licenses to practice law in Michigan and Georgia.
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