in the Matter of John Benneth Iwu

303 Ga. 539

• Court: Supreme Court of Georgia
• Decided: April 16, 2018
• Docket: S18Y0694
• Status: Published

Opinion

303 Ga. 539 FINAL COPY

S18Y0694. IN THE MATTER OF JOHN BENNETH IWU.

PER CURIAM.

This is the second appearance of this disciplinary matter before this Court,

as this Court previously rejected the petition for voluntary discipline filed by

respondent John Benneth Iwu (State Bar No. 143125). See In the Matter of Iwu,

301 Ga. 52 (799 SE2d 155) (2017). Iwu, who has been a member of the Bar

since 2006, sought by his earlier petition to receive a public reprimand for his

admitted violation of Rule 5.5 (a) of the Georgia Rules of Professional Conduct

found in Bar Rule 4-102 (d) for having filed an answer and counterclaim on

behalf of a client while ineligible to practice law because of the non-payment of

his State Bar membership fee. However, this Court rejected Iwu’s petition

because he failed to admit to a violation of either Rule 8.1 (a) or 8.4 (a) (4),

because his statements regarding the disciplinary matter evidenced a pattern of

deception intended to avoid culpability for his conduct, and because the

disciplinary standards referenced by the Bar and the Special Master in connection with Iwu’s petition addressed negligent rather than intentional

conduct. See Iwu, 301 Ga. at 54.

This matter is now before the Court on the report and recommendation of

Special Master Andrew C. Hall, who recommends that Iwu be disbarred for his

violations of Rules 5.5 (a), 8.1 (a), and 8.4 (a) (4), the maximum sanction for a

violation of any of which is disbarment. As to the Rule 5.5 (a) matter out of

which all of this arose, the allegations regarding Iwu’s conduct remain the same:

as mentioned above, Iwu appeared as counsel for a client at a time when he had

not paid his Bar membership fee and, as a result of this non-payment, was not

eligible to practice law. This Court’s conclusion that Iwu’s earlier petition was

due to be rejected for failing to admit violations of Rules 8.1 (a) and 8.4 (a) (4)

arose from admissions he made in connection with that petition, specifically that

statements he made in response to the formal complaint — to the effect that he

was unaware of his suspension because someone else had received the notice

and not transmitted it to him and that he believed that he was eligible to practice

law despite his non-payment of dues — were incorrect. Although Iwu

attempted to withdraw his admissions following this Court’s rejection of his

petition, the special master found that his admissions were made without being

2 conditioned on this Court’s acceptance of his petition and rejected his request

to withdraw the admissions.

In examining the facts supporting Iwu’s violations of Rules 8.1 (a) and 8.4

(a) (4), the special master considered the false statements made to Iwu’s client

(in the matter giving rise to the Rule 5.5 (a) violation), to the Investigative Panel

of the State Disciplinary Board, and to the State Bar’s Office of General

Counsel. As to the client, the special master found that Iwu’s filing on behalf

of the client constituted a misrepresentation violative of Rule 8.4 (a) (4) because

the filing carried with it a representation that the lawyer was eligible to practice

law, a representation Iwu then knew to be false. The special master concluded,

based on the record before him, that the evidence did not support that Iwu had

actual knowledge of his suspension based on the notice transmitted to him by

the State Bar or that he had intended to make a false or misleading statement to

the Investigative Panel regarding a conversation he had with an unauthorized-

practice-of-law investigator. However, in considering Iwu’s statements to the

Office of General Counsel — to the effect that he would check the Bar’s website

from time to time during the period of time at issue and that the website never

showed that he was ineligible to or suspended from practice — the special

3 master found credible the testimonial and documentary evidence submitted by

the Bar that belied Iwu’s assertion; noted that, when presented with this

evidence, Iwu equivocated and became evasive; and ultimately concluded that

Iwu’s statement to the Office of General Counsel was false and intentionally

misleading and that he therefore violated Rules 8.1 (a) and 8.4 (a) (4).

In mitigation of discipline, the special master noted that Iwu has no prior

disciplinary history in Georgia and has no disciplinary history in Tennessee

except for a public reprimand imposed by that State for the same filing that is

the subject of the Rule 5.5 (a) violation in this matter, that he has already been

sanctioned for some of the conduct at issue here by the imposition of that

Tennessee reprimand, and that he has been under suspension in Georgia since

July 1, 2014. In aggravation, the special master notes that Iwu’s conduct

involved multiple, independent offenses; that he submitted false statements

during the disciplinary proceedings; that he has refused to acknowledge, and has

consistently sought to diminish, the wrongful nature of his conduct; and that he

possesses substantial experience in the practice of law. The special master

explained that, had the matter remained merely the underlying Rule 5.5 (a)

violation, he would have been (and was previously) inclined to conclude that a

4 much less serious sanction of a public reprimand would have been appropriate,

but that, given Iwu’s intentionally false and misleading statement to the Bar

during these disciplinary proceedings, disbarment was the appropriate sanction

here. Iwu did not file exceptions to the special master’s report to challenge his

findings and conclusions.

Having reviewed the record, we agree with the special master that a harsh

sanction is warranted here. Indeed, “[m]aking false statements to the Bar during

the disciplinary process is a very serious matter which typically results in, at

least, a significant suspension from the practice of law.” In the Matter of

O’Brien-Carriman, 288 Ga. 239, 240 (702 SE2d 635) (2010). See also In the

Matter of Friedman, 270 Ga. 5, 6 (505 SE2d 727) (1998). However, in light of

the mitigating circumstances, particularly Iwu’s lack of prior disciplinary

history, we believe that a harsh sanction short of actual disbarment is the

appropriate level of discipline to impose here. Iwu’s initial violation of Rule 5.5

(a) for having filed an answer and counterclaim on behalf of a client while

ineligible to practice law may have subjected him to the much less serious

sanction of a public reprimand rather than a suspension or disbarment. But,

through Iwu’s choice to lie to the Bar during the disciplinary proceedings in an

5 effort to avoid taking responsibility for his actions, he only exacerbated his own

problems by subjecting himself to more serious sanctions. His false statement

to the Bar could have led to his disbarment, but, in light of the mitigating

circumstances, we believe that a three-year suspension is the appropriate level

of discipline to impose. See In the Matter of Favors, 283 Ga. 588 (662 SE2d

119) (2008) (imposing a three-year suspension on attorney with no prior

disciplinary history where attorney used settlement funds for her own personal

benefit; overdrew her attorney trust account; and submitted false information

and fabricated documents to the Bar during its investigation of her actions).

Accordingly, John Benneth Iwu is hereby suspended for a period of three years

from the date of this opinion. Iwu is reminded of his duties under Bar Rule

4-219 (c).

Three-year suspension. All the Justices concur.

6 Decided April 16, 2018.

Suspension.

Paula J. Frederick, General Counsel State Bar, Jenny K. Mittelman,

Jonathan W. Hewett, Assistant General Counsel State Bar, for State Bar of

Georgia.