In the Supreme Court of Georgia
Decided: September 20, 2022
S22Y1106. IN THE MATTER OF JOSEPH ARRINGTON II.
PER CURIAM.
This disciplinary matter is before the Court on the report and
recommendation of special master Thomas E. Cauthorn III,
recommending that the Court disbar respondent Joseph Arrington
II (State Bar No. 023728), who was admitted to the Bar in 1996 and
who remains suspended following his failure to respond to the State
Bar’s notice of investigation. See S18Y1381 (June 18, 2018). We
agree with the special master’s recommendation and hereby order
that Arrington be disbarred.
The record reflects that the State Bar filed a notice of discipline
seeking Arrington’s disbarment and alleging that Arrington paid his
2017-2018 Bar dues with a check drawn on his trust account; that
he made deposits to his trust account from his personal account and “his American Funds account”; that he made payments from his
trust account that appeared to be related to personal expenses – to
“American Funds Balance,” to “Prog Mountain” for an insurance
premium, and to someone who appeared to be a family member; and
that on multiple occasions, he made cash withdrawals from his trust
account in amounts ranging from $25 to $350. The Bar alleged that
by this conduct, Arrington violated Rules 1.15 (I) and 1.15 (II). More
specifically, it appears from the facts alleged that the Bar asserted
that Arrington violated Rules 1.15 (I) (a)1 and 1.15 (II) (b)2 of the
1Rule 1.15 (I) (a) provides, in pertinent part, that “[a] lawyer shall hold funds or other property of clients or third persons that are in a lawyer’s possession in connection with a representation separate from the lawyer's own funds or other property.”
2 Rule 1.15 (II) (b) provides:
No personal funds shall ever be deposited in a lawyer’s trust
account, except that unearned attorney’s fees may be so held until
the same are earned. Sufficient personal funds of the lawyer may
be kept in the trust account to cover maintenance fees such as
service charges on the account. Records on such trust accounts
shall be so kept and maintained as to reflect at all times the exact
balance held for each client or third person. No funds shall be
withdrawn from such trust accounts for the personal use of the
lawyer maintaining the account except earned lawyer’s fees
debited against the account of a specific client and recorded as
such.
2
Georgia Rules of Professional Conduct (“GRPC”) found in Bar Rule
4-102 (d). The maximum sanction for a violation of Rules 1.15 (I) and
(II) (b) is disbarment.
The State Bar also filed a motion for default, which included
proof of service showing the following: the State Bar sent the notice
of discipline and an acknowledgement of service form by first class
mail to the address Arrington listed with the State Bar’s
membership department, see Bar Rule 4-203.1 (a); personal service
was attempted, but the State Bar’s investigator, who is authorized
to serve process, stated that he was unable to locate Arrington at the
listed address. See Bar Rule 4-203.1 (b) (3) (i).3 Arrington did not
3 The return-of-service form used by the Bar in this matter provides two paragraphs for the investigator to indicate with a check mark, as applicable. The first paragraph is an entry of service with a blank provided to “describe manner and place of service.” The second paragraph states: “II. Entry of Service Non Est Inventus. I have made a reasonable and diligent search and Respondent Joseph Arrington II is not to be found.” Here, the investigator checked the second paragraph.
Rule 4-203.1 (b) (3) (i) provides, in pertinent part, that “[r]eceipt of a Return of Service Non Est Inventus shall constitute conclusive proof that service cannot be perfected by personal service.” The Latin term, sometimes shortened to “non est” or abbreviated as “n.e.i.,” means “he is not found,” and is used to indicate that the person in question could not be found within the jurisdiction. See Non est inventus, Black’s Law Dictionary (11th ed. 2019).
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acknowledge service; thereafter, the State Bar perfected service by
publication under Bar Rule 4-203.1 (b) (3) (ii). In its motion, the
State Bar stated that Arrington had not filed a notice of rejection,
and the State Bar requested that this Court disbar Arrington. In
May 2020, the Court issued an order, rejecting the Bar’s
recommendation and stating that the sanction of disbarment was
not appropriate given the limited record before it and the allegations
contained in the notice of discipline. See Case No. S19Y0477 (May
4, 2020). In its May 2020 order, the Court also referred the matter
to a special master for an evidentiary hearing “to determine with
more clarity and specificity the nature and severity of Arrington’s
conduct.” Id. Shortly after the special master was appointed, the Bar
served requests for admission on Arrington, to which he did not
respond. Arrington was provided notice by certified mail of the
evidentiary hearing, and the State Bar attempted personal service
as well. However, Arrington did not attend the hearing, and there is
no indication in the record that he has made any attempt to
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communicate with the State Bar or the Special Master about this
matter.
Following the evidentiary hearing, the Special Master issued
his report and recommendation, which found, based upon the facts
deemed admitted by Arrington’s failure to respond to the requests
for admission, that Arrington knowingly used funds in his trust
account for his personal use and for purposes unrelated to a client;
knowingly deposited personal checks into his trust account;
knowingly co-mingled personal and client funds in his trust account;
and knowingly failed to keep client funds separate from his own
personal funds. We agree with the special master that by this
conduct, Arrington violated Rules 1.15 (I) (a) and 1.15 (II) (b). The
special master then considered the ABA Standards for Imposing
Lawyer Sanctions (1992), see In the Matter of Morse, 266 Ga. 652,
653 (470 SE2d 232) (1996), and the presence of mitigating and
aggravating circumstances. We also agree with the special master
that while Arrington’s lack of a prior disciplinary record is a
mitigating factor, see ABA Standard 9.23 (a), there are aggravating
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factors, including Arrington’s substantial experience in the practice
of law and his failure to participate at all in the disciplinary
proceedings, which may be deemed as an admission by failure to
respond that he refuses to acknowledge the wrongful nature of his
conduct, see ABA Standard 9.22 (g) and (i). The special master
correctly noted that this Court views trust account violations as
exceptionally serious, see, e.g., In the Matter of Coulter, 304 Ga. 81
(816 SE2d 1) (2018) (disbarring attorney for multiple violations of
trust account rules involving very large sums of client funds for
years); In the Matter of Harris, 301 Ga. 378 (801 SE2d 39) (2017)
(disbarring attorney who misappropriated funds from trust account,
mingled those funds with his own, and failed to respond to
disciplinary authorities), and recommended disbarment.
Having reviewed the record, we agree that disbarment is the
appropriate sanction for Arrington’s violations of the rules
governing trust accounts. Relatively minor violations of trust
account rules may in certain circumstances warrant a lesser
sanction than disbarment, see, e.g., In the Matter of Mathis, 312 Ga.
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626 (864 SE2d 40) (2021) (accepting petition for voluntary discipline
and imposing public reprimand for violations of Rules 1.15 (I) (a)
and 1.15 (II) (b) where no client was ultimately harmed and where
there were several mitigating factors); In the Matter of Cook, 311 Ga.
206 (857 SE2d 212) (2021) (imposing public reprimand for
acknowledged violations of trust account rules where attorney did
not act dishonestly, intentionally, or maliciously; where attorney
lacked a prior disciplinary history; and where no client was harmed);
In the Matter of Howard, 292 Ga. 413 (738 SE2d 89) (2013)
(accepting voluntary petition and imposing public reprimand where
attorney admitted violations of trust account rules). Arrington’s
utter failure to participate in the disciplinary process, however,
means that there is no basis for the Court to conclude that any
sanction less than disbarment is appropriate. See, e.g., Harris, 301
Ga. at 379 (disbarment appropriate when attorney failed to file an
answer and therefore was deemed to have admitted the allegations
of the formal complaint).
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Accordingly, it is hereby ordered that the name of Joseph
Arrington II be removed from the rolls of persons authorized to
practice law in the State of Georgia. Arrington is reminded of his
duties pursuant to Bar Rule 4-219 (b).
Disbarred. All the Justices concur.
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