In re Asher

• Decision Date: 22 May 2008
• Docket Number: No. 2007-BR-01618-SCT.,2007-BR-01618-SCT.
• Citation: 987 So.2d 954
• Parties: In re Robbie K. ASHER.
• Court: Mississippi Supreme Court

987 So.2d 954

In re Robbie K. ASHER.

No. 2007-BR-01618-SCT.

Supreme Court of Mississippi.

May 22, 2008.

Robbie K. Asher, pro se.

Adam Kilgore, Jackson, for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. Pursuant to Rule 12 of the Rules of Discipline for the Mississippi State Bar, Robbie K. Asher brings his "Petition for Reinstatement to the Privilege of Practicing Law in the State of Mississippi" before this Court. On September 21, 1995, this Court affirmed the decision of a Mississippi Supreme Court complaint tribunal which imposed an eighteen-month suspension against Asher for violations of Rules 1.3, 1.4(a) and (b), and 8.4(a), (c) and (d) of the Mississippi Rules of Professional Conduct. See Asher v. The Mississippi Bar, 661 So.2d 722, 732 (Miss.1995) (Cause Number 94-BA-00324-SCT). Thereafter, in Cause Number 95-B-329, Asher was suspended for sixty days, to run consecutively to the suspension imposed in Cause Number 94-BA-00324-SCT, for violating Rule 8.1(b) of the Mississippi Rules of Professional Conduct. Subsequently, this Court has once dismissed, and once denied, Asher's petitions for reinstatement. Following its own investigation into Asher's present petition, the Mississippi Bar ("Bar") declared its opposition to his reinstatement.

FACTS

¶ 2. This Court's factual summary of the events surrounding Asher's suspension in Cause Number 94-BA-00324-SCT provides, in part, that:

[o]n November 7, 1991, [Asher] 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 property.... Haber inquired several times as to whether [Asher] had filed the complaint and after numerous inquiries, [Asher] provided Haber with a copy of what purported to be the first page of the complaint to remove cloud on the title. This document allegedly had been filed in the Hancock [County] Chancery Court. While this document was allegedly signed by the clerk as filed on November 5, 1991, the cause number was illegible.[¹] Further, the facts as developed reveal that [Asher]: 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.[²] ... [Asher] never filed an actual complaint to remove the cloud on the title in the Hancock County Chancery Court.

Subsequently and on April 14, 1992, Haber wrote [Asher] a letter whereby he fired [Asher] 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 [Asher]. 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.

The Mississippi Bar filed a formal complaint against [Asher] on September 14, 1993....

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

[Asher] 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.... [Asher] admitted that he had signed/forged the deputy clerk's signature on the document while in his office....

[Asher] in his closing statement before the tribunal, admitted that he had made a mistake and stated he had attempted to explain his actions to the best of his recollection. [Asher] 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 [Haber] and ultimately requested that the tribunal have "a little leniency in any determination that you make regarding punishment." [Asher] 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....

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

The ruling of the tribunal, now before this Court, imposed an eighteen month suspension on [Asher].

Asher, 661 So.2d at 724-26. The suspension was based upon Asher's violation of Rules 1.3,³ 1.4(a) and (b),⁴ and 8.4(a), (c) and (d)⁵ of the Mississippi Rules of Professional Conduct. See id. at 724. On appeal,⁶ this Court affirmed the eighteen-month suspension, finding that:

[Asher] actively misrepresented his client. Not only did he fail to file the complaint, he lied about it being filed and then proceeded to paint a picture of it having been filed. [Asher] went so far in actively misrepresenting his client that he fraudulently used the clerk's stamp, rolled the date back and further forged the clerk's signature.

Id. at 732.

¶ 3. On November 10, 1995, this Court ordered Asher to pay the Bar, within thirty days, $189.67 for costs and expenses incurred in Cause Number 94-BA-00324-SCT. Thereafter, in Cause Number 95-B-329, this Court suspended Asher for sixty days, to run consecutively to the suspension imposed in Cause Number 94-BA-00324-SCT, for violating Rule 8.1(b) of the Mississippi Rules of Professional Conduct.⁷ See In re Asher, 733 So.2d 815, 815 (Miss.1999). Asher's violation was based upon his failure to respond to a lawful demand for information from a disciplinary authority by not complying with the November 10, 1995, order of this Court.⁸ However, the suspension in Cause Number 95-B-329 would have been stayed if, among other conditions, Asher had provided a written apology to the Bar and the complaint tribunal for conducting an unnecessary hearing on October 23, 1995. Asher failed to meet this requirement.⁹

¶ 4. On June 18, 1998, in Cause Number 98-BR-00191-SCT, this Court granted the Bar's motion to dismiss Asher's petition for reinstatement. On March 4, 1999, in Cause Number 98-BR-01367-SCT, this Court denied Asher's following petition for reinstatement, "agree[ing] with the Bar that serious concerns remain as to whether Asher possesses the requisite legal ability as well as the requisite moral character to be reinstated into the practice of law in the State of Mississippi." In re Asher, 733 So.2d at 815. Specifically, this Court noted that:

approximately four months after Asher was suspended from the practice of law for misrepresentation, deceit, fraud and forgery, he made a misrepresentation on his Application for Real Estate Broker's License. To the question as to whether he had ever had a license suspended or revoked, he incorrectly answered in the negative. Further, we have been provided with no documentation from Asher as to his compliance with Rule 12.5 of the Mississippi Rules of Discipline which requires that he take and successfully pass the Multi-State Professional Responsibility Examination with a score of not less than 80.

On several other occasions Asher has ignored rulings adverse to his interests. Asher was assessed with costs and expenses in the total amount of $490.86 which he neglected to pay until almost two years after the assessment. This assessment was the result of Cause No. 94-BA-324 and Cause No. 95-B-329.

Asher failed to include any mention of Cause No. 95-B-329 in the present Petition for Reinstatement. In addition to being assessed with costs and expenses in this action, Asher was required to apologize, in writing, to the Bar and Tribunal for an unnecessary hearing. The Bar, apparently, never received said apology.

Id. at 815-16. In addition to denying Asher's petition for reinstatement, this Court ordered that:

Asher continue to be suspended from the practice of law in the State of Mississippi for a period of not less than one year; that he be reinstated to practice only upon petition under the provisions of Rule 12 of the Mississippi Rules of Discipline; and that prior to reinstatement he take the Multi-State Professional Responsibility Examination and achieve a score as provided in Rule 12.5 of the Mississippi Rules of Discipline.

Id. at 816.

¶ 5. It was not until November 28, 2006, that Asher wrote a letter of apology to the Mississippi Bar, the complaint tribunal, and this Court. While admitting that "[t]he original court order requiring an apology was first entered by order of the Complaint Tribunal in 1995[,]" Asher stated that he previously declined because he "felt writing an apology to be demeaning...." Eleven years later, however, Asher offered "this apology to the Mississippi Bar and its members, the Mississippi Bar Complaint Tribunal and the Supreme Court for all bad judgment and impropriety I have committed in the past."

¶ 6. Subsequently, on September 19, 2007, Asher filed his petition for reinstatement. On November 8, 2007, the Bar filed its Answer, stating its opposition to Asher's reinstatement. The Bar avers that "while Asher may be remorseful for his conduct, he has failed to acknowledge the seriousness of his misconduct." Furthermore, the Bar declares Asher's petition for reinstatement "fails to present the necessary substantive factual evidence rising to the level of a clear and convincing demonstration of rehabilitation to warrant his return to the practice of law."

STANDARD OF REVIEW

¶ 7. This Court recently reiterated that it "has `exclusive and inherent jurisdiction of matters pertaining to attorney discipline, reinstatement, and appointment of receivers for suspended and disbarred attorneys.' In re Morrison, 819 So.2d 1181, 1183 (Miss.2001) (quoting In re Smith, 758 So.2d 396, 397 (Miss.1999)). We review the evidence in disciplinary matters de novo on a case-by-case basis as triers of fact. Id." In re Kelly, 987 So.2d 925, 2008 WL 324403, 2008 Miss. LEXIS 86...