Mississippi Bar v. Strauss, 91-BA-0016
| Decision Date | 03 June 1992 |
| Docket Number | No. 91-BA-0016,91-BA-0016 |
| Citation | 601 So.2d 840 |
| Parties | MISSISSIPPI BAR v. Attorney Berney STRAUSS. |
| Court | Mississippi Supreme Court |
Michael B. Martz, Jackson, for petitioner.
Dannye L. Hunter, Jackson, John W. Christopher, Ridgeland, for respondent.
En Banc.
ON PETITION FOR REHEARING
PRATHER, Justice, for the Court:
The original opinion issued on October 16, 1991, is withdrawn and this opinion is substituted therefor. This case is a reciprocal disciplinary proceeding against an attorney which raises a procedural question. The issue presented is whether the "sanction" of suspension imposed by a court in a foreign jurisdiction invokes Rule 6 of the Rules of Discipline for the Mississippi State Bar such that the matter should be presented directly to this Court rather than being presented to a Complaint Tribunal.
The Mississippi Bar (the Bar) filed a Formal Complaint against Attorney Berney Strauss pursuant to Rules 6 and 13, Rules of Discipline for the Bar, (1984), seeking the imposition of reciprocal discipline with the discipline imposed by the United States District Court in Louisiana, where Strauss is also licensed, plus costs of this action. Strauss has admitted the behavior for which the federal court in Louisiana has imposed sanctions. The question on this petition for rehearing is whether a sanction may be imposed directly by this Court under Rules 6 and 13 or whether this Court must refer the issue to a Complaint Tribunal for recommendation to this Court, under Rule 13.1.
On April 9, 1990, the United States District Court for the Eastern District of Louisiana suspended Strauss from the practice of law before that court for a period of three (3) years for violating local rules proscribing forum shopping. 1 For the purposes of this opinion, the specific instances of conduct are not detailed as Strauss has admitted that behavior.
On November 16, 1990, after the three year suspension was imposed for the incidents above, the United States Attorney for the Eastern District of Louisiana filed a Motion for Criminal Contempt against Strauss, alleging Strauss had violated the U.S. District Court's Local Rule, the Louisiana State Bar Association's Rules of Professional Conduct 5.5, 5.4, 8.4, and the Louisiana Revised Statute Title 37, Sections 212 and 213 2.
On March 20, 1991, a United States District Court Judge for the Eastern District of Louisiana, after a trial on the matter entered an order finding Strauss guilty of criminal contempt in violation of the provisions of Title 18, United States Code, Section 401(3). The Order directed that Strauss be placed on active probation for a period of two (2) years, perform 600 hours of community service of a non-legal nature, and continue to participate in a mental health program subject to the approval to the United States Probation Officer, and to pay to the United States a special assessment of $10.00. Strauss has appealed the judgment of criminal contempt to the United States Fifth Circuit Court of Appeals.
In disciplinary proceedings before the Louisiana Bar, Strauss admitted this intentional violation of the local rules of the federal court. He contended that because there was no concomitant rule in the state courts, and therefore no violation of a state rule, he should not be disciplined by the Louisiana Bar. He also, in mitigation, said that he had previously suffered from a temporary mental illness which had been brought under control through medication. The Louisiana Bar entered an "Admonition" against Strauss for his federal court violations suggesting that Strauss's admitted intentional violation of a court rule was mitigated by the lack of a prior disciplinary sanction, the partial mental disability, and the already imposed, severe federal sanction. The Louisiana Bar also noted "[t]here is little likelihood of recurrence and no direct injury to any client or the public in general."
The Mississippi Bar asked for reciprocal discipline against Berney Strauss in this state on the basis of his suspension by the United States District Court for the Eastern District of Louisiana for forum shopping and resulting suspension. Although other sanctions have been imposed on Strauss, the Mississippi State Bar pleadings addresses only the three years suspension of the federal district court in Louisiana. In his Answer and Affirmative Defenses filed on February 7, 1991, with this Court, Strauss challenged, among other things, the assertion the complaint was filed pursuant to Rule 6, and affirmatively asserted that Rule 6 in no way applied to the facts of this complaint. He further asserted he should not be disciplined under Rule 13 and argued that because the "forum shopping" behavior, in which he admitted participating in the federal court in Louisiana, was not a violation of either the rules of the Mississippi Bar or federal courts in Mississippi, it would not be proper for this Court to impose discipline for conduct which would be legal in this state, nor taxed with the costs.
In October 1991, this Court rendered its original opinion on the complaint of the Mississippi Bar and also appointed a Tribunal under Rule 13 to recommend to this Court a sanction. On October 29, 1991, the Mississippi Bar Counsel filed a Petition for Rehearing suggesting that this case is a Rule 6 case in which this Court may set the sanction without the necessity of the convening of a Tribunal.
While the Petition for Rehearing was pending here, the Tribunal appointed by this Court set its hearing date, and noticed Strauss and his counsel. Without detailing all of the procedural stages, it is sufficient to state that the Complaint Tribunal heard the proof offered from the Bar and defense counsel, and recommended a three year suspension of Strauss from the practice of law in Mississippi. Strauss did not appear before the Tribunal, but has asked for a rehearing. That record of the proceedings in the Tribunal has been forwarded to the Court.
Miss.Code Ann. Sec. 73-3-341 (1972) and Rule 13 of the Rules of Discipline for the Mississippi State Bar, (1984), provides the basis for imposing reciprocal discipline:
[w]hen 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 proceedings 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. (Emphasis added).
The Procedure for filing disciplinary actions under Rule 13.1 provides:
Upon receipt by the Executive Director of a certified copy of disciplinary sanctions imposed in another jurisdiction 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. If such sanctions from the other jurisdiction come within the provisions of Rule 6, Complaint Counsel shall present same to the Court as provided therein. If the sanctions do not come within Rule 6, Complaint Counsel shall prepare and file a Formal Complaint for trial before a Complaint Tribunal 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. (Emphasis added).
Under Miss.Code Ann. Sec. 73-3-341 and Rule 13, a certified copy of disciplinary sanctions from another jurisdiction "is 'conclusive evidence' of the attorney's guilt of the offense," Mississippi State Bar v. Young, 509 So.2d 210, 217 (Miss.1987), and provides grounds for disciplinary action in this state. The Court interprets the suspension of the United States District Court for the Eastern Division of Louisiana as an appropriate other "jurisdiction" from which to consider reciprocal disciplinary action in this state. The sole issue in this state " 'shall be the extent of the final discipline' which we ought impose." Mississippi State Bar v. Edwins, 534 So.2d 218, 219 (Miss.1988); Miss.Code Ann. Sec. 73-3-341 (1972); Rule 13, Rules of Discipline for the Mississippi State Bar, (1984).
The procedure set forth for Rule 13.1 allows for the sanctions from the other jurisdiction to be presented by the Complaint Counsel directly to the Court if such sanctions "come within the provisions of Rule 6...." (Emphasis added). However, if the sanctions imposed by the other jurisdiction do not come within Rule 6, the procedure under Rule 13 directs the Complaint Counsel to "prepare and file a Formal Complaint for trial before a Complaint Tribunal wherein the sole issue to be determined shall be the extent of final discipline to be imposed...." Rule 13.1, Rules of Discipline for the Mississippi State Bar, (1984).
Rule 6 provides:
Rule 6. Suspensions and Disbarments Based on Other Proceedings
(a) Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted in any court of any state or in any federal court, or enter a plea of guilty or a plea of nolo contendere therein, of any felony (other than manslaughter) or of any misdemeanor involving fraud, dishonesty, misrepresentation, deceit, or willful failure to account for money or property of a client, a certified copy of the judgment of conviction shall be presented to ...
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