In the Matter of John Dennis Duncan

CourtSupreme Court of Georgia
DecidedAugust 28, 2017
DocketS17Y1532
Status200

This text of In the Matter of John Dennis Duncan (In the Matter of John Dennis Duncan) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of John Dennis Duncan, (Ga. 2017).

Opinion

301 Ga. 898 FINAL COPY

S17Y1532. IN THE MATTER OF JOHN DENNIS DUNCAN.

PER CURIAM.

This case is before the Court on a petition for voluntary discipline filed by

John Dennis Duncan (State Bar No. 311056) pursuant to Bar Rule 4-227 (b)

prior to the filing of a formal complaint, in an effort to resolve two disciplinary

matters through the imposition of a six-to-twelve month suspension with

conditions on reinstatement. The State Bar has no objections to the discipline

requested.

In the petition, Duncan, who has been a member of the Bar since 2009,

admitted, with regard to State Disciplinary Board (“SDB”) Docket No. 6922,

that he agreed to represent a client in a personal injury case in February 2012;

that he did not adequately communicate with the client as the case progressed;

that pursuant to the client’s authorization, he settled the case for $28,000 and

deposited the settlement check in his IOLTA account on October 9, 2013; that

he disbursed $28,000 in funds to himself as attorney fees and delivered $2,000 to the client, advising him that the balance had to remain in the trust account

while a Medicare lien was negotiated; and that, although he knew the client had

been trying to contact him regarding the funds, he failed to adequately

communicate with the client and failed to adequately negotiate the lien. The

client finally filed a grievance against Duncan in November 2015. Duncan, who

had initially agreed to take the client’s case for a 40% contingency fee, finally

delivered the balance that he owed to the client by transferring $13,880 to the

client in October 2016 and another $920 in April 2017. In his petition, Duncan

admitted that his conduct in this case violated Rules 1.4, 1.15 (I) (a), and 1.15

(II) (b) of the Georgia Rules of Professional Conduct, see Bar Rule 4-102 (d).

He agreed, as a way to make amends to the client, to reduce his contingency fee

to 33% and to refund the difference to the client in three monthly payments

beginning in June 2017 and ending in August 2017.

With respect to SDB Docket No. 6984, Duncan admitted that he agreed

to represent another client in or about February 2015, in defense of

misdemeanor battery charges in Coweta County; that during the representation,

that client was taken into immigration custody; that he directed the client to

retain immigration counsel; that when he left his law firm in July 2015, he took

2 the client’s case with him; that in September 2015, he appeared on the client’s

behalf at a hearing in the battery case and notified the judge that the client was

in immigration custody; and that the judge issued a bench warrant to ensure the

client would be delivered to Coweta County when he was released from

immigration custody. After that time, Duncan admitted that, although the client

discharged him, he failed to formally withdraw from the representation. By this

conduct, Duncan admitted that he violated Rules 1.4 and 1.16 (c) of the Georgia

Rules of Professional Conduct, see Bar Rule 4-102 (d).

Duncan took full responsibility for his failings and the fact that his clients

have suffered as a result of his conduct. Although he admitted that he has no

excuse and understands that discipline is appropriate, he offered in mitigation

that he has no prior disciplinary history and that his behavior is the result of

personal and emotional difficulties, including an addiction, which he is trying

to overcome. His difficulties are more fully described in two sealed documents:

one is a letter from a licensed professional counselor, and the second is a

narrative authored by Duncan himself. Together, the documents describe

Duncan’s addiction; the reasons that it flared up in 2011, culminating with him

hitting rock bottom in 2015; the manner in which it affected Duncan’s behavior

3 and caused him to ignore client and family matters to his great peril and to use

the money he had access to (including settlement funds from the client in SDB

Docket No. 6922) to fuel his addiction; the ways it destroyed his existing

practice and his ability to obtain new business; his recognition that he needed

help; and his efforts, through counseling, therapy, and recovery groups, to

obtain and maintain sobriety. Duncan asserts that he now fully understands what

his behavior has wrought; that he has asked the client from SDB Docket No.

6922 for forgiveness; that he is not currently practicing law, having either

completed representation of his former clients or referred their matters to other

attorneys; that he has relocated to a new state and currently has no plans to

practice law; but that he is interested in saving his license. Based on these

mitigating factors, Duncan requests that the Court suspend him for a period

between six to twelve months, and, in an amendment to his petition, agrees that

his reinstatement should be conditioned upon certification from a licensed

counselor or therapist that he is fit to practice law and on his own certification

that the client from SDB Docket No. 6922 has been refunded the money as set

out in the petition.

In its response the Bar points out that the maximum penalty for a violation

4 of Rules 1.15 (I) (a) and 1.15 (II) (b) is disbarment, while the maximum penalty

for a violation of Rules 1.4 and 1.16 (c) is a public reprimand. The Bar indicates

that it has spoken with Duncan’s counselor (with Duncan’s permission) and

does not dispute the facts in mitigation as detailed by Duncan. The Bar correctly

notes that under the ABA Standards for Imposing Lawyer Sanctions, when a

lawyer causes injury or potential injury to a client, a suspension is appropriate

if the lawyer knew or should have known that he was dealing improperly with

the client’s property, see Standard 4.12, while a reprimand is generally

appropriate if the lawyer is merely negligent or does not act with reasonable

diligence in representing his client. See Standard 4.43. The Bar points out, in

aggravation, that Duncan’s case involves multiple offenses but asserts that, in

addition to the mitigating factors recited by Duncan, this case also involves a

timely good faith effort to make restitution or rectify the consequences of

misconduct, remorse, and a cooperative attitude toward the disciplinary

proceedings. The Bar points out that cases involving violations of Rules 1.4,

1.15 (I), 1.15 (II), and 1.16 have resulted in suspensions of six to twelve months

where the circumstances are similar to these. See In the Matter of Lank, 300

Ga. 479 (796 SE2d 252) (2017) (one-year suspension with conditions for

5 reinstatement for violations of Rules 1.3, 1.4, 1.15 (II), 1.16, and 9.3); In the

Matter of Terrell, 291 Ga. 91 (727 SE2d 499) (2012) (six-month suspension for

violations of Rules 1.4, 1.15 (I) and 1.15 (II)); In the Matter of Huggins, 291

Ga. 92 (727 SE2d 500) (2012) (six-month suspension with conditions for

reinstatement for violations of Rules 1.3, 1.4, 1.15 (I), 1.15 (II), 1.16, and 9.3

in five client matters); In the Matter of LeDoux, 288 Ga. 777 (707 SE2d 88)

(2011) (one-year suspension with conditions for reinstatement for violations of

Rules 1.3, 1.4, 1.15 (I) (b), and 1.16 (a) (2)). Thus, the Bar urges that the Court

accept Duncan’s petition so long as it imposes a suspension of six to twelve

months in length, with the below stated conditions on reinstatement.

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Related

In Re LeDoux
707 S.E.2d 88 (Supreme Court of Georgia, 2011)
In Re Huggins
727 S.E.2d 500 (Supreme Court of Georgia, 2012)
In Re Terrell
727 S.E.2d 499 (Supreme Court of Georgia, 2012)
In re Lank
796 S.E.2d 252 (Supreme Court of Georgia, 2017)
In re Duncan
804 S.E.2d 342 (Supreme Court of Georgia, 2017)

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