Georgia State Board of Pharmacy v. Lovvorn

336 S.E.2d 238, 255 Ga. 259, 1985 Ga. LEXIS 939

• Court: Supreme Court of Georgia
• Decided: November 19, 1985
• Docket: 42212
• Status: Published

Opinions

Hill, Chief Justice.

Is it a violation of a legislator’s constitutional duty to the people for such legislator, who is an attorney, to represent a client before a state administrative agency when no fee is charged for services rendered?¹

On October 23, 1984, the Georgia State Board of Pharmacy, an agency of the State of Georgia, issued a notice of hearing alleging that William Robert Loworn, a registered pharmacist, and his pharmacy, had committed certain acts which would, if proven, constitute a violation of certain state pharmacy and drug laws and Pharmacy Board rules and regulations. Thomas B. Murphy, Speaker of the House of Representatives of Georgia, filed with the Board an answer as counsel for Loworn. The Attorney General, on behalf of the Board, moved to disqualify Murphy as attorney for Loworn based upon Art. I, Sec. II, Par. I of the Constitution, supra, note 1, as applied in Dept. of Human Resources v. Sistrunk, 249 Ga. 543 (291 SE2d 524) (1982). The hearing officer denied the motion to disqualify and that ruling was affirmed by the superior court. This court granted the Pharmacy Board’s application to appeal.

The facts are undisputed. Speaker Murphy is a member of the House of Representatives, representing District 18. He filed a certificate stating that he has not and will not charge Loworn or his pharmacy any fee for representing them. Thus, he urges that he stands no chance of having any personal financial gain.

In Sistrunk, supra, this court held that “the Constitution prohibits a legislator from representing a client, for his own financial gain, in any civil transaction or matter wherein the State of Georgia shall be an opposing party.” (Emphasis supplied.) 249 Ga. at 547.² The cases cited by the court in Sistrunk involved the financial gain of the public officer/trustee involved, and the opinion uses the phrase “personal financial gain” or its equivalent repeatedly.

The Attorney General urges us to extend Sistrunk; the Speaker requests that we overrule it, or at least not extend it. Three members of the court would overrule Sistrunk, and they therefore concur in the judgment only; three members of the court would adopt a rule to encompass the facts presented here and they therefore dissent. The writer of this opinion declines either to expand or overrule Sistrunk. My reason for adhering to Sistrunk is explained in that opinion, to wit: the Constitution prohibits a lawyer/legislator from using his legislative office to attract clients to sue the state to generate fees for his law office. My reason for declining to extend Sistrunk is that the Constitution does not prohibit a lawyer/legislator from using his legislative office to serve his or her constituents where no fee is paid.³ See also OCGA § 16-10-5 (a). Political influence exists, and will continue to do so; this is a fact of life. Although this court can correct errors of law, like them or not we cannot change the facts of life.

Therefore, for divergent reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

Clarke, Smith and Bell, JJ., concur in the judgment only. Marshall, P. J., Gregory and Weltner, JJ., dissent.

1 Art. I, Sec. II, Par. I of the Constitution of 1983 provides in pertinent part as follows: “Public officers are the trustees and servants of the people and are at all times amenable to them.”

2 In Sistrunk, the trial court found that the lawyer/legislator was “practicing his profession for compensation.” 249 Ga. at 543.

3 The dissenting justices do not contend that the constitutional provision in issue is applicable here. Instead, based upon an interpretation of our rules and a legislator’s statutory oath of office, the dissenting justices would have the court exercise its supervisory powers to regulate the practice of law by legislators. In my view, absent constitutional command, this court should not undertake to supervise the practice of law by lawyer/legislators.