Mississippi Bar v. Drungole, 2004-BD-00714-SCT.

• Citation: 913 So.2d 963
• Decision Date: 28 April 2005
• Docket Number: No. 2004-BD-00714-SCT.,2004-BD-00714-SCT.
• Parties: The MISSISSIPPI BAR v. Paula E. DRUNGOLE.
• Court: United States State Supreme Court of Mississippi

913 So.2d 963

The MISSISSIPPI BAR v. Paula E. DRUNGOLE.

No. 2004-BD-00714-SCT.

Supreme Court of Mississippi.

April 28, 2005.

Michael B. Martz, Jr., Adam B. Kilgore, attorneys for appellant.

Jerry Askew, attorney for appellee.

EN BANC.

GRAVES, Justice, for the Court.

¶ 1. This bar discipline case is before the Court en banc on formal complaint filed by the Mississippi Bar (hereinafter "the Bar") seeking discipline against Paula E. Drungole under the provisions of Rule 13 of the Rules of Discipline for the Mississippi State Bar. Drungole is a licensed attorney in this State and is subject to the disciplinary jurisdiction of this Court.

¶ 2. On or about January 13, 2003, the United States Bankruptcy Court for the Northern District of Mississippi entered a consent order enjoining Drungole from: (1) the practice of law before any bankruptcy court in the United States; (2) representing or giving legal advice to any entity concerning the bankruptcy laws of the United States; and (3) any and all acts that constitute the practice of law on a bankruptcy issue. The actions which prompted the bankruptcy court's order are set forth below.

¶ 3. Drungole, a practicing bankruptcy attorney, filed a bankruptcy petition styled In Re: Camesha L. Robertson, No. 02-12292, in the United States Bankruptcy Court for the Northern District of Mississippi on April 12, 2002. On the previous day, she filed a required disclosure of compensation stating that she had not received compensation. Upon filing the petition, Drungole paid $100 of the $200 filing fee and filed an application to pay the remainder in installments. The court issued an order authorizing Drungole to pay the remainder in one payment of $100 no later than May 20, 2002. Drungole failed to pay the remainder by the specified date. On June 25, 2002, the clerk of the Bankruptcy Court notified the United States Trustee of the delinquent fee. The Trustee filed notice of potential dismissal on July 2, 2002, but Drungole never responded and never paid the $100 remainder owed.

¶ 4. The Trustee filed a motion for sanctions, to examine fees and for other relief against Drungole. The Trustee alleged two violations concerning the Federal Rules of Bankruptcy Procedure and submitted evidence along with his motion. Money order receipts revealed that Drungole's client gave her $425¹ on March 30, 2002, to satisfy filing fees and a portion of Drungole's attorney fees. The Trustee alleges that Drungole accepted the $425 before satisfying the clerk's filing fee. Rule 1006 of the Federal Rules of Bankruptcy Procedure requires payment of the filing fees in full before the attorney may accept fees. Also, in the fee disclosure statement required by Rule 2016 of the Federal Rules of Bankruptcy Procedure, Drungole stated that she had received no compensation, when in fact she had received $425 for filing fees and compensation. Drungole knew that possession of those funds made her ineligible to request installment payments; nonetheless, she filed the request. To address Drungole's misconduct, the Trustee requested that the bankruptcy court impose any and all appropriate sanctions, including disgorgement of any and all fees paid to her in connection with this matter, certification of the matter to district court for imposition of the appropriate sanctions, and the disbarment of Drungole from the practice of law in federal court.

¶ 5. Filed with the Bar's formal complaint are certified copies of the motion for sanctions to examine fees and the order entered by the United States Bankruptcy Court for the Northern District of Mississippi which constitute conclusive evidence of Drungole's guilt.

¶ 6. The Mississippi Bar sent a summons and notice to respondent at her last known address with a copy of the formal complaint attached. Drungole, by and through counsel, timely filed a response.

¶ 7. The Bar recommends the imposition of reciprocal discipline by this Court, including the payment of all costs and expenses associated with this action. Drungole contends that she should not be further punished and that the Bar's complaint against her should be dismissed.

DISCUSSION

¶ 8. This Court has exclusive and inherent jurisdiction in matters pertaining to attorney discipline. R. Discipline Miss. State Bar 1(a); Asher v. Miss. Bar, 661 So.2d 722, 727 (Miss.1995); Gex v. Miss. Bar, 656 So.2d 1124, 1127 (Miss.1995);. Furthermore, this Court conducts a de novo review in bar disciplinary matters. Gex, 656 So.2d at 1127; Miss. Bar v. Attorney R., 649 So.2d 820, 824 (Miss.1995).

¶ 9. Typically, the Bar bears the burden of showing that an attorney's actions constitute professional misconduct by "clear and convincing evidence." Goodsell v. Miss. Bar, 667 So.2d 7, 9 (Miss.1996). However, in Mississippi Bar v. Felton, 699 So.2d 949, 951 (Miss.1997), an order of suspension from another court was found to be "conclusive evidence" of guilt, and the sole issue to be determined before the Court was the extent of final discipline. This Court accepted a federal district court's suspension of an attorney as "conclusive proof of his guilt of failure to follow court orders and protect his clients' interest" and held that "reciprocal sanctions are in order under Rule 13." Miss. Bar v. Alexander, 669 So.2d 40, 41 (Miss.1996). The Bar filed this complaint under the auspices of Rule 13 of the Rules of Discipline for the Mississippi State Bar which states:

Rule 13. DISCIPLINE IN ANOTHER JURISDICTION

When an attorney should be subjected to disciplinary sanctions in another jurisdiction, such sanction shall be grounds for disciplinary action in this state, and certification of such sanction by the appropriate authority of such jurisdiction to the Executive Director of the Bar or to the Court, shall be conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered, and it will not be necessary to prove the grounds for such offense in the disciplinary proceeding in this state. The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.

Procedure

(13.1) Upon receipt by the Executive Director of a certified copy of disciplinary sanctions imposed by the bar or a court in another jurisdiction or by a Mississippi trial court or local bar association upon an attorney subject to these rules, the Executive Director shall immediately docket same as a complaint, charge or grievance and shall immediately forward the matter to Complaint Counsel. Complaint Counsel shall present the certified copies of the disciplinary action of the other court or Bar to the Court wherein the sole issue to be determined shall be the extent of final discipline to be imposed on the attorney in this state, which discipline may be less or more severe than the discipline imposed by the other jurisdiction.

R. Discipline Miss. State Bar 13. Conclusive evidence has already been established; and therefore, it is therefore unnecessary for this Court to engage in additional fact-finding.

¶ 10. Pursuant to Rule 13, the Bar admits that the punishment imposed by this Court could be more or less severe than that imposed by the bankruptcy court, Mississippi Bar v. Gardner, 730 So.2d 546 (Miss.1998) (citing Mississippi Bar v. Pels, 708 So.2d 1372 (Miss.1998)), and makes no specific recommendation other than for Drungole to be "disciplined by this Court with all costs and expenses connected herewith taxed against her."

¶ 11. In her response to the Bar's formal complaint, Drungole asserts one general affirmative defense that allegedly explains her conduct. Drungole argues, as she did in the consent order, that "she does not admit to any wrongdoing and does not admit any facts set forth in [the consent order]," but "consented to being enjoined from the practice of law for the time period stated in the Order" in order to "prevent further embarrassment and humiliation." Drungole alleges now, as she did when the motion for sanctions was filed against her, that the "allegations set forth in the Motion occurred due to mistake and inadvertence and was not done by a deliberate and intentional act on behalf of [her] to defraud the client or to deceive the Court."

¶ 12. We have held in attorney discipline matters that the purpose of discipline is not simply to punish the guilty attorney, but to protect the public, the administration of justice, to maintain appropriate professional standards, and to deter similar conduct. Miss. Bar v. Coleman, 849 So.2d 867, 875 (Miss.2002); Cotton v. Miss. Bar, 809 So.2d 582, 585 (Miss.2000); Miss. State Bar Ass'n v. A Miss. Attorney, 489 So.2d 1081, 1084 (Miss.1986). This Court applies a proportionality requirement to Bar discipline cases. Pitts v. Miss. State Bar Ass'n, 462 So.2d 340 (Miss.1985). Suspensions from the practice of law have been reserved for 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 serve the interests of the Bar and the public. Parrish v. Miss. Bar, 691 So.2d 904, 907 (Miss.1996); Miss. State Bar v. Blackmon, 600 So.2d 166, 173 (Miss.1992).

¶ 13. Factors which should be considered when imposing discipline include, but are not limited to the following:

(1) the nature of the misconduct involved;

(2) the need to deter similar misconduct;

(3) the preservation of the dignity and reputation of the legal profession;

(4) the protection of the public; and

(5) sanctions imposed in similar cases.

Pels, 708 So.2d at 1375 (citing A Mississippi Attorney, 489 So.2d at 1083-84). The American Bar Association also lists guidelines to consider, which include:

(1) the...