In re Calhoun
| Docket Number | S23Y1160 |
| Decision Date | 07 November 2023 |
| Parties | IN THE MATTER OF W. McCALL CALHOUN, JR. |
| Court | Georgia Supreme Court |
This disciplinary matter is before the Court on the report and recommendation, issued after a show cause hearing pursuant to Rule 4-106 of the Georgia Rules of Professional Conduct (the "Rules"), of Special Master LaRae Dixon Moore, who recommends that W. McCall Calhoun, Jr. (State Bar No 103915), a member of the State Bar of Georgia since 1990, be suspended from the practice of law pending the outcome of the appeal of his federal court felony and misdemeanor judgments of guilt related to his participation in the events of January 6, 2021 at the United States Capitol. The Special Master's recommendation is based on her finding that Calhoun violated Rules 8.4 (a) (2) and (3) found in Bar Rule 4-102 (d).
The maximum penalty for violating Rules 8.4 (a) (2) and (3) is disbarment.
Calhoun filed exceptions to the Special Master's report and recommendation, and the State Bar responded. Having now undertaken our own review of the record, we agree that suspension from the practice of law pending the outcome of Calhoun's appeal is appropriate.
In her report, the Special Master laid out the underlying facts as follows. On March 20, 2023, in connection with the January 6 2021 "breach and siege of the U.S. Capitol" following the 2020 Presidential Election, Calhoun, following a bench trial, was found guilty of the following criminal offenses: (1) 18 USC § 1512 (c) (2) and 18 USC § 2, obstruction of an official proceeding before Congress, a felony[1]; (2) 18 USC § 1752 (a) (1), entering and remaining in a restricted building or grounds, a misdemeanor; (3) 18 USC § 1752 (a) (2), disorderly and disruptive conduct in a restricted building or grounds, a misdemeanor; (4) 40 USC § 5104 (e) (2) (D), disorderly conduct in a Capitol building, a misdemeanor; and (5) 40 USC § 5104 (e) (2) (G), parading, demonstrating, or picketing in a Capitol building, a misdemeanor. Calhoun had not been sentenced at the time the Special Master issued her report.
Additionally, we note that Calhoun testified at the show cause hearing[2] that: (1) he was present at the United States Capitol on January 6; (2) he went into the Capitol building; (3) he understood that he could be "charged with some type of trespass," but he engaged in the conduct because "civil rights [were] at stake," and he believed he was exercising peacefully his First Amendment rights, and therefore he would "take a misdemeanor for the cause"; (4) he did not break anything, open any doors that were not open, or engage in violence; and (5) when asked if he had remorse for his conduct, he responded "[w]hy would I have remorse?"
The Special Master recounted the relevant Rules as follows. It is a violation of Rule 8.4 (a) (2) for a lawyer to "be convicted of a felony." It is a violation of Rule 8.4 (a) (3) for a lawyer to "be convicted of a misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer's fitness to practice law." Rule 8.4 (b) (1) provides that, for purposes of Rule 8.4, "conviction" shall have the meaning set forth in Rule 1.0 (e), and Rule 8.4 (b) (2) provides that the record of a conviction or disposition in any jurisdiction based upon a guilty plea, a plea of nolo contendere, a verdict of guilty, a verdict of guilty but mentally ill, or imposition of first offender probation shall be conclusive evidence of such conviction or disposition and shall be admissible in proceedings under the Rules. Rule 1.0 (e) provides that "conviction" or "convicted" denotes any of the following accepted by a court, whether or not a sentence has been imposed: "(1) a guilty plea; (2) a plea of nolo contendere; (3) a verdict of guilty; (4) a verdict of guilty but mentally ill; or (5) a plea entered under the Georgia First Offender Act, OCGA § 42-8-60 et seq., or a substantially similar statute in Georgia or another jurisdiction."
The Special Master then considered and rejected three specific arguments raised by Calhoun. As to Calhoun's argument that suspending him now would deprive his current clients of their choice of counsel, the special master stated that "[t]he right to counsel does not mean the right to the counsel of one's own choosing in every situation." In the Matter of Stoner, 246 Ga. 581, 582 (272 S.E.2d 313) (1980).
Next, the Special Master addressed Calhoun's argument that there is no evidence that he violated Rule 8.4 because, under the language of Rule 1.0 (e), the only definition of "conviction" that could apply to him is a "verdict of guilty," and verdicts are rendered by a jury, whereas Calhoun was found guilty by the court following a bench trial. The Special Master found this argument unavailing for two reasons: (1) the definition found in Rule 1.0 (e) is not exclusive, as it illustrates dispositions that fall within the definition of "conviction" but leaves the definition open to dispositions that are not mentioned; and (2) Calhoun's reading of the Rule is inconsistent with the history and purpose of the Rule because, by Calhoun's logic, a lawyer accused of a crime could avoid disciplinary consequences simply by asking for a bench trial instead of a trial by jury.
Finally, the Special Master responded to Calhoun's argument that his conduct would not have been a felony if it had been committed in Georgia-see OCGA § 16-11-34.1, titled "Disruption of the Senate or House of Representatives" and the violation of which is a misdemeanor-meaning only Rule 8.4 (a) (3) applies and the State Bar must prove that his underlying conduct involved both moral turpitude and was related to the practice of law. In response, the Special Master stated that whether the conduct for which Calhoun was convicted would have been a misdemeanor had he committed it in Georgia was irrelevant to the matter at hand, citing Rule 4-106 (g) (). According to the Special Master, the Rules are clear that all that is required for a violation of 8.4 (a) (2) is a felony conviction, regardless of where it was obtained; the offense need not involve moral turpitude or reflect on the lawyer's fitness to practice.[3]
Thus, the Special Master found that Calhoun had been convicted of a felony and several misdemeanors in violation of Rules 8.4 (a) (2) and (3). Accordingly, the Special Master recommended that Calhoun be suspended from the practice of law pending the outcome of the appeal of his convictions.
Calhoun filed exceptions to the Special Master's report and recommendation, asserting four main arguments. First, Calhoun argues that the Special Master's conclusion that he violated Rules 8.4 (a) (2) and (3) was error. Calhoun argues that the judgment finding him guilty of certain crimes does not constitute a "conviction" for purposes of the Rules because it was the result of a bench trial, not a jury trial. Calhoun argues that the definition of "conviction" and "convicted" in Rule 1.0 (e) defines those terms only as including pleas and verdicts, and here, there was no plea and no verdict. In support of this proposition, Calhoun cites Woodham v. State, 253 Ga.App. 112, 113 (558 S.E.2d 454) (2001) ( ). Calhoun also asserts that there is no support for the Special Master's conclusion that the list under Rule 1.0 (e) is non exhaustive. Calhoun concludes that a judgment of guilty entered after a bench trial, having not been included in Rule 1.0 (e)'s list of final dispositions constituting "convictions," is excluded from the definition and cannot form the basis for a violation of Rules 8.4 (a) (2) or (3).
Calhoun argues that the Special Master's finding that he is in violation of Rule 8.4 (a) (3) is wrong because the Special Master did not analyze whether his misdemeanors involved "moral turpitude" or underlying conduct related to his fitness to practice law. Rule 8.4 (a) (3).
Next, Calhoun argues that he cannot be disciplined for committing a felony based on conduct that amounts to only a misdemeanor under Georgia law. See OCGA § 16-11-34.1 (a), (h) (1) (providing that "[i]t shall be unlawful for any person recklessly or knowingly to commit any act which may reasonably be expected to prevent or disrupt a session or meeting of the Senate or House of Representatives" and that the first violation of the statute is a misdemeanor). Calhoun contends that nothing in the law of the jurisdiction where a conviction is had should control over the laws of Georgia, and thus the Special Master erred in determining that he can be disciplined under Rule 8.4 (a) (2) for a crime that is punishable in Georgia only as a misdemeanor.
Next Calhoun argues that the Special Master ignored Comment [5] to Rule 8.4. Comment [5] to Rule 8.4 provides that Calhoun argues that, to the extent he committed a trespass in entering the Capitol, his actions were nonetheless protected as peaceful political protest in good faith and in defense of civil rights. Calhoun states that his good faith belief meets the subjective standard under...
To continue reading
Request your trial