Brooks, Matter of, S94Y1159

• Decision Date: 31 October 1994
• Docket Number: No. S94Y1159,S94Y1159
• Citation: 449 S.E.2d 87,264 Ga. 583
• Parties: In the Matter of James L. BROOKS.
• Court: Georgia Supreme Court

Page 87

449 S.E.2d 87

264 Ga. 583

In the Matter of James L. BROOKS.

No. S94Y1159.

Supreme Court of Georgia.

Oct. 31, 1994.

William P. Smith, III, Gen. Counsel and E. Duane Cooper, Asst. Gen. Counsel, State Bar of Georgia, Atlanta, for the State Bar.

George E. Hibbs, Morris, Manning & Martin, Atlanta, Edward D. Tolley, Cook, Noell, Tolley & Aldridge; and Jim Hudson, Hudson & Montgomery, Athens, for James L. Brooks.

J. Michael Brown, Atlanta.

PER CURIAM.

This disciplinary action concerns the level of discipline to impose on James L. Brooks for violating Standard 66 of State Bar Rule 4-102(D). Brooks requests a six months' suspension from the practice of law; the State Bar seeks disbarment. Rejecting both recommendations, we suspend Brooks from the practice of law for three years.

Brooks, a former superior court judge, pled nolo contendere to six counts of sexual battery and four counts of simple battery based on incidents that occurred while he served as judge. We previously held that the misdemeanor offense of sexual battery, as defined by OCGA § 16-6-22.1, is a crime involving moral turpitude in violation of Standard 66. ¹ In the Matter of James L. Brooks, 263 Ga. 530, 436 S.E.2d 493 (1993). Because the special master's recommendation of a six months' suspension was made prior to our 1993 decision, we remanded the case to the Review Panel of the State Disciplinary Board for reconsideration of the penalty. The Review Panel concluded that the number of crimes involved and Brooks' position as a judge were aggravating factors that his age, health, and past record did not offset. On its fifth vote, the Review Panel voted 13-4 to recommend the disbarment of Brooks.

The primary purpose of a disciplinary action is to protect the public from attorneys who are not qualified to practice law due to incompetence or unprofessional conduct. See In the Matter of Nicholson, 243 Ga. 803, 807, 257 S.E.2d 195 (1979). As this court stated in Nicholson, "[t]he confidence of the public cannot be maintained if a member of the bar is allowed to practice after having been convicted of a wilful failure to obey the law in such a sensitive area." Id. Each case must be decided on its own facts. In the Matter of Dowdy, 247 Ga. 488, 493, 277 S.E.2d 36 (1981).

We agree with the special master that Brooks violated his position of public trust as a judge and disregarded his professional obligations as a lawyer. Judges are obligated to maintain a high standard of conduct because an "independent and honorable judiciary is indispensable to justice in our society." Georgia Code of Judicial Conduct, Canon 1. A judge's duty to conduct himself in a manner befitting his office is not limited to the hours spent presiding over court. See In re Kivett, 309 N.C. 635, 309 S.E.2d 442 (1983). By engaging in the unwanted touching of a sexual nature against several women, including county employees, Brooks abused his position of power as the chief judge of his judicial circuit. He also violated a lawyer's responsibility to maintain a high standard of professional conduct that exemplifies respect for the law. Given Brooks' misconduct while in office, a more severe sanction should be imposed than the six months' suspension that he proposes.

Yet, Brooks presents mitigating factors that suggest the State Bar's recommendation of disbarment also should be rejected. As a member of the State Bar of Georgia for over 40 years and a judge for 16 years, Brooks has had no prior judicial or state bar disciplinary actions. He has admitted his misconduct, left his judicial office, agreed not to seek service as a senior judge, and provided restitution to the victims in the form of counseling costs. His remorse, advancing age, and deteriorating health at the time of his wrongdoing are additional factors that suggest a long-term suspension will adequately protect both the public and the profession.

Based on the record in this case, this court orders that James L. Brooks be suspended from the practice of law in Georgia for three years. Since Brooks states that he closed his law practice in May 1993, he need only certify to this court that he has satisfied the requirements of State Bar Rule 4-219(c).

Suspended.

All the Justices concur, except HUNSTEIN and THOMPSON, JJ., who dissent.

SEARS, Justice, concurring.

Without a doubt, former Judge James L. Brooks committed offenses totally unbefitting a lawyer, much less a judge. Further aggravating his crimes is the fact that he did so while occupying a position of considerable authority and utmost trust. For this Brooks has been rightfully condemned.

At this phase in the various proceedings that have been instituted against Brooks, however, it is the duty of this Court not to sit as a court of morality and inflict punishment on Brooks solely because of the nature of his offenses, but rather to muster the moral courage required to sit as a court of law and soberly determine the appropriate punishment based, not just on the nature of the offenses, but also on the particular facts of the case and the character and circumstances of the admitted perpetrator. See In the Matter of Dowdy, 247 Ga. 488, 493, 277 S.E.2d 36 (1981). In so doing, this Court must resist the temptation to abdicate our role as judges by allowing ourselves to focus only on the offenses for which Brooks has been convicted because the offenses happen to be currently sensitive either politically or socially. Judges must be strong enough and resilient enough to remain standing amidst the great tides and currents of public sentiment that often engulf our society when to do so is right.

To suspend Brooks from the practice of law for three years is the right thing to do.

Of course that does not mean that I can not conceive of an instance in which a lawyer, particularly a judge, convicted of sexual battery should be disbarred for such conduct. However, in this case I believe that the majority is correct in light of the following:

1. Brooks was allowed to plead nolo contendere to sexual battery and has been sentenced to thirty-six months of probation;

2. The acceptance of Brooks's nolo contendere plea was conditioned upon his leaving the superior court bench;

3. The acceptance of Brooks's nolo contendere plea was conditioned upon his not seeking senior-judge status;

4. Brooks has been fined $3000;

5. Brooks has been ordered to pay up to $2800 in psychological counseling for the victims of his crimes;

6. Brooks is an elderly man who has practiced law in Georgia for over 40 years, during which time he had an unblemished disciplinary record, until now, of course;

7. Brooks's crimes, although egregious, do constitute misdemeanors in this state, not felonies;

8. The record available to this Court for review reveals absolutely nothing about the particulars of Brooks's various offenses; and

9. The review panel initially recommended a six-month suspension for Mr. Brooks, based on the same facts which ultimately led to its recommendation of disbarment.

The above punishment, plus a three-year suspension from the practice of law, would appear to impose a substantial and sufficient penalty, particularly in light of Brooks's age and infirmities. From the facts that have been made available to us, there is little to justify taking the last vestige of professional dignity from Brooks. As offended as I am by the former Judge's conduct, it is my view that the death knell of disbarment ought not toll for this man.

HUNSTEIN, Justice, dissenting.

I dissent to the majority's decision to reject the Review Panel's recommendation of disbarment in order to impose a mere three-year suspension on James L. Brooks, a convicted sex offender who committed acts of sexual battery against five women over a twenty-three month period in the three counties that comprise the judicial circuit where Brooks served as chief judge. The facts of this case amply support the Review Panel's recommendation and clearly warrant a more severe punishment than a three-year suspension, the same punishment ordered by this Court in regard to private-sector attorneys who pled nolo contendere to a charge of theft by receiving stolen property, see In the Matter of Freeman, 261 Ga. 821, 411 S.E.2d 874 (1992), or who engaged in a sexual relationship with one client where the evidence failed to reflect that the sexual contact was nonconsensual. See In the Matter of Lewis, 262 Ga. 37, 415 S.E.2d 173 (1992).

The facts are uncontroverted. Brooks, while serving as chief judge of the Piedmont Judicial Circuit, pled nolo contendere to six counts of sexual battery. The prolonged pattern of Brooks' criminal behavior is amply demonstrated by the record. Brooks sexually battered:

A woman in Jackson County between September 23 and October 31, 1990;

A woman in Barrow County between July 8, 1991 and August 5, 1992;

Another woman in Jackson County on January 28, 1992;

A woman in Banks County between February 1 and February 28, 1992;

Another woman in Barrow County between June 8 and June 9, 1992;

The above-mentioned woman again in Jackson County on July 24,...