In re Temple
| Decision Date | 17 October 2016 |
| Docket Number | S16Y1710 |
| Citation | 299 Ga. 854,792 S.E.2d 322 |
| Parties | In the MATTER OF Joanna TEMPLE. |
| Court | Georgia Supreme Court |
Paula J. Frederick, Gen. Counsel State Bar, Jonathan W. Hewett, Asst. Gen. Counsel State Bar, for State Bar of Georgia.
This disciplinary matter is before the Court for the second time. This Court rejected the first petition for voluntary discipline filed by Joanna Temple (State Bar No. 701805), which sought a one-year suspension with conditions for her admitted violations of Rules 1.2 (d) and 8.4 (a) (3) of the Georgia Rules of Professional Conduct, found in Bar Rule 4–102 (d). See In the Matter of Temple , 299 Ga. 140, 786 S.E.2d 684 (2016). Temple now seeks a four-year suspension with conditions for those violations. Again, we reject Temple's request for voluntary suspension.
As in her first petition, Temple, who became a member of the Bar in 1990, admits she entered a guilty plea in New York to a misdemeanor violation of attempted criminal usury in the second degree; the plea arose out of her role as counsel for payday lending companies, in which she advised those companies and their employees intentionally to violate New York's criminal usury laws. The plea hearing transcript, which Temple attached to her petition, shows that for over five years she instructed and encouraged her payday lending clients intentionally to violate certain state lending laws, including New York's usury statutes, and assisted them in doing so. She was sentenced to a conditional discharge for one year, subject to performing 250 hours of community service. She admits that by this conduct, she has violated Rules 1.2 (d) and 8.4 (a) (3), the maximum sanction for which is disbarment.
In mitigation, Temple offers that she has no prior disciplinary record in Georgia or Tennessee, where she was also licensed to practice law,1 and that she has cooperated with the State Bar in this matter. She states that she has not practiced law since December 15, 2015, and asks that the Court impose a four-year suspension, retroactive to that date, but subject to the conditions that she provide proof to the Bar that she has fulfilled her New York sentence, and that she maintains the payment of all license fees and continuing legal education fees accruing throughout her suspension.
In this Court's earlier order, we noted that the cases cited by the State Bar in support of its recommendation that we accept the voluntary request for one-year suspension were distinguishable from this matter. Those cases, in which one-year to thirty-month suspensions were imposed, did not involve conduct that involved using the attorney's position as a lawyer to assist her clients in violating the law. See In the Matter of Davis , 292 Ga. 897, 742 S.E.2d 734 (2013) (); In the Matter of Schrader , 271 Ga. 601, 523 S.E.2d 327 (1999) (). This matter involves the attorney's instructing and encouraging her clients intentionally to violate criminal laws over a period of years. Here, the attorney improperly counseled clients to engage in conduct she admits she knew was criminal and fraudulent, and she knowingly assisted the client in such conduct, in violation of Rule 1.2 (d).2
This Court will not follow the lead of the Tennessee Supreme Court to accept a four-year voluntary surrender of license. See footnote 1, supra. Despite the absence of a previous disciplinary history, counseling a client to engage in fraudulent criminal conduct is precisely the type of attorney conduct that supports a greater sanction than that sought. This conduct did not simply involve criminal conduct by the attorney but involved using the attorney's position as a lawyer to assist her clients in violating the law, and thus undermines public confidence in the Bar. This case bears similarities to In the Matter of Gardner , 286 Ga. 623, 690 S.E.2d 611 (2010), in which the attorney admitted facilitating and concealing mortgage fraud, and this Court accepted the attorney's voluntary surrender of license. It is distinguishable from In the Matter of Suttle , 288 Ga. 14, 701 S.E.2d 154 (2010) (Carley, P.J., Thompson and Nahmias, JJ., dissenting), cited by the State Bar in its response to this petition, which imposed a two-year suspension upon Gardner's co-defendant in the criminal proceeding against them.3 The Suttle opinion referenced the facts that Suttle was a young lawyer who did not prepare the closing documents used in the fraudulent real estate transactions, that he was not the closing lawyer scheduled to preside at the closings but was called in on short notice, that nothing on the face of the documents indicated mortgage fraud, and that he was arrested before the closing was completed in a manner that would have revealed the fraud to him. Note also that Suttle pleaded guilty under North Carolina v. Alford ,4 and continued to assert his actual innocence to the criminal charges.5 Similar facts do not exist in this case, in which the respondent entered an unconditional plea and admits in this disciplinary proceeding that she was guilty of the crimes for which she was sentenced. See also In the Matter of Vickers , 291 Ga. 354, 729 S.E.2d 355 (2012), also involving a lawyer convicted of mortgage fraud, in which this Court imposed the discipline of disbarment in an opinion noting that the convictions arose out of the practice of law and distinguishing the facts of that case from those in Suttle which, we noted, involved circumstances warranting leniency.
Quoting our opinion rejecting Temple's previous petition for voluntary discipline, "[h]aving carefully considered the petition, response, and the very serious professional misconduct to which Temple has admitted, we cannot agree that a [four-year] suspension is the...
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In re Temple, S17Y0496
...4–102 (d), see In the Matter of Temple , 299 Ga. 140, 786 S.E.2d 684 (2016) (rejecting one-year suspension); In the Matter of Temple , 299 Ga. 854, 792 S.E.2d 322, 323 (2016) (rejecting four-year suspension because "counseling a client to engage in fraudulent criminal conduct is precisely t......