In re Flautt, No. 2003-BR-02273-SCT.

• Decision Date: 09 September 2004
• Docket Number: No. 2003-BR-02273-SCT.
• Parties: In the Matter of the Petition of David E. FLAUTT for Reinstatement to the Mississippi Bar.
• Court: Mississippi Supreme Court

890 So.2d 928

In the Matter of the Petition of David E. FLAUTT for Reinstatement to the Mississippi Bar.

No. 2003-BR-02273-SCT.

Supreme Court of Mississippi.

September 9, 2004.

Andrew J. Kilpatrick Jr., Ridgeland, attorney for appellant.

Michael B. Martz, attorney for appellee.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. This case is before the Court, en banc, upon the petition of David E. Flautt seeking reinstatement and readmission to the Mississippi Bar. We conclude that all conditions and requirements for reinstatement have been met, save one which can only be met upon resumption of his practice of law, and we order his reinstatement, subject to that one condition.

FACTS

¶ 2. In October, 1999, this Court suspended Flautt from the practice of law for three years for misconduct involving the commingling and misuse of trust account funds. With regard to the formal complaint which was filed against him, Flautt admitted that he misappropriated a portion of $37,500 in settlement funds and misrepresented to the client what was done with the funds. During the hearing before the Complaint Tribunal, Flautt voluntarily presented testimony of two other instances in which client funds totaling approximately $75,000 in his trust account were misused. Also during the hearing there was testimony of the effect of a series of personal tragedies in Flautt's life over a period of more than four years preceding the suspension, including the deaths of his parents and the deaths of his wife's parents. There was testimony as to Flautt's psychological condition during this time that impacted his ability to manage the affairs of his practice. The Complaint Tribunal found that he violated numerous rules of professional conduct, including failure to: abide by a client's decisions; include proper contractual provisions; keep his clients reasonably informed; reduce to writing his contingency fee contract; promptly deliver to the clients any funds the clients are entitled to receive, together with an accounting therefor; keep the clients' property separate from his property until there is an accounting and a severance of their interests; and to cooperate and properly respond to the Bar's lawful request for information. Further, the Complaint Tribunal found that he violated the rules of professional conduct involving dishonesty and deceit and that he misappropriated the settlement proceeds.

¶ 3. The Tribunal, in its final judgment, specified the following conditions which must be met in order to be reinstated:

In addition to the three (3) year suspension from the practice of law imposed herein, Mr. Flautt is hereby ordered to take the Multi State Professional Responsibility Exam, as prepared by the National Conference of Bar Examiners and achieve a scaled score of not less than 80 as a condition of his reinstatement to the practice of law. Also, as a further condition to Mr. Flautt's possible reinstatement to the practice of law, Mr. Flautt is directed to continue receiving counseling from Dr. Hargrove or another duly qualified psychologist or psychiatrist and to continue receiving treatment from his family physician or a successor medical doctor until maximum medical recovery is achieved at which time each will provide a statement of certification to the General Counsel. Once Mr. Flautt is reinstated, if he is granted such privilege by the Mississippi Supreme Court, Mr. Flautt is to open a new trust/escrow account for conducting his law practice and he is to submit the monthly bank statements for such escrow/trust account to the Mississippi Bar's General Counsel for his or her review for a period of twelve (12) months following such reinstatement and Mr. Flautt's resumption of the practice of law.

Flautt repaid the money and was suspended from the practice of law for three years.

DISCUSSION

¶ 4. This Court has exclusive and inherent jurisdiction regarding the discipline of attorneys as promulgated in the Rules of Discipline for the Mississippi State Bar. Miss. Bar v. McGuire, 647 So.2d 706, 708 (Miss.1994). We conduct a de novo review in cases involving the discipline of attorneys, on a case-by-case basis, as triers of fact. In re Morrison, 819 So.2d 1181, 1183 (Miss.2001). The petitioner seeking reinstatement 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. In re Holleman, 826 So.2d 1243, 1246 (Miss.2002).

¶ 5. This Court's fundamental inquiry is whether the attorney has rehabilitated himself in conduct and character since the suspension was imposed. In re Mathes, 653 So.2d 928, 929 (Miss.1995). A firm resolve to live a correct life evidenced by outward manifestation sufficient to convince a reasonable mind clearly that the person has reformed is only required In re Underwood, 649 So.2d 825, 828-29 (Miss.1995).

¶ 6. Rule of Discipline 12, the rule governing reinstatement, provides in pertinent parts:

12.5 Subsequent to the time of eligibility for reinstatement of an attorney suspended for six months or longer, the petitioning attorney shall take the Multi-State Professional Responsibility Exam, as prepared by the National Conference of Bar Examiners, and achieve a scaled score of not less than 80, if the Complaint Tribunal determines, on a case-by-case basis, that good cause exists to require the applicant for reinstatement to take such test.

* * *

12.7 All reinstatement petitions shall be addressed to the Court, shall state the cause or causes for suspension or disbarment, give the names and current address of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct, the making of full amends and restitution, the reasons justifying reinstatement, and requisite moral character and legal learning to be reinstatement to the privilege of practicing law. Upon filing, the petition shall be served on, and an investigatory fee of $500.00 shall be paid to the Bar.... The matters set out in this paragraph shall be jurisdictional.

¶ 7. In the case of In re Benson, 890 So.2d 888, 2004 WL 1853339 (Miss.2004), this Court has enunciated the five jurisdictional requirements of Rule 12.7 in a straightforward and concise manner, to insure clarity and consistency in our analysis of reinstatement cases. Applying them to the present case, we conclude that David E. Flautt has complied with the jurisdictional requirements and should be reinstated to the practice of law subject to his complying with the two conditions described below.

1. The cause or causes for suspension.

¶ 8. Flautt readily acknowledged the commingling and misuse of trust account funds in three instances, totaling approximately $75,000, and expressed regret and contrition for his misconduct. He provided specific details of personal and traumatic events in his life, including the deaths of his parents and his wife's parents during approximately four years immediately prior to the misconduct which resulted in his suspension. He sought evaluation of his psychological condition and undertook therapy, training, and counseling to prevent such misconduct from manifesting itself again. He also has relied on the evaluation and conclusions of his psychologist and physician that he has reached the point where he is able to seek reinstatement. Attached to Flautt's petition for reinstatement were two letters, dated August 17, and September 24, 2003, from his physician, Milton D. Hobbs, M.D., and one letter dated September 12, 2003, from his psychologist, David S. Hargrove, Ph.D. All recounted Flautt's bouts with depression and his recovery from it. He has not required medication since 2000, and both Dr. Hobbs and Dr. Hargrove indicate that Flautt no longer exhibits signs or symptoms of depression and has reached maximum medical improvement. Dr. Hargrove saw Flautt on a regular basis from October 1999, to August 2002, when Dr. Hargrove left Mississippi. Since that time he has seen Flautt nine times, on occasions when he has returned to Oxford on business. Dr. Hargrove wrote in his September 12, 2003, letter that Flautt was "profoundly affected by four deaths of significant people in his life in a brief period of time immediately prior to the time period of the incidents which gave rise to the Formal Complaint. The depression appeared to be related to an accumulation of traumatic events in which he was able to do little or nothing. The impact of the trauma influenced both his personal and professional functioning." Dr. Hargrove concluded his letter by saying "if there were similar traumatic events in [Flautt's] life [in the future] it is my opinion that he would handle the situation entirely different and would seek help again if need be." We find no need for further medical or psychological examinations of Flautt as a condition for reinstatement. ¶ 9. This requirement has been fully met.

2. Names and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct.

¶ 10. Flautt provided details of his misuse of funds in his trust account which were supposed to be paid to Harold and Tanya Holt, and the Insurance Company of North America (CIGNA), which was the workers' compensation carrier claiming reimbursement of subrogation expenses from the...