In re Cohen

BENHAM, Justice,

dissenting.

I respectfully disagree with the majority’s determination that disbarment is the appropriate level of discipline to be imposed in this case. In disbarring respondent Cohen, the majority has dramatically departed from the level of discipline recommended by the Investigative Panel of the State Bar (one-year suspension with reinstatement conditioned upon completion of ethics school and the submission of a written apology to the Superior Court of Crisp County) with no explanation other than the observation that respondent’s behavior “demonstrates a complete disregard of the obligations and responsibilities owed by attorneys both to their clients and to the legal profession.” I respectfully suggest that all attorneys who face State Bar disciplinary proceedings which result in the imposition of discipline by this Court by means of published opinion have demonstrated a similar lack of regard, yet not all such disciplined attorneys are disbarred for their transgressions because this Court, in imposing discipline, attempts to distinguish the salvageable from the incorrigible.

In the case at bar, the Investigative Panel of the State Disciplinary Board determined Mr. Cohen violated the Georgia Rules of Professional Conduct and recommended a one-year suspension; my review of the sparse record leads me to the same conclusion — Mr. Cohen violated several rules, but he is salvageable. He was admitted to the practice of law in Georgia in 1976 and took inactive status in 1982. He has maintained a law office in Ft. Myers, Florida, where he is a resident and a member of the State Bar of Florida. As of November 2004, Mr. Cohen had no history of disciplinary action other than the grievance presently before us. He undertook representation of the grievant, a fellow resident of Florida, in a criminal matter pending in Crisp County, Georgia, at a time when Mr. Cohen had not resumed active status in the State Bar of Georgia. The client complained that Mr. Cohen, after getting a court hearing postponed for ten weeks, did not inform him that the Superior Court of Crisp County had refused Mr. Cohen’s request for a telephonic hearing. Due to the lack of notice from Mr. Cohen, the client missed the court date, which resulted in the issuance of a bench warrant and the client’s incarceration for failing to appear. The client asserted Mr. Cohen did not return his phone calls and, after the client terminated Mr. Cohen’s services, Mr. Cohen did not refund any money previously paid him and his office “hung up” on the two telephone calls made by the former client’s *322mother and brother to Mr. Cohen’s office.1

Decided April 26, 2005 Reconsideration denied May 23, 2005. William P. Smith III, General Counsel State Bar, Jonathan W. Hewett, Assistant General Counsel State Bar, for State Bar of Georgia.

This conduct is not in keeping with the standards to which Georgia attorneys are held and disciplinary action must be taken. I believe the Investigative Panel correctly assessed the level of discipline necessary as something “more than a public reprimand but less than disbarment.” Rule 4-102 (b) (2), Rules and Regulations of the State Bar of Georgia. I agree with the Investigative Panel’s assessment and therefore dissent from the majority’s disbarment of Mr. Cohen from the practice of law in Georgia.

The client’s assertions are contained in the grievance he filed and have been taken as true because respondent did not file a timely Notice of Rejection and Response to Pending Grievance because he sent them to the State Bar of Georgia rather than this Court. However, a Notice of Rejection and Response, filed two days late, are in the record because the State Bar’s Office of General Counsel forwarded them to this Court. Had the notice and response been received by this Court on the date of receipt acknowledged by the State Bar, the filings would have been filed on the last day possible to be deemed timely.