302 Ga. 126 FINAL COPY
S17Y1499, S17Y1502, S17Y1623. IN THE MATTER OF ANTHONY SYLVESTER KERR (three cases).
PER CURIAM.
These disciplinary matters are before the court on the reports filed by
special master William Thomas Cable, Jr., which together recommend the
disbarment of respondent Anthony Sylvester Kerr (State Bar No. 142346), who
has been a member of the Bar since 2005.
In Case Nos. S17Y1499 and S17Y1502, the Bar filed formal complaints
regarding client representation matters arising in 2013 and 2014. In each case,
Kerr answered the formal complaint but failed to respond to the Bar’s discovery
requests. The Bar then filed motions for summary judgment in both cases, and
Kerr failed to respond. The special master granted both motions. In both cases,
Kerr was afforded the opportunity to submit an explanation of mitigating
circumstances and a recommendation of discipline, but he did so only as to the
claims in Case No. S17Y1499. The facts underlying these matters are as follows. As to Case No.
S17Y1499, Kerr had previously received a suspension from this Court for
failing to adequately respond in an unrelated disciplinary matter; this suspension
lasted from October 6, 2014 to November 4, 2014. During this suspension, Kerr
was hired by a woman to represent her husband in a criminal matter and was
paid $1,500 toward a total fee of $2,500. However, Kerr failed to explain to the
client or his wife that he could not practice law because of his suspension,
though the wife did find out about the suspension from someone other than
Kerr. The client’s wife requested a refund of the money paid to Kerr, but Kerr
failed to repay the money until the client’s wife filed a grievance against him.
The Bar issued a notice of investigation as to Kerr, but he failed to timely
respond under oath until nearly three months later, resulting in a second interim
suspension from this Court.
As to Case No. S17Y1502, Kerr was hired by a different client in 2013 to
represent her in a civil matter concerning an automobile accident. The client
paid Kerr $4,500 towards a $7,000 fee, and Kerr filed on the client’s behalf an
answer and counterclaim in the civil case. Following this filing, the client
contacted Kerr on numerous occasions to inquire about the case, but Kerr either
2 did not respond or furnished the client with misleading information regarding
the case and his representation. The plaintiff in the civil suit then moved to
dismiss the client’s counterclaim, but Kerr failed to inform the client of this
development or to file a responsive pleading, which resulted in the court’s grant
of the motion to dismiss. During the pendency of the motion to dismiss, the
plaintiff communicated to Kerr an offer to dismiss the client from the suit in
exchange for the dismissal of her counterclaim, but Kerr failed to communicate
this offer to the client or to offer to resolve the case. The plaintiff in the suit
then filed a dismissal without prejudice, but Kerr failed to inform the client
about this as well. The client requested a refund from Kerr, who had done no
work on the case other than submitting the answer and counterclaim as well as
some contemporaneous discovery responses, but Kerr did not refund the fee.
The Bar issued a notice of investigation as to Kerr, but he failed to timely
respond under oath until nearly three months later and received a third interim
suspension, running in tandem with the second.
Upon consideration of these facts, the special master recommended
disbarment in both Case Nos. S17Y1499 and S17Y1502. In Case No.
S17Y1499, the special master concluded that Kerr had violated Rules 1.16 (a),
3 1.16 (d), 5.5 (a), 8.4 (a) (4), and 9.3 of the Georgia Rules of Professional
Conduct found in Bar Rule 4-102 (d). The maximum sanction for a violation
of Rules 5.5 and 8.4 (a) (4) is disbarment, and the maximum sanction for a
violation of Rules 1.16 and 9.3 is a public reprimand. As to Case No.
S17Y1502, the special master concluded that Kerr had violated Rules 1.2 (a),
1.3, 1.4, 1.16 (d), 3.2, 8.4 (a) (4), and 9.3. The maximum sanction for a
violation of Rules 1.2 and 1.3 is disbarment, while the maximum sanction for
a violation of Rules 1.4 and 3.2 is a public reprimand. As to Case No.
S17Y1499, the special master recited that Kerr had proposed in mitigation that
there were other attorneys available at his firm to handle the matter, that the
client had failed to pay Kerr’s fee in full, and that no action was taken on the
matter adverse to his client. In aggravation, the special master noted Kerr’s
prior disciplinary history and his substantial experience in the practice of law.
As to Case No. S17Y1502, the special master noted that there were no proposed
factors in mitigation and noted the same factors in aggravation as were present
in Case No. S17Y1499. In light of these considerations, the special master
concluded that disbarment was the appropriate sanction in each case. Neither
Kerr nor the Bar timely filed any response in this Court to the filing of the
4 special master’s reports in Case No. S17Y1499 or Case No. S17Y1502.
A third action followed. In Case No. S17Y1623, the Bar filed a petition
for the appointment of a special master upon learning of Kerr’s March 8, 2017
felony conviction, pursuant to a negotiated plea, for client-related deposit
account fraud in violation of OCGA § 16-9-20 (b). The special master held a
hearing, where testimony was given by Kerr, the client in the matter at issue, and
the assistant district attorney who had overseen Kerr’s prosecution. Based on
that evidence and the pleading received from the State, the special master found
that Kerr was hired by the client to represent her in a dental malpractice case and
that she paid him $5,000 as a fee. The client asserted that Kerr did nothing on
her case, as a result of which she discharged him and requested return of the
$5,000. Kerr agreed to refund the money, but the check that he gave her could
not be processed because the account associated with the check had been closed.
The client continued to attempt to address the refund matter with Kerr, who
promised to reimburse her in two installments but failed to do so or to otherwise
make the client whole.
The client reported the matter to the authorities, resulting in Kerr’s arrest
5 and prosecution. The State would not allow Kerr to enter a pre-trial diversion
program because his offense involved fraud, but he was allowed to enter a first
offender plea, and was sentenced to probation and restitution; at least as of the
April 14, 2017 date of the hearing on this matter, however, Kerr had failed to
make restitution. The special master noted Kerr’s testimony to the effect that
he had not realized that the account was closed when he cut the client the check,
as it had been closed without his knowledge by his former office manager and
friend, with whom Kerr subsequently had a falling out. However, the special
master also noted that Kerr failed to substantiate this assertion by presenting the
office manager’s testimony or by subpoenaing him to appear. The special
master further noted that Kerr did not so qualify his culpability in entering his
guilty plea to deposit account fraud.
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302 Ga. 126 FINAL COPY
S17Y1499, S17Y1502, S17Y1623. IN THE MATTER OF ANTHONY SYLVESTER KERR (three cases).
PER CURIAM.
These disciplinary matters are before the court on the reports filed by
special master William Thomas Cable, Jr., which together recommend the
disbarment of respondent Anthony Sylvester Kerr (State Bar No. 142346), who
has been a member of the Bar since 2005.
In Case Nos. S17Y1499 and S17Y1502, the Bar filed formal complaints
regarding client representation matters arising in 2013 and 2014. In each case,
Kerr answered the formal complaint but failed to respond to the Bar’s discovery
requests. The Bar then filed motions for summary judgment in both cases, and
Kerr failed to respond. The special master granted both motions. In both cases,
Kerr was afforded the opportunity to submit an explanation of mitigating
circumstances and a recommendation of discipline, but he did so only as to the
claims in Case No. S17Y1499. The facts underlying these matters are as follows. As to Case No.
S17Y1499, Kerr had previously received a suspension from this Court for
failing to adequately respond in an unrelated disciplinary matter; this suspension
lasted from October 6, 2014 to November 4, 2014. During this suspension, Kerr
was hired by a woman to represent her husband in a criminal matter and was
paid $1,500 toward a total fee of $2,500. However, Kerr failed to explain to the
client or his wife that he could not practice law because of his suspension,
though the wife did find out about the suspension from someone other than
Kerr. The client’s wife requested a refund of the money paid to Kerr, but Kerr
failed to repay the money until the client’s wife filed a grievance against him.
The Bar issued a notice of investigation as to Kerr, but he failed to timely
respond under oath until nearly three months later, resulting in a second interim
suspension from this Court.
As to Case No. S17Y1502, Kerr was hired by a different client in 2013 to
represent her in a civil matter concerning an automobile accident. The client
paid Kerr $4,500 towards a $7,000 fee, and Kerr filed on the client’s behalf an
answer and counterclaim in the civil case. Following this filing, the client
contacted Kerr on numerous occasions to inquire about the case, but Kerr either
2 did not respond or furnished the client with misleading information regarding
the case and his representation. The plaintiff in the civil suit then moved to
dismiss the client’s counterclaim, but Kerr failed to inform the client of this
development or to file a responsive pleading, which resulted in the court’s grant
of the motion to dismiss. During the pendency of the motion to dismiss, the
plaintiff communicated to Kerr an offer to dismiss the client from the suit in
exchange for the dismissal of her counterclaim, but Kerr failed to communicate
this offer to the client or to offer to resolve the case. The plaintiff in the suit
then filed a dismissal without prejudice, but Kerr failed to inform the client
about this as well. The client requested a refund from Kerr, who had done no
work on the case other than submitting the answer and counterclaim as well as
some contemporaneous discovery responses, but Kerr did not refund the fee.
The Bar issued a notice of investigation as to Kerr, but he failed to timely
respond under oath until nearly three months later and received a third interim
suspension, running in tandem with the second.
Upon consideration of these facts, the special master recommended
disbarment in both Case Nos. S17Y1499 and S17Y1502. In Case No.
S17Y1499, the special master concluded that Kerr had violated Rules 1.16 (a),
3 1.16 (d), 5.5 (a), 8.4 (a) (4), and 9.3 of the Georgia Rules of Professional
Conduct found in Bar Rule 4-102 (d). The maximum sanction for a violation
of Rules 5.5 and 8.4 (a) (4) is disbarment, and the maximum sanction for a
violation of Rules 1.16 and 9.3 is a public reprimand. As to Case No.
S17Y1502, the special master concluded that Kerr had violated Rules 1.2 (a),
1.3, 1.4, 1.16 (d), 3.2, 8.4 (a) (4), and 9.3. The maximum sanction for a
violation of Rules 1.2 and 1.3 is disbarment, while the maximum sanction for
a violation of Rules 1.4 and 3.2 is a public reprimand. As to Case No.
S17Y1499, the special master recited that Kerr had proposed in mitigation that
there were other attorneys available at his firm to handle the matter, that the
client had failed to pay Kerr’s fee in full, and that no action was taken on the
matter adverse to his client. In aggravation, the special master noted Kerr’s
prior disciplinary history and his substantial experience in the practice of law.
As to Case No. S17Y1502, the special master noted that there were no proposed
factors in mitigation and noted the same factors in aggravation as were present
in Case No. S17Y1499. In light of these considerations, the special master
concluded that disbarment was the appropriate sanction in each case. Neither
Kerr nor the Bar timely filed any response in this Court to the filing of the
4 special master’s reports in Case No. S17Y1499 or Case No. S17Y1502.
A third action followed. In Case No. S17Y1623, the Bar filed a petition
for the appointment of a special master upon learning of Kerr’s March 8, 2017
felony conviction, pursuant to a negotiated plea, for client-related deposit
account fraud in violation of OCGA § 16-9-20 (b). The special master held a
hearing, where testimony was given by Kerr, the client in the matter at issue, and
the assistant district attorney who had overseen Kerr’s prosecution. Based on
that evidence and the pleading received from the State, the special master found
that Kerr was hired by the client to represent her in a dental malpractice case and
that she paid him $5,000 as a fee. The client asserted that Kerr did nothing on
her case, as a result of which she discharged him and requested return of the
$5,000. Kerr agreed to refund the money, but the check that he gave her could
not be processed because the account associated with the check had been closed.
The client continued to attempt to address the refund matter with Kerr, who
promised to reimburse her in two installments but failed to do so or to otherwise
make the client whole.
The client reported the matter to the authorities, resulting in Kerr’s arrest
5 and prosecution. The State would not allow Kerr to enter a pre-trial diversion
program because his offense involved fraud, but he was allowed to enter a first
offender plea, and was sentenced to probation and restitution; at least as of the
April 14, 2017 date of the hearing on this matter, however, Kerr had failed to
make restitution. The special master noted Kerr’s testimony to the effect that
he had not realized that the account was closed when he cut the client the check,
as it had been closed without his knowledge by his former office manager and
friend, with whom Kerr subsequently had a falling out. However, the special
master also noted that Kerr failed to substantiate this assertion by presenting the
office manager’s testimony or by subpoenaing him to appear. The special
master further noted that Kerr did not so qualify his culpability in entering his
guilty plea to deposit account fraud. The special master found that there were
no factors in mitigation of discipline, but noted in aggravation of discipline that
Kerr had received five interim suspensions from this Court during the period
from October 2014 to March 2017 in unrelated matters; that Kerr had failed to
fully acknowledge the wrongful nature of his conduct; that the victim was
vulnerable; and that Kerr had shown an indifference to making restitution. The
special master acknowledged that not every felony conviction necessarily results
6 in disbarment, see, e.g., In the Matter of Calhoun, 268 Ga. 877 (494 SE2d 335)
(1998) (six-month suspension for felony conviction of serious injury by motor
vehicle and driving under the influence), but found that disbarment was
appropriate here, and should be imposed as a sanction because Kerr’s
misconduct concerned fraud against a client related to the representation.
Having reviewed the record in each of these matters, we concur with the
special master’s recommendations and conclude that disbarment is the
appropriate sanction in each. Accordingly, it is hereby ordered that the name of
Anthony Sylvester Kerr be removed from the rolls of persons authorized to
practice law in the State of Georgia. Kerr is reminded of his duties pursuant to
Bar Rule 4-219 (c).
Disbarred. All the Justices concur.
7 Decided September 13, 2017.
Disbarment.
Paula J. Frederick, General Counsel State Bar, Jonathan W. Hewett, Jenny
K. Mittelman, Assistant General Counsel State Bar, for State Bar of Georgia.