300 Ga. 862 FINAL COPY
S17Y0698. IN THE MATTER OF DAVID WESLER FRY.
PER CURIAM.
This disciplinary matter is before the Court pursuant to the report and
recommendation of special master Joseph A. Boone, who recommends that the
Court accept the “Petition for Voluntary Resolution” filed by Respondent David
Wesler Fry (State Bar No. 278690). Fry filed his petition after the appointment
of a special master, see Bar Rule 4-227 (c), and requested that he be allowed to
resign his membership in the Georgia Bar, pursuant to Rule 1-208 of the State
Bar’s Governance Rules. Given the serious nature of Fry’s violation and the
ramifications of his unusual proposed resolution, however, the Court rejects
Fry’s Petition for Voluntary Resolution.
The facts as recited in the petition are that in March 2012 in the Superior
Court of Richmond County, Fry entered a guilty plea under North Carolina v.
Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970), and the First Offender
Act, see OCGA § 42-8-60, to two felony counts of bribery. He was sentenced
to five years probation on each count to be served concurrently. Fry’s probation was terminated in October 2016, and he was discharged without an adjudication
of guilt, as is allowed by the First Offender Act, see OCGA § 42-8-60 (e).
Although the State Bar received a certified copy of Fry’s convictions in 2012,
the Bar attorney assigned to the case failed to act on those convictions at the
time. In 2016, however, the Bar initiated this disciplinary action pursuant to Bar
Rule 4-106, requesting that Fry show cause before a special master as to why he
should not be disbarred, but admitting that the Bar’s delay in pursuing discipline
could be considered in mitigation, see ABA Standards for Imposing Lawyer
Sanctions (1992), Standard 9.32 (j) (mitigating factors include delay in
disciplinary proceedings). Fry acknowledged service of the disciplinary matter
and entered into settlement discussions with the Bar.
Eventually, Fry, who has been a member of the Bar since 1990, filed his
“Petition for Voluntary Resolution” in which he admitted the facts recited
above, but questioned whether an Alford plea amounted to a violation of Rule
8.4 (a) (2) (violation of rules for a lawyer to be convicted of a felony) of Bar
Rule 4-102 (d), the maximum penalty for which is disbarment. Fry asserts that
he provided “information regarding his medical circumstances” to the special
2 master under seal1 and requested that the special master allow the Bar to dismiss
this disciplinary action so that he could petition to resign from the Bar, as is
allowed by State Bar Governance Rule 1-208 (member in good standing may
petition for leave to resign from the State Bar so long as there are no disciplinary
actions or criminal proceedings pending against him or her). In his petition, Fry
agreed that if the disciplinary matter was dismissed, he would resign his Bar
membership and would “not seek reinstatement to the State Bar of Georgia.” He
argued that this resolution would be reasonable because it would protect the
public and fairly address the Bar’s delay in pursuing this matter.
The State Bar responded to Fry’s petition asserting that an Alford plea
does amount to a violation of Rule 8.4 (a) (2), acknowledging that Fry had
submitted medical information under seal, and asserting that Fry had agreed not
to “seek reinstatement to the State Bar of Georgia, or seek admission to the
practice of law in any other jurisdiction,” (emphasis supplied) following his
resignation from the Bar. The Bar contended that Fry’s proposed resolution of
this matter was reasonable under the circumstances of this case and
1 Only one document has been forwarded to this Court under seal, and that document appears to have been created to assist with Fry’s criminal proceedings in 2012.
3 recommended that the special master accept Fry’s request.
In his report and recommendation, the special master acknowledged that
resignation is not generally available to members who have disciplinary matters
pending, but found that Fry’s request was a reasonable and compassionate
solution given the particular circumstances of this case. The special master noted
that if the Bar had proceeded promptly when it received notice of Fry’s
convictions, he would have been in a better position to defend himself and
present evidence of mitigation while the matter was still fresh in everyone’s
minds. The special master considered that Fry is currently 64 years old, in ill
health, and claims to have no current, active legal practice. The special master
reasoned that Fry’s proposed solution protects the public by ensuring that a
lawyer convicted of a felony is no longer a member of the Bar, but also takes
into account both the delay in the disciplinary process and the mitigating factors.
Therefore, the special master recommended that the Court “accept [Fry’s
proposed] Resolution and dismiss this disciplinary case on the condition that
[Fry] resign his membership in the State Bar of Georgia and waive any right to
seek readmission in the future.” As neither party has sought review by the
Review Panel, both have waived any right to file exceptions with, or make
4 request for oral argument to, this Court, and the matter is ripe for review here.
See Bar Rules 4-217, 4-219.
As an initial matter, the Bar is correct that an attorney who pleads guilty
to a felony under Alford still commits a violation of Rule 8.4 (a) (2). See Bar
Rule 4-106 (a) and (g) (providing for show-cause hearing for attorneys
convicted of any felony “whether by verdict, plea of guilty, plea of nolo
contendere or imposition of first offender probation” and noting that certified
copy of imposition of first offender treatment shall be prima facie evidence of
a violation of Rule 8.4); see also In the Matter of Davis, 292 Ga. 897, 897-898
and n. 1 (742 SE2d 734) (2013) (finding no error in special master’s finding that
a conviction based on an Alford plea amounts to a violation of 8.4 (a) (2)); In
the Matter of Ortman, 289 Ga. 130 (709 SE2d 784) (2011) (same); In the Matter
of Suttle, 288 Ga. 14 (701 SE2d 154) (2010) (same). And clearly the parties are
correct that Fry’s proposed resolution will permanently remove him from the
rolls of attorneys authorized to practice law in Georgia. But, the specific
discipline sought in this case is unusual, and while other states have (or have
had) Bar Rules that allow an attorney with pending disciplinary cases to resign
5 from the Bar in lieu of defending those disciplinary matters,2 all the parties
acknowledge that Georgia’s Bar Rules do not include any such provisions, but
instead allow for the voluntary surrender of one’s law license. See In the Matter
of Atkins, 253 Ga. 319, 320 (320 SE2d 146) (1984) (an attorney may not escape
disciplinary proceedings by simply resigning from the State Bar; resignation
after initiation of disciplinary proceedings is not consistent with a voluntary
surrender of license because there is no admission by attorney of acts
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300 Ga. 862 FINAL COPY
S17Y0698. IN THE MATTER OF DAVID WESLER FRY.
PER CURIAM.
This disciplinary matter is before the Court pursuant to the report and
recommendation of special master Joseph A. Boone, who recommends that the
Court accept the “Petition for Voluntary Resolution” filed by Respondent David
Wesler Fry (State Bar No. 278690). Fry filed his petition after the appointment
of a special master, see Bar Rule 4-227 (c), and requested that he be allowed to
resign his membership in the Georgia Bar, pursuant to Rule 1-208 of the State
Bar’s Governance Rules. Given the serious nature of Fry’s violation and the
ramifications of his unusual proposed resolution, however, the Court rejects
Fry’s Petition for Voluntary Resolution.
The facts as recited in the petition are that in March 2012 in the Superior
Court of Richmond County, Fry entered a guilty plea under North Carolina v.
Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970), and the First Offender
Act, see OCGA § 42-8-60, to two felony counts of bribery. He was sentenced
to five years probation on each count to be served concurrently. Fry’s probation was terminated in October 2016, and he was discharged without an adjudication
of guilt, as is allowed by the First Offender Act, see OCGA § 42-8-60 (e).
Although the State Bar received a certified copy of Fry’s convictions in 2012,
the Bar attorney assigned to the case failed to act on those convictions at the
time. In 2016, however, the Bar initiated this disciplinary action pursuant to Bar
Rule 4-106, requesting that Fry show cause before a special master as to why he
should not be disbarred, but admitting that the Bar’s delay in pursuing discipline
could be considered in mitigation, see ABA Standards for Imposing Lawyer
Sanctions (1992), Standard 9.32 (j) (mitigating factors include delay in
disciplinary proceedings). Fry acknowledged service of the disciplinary matter
and entered into settlement discussions with the Bar.
Eventually, Fry, who has been a member of the Bar since 1990, filed his
“Petition for Voluntary Resolution” in which he admitted the facts recited
above, but questioned whether an Alford plea amounted to a violation of Rule
8.4 (a) (2) (violation of rules for a lawyer to be convicted of a felony) of Bar
Rule 4-102 (d), the maximum penalty for which is disbarment. Fry asserts that
he provided “information regarding his medical circumstances” to the special
2 master under seal1 and requested that the special master allow the Bar to dismiss
this disciplinary action so that he could petition to resign from the Bar, as is
allowed by State Bar Governance Rule 1-208 (member in good standing may
petition for leave to resign from the State Bar so long as there are no disciplinary
actions or criminal proceedings pending against him or her). In his petition, Fry
agreed that if the disciplinary matter was dismissed, he would resign his Bar
membership and would “not seek reinstatement to the State Bar of Georgia.” He
argued that this resolution would be reasonable because it would protect the
public and fairly address the Bar’s delay in pursuing this matter.
The State Bar responded to Fry’s petition asserting that an Alford plea
does amount to a violation of Rule 8.4 (a) (2), acknowledging that Fry had
submitted medical information under seal, and asserting that Fry had agreed not
to “seek reinstatement to the State Bar of Georgia, or seek admission to the
practice of law in any other jurisdiction,” (emphasis supplied) following his
resignation from the Bar. The Bar contended that Fry’s proposed resolution of
this matter was reasonable under the circumstances of this case and
1 Only one document has been forwarded to this Court under seal, and that document appears to have been created to assist with Fry’s criminal proceedings in 2012.
3 recommended that the special master accept Fry’s request.
In his report and recommendation, the special master acknowledged that
resignation is not generally available to members who have disciplinary matters
pending, but found that Fry’s request was a reasonable and compassionate
solution given the particular circumstances of this case. The special master noted
that if the Bar had proceeded promptly when it received notice of Fry’s
convictions, he would have been in a better position to defend himself and
present evidence of mitigation while the matter was still fresh in everyone’s
minds. The special master considered that Fry is currently 64 years old, in ill
health, and claims to have no current, active legal practice. The special master
reasoned that Fry’s proposed solution protects the public by ensuring that a
lawyer convicted of a felony is no longer a member of the Bar, but also takes
into account both the delay in the disciplinary process and the mitigating factors.
Therefore, the special master recommended that the Court “accept [Fry’s
proposed] Resolution and dismiss this disciplinary case on the condition that
[Fry] resign his membership in the State Bar of Georgia and waive any right to
seek readmission in the future.” As neither party has sought review by the
Review Panel, both have waived any right to file exceptions with, or make
4 request for oral argument to, this Court, and the matter is ripe for review here.
See Bar Rules 4-217, 4-219.
As an initial matter, the Bar is correct that an attorney who pleads guilty
to a felony under Alford still commits a violation of Rule 8.4 (a) (2). See Bar
Rule 4-106 (a) and (g) (providing for show-cause hearing for attorneys
convicted of any felony “whether by verdict, plea of guilty, plea of nolo
contendere or imposition of first offender probation” and noting that certified
copy of imposition of first offender treatment shall be prima facie evidence of
a violation of Rule 8.4); see also In the Matter of Davis, 292 Ga. 897, 897-898
and n. 1 (742 SE2d 734) (2013) (finding no error in special master’s finding that
a conviction based on an Alford plea amounts to a violation of 8.4 (a) (2)); In
the Matter of Ortman, 289 Ga. 130 (709 SE2d 784) (2011) (same); In the Matter
of Suttle, 288 Ga. 14 (701 SE2d 154) (2010) (same). And clearly the parties are
correct that Fry’s proposed resolution will permanently remove him from the
rolls of attorneys authorized to practice law in Georgia. But, the specific
discipline sought in this case is unusual, and while other states have (or have
had) Bar Rules that allow an attorney with pending disciplinary cases to resign
5 from the Bar in lieu of defending those disciplinary matters,2 all the parties
acknowledge that Georgia’s Bar Rules do not include any such provisions, but
instead allow for the voluntary surrender of one’s law license. See In the Matter
of Atkins, 253 Ga. 319, 320 (320 SE2d 146) (1984) (an attorney may not escape
disciplinary proceedings by simply resigning from the State Bar; resignation
after initiation of disciplinary proceedings is not consistent with a voluntary
surrender of license because there is no admission by attorney of acts
complained of); but see In the Matter of Reed, 244 Ga. 612 (261 SE2d 398)
(1979) (accepting voluntary resignation from the practice of law where Reed
admitted that his bribery conviction violated Standard 3, which prohibited
lawyers from engaging in illegal professional conduct involving moral
turpitude). And while this Court has recognized that a “Disciplinary
Resignation” in Florida — which included some admission of “guilt” with
regard to alleged disciplinary rules violations — is the substantial equivalent to
2 See, e.g., Fla. Bar v. Hale, 762 So2d 515 (2000) (disciplinary resignation is tantamount to disbarment and serves to dismiss all pending disciplinary cases); Fla. Bar Rule 3-7.12 (Disciplinary Resignation from the Florida Bar) (sunsetted 1/1/06); In re Bailey, 230 A.D.2d 471 (N.Y. App. Div. 1997) (quoting now rescinded N.Y. Comp. Codes R. & Regs. tit. 22, § 603.11 (a), which allowed an attorney who is “the subject of an investigation into allegations of misconduct or who is the subject of a disciplinary proceeding pending [to] submit [a] resignation” in lieu of disbarment).
6 Georgia’s voluntary surrender of license, see In the Matter of Davidson, 269 Ga.
901 (506 SE2d 869) (1998), Fry is not requesting permission to voluntarily
surrender his license in the face of pending disciplinary matters. In fact, he is not
even admitting that he violated any disciplinary rule. Instead, he appears to be
requesting that his professional record be scrubbed of any indications of
disciplinary problems and that he be allowed to resign with a clear disciplinary
record, presumably because his criminal record is “clear” as a result of the First
Offender Act. And, although his criminal record is clear at the moment, Fry’s
guilty pleas to two counts of bribery, and his first offender convictions are
matters of public record and could be used against him in the future if he
commits additional criminal offenses, but his proposed resolution would leave
his disciplinary record completely clean. Further, neither Fry’s petition nor the
special master’s report and recommendation makes absolutely clear that Fry’s
commitment to refrain from seeking readmission to the practice of law would
extend beyond Georgia to other jurisdictions, and if he chose to apply for
admission in other jurisdictions in future years, he would be able to truthfully
report that he has no disciplinary record in Georgia. See Bar Rule 4-224 (a), (e),
(f) (governing expungement of dismissed disciplinary cases and allowing
7 attorney to omit reference to expunged cases when asked about prior complaints
or discipline).
Moreover, the rationales for adopting this new and special rule for Fry’s
case are unavailing. Although Fry presumably is nearing “retirement age,” and
appears to have convinced the special master and the Bar of his ill health, this
Court is not privy to his medical situation because the single letter filed under
seal in this Court, see n. 1 supra, sheds no light on any current medical
condition(s) faced by Fry, and any other medical records were not forwarded to
this Court. And, although Fry has had to wait four years to learn whether and
when the Bar intended to bring disciplinary action against him, the fact that he
faced disbarment for his felony convictions should not have come as a surprise
given the provisions of Bar Rule 4-106; the fact that the statute of limitations
under Bar Rule 4-222 is four years on most Bar actions (although arguably there
is no limitation on actions initiated under Bar Rule 4-106 on felony convictions
as such actions are not initiated by the “Memorandum of Grievance” referenced
in Bar Rule 4-222); and the fact that the record contains no evidence showing
that the delay caused him any actual prejudice. Under these circumstances, the
Court declines to create an alternative to the voluntary surrender of license
8 allowed under current Bar Rules. Therefore, the Court rejects Fry’s “Petition for
Voluntary Resolution” and remands this matter for further proceedings.
Petition for voluntary resolution rejected. All the Justices concur.
Decided March 30, 2017.
Petition for voluntary resolution.
James P. Theodocion, for Fry.
Paula J. Frederick, General Counsel State Bar, Jenny K. Mittelman,
Assistant General Counsel State Bar, for State Bar of Georgia.