In the Matter of Paul Jason York

900 S.E.2d 614, 318 Ga. 784

• Court: Supreme Court of Georgia
• Decided: April 16, 2024
• Docket: S24Y0285
• Status: Published

Opinion

318 Ga. 784 FINAL COPY

S24Y0285. IN THE MATTER OF PAUL JASON YORK.

PER CURIAM.

This disciplinary matter is before the Court on the report and

recommendation of Special Master Michael J. Blakely, who

recommends that the Court accept the petition for voluntary

discipline filed by Respondent Paul Jason York (State Bar No.

929158) after the filing of a formal complaint, see Bar Rule 4-227 (c),

and impose a three-year suspension with conditions, nunc pro tunc

to May 1, 2020. In his petition, York, a member of the State Bar of

Georgia since 2014, admitted to violating Rules 1.7 (a), 3.3 (a), 4.1,

and 8.4 (a) (4) of the Georgia Rules of Professional Conduct

(“GRPC”), found in Bar Rule 4-102 (d). The maximum sanction for a

single violation of any of these Rules is disbarment. Neither York

nor the Bar filed exceptions in this Court to the Special Master’s

report and recommendation. For the reasons discussed below, we

reject York’s petition for voluntary discipline. After the Bar filed a formal complaint, York filed a petition for

voluntary discipline admitting the allegations against him. A

disciplinary hearing was held on June 16, 2023. In his report, the

Special Master recounted that York admitted the following facts. In

early 2020, York represented a client who was arrested and charged

with misdemeanor family violence against her husband. She was

released on bond on the condition that she not contact her husband,

but she was arrested a second time based on an allegation that she

had violated the no-contact condition. Thereafter, she was again

released on bond with the added conditions that she wear an

electronic monitoring device on her ankle and pay a monthly

monitoring fee of $347.52.

York forged the signatures of a judge and an assistant district

attorney on a court order dated March 4, 2020, that purportedly

authorized the removal of the monitoring device from the client’s

ankle. As a result, he was charged with felony forgery, and he

entered into a 36-month Pretrial Diversion Agreement (“PDA”) with

2 the district attorney’s office pursuant to OCGA § 15-18-80,1

requiring him, for the duration of the PDA, to (1) refrain from drug

and alcohol use; (2) submit to random drug tests; (3) continue

counseling with a psychologist until released; (4) continue

counseling with a substance abuse counselor until released; (5)

attend at least one weekly drug/alcohol support group meeting; (6)

attend monthly legal mentoring sessions; (7) follow the Bar’s

recommendations; and (8) “not practice law until reinstated by the

State Bar of Georgia.”2 The district attorney agreed to dismiss the

criminal charges upon York’s completion of the conditions, but if

York failed to meet those conditions, he could face prosecution.3

The Special Master observed that York committed the

misconduct at issue here in response to pressure from the client, her

1 A PDA provides “an alternative to prosecuting offenders in the criminal

justice system.” OCGA § 15-18-80 (b). The Special Master observed that, as a result of the PDA, the trial court has not entered judgment against or imposed a criminal sentence on York. 2 The Special Master found that York voluntarily stopped practicing law

in May 2020, about two months after he committed the forgery. 3 The transcript of the disciplinary hearing before the Special Master

reflects that York testified that he entered into the PDA on August 8, 2022, and he believes that it will remain in effect until at least August 8, 2025.

3 family and friends, and members of her church to procure the

removal of the monitoring device because the monthly fee caused the

client financial hardship. Moreover, York suffered from serious

substance abuse and psychological problems at the time he

committed the misconduct. However, York presented evidence that

he sought and received care from a psychologist, who evaluated him

in December 2020 and conducted a follow-up evaluation in

September 2021; successfully completed an intensive outpatient

program; and began to attend weekly counseling sessions with a

substance abuse counselor. The psychologist opined at the

disciplinary hearing that York’s judgment and mental and

emotional functioning had been impaired by his drug addiction,

clinical depression, and anxiety, which caused or contributed to his

acts of forgery, but as a result of treatment, York was in a state of

recovery and could safely practice law. The Special Master also

observed that evidence was presented that York is mentored by a

state court judge, who believes that York is ready to resume his legal

career.

4 The Special Master concluded that York’s admissions in his

petition were sufficient to establish violations of Rules 1.7 (a),4 3.3

(a),5 4.1,6 and 8.4 (a) (4).7 The Special Master then considered the

ABA Standards for Imposing Lawyer Sanctions (“ABA Standards”),

which include (1) the duty violated; (2) the lawyer’s mental state; (3)

the actual or potential injury caused by the misconduct; and (4)

aggravating or mitigating factors. See In the Matter of Morse, 266

Ga. 652, 653 (470 SE2d 232) (1996). The Special Master observed

that York violated his duty to the legal system by engaging in

deceptive conduct (i.e., forgery) during legal proceedings, see ABA

Standard 6.0; that he did so intentionally; and that his misconduct

4 Rule 1.7 (a) provides that “[a] lawyer shall not represent or continue to

represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client[.]” 5Rule 3.3 (a) provides in relevant part that “[a] lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal[.]” 6 Rule 4.1 (a) provides that “[i]n the course of representing a client a

lawyer shall not knowingly: make a false statement of material fact or law to a third person[.]” 7 Rule 8.4 (a) (4) provides that it is a violation of the GRPC for a lawyer

to “engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation.”

5 caused actual injury to the legal system, the judge, and the assistant

district attorney, and potential harm to the client’s criminal case,

though it did not appear that the unapproved removal of the

monitoring device caused the client’s case any actual harm. The

presumptive sanction for this type of misconduct is disbarment. See

ABA Standard 6.11 (disbarment appropriate when lawyer, with

intent to deceive a court, makes a false statement or submits a false

document and causes serious injury).

In aggravation, the Special Master found that the forgery was

dishonest, but noted that York sought no economic benefit for

himself, see ABA Standard 9.22 (b); that he admitted to multiple

violations of the Rules, see ABA Standard 9.22 (d); that he had

substantial experience in the practice of law, see ABA Standard 9.22

(i), because he had been practicing for six years at the time of the

misconduct; and that he had committed illegal conduct, see ABA

Standard 9.22 (k).

In mitigation, the Special Master found the absence of a prior

disciplinary record, see ABA Standard 9.32 (a); full and free

6 disclosure to the disciplinary board or a cooperative attitude toward

proceedings, see ABA Standard 9.32 (e); evidence of good character

and reputation in the form of letters attesting to York’s provision of

pro bono legal assistance in his community, see ABA Standard 9.32

(g); imposition of other penalties or sanctions due to York’s criminal

charges, see ABA Standard 9.32 (k);8 and remorse, see ABA

Standard 9.32 (l). The Special Master also gave significant

mitigating weight to York’s personal or emotional problems, see

ABA Standard 9.32 (c), because a psychologist had diagnosed him

with ADHD and observed that “cognitive impairment (related to

drug use, depression, anxiety, and burn out) played a major part in

his poor judgment” leading to his misconduct. Finally, the Special

Master gave significant weight to the mitigating factor of “mental

8 We disagree with the Special Master’s application of ABA Standard

9.32 (k) because we have held that the imposition of a criminal penalty relating to the same conduct at issue in a disciplinary matter should not be viewed as a mitigating factor. See In the Matter of Levin, 289 Ga. 170, 175 (709 SE2d 808) (2011), citing In the Matter of Ortman, 289 Ga. 130, 131-132 (709 SE2d 784) (2011) (Nahmias, J., concurring).

7 disability or substance abuse problem,” see ABA Standard 9.32 (i),9

because although York suffered from drug abuse and psychological

problems at the time of his misconduct, he had shown significant

evidence of recovery. Specifically, the Special Master recited that in

his 2020 evaluation, the psychologist found that at the time of his

misconduct, York was abusing his ADHD medications and

methamphetamine, which “likely caused him to be adept at

dishonesty, shading the truth and covering up mistakes and

wrongdoing.” However, in his 2021 evaluation, the psychologist

noted that York “has been very involved in a milieu of treatments to

improve his health and functioning”; that his mood and cognitive

9 ABA Standard 9.32 (i) provides that an attorney’s “mental disability or

chemical dependency including alcoholism or drug abuse” can be considered mitigating when (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.

8 functioning had improved; that he had not relapsed; and that his

“drug/alcohol problems are in remission.”

The Special Master observed that in Georgia, an attorney’s

submission of fabricated documents is a serious offense that may

justify disbarment. Cf. In the Matter of Manning-Wallace, 287 Ga.

223, 224 (695 SE2d 237) (2010) (Nahmias, J., concurring). However,

mitigating factors may support a suspension even where the offense

would justify disbarment, such as an attorney’s demonstration of a

sustained recovery from the substance abuse that led to his

misconduct. See In the Matter of Adams, 291 Ga. 173 (729 SE2d 313)

(2012) (accepting petition for voluntary discipline and imposing

public reprimand, on special master’s recommendation, for attorney

who violated numerous provisions of the GRPC, but showed that his

misconduct was caused in part by substance abuse, from which he

had undergone significant rehabilitation and was maintaining his

recovery); In the Matter of Jaconetti, 291 Ga. 772 (732 SE2d 447)

(2012) (attorney’s misconduct was mitigated by the fact that it was

likely attributable to his mental illness and severe emotional

9 distress; three-year suspension for multiple violations, including

Rule 8.4 (a) (4)). The Special Master noted that York had

demonstrated significant mitigating factors, and he had taken

concrete steps to overcome his substance abuse problem and address

his psychological issues, resulting in improved cognitive functioning

and a “remission” of his addiction.

To be sure, the Special Master acknowledged that in Manning-

Wallace, this Court rejected an attorney’s petition for voluntary

discipline requesting a Review Panel reprimand when the attorney

offered fabricated insurance documents into evidence in a case on

her own behalf, rather than on behalf of a client; moreover, she

initially denied that the documents had been fabricated or that she

had offered them into evidence. 287 Ga. at 224. See also In the

Matter of Dogan, 282 Ga. 783 (653 SE2d 690) (2007) (disbarring

attorney who produced fabricated pay stubs in child support case

against him, with the intent to deceive the other party; no mitigating

factors). But the Special Master attempted to distinguish the facts

of this case by noting that York submitted the forged order on behalf

10 of his client, not himself; he did not attempt to mislead the Bar or

the Special Master; he admitted to the factual allegations and Rule

violations; and there were significant mitigating factors. The Special

Master opined that although York forged the signatures with the

intent to deceive, his only possible selfish motivation would have

been to relieve himself of the pressure from his client and her

supporters. The Special Master stated that in forging the

signatures, York was not seeking financial gain; he was not

consciously seeking to harm anyone; and he acknowledged the

harmful nature of his conduct.

The Special Master thus recommended that the Court accept

York’s petition and impose a three-year suspension with the

following conditions during the suspension: (1) complying with the

terms of the PDA; (2) attending counseling with the psychologist and

with the substance abuse counselor, weekly support group meetings,

and monthly legal mentoring meetings; and (3) as preconditions to

reinstatement, (a) obtaining a certification from a medical doctor or

psychologist that he is fit to practice law and that his emotional and

11 substance abuse problems have been addressed, (b) providing proof

that he is in compliance with the PDA, and (c) providing proof that

he complied with his obligations to attend counseling and support

meetings pursuant to the second condition. Moreover, the Special

Master noted that if York is convicted of a crime arising from the

same facts as this disciplinary matter, the Bar may seek all

disciplinary sanctions authorized by the Bar Rules, including

disbarment. The Special Master concluded that, subject to York’s

compliance with the conditions for reinstatement, it would be

appropriate for the suspension to be imposed nunc pro tunc to May

1, 2020, the date York stopped practicing law, because York provided

a letter from his former law partner (who is also his father)

regarding his efforts to withdraw from all of his cases by May 2020,

and a letter from the clerk of court in the county where he primarily

practiced indicating that he had not filed any court documents since

May 2020. See In the Matter of Onipede, 288 Ga. 156, 157 (702 SE2d

136) (2010) (“[W]hen an attorney requests [discipline] nunc pro tunc,

it is the lawyer’s responsibility to demonstrate that [he] voluntarily

12 stopped practicing law, the date on which [his] law practice ended,

and that [he] complied with all the ethical obligations implicated in

such a decision, such as assisting clients in securing new counsel

and facilitating the transfer of client files and critical information

about ongoing cases to new counsel.”).

We commend the Special Master for his thorough analysis of

the facts and issues in this case. We disagree, however, with the

recommendation to accept York’s petition while his criminal forgery

charges remain pending. Although we recognize that a pretrial

diversion agreement is considered an “alternative to prosecut[ion],”

see OCGA § 15-18-80 (b), the prosecution remains open during the

pendency of the PDA, and York has admitted that his PDA will not

expire until at least August 8, 2025, see n.3, supra. If we were to

accept York’s petition, he would be eligible to have his three-year

suspension imposed nunc pro tunc to May 1, 2020, the date on which

he offered evidence that he stopped practicing law, and he would be

eligible for reinstatement because more than three years have

passed since that date. But if he were permitted to resume practicing

13 law before the PDA expires, “the public is likely to lose respect for

the legal system,” just as it would if an attorney were permitted to

resume the practice of law while serving criminal probation. In the

Matter of Paine, 280 Ga. 208, 210 (625 SE2d 768) (2006). The same

reasoning applies when felony charges remain pending, albeit under

a pretrial diversion agreement.

Moreover, we have previously found it appropriate to impose

an interim or emergency suspension on an attorney pending the

resolution of his or her felony charges. See, e.g., In the Matter of

Morris, 298 Ga. 864, 864-865 (785 SE2d 408) (2016) (granting

attorney’s voluntary petition for emergency suspension pending the

resolution of his disciplinary and criminal matters); In the Matter of

Smith, 297 Ga. 46, 46 (771 SE2d 901) (2015) (granting attorney’s

petition for indefinite suspension pending the outcome of felony

theft by conversion and forgery charges arising from attorney’s

representation of civil clients; State Bar observed that attorney’s

request “strikes a reasonable balance between the need for public

protection and [attorney’s] right to defend against the criminal

14 charges”); In the Matter of Galette, 292 Ga. 341 (737 SE2d 691)

(2013) (granting attorney’s request for suspension of license pending

the resolution of criminal charges, the underlying facts of which

were related to a grievance filed with the State Bar by the attorney’s

client); In the Matter of Swank, 288 Ga. 479 (704 SE2d 807) (2011)

(granting lawyer’s voluntary petition for a suspension pending the

resolution of his felony criminal charges). Although York voluntarily

ceased practicing law, thereby obviating a need for the Bar to seek

an emergency suspension, a similar rationale in protecting the

public applies to not permitting York to resume practicing law while

the charges remain unresolved.

For these reasons, we conclude that York’s proposed discipline

is insufficient because it would be inappropriate to impose his

requested three-year suspension nunc pro tunc under the

circumstances of this case. Accordingly, we reject York’s petition for

voluntary discipline. See generally In the Matter of Veach, 310 Ga.

470, 472 (851 SE2d 590) (2020) (noting Court’s practice, when

15 finding proposed discipline insufficient, of rejecting a petition for

voluntary discipline rather than imposing a greater sanction).

Petition for voluntary discipline rejected. All the Justices concur.

Decided April 16, 2024.

Petition for voluntary discipline.

Paula J. Frederick, General Counsel State Bar, William D.

NeSmith III, Deputy General Counsel State Bar, Jenny K.

Mittelman, William V. Hearnburg, Jr., Assistant General Counsel

State Bar, for State Bar of Georgia.

Cathey & Strain, Dennis T. Cathey, for York.