Mississippi State Bar v. Nichols

• Decision Date: 23 May 1990
• Docket Number: No. 89-A-00064,89-A-00064
• Citation: Mississippi State Bar v. Nichols, 562 So.2d 1285 (Miss. 1990)
• Parties: MISSISSIPPI STATE BAR v. John A. NICHOLS.
• Court: Mississippi Supreme Court

Page 1285

562 So.2d 1285

MISSISSIPPI STATE BAR v. John A. NICHOLS.

No. 89-A-00064.

Supreme Court of Mississippi.

May 23, 1990.

Charles J. Mikhail, Mississippi State Bar, Jackson, for complainant.

John A. Nichols, Jackson, for respondent.

EN BANC.

PRATHER, Justice, for the Court:

This Court considers for the first time a disbarment of an attorney predicated upon a civil judgment involving fraud, misrepresentation, dishonesty, deceit, or wilful failure to account for money or property of a client. The Mississippi State Bar (MSB), complainant, seeks disbarment of John A. Nichols, pursuant to Rule 6(c) of the Rules of Discipline of the Mississippi State Bar, adopted January 1, 1984 by this Court.

I.

John A. Nichols was licensed to practice law in the State of Mississippi under authority of the statutes of this state. The complaint filed by MSB against him exhibits the following facts. On June 10, 1988, a civil judgment was entered in Hinds County Circuit Court in Cause No. 34,573, styled National Mortgage Co. v. John A. Nichols for the defendant's alleged conversion of $53,811.29 from the plaintiff mortgage company, by allegedly failing to pay off a prior loan from the proceeds of a refinancing loan. The MSB complaint suggests to this Court that the aforenamed civil judgment against Mr. Nichols for conversion is among the types of offenses contemplated by the Mississippi Rules of Discipline, Rule 6(c), for disbarment of an attorney. Rule 6(c) provides:

(c) Whenever any attorney subject to the disciplinary jurisdiction of the Court shall have entered against him in any court of any State or in any Federal Court a civil judgment in accordance with Section 11049-3, Mississippi Code of 1972, or any other civil judgment based upon clear and convincing evidence of fraud, misrepresentation, dishonesty, deceit, or willful failure to account for money or property of a client, a certified copy of the judgment, upon becoming final, shall be presented to the Court by Complaint Counsel and shall constitute sufficient, clear and convincing evidence of the facts necessary to support such judgment, and unless successfully rebutted, the Court shall forthwith strike the name of the attorney and order his immediate suspension from the practice of law. This section shall not apply to Internal Revenue Code, Federal Communications Commission, Securities and Exchange Commission, Federal Trade Commission, and/or similar Federal Agency violations involving civil judgments and/or civil penalties, but nothing herein contained shall prohibit disciplinary prosecution for felony convictions based upon such violations.

A show cause order issued by this Court to John A. Nichols requested a response, which was received. In essence, Nichols' response is a general denial, plus the assertion of an affirmative defense. The allegation of affirmative matter alleges that the civil judgment is "beyond the scope of Rule 6 due to the fact that the [final] judgment [in the Circuit Court of Hinds County] was heard and entered without notice to the Respondent." The circuit court file exhibited in this Court was silent as to process. The response alleges further that:

The judgment is beyond the scope of Rule 6 due to the fact that the judgment was heard and entered without notice to the Respondent. That Respondent's first notice of any such judgment was on his receipt of the Formal Complaint herein; that said judgment is not in accordance with Section 11-49-3, Mississippi Code by the reference to the terms of said statute. None of the proceedings contemplated by that statute have been invoked herein or could be so invoked. As Respondent has only recently gained knowledge of said judgment he is not aware if it has been amended or reversed. Respondent's rights pursuant to the Mississippi and United States Constitutions have been violated wherein a judgment has been entered against him without notice and will be violated from the present posture in that he is being required to prove himself innocent of charges which it appears that this Court has taken as proven.

As John A. Nichols opposed the petition of the MSB, this Court determined that a Tribunal should be convened under Rule 8 to conduct a hearing on this petition. This Court designated that the procedure, powers, and duties of Rule 8 of the Rules of Discipline be followed for this complaint of disbarment. In open court, the Tribunal set the complaint for hearing when Mr. Nichols was present and made no objection to the setting; however, Nichols did not appear at the Tribunal hearing on the merits.

At the conclusion of the hearing, the Tribunal rendered a written opinion with this Court, incorporating a finding of fact ¹ and its recommendation for this Court's final consideration on the petition for disbarment.

The Tribunal recommended disbarment of Mr. Nichols under Rule 6(c) of the Rules of Discipline, together with an order of restitution and payment of costs.

This Court has exclusive inherent jurisdiction over an attorney and his/her license to practice law in this state. Mississippi State Bar v. Nixon, 494 So.2d 1388, 1389 (Miss.1986); Mississippi State Bar v. Phillips, 385 So.2d 943, 944 (Miss.1980). Even though this Court convenes a Tribunal to make findings of fact and recommendations to this Court, this Court addresses the case de novo. Levi v. Mississippi State Bar, 436 So.2d 781, 782 (Miss.1983). Having considered the entire record, the Rules of Discipline, and the findings of fact of the Tribunal and its recommendation, this Court holds that the final civil judgment against Mr. Nichols meets the requirement for disbarment under Rule 6(c) of the Rules of Discipline, as a civil judgment based upon clear and convincing evidence of the facts necessary to support the judgment, and based upon fraud, misrepresentation dishonesty, deceit, or willful failure to account for money or property of a client.

Additionally, the facts found by the Tribunal show that Mr. Nichols entered a guilty plea to the felonious charge of embezzlement and was convicted in the Hinds County Circuit Court on December 12, 1989, of this crime. This criminal charge arises from the same factual circumstances that gave rise to the civil judgment. This felonious conviction meets the requirements of Rule 6(a), Rules of Discipline of the Mississippi State Bar for...