The Georgia Supreme Court recently considered the case of W. McCall Calhoun, Jr., a member of the Georgia bar since 1990. Calhoun was subject to a bar complaint after he was “convicted of a felony and several misdemeanor federal offenses in connection with his participation in events at the United States Capitol on January 6, 2021.” The opinion explains that the Georgia Supreme Court “suspended him in an initial disciplinary matter pending the outcome of his appeal based on his violation of Rule 8.4(a)(2) (It shall be a violation of the Bar Rules for a lawyer to ‘be convicted of a felony.’)” After Calhoun was pardoned, the State Bar asked the Supreme Court to remand the disciplinary matter ton conduct a hearing. On remand, Calhoun filed a petition for voluntary discipline. Calhoun asked for a public reprimand. The State Bar agreed that a reprimand was appropriate.
The Supreme Court of Georgia rejected the petition for voluntary discipline as follows:
Having reviewed the entire record in this case, we disagree with the parties that a public reprimand is appropriate here. While it is true that we have never directly examined a Rule 8.4(a)(8) violation before, this subsection of Rule 8.4(a) provides discipline for committing a criminal act that reflects adversely on the lawyer’s fitness as a lawyer and, therefore, Rule 8.4(a)(8) imposes discipline for conduct similar to that specified in Rule 8.4(a)(2), (3), and (4). Violations of those subsections in general are considered very serious. See, e.g., In the Matter of McCall, 314 Ga. 200, 206 (2022) (holding that “a violation of Rule 8.4(a)(4) is among the most serious violations with which a lawyer can be charged.”). And while violations of Rule 8.4(a)(2), (3), and (4) do not necessarily require it, they frequently result in disbarment. See In the Matter of Barnes, 320 Ga. 589, 590-91 (2024) (on Special Master’s report and recommendation, disbarring attorney who violated Rule 8.4(a)(2) by being convicted of felony obstruction of a law enforcement officer and noting that “disbarment is an appropriate sanction in matters involving felony convictions for crimes of interference with the administration of justice, in this case felony obstruction of police”); In the Matter of Head, 320 Ga. 316, 316 (2024) (on Special Master’s report and recommendation, disbarring attorney who violated Rule 8.4(a)(3) by pleading guilty to a misdemeanor involving moral turpitude, with the Special Master defining “moral turpitude” to include actions “done contrary to justice”); In the Matter of Cummings, 291 Ga. 654, 654-55 (2012) (disbarring attorney on notice of discipline who violated Rule 8.4(a)(4) by submitting invoices for work she did not perform and making false allegations of improper conduct against city officials). The cases involving Rule 8.4(a)(2) and (3) violations are particularly relevant here, given that while Calhoun may have ultimately been pardoned for federal offenses, pardons do not prevent disbarment for the underlying activity that formed the basis of the crime that was later pardoned. See Scott v. Leathers, 78 Ga. App. 661, 664 (1949)(“disbarred attorney may not automatically be reinstated either by a special act of the legislature … or an executive pardon” (internal citations omitted)); Payne v. State, 52 Ga. App. 425, 426 (1936) (“reinstatement to the bar [does] not follow automatically from the grant of the pardon.”).[3] See also In the Matter of Beck, 264 Ind. 141, 146-47 (1976) (citing Payne as part of the overwhelming line of authority nationwide to this effect).
Moreover, while it is true that Calhoun has been suspended from practicing law since 2023, it would be improper to impose discipline in partial reliance on an involuntary interim suspension because we do not consider such a suspension to be mitigating. See In the Matter of Warnock, 272 Ga. 2, 4 (2000) (“[w]e disagree with the special master’s conclusion that Warnock’s … interim suspension … [is a] mitigating factor[ ]”). See generally In the Matter of Huber, 320 Ga. 314, 315 (2024) (accepting petition for voluntary surrender of license nunc pro tunc, because attorney had “demonstrated that he voluntarily stopped the practice of law” (emphasis added)).
Even in the absence of his admission here that he violated Rule 8.4(a)(8) based on a felony offense, Calhoun admitted to violating Rule 8.4(a)(8) based on a misdemeanor criminal act, which if not pardoned could have resulted in a Rule 8.4(a)(3) violation. See generally Calhoun I, 317 Ga. 726, 734 (noting that the “Special Master’s determination that Calhoun violated Rule 8.4(a)(3) is premature, as the Special Master made no effort to analyze whether the conduct underlying Calhoun’s misdemeanor convictions involved moral turpitude or related to his fitness to practice law”).
Moreover, as the State Bar noted in its response to the petition for voluntary discipline, the criminal acts committed by Calhoun reflect adversely on his fitness as a lawyer. See Rule 8.4(a)(8). As part of the State Bar’s response to Calhoun’s petition for voluntary discipline, it introduced Calhoun’s social media posts from January 6, 2021, which clearly suggest that he intended to participate, willingly and knowingly, in a violent takeover of the Capitol to overturn the 2020 election and that he sought to interfere with the administration of justice. Calhoun commented on social media that he was part of a group that “physically took control of the Capital [sic] building in a hand to hand hostile takeover”; they “occupied the Capitol and shut down the Government”; he was one of the “first two hundred to rush up the steps and inside after the Vanguard had clashed hard with the police and had made them retreat”; they brought the “Government to its knees”; and they were “all going back armed for war.” FC at 101. In addition, he commented that once in the Capitol building, they were met with a police barricade, which they “push[ed] through,” and that this caused “some people [to] bleed[] pretty badly.” Id. at 100. Even more concerning were his comments directed towards certain members of Congress that the group intended to harm. Calhoun stated that they “stormed upstairs… looking for members of Congress” and that they then:
kicked in Nancy Pelosi’s office door and pushed down the hall towards her inner sanctum, the mob howling with rage — Crazy Nancy probably would have been torn into little pieces, but she was nowhere to be seen — then a swat [sic] team showed, and we retreated back to the rotunda and continued our hostile take over of the Capitol Building.
FC at 102-03.
If Calhoun was as involved as his posts indicate, then it is hard for us to see how anything less than disbarment can be accepted here. Accordingly, we reject the petition for voluntary discipline and remand this matter for further proceedings. See ITMO Joshi, 315 Ga. 477, 483-84 (2023) (rejecting petition for voluntary discipline and remanding the matter for consideration of additional serious allegations). Petition for voluntary discipline rejected. All the Justices concur.“
Georgia has been a bulwark of American democracy. The Georgia state authorities, all Republicans, certified Biden’s win in the state in 2020 and resisted numerous calls by the President to reverse the result or say the election was stolen. The ruling by the Georgia Supreme Court is consistent with that law and order tradition. This is a well written and thoughtful opinion by a court that takes attorney discipline seriously, even when the politics has changed. I welcome this decision by the Georgia Supreme Court and thank them for showing a degree of intellectual honesty and courage rarely shown these days.
Ed Clinton, Jr.