In the Matter of James Hugh Potts II

• Court: Supreme Court of Georgia
• Decided: August 14, 2017
• Docket: S17Y0883
• Status: 200

Opinion

301 Ga. 789 FINAL COPY

S17Y0883. IN THE MATTER OF JAMES HUGH POTTS II.

PER CURIAM.

This disciplinary matter is before the Court on the Report and

Recommendation of the Review Panel of the State Bar, recommending that

respondent James Hugh Potts II (State Bar No. 585677) receive a public

reprimand as substantially similar reciprocal discipline, due to his six-month

“suspension” from the “Trial Bar” for the United States District Court for the

Northern District of Illinois on November 4, 2016. After receiving notification

of the sanction against Potts, the State Bar filed a notice of reciprocal discipline,

pursuant to Rule 9.4 (b) of the Georgia Rules of Professional Conduct, as set

forth in Bar Rule 4-102 (d). Potts thereafter filed a response, to which the Bar

replied, and a hearing was held before the Review Panel.

The record shows that the discipline imposed against Potts by the Illinois

federal court arose from his participation, along with co-counsel, in a 2013 qui

tam lawsuit, filed pursuant to the federal False Claims Act. The judge overseeing those proceedings found that Potts had authorized and acquiesced in

the filing of an affidavit in support of his co-counsel’s admission to practice

before that court, which contained misstatements about the nature and length of

Potts’s relationship with co-counsel. In the Illinois federal court, membership

in the “General Bar” is necessary to file an appearance or participate in any

proceeding, whereas membership in the “Trial Bar” is reserved for experienced

attorneys who have met certain qualifications in order to appear as trial counsel

without supervision. Pursuant to the judge’s recommendation, the Executive

Committee for that court initiated disciplinary proceedings and subsequently

suspended Potts from the Trial Bar for one year; the suspension was later

reduced to a term of six months. Based on these facts, the State Bar sought the

imposition of a public reprimand as “substantially similar discipline.” Rule 9.4

(b) (3). Potts excepted to this recommended sanction on various grounds. See

id. at (b) (3) (i)-(vi).

In its report and recommendation, the Review Panel found one of Potts’s

exceptions moot and rejected Potts’s other contentions regarding the alleged

lack of due process and infirmity of proof in the Illinois proceedings and the

alleged undue severity of imposing reciprocal discipline in this case. Expressly

2 noting that both parties agreed that “there is no comparable discipline in

Georgia” relative to the sanction imposed by the Illinois federal court, the

Review Panel ultimately concluded that “a public reprimand would serve as

substantially similar reciprocal discipline” and was the appropriate sanction in

this case. One member of the Review Panel, however, dissented, arguing that

the Review Panel did not have jurisdiction to impose discipline pursuant to Rule

9.4, because the discipline imposed by the Illinois federal court does not qualify

as a “suspen[sion] or disbar[ment] in another jurisdiction” that would trigger

Rule 9.4 (b).

In his exceptions to the Review Panel’s report, Potts maintains that the

Review Panel erred in rejecting his argument concerning the infirmity of proof

in the Illinois federal court proceedings, but states that he accepts that decision.

Citing the harm to his reputation he has already suffered as a result of the

Illinois proceedings and the significant harm that he asserts he would suffer

from the imposition of public discipline in this State, Potts maintains that a

formal admonition is a more appropriate sanction here.

We conclude, however, that the discipline imposed on Potts by the Illinois

federal court does not qualify as a “suspension” within the meaning of our Rules

3 of Professional Conduct. Because reciprocal discipline is appropriate only

where a lawyer admitted to practice in Georgia “has been disbarred or

suspended in another jurisdiction,” Rule 9.4 (b), such discipline is not proper

here. This conclusion follows from the text of Rule 4-102, which defines a

suspension as a “form of public discipline [removing] the respondent from the

practice of law.” See Rule 4-102 (b) (2). The discipline imposed by the Illinois

federal court does not “remov[e] [Potts] from the practice of law,” id., but

instead merely imposes certain qualifications on the activities Potts can

undertake in the course of representation in that court. In addition, as is

apparent from the Review Panel’s report and as acknowledged by both parties,

our Rules provide for no substantially similar discipline to that imposed by the

Illinois federal court, thus making it difficult to impose true “reciprocal”

discipline here. See Rule 9.4 (b) (3) (requiring Review Panel to recommend to

the Supreme Court of Georgia “substantially similar discipline” or removal

from practice). Also supportive of this conclusion is the fact that Rule 9.4

specifically addresses “[d]iscipline imposed by another jurisdiction but of a

lesser nature than disbarment or suspension,” which “may be considered in

aggravation of discipline in any other disciplinary proceeding.” Rule 9.4 (b) (6).

4 This provision suggests that lesser discipline imposed in another jurisdiction is

not properly the subject of a reciprocal discipline proceeding under our Rules.

Considering these factors, this case is not an appropriate one for resolution

through the reciprocal discipline process.

This Court’s rejection of reciprocal discipline here does not, however,

foreclose the Bar from exercising its discretion, should it so elect, to pursue a

disciplinary matter against Potts for violations of the Georgia Rules of

Professional Conduct in connection with his misconduct in the Illinois federal

court. See Rule 8.5 (a) (“[a] lawyer admitted to practice in this jurisdiction is

subject to the disciplinary authority of this jurisdiction, regardless of where the

lawyer’s conduct occurs”) (emphasis supplied).

Dismissed. All the Justices concur.

5 Decided August 14, 2017.

Disciplinary matter.

Paula J. Frederick, General Counsel State Bar, William J. Cobb, Assistant

General Counsel State Bar, for State Bar of Georgia..

Frankfurt, Kurnit, Klein & Selz, Richard M. Maltz, for Potts.