Shah v. The Mississippi Bar, 2005-BA-00951-SCT.

• Decision Date: 04 January 2007
• Docket Number: No. 2005-BA-00951-SCT.,2005-BA-00951-SCT.
• Citation: 962 So.2d 514
• Parties: Azki SHAH v. THE MISSISSIPPI BAR.
• Court: Mississippi Supreme Court

962 So.2d 514

Azki SHAH v. THE MISSISSIPPI BAR.

No. 2005-BA-00951-SCT.

Supreme Court of Mississippi.

January 4, 2007.

Rehearing Denied April 19, 2007.

Azki Shah (pro se).

Gwendolyn G. Combs, Adam Bradley Kilgore, James Russell Clark, Jackson, attorneys for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

STATEMENT OF THE CASE

¶ 1. The case at bar involves an attorney with over twenty-two years of experience, who has been repeatedly and severely sanctioned by the Committee on Professional Responsibility ("Committee"), the Complaint Tribunal ("Tribunal") and this Court. Initially, Azki Shah ("Shah") was issued a private reprimand, stemming from an informal complaint filed by Marcus Simmons ("Simmons"). However, Shah chose to have the private reprimand vacated and sought a formal complaint and hearing. After the hearing, the Tribunal chose to disbar Shah. Due to the facts in the case sub judice, we conclude that the leap between private reprimand and disbarment is too great. Today we do not affirm the ruling of the Tribunal, but instead issue a suspension of three years. "This Court is free to modify the punishment as needed to best serve the interests of the Bar and the public." Miss. Bar v. Hodges, 949 So.2d 683, 685, 2006 Miss. LEXIS 379, *3 (Miss.2006) (citations omitted).

¶ 2. As Shah was initially issued a private reprimand by the Committee, this opinion should not be misinterpreted as granting leave to The Mississippi Bar ("Bar") to enhance punishment against an attorney because he elects to appeal, nor should this decision by the Court be misconstrued to discourage attorneys to appeal decisions issued by the Committee, when warranted.

¶ 3. This incident represents the seventh time in less than eight years that Shah has been charged with violating the Rules of Professional Conduct. Shah has previously been suspended from the practice of law on two occasions, once for two years and again for six months. Shah has received three private reprimands and one informal admonition. Shah has repeatedly violated the same rules. In this proceeding, Shah was charged with violating Rule 1.3, a rule he has previously violated on three occasions; Rule 1.4, a rule Shah violated on four prior occasions; Rule 8.4(a), a rule Shah violated on three prior occasions; and Rule 8.4(c), a rule Shah violated on one previous occasion.

¶ 4. When imposing sanctions, this Court, as well as the Tribunal, considers 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 profession; (4) the protection of the public; (5) the sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer's mental state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence of aggravating or mitigating circumstances.

Id. at 686, 2006 Miss. LEXIS 379, at *5-6 (citation omitted).

¶ 5. Our decision to suspend Shah is markedly influenced by the fact that Shah has not been a stranger to disciplinary proceedings. It is quite apparent that prior attempts at disciplining Shah have failed. As opposed to disbarment, we are hopeful that our ruling will help Shah ameliorate his behavior upon completion of his suspension.

¶ 6. On October 30, 2003, an informal complaint was filed by Simmons against Shah. The Committee referred the complaint to the Office of General Counsel for the Mississippi Bar ("Bar") for investigation, hearing and a report concerning Shah's alleged violations of Mississippi Rules of Professional Conduct 1.2(a), 1.3, 1.4, 8.1(b) and 8.4(a) and (d).

¶ 7. A report was prepared by the Bar and a hearing was scheduled for April 16, 2004. Despite notice, neither Simmons nor Shah attended the hearing. The Bar submitted its investigatory report to the Committee. A copy of the report was furnished to Shah. Shah submitted an Answer to the Investigatory Report. The Committee found Shah violated three Rules of Professional Conduct and imposed a private reprimand.

¶ 8. Shah filed a Formal Request for Disciplinary Proceeding. Accordingly, the private reprimand was vacated. See M.R.D. 7(c). Thus, the Bar then initiated a formal complaint against Shah. The formal complaint alleged Shah violated M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(b), and 8.4(a). Shah answered the formal complaint by denying the allegations made by Simmons and averring the Committee wrongfully imposed discipline.

¶ 9. Subsequently, Shah filed a motion to dismiss the formal complaint, based on the allegation that the Bar contacted and interviewed Simmons in violation of M.R.D. 5.8, after Simmons failed to attend the investigatory hearing. Shah asserts he should have been contacted and allowed to attend the conversation with Simmons. In its Response, the Bar plead Simmons had contacted the Bar to explain his absence from the investigatory hearing and the information Simmons furnished the Bar resulted in no prejudice to Shah. A hearing was held by the Tribunal and Shah's motion to dismiss was denied.

¶ 10. On the same date, the Tribunal proceeded with a formal hearing on the complaint and later, the Tribunal announced its ruling, finding by clear and convincing evidence that Shah violated M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(a), 8.4(a) and 8.4(c). Due to Shah's prior violations, pattern of misconduct, refusal to acknowledge the wrongful nature of his misconduct, his substantial experience in the practice of law, and due to the fact that there were no mitigating factors, the Tribunal found Shah's punishment should be immediate disbarment and to pay all costs of the proceedings. The Tribunal issued an Opinion and Judgment ("Opinion"), which contained its Findings of Fact and Conclusions of Law, finding that Shah violated M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(a), 8.4(a) and 8.4(c). Shah filed a Motion for Judgment of Acquittal Notwithstanding the Verdict, or in the Alternative, a New Trial.

¶ 11. The Tribunal ruled that the issues raised by Shah's Motion for Judgment of Acquittal Notwithstanding the Verdict, or in the Alternative, a New Trial were without merit and denied his motion. Shah timely filed this appeal, listing numerous issues for appeal. The Bar summarized the issues before this Court as follows:

I. Whether the Complaint Tribunal erred in not granting Shah's Motion to Dismiss.

II. Whether the Complaint Tribunal's findings were supported by clear and convincing evidence.

III. Whether the Complaint Tribunal erred in denying Shah's Motion for Judgment of Acquittal Notwithstanding the Verdict, or in the alternative for a New Trial.

IV. Whether the Complaint Tribunal erred in allowing the Mississippi Bar to amend its pleadings at trial to conform to the evidence.

V. Whether two members of the Complaint Tribunal should have recused themselves.

FACTS

¶ 12. Simmons hired Shah as his attorney on April 8, 2002, as Simmons needed an attorney to determine whether Simmons had valid title to property purchased at a tax sale. No written contract of employment was utilized. Simmons paid Shah $165 to research whether Simmons had a legitimate claim, which was confirmed by a receipt at the hearing. Simmons testified that in May of 2002, Shah informed him that he had a valid claim and that Simmons needed to pay him an additional $365 in order for Shah to pursue the claim. In contrast, Shah testified that he charged Simmons a one time fee of $375 to draft, file and serve a complaint.

¶ 13. Simmons testified Shah never initiated contact with him after that date, though Simmons continued to frequent Shah's office to check on the progress of his case. Simmons testified Shah told him he was trying to obtain a court date and later asserted he had obtained a court date. Simmons asked Shah if he needed to be present, as his daughter was very ill and had a doctor's appointment scheduled for the court date. Simmons testified Shah told him he did not need to be there. Simmons stated the initial court date was never mentioned again. Later, Shah told him there was a second court date and that Simmons needed to attend. Simmons stated he took off of work to attend. However, when Simmons arrived at the courthouse, he could not find Shah in the building. Simmons learned then that no court date had been scheduled for his case. Simmons "kept going to the courthouse" and checking with the Chancery Clerk of Coahoma County to find out if anything had been filed regarding his case. Simmons later received a letter from the Clerk which revealed that after researching all dockets from April of 2002 through October 23, 2003, the Clerk could find no case filed on behalf of Simmons. When Simmons later confronted Shah about not filing the suit, Shah presented Simmons with an unfiled complaint.

¶ 14. Shah disputed he told Simmons he had a court date on any occasion. Shah claimed he drafted a complaint for Simmons around December 2002. Shah drafted the complaint based on information Simmons gave him and he was going to research the claim after he drafted the complaint. Shah testified that after research, he determined Simmons' claim lacked merit and thus Simmons did not have a case, which was why the complaint was never filed. Shah claims he explained to Simmons his case lacked merit and refunded him the $375 Simmons had paid to Shah.

¶ 15. Contrary to Shah's version, Simmons stated Shah never told him his claim lacked merit and that Shah would not go forward with it. As Simmons was frustrated with Shah's representation, he contacted the Mississippi Bar. He was advised to request a refund from Shah. Therefore, Simmons wrote Shah a letter terminating the representation and demanding a refund of all fees paid. In the letter, Simmons claimed he had absolutely no communication with Shah for "more than six months" and that he had called Shah's office several times, without result. Simmons wrote that if he did not receive a refund from Shah by October 7, 2003, he would file a complaint with...