Turk, Matter of
| Decision Date | 17 June 1996 |
| Docket Number | No. S96Y0673,S96Y0673 |
| Citation | 267 Ga. 30,471 S.E.2d 842 |
| Parties | In the Matter of Alfred J. TURK III. |
| Court | Georgia Supreme Court |
William P. Smith, III, General Counsel, Marie L. McCarthy, Asst. Gen. Counsel, Atlanta, for State Bar of Georgia.
Alfred J. Turk, III, Atlanta, pro se.
James B. Durham, Chairperson, Review Panel, Brunswick, for other interested parties.
The State Bar filed a complaint against Alfred J. Turk III, alleging his violation of the following standards of Bar Rule 4-102: Standard 22 (improper withdrawal from employment); Standard 23 (failure to make prompt refund of unearned fees upon withdrawal from employment); and, Standard 44 (wilful abandonment of a legal matter). The complaint was served personally and it specifically notified Turk of his obligation to file a response within 30 days. However, Turk did not file any response for 49 days. Moreover, he neither sought an extension of time to file his answer pursuant to Bar Rule 4-212(a) nor filed a motion to set aside his default. Following a hearing at which Turk appeared, the special master found him to be in default. The Review Panel agreed with the special master's findings of fact, but concluded that Turk's explanations for his default, although "not powerfully compelling," were sufficient to establish a "proper case" for opening default under OCGA § 9-11-55(b). We do not agree with the Review Panel that the circumstances present a "proper case" for opening Turk's default and, based upon the violations established by default in this case, as well as Turk's history and pattern of disciplinary infractions, we order him disbarred from the practice of law in this state.
1. OCGA § 9-11-55(b) applies in disciplinary proceedings. See In the Matter of Perkins, 255 Ga. 176, 336 S.E.2d 254 (1985); Bar Rule 4-221(e)(2). Thus, in order to authorize the opening of Turk's default, he must show "providential cause," "excusable neglect" or a "proper case." Turk does not rely upon the ground of "providential cause," but urges that the circumstances establish either the "excusable neglect" or the "proper case" ground for opening his default. He offers the following as factors contributing to his failure to answer: personal problems; numerous office moves resulting in disruption of his mail service; improper calendaring of the response date; misunderstanding of the bar rules; and, his preoccupation with a prior disciplinary proceeding. However, there is no merit whatsoever in Turk's claim that the Bar Rules regarding the answer to a formal complaint are vague and, as noted by the special master, his other explanations do not establish a reasonable excuse for failing to answer, such as would authorize opening the default for "excusable neglect." See Womack Industries, Inc. v. Tifton-Tift County Airport Authority, 199 Ga.App. 237(2), 404 S.E.2d 618 (1991) (); U.S. Xpress, Inc., v. W. Timothy Askew & Co., 194 Ga.App. 730, 391 S.E.2d 707 (1990) ().
The "proper case" ground is broader than that of "excusable neglect," but it is not so broad as to authorize the opening of a default for any reason whatsoever. Its purpose is to permit the "reaching out ... in every conceivable case where injustice might result if the default were not opened." Axelroad v. Preston, 232 Ga. 836, 837(1), 209 S.E.2d 178 (1974). Under OCGA § 9-11-55(b), the determination of whether a "proper case" exists is a matter within the trial court's discretion. Because of our inherent and exclusive power to regulate the practice of law, it is this court that must exercise the ultimate discretion in disciplinary proceedings. See Scanlon v. State Bar of Georgia, 264 Ga. 251, 252, 443 S.E.2d 830 (1994). Cf. In the Matter of Lasonde, 260 Ga. 843, 400 S.E.2d 322 (1991).
In determining whether this is a "proper case," we note, as did the special master, that, although Turk alleged a disruption in the service of his mail as a contributing factor in his default, the complaint was served personally on him and clearly stated his obligation to answer within 30 days. After...
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