Mississippi State Bar v. Odom

• Decision Date: 22 August 1990
• Docket Number: No. 89-BA-121,89-BA-121
• Parties: MISSISSIPPI STATE BAR v. Joe R. ODOM.
• Court: Mississippi Supreme Court

Page 712

566 So.2d 712

MISSISSIPPI STATE BAR v. Joe R. ODOM.

No. 89-BA-121.

Supreme Court of Mississippi.

Aug. 22, 1990.

Michael B. Martz, Jackson, for appellant.

W. Scott Welch, III, Butler Snow O'Mara Stevens & Cannada, Jackson, for appellee.

En Banc.

ANDERSON, Justice, for the Court:

This is an appeal from a Complaint Tribunal which, after receiving evidence of attorney disciplinary violations by Joe R. Odom, recommended that this Court suspend him from the practice of law for a period of three months and publicly reprimand him for violations of the Code of Professional Responsibility. The Tribunal further found that the Bar did not meet its burden of proving fraud, deceit, or dishonesty. The Mississippi State Bar appealed the finding and penalty imposed by the Tribunal. Odom cross-appealed, claiming his suspension too excessive for a sole

practitioner. We reverse the order of the Complaint Tribunal and order Odom suspended from the practice of law for three (3) years effective on the date of this decision. Further, we find no merit to Odom's plea on cross-appeal; therefore, it will not be discussed here.

FACTS

Mary Roberts and Mildred Brown of Birmingham were co-executrices and the sole devisees of the estate of Beatrice Schmitz Sheppard, the primary asset of which was the residence of the decedent in Meridian. Odom, a practicing attorney for at least twenty (20) years, was the attorney for the executrices. ¹ In order to dispose of the estate's assets, Odom filed a petition to approve the sale of Sheppard's home on March 30, 1986. On April 4, 1986, the chancery court approved the sale of the property for the sum of $45,239.53. The decree authorized the executrices to pay a realtor's commission of $2,700, "all necessary expenses incident to the sale," and directed that they deposit the remainder of the proceeds "in the estate account for future distribution". Roberts and Brown, as stipulated in Sheppard's will, were each to receive proceeds from the sale amounting to $14,117.00.

On April 7, 1986, Odom received a check for $45,239.53 from the sale of the Sheppard's home. Odom had a trust account at a local bank for monies he received as fees and client funds. ² However, Odom never used the account to deposit the proceeds from the sale, and neither opened nor instructed Brown and Roberts to open a bank account for the Sheppard estate. Rather, the net proceeds from the sale were deposited into an account at the same bank styled "Adams and Odom", which was used for several purposes such as attorneys' funds, fees, accrued interest, review fees, and office and personal expenses. It clearly was not an attorney trust account.

From April 1986 through June 1986, a running balance of the "Adams & Odom" account was as follows: April 7--$284,744.77 (which included the proceeds from the sale of Sheppard's house); April 8--$279,268.77 (which still included the proceeds from the sale of the house); April 16--$1,498.93; ending balance in May--negative $6,889.00; and June 27--negative $55.03 (when Odom wrote Brown and Roberts their checks).

Checks were drawn on the account in question for $9,705.53, to retire mortgages, to make payments for minor repairs, and to pay the title insurance company and realtor; and also, Odom wrote a check to himself for $457.50 for attorney's fees associated with the closing and notary fees of $7.50, leaving $35,534.00 net proceeds.

This sum did not remain on deposit in the account. Odom paid his own personal and business expenses, which bore no relation to the estate expenses. Checks from this account went to pay, among others, telephone bills, life and accident insurance, gasoline expenses, and a deposit on a personal trip to Mexico. On April 16 the account balance was only $1,498.93.

No steps were taken by Odom to close the estate, and in response to a June 4 letter from Brown, a meeting was scheduled for June 27. At this meeting Odom gave the executrices an "accounting sheet" which showed the net assets of $35,534.00, additional deductions for repairs of $195.85, a claim of the local hospital of $2,500.00, notice to creditors of $104.55, leaving a balance of $32,455.00. From this Odom deducted another $4,500.00 for "attorney's fees", leaving a balance of $28,234.00.

On June 27 Odom wrote a check to each of the executrices for $14,117.00. On that date the account had no funds on deposit, and was overdrawn $55.03. Odom asked Roberts retained another attorney, William Neville, Jr., to represent Brown and her. Neville learned from the bank that the funds in the "Adams and Odom" bank account were not sufficient to cover either Brown's or Roberts' check. After learning of Neville's involvement, Odom telephoned him and promised to make good on the checks to the executrices.

Roberts and Brown to hold their checks for approximately two weeks. Brown disregarded Odom's request and attempted to cash her check. However, it was not honored by the bank due to insufficient funds.

Subsequently, Neville filed a motion in Chancery Court for a financial accounting and discharge of the attorney of record [Odom]. A hearing was held on August 18, 1986. Roberts received a cashier's check for $19,221.55, which included $2,500.00 held by Odom in the Sheppard estate for a hospital bill already paid by the insurance company, certain withheld monies for attorney's fees for Odom (Odom reduced his fees from $4,500.00 to $2,000.00), and $14,117.55 owed from the sale proceeds.

Odom explained his position by stating that from 1985 through 1987 the general nature of his law practice consisted of approximately ninety-nine percent of work in claims. Less than two percent of his work involved real estate matters for the same time period. Odom testified that he was not consciously aware of writing checks against funds of any client or deliberately taking money from a client. Thus, none of his clients had ever lost any money as a result of the manner in which he handled his bank account.

I.

The Bar raises the following issues on appeal:

I. THE COMPLAINT TRIBUNAL ERRED BY FINDING THAT ODOM DID NOT VIOLATE THE PROVISIONS OF DR 1-102(A)(4) AND DR 1-102(A)(5) OF THE CODE OF PROFESSIONAL RESPONSIBILITY AND SECTION 73-3-35 OF THE MISSISSIPPI CODE OF 1972, AS AMENDED, WHEN HE CONVERTED AND MISAPPROPRIATED FUNDS BELONGING TO THE BEATRICE SCHMITZ SHEPPARD ESTATE IN 1986.

II. THE COMPLAINT TRIBUNAL ERRED BY FAILING TO IMPOSE DISCIPLINE AGAINST ODOM FOR HIS VIOLATION OF DR 1-102(A)(4) AND DR 1-102(A)(5) OF THE CODE OF PROFESSIONAL RESPONSIBILITY AND SECTION 73-3-35 OF THE MISSISSIPPI CODE OF 1972, AS AMENDED, FOR HIS UNETHICAL AND UNPROFESSIONAL CONDUCT AS DESCRIBED IN THE PRECEDING PARAGRAPH.

The Bar contends that Odom, as a trustee and fiduciary, misappropriated the Sheppard estate funds and used them for his own use and benefit. The Bar submits that such acts by Odom warranted his disbarment from the practice of law.

II.

This Court is charged by law to inquire whether the evidence in a Complaint Tribunal is clear and convincing. "In an attorney disciplinary proceeding, the Supreme Court is the supreme trier of fact, and as a matter of law, is not bound by any findings of fact made by the Complaint Tribunal." Goeldner v. Mississippi State Bar Ass'n, 525 So.2d 403, 406 (Miss.1988). See also, Rule 9.4, Rules of Discipline. However, while no substantial evidence or manifest error rule shields the Tribunal from scrutiny, we are not prohibited from giving deference to such findings. Id.; Foote v. Mississippi State Bar Association, 517 So.2d 561, 564 (Miss.1987).

Mississippi Code Annotated Sec. 73-3-35, (Supp.1988), gives the lawyer's oath:

Every attorney and counselor at law, before he shall be permitted to practice, shall produce his license in each court where he intends to practice, and in the presence of such court, shall take the following oath or affirmation to wit:

'I do solemnly swear (or affirm) that I will demean myself, as an attorney and counselor of this court, according to the best of my learning and ability, and with all good fidelity as well to the court as to And thereupon the name of such person, with the date of his admission, shall be entered in a roll or book to be kept in each court for that purpose.

the client; that I will use no falsehood nor delay any person's cause for lucre or malice, and that I will support the constitution of the State of Mississippi so long as I continue a citizen thereof. So help me God.'

DR 1-102(A)(4), (5) of the Code of Professional Responsibility provides "a lawyer shall not violate a disciplinary rule, engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; or engage in other conduct that reflects adversely on his fitness to practice law."

With these rules in place, we are not hesitant in imposing substantial sanctions when an attorney's act evinces want of personal honesty and integrity or renders such attorney unworthy of public confidence. Foote, 517 So.2d at 564. Generally, disbarment is appropriate when "a lawyer knowingly converts client property and causes injury or potential injury to a client." Id. (citing American Bar Association Standards For Imposing Lawyer Sanctions (1986) 4.11) (emphasis added).

Similarly, acts of dishonesty, fraud, deceit, and/or misrepresentation constitute grounds for disbarment. See, Clark v. Mississippi State Bar Ass'n, 471 So.2d 352 (Miss.1985) (tribunal's disbarment of attorney for misappropriation of conservatorship funds affirmed by Court); Brumfield v. Mississippi State Bar Association, 497 So.2d 800 (Miss.1986) (tribunal's ninety-day suspension vacated and Court imposed disbarment where attorney defrauded family members while acting in a representative and fiduciary capacity); Foote, supra (tribunal's disbarment affirmed of attorney who converted funds obtained from purchaser at real estate closing); Mississippi State Bar Association v. Moyo, 525 So.2d 1289 (Miss.1988) (tribunal's order of a public...