Mississippi Bar v. Pels, 96-BD-00106-SCT

• Decision Date: 26 March 1998
• Docket Number: No. 96-BD-00106-SCT,96-BD-00106-SCT
• Citation: 708 So.2d 1372
• Parties: The MISSISSIPPI BAR v. Kenneth A. PELS, Sr.
• Court: Mississippi Supreme Court

Page 1372

708 So.2d 1372

The MISSISSIPPI BAR v. Kenneth A. PELS, Sr.

No. 96-BD-00106-SCT.

Supreme Court of Mississippi.

March 26, 1998.

J. David Wynne, Jackson, for Appellant.

Kenneth A. Pels, Sr., Gaithersburg, pro se.

En Banc.

BANKS, Justice, for the Court:

¶1 This matter involves reciprocal discipline. Kenneth Pels was disbarred in the District of Columbia, and thereafter a Formal Complaint was filed by the Mississippi Bar seeking sanctions against Pels pursuant to Rule 13 of the Rules of Discipline. After a thorough review of the record we decline to impose identical punishment, and instead conclude that Pels should receive a thirty-day suspension.

I.

¶2 The facts of this case are largely undisputed and are reflected in the reported decision of the District of Columbia Court of Appeals disbarring Kenneth Pels. In re Pels, 653 A.2d 388, 389-92 (D.C.1995). In summary, that court accepted the findings of a three-member Hearing Committee (Committee) and a majority of the Board on Professional Responsibility (Board) that Pels had recklessly misappropriated his client's funds. ¹ Pels had placed settlement funds in an account used both for business operations and for personal expenses, and then allowed the balance to drop below the amount needed to satisfy third party claims against the client's funds. Id. at 393-94. Three considerations led the court to conclude that Pels' conduct surpassed simple negligence: (1) the length of time--nearly a year--over which the indiscriminate mingling of personal and client funds took place; (2) the failure to maintain contemporaneous records accounting for the flow of client funds; and (3) the fact that after Pels negotiated a $432.00 savings with one of the third party medical providers, he failed to accurately and definitively account for the expenses he claims to have offset with these client funds. Id. at 395-96.

¶3 The court reluctantly disbarred Pels, citing the per se rule of In re Addams, 579 A.2d 190 (D.C.1990). The court believed itself bound by the pronouncement in Addams that " 'in virtually all cases of misappropriation, disbarment will be the only appropriate sanction unless it appears that the misconduct resulted from nothing more than simple negligence.' " Pels, 653 A.2d at 388-89 (quoting Addams, 579 A.2d at 191). ²

¶4 On February 12, 1996, the Mississippi Bar initiated the present action by filing a Formal Complaint against Pels seeking reciprocal discipline pursuant to Rule 13 of the Rules of Discipline for the Mississippi State Bar. Pels filed a Response to Complaint on March 18, 1996. While the case was pending, this Court received from Pels a copy of an Amici Curiae Brief from Pels' case before the United States Court of Appeals for the District of Columbia Circuit. The federal court was unsure whether it should disbar Pels on the basis of the action in the D.C. state court, and appointed amici to clarify whether identical punishment was appropriate. Pels requested this Court to consider his sanction in light of the conclusions contained in the amici brief. Because we conduct a de novo review in matters of attorney discipline, we indulged the Respondent's request.

II.

¶5 The Supreme Court of Mississippi has exclusive and inherent jurisdiction in bar disciplinary matters. Mississippi Bar v. Alexander, 669 So.2d 40, 41 (Miss.1996); Asher v. Mississippi Bar, 661 So.2d 722, 727 (Miss.1995); Gex v. Mississippi Bar, 656 So.2d 1124, 1127 (Miss.1995); R. Discipline Miss. State Bar 1(a). This Court conducts a de novo review in matters of attorney discipline. Alexander, 669 So.2d at 41; Mississippi Bar v. Attorney R., 649 So.2d 820, 824 (Miss.1995); Gex, 656 So.2d at 1127; R. Discipline Miss. State Bar 9.4. Additionally, the Court must decide each disciplinary case on its own unique merits. Fougerousse v. Mississippi State Bar Ass'n, 563 So.2d 1363, 1366 (Miss.1990).

¶6 The burden is usually on the Mississippi Bar to show by clear and convincing evidence that an attorney's actions constitute professional misconduct. Alexander, 669 So.2d at 41; Goodsell v. The Mississippi Bar, 667 So.2d 7, 9 (Miss.1996) (citing Terrell v. Mississippi Bar, 635 So.2d 1377, 1384 (Miss.1994)). In the instant case, however, the Mississippi Bar has filed this complaint pursuant to Rule 13 of the Rules of Discipline for the Mississippi State Bar. That rule states:

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.

R. Discipline Miss. State Bar 13 (emphasis added).

¶7 This Court has stated that "requests for discipline based on sanctions imposed by other jurisdictions shall be presented to this Court with the sole issue to be the extent of final discipline to be imposed on the attorney in this state." Mississippi Bar v. Strauss, 601 So.2d 840, 844 (Miss.1992). Thus, "there is no need for any fact-finding in this state as to the offense." Id. As a result of the respondent's disbarment by the District of Columbia, it has been established under Rule 13 that Pels' actions constitute conduct unbecoming of an attorney. Therefore, the sole issue before the Court is the extent of the final discipline to be imposed upon Pels, which may be less or more severe than the discipline imposed by the District of Columbia.

¶8 In determining an appropriate sanction, however, it is inherent within the language of Rule 13 that this Court is not bound by those findings of the foreign jurisdiction which go to the sanction imposed. An attorney " 'who is subject to reciprocal discipline may ... offer any mitigating factors which he thinks serve to diminish his culpability and therefore diminish the necessity for, or severity of, sanctions to be imposed by this Court.' " Mississippi Bar v. Felton, 699 So.2d 949, 952 (Miss.1997) (quoting Strauss, 601 So.2d at 844). In the present case, the District of Columbia Court of Appeals adopted the finding of the Committee and the Board majority that Pels acted recklessly in handling his client's affairs. This finding forced that court to disbar Pels as dictated by Addams, a result which the court admitted was "harsh and even unjust." Pels, 653 A.2d at 398. This Court is not bound by the per se rule of Addams, or by its distinction between negligent and reckless misappropriation. We instead approach the issue of an appropriate sanction under our own case law, which permits us to place either more or less weight on the mitigating circumstances of the individual case.

¶9 In Mississippi State Bar Ass'n v. A Mississippi Attorney, 489 So.2d 1081, 1083-84 (Miss.1986), this Court announced a list of factors which should be considered when imposing discipline including but 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.

See also Alexander, 669 So.2d at 42; Attorney R., 649 So.2d at 824-25. Another set of criteria which this Court considers when determining sanctions for misconduct originates from the American Bar Association's guidelines, specifically Standard 3.0 which contemplates:

(1) the duty violated;

(2) the lawyer's mental state; and

(3) the actual or potential injury resulting from the misconduct, and the existence of aggravating or mitigating factors.

Alexander, 669 So.2d at 42; L.S. v. Mississippi Bar, 649 So.2d 810, 815 (Miss.1994) (quoting Mississippi Bar v. Attorney ST, 621 So.2d 229, 233 (Miss.1993)).

¶10 We recognize the seriousness of commingling personal funds with those of the client. We are considerably persuaded in the present case, however, by the observations of the amici curiae appointed by the United States Court of Appeals for the District of Columbia Circuit. They note that the record reveals no evidence that Pels engaged in any dishonesty, misrepresentation to his client, lying to the disciplinary authorities, or systematic diversion of his client's funds for personal purposes. Conduct of this egregious nature has been present in virtually all misappropriation cases where this Court has concluded that disbarment was necessary. See, e.g., Clark v. Mississippi State Bar Ass'n, 471 So.2d 352, 354 (Miss.1985) (attorney withdrew and spent funds from conservatorship's savings account then filed reports reflecting balance in account when no account existed); Gex, 656 So.2d at 1125-26 (attorney misrepresented his authority to cancel deed of trust in return for payoff when in fact he had assigned his interest in the deed to a third party; he then received and used the payoff funds for personal expenses); Haimes v. Mississippi Bar, 601 So.2d 851, 852-53 (Miss.1992) (attorney transferred $5000.00 belonging to guardianship of incompetent to personal account and paid himself unauthorized "fees" for services rendered).

¶11 The amici note that within days of receiving a settlement check, Pels sent his client the full amount to which she was potentially entitled under the original retainer agreement. See Pels, 653 A.2d at 390. He voluntarily waived $300.00 of his fee and $500.00 of his administrative costs because he apparently thought that would be fair. Id. After paying two of the medical care providers promptly, Pels...