Mississippi Bar v. Sweeney, 2001-BA-01440-SCT.

• Decision Date: 16 January 2003
• Docket Number: No. 2001-BA-01440-SCT.,2001-BA-01440-SCT.
• Citation: 849 So.2d 884
• Parties: The MISSISSIPPI BAR v. Henrietta SWEENEY.
• Court: Mississippi Supreme Court

849 So.2d 884

The MISSISSIPPI BAR v. Henrietta SWEENEY.

No. 2001-BA-01440-SCT.

Supreme Court of Mississippi.

January 16, 2003.

Michael B. Martz, Christina Jacqueline Kelsey, Jackson, attorneys for appellant.

Hernrietta Sweeney, Pro se, attorney for appellee.

EN BANC.

PITTMAN, C.J., for the Court.

¶ 1. After a formal hearing, the Complaint Tribunal of the Court found attorney Henrietta Sweeney guilty of violating several rules of the Mississippi Rules of Professional Conduct and suspended her from the practice of law for one year. The Bar appeals and requests that the Court review the sanctions and determine if the punishment was too lenient in light of Sweeney's misconduct. We affirm the findings of the Tribunal and render a suspension for three years.

FACTS

¶ 2. James Allen Fairley (Fairley) died on November 27, 1995 leaving three surviving heirs-at-law: his brother, Adam Fairley, Jr. (Adam) and his two sisters, Nannie Mae Hall (Hall) and Annie Rankin (Rankin). On March 15, 1996, the Chancery Court of Covington County appointed Rankin as the Administratrix of Fairley's estate. On April 1, 1996, David Shoemake, the attorney for Adam and Hall, wrote to Henrietta Sweeney, the attorney for Rankin, requesting an inventory and an accounting of the estate property. Shoemake wrote twice with same requests, but Sweeney never responded. With the third and final request dated October 4, 1996, Shoemake expressed his clients' concerns that Rankin had taken personalty from Fairley's residence that belonged to Fairley's estate, taken possession of Fairley's automobile, and removed funds from Fairley's account at Covington County Bank. Also, he expressed their concerns regarding the location of the proceeds of Fairley's $100,000 life insurance policy and money held in another bank account at Union Planters Bank. On November 26, 1996, the Covington County Chancellor granted a petition, joined by all three heirs (Adam, Hall, and Rankin), authorizing Rankin, as Administratrix, to sell certain real property of the estate.

¶ 3. On April 1, 1997, Shoemake, on behalf of his clients, filed a motion to compel Rankin to provide an inventory and an accounting. On May 9, 1997, the chancery court granted the motion and required Rankin to file a full and complete inventory and accounting before May 12, 1997. Without serving either the other two heirs or their attorney, on May 15 Rankin filed a Petition for Approval of First and Final Account of Executor and Closing of the Estate. This petition failed to render an accounting of receipts or disbursements from Fairley's estate, and indicated that since the inception of the estate Rankin had lost many of the assets belonging to the estate. The petition mentioned the two bank accounts and the insurance proceeds, but did not account for their whereabouts. Additionally, the petition indicated that Rankin sold Fairley's automobile without court approval or notice to other parties. On July 31, 1997, Rankin was removed as the Administratrix and ordered to provide an accounting by August 13.

¶ 4. Almost two years later, Adam and Hall filed a motion to cite Rankin for contempt of court because she failed to file an inventory or an accounting and for her negligence and misconduct in managing the estate. The chancery court entered a judgment on August 27, 1999. Relevant to Sweeney, the court found that in November or December of 1996 Sweeney endorsed and deposited into her trust account a check payable to Fairley's Estate that she received as proceeds from the sale of estate property. Likewise, the court noted that Sweeney only produced the proceeds from this check two days prior to the hearing. The court found that proceeds from the sale of Fairley's automobile and other personal property (approximately $2,000) were paid to either Sweeney or Rankin and that these two women mishandled assets of the estate and failed or refused to turn over assets of the estate to the present Administratrix. Following this judgment, the Mississippi Bar began an investigation.

¶ 5. The Bar determined that Sweeney, as counsel for Rankin, had in her possession a check dated November 7, 1996, in the amount of $6,600.65 resulting from the sale of estate property and payable to the "Estate of James Fairley." She deposited this check into her trust account at Citizens State Bank in Magee, Mississippi, on December 19, 1996. Between December 19, 1996, and August 20, 1999, the balance of Sweeney's trust account frequently fell below $6,600.65.

¶ 6. The Complaint Tribunal held that Sweeney misappropriated her client's property for her own use and benefit; that she should have been aware that the funds she received were not to be deposited in her trust account but instead into a separate account; and that she allowed assets of the estate to be sold without court approval.

¶ 7. The Complaint Tribunal's decision followed a formal investigation and a hearing on Sweeney's conduct. At no time throughout the proceedings or this appeal did Sweeney appear or respond to the allegations. The transcript from the hearing reflects that counsel for the Bar, Christina Jacqueline Kelsey, spoke with Sweeney the day before the hearing and that Sweeney stated she was having on going personal problems related to her children and that she was under the care of a psychiatrist. Sweeney said she planned to close her practice and considered relocating to North Carolina. Further, she acknowledged that she was in default and expressed her hope that the Tribunal would be lenient. ¶ 8. The Tribunal entered a default judgment finding that, by clear and convincing evidence, Sweeney engaged in conduct involving dishonesty, fraud, deceit, misrepresentation and violated certain Rules of Professional Conduct, including:

Rule 1.1, MRPC, which provides that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.3, MRPC, which provides that a lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 1.4, MRPC, which provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information and shall further explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Rule 1.15, MRPC, which provides the conditions for a lawyer holding property belonging to a client.

Rule 8.4 (a, c, and d), MRPC, which provides that it is professional misconduct to violate or attempt to violate the rules of the professional conduct, to engage in conduct involving dishonesty, fraud, deceit and misrepresentation or to engage in conduct that is prejudicial to the administration of justice.

STANDARD OF REVIEW

¶ 9. This Court has exclusive and inherent jurisdiction of matters pertaining to attorney discipline, reinstatement, and appointment of receivers for suspended and disbarred attorneys. Rules of Discipline for Miss. State Bar 1(a). Appeals from judgments rendered by the complaint tribunal are provided for in Miss.Code Ann. § 73-3-329 (1999). On appeal, this Court, "shall review the entire record and the findings and conclusions of the Tribunal, and shall render such orders as the Court may find appropriate." Foote v. Miss. State Bar Ass'n, 517 So.2d 561, 564 (Miss.1987). We review the evidence under the de novo standard, on a case-by-case basis, sitting as the trier of fact, and no substantial evidence or manifest error rule shields the Tribunal from scrutiny. Foote, 517 So.2d at 564 (citing Hoffman v. Miss. State Bar Ass'n, 508 So.2d 1120, 1124 (Miss.1987); Vining v. Miss. State Bar Ass'n, 508 So.2d 1047, 1049 (Miss. 1987)). However, the Court may give deference to the findings of the Tribunal. Parrish v. Miss. Bar, 691 So.2d 904, 906 (Miss.1996), (citing Miss. State Bar v. Odom, 566 So.2d 712, 714 (Miss.1990)).

DISCUSSION

¶ 10. The only issue before this Court: Is whether the one year suspension imposed on Sweeney was sufficient under the facts and applicable law?

¶ 11. The primary concern when imposing sanctions for attorney misconduct is that the punishment be sufficient "to vindicate in the eyes of the public the overall reputation of the Bar." Parrish, 691 So.2d at 907 (citations omitted). The Court uses two sets of criteria when reviewing the sanctions for misconduct. Miss. Bar v. Alexander, 669 So.2d 40, 42 (Miss.1996). However, the Court is essentially "free to evaluate the discipline imposed on an attorney and on review modify punishment as needed to best serve the interest of the Bar and public." Parrish, 691 So.2d at 907 (citing Miss. State Bar v. Blackmon, 600 So.2d 166, 173 (Miss.1992)).

¶ 12. The first set of criteria employed by this Court include:

(1) the nature of the conduct involved;

(2) the need to deter similar misconduct;

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

(4) the protection of the public; and

(5) the sanctions imposed in similar cases.

Parrish, 691 So.2d at 907; Alexander, 669 So.2d at 42; Miss. Bar v. Attorney ST, 621 So.2d 229, 233 (Miss.1993). The second set of criteria we consider originates from the ABA standards for imposing sanctions. These include:

(a) the duty violated;

(b) the lawyer's mental state;

(c) the actual or potential injury caused by the lawyer's misconduct; and

(d) the existence of aggravating or mitigating circumstances.

Parrish, 691 So.2d at 907; Blackmon, 600 So.2d at 173.

¶ 13. Because Sweeney failed to respond to the allegations, the factual findings of the judgment are based solely on the Bar's complaint. An exhaustive analysis applying the eight factors to Sweeney's actions is not needed. Because the allegations are uncontroverted, Sweeney's misconduct clearly warrants a significant sanction.

¶ 14. It is undisputed that Sweeney misappropriated funds...