In the Matter of Preston B. Kunda

306 Ga. 109

• Court: Supreme Court of Georgia
• Decided: June 3, 2019
• Docket: S19Y0959
• Status: Published

Opinion

306 Ga. 109 FINAL COPY

S19Y0959. IN THE MATTER OF PRESTON B. KUNDA.

PER CURIAM.

This disciplinary matter is before the Court on the petition for

voluntary discipline filed by Preston B. Kunda (State Bar No.

430210) prior to the issuance of a formal complaint pursuant to Bar

Rule 4-227 (b) (2). Kunda, who has been a member of the Bar since

1996, seeks suspension for a period of not less than 90 days and not

more than two years for his admitted violations of Rules 1.7, 1.8 (c),

and 1.15 (I) (a) and (c) of the Georgia Rules of Professional Conduct

found at Bar Rule 4-102 (d). The maximum penalty for a violation

of Rule 1.7 or Rule 1.15 (I) is disbarment; the maximum penalty for

a violation of Rule 1.8 (c) is a public reprimand. The State Bar has

responded, recommending that the Court accept Kunda’s petition

and impose a 12- to 24-month suspension. Upon review, this Court

concludes that, under the circumstances presented, a 12-month suspension is appropriate and accepts the petition for voluntary

discipline.

In his petition, Kunda admits that, in 2014, he was retained to

prepare a client’s will, in the course of which he agreed to act as the

estate’s executor without having first obtained the client’s written

informed consent to the potential conflict of interest. While claiming

he did not know so at the time, he now admits that this conduct

violated Rule 1.7 (prohibiting lawyer from undertaking

representation involving a conflict of interest, absent client’s

informed consent). Kunda admits further that, in connection with

the sale of a gun collection for the same client, he accepted on the

client’s behalf a cash payment through a firearm broker for the

$130,000 balance due, but did not count the cash upon its delivery,

and the following morning deposited $117,000 into his trust account,

thereby leaving $13,000 unaccounted for. Kunda maintains that

this $13,000 was part of the payment ultimately owed for the

broker’s services and that he thereafter made arrangements to

satisfy the debt with $13,000 worth of legal services and payments to the broker. Kunda admits, however, that in failing to safeguard

the money while it was in his possession, he violated Rule 1.15 (I)

(a) and (c) (requiring lawyer to safeguard and account for client

property held in connection with representation). Finally, Kunda

admits that, in connection with the firearm sale and on the advice

of a federal agency official, Kunda prepared a codicil to the client’s

will that was to take effect only if the client died prior to

consummation of the gun sale. The codicil provided that Kunda was

to inherit the gun collection and thereafter sell it, with the proceeds

being paid to the will’s beneficiary.1 Kunda admits that, by

preparing this codicil, he violated Rule 1.8 (c)’s prohibition on the

preparation of instruments “giving the lawyer . . . any substantial

gift.”2

1 According to Kunda, this codicil was designed to avoid the possibility

that the gun collection would pass to the will’s beneficiary, who disapproved of guns and did not wish to own them himself. 2 Notwithstanding Kunda’s admission that his preparation of the codicil

constituted a Rule 1.8 (c) violation, it may well be that the bequest of the gun collection should be characterized as having effected a constructive trust rather than a “gift” for Rule 1.8 (c) purposes. On the scant record before us, which does not include a copy of the codicil itself, we cannot make this In mitigation of his conduct, Kunda maintains that he has

never previously been the subject of any disciplinary proceeding;

that he has cooperated fully and in good faith with the State Bar in

this matter; and that he is remorseful and will never again conduct

himself in such manner. Accordingly, Kunda requests the

imposition of a suspension for a period of not less than 90 days and

not more than two years. The State Bar, while noting the serious

nature of the violations, agrees that a suspension is proper, due to

Kunda’s remorse, cooperation, and lack of disciplinary history, and

therefore recommends suspension for a period of between 12 and 24

months.

On the record before us, we agree that a suspension is

appropriate and consistent with prior disciplinary action. See In the

Matter of Harste, 285 Ga. 80 (673 SE2d 235) (2009) (12-month

suspension for violations that could have resulted in disbarment,

where attorney had no prior disciplinary history and was

determination. We thus make no finding as to whether Kunda’s conduct in this regard constituted a Rules violation. cooperative and remorseful); In the Matter of Jones, 280 Ga. 302

(627 SE2d 24) (2006) (12-month suspension for violation that could

have resulted in disbarment, where attorney had no prior

disciplinary history, had made restitution, was cooperative and

remorseful, and had used practice for good of community). See also

American Bar Association Standards for Imposing Lawyer

Sanctions Standard 4.12 (suspension appropriate when lawyer

knows or should know he is dealing improperly with client property

and causes client injury or potential injury); Standard 4.32

(suspension appropriate when lawyer knows of conflict of interest

and does not fully disclose it to client, causing injury or potential

injury). Accordingly, we find that a 12-month suspension is the

appropriate sanction in this case for Kunda’s admitted violations of

Rules 1.7 and 1.15 (I) (a) and (c). Kunda is reminded of his duties

under Bar Rule 4-219 (b).

Petition for voluntary discipline accepted. Twelve-month

suspension. All the Justices concur. Decided June 3, 2019.

Suspension.

Freeman Mathis & Gary, Dana K. Maine, Sara E. Brochstein,

for Kunda.

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

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

Mittelman, Assistant General Counsel State Bar, for State Bar of

Georgia.