Cotton v. Mississippi Bar, No. 1998-BA-01488-SCT.

• Decision Date: 27 July 2000
• Docket Number: No. 1998-BA-01488-SCT.
• Citation: 809 So.2d 582
• Parties: Clencie L. COTTON v. The MISSISSIPPI BAR.
• Court: Mississippi Supreme Court

809 So.2d 582

Clencie L. COTTON v. The MISSISSIPPI BAR.

No. 1998-BA-01488-SCT.

Supreme Court of Mississippi.

July 27, 2000.

Rehearing Denied October 5, 2000.

Jack F. Dunbar, Thomas J. Suszek, Walter Alan Davis, Saltillo, Attorneys For Appellant.

Michael B. Martz, Christina Jacqueline Kelsey, Jackson, Attorneys For Appellee.

EN BANC.

PRATHER, C.J., for the Court:

INTRODUCTION

¶ 1. Attorney Clencie L. Cotton represented Phyllis Evans in a personal injury case arising out of an automobile accident, and this case was eventually settled. From the settlement money, Cotton deducted both his attorney's fee and the amount of Evans medical bills, and disbursed the rest to Evans. Thereafter, Cotton failed to pay the medical bills, and Evans' medical provider sued her to collect payment of those bills. Cotton eventually paid Evans' bills, and the lawsuit was dropped. Thereafter, Evans filed a Bar complaint against Cotton with the Mississippi Bar, resulting in a formal complaint being filed by the Bar. Cotton failed to appear and defend himself in the disciplinary proceedings and was disbarred by the Complaint Tribunal. He now appeals to this Court, asserting that although some punishment is justified, disbarment is too harsh.

STATEMENT OF THE CASE

¶ 2. In 1996, Clencie L. Cotton represented Phyllis Evans in a personal injury case, which was eventually settled for $10,000. On August 22, 1996, Evans signed the disbursement sheet, and Cotton divided the $10,000 in the following manner: kept $3,333 as his attorney fee; kept $2,846, the amount of Evans' medical bills; and disbursed the remaining $3,821 to Evans. However, Cotton never forwarded any part of that $2,846 to Evans' medical provider (hereinafter "creditor"). According to the Tribunal's Finding of Fact, the creditor tried to contact Cotton regarding the unpaid medical bills, but Cotton advised them not to harass him. According to the Assistant General Counsel's Investigatory Report, Cotton could not recall if the creditor contacted him requesting payment of the medical bills. The creditor eventually turned its account over to a collection agency, and in January, 1997, Evans was sued in Marshall County Justice Court for the unpaid medical bills. Because of Justice Court jurisdictional limits, the creditor sued for $2,499 plus $44.00 court costs, for a total of $2,543. Between the time Evans received her summons, until she was to appear in court on January 28, she could not get in touch with Cotton. Evans called him and left messages several times during this period, but she never heard back from him. When she appeared in court, she learned that Cotton had obtained a continuance in her case, although she had not asked him to do so or even spoken to him about representing her in the creditor's lawsuit. Cotton contacted Evans on February 6, 1997, and advised her that he had not paid her medical bills because he had used the money for other purposes. He said that he applied the money towards an unrelated case and office overhead. On February 7, Cotton obtained a second continuance in the Evans case. Evans still had not asked him to represent her in the matter. On February 11, Cotton paid the creditor $2,543, and paid Evans $347 (the difference between the $2,846 initially retained by Cotton for the medical bills and the $2,499 sought in Justice Court by the creditor). This payment was made from Cotton's regular operating account, as he previously admitted transferring the $2,846 in question from his escrow account into his regular operating account. As of February 11, 1997, the dispute between the creditor and Evans was over.

¶ 3. On October 13, 1997, Evans filed a bar complaint against Cotton which the Mississippi Bar, which he answered two (2) weeks later. By letter to Evans dated February 17, 1998 (53 weeks after Cotton paid the outstanding medical bills), Cotton stated that he had received notice that a hearing concerning the creditor situation was pending before the Bar Committee, and he expressed his regret over the matter. An investigatory hearing was held on March 2, 1998, and Cotton appeared and testified. A formal complaint was filed on May 13, 1998, and although Cotton was forwarded a letter stating that a formal complaint was forthcoming, he failed to return the acknowledgment accompanying said letter. Cotton was served with process on July 1, 1998, to which he never filed an answer. Cotton subsequently failed to respond to a August 19, 1998, letter informing him that the Bar was going to file a Motion for Entry of Default against him. He also failed to respond to Notice of the hearing to consider the Default Motion. The hearing on the Bar's Motion for Entry of Default was held before the Tribunal on August 28, 1998. As previously mentioned, Cotton failed to appear at this hearing. Counsel for the Bar stated that they had no knowledge of Cotton's personal life, and consequently, no idea why he failed to respond to the action being taken against him. Cotton does not contend that he suffered from diminished mental capacity, or any other physical or emotional problems in this case. Cotton previously had two (2) complaints filed against him, however, both were dismissed without any disciplinary action being taken against him. The subject matter involved in those two (2) prior complaints is unknown. After hearing the evidence presented by the Bar and prior to handing down its ruling, the members sitting on the Complaint Tribunal tried unsuccessfully to reach Cotton by telephone. The Tribunal found that Cotton violated the following Mississippi Rules of Professional Conduct:

MRPC 1.2, providing, in part, that a lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued;

MRPC 1.3, providing that a lawyer shall act with reasonable diligence and promptness in representing a client;

MRPC 1.4, providing that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, and a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation;

MRPC 1.15, which sets out the conditions for a lawyer holding property for a client; and MRPC 8.4(a) and (d), providing that it is professional misconduct for a lawyer to violate or attempt to violate the rules of professional conduct, to engage in conduct involving dishonesty, fraud, deceit or misrepresentation, or to engage in conduct that is prejudicial to the administration of justice.

The Tribunal granted the Default Judgment, and recommended to this Court that Cotton be disbarred.

¶ 4. In appealing to this Court, Cotton admits that he erred in transferring the settlement money from his escrow account to his general operating account. He further admits that he failed to pay Evans' medical bills in a timely manner. However, Cotton claims that these things occurred out of simple negligence and raises the following issue for this Court's consideration:

Although some form of punishment is appropriate in this situation, the imposition of disbarment, the ultimate sanction in a Bar disciplinary proceeding, is too harsh under the facts of this case

LEGAL ANALYSIS

¶ 5. "This Court has exclusive jurisdiction of matters pertaining to attorney discipline and reinstatement, and this Court is the ultimate judge of matters arising under the Rules of Discipline for the Mississippi Bar." Broome v. Mississippi Bar, 603 So.2d 349, 354 (Miss.1992). When reviewing disciplinary matters this Court, "reviews the evidence de novo, on a case-by-case basis, sitting as triers of fact, and no substantial evidence or manifest error rule shields the Tribunal from scrutiny." Asher v. Mississippi Bar, 661 So.2d 722, 727 (Miss.1995) (quoting Underwood v. Mississippi Bar, 618 So.2d 64, 66-67 (Miss.1993)). "[This] Court may impose sanctions either more or less severe than the Complaint Tribunal...." Broome, 603 So.2d at 353 (citing Mississippi State Bar v. Strickland, 492 So.2d 567 (Miss. 1986)).

¶ 6. In Pitts v. Mississippi State Bar Ass'n, 462 So.2d 340, 343 (Miss.1985), this Court stated the following:

The theory behind punishment imposed as the result of Bar disciplinary proceedings is that the punishment, like a criminal sanction, serves a three-fold purpose. First, there is the obvious intent to punish the wrongdoer to the degree that the sanction is appropriate for the offense. Secondly, many theories on the role of sanctions recognize their utility as a deterrence to further violations both on the part of the immediate offender and the general community. Finally, sanctions have a definite role in reinforcing the confidence of the general public in the ability of society to govern itself. This third role is particularly important in regard to Bar disciplinary proceedings because our profession assumes the responsibility of governing its members. Therefore, public confidence and faith in the integrity of the entire Bar is dependent upon our willingness to impose appropriate sanctions on our members who have violated the Code of Professional Responsibility.

¶ 7. Our case law has established that the following criteria be used in determining what sanctions to impose in an attorney discipline case:

1. the nature of the misconduct involved;

2. the need to deter similar misconduct;

3. the preservation of the dignity and reputation of the profession;

4. the protection of the public;

5. the sanctions imposed in similar cases;

6. the duty violated;

7. the lawyer's mental state 8. the actual or potential injury resulting from the misconduct; and

9. the existence of aggravating or mitigating factors.

Rogers v. Mississippi Bar, 731 So.2d 1158, 1171 (Miss.1999).

The duty violated

The nature of the misconduct involved

¶ 8. The Tribunal found...