In the Matter of Susan Michele Brown

Susan Brown, a Georgia lawyer, agreed to serve as successor trustee of two South Carolina trusts benefiting a woman named M. B. J. She was not acting as a lawyer and was not licensed to practice law in South Carolina. While serving as trustee, she loaned trust money to help her daughter buy a hurricane-damaged house, made a paperwork error on the loan, and was slow in providing a full accounting after being removed as trustee, though she eventually provided one that no one challenged. Brown filed a petition asking the Supreme Court of Georgia to approve a short suspension, and the State Bar argued she violated two rules governing how lawyers handle other people's money. The court had to decide whether those ethics rules apply to a lawyer acting only as a fiduciary, not as an attorney. Because the rules' wording could reasonably be read either way, and reading them broadly would raise serious questions about the court's authority to regulate conduct outside the practice of law, the court adopted the narrower reading and rejected the petition for discipline.

The court held that Rules 1.15(I)(c) and 1.15(II)(b) do not apply to a lawyer acting as a fiduciary outside a legal representation of a client or the practice of law, because applying the canon of constitutional doubt requires choosing the narrower of two plausible readings to avoid raising serious questions about the court's authority to regulate conduct unrelated to practicing law.

The ruling means Georgia lawyers who take on side roles like trustee, team treasurer, or family fiduciary without practicing law cannot be disciplined by the State Bar for mishandling those funds under these particular rules, narrowing the Bar's reach over lawyers' non-legal activities.

Petition for voluntary discipline rejected

1. The court first read the text of the two ethics rules on their own terms, using ordinary rules of interpretation that ask what the words would mean to an average English speaker, and found the language genuinely unclear about whether it covers a lawyer acting only as a fiduciary (someone holding money in trust for another) rather than as an attorney.
2. One plausible reading treats the rules broadly: because the text mentions 'third persons' and 'any other fiduciary capacity' without expressly limiting itself to legal representation, it could cover any lawyer holding money for someone else, even outside law practice.
3. A second plausible reading treats the rules narrowly: repeated references to a 'client,' related provisions that explicitly limit themselves to work done 'in connection with a representation,' and a legal-interpretation principle called in pari materia (reading related provisions together so they fit consistently) all suggest the rules are meant to apply only when a lawyer is practicing law.
4. The court explained that adopting the broad reading could exceed its constitutional authority to regulate only the practice of law, since disciplining lawyers for unrelated fiduciary roles (like serving as a family trustee or a sports team treasurer) would stray far from protecting the public from unqualified or unprofessional legal practice.
5. Because the rule language allowed two genuinely competing, plausible interpretations, the court applied the canon of constitutional doubt, a principle that says when a rule could be read one way that raises constitutional problems and another way that avoids them, courts must choose the reading that avoids those problems.
6. Applying that narrower reading, the court concluded Brown's conduct as a trustee, unconnected to practicing law, fell outside the rules entirely, so no violation occurred and no discipline could be imposed.

• attorney discipline
• State Bar of Georgia
• trustee misconduct
• fiduciary duty
• ethics rules interpretation