In the Supreme Court of Georgia



                                     Decided:     September 22, 2014


      S14Y1394. IN THE MATTER OF NAKATA S. SMITH FITCH.

      PER CURIAM.

      This Court suspended the authorization of Nakata S. Smith Fitch (Bar No.

262068) to practice law for a period of one year, beginning on May 31, 2011,

for conduct in 2005 to 2007 that violated Rules 1.15 (I) and (II), 1.3, and 1.4 of

the Georgia Rules of Professional Conduct contained in Bar Rule 4-102 (d). See

In the Matter of Fitch, 289 Ga. 253 (710 SE2d 563) (2011). We imposed two

conditions on Smith Finch’s authorization to practice law thereafter: (1) her

attendance, prior to reinstatement, at an Ethics School offered by the State Bar;

and (2) her submission to an evaluation by the State Bar’s Law Practice

Management Program, at her expense and with successful implementation of the

resulting recommendations, within six months of reinstatement. See id. at 256.

Smith Fitch has not fulfilled either of these conditions and thus remains

suspended.

      The disciplinary matter now at issue arose out of Smith Fitch’s
involvement in a conservatorship case beginning in August 2008. In November

2008, Smith Fitch filed a petition for letters of conservatorship on behalf of a

mother and step-father whose minor child received $344,756.77 in life insurance

proceeds upon the death of the child’s father. The probate court entered a final

order in May 2009, and in June 2009, Smith Fitch filed the required annual

return for the estate indicating that she had disbursed $20,935.40 from the

minor’s estate to herself for legal fees and expenses. After reviewing the return,

the probate court set a show cause hearing for December 2, 2009, to address

these disbursements. In August 2010, Smith Fitch relocated to New York. On

September 15, 2010, the court entered an order finding that almost 30% of the

fees and expenses that Smith Fitch paid herself were unreasonable. The court

ordered her to reimburse the minor’s estate $6,002.50 within 30 days. Smith

Fitch appealed that order, but the Court of Appeals affirmed it in May 2011 –

the same month that this Court suspended her authorization to practice law for

one year. Six months later, in November 2011, the probate court held Smith

Finch in contempt of court for willfully disobeying the order to reimburse the

minor’s estate $6,002.50 and for failing to pay court costs of $1,260.

      On June 4, 2014, Smith Fitch filed a petition for voluntary discipline,

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admitting that her conduct in connection with the conservatorship case violated

Rules 1.5 and 8.4 (a) (5) of the Georgia Rules of Professional Conduct. In her

petition, Smith Fitch claims that she has been unable to comply with the probate

court’s orders to reimburse the minor’s estate and pay court costs due to her

August 2010 relocation to New York, where the cost of living is higher; her

unemployment since her move to New York; her unemployability as an attorney

since her May 2011 suspension by this Court; and her husband’s sudden illness

in 2013 and subsequent death in January 2014. Smith Fitch, who was admitted

to practice in Georgia in 1998, says that she deeply regrets being unable to

comply with the probate court’s orders and asserts that she has performed

volunteer work and often provided pro bono and discounted legal services. She

also claims to have a government contract opportunity that would enable her to

comply with the probate court’s orders, pay her Bar dues, and pursue her plans

of returning to Georgia to practice law in the future.

      Smith Fitch asks the Court to accept her petition and to impose “an

additional indefinite suspension with reinstatement conditioned on [her]

payment in full of the $6,002.50 to the minor’s estate, with any interest assessed

by the Henry County Probate Court, and payment of the $1,260.00 appeal costs

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that [she] owe[s] to the court.” The State Bar raises no objection, stating that

Smith Fitch has cooperated fully with the Bar in this disciplinary matter and that

she has experienced personal difficulties that may have affected her ability to

comply with the probate court’s September 2010 and November 2011 orders.

      Having reviewed the record, however, we reject Smith Fitch’s petition for

voluntary discipline. Although she identifies some potential mitigating factors,

she still has not complied with the conditions that we imposed in May 2011 for

her ongoing suspension to be lifted, and all she is offering to do now – as

discipline for serious additional misconduct in another case – is to comply with

her preexisting obligations to reimburse the minor’s estate $6,002.50 plus any

assessed interest and to pay $1,260 in court costs. Thus, the “additional”

sanction that Smith Fitch proposes is really no sanction at all. Smith Fitch’s

ethical failings in connection with the conservatorship case are more serious

than she appears to take them. Accordingly, we reject her petition.

      Petition for voluntary discipline rejected. All the Justices concur, except

Benham and Melton, JJ., who dissent.




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