Cushway v. State Bar

• Decision Date: 04 September 1969
• Docket Number: 2,3,Nos. 1,No. 44461,44461,s. 1
• Parties: Bert C. CUSHWAY v. STATE BAR of Georgia
• Court: Georgia Court of Appeals

Page 732

170 S.E.2d 732

120 Ga.App. 371

Bert C. CUSHWAY v. STATE BAR of Georgia.

No. 44461.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Sept. 4, 1969.

Rehearing Denied Sept. 24, 1969.

Certiorari Denied Nov. 12, 1969.

Syllabus by the Court

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.

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 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 Disciplinary 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 Disciplinary 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 accruate 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 Disciplinary 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.

Thomas H. Antonion, Atlanta, for appellant.

Mallory C. Atkinson, Macon, Alexander Cocalis, Atlanta, for appellee.

EBERHARDT, Judge.

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 exceptions to the report of the State Disciplinary Board or deny an extension of time for the filing of additional exceptions beyond the time prescribed for the filing of such exceptions. State Bar of Georgia 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 where evidence is introduced, 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...