Asher v. Mississippi Bar, 94-BA-00324-SCT

• Decision Date: 21 September 1995
• Docket Number: No. 94-BA-00324-SCT,94-BA-00324-SCT
• Citation: 661 So.2d 722
• Parties: Robbie K. ASHER v. The MISSISSIPPI BAR.
• Court: Mississippi Supreme Court

Page 722

661 So.2d 722

Robbie K. ASHER v. The MISSISSIPPI BAR.

No. 94-BA-00324-SCT.

Supreme Court of Mississippi.

Sept. 21, 1995.

Robbie K. Asher, Bay St. Louis, pro se.

J. David Wynne, Michael B. Martz, Jackson, for appellee.

EN BANC.

PITTMAN, Justice, for the Court:

STATEMENT OF THE CASE

This appeal arises from a decision rendered by a Mississippi Supreme Court Complaint Tribunal which imposed an eighteen month suspension against appellant for violations of Rule 1.3, Rule 1.4(a) and (b) and Rule 8.4(a), (c) and (d) of the Mississippi Rules of Professional Conduct. Aggrieved by the findings and punishment imposed by the complaint tribunal, appellant perfects this appeal and assigns the following as error for this Court's review:

I. IS THE COMPLAINT PROCEDURE ESTABLISHED BY THE SUPREME COURT FOR MEMBERS OF THE MISSISSIPPI BAR A VIOLATION OF THE DUE PROCESS CLAUSES OF THE CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF MISSISSIPPI BECAUSE IT DOES NOT PROVIDE FOR A JURY TRIAL?

II. IS THE COMPLAINT PROCEDURE ESTABLISHED BY THE SUPREME COURT FOR MEMBERS OF THE MISSISSIPPI BAR A VIOLATION OF THE DUE PROCESS CLAUSES OF THE CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF MISSISSIPPI BECAUSE IT DOES NOT HAVE AN APPEAL TO ANY OTHER COURT?

III. IS THE COMPLAINT PROCEDURE ESTABLISHED BY THE SUPREME COURT FOR MEMBERS OF THE MISSISSIPPI BAR A VIOLATION OF THE DUE PROCESS CLAUSES OF THE CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF MISSISSIPPI BECAUSE MEMBERS OF THE COMPLAINT TRIBUNAL ARE ALSO MEMBERS OF THE MISSISSIPPI BAR?

The Mississippi Bar filed a cross-appeal. The tribunal made certain findings of fact, with which the Bar agrees. However, the Bar argues that the eighteen month suspension is insufficient for the nature and course of appellant's conduct and as such requests that this Court impose additional disciplinary measures. Therefore, the Bar asserts the following as error via the cross-appeal:

DID THE COMPLAINT TRIBUNAL ERR BY NOT IMPOSING SEVERE ENOUGH PUNISHMENT AND SHOULD ADDITIONAL PUNISHMENT BE IMPOSED ON APPELLANT BY THIS COURT?

STATEMENT OF THE FACTS

The Mississippi Bar's Statement of the Facts ¹

On November 7, 1991, appellant was hired by Mr. Edwin Haber to file a complaint in the Chancery Court of Hancock County to remove a cloud on the title to certain real property. A contract of employment was executed between the two, wherein appellant would receive $2,000 from the proceeds of the sale of real property in dispute. A deed of trust was executed in order to secure this fee arrangement. According to the Bar, Haber Subsequently and on April 14, 1992, Haber wrote appellant a letter whereby he fired appellant and also demanded that he be given his file. Inside the file was a complaint, stamped November 5, 1991, with cause number 22,622, and purportedly signed by the clerk and by appellant. Haber took this file containing the complaint to the clerk's office. He was once more informed that no such document was on record as filed in that court.

inquired several times as to whether appellant had filed the complaint and after numerous inquiries, appellant provided Haber with a copy of what purported to be the first page of the complaint to remove the cloud on the title. This document allegedly had been filed in the Hancock Chancery Court. While this document was allegedly signed by the clerk as filed on November 5, 1991, the cause number was illegible. Further, the facts as developed reveal that appellant: 1) forged the clerk's signature; 2) obtained the stamp of the court and rolled the date back to November 5, 1991; and 3) actually stamped the alleged complaint as filed. Finally, appellant never filed an actual complaint to remove the cloud on the title in the Hancock County Chancery Court.

The Mississippi Bar filed a formal complaint against appellant on September 14, 1993, and appellant was actually served on September 30, 1993. On November 30, 1993, appellant filed his answer with this Court, denying all allegations contained in the Bar's complaint.

A trial before the complaint tribunal was conducted on January 24, 1994. During the course of the trial, appellant essentially admitted his actions as set forth above with regard to his representation of Haber.

Prior to the actual hearing getting underway, the Bar presented the tribunal with a letter written by appellant. In that letter dated January 10, 1994, appellant admitted to certain of the allegations contained in the Bar's formal complaint. The tribunal considered the letter and all parties agreed to proceed with developing the events via the hearing. Therefore, while the facts contained in appellant's letter were stipulated to, the intentions of appellant and the Bar were to present the entire course of events to the Tribunal so that the Tribunal could determine the facts and impose sanctions if necessary.

At the hearing, when appellant was questioned about providing Haber with a copy of the lawsuit, appellant stated that while he provided him with several copies of the unfiled suit, (not signed or stamped filed), he did not provide him with a copy of any filed suit.

Appellant did not dispute Haber's allegations and admitted that the document stamped as a filed copy of the complaint to remove cloud on title came from his office, he stated that he did not remember providing this document to Haber. "If I remembered it, I promise you I would admit it right now.... I wish I did remember it because it would settle this issue, but I do not remember." Appellant admitted that he had signed/forged the deputy clerk's signature on the document while in his office. When asked the reason for forging the clerk's signature, appellant answered:

I told Mr. Haber that I had filed it, when I genuinely thought I had. And I told him you know, I was going to go over to the courthouse and get a copy of it. Well, I went over there and, like I was saying earlier, I couldn't find it. And then--I don't know. I just--I just felt put on the spot, you know.... I was under--under pressure to get it, you know. So I got it.

* * * * * *

You know, the stupid thing is--the stupid thing that I can't figure out, why didn't I go on and file it? When I found out it wasn't filed, why didn't I walk over there next door and file the damn thing. That--I'm sorry. Why didn't I just do it?

Appellant acknowledged the April 14, 1992, letter from Haber terminating his services and requesting his file. Appellant conceded that it was almost a month before Haber received his file but also stated that he had copied and prepared the file for Haber to The Bar called Edwin Haber who testified that appellant informed him (after November 7, 1991) that his complaint had been filed. According to Haber, appellant first told him that the suit had been answered but later stated that appellant told him that it had not been answered and at that time gave him a copy of what had allegedly been filed. Haber stated that he enlisted the help of Ms. Ladner, a deputy clerk, and also Mr. Necaise, the Chancery Clerk of Hancock County, who checked the docket to see if the suit had actually been filed. ³

pick up within a week. ²

Appellant in his closing statement before the tribunal, admitted that he had made a mistake and stated that he had attempted to explain his actions to the best of his recollection. Appellant further stated that he had his life better together and that this type of action would never be taken again. He apologized for the inconvenience he caused Mr. Haber and ultimately requested that the tribunal have "a little leniency in any determination that you make regarding punishment." Appellant further stated:

I know the crime I--well, not the crime, but the offense that I did is serious and it was very bad. It was--it was one of the worst things you could do, basically deceit and abusing the trust that I had gotten with the chancery clerk's office and with the court itself. I violated that trust. But I've also worked very hard since that time, and prior to that time as well, to earn their trust and a high degree of trust with the judges and with the clerks.

* * * * * *

I understand the mistake I made. I understand the trust I violated, the responsibility to the legal profession that I violated, the responsibility to the court that I violated, to my client, as well as to the clerk's office. And I am ashamed, embarrassed and humiliated for what I did.

The Bar in closing offered Exhibit 9, a copy of an informal admonition that was rendered against appellant in 1989.

The ruling of the tribunal, now before this Court, imposed an eighteen month suspension on the appellant. The ruling held:

He misled his client Mr. Haber in believing that a suit had been filed, that a complaint had been filed regarding the matter for which Mr. Asher was employed, ... Evidence of the filing was submitted to Mr. Haber in the form of a single document which is the front page of the complaint purporting to be a copy of the original that was filed.

It was developed ... that that really is a forged document in that it was not a genuine article. In addition, the proof establishes that Mr. Asher by use of his privileges as an attorney ... abused his privilege by obtaining the filing stamp of the clerk, used by Mr. Asher to further his effort to mislead his client.

DISCUSSION OF THE LAW

Appellant argues that the complaints procedure established by this Court fails to provide due process to attorneys who go before the complaint tribunal. Specifically, appellant complains that the procedure fails to provide a jury trial and also fails to provide an alternate court for appeal purposes. Finally, appellant asserts that there is an inherent conflict of interest as members of the complaint tribunal sit to judge matters involving other attorneys, all members of the Mississippi Bar.

The tribunal's ruling held in relevant part as follows:

As a member of the Tribunal, we are all three lawyers. As...