*1 Flint, Flint, Dillard, Wheeler & David H. P. W. George Richard Calhoun, Howard, Palmer & Larry Palmer, J. appellees. 38475. GEORGIA DEPARTMENT OF HUMAN RESOURCES
v. SISTRUNK et al. Justice.
Weltner, began case with filing by the Sistrunks petition for a writ corpus of habeas directed to the Georgia Department of Human us, however, Resources. It comes to on purely a matter collateral the relief sought.
The represented Hill, Sistrunks are by Bobby Jr., L. a member of the House of Representatives of the General Assembly Georgia. Department filed the trial court a motion to Hill disqualify attorney for the Sistrunks its assertion of conflict of interest. The trial motion, court held hearing on the and prepared, in his usual scholarly manner, comprehensive order which denied the motion to Hill, disqualify the essence being thereof as follows: long “As as he earns that livelihood in a manner that does not conflict with his responsibilities as a member of the Assembly, General then he cannot be disqualified, Department’s under fiduciary theory, practicing profession compensation before a unit of the Executive or Judicial branch of government.”
The Department appealed, urging that representation, Hill’s ipso facto, I, II, runs afoul of Art. Par. of the Constitution of (Code Georgia 2-201), of 1976 Ann. in part: states “Public officers are the people, times, trustees and servants of the and at all amenable Department to them.” The urges further rep- that his resentation is violative of the Code of Responsibility Professional (Code Ann. Title Appen.)
Hill asserts that the legal representation by legislators clients against the State practice sanctioned two centuries’ usage; that no jurisdiction other Republic has created court rule disqualification; such nothing suggested by Department is contrary to the Code of Professional Responsibility.
As contention, to Hill’s last agree. we There is no dual circumstances, in these plain reason that a member of the General represents not the government of State, our branches, nor departments, its agencies, but the electorate which is his constituency. With regard to his first two contentions, disagree. we practice fact that a has endured for history as all of propriety, means establishes centuries no within our want of authorities evils. Nor is the abounds ancient apply responsibility see it our persuasive, as we sister states us, not that be whether or to the facts before Constitution of holdings of other states. consistent is, then, meaning The issue this case the trustees officers are provision declaring “[p]ublic *2 to them.”1 at all times amenable people, servants of the and from its brought unchanged forward language has been 1877, I, I, in Constitution of appearance initial Art. Sec. Par. of the right, “All as follows: paragraph reading only, their will and people, upon is founded originates the the whole. Public officers are solely good instituted to people, and at all times amenable trustees and servants of in concept them.” Earlier Constitutions embraced that same Charter, very of the first differing preamble words. The “We, therefore, 1777, language: Constitution of contains this representatives power originates, all people, of the from whom intended, by power for virtue of the government whose benefit all 1861, us, declare,____” delegated to do ordain and The Constitution of 16, “A to at Art. Par. holds: faithful execution of the laws is essential order; society liberty.” good good order is essential to object government of our and the function of officers consistency days history. It is are set out with from the earliest of our therefore, important, import of the word delineating “trustees,” to examine the manner in which that term was used contemporaneously appearance with its first the Constitution 1877. 1863, 2309, Georgia
The Code of read as follows: “The § 1 provisions impose upon specified public For later which certain restrictions officers, felony any (providing, part, see Code Ann. 26-2305 that it shall be a for § employee anything officer or of the State to ask or receive of value to which he is not attempt agreement entitled return for an to influence or to influence official action State) by any employee (providing, part, other officer or of the and 26-2306 § felony who, employee it shall be a for himself or on officer or State). See, entity, any personal property behalf business sells appointive general, Concerning Ann. Code Ch. 26-23. limitations full-time Act, employees, Trading pp. State officials and see the with the State Ga. L. (Code 89-918). III, V, seq., through as amended Ann. Art. et 89-913 See also §§ IV, (Code 2-1104), required prescribing Par. 1976 Ga. Const. Ann. the oath to be § “... I taken each member of the General which includes the affirmation myself will, my judgment, will so conduct be most conducive to the interests and prosperity Concerning upon judges, of this State.” see Code of limitations (1974). Conduct, Judicial 231 Ga. A-1 to his He is profit. trustee not use the trust funds own liable must That but profits slightly account for all such made.” section differs law, 108-429, Ann. follows: “The trustee present from our Code profit. shall trust to his own He shall be liable not use the funds profits such made.” account for all Corbin, (1868), 38 Ga. dealt
The case of Caruthers v. with who, economy under the responsibility fiduciary disjointed times, Treasury obligation of an estate with Confederate settled an Notes, currency, profiting by supplying own Confederate cents the dollar. Our court condemned that was worth but five on transaction, “He plain simple proscription and laid down this promote personal p. his own interest.” Id. at can not use his trust Huff, (1878), 91. In 60 Ga. this Court dealt City of Macon things. with his mayor city with who had contracted do certain “Therefore, transaction, we in the Condemning alike that held: Macon, mayor’s city Mr. Huff could not sit a cause court of city, involving between himself and the humblest citizen of the money. Yet slightest propriety breach of or the smallest amount him in his every day judge is to make the effect of these contracts money city, do own He has contracted for certain work case. officer, city it is his mayor and as and its chief executive . . duty to work done. . His administrative see that is well *3 mayor judge him to the require duties as overlook and of executive which, contractor, discharges in as he these extent and manner disinterestedly? Possibly may; it he but the obligations. Can he do weak, by the profiting law fallen nature as all and regarding our men, prayer prescribed of for forbids that such which the Son God all man, any in exalted his office temptation path laid the of however be character____It be; how pure or matters not fair the contract his public principle not it. This is iterated and policy uphold will books____So very in first section of the everywhere reiterated the the public first of 1877 declares that officers article of the constitution So the people [omitting that trustees and servants the citation]. channels, in policy, legislative judicial and current of both man is point, runs and to one that no who steadily one direction another, public or agent for whether a or agent or trustee temptation to trustee, or be into the opportunity shall have the led care, by to his profit make of the of others entrusted out business himself, directly indirectly, respect or to that bargaining with 225, 226, pp. Id. at 228. business.” is Harrison v.
Perhaps
subject
the
treatment
earliest
(1850),
of a
relating
propriety
sheriff
McHenry,
A is, course, member General “public officer” within meaning “Certainly, the Constitution. an where elected, appointed prescribed by individual has been or in a manner law, given law, has a or him designation title and exercises concerning public, law, functions assigned to him he must Court, officer.” Bradford v. Justices Inferior regarded public (2) (1862). James, (1881): Ga. 332 Polk 128, 131 See also Ga. “An office is a employment station or conferred appointment And man who officer appointed by any duty concerning and has perform public; nor he authority the less a officer because his is confined to narrow limits.”
We have set out these venerable authorities as illuminative *4 state of law the our at the time of the the adoption initial of provision question. here must now We resolve or public whether not the characterization of officers as “the trustees people, and servants of the and all at times amenable to them” is a duty or, substantive declaration of contrary, nothing the more than bygone day. the rhetoric of a provision
That unchanged remained over a century, that it Constitution declares shall take at its word. When our we people,” of we officers the trustees and servants the “[p]ublic are are the to mean that officers interpret declaration people. trustees servants level officers, branch and at whatever
All within whatever vocations, are their of and whatever be our every disability labor under people, accordingly trustees of the and do making upon law trustees relative to prohibition imposed discharge of trusts. gain from the their personal financial attorney for his own as May people, one trustee of on behalf of another which or defend a lawsuit gain, financial initiate of another trustee to defeat the official actions seeks people? his own and for
May people, one trustee of the on behalf of another a favorable gain, negotiate financial people? dispensation at hands of another trustee may concerning legislators, one trustee Specifically — enhancement, powers office are vested the people whose diminution, of another trustee of the and destruction the office — in manner to gain for his financial act attorney and own duties of discharge by or such other trustee hinder frustrate their common trust?
No. Harrison, supra: ago in repeat today years
We what we said 132 principal, owes he must violate the which he “Either is, his own sacrifice amongst a virtue rare men exercise interest, and to to that of To this collision of another. avoid trust, infidelity imposes temptation in his law prevent positive prohibition.” him a Caruthers, supra, years ago repeat today
We what we said personal promote “He use his his own p. at 91: can not trust interest.” Macon, ago City years we repeat today
We what said be; public p. 226: “It matters not how fair contract supra, at reiterated principle is iterated and policy uphold will not it. everywhere the books.” us, prohibits a before the Constitution
Applied the case client, gain, for his own financial shall be an wherein civil transaction or matter party. opposing who legislators confined to proscriptions
Nor are the law lawyers. every public officer. They extend that we unveil no age It will be from the of our authorities seen is but to contrary. we have done precept new here. To the What *5 remove from our Constitution the blemished wrappings of ancient usage.
Judgment reversed. All concur, the Justices except Jordan, J.,C. Smith, JJ., Clarke and who dissent. May Decided
Rehearing denied June 1982. Bowers, Michael J. Attorney General, Vivian Egan, Davidson Attorney Assistant General, for appellant.
Hill, & Associates, Jones Bobby Hill, L. Sutherland, Asbill & Brennan, Michael J. Egan, Jr., Timothy W. Floyd, for appel- lees. Justice, Chief dissenting.
Jordan, One my of the reasons for point dissent is to out the fact that the majority opinion is limited to lawyer-legislator participation in civil only. question transactions posed to the only trial court dealt possible conflict of interest of a lawyer-legislator client before a agency State in a civil action. Attorney General states the issue his brief as follows: “Whether a legislator/attorney who, by office, virtue of his is a fiduciary trustee and of Georgia, amenable to them at all times, may bring a civil action on behalf of parties against a agency. . . .”
In stating position parties court, in the trial judge’s recites, order cases, “Aside from criminal it is opinion Attorney General, . . . disqualification would obtain in cases where the State plaintiff, such as proceedings, condemnation cases, well as in case, such as the instant where the State is a defendant.”
Thus the ruling of the trial court and the holding opinion only relates to civil transactions wherein the State of Georgia party and makes no holding with reference to a lawyer-legislator representing a client in a criminal transaction. my Another reason for dissent is that would an hoc ad disqualification
rule of in civil cases of this nature per rather than a se rule. Conflicts of interest are not subject to a blanket generalized A conflict appraisal. of interest appear as a thing nebulous sort of consequence without may appear harm or it blatantly so as to shock the conscience.
Applying
per
se rule of conflict of
in every
case
involving
lawyer-legislator
overlooks the fact that a lawyer-leg-
very
I agree
islator wears two
distinctive hats.
that as a he holds a
office which he holds in
people.
trust
with all
obligations
As such he is cast
the duties and
of that sacred
legislative department.
time,
trust as a member of the
At the same
times,
attorney
an
at
and at all
law
an officer of the courts
(Kellar
(175
654)
State,
(1970)),
Professional which states that should avoid appearance even the impropriety.” This Court addressed (276 Borenstein, recently canon Blumenfeld v. 247 Ga. 607) (1981) in has never been “Although SE2d which we said the issue squarely addressed in courts in have Georgia, jurisdictions other rarely willing disqualify attorney appearance been an based on the there is no the actual trial impropriety danger alone where say will be We went on to “Basic fairness will of the case tainted.” permit disqualification wrong- of an because attorney by reason of his status when as a mat- doing imputed pub- no exists . . . The mere fact that wrongdoing ter of fact is, may perceive improper some conduct without some lic with impropriety, justification insufficient for interference actual appar- more right client’s to counsel of choice. This becomes even is, is not conduct at all but perceived impropriety ent when the instead, In that case we refused to (Emphasis supplied.) status.” that an per disqualification ground se rule of on the sole adopt opposing firm an attorney’s spouse representing is a member of a party. allegation in this case there is no judge
The trial noted that He professional wrongdoing. improper imputation conduct or an looked adopt per disqualification se rule of therefore refused to His order stated that solely particular to the facts of this case. prevent construed in this order should be “nothing as a who uses his influence lawyer/legislator of a disqualification against client an advantage gain an position to self deal.” uses his the State or who agency of conclude, judge, I the learned trial agree as did lawyer/legislator for conflict question disqualification state should stand or fall on against civil actions particular judgment case. I would therefore affirm facts of each the trial court. Justice, dissenting.
Clarke, applied the law of respectfully majority I must dissent. policy the broad statement which is trusts to that a office simple proposition in fact a restatement of the old application requires an mental my trust. view such reasoning. and strained gymnastics than one definition. The capable
The word “trustee” is of more sense” and the use of the word legal use of the word a “technical distinguished legal in its broader and looser context has been Trusts, provision authorities. 3. The constitutional See CJS “trustees and servants.” The refers officers as would hold that this use of the word “trustee” was intended legal drafters of the constitution to have been the technical and I sense. could not so find. cannot believe the framers of provision Constitution intended this to cause all office holders to be up myriad majority’s in the rules of trust law. believe the caught more imposition prohibition dangers of a technical creates serious *7 perceived than the ills to be cured. sought years, For more than the State of has two hundred by Historically the legislature. benefited the existence of a citizen governmental power people. people source of has been the It was the power through who allowed the state to act as a transformer though gov- flowed the national Even the central to always power, to its source of the ernment has not remained close guarded right the to maintain a people jealously of this state have its source. One of the effective means of government which is near to people close to the has been the insistence on holding government the professional legisla- legislature distinguished citizen as from a ture. when country experienced brightest its hours citizens our part protect rights. servants have moved to
acting time something inherently that there is bad majority of the infers opinion inherently about full time part public good time servants and about proposition. out As an History does not bear this public servants. were full time citizens fired the shots Part time soldiers who example: Lexington flag at and raised the at Mt. around the world heard by signing the lives risked their servants Part time Suribachi. professionals Independence. command- time Full Declaration troops My burglary Water- at the directed the the at Lai and ed gate. majority reaching holding renders the fear that the far part
virtually impossible time full time citizens the service of making the must not overlook In this statement we servants. majority by prohibition is not limited set down fact that the nothing legislators. lawyers less Its effect can nor is it limited to governmental persons special ... a the creation of a breed than experiences by daily problems elite, great from the removed law they deprived technicality people. by Thus mass providing experiences qualify this In for them to serve. which best compensate willing them so breed, if it is the state must then decide undertaking. competent persons not, If it is will enter into that the qualifications by positions may or those who lack wellbe filled integrity perhaps deserves. which the majority Professional of the Code of found no violation support only Responsibility its trusts to the law of and looked represents legislator holding. agree since a with agencies government there is no conflict and not the Unquestionably representation. arising as a interest from dual of servant of the electorate a fulfilling charge may for a fee legislator who However, I not believe that his do the duties of office. scope goods charges of his that are outside a fee for services or principal. breaching Since a trust or a official duties is being representation case, I see no difference in this is no dual there against employed by of the electorate a member by being employed agency electorate a member state representation against entity. nongovernmental In case a either disqualification requires arise which direct conflict of present, are entitled the clients courts, a conflict is the the but unless choice. of their they with as can be dealt conflicts of interest The conclusion that majority opinion. supported in the the cases relied arise is directly position involved was financial each case the judgment. no such There is exercise of his official affected present case. of interest conflict opportunity strained In this case we have the *8 interpretation toor officials of the law of trusts my judgment, continue with that we In reason dictates reason. legislature wrongdoing punish it when that we
close to the and wrongdoing punishment Mechanisms for occurs. preventing be utilized and should are available conflicts of interest showing, would of such appropriate the absence cases. dissent. I therefore disqualify lawyer legislator. And Justice, dissenting. Smith,
The sole issue presented court whether an who must is also member of the Georgia General disqualified from representing superior a client in a when court opposing party is the State of Georgia. Although concedes that nothing Responsibility Code of Professional Sistrunks, would be violated Hill’s it interprets II, (Code Art. Par. of our Constitution Ann. § 2-201) “a legislator from prohibit a client own any civil transaction or matter wherein the State of gain, financial Georgia shall be an opposing party.” (Emphasis supplied.) I cannot agree provision of our constitution was intended to achieve such a result. colony
When the of Georgia was chartered there were no lawyers, as it was plan colony trustees of the that Georgia “ should be ‘a happy, flourishing colony pest ... free from that ” scourge of A lawyers.’ Coulter, mankind called Short History, 1947, p. however, UNC Press colony 74. The failed to thrive and the return of the charter to the King brought a new government. The year, same Georgia’s lawyers first arrived. Id. at 83. Lawyers have been since, involved in Georgia government ever my opinion rightly “Lawyers so. legislators often serve as or as holders of other desirable, offices. highly lawyers This is uniquely are qualified to make significant contributions improvement 8-8, of the legal system.” EC Code Ann. Title 9 Appendix. indicate that most . . . legislators lawyers,
“[Statistics farmers, merchants, or these, insurance or real estate brokers. Of all except lawyers frequently personal have a direct state legislation . . . would seem imposition undesirable for the [I]t on legislators’ outside [restrictions result a further activities] narrowing of occupational classes legislators from which will be drawn ... hardly an item of employee concern to state [T]here or officer which does not fall under the aegis legislature. many Included are subjects perennially scrutiny under every legislator affect no matter occupation, what his such as tax rates, fees, auto utility rates; license other concerns such as ‘blue laws, sky’ qualifications, teachers’ likely barbers’ licenses are affect certain Note, lawmakers in their chosen fields.” Conflicts of Interest of Legislators, (1963) 76 Harv. L. Rev. (Emphasis supplied, omitted). footnotes
553 result in is an inevitable activity pursuit Outside of careers do, Additional legislature.1 of having, part-time as most states a might legislators of of state regulation potential of conflicts closely not desirable, imposed if hastily be regulation, but such to be is whose behavior tailored to the circumstances of those able or attorneys being easily result in far fewer governed, could Assembly. willing to serve our General submit, is, only not not today The broad rule we establish to happen also closely circumstances of who legislators tailored to the a merely establishing attorneys importantly, be more we are not it experience if shows to may rule which be modified or abolished Georgia of today imposed as a matter unwise: The rule we establish is Thus, only taking step legislature not are we a constitutional law. take,2 any legislative future foreclosing has chosen not to we are amendment. subject action on the short of lawyers directory rule behavior presently regarding We have a public office shall not: lawyer “A who holds public who are officials. obtain, (1) obtain, special attempt public position use his or for a client under matters for himself or advantage legislative is not it obvious that such action circumstances where he knows or (2) influence, or interest; position to public use his client; himself or of a influence, in favor of attempt a tribunal to act lawyer (3) when the knows any person value from accept anything of purpose influencing the offer is for or it obvious 8-101, Appendix. Ann. 9 Code Title action as a official.” DR Co., v. Canal Ins. 246 the effect of law. Cambron Directory rules have (269 426) (1980). Attorney General does SE2d The Ga. 151 Rather, Attorney General’s DR allege any violation of 8-101. of the General per se for a member position improper is that it is against the State private party litigation Assembly represent II, Georgia Par. because Art. agency, or a (Code 2-201) right, “All Ann. states: Constitution § only, and is upon their will people, with the is founded originates trustees Public officers are solely good of the whole. instituted times, to them.” people, and at all amenable and servants 1 $7,200 year plus day salary per $44 Legislators receive a mileage allowance for not is in session and a expenses while the General trip per Ann. 47-107. calendar week. Code round more than one regulating have been enacted the conduct of members of the Certain statutes (Abuse Office). See, Ann., Assembly. e.g., of Governmental General Code Ch. 26-23 chapter Attorney any of the Code sections this General does not contend that of the Sistrunks. have been or will be violated Hill’s is that by the argument, accepted majority, Attorney General’s Department against action the Sistrunks to the Resources, fiduciary Hill owed violates a Human Georgia.3 resides supreme power “the Georgia,
My response is that
Beall,
Beall
any
not in
institution of
people,”
(1850).
Hill owes no more of a fidu-
Representative
8 Ga.
Human
of its
ciary duty
Department
Resources
Attorney
the members of this Court owe to the
bureaucrats
than
assistants,
required
Hill is
more
General or
of his
no
position
Department
taken
of Human Resources
agree with
required
Attorney
General.
agree
than we are
Previous cases
of this court establish that a
officer
*10
promote
personal
not “use his trust to
his own
interest.” Caruthers v.
(124
Corbin,
(1868);
Wilson,
County
The
General cites no
from
proposition
representation
legislator
that
a
of a
fiduciary
in
party
litigation against
legislator’s
the State violates the
public.5
Even the federal
which has enacted
comprehensive conflict
legislation,
congressmen
of interest
allows
handle,
fee,
government
for a
court cases
which the federal
party or has
direct and
a
substantial
interest.6 18 USCA 203.
§
right
congressmen
is not shared
other federal
officials.
Compare,
USCA 205. The
in favor of
resulting
18
discrimination
§
3
majority properly rejects
argument
that Hill’s
Responsibility:
Sistrunks would violate Canon 9 of the Code of Professional
“A
Lawyer
Appearance
Impropriety.”
Should Avoid Even the
of Professional
Rule
3-109,
(276
Appendix.
Borenstein,
Ann.
Code
Title 9
See Blumenfeld v.
The constitutional relied has unchanged appearance from first Constitution carried down first years adoption, lawyer-legislators of 1877. For over 100 since its represented private against practice the State. This have clients length until “While time nor challenged not been now. neither action, oft will though repeated, sanction violation legislative law, . contemporaneous . . organic construction followed, is provision by legislature, guide continued and a safe departed from proper interpretation, to its and should not be unless *11 AmJur2d, 125, pp. manifestly erroneous.” 16 Constitutional Law § omitted). (footnotes “Similarly, many years fact that for 485-6 to a construction has been assumed to certain Id., provision important determining meaning.” is of force (footnotes omitted). 124, p. 482 It cannot be said that no doubt exists II, I of Art. Par. of the 1976 Constitution. It meaning compels certainly cannot be said that the Constitution the result practice I by majority. not overturn a sanctioned reached would by usage. more than two centuries of my branches of state have found from service all three that,
government exceptions, with rare men and women conscientious, by fair. rule adopted service are honest and path potential in the placed another obstacle majority will be but legislative misconduct Absent undeniable servants. been statutory guidelines have except where clear constitutional established, trying police business think this court do not co-equal branch of separate the outside activities of members our state I therefore dissent. THE
IN MATTER OF BROOKS. Disciplinary 105) (Supreme No. Court Per curiam. by disciplinary proceeding Georgia against the State Bar of purchase by
Robert D. Brooks arose of a used car Brooks minister, Baptist Gerald E. Fincher. As a result the from a Reverend Disciplinary Board has recommended Brooks be disbarred. Upon newspaper Rev. Fincher’s advertisement answering car, 25,1977, inspecting attorney April after Brooks on agreed purchase the car loan owed to an assuming outstanding represented Alabama bank. he himself as an negotiations, Fincher, attorney, gave produced his business card to Rev. a bill of transaction, that, sale to cover the and told Rev. Fincher since he time, handled such he things assumption all the would handle the agreed the loan. Brooks that Rev. Fincher would be relieved from responsibility further for the debt. Rev. Fincher testified that he attorney, offered to have an whose office was across the street from church, sale, look at the bill but was told Brooks that that unnecessary lawyer was because he was a and would take care of it. necessary arrangements
Brooks never made the Fincher, Alabama bank and never contacted Rev. but continued to thereafter, Shortly drive or secrete the car.1 because of financial difficulties, Brooks closed his office in Tucker left no forwarding telephone payments number or address. Rev. Fincher continued on 15, 1977, May the note from until September, 1978.2 did, Rev. however, Fincher attorney hire an and criminal and civil proceedings were commenced against Brooks in the fall of 1977. The sequence of events and exchange of letters between Brooks and Rev. Fincher’s fully are more reported in Fincher, Brooks v. days purchase, jailed Several after the Morgan County Brooks was failing pay support. released, child When he called the Alabama bank and learned that the party. loan was not assumable an out-of-state He never Rev. Fincher to contacted. effect, Later, placed but continued to storage use the car. he the car in where it remained until 1979. *12 corporation purchased Brooks’ sister’s the note from the Alabama bank and foreclosed on the car 1979. It is now driven his mother.