The Bar maintains that disbarment is the appropriate sanction. See In the Matter of Hunt, 304 Ga. 635, 636-637, 641-644, 820 S.E.2d 716 (2018) (accepting special master’s recommendation and disbarring attorney who stole client funds from his trust account and converted them to his own use and the aggravating factors outweighed the mitigating factors). In response, Crowther argues that the Board correctly reweighed the aggravating and mitigating factors because when he was hired by the client in SDBD No. 7390 in 2007, he had little experience with the trust accounting rules; that Hunt is distinguishable because that attorney intentionally stole client funds but here, Crowther believed he was entitled to a portion of the settlement funds for his attorney fees and expenses; and that his violations of the trust accounting rules were merely negligent instead of intentional, but he has remedied those deficiencies and he promptly paid the financing company’s liens in SDBD No. 7134 once he became aware of them.
The Bar argued below that the special master improperly credited Crawford's restitution of the registry funds as mitigating evidence, contending that the record showed that restitution was only made after the initiation of the JQC proceedings and at the behest of the JQC. See In the Matter of Brantley, 311 Ga. 61, 65 (855 S.E.2d 625) (2021) (stating that "[t]he fact that [Brantley] has made restitution carries no mitigating weight given that she did so only after the initiation of disciplinary proceedings"); In the Matter of Hunt, 304 Ga. 635, 641642 (820 S.E.2d 716) (2018) (noting that restitution was not mitigating because it had been ordered by a judge and citing ABA Standard 9.4 (a), which provides that forced or compelled restitution is neither aggravating nor mitigating). Because we conclude that a three-year suspension is the appropriate discipline in this matter regardless of whether this mitigating factor was properly credited in Crawford's favor, we pretermit the question in this matter.
However, we conclude that Melnick’s payment of money to his client is not a mitigating factor because he did not make any good faith effort to make restitution or rectify the consequences of his actions until after his client hired new counsel to investigate a malpractice claim and had filed a grievance with the Bar. See In the Matter of Hunt, 304 Ga. 635, 641, 820 S.E.2d 716 (2018) (repayment not considered mitigating factor where attorney replaced the funds he took only after his conversion of the funds was discovered and he had been ordered to appear before judge on the matter). Melnick asserts that this Court should consider in mitigation that he did not act with a dishonest or selfish motive, that he was cooperative with the disciplinary authorities, and that there was a delay in the proceedings given that the allegations at issue happened over five years ago.
However, we do not agree with the Review Board’s conclusion, because this is not a limitation we have previously recognized and we see no reason to do so here given the multiple misstatements that Stephens made to the trial court over a four-year period. See, e.g., In the Matter of Coulter, 304 Ga. 81, 85, 816 S.E.2d 1 (2018) (special master determined that facts demonstrated a pattern of misconduct under ABA Standard 9.22 (c), where attorney committed multiple violations of trust account rules in relation to a single client); In the Matter of Hunt, 304 Ga. 635, 642, 820 S.E.2d 716 (2018) (special master determined that attorney engaged in pattern of misconduct, see ABA Standard 9.22 (c), pointing to his admission of multiple withdrawals of children’s money from trust account for improper purposes). [4] In addition, the Review Board appears to have agreed with Stephens that ABA Standard 9.32 (d) (rectifying the consequences of misconduct) should apply.
The ABA Standards are "generally instructive as to the question of punishment," though "they are not controlling." Id. See also In the Matter of Hunt, 304 Ga. 635, 640, 820 S.E.2d 716 (2018) ("[T]his Court relies on the [ABA Standards] for general guidance in determining the appropriate level of discipline"); In the Matter of Morse, 266 Ga. 652, 653, 470 S.E.2d 232 (1996) ("[W]e look to the American Bar Association’s standards for guidance in determining the appropriate sanction to impose."). Ultimately, "the level of punishment imposed rests in the sound discretion of this Court."
. See also, e.g., In theMatter of Hunt , 304 Ga. 635, 820 S.E.2d 716 (2018) (concluding that disbarment was appropriate where multiple aggravating factors existed and the attorney, who was entrusted with a minor's settlement proceeds, spent the entire sum on personal and business expenses); In theMatter of Wathen , 290 Ga. 438, 721 S.E.2d 899 (2012) (holding that disbarment was appropriate where no mitigating factors and numerous aggravating factors were found, and the attorney settled a claim without the client's authority and converted the settlement proceeds for the attorney's personal use). The Special Master concluded that, in marked contrast, where the totality of the circumstances supported less severe discipline, this Court has without hesitation imposed a suspension or reprimand for trust account violations.
ABA Standard 9.22 (k). See In theMatter of Hunt , 304 Ga. 635, 643, 820 S.E.2d 716 (2018) (reciting that the Special Master had concluded that ABA Standard 9.22 (k) applied where "[b]ased on the admitted facts, a case of theft by fiduciary would not be difficult to prove"). Indeed, as the Special Master noted, based on the admitted facts, "the potential laundry list of criminal charges [Fagan] could have, and may still face, is substantial," and it is not clear to this Court why Fagan apparently has not been criminally prosecuted.
The fact that she has made restitution carries no mitigating weight given that she did so only after the initiation of disciplinary proceedings. See In theMatter of Hunt , 304 Ga. 635, 641-642, 820 S.E.2d 716 (2018) (citing ABA Standard 9.4 (a), which provides that forced or compelled restitution is neither aggravating nor mitigating); In theMatter of Thomson , 266 Ga. 157, 158 (1) n.1, 464 S.E.2d 818 (1996) (restitution in response to court order was not mitigating). And while Brantley also cites in mitigation that she "has cooperated with the State Bar" in submitting her petition and that she "expresses sincere remorse," these assertions ring somewhat hollow in the context of Brantley's lengthy delay in accepting responsibility for her misconduct here.
Having considered the record, we agree that disbarment is the appropriate sanction in this matter. See In theMatter of Hunt , 304 Ga. 635, 635-638, 644, 820 S.E.2d 716 (2018) (disbarring attorney with prior disciplinary history for violating Rules 1.15 (I), 1.15 (II), and 8.4 (a) (4), related to attorney's misuse of funds he was entrusted with as part of his representation of a client and her two sons); In theMatter of Harris , 301 Ga. 378, 379-380, 801 S.E.2d 39 (2017) (disbarring attorney for violating Rules 1.15 (I) and 1.15 (II), where attorney misappropriated trust funds and commingled those funds with his own and offered no explanation for his conduct); In theMatter of Rose , 299 Ga. 665, 666, 791 S.E.2d 1 (2016) (disbarring attorney for violating Rules 1.15 (I), 1.15 (II), and 8.4 (a) (4), where attorney misused funds he was entrusted with as part of a real estate closing). Accordingly, it is hereby ordered that the name of David R. Sicay-Perrow be removed from the rolls of persons authorized to practice law in the State of Georgia.
2017-06-30 IN THE MATTER OF RICHARD ALLEN HUNT. (802 SE2d 243) Per curiam.