Haimes v. Mississippi State Bar, 89-0815
| Decision Date | 18 October 1989 |
| Docket Number | No. 89-0815,89-0815 |
| Citation | 551 So.2d 910 |
| Parties | Terry M. HAIMES v. MISSISSIPPI STATE BAR. |
| Court | Mississippi Supreme Court |
Paul M. Neville, Jackson, for petitioner.
Charles J. Mikhail, Jackson, for respondent.
En Banc.
I.
We are presented today with a suspended attorney's petition for reinstatement of his license to practice law. The matter requires that we consider both substantive and procedural standards we ought observe, once the period of suspension has expired.
We hold the attorney's showing adequate and order his reinstatement.
II.
On October 25, 1988, a Complaint Tribunal 1 entered an order that Terry M. Haimes, an attorney of Winston County, Mississippi, be suspended from the practice of law for a period of six months from that date. The grounds for the suspension were the Tribunal's findings that Haimes had failed to preserve the identity of client funds by placing them in an identifiable trust account and that he had appropriated client funds to his use purportedly in payment of a fee without advising his client to that effect. The judgment of suspension imposed certain conditions, namely that Haimes be enjoined from the practice of law during the period of the suspension, that he notify clients of the suspension and return their files, papers and property to them, and that he pay all costs. Haimes sought no review of the judgment of the Tribunal in this Court and it became final.
On July 14, 1989, Haimes filed his petition in this Court seeking reinstatement. See Rule 12(a), Rules of Discipline. In his petition he alleged that the six month time period had run and that he had complied with all conditions incident to the suspension. More specifically, Haimes alleged that the matter of a fee dispute between himself and his former client, Ms. Mamye Morris Hunt of San Diego, California, had been submitted to arbitration and that the arbitrator had, by award issued January 24, 1989, determined that Hunt owed Haimes a total fee of $2,157.70 and that Haimes was entitled to an attorney's lien against a sum of $1,338.73 which, according to Haimes, "was the same fund ... he had [been] found ... [to have] improperly handled." 2
In addition, Haimes alleges that the effect of the arbitrator's award is that he has committed no mishandling of client funds and he urges that this Court reconsider the suspension order and, more importantly, the findings that he had committed disciplinary violations and vacate same.
At the request of the Court, the Mississippi State Bar on September 7, 1989, filed a response to the petition, making limited admissions, and in the end opposing reinstatement "on the grounds that [Haimes] has not presented sufficient evidence of requisite legal learning and requisite moral character, or any other reasons justifying reinstatement." No specifics are provided.
III.
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. Implicit in the judgment of suspension, stopping short of disbarment, is that the attorney's character has not been shown so deficient that proof of general moral and professional rehabilitation be required. Compare Mississippi State Bar v. Gautier, 538 So.2d 772, 775 (Miss.1989); Phillips v. Mississippi State Bar, 427 So.2d 1380, 1382 (Miss.1983).
The function of the reinstatement petition is to determine whether the attorney has complied with the terms of the suspension order and whether he has otherwise appropriately conducted himself. See Rule 12(b), Rules of Discipline; Daniels v. Mississippi State Bar, 549 So.2d 966 (Miss.1989). Also for consideration is whether the attorney should submit to further examination before reinstatement. See Procedural Rule 12.5.
Mere completion of service of a period of sentence does not automatically entitle a suspended attorney to reinstatement. Put otherwise, in the case of a six-month suspension, the attorney has no authority on the first day following the expiration of the six-month period, to resume the practice of law. Rule 12(a), Rules of Discipline. Procedural Rule 12.2 provides:
A petition for reinstatement shall be required in all cases of suspension. In cases of suspension pending satisfaction of conditions precedent, reinstatement shall not be permitted except upon proof that the conditions have been met.
Procedural Rule 12.4 provides that the petition for reinstatement "may be filed immediately upon the attorney's meeting these conditions." See Mississippi State Bar v. Young, 523 So.2d 323, 324 (Miss.1988).
The record before us establishes to our satisfaction that Haimes has performed all of the conditions imposed in the judgment of suspension of October 25, 1988. The arbitration proceeding satisfies any restitution requirement. Cf. Jennings v. Mississippi State Bar, 533 So.2d 443, 444 (Miss.1988); Burgin v. Mississippi State Bar, 453 So.2d 689, 691 (Miss.1984). The question presented is whether, in light of the Bar's opposition, Haimes is nevertheless entitled to reinstatement.
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. Whatever discipline was to be meted out for that conduct has surely been finally determined by the action of the Complaint Tribunal. There is no authority for imposing any additional punishment.
The Bar takes exception to Haimes' disclosure of the fee dispute arbitration proceedings citing the Rules of the Bar's Resolution of Fee Dispute Committee No. VIII.39 to the effect that the parties are "strictly enjoined to keep and maintain confidential all things concerning the matters concerning fee arbitration and proceedings thereon." While this rule of confidentiality is certainly one that ought be respected, we recognize and accept the propriety of Haimes advising the Court of the arbitration proceedings and the award...
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...violations of Rules 1.3, 1.4 and 8.4, indicates that both suspensions and disbarments have been imposed. In Haimes v. Mississippi State Bar, 551 So.2d 910 (Miss.1989), this Court said that "[t]his Court has ultimate responsibility for the discipline of members of the Mississippi State Bar a......
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...has not been shown so deficient that proof of general moral and professional rehabilitation is required." Haimes v. Mississippi State Bar, 551 So.2d 910, 912 (Miss.1989). Consequently, when an attorney has been disbarred rather than suspended, "[t]he fundamental question to be addressed bef......
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...attorney petitioning for reinstatement is not the same or as great as that demanded of one who has been disbarred. Haimes v. Miss. State Bar, 551 So.2d 910, 912 (Miss.1989). ¶ 8. In procedural Rule 12.7, this Court set forth the requirements for M.R.D. Rule 12 reinstatement, which provide t......