Mathes v. Mississippi Bar
| Decision Date | 02 June 1994 |
| Docket Number | No. 92-BA-00420,92-BA-00420 |
| Citation | 637 So.2d 840 |
| Parties | Roger MATHES, v. The MISSISSIPPI BAR. |
| Court | Mississippi Supreme Court |
Roger Mathes, pro se.
Charles J. Mikhail, State Bar, Michael B. Martz, Jackson, for appellee.
Before En Banc.
Attorney Roger Mathes accepted $1215.52 in fees from two bankruptcy clients, without first petitioning the bankruptcy court for approval of such compensation as required under bankruptcy law. Mathes later signed a court order agreeing to tender the $1215.52 to the Chapter 7 Trustee within 90 days. A judgment in that amount was entered against him six months later. Mathes failed to pay the trustee, and the Bar filed a Formal Complaint against him. The Complaint Tribunal suspended Mathes from the practice of law for one year. Mathes appeals the penalty:
THE ONE YEAR SUSPENSION IS TOO SEVERE A PENALTY FOR APPELLANT'S ACTS.
We affirm the Tribunal's findings that Mathes violated several Rules of Professional Conduct, and reduce the penalty to six months suspension from the practice of law.
The Mississippi Bar filed a Formal Complaint against Mathes on August 21, 1991, charging that he had accepted $1,215.52 from his bankruptcy clients, James and Jimmy Lofton, without first petitioning the Court for approval of such compensation. It further charged that Mathes had signed a court order agreeing to tender the $1,215.52 to a bankruptcy trustee within ninety days, but had failed to do so. The Bar alleged that these actions violated Mississippi Rule of Professional Conduct 1.15(b) (); Rule 3.4(c) (); and Rule 8.4 ().
On August 21, 1991, a Complaint Tribunal was appointed to hear Mathes' case. On August 22, 1991, Mathes executed the "Acknowledgment of Receipt of Summons and Formal Complaint." Mathes' answer to the complaint, filed November 5, 1991, denied any violation of the Disciplinary Rules.
A hearing was held before the Complaint Tribunal on March 24, 1992, at which Mathes appeared pro se. Counsel for the Bar sought to introduce "Stipulations And Admissions As To Facts and Documents" reached by the Bar and Mathes. The stipulations, admitted into evidence as Exhibit 1, included the following:
In connection with Cause Numbers 87-00425 and 87-00427 in the United States On or about June 6, William F. Baity, the United States Trustee, Region V, Districts of Louisiana and Mississippi, and Ronald H. McAlpin, Assistant United States Trustee, through their counsel, the Honorable R. Michael Bolen (Mr. Bolen), Senior Attorney for the Office of the United States Trustee, filed a Complaint for Turnover (Exhibit "2") seeking an Order compelling Mr. Mathes to turn over all estate property to the Chapter 7 Trustee (the case was converted to a Chapter 7 from a Chapter 11), Jeffrey A. Levingston (Chapter 7 Trustee).
Bankruptcy Court for the Northern District of Mississippi, styled, In Re: James E. Lofton, Jr. and Jimmie Lee Lofton, filed on March 2, 1987, under 11 U.S.C. Chapter 11, Mr. Mathes accepted the total sum of $1,215.52 in fees and expenses from the debtors in possession (Composite Exhibit "1"--copies of a receipt in the sum of $300 dated July 24, 1987; a check in the sum of $790.52 dated December 2, 1987; and a check in the sum of $125 dated April 20, 1988), without obtaining prior approval of or filing an application for approval with the Court for Mr. Mathes to receive such compensation, in violation of 11 U.S.C. Sections 330 and 331 and Rule 2016 of the Federal Rules of Bankruptcy Procedure.
On or about July 10, 1989, Mr. Mathes filed his Answer (Exhibit "3") to the Complaint for Turnover.
On or about June 29, 1990, Mr. Mathes signed an Order (Exhibit "4") agreeing to tender the sum of $1,215.52 to the Chapter 7 Trustee within ninety (90) days. The Order was entered on July 3, 1990.
On or about January 9, 1991, Mr. Bolen filed a Motion for Entry of Judgment (Exhibit "5") due to Mr. Mathes' failure to comply with the Order of July 3, 1990.
On January 11, 1991, a Judgment (Exhibit "6") in the sum of $1,215.52 plus interest, on which execution may issue, was entered against Mr. Mathes for his failure to tender the sum of $1,215.52 to the Chapter 7 Trustee as agreed to by Mr. Mathes and required by the Order of July 3, 1990.
Despite repeated representations by Mr. Mathes that he would comply with the Order of July 3, 1990, he has not done so as of August 15, 1991.
After the stipulations were admitted into evidence, Mathes was examined by Bar's counsel. Mathes stated that he had been practicing law in Greenwood for nineteen years; that about thirty percent of his practice was Chapter 7 and Chapter 13 bankruptcy; and that the Loftons' case was the first and only Chapter 11 bankruptcy case he had undertaken. Mathes stated that he had not made any efforts to satisfy the judgment against him with the trustee's office. He stated that he was familiar with Rule 1.15, admitted to signing the agreed order to tender the funds, and admitted that he had not appealed the judge's order. However, he stated, "(n)o one, clients or trustees, have asked for any money." Mathes also said that he "(didn't) believe that the trustee or anybody else other than myself are entitled to those funds." He stated that he "did not need approval to accept those funds at the time (he) accepted them." The following exchanges were typical:
Q. Is it your position that regardless of the finality of that order that you are still entitled to hold on to those funds?
A. I'm the only one that has a legitimate claim. I did the work for that money and for much more money that was owed to me. The trustee has no claim; my clients have no claim; the trustee has never made a complaint; the clients have never made a complaint.. Just some anonymous person filed this with the Bar, and then your office filed a complaint against me.
Q. Mr. Mathes, the question I'm leading to is do you believe today that the trustee is to receive that $1215.52 or not?
legal proceedings, hearings, and eventual ruling that I'd be entitled to it.
A. That is correct.
Q. And, therefore, you are in violation of Rule 1.15(b), are you not?
A. Technically, I probably am.
Mathes denied representing to the bankruptcy court that he would pay the sum of $1215.52 to the trustee:
Q. Mr. Mathes, did you not make a representation to the court by signing onto an agreed order that you would tender those funds?
A. No. I agreed that if I did not tender the sum in 90 days that a judgment would be enrolled against me.
Q. Is that not a representation that you would tender those funds within the 90 days?
A. I don't believe so. That was agreement that if those sums were not tendered that a judgment would be taken against me.
Questioned as to his intentions in signing the agreed order, Mathes was similarly obtuse:
Q. Mr. Mathes, what was your intention when you signed onto the agreed order? Were you intending to pay it at all?
A. I thought--
Q. To tender it to the trustee?
A. I thought that would be the end of it because I knew the trustee did not have a claim against it and the clients did not have a claim against it, and nobody's made a claim against it up to this date.
Q. Are you saying that you signed onto the agreed order to tender those funds within 90 days but had no intention to comply with that agreed order? Is that what you're saying?
A. The agreed order said if I did not pay it within 90 days a judgment would be taken against me.
A. Okay. My intent was not to pay it unless somebody made a claim against it.
Q. Your intention was not to comply with the agreed order that you signed onto; isn't that correct?
A. I did not intend to pay that judgment unless the trustee or the clients made a claim against it, which they have not.
Mathes also asserted that he had made no representations to the bankruptcy court that he would comply with the order: Rather, Mathes asserted, the representations had been made to Bar's counsel, Brian Callaway:
Q. Mr. Mathes, isn't it true that you have made representations and assurances that you would pay that sum?
A. To whom?
Q. That you would tender that sum to the court, to the trustee?
A. Not to the bankruptcy court.
* * * * * *
Q. (W)ho were the representations made to?
A. I believe Brian Callaway, formerly with the State Bar.
Q. So your interpretation of Paragraph 13 of the stipulation is that the representations were not to the court by way of the agreed order or otherwise; is that correct?
A. To the bankruptcy court?
Q. To the bankruptcy court.
A. That's correct. There's been no action in the bankruptcy court whatsoever on this matter.
Mathes' answer to the bar's informal complaint against him was accepted into evidence as Exhibit 3. Relevant excerpts follow:
I was unaware at the time that the deadline for Court approval of fees and expenses is as short as it is. But, my clients did not suffer because of this and the only person in the world that this affected is me.
* * * * * * Legally and ethically when I took the money for fees and expenses it was proper and belonged to me. But, I failed to timely file for approval....
To continue reading
Request your trial
-
Mississippi Bar v. Drungole, 2004-BD-00714-SCT.
...instances where some form of dishonesty has significantly harmed the client, or constituted a fraud on a court, or both. Mathes v. Miss. Bar, 637 So.2d 840 (Miss.1994). This Court is free to evaluate the discipline imposed on an attorney and on review modify punishment as needed to best ser......
-
Rogers v. The Mississippi Bar, 97-BA-01388-SCT.
...`bread and butter' charge in attorney discipline cases; it accompanies almost any other charge in a bar complaint." Mathes v. Mississippi Bar, 637 So.2d 840, 848 (Miss.1994). This does not mean, however, that the above subsections to Rule 8.4 can not stand independently as violations to the......
-
Byrd v. The Mississippi Bar
...Asher v. Miss. Bar, 661 So.2d 722, 727 (Miss.1995); Mississippi Bar v. Land, 653 So.2d 899, 900-01 (Miss.1994); Mathes v. Miss. Bar, 637 So.2d 840, 846 (Miss.1994). As such, we should be reluctant to reverse a complaint tribunal when, given the facts, its holding is DISCUSSION I. WHETHER TH......
-
Terrell v. Mississippi Bar
...Tribunal, and renders such orders as it deems appropriate. Mississippi Rules of Discipline for the State Bar 9.4; Mathes v. Mississippi Bar, 637 So.2d 840, 846 (Miss.1994); Mississippi State Bar v. Odom, 566 So.2d 712, 714 (Miss.1990); Mississippi State Bar v. Nichols, 562 So.2d 1285, 1287 ......