The State Bar of Georgia filed a complaint against Cohran concerning transactions involving his client, Mae Norey, alleging violations of Standards 3, 4, and 45. 1
The complaint is in three counts. The special master granted the State Bar's motion for summary judgment as to count two, finding Cohran guilty of violating Standard 4.
Findings of Fact
1. The allegations in count two can be summarized as follows:
On January 18, 1979, after her husband's death, Norey entered into a contingency fee employment contract with Cohran relative to any claims she might have against her late husband's estate. In July 1979, Cohran presented an accounting document to Norey in which he billed her for his services in recovering various proceeds of the estate -- the marital home, certificates of deposit, and personal property. Norey owned these items by right at her husband's death. The house and the certificates of deposit were owned by the Noreys as joint tenants with right of survivorship. The personal property of the husband became Norey's as of right in her claim for twelve months' support. Cohran possessed superior knowledge of the laws of intestacy and probate. Hence, his representation to her that he was billing her for services rendered by him in recovering assets for her was false and fraudulent.
2. The special master found the following material facts to be undisputed as to this count:
(b) At the time of the husband's death, the Noreys held title to their residence jointly with the right of survivorship.
(c) Cohran asserted that at the time the fee arrangement was entered into, he was not aware of the status of the title of the marital residence.
(d) The husband had not made any transfer of the marital residence or his interest in it. The entire interest passed to Norey by operation of law upon her husband's death. Cohran took no action, nor was he required to take action, for that transfer to be accomplished.
(e) Four months prior to his preparation of the accounting document, Cohran prepared a deed for Mrs. Norey's signature, purportedly to effect the January 18, 1979 agreement, and conveying to him one-half interest in the property.
3. These undisputed factual circumstances establish that Cohran made a representation to Norey relative to his "entitlement" to a fee; that he billed her contrary to its terms; and that he knew at the time of the billing that under the terms of the agreement he was not entitled to the fee that he demanded. Hence, the violation was established as a matter of law.
4. The review panel adopted and approved the findings of fact of the special master and made additional findings. The review panel recommended disbarment on the following premise:
The facts of this case support not only a violation of Standard 4, but also a violation of Standards 31, 32, 61, and 63. [ 3
] However, the complaint alleges only a violation of Standards
ered of the [marital residence].
b. On all monies and property received of every kind and nature; wherever recovered and/or situated, no matter from whom recovered, above the $23,000.00 investment in the house above set forth, the [Complainant] agrees to pay [Respondent] a sum equal to 50% of the money or value of the property recovered immediately upon said recovery and parties hereto expressly agree that the [Respondent] shall have a lien upon all said property above-mentioned for the amount that he is entitled to receive as attorney's fees.
3, 4, and 45, so Respondent cannot be disciplined for a violation of any Standard by Standard 4. The facts supporting a violation of the other Standards can be considered in aggravation for purposes of imposing the highest level of discipline allowable for a violation of Standard 4.
5. The additional findings of the review panel were not established as a matter of law. However, under the rules and regulations of the State Bar, the violation of Standard 4 that was established as a matter of law was sufficient in and of itself to warrant the discipline of disbarment. Henderson v. State, 257 Ga. 618 (362 SE2d 346) (1987)
(charging for services or goods not performed or delivered can constitute a violation of the theft by taking statute, OCGA 16-8-2
). Hence, it was not necessary for the review panel to consider additional matters. See Zant v. Stephens, 250 Ga. 97 (297 SE2d 1) (1982)
(death penalty may be imposed upon the finding of at least one statutory aggravating circumstance, regardless of the invalidity of other circumstances).
6. We remand this case to the review panel to reconsider a recommendation of disbarment upon the sole offense of the violation of Standard 4.