Levi v. Mississippi State Bar, 887

• Decision Date: 20 July 1983
• Docket Number: No. 887,887
• Citation: 436 So.2d 781
• Parties: Dempsey M. LEVI and Earl L. Denham, Appellants, v. MISSISSIPPI STATE BAR, Appellee. Misc.
• Court: Mississippi Supreme Court

Page 781

436 So.2d 781

Dempsey M. LEVI and Earl L. Denham, Appellants, v. MISSISSIPPI STATE BAR, Appellee.

Misc. No. 887.

Supreme Court of Mississippi.

July 20, 1983.

John L. Hunter, Cumbest, Cumbest & Hunter, Pascagoula, Clyde O. Hurlbert, Biloxi, D. Knox White, Gulfport, for appellants.

Earl L. Denham, pro se.

Jimmy L. Miller, Jackson and Marks, Andrew J. Kilpatrick, Jr., Jackson, for appellee.

Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court.

I. Introduction

This case comes before us on the Complaint of the Mississippi State Bar that two attorneys, Dempsey M. Levi and Earl L. Denham, have been guilty of misconduct within the meaning and contemplation of certain Disciplinary Rules of the Mississippi Code of Professional Responsibility.

Exhaustive and exhausting proceedings were had before the Complaint Tribunal duly constituted as provided by law. Miss.Code Ann. Secs. 73-3-323, -325, and -327. (Supp.1982). A ten volume record has been produced, including numerous exhibits, all of which we have reviewed with care. The Complaint Tribunal found Levi and Denham guilty of misconduct. It imposed a one year suspension.

From that decision Levi and Denham have prosecuted this appeal. Under the rules applicable to cases such as this, we consider the matter de novo. Having done so, it is our opinion that the Mississippi State Bar has failed to prove its case. Accordingly, the Complaint is finally dismissed.

II. De Novo Review

The Complaint Tribunal in many ways has acted as a trial court sitting without a jury. It has issued detailed findings of fact and conclusions of law and has rendered what is in essence a final judgment.

In one decisive respect, however, we do not proceed here as we would in any other appeal from the final judgment of a trial court sitting without a jury. We are the triers of fact. As a matter of law, we are not bound by those limited scope-of-review rules applicable in appeals generally, rules whereby we are without power to disturb findings of fact if they are supported by substantial evidence.

This Court's charge is found in Section 73-3-329(5) (Supp.1982) which reads:

On appeal, the Court may review all of the evidence and the law and the findings and conclusions of the complaint tribunal and it may make such findings and conclusions and render such order as it may find to be appropriate based upon the whole record.

In its brief the State Bar concedes the point, stating:

This Court is the ultimate judge of the facts and the law in disciplinary cases....

And further:

"The Bar also does not intend to controvert this Court's right, power and duty to review the entire matter and enter orders as the Court may deem appropriate".

See Mississippi State Bar v. Phillips, 385 So.2d 943, 945 (Miss.1980).

All of this is wholly consistent with the well established proposition that lawyer disciplinary proceedings are with this Court's exclusive and inherent jurisdiction, notwithstanding the statutory format pursuant to which this matter has proceeded. See, Mississippi State Bar v. Phillips, 385 So.2d 943, 944 (Miss.1980); Matter of Mississippi State Bar, 361 So.2d 503, 505 (Miss.1978); Bramlett v. Burgin, 382 So.2d 284, 285 (Miss.1979). Those inherent powers have been enhanced, not diminished, by the statutory scheme. Mississippi State Bar v. Phillips, 385 So.2d 943, 945 (Miss.1980).

It may well be that the Complaint Tribunal obtained valuable insights by its personal observation of the appearance and demeanor of the witnesses. And, to be sure, in the exercise of our sound discretion we are by no means prohibited from giving to findings of fact made by the Tribunal such weight as in our judgment they may deserve. This we may do so long as we do not lose sight of the fact that, as a matter of law, it is our non-delegable duty and responsibility to make findings of fact in cases such as this.

III. Burden of Proof

Bar disciplinary proceedings are inescapably "adversary proceedings of a quasi-criminal nature". In Re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, 122 (1968); see also Netterville v. Mississippi State Bar, 397 So.2d 878, 883 (Miss.1981); and Ex Parte Redmond, 156 Miss. 439, 452, 125 So. 833, 835 (Miss.1930). A standard of proof higher than the ordinary "beyond a preponderance of the evidence" standard is thus appropriate.

Beyond that, we are confronted in this case with charges of fraud and other equivalent forms of misconduct. In civil litigation generally, it is settled in our law that, before a plaintiff may prevail on a charge of fraud, he must prove his case by clear and convincing evidence. See, e.g., Mosby v. Gandy, 375 So.2d 1024, 1028 (Miss.1979); Parker v. Howarth, 340 So.2d 434, 437 (Miss.1976); Aponaug Manufacturing Co. v. Collins, 207 Miss. 460, 473, 42 So.2d 431, 434 (1949).

In its written opinion in accordance with Section 73-3-327 (Supp.1982), the Complaint Tribunal recognized the clear and convincing evidence burden of proof imposed upon the Bar when it stated:

In this case, in order to show that the Respondents [Levi and Denham] should be disciplined or disbarred, the Mississippi State Bar has the burden of showing a violation ... by clear and convincing proof.

In re Quinn's Disbarment, 223 Miss. 660, 665, 78 So.2d 883, 884 (1955); Ex Parte Redmond, 156 Miss. 439, 452, 125 So. 833, 835 (1930).

And in its brief on this appeal, the Bar acknowledges "that the burden to be met in support of discipline is clear and convincing proof," citing Mississippi State Bar v. Phillips, 385 So.2d 943 (Miss.1980) and Netterville v. Mississippi State Bar, 397 So.2d 878, 884 (Miss.1981).

The Bar here charges that Levi and Denham have violated Mississippi Code of Professional Responsibility Disciplinary Rule 1-102(A)(4) and 1-102(A)(6) which provide as follows:

9. DR 1-102[A] provides:

"DR 1-102 Misconduct.

[A] A lawyer shall not:

* * * Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

10. DR 1-102[A] provides:

"DR 1-102 Misconduct.

[A] A lawyer shall not:

* * *

Engage in any other conduct that adversely reflects on his fitness to practice law."

The Bar also charges that Levi and Denham have violated Miss.Code Ann. Sec. 73-3-35 (1972), which requires each attorney to swear or affirm to use no falsehood.

Notwithstanding the proceedings below, we hold that the Mississippi State Bar has the burden of proving in this Court by clear and convincing evidence each and every evidentiary and ultimate fact necessary to support a judgment that either Levi or Denham should be disciplined or disbarred. We emphasize that we do not here inquire whether there was sufficient evidence so that the Complaint Tribunal, as a hypothetical rational trier of the facts, might have found against Levi and Denham by clear and convincing evidence. Certainly, when it is performing its important duties, the Complaint Tribunal should employ the clear and convincing evidence standard. In the present posture of this case, however, our inquiry is whether the evidence persuades us clearly and convincingly that either Levi or Denham has been guilty of misconduct as defined in the two disciplinary rules and the statute mentioned above.

IV. The Undisputed Facts

There are certain undisputed facts which form the backdrop of these complaints.

At all times relevant to these proceedings Levi, Denham, and James W. Wilson ("Wilson" hereafter) were attorneys at law, members of the State Bar of Mississippi, and subject to the disciplinary agencies created by Miss.Code Ann. section 73-3-301, et seq. (Supp.1982).

Levi and Denham reside in Jackson County, Mississippi.

In January, 1976, Levi, Denham and Wilson were engaged in the practice of law as a professional association known as "Levi, Wilson & Denham, A Professional Association" ("firm" hereafter). Each owned a 1/3 interest in the firm.

On January 9, 1976, Erwin Padgett, Jr. ("Padgett" hereafter) executed a contingent fee contract with the firm, employing the firm to represent him in a personal injury action for injuries sustained by him in an automobile accident. Under this contract, the firm would receive as legal fees 50% of all sums recovered after a trial had commenced.

On December 7, 1976, a declaration was filed on behalf of Padgett in the Circuit Court of Jackson County, Mississippi.

By that time Padgett had become quite dissatisfied with Wilson's services, primarily because Wilson refused to communicate with him. Padgett came to the office to discharge Wilson and obtain his file. Levi and Denham, however, persuaded Padgett to leave the case with the firm, provided Wilson would no longer have responsibility for the file.

On January 21, 1977, Wilson resigned from the firm. He, Levi and Denham agreed to a division of all property belonging to the firm. Under that agreement any fee resulting from the Padgett case was to be divided equally among Levi, Denham and Wilson.

Padgett's trial came on for hearing in the Jackson County Circuit Court on July 21, 1977. Levi and Denham were both present for the trial and both participated in the trial. Denham had done most of the pretrial preparation and had dealt with Padgett more than Levi up to this point.

During the course of the trial, the defendants in the Padgett case began settlement negotiations. Padgett insisted that he needed a minimum of $128,000.00 net to him. Levi and Denham agreed to reduce the legal fee so that Padgett could net $128,000.00 out of $173,500.00 settlement. On this basis, the settlement offer of $173,500.00 was accepted.

A few days after the settlement was reached Levi advised Wilson of the settlement. He also gave Wilson a handwritten disbursement sheet showing a total fee of $42,867.59 and a net distribution to Padgett of $126,480.16. Under their previous agreement, Levi, Denham and Wilson would each receive one-third of $42,867.59.

The settlement draft arrived in the firm's office on or...