in the Mattter of David E. Morgan, III

303 Ga. 678

• Court: Supreme Court of Georgia
• Decided: May 7, 2018
• Docket: S18Y0821
• Status: Published

Opinion

303 Ga. 678 FINAL COPY

S18Y0821. IN THE MATTER OF DAVID E. MORGAN III.

PER CURIAM.

This disciplinary matter is before the Court on the petition for voluntary

discipline filed by Respondent David E. Morgan III (State Bar No. 522250)

prior to the filing of a formal complaint. Morgan, who has been a member of

the State Bar since 1978, seeks a two-year suspension with conditions for

reinstatement for his admitted violations of Rules 1.15 (I) (b) (1) and (2) (ii),

1.15 (II) (b), and 8.4 (a) (4), the maximum penalty for a violation of each Rule

being disbarment. The State Bar has responded, recommending that this Court

accept the petition, and this Court agrees to do so.

Morgan unconditionally admits that in 2010, his client left an estate to his

heirs that included 366 acres of undivided timber land located in Wilcox

County, Georgia. In 2012, he was appointed executor of the client’s estate and

was responsible for managing the sale of harvested timber, collecting rent from

a tenant-farmer, and paying the property taxes. On January 20, 2012, Morgan opened an estate checking account where he deposited monthly rent and

proceeds from timber sales and from which he withdrew property tax payments;

the annual rent paid by the tenant-farmer was $4,100, the annual property taxes

were $2,000, and proceeds from the timber sales fluctuated depending on the

amount harvested. Morgan admits that on May 24, 2017, a hearing was

convened in the probate court of Wilcox County to settle the estate’s accounts;

that prior to the hearing, Morgan filed with the probate court bank statements,

timber sales information, and a check in the amount of $77,027.21 payable to

the estate from his trust account; that during the hearing, he admitted he had

withdrawn funds from the estate checking account and deposited those funds

into his trust account for personal use; and that the $77,027.21 check was

provided to the probate court as full repayment of the stolen estate funds before

anyone was aware of his misconduct. Accordingly, the probate court entered an

order finding that Morgan, as the executor, breached his fiduciary duties in

transferring estate funds into an account under his control for his personal use.

Morgan further states that, in 2010, his wife of 30 years, for whom he provided

long-term care due to a terminal illness, passed away; that he suffered from

anxiety and depression and often had suicidal thoughts as a result of his loss but

2 never sought treatment; and that in response to his loss he developed an intimate

relationship with a family friend, whom he married in 2011, and began spending

excessively.

Morgan admits that by his conduct he violated Rule 1.15 (I) (b) (1) and (2)

(ii), Rule 1.15 (II) (b), and Rule 8.4 (a) (4) of the Georgia Rules of Professional

Conduct found in Bar Rule 4-102 (d). The maximum sanction for a violation of

each of these Rules is disbarment.

Morgan admits that, in aggravation, he acted dishonestly and selfishly

when he transferred funds from the estate checking account into his trust

account and withdrew the funds for his own personal use, see American Bar

Association Standards for Imposing Lawyer Sanctions Standard 9.22 (b)

(dishonest or selfish motive), and that he has 29 years of experience practicing

law, see ABA Standard 9.22 (i) (substantial experience practicing law). See also

In the Matter of Morse, 266 Ga. 652 (470 SE2d 232) (1996) (noting that the

American Bar Association’s standards are instructive in these types of cases).

In mitigation, Morgan offers that he has no prior disciplinary record; that with

the loss of his wife, he experienced personal and emotional problems during the

time of his misconduct; that before the hearing, he made a good faith effort to

3 make restitution by providing the probate court a full repayment of the estate

funds; that he was cooperative with the disciplinary process by providing a

complete accounting of the estate checking account to the State Bar; and that he

has expressed remorse. See ABA Standards 9.32 (b), (c), (d), (e), and (l); In the

Matter of Rowe, 287 Ga. 822, 823 (700 SE2d 538) (2010) (mitigating factor

included that respondent suffered from personal and emotional problems during

the relevant time period); In the Matter of Champion, 275 Ga. 140, 141 (562

SE2d 179) (2002) (mitigation factors included that respondent had shown

remorse and repaid funds to her client).

Morgan requests that this Court impose a two-year suspension that

includes the following reinstatement conditions: complete a psychological

evaluation and follow all recommendations; continue attending weekly

Alcoholics Anonymous meetings; attend the State Bar’s Law Practice

Management courses; and submit a petition for reinstatement to the Review

Panel showing compliance with these conditions for reinstatement. See In the

Matter of Reddick-Hood, 296 Ga. 95, 98 (764 SE2d 416) (2014) (respondent

seeking reinstatement at the conclusion of a suspension must submit a petition

for reinstatement to the Review Panel, who will review it and any objections

4 filed by the State Bar’s Office of General Counsel and then make a

recommendation to this Court).

The State Bar does not dispute the facts as stated in Morgan’s petition and

agrees with the aggravating and mitigating factors. The State Bar asserts that

the interests of the public and the State Bar would be best served if the Court

were to accept Morgan’s petition for voluntary discipline and suspend his law

license for two years conditioned upon full compliance with the conditions set

out in his petition.

Having considered the petition for voluntary discipline and the State Bar’s

response, we agree that a two-year suspension with conditions on reinstatement

is the appropriate sanction in this case for Morgan’s admitted violations of Rules

1.15 (I) (b) (1) and (2) (ii), 1.15 (II) (b), and 8.4 (a) (4). See In the Matter of

Ballard, 279 Ga. 663 (619 SE2d 625) (2005); In the Matter of Shelfer, 278 Ga.

55 (597 SE2d 365) (2004). Accordingly, David E. Morgan III is hereby

suspended from the practice of law in the State of Georgia for two years. At the

conclusion of the two-year suspension, Morgan may seek reinstatement

provided that he obtains a certificate from a board-certified and licensed mental

health professional that he is fit to return to the practice of law and provides

5 evidence that he has been attending weekly Alcoholics Anonymous meetings

and that he has successfully participated in the State Bar’s Law Practice

Management Program. When Morgan believes that the conditions for his

reinstatement have been met, he shall demonstrate compliance in a petition for

reinstatement submitted to the Review Panel, which will then issue a report and

recommendation to this Court. Morgan shall not undertake the practice of law

until this Court issues an opinion granting or denying his petition for

reinstatement. See In the Matter of Fair, 292 Ga. 308 (736 SE2d 430) (2013).

Morgan is reminded of his duties under Bar Rule 4-219 (c).

Two-year suspension with conditions. All the Justices concur.

6 Decided May 7, 2018.

Suspension.

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

Wolanda R. Shelton, Assistant General Counsel State Bar, for State Bar of

Georgia.