Gaines v. Miss. Bar, 2017–BR–00081–SCT

• Decision Date: 05 April 2018
• Docket Number: NO. 2017–BR–00081–SCT,2017–BR–00081–SCT
• Citation: 268 So.3d 484
• Court: Mississippi Supreme Court
• Parties: Philip W. GAINES v. The MISSISSIPPI BAR

268 So.3d 484

Philip W. GAINES

v.The MISSISSIPPI BAR

NO. 2017–BR–00081–SCT

Supreme Court of Mississippi.

April 5, 2018

ATTORNEY FOR APPELLANT: JOHN G. CORLEW

ATTORNEY FOR APPELLEE: ADAM B. KILGORE

EN BANC.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. Philip W. Gaines petitions this Court for reinstatement to the practice of law following his suspension. Upon review of the petition, we appointed Chancellor T. K. Moffett as a special master to conduct an evidentiary hearing to develop the record further. Concerning the matters he reviewed, Chancellor Moffett recommends that Gaines be reinstated. The Mississippi Bar also supports Gaines's reinstatement. After review, we agree. We find that Gaines has satisfied the jurisdictional requirements for reinstatement, and we grant his petition.

FACTS AND PROCEDURAL HISTORY

¶ 2. Philip Gaines was admitted to the Mississippi Bar in 1986 and primarily practiced in the area of insurance-defense law. Gaines was suspended from the practice of law by a Complaint Tribunal appointed by this Court in The Mississippi Bar v. Philip W. Gaines , Cause No. 2013–B–1056, for violating Rules 1.15(a) and (b) and 8.4(a), (b), (c), and (d) of the Mississippi Rules of Professional Conduct ("MRPC"). On April 21, 2014, the Complaint Tribunal, by means of an Agreed Opinion and Judgment, imposed a three-year suspension from the practice of law upon Gaines, effective January 22, 2013.¹

¶ 3. The Complaint Tribunal detailed the specific misconduct by Gaines in three separate matters. In the first matter, Gaines represented an insurance company in a suit for medical payments and uninsured motorist ("UM") coverage. The insurance company authorized Gaines to use $25,000 of the UM coverage toward settlement. The company placed those funds in trust with Gaines. Gaines settled the matter without using the UM funds but falsely amended the release to indicate that the $25,000 had been paid toward the settlement. Gaines then submitted false expense statements on the file for unrelated personal expenses to obtain the $25,000 held in trust.

¶ 4. In the second matter, Gaines represented the same insurance company, which authorized him to waive its medical payment subrogation rights in settlement of a case. Gaines secured a medical payment subrogation recovery of $6,666.67 for the company but did not advise the company of the receipt of those funds. Gaines submitted false expense statements on the file for unrelated personal expenses in order to obtain the amount held in trust.

¶ 5. In the third matter, Gaines represented a different insurance company related to its subrogation rights held by a medical provider. Gaines placed $6,500 from the insurance company into his firm's trust account. Gaines then submitted false expense statements on the file for unrelated personal expenses to obtain $5,498.14 of the amount held in trust.

¶ 6. The Complaint Tribunal, as part of the Opinion and Judgment, ordered Gaines to satisfy multiple conditions precedent prior to reinstatement. The Tribunal ordered Gaines to continue participation with the Lawyers and Judges Assistance Program ("LJAP"). Further, the Tribunal ordered Gaines to pay $34.99 for costs and expenses incurred by the Bar in the investigation of the informal Bar Complaint and $230 for costs and expenses the Bar incurred in prosecution of the Formal Complaint against him. Additionally, Gaines was directed to notify all of his clients, in writing, that he had been suspended and advise them that he would be unable to act as an attorney. Finally, Gaines was required to notify all parties opposite, as well as all courts and agencies in which he had an active case, that he had been suspended. Per the Tribunal's direction, Gaines filed a certificate of compliance with the Clerk of the Supreme Court with these provisions on May 20, 2014, within thirty days of entry of the Agreed Opinion and Judgment on April 21, 2014.

¶ 7. On January 19, 2017, Gaines filed his petition for reinstatement with this Court. The Bar filed its answer, supporting Gaines's petition for reinstatement. After review of the petition and the Bar's answer, this Court appointed Chancellor T. K. Moffett as a special master to further develop the record. We directed Chancellor Moffett to conduct an evidentiary hearing on the following issues:

I. Whether Philip W. Gaines engaged in the unauthorized practice of law during his suspension by:

A. Accepting employment as an expert witness, or

B. Rendering his opinion to attorneys as to which sections of an insurance policy might apply in a matter;

II. Whether Philip W. Gaines misrepresented the fact that his former law firm does not oppose his reinstatement as is intimated in the March 8, 2017, letter from Peter C. Abide, Esq.;

III. Whether Philip W. Gaines misrepresented the nature and number of the offenses that led to his suspension to those persons from whom he solicited letters of recommendation for reinstatement.

Chancellor Moffett held a hearing on October 18, 2017 (the "October hearing"), and followed that hearing with a telephonic hearing on December 11, 2017 (the "December hearing"). Per our direction, Chancellor Moffett filed his findings of fact and conclusions of law with this Court. He recommended that Gaines be reinstated. After our de novo review of the record, we agree.

STANDARD OF REVIEW

¶ 8. This Court maintains " ‘exclusive and inherent jurisdiction’ over attorney reinstatement cases." In re Reinstatement of Thompson , 156 So.3d 226, 228 (Miss. 2013) (citing In re Morrison , 819 So.2d 1181, 1183 (Miss. 2001) ). We review the evidence in disciplinary matters "de novo, on a case-by-case basis." In re Reinstatement of Thompson , 156 So.3d at 228 (citing In re Morrison , 819 So.2d at 1183 ). Mississippi Rule of Discipline 12 provides that attorneys either suspended or disbarred for a period of six months or longer must petition the Court in order to be reinstated. In re Benson , 890 So.2d 888, 889–90 (Miss. 2004) ; Miss. R. Discipline 12(a).

¶ 9. To succeed in a petition for reinstatement, a petitioner must "prove ‘that he has rehabilitated himself and has established the requisite moral character to entitle him to the privilege of practicing law.’ " In re Reinstatement of Thompson , 156 So.3d at 228 (quoting Stewart v. The Mississippi Bar , 5 So.3d 344, 346–47 (Miss. 2008) ). Further, the petitioner must "exhibit ‘[a] firm resolve to live a correct life evidenced by outward manifestation sufficient to convince a reasonable mind clearly that the person has reformed.’ " Id . (quoting In re Petition of Massey , 670 So.2d 843, 845 (Miss. 1996) ).

ANALYSIS

¶ 10. When deciding whether or not to reinstate an attorney, the main issue before the Court is "the attorney's rehabilitation in conduct and character since the disbarment." In re Benson , 890 So.2d at 890 (quoting In re Holleman , 826 So.2d 1243, 1246–47 (Miss. 2002) ). A petitioner demonstrates such rehabilitation "by meeting the jurisdictional requirements of Rule 12." Id. A "petitioner carries the burden of proving that he has rehabilitated himself and established the requisite moral character to entitle him to the privilege of practicing law." Id. To demonstrate rehabilitation, the petitioner must:

(1) state the cause or causes for suspension or disbarment;(2) give the name and current address of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct;

(3) make full amends and restitution;

(4) show that he has the necessary moral character for the practice of law; and

(5) demonstrate the requisite legal education.

Id. Further, "[t]he Bar's position, though not a jurisdictional requirement, is a factor for consideration as well." In re Reinstatement of Thompson , 156 So.3d at 228 (citing In re Benson , 890 So.2d at 890 ). Here, the Bar supports Gaines's reinstatement and asserts that he has satisfied his burden of proof.²

¶ 11. As a preliminary matter, Gaines's original suspension and discipline are not before us today. In this case, the Complaint Tribunal, pursuant to Mississippi Rule of Discipline 8, suspended Gaines for three years. Neither party appealed this judgment, and the sole issue we address today is Gaines's reinstatement. See Miss. R. Discipline 9 (governing appeals).

¶ 12. We do, however, recognize that "commingling funds is the ‘cardinal sin of the legal profession.’ " The Mississippi Bar v. Ogletree , 226 So.3d 79, 83 (Miss. 2015) (quoting Mississippi Bar v. Coleman , 849 So.2d 867, 874 (Miss. 2002) ). Further, commingling "is indeed the ultimate breach of trust." Coleman , 849 So.2d at 874. "[C]ommingling and misappropriation damage the ‘dignity and reputation of the legal profession.’ " Ogletree , 226 So.3d at 84.

¶ 13. Here, from the cold record, Gaines's conduct appears egregious. He intentionally converted his clients' funds for personal use and confessed only after being confronted by his colleagues. As discussed below, though, Gaines has evidenced rehabilitation, provided restitution and satisfied the jurisdictional requirements for reinstatement.

¶ 14. Although we certainly consider Gaines's misconduct, we will not deny reinstatement on the grounds that we may have issued a harsher punishment initially. " ‘One thing is clear and that is that the conduct upon which the original suspension proceedings were had may not furnish grounds for denial of reinstatement.’ " Matter of Reinstatement of Nixon , 618 So.2d 1283, 1289 (Miss. 1993) (quoting Haimes v. Mississippi State Bar , 551 So.2d 910, 912 (Miss.1989) ). Also, we have recognized that "[a] suspended attorney petitioning for reinstatement has the burden of proving his case, but the case he must prove is not the same or as great as that demanded of one who has been disbarred. Haimes , 551 So.2d at 912. Further, a three-year suspension—short of disbarment—is one of the strictest sanctions imposed in our caselaw. Lastly, even in the case of disbarments, a petitioner may seek reinstatement from this...