Support Staff Assistance Not Unauthorized Practice
The Georgia Supreme Court has reprimanded an attorney for communication and consultation lapses in representing a family of Mexican citizens in immigration matters.
The State Bar had sought more severe discipline.
The court agreed that some charges were not supported
The special master found that Stewart violated his duties of consultation and communication under Rules 1.2 and 1.4, but did not violate Rule 1.3 because he did not “willfully abandon” or “willfully disregard” a legal matter entrusted to him or fail to act with a reasonable degree of promptness in these clients’ immigration matters. The special master also concluded that the State Bar failed to show by clear and convincing evidence a violation of Rules 5.3 or 5.5 (a) in Stewart’s dealings with his non-lawyer assistant, particularly where the record showed that Stewart instructed his non-lawyer assistant not to practice law, that the non-lawyer assistant helped the son apply for legal status without Stewart’s knowledge or permission, that Stewart severely reprimanded his assistant for this conduct, and that the non-lawyer assistant had not done anything similar since then. The special master further found that although Stewart directed his non-lawyer assistant to help the client family with the completion of their yearly work permits, there was insufficient evidence to establish that what the assistant did constituted the practice of law or that Stewart helped his assistant in rendering these services. The special master noted that the State Bar did not cite any authority that the non-lawyer assistant’s essentially ministerial acts(taking passport pictures, helping the family complete forms, collecting the necessary fees, and filing documents with the appropriate authority) constituted the practice of law in Georgia. Thus, the special master concluded that the State Bar failed to show that Stewart violated Rule 5.5 (a)
The attorney had been previously suspended for 18 months.
The Special Master’s findings of fact show that Stewart began his legal career in 1995, after a 20-year exemplary military career with the United States Army. He practices primarily criminal defense work in Henry and Butts County and has been active in the formation of an indigent defense system in Henry County.
Detective Kevin Thomas of the McDonough Police Department referred his friend Tara Brown to Stewart for representation in her divorce action. Brown was nine months pregnant and unable to work, and her fiancé was in jail. The detective, who was also a friend of Stewart’s, suggested to Stewart that he represent Brown in her uncontested divorce in exchange for sexual favors. Stewart and Brown had telephone conversations in which they discussed the divorce and a sexual relationship. Brown then decided she would not hire Stewart and contacted Judge Hayes of Henry County about the sexual nature of the discussions with Stewart. As a result of this conversation, undercover police officers set up a recording device on Brown’s telephone and in her home. Brown continued to have telephone conversations with Stewart and he ultimately agreed to represent her in her uncontested divorce in exchange for sexual encounters. Brown and Stewart never engaged in any sexual activity and Stewart never represented Brown in her divorce. Stewart was arrested and pled guilty to a misdemeanor charge of solicitation of sodomy. His license to practice law was suspended upon the entry of his guilty plea. Brown subsequently filed a civil suit against Stewart.
Based on these facts, we agree that discipline under Rule 8.4 is appropriate. The maximum punishment for a violation of this rule is disbarment and this Court has previously stressed to the bar that extramarital relationships with clients are inappropriate. See In the Matter of Lewis, 262 Ga. 37, 415 S.E.2d 173 (1992). However, in this case the Special Master found significant mitigating circumstances, including the fact that no sexual activity occurred and Stewart did not pressure Brown, but instead repeatedly suggested that they forget the matter. Additionally, Stewart participated in counseling, acknowledged the wrongfulness of his conduct, and showed remorse. Also, Stewart has received a criminal sanction and punishment for his conduct. Finally, prior to this incident, Stewart had an excellent reputation in the legal community and had no prior disciplinary infractions.
(Mike Frisch)