Carlson, Matter of

• Decision Date: 15 September 1997
• Docket Number: No. S96Y1021,S96Y1021
• Citation: 268 Ga. 335,489 S.E.2d 834
• Parties: , 97 FCDR 3401 In the Matter of Kenneth Raymond CARLSON.
• Court: Georgia Supreme Court

Page 834

489 S.E.2d 834

268 Ga. 335, 97 FCDR 3401

In the Matter of Kenneth Raymond CARLSON.

No. S96Y1021.

Supreme Court of Georgia.

Sept. 15, 1997.

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

Kenneth Raymond Carlson by Chase Ingersoll, Peoria, for Kenneth Raymond Carlson.

PER CURIAM.

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. ¹ As a result, the State Bar has charged Carlson with violating Standard 66 ² of Bar Rule 4-102(d). Although Carlson made support payments periodically, he amassed a substantial arrearage ($43,000) while he was suffering from bi-polar manic depression and alcoholism. At the time of the hearing before the special master, Carlson was undergoing long-term treatment at a Veterans' Administration hospital. Carlson admits his conviction, but denies he violated Standard 66.

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 would subject him to discipline under the laws of this state; therefore, we conclude, contrary to the special master, that Carlson's conviction constitutes a violation of Standard 66. Accordingly, we decline to follow the special master's recommendation that Carlson not be suspended or otherwise disciplined. After consideration of the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) and the mitigating factors of Carlson's alcoholism and diagnosed psychiatric disorder, we also reject the harshest penalty of disbarment advocated by the State Bar.

We find it appropriate to suspend Carlson from the practice of law in this state for twelve 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. ³

Suspension.

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

SEARS, Justice, 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]." ⁴ Because Carlson's conduct would not constitute a felony under the laws of this State, but would constitute a misdemeanor under Georgia's most comparable crime of abandonment, ⁵ it is necessary to determine whether the Kentucky felony should be treated as a felony or a misdemeanor for purposes of Standard 66. I conclude that, when a member of the Bar of this State is convicted of a felony under the laws of a sister State, that crime generally should be treated as a felony under Standard 66.

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. ⁶ Second, analyzing whether a felony committed in another state is most comparable to a felony or misdemeanor in Georgia is unnecessary and cumbersome and could serve to undermine public confidence in both the integrity of attorneys and the disciplinary process. In this regard, in In the Matter of David Wayne Williams, ⁷ when we interpreted Standard 66 to authorize punishment for the conviction of a felony even if it did not involve moral turpitude, we stated that this interpretation of Standard 66 "was appropriate because, in general, public confidence in the integrity of an attorney is undermined by a lawyer's conviction of a felony." ⁸ Because an attorney's conviction of a felony under the laws of another State generally will undermine public confidence in the integrity of the attorney to the same extent as the attorney's conviction of a felony in Georgia, I would adopt the general rule that a felony conviction in another State should be treated as a felony for purposes of Standard 66. I acknowledge, however, that this general rule should be subject to exceptions if compelling reasons exist to treat it as another type of offense or even as no offense at all. In this case, however, I find no public policy concerns or other compelling reasons for not treating the Kentucky felony of flagrant nonsupport as a felony for purposes of Standard 66. Accordingly, I have treated it as a felony.

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), ⁹ this Court has viewed physical and mental disabilities or impairments as mitigating factors in disciplinary proceedings. ¹⁰ In this case, Carlson's disabling alcoholism and his diagnosed severe psychiatric disorder are mitigating factors because they have affected Carlson's ability to function and earn a living.

Without diminishing the seriousness of Carlson's offense or the harm that it has caused to his minor children and his former spouse, I find, for the foregoing reasons, that the level of discipline imposed by this Court is appropriate.

HINES, Justice, 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. ¹¹ The special master correctly noted Georgia does not have a direct equivalent of Kentucky's crimes for failure to pay child support, ¹² and found our state's crime of abandonment, generally a misdemeanor, OCGA § 19-10-1, most comparable. ¹³ Carlson pled guilty to flagrant nonsupport, the elements of which include persistently failing to provide support which the parent reasonably could have provided, and which the parent knew he had a duty to provide. Because such conduct would authorize a finding of contempt, as well as the crime of abandonment, we must recognize Kentucky's criminalization of nonpayment of child support for purposes of this disciplinary proceeding.

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. ¹⁴ In the context of disciplinary proceedings, crimes of moral turpitude are limited to those which relate to a lawyer's fitness to practice law, including crimes involving violence, dishonesty, breach of trust, or serious interference with the administration of justice. ¹⁵ Because Carlson's conduct would not constitute a felony under Georgia law, ¹⁶ it should not be viewed as such for purposes of determining the propriety and extent of discipline. Instead, because the Kentucky crime of flagrant nonsupport is similar to our crime of abandonment, generally a misdemeanor, the Kentucky crime should be treated as a misdemeanor in this proceeding. Accordingly, discipline is appropriate if Carlson's 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. ¹⁷ The act of contravening a court order is conduct which directly bears on an attorney's fitness to practice law. Thus, discipline is not only appropriate, but essential to ensure the integrity of the profession and to protect the public from a lawyer who is engaging in unprofessional conduct.

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 Carlson be disbarred. Even the Kentucky sentencing court acknowledged that disbarment was not warranted and that Carlson should have a chance at...