Caldwell v. Mississippi Bar, s. 2011–BR–01834–SCT, 2012–BD–00049–SCT.

• Decision Date: 04 October 2012
• Docket Number: Nos. 2011–BR–01834–SCT, 2012–BD–00049–SCT.,s. 2011–BR–01834–SCT, 2012–BD–00049–SCT.
• Citation: 118 So.3d 549
• Parties: Kathleen L. CALDWELL v. THE MISSISSIPPI BAR. The Mississippi Bar v. Kathleen L. Caldwell.
• Court: Mississippi Supreme Court

118 So.3d 549

Kathleen L. CALDWELL

v.THE MISSISSIPPI BAR.

The Mississippi Bar

v.Kathleen L. Caldwell.

Nos. 2011–BR–01834–SCT, 2012–BD–00049–SCT.

Supreme Court of Mississippi.

Oct. 4, 2012.

Kathleen L. Caldwell, for appellant/appellee.

Adam B. Kilgore, Jackson, for appellee/appellant.

EN BANC.

WALLER, Chief Justice, for the Court:

¶ 1. These consolidated cases are comprised of a formal complaint filed by the Mississippi Bar seeking reciprocal discipline against attorney Kathleen L. Caldwell, following the Supreme Court of Tennessee's imposition of a two-year suspension from the practice of law in 2009 and a public censure in 2011, and a petition for reinstatement from Caldwell from her suspension imposed by this Court in 2004.

FACTS

¶ 2. In May 2004, this Court suspended Caldwell from the practice of law for ninetydays as reciprocal discipline based on a suspension of equal length imposed by the Supreme Court of Tennessee several months earlier. Miss. Bar v. Caldwell, 890 So.2d 855, 856–57 (Miss.2004). In October 2003, the Supreme Court of Tennessee had suspended Caldwell based on eighteen separate complaints of misconduct. Her “ ‘chronic ethical misconduct’ ” included: (1) failing to file pleadings and documents; (2) losing evidence; (3) allowing a statute of limitations to run; and (4) neglecting to keep her clients informed. Id. at 856 n. 1. She had been admonished informally four times prior to 2004—three times by the Supreme Court of Tennessee and once by this Court. Id. at 856.

¶ 3. In enforcing its reciprocal discipline, this Court found that Caldwell already had completed the ninety-day suspension, because she voluntarily had suspended her Mississippi law practice several months before. Id. at 857. We stated that she could petition for reinstatement if she met the conditions set forth by the Supreme Court of Tennessee. Id. Those included: (1) completing a course in ethics and professionalism at the University of Memphis School of Law and an ethics workshop conducted by the Tennessee Board of Professional Responsibility (“the Board” or “the Tennessee Board”); (2) undergoing a law-practice management evaluation and complying with its suggestions; (3) permitting disciplinary counsel for the Tennessee Board of Professional Responsibility to monitor her law practice for one year; and (4) making restitution to various ex-clients. Id.

¶ 4. More than seven and a half years later, on December 8, 2011, Caldwell petitioned this Court for reinstatement. Her two-page petition states that she has completed the prerequisite conditions for reinstatement and that she is an attorney in good standing in Tennessee.

¶ 5. In response to Caldwell's petition, the Mississippi Bar filed a motion to dismiss. It seeks to dismiss her petition on two grounds. First, the Bar argues that her petition fails to meet the requirements set forth in procedural Rule 12.7 of the Mississippi Rules of Discipline. Second, just two days before filing its motion, the Bar had filed a complaint requesting this Court to discipline Caldwell reciprocally for misconduct that had occurred in Tennessee since her May 2004 suspension.

¶ 6. After completing her 2003 Tennessee suspension, Caldwell resumed practicing law in that state. But, in March 2005, the Tennessee Board filed a petition for discipline against her. The Board alleged that Caldwell had neglected two clients' $2.6 million race-discrimination lawsuit. The aggrieved clients complained that Caldwell had done nothing on their case for four or five years. During that time, they had not been able to speak with Caldwell; they had dealt only with Caldwell's secretary, Carolyn Holland. The clients said that they eventually were informed about a $10,000 settlement offer. Upon learning this, they contacted the court and discovered that their case had been dismissed with prejudice weeks earlier for failure to prosecute. After reporting Caldwell's misconduct, they each received checks totaling $7,000 from Caldwell's personal checking account. The clients alleged, and the Board agreed, that Caldwell most likely paid the clients from her own personal funds.

¶ 7. Six months later, the Board filed a supplemental petition for discipline against Caldwell. The supplemental petition charged that Caldwell had failed to properly supervise a nonlawyer assistant, that she had neglected a client's case, that she had engaged in misrepresentation, and that she had failed repeatedly to respond in a timely manner to an ethics complaint against her.

¶ 8. The Board filed yet another supplemental petition for discipline in March 2006. That petition alleged that Caldwell's negligence and failure to communicate had caused a client's case to be dismissed. The client, as a result, had filed an ethics complaint. After the complaint was filed, Caldwell informed the client that she no longer could represent the client in two pending matters. Yet, in one of those pending cases, Caldwell did not tell the opposing party that she had withdrawn from representation. Instead, Caldwell continued representation, settled the case, had the settlement check made payable to herself and the former client, and paid herself a third of the total amount. Caldwell blamed these acts and omissions on her former secretary, Holland. To the extent that Holland was responsible, the Board charged Caldwell with violating the rules of professional conduct by allowing a nonlawyer assistant to engage in such misconduct.

¶ 9. Caldwell entered a conditional guilty plea ¹ to the petition and supplemental petitions for discipline. Accordingly, in March 2009, the Supreme Court of Tennessee suspended Caldwell from the practice of law for twenty-four months—an actual suspension of six months, followed by a probation period of eighteen months. The court ordered Caldwell to report monthly to a “practice monitor” during the probation period to ensure that she complied with the rules of professional conduct. The court further required Caldwell to pay all costs and expenses within ninety days of the date of entry of the order.

¶ 10. Seventeen months into the twenty-four month suspension, in August 2010, the Board filed another petition for discipline against Caldwell. Caldwell had resumed practicing law under probation in October 2009, but the Board asserted that she had been ineligible to do so because she had failed to pay costs and expenses within ninety days of the court's March 2009 order. Caldwell had not satisfied that condition until March 2010; thus, she had engaged in the unauthorized practice of law from October 2009 to March 2010. Caldwell also entered a conditional guilty plea to this complaint. Consequently, in June 2011, the Supreme Court of Tennessee ordered that Caldwell be publicly censured and required her to pay the costs and expenses of the proceeding.

¶ 11. On January 9, 2012, the Mississippi Bar filed a complaint requesting that Caldwell be disciplined reciprocally based on the Supreme Court of Tennessee's March 2009 and June 2011 disciplinary orders. The complaint does not allege Caldwell committed misconduct in this state; rather, the Bar merely seeks to have Caldwell reciprocally disciplined for her misconduct in Tennessee. The Bar does not request or recommend any specific punishment; it simply recommends that Caldwell be disciplined and be required to pay the costs and expenses associated with the complaint.

¶ 12. In her answer to the Bar's complaint, Caldwell attributes the events that led to her March 2009, twenty-four-month suspension in Tennessee to Holland. Holland, Caldwell says, had caused the two individuals with the $2.6 million race-discrimination lawsuit to believe that Caldwell would represent them, and had created documents and forged checks from Caldwell's personal account. Caldwell says that she terminated Holland in May 2005; afterward, she received calls from numerous purported clients, none of whom she had agreed to represent. She maintains that she self-reported to the Tennessee Board of Professional Responsibility and contacted the Memphis Police Department and the Tennessee Attorney General's Office regarding more than $200,000 that was missing from her general-account funds. Holland eventually repaid the money, according to Caldwell. As for the June 2011 public censure, Caldwell says that she had believed that she had complied fully with the requirements imposed by the Tennessee Supreme Court in its March 2009 order.

¶ 13. Caldwell maintains that she has fulfilled all the requirements of the March 2009 and June 2011 orders, including the payment of all costs and expenses. A letter from the chief disciplinary counsel for the Tennessee Board, dated November 18, 2011, states that Caldwell is a member in good standing of the Tennessee Bar. The letter further confirms that Caldwell has completed the requirements set forth in the Supreme Court of Tennessee's October 2003 order of suspension. The letter, however, is silent concerning the March 2009 and June 2011 orders.

¶ 14. Caldwell requests that this Court deny the Bar's complaint and motion to dismiss and grant her petition for reinstatement to the practice of law.

DISCUSSION

I. The Bar's Complaint

¶ 15. Under Rule 13 of the Mississippi Rules of Discipline, when sanctions are imposed against an attorney by another jurisdiction, such sanctions are grounds for disciplinary action in this state. Further, the rule provides that an order of enforcement from another jurisdiction serves as “conclusive evidence of the guilt of the offense or unprofessional conduct” alleged. M.R.D. 13. Hence, this Court will not pursue any further fact-finding but, rather, will determine solely the extent of the discipline to be imposed. Miss. Bar v. Gaharan, 38 So.3d 629, 630 (Miss.2010); Miss. Bar v. Ishee, 987 So.2d 909, 911 (Miss.2007).

A. Appropriate Discipline

¶ 16. In determining reciprocal discipline, “the sanction imposed in this State generally mirrors the sanction imposed in...