In re Shelton

• Citation: 987 So.2d 898
• Decision Date: 12 October 2006
• Docket Number: No. 2005-BR-02366-SCT.,2005-BR-02366-SCT.
• Parties: In the Matter of the Petition of J. Keith SHELTON for Reinstatement to the Mississippi Bar.
• Court: Mississippi Supreme Court

987 So.2d 898

In the Matter of the Petition of J. Keith SHELTON for Reinstatement to the Mississippi Bar.

No. 2005-BR-02366-SCT.

Supreme Court of Mississippi.

October 12, 2006.

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

Adam B. Kilgore, Jackson, attorney for appellee.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. By opinion of this Court entered September 18, 2003, J. Keith Shelton was suspended from the practice of law pursuant to Rule 6(a) of the Mississippi Rules of Discipline. Miss. Bar v. Shelton, 890 So.2d 827, 831-32 (Miss.2003). His suspension was a result of his entry of a plea of guilty to charges of bribery of a judge, under the non-adjudication statute, Miss. Code Ann. § 99-15-26 (Rev.2000). On November 14, 2005, Hinds County Circuit Judge Tomie Green entered two identical orders remanding with prejudice the criminal charges against Shelton, as follows:

THIS DAY, this Cause came on to be heard on the Motion of the State of Mississippi to Remand the above styled and numbered cause, and the Court having heard and considered the same, finds the motion is well taken and should be granted based on the following representation by the State:

A thorough re-examination of the evidence reveals there is substantial doubt as to the ability of the State to carry its burden of proof in a trial. Consequently, the case lacks prosecutive merit. Judicial economy would not be served taking this case to trial when there exists such strong doubt as to the merits of the case.

IT IS THEREFORE, ORDERED AND ADJUDGED, that Remand is hereby entered with Prejudice in this cause.¹

¶ 2. On December 28, 2005, Shelton filed his petition for reinstatement asserting his entitlement to be reinstated without further action due to the dismissal of the underlying charges which resulted in his suspension. In the alternative, he states that he meets the requirements for reinstatement pursuant to M.R.D. 12, based upon the information contained in his petition for reinstatement. The Mississippi Bar recommended that Shelton is ineligible to seek reinstatement, based upon its investigation of Shelton by deposition, and its interpretation of M.R.D. 12. We conclude that Shelton is eligible for reinstatement but the petition before us fails to meet the requisite burden of proof for reinstatement. We refer this matter to a Complaint Tribunal which shall conduct an evidentiary hearing regarding the requirements of M.R.D. 12, with special attention to the facts and circumstances surrounding the underlying criminal charges.

ANALYSIS

¶ 3. This Court has exclusive and inherent jurisdiction in matters pertaining to attorney, discipline, reinstatement and appointment of receivers for suspended and disbarred attorneys. In re Reinstatement of Parsons, 890 So.2d 40, 42 (Miss. 2003); Miss. Bar v. Baldwin, 752 So.2d 996, 997 (Miss.1999) (citing In re Massey, 670 So.2d 843, 844 (Miss.1996)). Pursuant to M.R.D. 1, this Court is the final judge of matters arising under the Mississippi Rules of Discipline. Baldwin, 752 So.2d at 997. This Court sits as the trier of fact and is not bound by any substantial evidence or manifest error rule. Parsons, 890 So.2d at 42. No person disbarred or suspended for a period of six months or longer shall be reinstated to the privilege of practicing law except upon petition to this Court. M.R.D. 12. Petitioners for reinstatement have the burden of proving that they have met all the jurisdictional requirements of procedural Rule 12.7. In re Watkins, 849 So.2d 843, 848 (Miss.2002).

¶ 4. Shelton entered what he termed a "best interest" plea, also known as an Alford plea. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), adopted in this state by Reynolds v. State, 521 So.2d 914 (Miss. 1988). For the purposes of attorney discipline, this Court has found no constitutional difference between an Alford plea and a traditional guilty plea. Shelton, 890 So.2d at 830. As a result of Shelton's plea this Court suspended him pursuant to M.R.D. 6(a) which states:

Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted in any court of any state or in any federal court, or enter a plea of guilty or a plea of nolo contendere therein, or tender a guilty plea pursuant to the provisions of Miss.Code Ann. § 99-15-26 (Supp.1993) ... a certified copy of the judgment of conviction or order accepting or acknowledging the offer or tender of a guilty plea pursuant to the provisions of Miss.Code Ann. § 99-15-26 (Supp.1993), or any similar provision in state or federal law shall be presented to the Court by Complaint Counsel and shall be conclusive evidence thereof. The Court shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.

(emphasis added). This Court has the power, as a result of our decision in Miss. Bar v. Attorney G, 630 So.2d 344 (Miss. 1994), and the subsequent amendments to M.R.D. Rule 6(a) and procedure 6.1, to render immediate sanctions, without a hearing by the Complaint Tribunal, for admitted felonious conduct under the non-adjudication statutory procedure set forth in Miss.Code. Ann. Section 99-15-26 and M.R.D. 6(a). See Baldwin, 752 So.2d at 998. That point is not argued. Shelton now argues that because the charges to which he pleaded guilty have been dismissed, he is entitled to be automatically reinstated to the Bar pursuant to M.R.D. 6(b). His argument is, however, contradictory to the plain language of Rule 6(b).

¶ 5. This is a case of first impression as this Court has never interpreted the application of M.R.D. 6(b) to reinstatement following the dismissal of charges to which a guilty plea was entered under the non-adjudication statute. Rule 6(b) states:

Upon reversal of the conviction or judgment that has resulted in the automatic suspension, the attorney shall be immediately reinstated, but such reinstatement shall not bar or terminate any disciplinary proceeding instituted thereafter or then pending against the attorney. For purposes of these rules executive clemency or pardon shall not constitute reversal of the conviction and shall not bar or terminate disciplinary proceedings predicated upon such convictions or judgments. Dismissal of charges pursuant to the provision of Miss.Code Ann. § 99-15-26 (Supp. 1993), or any similar state or federal statute shall have no effect upon disciplinary proceedings or sanctions predicated upon an entry, offer or tender of a plea of guilty or nolo contendere.

The language of the 1994 amendment to Rule 6(b), shown in italics above, is clear and unambiguous. Shelton's petition for reinstatement did not claim that the dismissal of his charges occurred because of his successful completion of the non-adjudication procedure. He merely cited a portion of the trial court's orders, and made a conclusory statement that "[a]s the underlying charges upon which this Court relied in entering its Opinion suspending [him] have been dismissed, [he] is entitled to be reinstated without further action." We strongly disagree. Clearly this Court has not only the right, but the obligation, to consider a petitioner's actions and inactions in its determination of imposing sanctions, or lifting existing sanctions. The trial court's dismissal of the charges against Shelton does not require an automatic reinstatement. It merely allows the reinstatement process to begin. Therefore, this argument is without merit.

¶ 6. The Bar argues that Shelton's guilty plea to bribery makes him ineligible for reinstatement, citing M.R.D. 12(c), which states:

An attorney who has been disbarred for conviction of a felony criminal offense which occurred after April 4, 2002, in a court of this state ... for any felony crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion ... shall be ineligible for reinstatement to the practice of law.

Based on a plain reading of this rule, the Bar's argument is without merit for two reasons. First, Shelton was never disbarred by this Court for a conviction; he was suspended after entering his guilty plea. Second, the felony offense for which he pleaded guilty occurred on April 16, 1997. On its face, Rule 12(c) affects only those persons who are disbarred for conviction of a felony offense which occurred after April 4, 2002. Therefore, Shelton is eligible to petition for reinstatement.

¶ 7. To warrant reinstatement, however, Shelton's petition must satisfy the Rule 12 requirements. See In re Robb, 702 So.2d 423 (Miss.1997). The fundamental issue posed by a petition for reinstatement is the attorney's rehabilitation in conduct and character since the suspension was imposed. Id. at 424. The burden is on the petitioner to prove that he has been rehabilitated sufficiently to entitle him to reinstatement. Id. The burden of proof of a suspended 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 that the petition shall: (1) be addressed to the Court; (2) give reasons justifying reinstatement; (3) state the cause or causes for suspension or disbarment; (4) give the names and current addresses of all persons, parties, firms or legal entities who suffered pecuniary loss due to the improper conduct; (5) make full amends and restitution; (6) show the necessary moral character for the practice of law and (7) demonstrate the requisite legal education to be reinstated to the privilege of practicing law. In the case of In re Benson, 890 So.2d 888, 890 (Miss.2004), we enunciated that, for the sake of jurisprudential clarity, the...