In re Kurz

314 Ga. 418

877 S.E.2d 245

In the MATTER OF Dennis Robert KURZ.

S22Y0779

Supreme Court of Georgia.

Decided: August 9, 2022

James Stephen Lewis, Assistant General Counsel, Paula J. Frederick, General Counsel, Jenny K. Mittelman, William Dallas NeSmith, III, Deputy General Counsel, State Bar of Georgia, 104 Marietta Street, N.W., Suite 100, Atlanta, Georgia 30303, for Appellant.

James E. Spence, Jr., Wilson, Morton & Downs, LLC, 125 Clairemont Avenue, Suite 420, Decatur, Georgia 30030-2536, for Appellee.

Per Curiam.

This disciplinary matter is before the Court on the report and recommendation of Special Master Daniel Reinhardt, recommending that the Court accept the petition for voluntary discipline of Respondent Dennis Robert Kurz (State Bar No. 430489) and impose a three-month suspension for violations of Rules 1.3, 1.15 (I), and 1.15 (II) (b) of the Georgia Rules of Professional Conduct ("GRPC") found in Bar Rule 4-102 (d). Kurz filed the petition to resolve a formal complaint filed in State Disciplinary Board Docket ("SDBD") Nos. 7486 and 7487 and sought a public reprimand, but agreed to a suspension of up to six months. Having reviewed the record, we agree to accept the petition, but impose a public reprimand instead of a suspension.

The charges in SDBD No. 7486 arose out of an incident in which Kurz appeared in court after having consumed some alcohol at a luncheon with his fiancée. The charges in SDBD No. 7487 are unrelated to those in SDBD No. 7486 and relate to his failure to abide fully by the rules governing trust accounts in three incidents, none of which caused even potential harm to clients or third parties.

As detailed in the Special Master's report, Kurz was admitted to the State Bar of Georgia in 2003, and his practice initially involved working for firms in civil matters. Since 2013, he has maintained a solo practice concentrating on domestic matters and other civil disputes.

With respect to SDBD No. 7486, the Special Master's report details the following facts. On February 14, 2019, Kurz was scheduled to appear before the Gwinnett County Recorder's Court at 1:30 p.m. to conclude a pre-negotiated plea in a driving-without-a-license case on behalf of a client. Kurz had failed to note the court date on his schedule, and believing that his schedule ended at noon that day, he had taken his then-fiancée (now wife) to a restaurant for a Valentine's Day lunch. He had consumed a beer and some of a champagne toast by the time his paralegal called to inform him that she and the client were present in court. Kurz immediately drove to court because he did not think the client would be able to resolve the case in his absence. Upon arriving at the courthouse, Kurz asked the clerk to look up his client's name through the court's computerized attorney directory. Kurz admitted to the clerk that he was unsure of his client's name and was unaware of whether his client would need an interpreter. Kurz took the plea sheets given to him and followed the clerk's directions to the courtroom, where he spoke with his client and paralegal. He also spoke with the assistant solicitor, who confirmed that the fine would be $705 as previously quoted.

After a few moments, the court took a brief recess, and while Kurz had stepped outside the courtroom to make a call, he was summoned over the loudspeaker to report to the judge's chambers. In chambers, the judge told Kurz that it had been reported that Kurz had an odor of alcohol on his breath at check-in, and he asked Kurz, "What's the occasion?" Kurz immediately apologized and explained what had happened. The judge asked whether Kurz was impaired, and Kurz responded that he did not think he was, acknowledged that he had made an extremely poor decision to come to court under the circumstances, and stated that he never would have appeared in court after consuming alcohol but for the scheduling issue and the circumstances of his client's case. The judge said he would take Kurz at his word that this was a "one-time thing," grant a continuance, and instruct the sheriff that Kurz was not allowed to drive his car home. Kurz thanked the judge, and about two weeks later, Kurz was permitted to close the case on his client's behalf by a plea in absentia and a certified check. No evidence was presented that Kurz was actually impaired while driving or in court.¹

With regard to SDBD No. 7487, the Bar's investigation began in early 2019 after it was notified that Kurz's trust account was overdrawn by $0.09 by an Automated Clearing House payment from the account to Kurz's personal American Express account. About a week later, Kurz deposited $250 into the account, but then paid his American Express bill at a time when the trust account contained earned legal fees that had not yet been withdrawn. This resulted in his account being overdrawn by $4.33, but Kurz made a deposit within 11 days to cure it. During this time period, the account was overdrawn by $0.09 for one week and by $4.33 for 11 days, but did not contain any client or third-party funds.

A second instance of Kurz effectively commingling personal and client funds occurred in 2016 in connection with Kurz's representation of a client in pursuing civil claims related to the client's employment. Immediately after the client paid the agreed-upon fee of $6,500 directly into Kurz's trust account, Kurz transferred the funds to his operating account. Kurz and the client agreed that the matter for which the fee was paid might involve multiple parties or lawsuits, and as the matter proceeded, Kurz withdrew claims that had been asserted against a potential Georgia defendant and filed suit against another defendant in New Jersey, where Kurz is also admitted to practice.

Before the answer was due, however, the defendant provided Kurz with documentary evidence that directly undercut the client's claims. The defendant threatened to seek sanctions if the case was not withdrawn. Kurz believed that his client's claims would likely be dismissed in their entirety and that the client and Kurz would likely be sanctioned and assessed fees if the matter proceeded. The client agreed with Kurz's advice to withdraw the lawsuit without prejudice. Although Kurz had earned all of the fee, he decided to refund the entire $6,500 to his client. Kurz sent the payment to his client via a check from his trust account, and to pay that amount, Kurz put a $4,300 charge onto his personal American Express card and paid the remainder from earned attorney fees in unrelated cases that remained in the trust account but had not been withdrawn.

The third instance uncovered by the Bar of Kurz effectively commingling funds occurred in 2014 and related to Kurz's representation of a client who worked for 10 years for a cleaning subcontractor at a hospital. Kurz was retained by the client to pursue a civil action against the subcontractor....