McINTYRE v. The Miss. BAR, 2008-BA-01436-SCT.

• Decision Date: 11 March 2010
• Docket Number: No. 2008-BA-01436-SCT.,2008-BA-01436-SCT.
• Citation: 38 So.3d 617
• Parties: James Grant McINTYRE v. The MISSISSIPPI BAR.
• Court: Mississippi Supreme Court

38 So.3d 617

James Grant McINTYRE

v.The MISSISSIPPI BAR.

No. 2008-BA-01436-SCT.

Supreme Court of Mississippi.

March 11, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Jane E. Tucker, Thomas E. Royals, Jackson, attorneys for appellant.

Gwendolyn G. Combs, Adam Bradley Kilgore, James Russell Clark, Jackson, attorneys for appellee.

EN BANC.

PIERCE, Justice, for the Court:

¶ 1. This appeal arises from a formal complaint filed by The Mississippi Bar charging James Grant McIntyre with violating multiple rules of the Mississippi Rules of Professional Conduct. McIntyre confessed to the allegations and was disbarred after a hearing before the Complaint Tribunal. McIntyre appeals that decision to this Court. After review, we affirm the ruling of the Complaint Tribunal.

FACTS

¶ 2. The Mississippi Bar filed a formal complaint against James Grant McIntyre alleging that he violated Mississippi Rules of Professional Conduct: 1.8(e) (providing financial assistance to a client), ¹ 1.15(a) (commingling funds), ² 8.1(b) (failure to provide information to a disciplinary agent), ³ and 8.4(a, d) (engaging in conduct detrimental to the administration of justice due to violation of the previously cited rules). ⁴

¶ 3. McIntyre and the Bar filed agreed findings of fact with the complaint tribunal. In the findings, McIntyre admitted that he had commingled his personal and business funds with his clients' funds or third-party funds in his lawyer trust account over a four-year period. He further admitted that he had presented checks against his lawyer trust account for payment of personal expenses, business expenses, and living or medical expenses of other clients. Bank officials also withdrew funds from McIntyre's lawyer trust account to satisfy his personal loan obligations and for other unknown reasons. His lawyer trust account was overdrawn and subject to bank fees for insufficient funds. Finally, McIntyre failed to advise the Bar's Standing Committee on Ethics that he had advanced funds to clients. McIntyre claims the money at issue eventually was returned in full to the clients to whom it belonged.

¶ 4. McIntyre's lawyer trust account was with the bank which also held notes on his office building, home, and automobile. Certain debits were made to McIntyre's lawyer trust account by one of the bank's loan officers to pay service obligations on McIntyre's loans. McIntyre alleged that this was done without his knowledge or permission, and he put multiple documents into evidence to demonstrate his attempts to correct this situation. McIntyre asserts in his brief that, “[a]s a result of these unauthorized withdrawals, [he] would have to credit his account with deposits to make up the deficiency the bank created.” McIntyre did not move his lawyer trust account to another bank during the four-year period in question (2001-2004) to prevent this problem. He also personally wrote checks from his lawyer trust account to pay personal and business expenses.

¶ 5. McIntyre presented witnesses and affidavits of clients and members of the bar to testify to the nature of his character. He also introduced into evidence fifteen affidavits from former clients, each stating that he or she was satisfied with McIntyre's representation and had received the money he or she was due at the conclusion of their case. Furthermore, McIntyre's current secretary, Renee Edmonson, testified that the operating account and the lawyer trust account for McIntyre's firm now are kept at two separate banks.

¶ 6. The Bar introduced McIntyre's prior disciplinary record in aggravation. McIntyre has been reprimanded six times, five times for what the Bar considered “minor ethical violations.” He received one private reprimand and four informal admonitions as a result of the five “minor” violations. In one instance in 1988, McIntyre was suspended from the practice of law for one year for borrowing money from a client without following the appropriate regulations as set forth in the Rules of Professional Conduct.

¶ 7. The complaint tribunal issued an order finding McIntyre had violated Rule 1.8(e) by lending money to a client for living and medical expenses without complying with the appropriate regulations; Rule 1.15(a) for failing to prevent commingling of funds; and Rule 8.4(a and d) for violating the Rules of Professional Conduct and therefore engaging in conduct that is detrimental to the administration of justice. The tribunal also found that McIntyre's mitigation evidence was inapplicable and did not warrant a less severe punishment. Furthermore, the tribunal found McIntyre's prior disciplinary record to be an aggravating factor, and ordered McIntyre be disbarred. From that order, McIntyre appeals.

ANALYSIS

¶ 8. McIntyre raises the four following issues on appeal:

I. Whether the Tribunal erred with regard to misappropriation of funds and the relevant burden of proof.

II. Whether the Tribunal erred in finding there were no mitigating factors that favored McIntyre.

III. Whether disbarment is the appropriate sanction under the circumstances of this case.

IV. Whether McIntyre is entitled to the counsel of his choosing.

¶ 9. This Court has “exclusive jurisdiction and inherent jurisdiction of matters pertaining to attorney discipline.” Broome v. Miss. Bar, 603 So.2d 349, 354 (Miss.1992). This Court sits as the trier of fact and is not bound by a substantial-evidence or manifest-error rule. Asher v. Miss. Bar, 661 So.2d 722, 727 (Miss.1995). “When reviewing attorney disciplinary matters, this Court reviews evidence de novo, and no substantial evidence or manifest error rule shields the tribunal from scrutiny; however, we may give deference to findings of the tribunal due to its exclusive opportunity to observe the demeanor and attitude of witnesses, including the attorney, which is vital in weighing evidence.” Miss. Bar v. Logan, 726 So.2d 170, 175 (Miss.1998) (citing Parrish v. Miss. Bar, 691 So.2d 904, 906 (Miss.1996)). The Bar has the burden to prove by clear and convincing evidence that an attorney's actions constitute professional misconduct. Id.

I. WHETHER THE TRIBUNAL ERRED WITH REGARD TO MISAPPROPRIATION OF FUNDS AND THE RELEVANT BURDEN OF PROOF.

¶ 10. McIntyre argues that the Bar never charged him with misappropriation, and to now find him guilty of this charge would violate his due process rights. We find this contention to be without merit. Paragraph 23, section “B” of the formal Complaint states that “McIntyre's client and/or third party funds were not safe from being appropriated by Mr. McIntyre and others for personal or business purposes.” This allegation by the Bar is sufficient to place McIntyre on notice that his alleged misappropriation of client funds was at issue.

¶ 11. McIntyre also alleges that the burden of proof was wrongly placed upon him to prove that he did not misappropriate his clients' funds. The record shows that this was not the case. Evidence was introduced to show that McIntyre consistently had taken funds from his lawyer trust account to pay personal and business expenses. This Court has held that “[w]hen a lawyer receives and deposits in his trust account funds belonging to others, and prior to disbursing any of such funds to the lawful payees, the trust account shows a total deposit less than the amount he had been entrusted with, this supports the conclusion that the attorney has converted funds to an unauthorized and unlawful use.” Reid v. Miss. Bar, 586 So.2d 786, 788 (Miss.1991).

¶ 12. McIntyre's lawyer trust account records indicate that the account balance was less than the amount entrusted to him on several occasions throughout the four-year period between 2001 and 2004. The records show that the trust account was overdrawn and that checks were written for personal and business expenses from the account, which rendered the balance lower than it should have been. The records further reflect that McIntyre misappropriated at least nine different clients' funds from 2001 through 2004. The funds were used for various purposes including living or medical expenses for other clients and paying bank fees for overdrafting the trust account. Regardless of whether McIntyre eventually replaced the money, he violated the Rules of Professional Conduct at the time he initially misused money from the account-no matter how briefly he kept it. This Court has said, “restitution by an attorney of funds previously misappropriated does not mitigate the offense.”

Cotton v. Miss. Bar, 809 So.2d 582, 587 (Miss.2000) (quoting Clark v. Miss. State Bar Ass'n, 471 So.2d 352, 357 (Miss.1985)). Therefore, the tribunal correctly found that the Bar proved misappropriation by clear and convincing evidence.

II. WHETHER THE TRIBUNAL ERRED IN FINDING THERE WERE NO MITIGATING FACTORS THAT FAVORED MCINTYRE.

¶ 13. McIntyre contends that some of the mitigating factors listed in Section 9.32 of the ABA Standards for Imposing Lawyer Sanctions are applicable to him, and that the tribunal failed to consider the mitigating factors he presented. Specifically, he asserts that the factors of cooperative attitude toward proceedings, absence of a dishonest and selfish motive, delay in disciplinary hearing, character or reputation, and remoteness of prior offenses weigh in his favor.

¶ 14. An attorney accused of misconduct may offer this Court any mitigating factors which he or she thinks serve to diminish his culpability and subsequently diminish the severity of the sanction to be imposed by this Court. See Vining v. Miss. State Bar Ass'n, 508 So.2d 1047, 1049 (Miss.1987). The tribunal is not required to accept mitigation evidence as absolute truth, but must determine how much weight to accord the evidence presented. With regard to the mitigation evidence presented, the tribunal said:

Mr. McIntyre offered evidence in mitigation, including testimony and affidavits of several former judges and public officials, currently practicing attorneys, a...