Stewart v. The Miss. Bar, 2009-BR-01954-SCT
| Decision Date | 06 January 2011 |
| Docket Number | NO. 2009-BR-01954-SCT,2009-BR-01954-SCT |
| Parties | JOE GREGORY STEWART v. THE MISSISSIPPI BAR |
| Court | Mississippi Supreme Court |
EN BANC.
¶1 This is Joe Gregory Stewart's second petition for reinstatement to the practice of law. Stewart v. Miss. Bar, 5 So. 3d 344 (Miss. 2008) (Stewart I). Stewart has made great strides toward rehabilitating his character, and has demonstrated a changed life in many ways. Yet because he made a false statement to the Mississippi Bar and failed to cooperate with the Bar during its investigation of his petition, we deny Stewart's request for reinstatement.
¶2. Joe Gregory Stewart was disbarred in 2004 after he pleaded guilty in federal court to one count of conspiracy to commit extortion under color of official right. Miss. Bar v. Stewart, 890 So. 2d 900 (Miss. 2004). Stewart admits that, in 1998, he paid a Tunica Countysheriff's deputy to absent himself as a witness in five DUI matters in justice court. Stewart I, 5 So. 3d at 346. The deputy sheriff's absence led to the dismissal of those cases. Id. Stewart self-reported his illegal activity to the Federal Bureau of Investigation (FBI). Id. He eventually was sentenced to three years probation and ordered to pay a $20,000 fine and a $100 special assessment. Id.
¶3. This Court denied Stewart's first petition for reinstatement, finding that he had failed clearly to establish a rehabilitated character. Id. at 352. Stewart contends that this, his second petition, demonstrates sufficient evidence of rehabilitation in character to warrant his reinstatement to the Bar.
¶4. The Bar continues to oppose Stewart's reinstatement. The Bar opposed his first petition for reinstatement on the basis that Stewart's misconduct was simply too egregious. Stewart I, 5 So. 3d at 346. The Bar maintains that stance and, after further investigation, now gives additional reasons for its opposition: (1) Stewart failed to make any meaningful attempt to compensate the State for its pecuniary loss resulting from his misconduct; (2) he has not been forthcoming about his prior criminal history; (3) he has been untruthful and misleading about his prior military experience; and (4) in soliciting letters of recommendation, he communicated his desire to enlist in the Mississippi National Guard if reinstated, despite knowing that he was ineligible to do so because of his prior felony conviction.
¶5. This Court has "'exclusive and inherent jurisdiction'" over attorney-reinstatement cases. In re Morrison, 819 So. 2d 1181, 1183 (Miss. 2001) (quoting In re Smith, 758 So. 2d 396, 397 (Miss. 1999)). We review these matters de novo, on a case-by-case basis. In re Morrison, 819 So. 2d at 1183 (quoting In re Smith, 758 So. 2d at 397).
¶6. A petitioner seeking reinstatement "carries the burden of proving that he has rehabilitated himself and has established the requisite moral character to entitle him to the privilege of practicing law." Stewart I, 5 So. 3d at 346-47 (citing In re Holleman, 826 So. 2d 1243, 1246 (Miss. 2002)). He or she must demonstrate "'[a] firm resolve to live a correct life evidenced by outward manifestation sufficient to convince a reasonable mind clearly that the person has reformed____'" In re Petition of Massey, 670 So. 2d 843, 845 (Miss. 1996) (quoting Phillips v. Miss. Bar, 427 So. 2d 1380, 1382 (Miss. 1983)). Part of doing so involves meeting the jurisdictional requirements under Rule 12 of the Mississippi Rules of Discipline. Miss. R. Disc. 12; In re Benson, 890 So. 2d 888, 890 (Miss. 2004) (citing In re Holleman, 826 So. 2d 1243, 1247 (Miss. 2002)).
¶7. Rule 12 requires a petitioner to (1) state the cause or causes for suspension or disbarment; (2) provide the names and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss as a result of the improper conduct; (3) make full amends and restitution; (4) demonstrate that he or she has the necessary moral character to practice law; and (5) show that he or she possesses the requisite legal education to be reinstated. Miss. R. Disc. 12.7; see also In re Benson, 890 So. 2d at 890. The Bar's position, while not a jurisdictional requirement, is a factor in deciding whether to grant reinstatement. In re Benson, 890 So. 2d at 890 (citing In re Holleman, 826 So. 2d at 1248).
¶8. It is important to point out that Stewart most likely would not be eligible for reinstatement had he committed his felony offense under our current Rules of Discipline. See Miss. R. Disc. 12(c). But he is eligible to seek reinstatement based on the rules that were in effect at the time of his offense.
¶9. As already mentioned, the cause for Stewart's disbarment was his guilty plea to the felony of extortion. Stewart I, 5 So. 3d at 347.
¶10. In his first petition, Stewart alleged that no person, party, firm, or legal entity had suffered pecuniary loss due to his misconduct. Stewart I, 5 So. 3d at 347. But we pointed out that if Stewart's clients were in fact guilty, the State has incurred a financial loss in the form of unpaid fines. Id. at 347 (citing Miss. Code Ann. § 99-19-73(1) (Rev. 2007)). We added that "[n]o determination has been made of any pecuniary loss incurred by the [S]tate." Stewart I, 5 So. 3d at 348.
¶11. Stewart says that he is "extremely remorseful" for the State's financial loss and is prepared to pay whatever is required, but only after an appropriate authority has determined the amount, if anything, he owes. Otherwise, according to Stewart, the State's financial loss is purely speculative. He also argues that his clients, not he, would have had to pay any applicable fines.
¶12. Though Stewart would have benefitted from some type of good-faith effort to address the Court's stated concerns regarding the State's financial loss, we agree that he should not be held accountable for failing to pay for hypothetical losses. There is nothing in the record to indicate a determination of guilt in any of the DUI cases. Stewart's clients must be presumed innocent "unless and until the government proves beyond a reasonable doubt eachelement of the offense charged." Clark v. Arizona, 548 U.S. 735, 766, 126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006) (citations omitted). Furthermore, no court or tribunal, including this Court, has ever determined the amount of the State's pecuniary loss or directly ordered Stewart to reimburse this loss. Stewart I cited several cases to support that the State can suffer pecuniary loss because of lost fines. Id. at 347 (citing Miss. Comm'n on Judicial Performance v. Gibson, 883 So. 2d 1155, 1158 (Miss. 2004); Miss. Comm'n on Judicial Performance v. Hartzog, 904 So. 2d 981, 984, 986 (Miss. 2004)). But the cases cited in Stewart I involved instances in which this Court explicitly required disciplined judges to reimburse their respective municipalities and counties for financial losses resulting from those judges' misconduct. Stewart I, 5 So. 3d at 347 (citing Gibson, 883 So. 2d at 1158; Hartzog, 904 So. 2d at 986)). Here, in contrast, no explicit orders to pay have been made.
¶13. Because Stewart has paid all of the fines and costs he owes, we find that he has made full amends and restitution.
¶14. The most important inquiry in reinstatement cases is whether the petitioner has "demonstrated sufficient rehabilitation in character and conduct." Stewart I, 5 So. 3d at 348.
¶15. The Bar deposed Stewart twice in its investigation of this petition. During his first deposition, the Bar asked Stewart whether he had ever had anything nonadjudicated or expunged. Stewart replied, "No."
¶16. After this first deposition, the Bar received two letters opposing Stewart's reinstatement. One letter was from retired Mississippi Supreme Court Justice Kay Cobb; theother was from Robert Norman, a senior Assistant United States Attorney in the Northern District of Mississippi. Norman served as an assistant district attorney for Lafayette County during the 1980s, and Cobb served as an attorney with the Mississippi Bureau of Narcotics (MBN) during this same time period. Both Norman and Cobb recalled that Stewart had had a conviction expunged during the 1980s. The Bar forwarded copies of Norman's and Cobb's letters to Stewart prior to conducting a second deposition.
¶17. At the second deposition, the Bar confronted Stewart about the prior expungement. Stewart explained that he previously had answered "no" because he did not believe that he had had anything expunged. The word "expungement," he said, had never been used with him. Stewart said that, since then, he had retrieved some paperwork from his deceased grandfather's files and learned that he did, in fact, have an expunged record. He confirmed the existence of two orders concerning the expunction.
¶18. Although Stewart acknowledged the expunged record, he refused to discuss the underlying conduct. When the Bar asked Stewart if he had been convicted of a criminal act other than the one leading to his disbarment, he invoked the protections of Section 41-29-150 (d)(2) of the Mississippi Code. This law provides that a person benefitting from an expungement order shall not be "guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest, or indictment or trial in response to any inquiry made of him for any purpose." Miss. Code Ann. § 41-29-150(d)(2) (Rev. 2009); see also Miss. Code Ann. § 99-19-71(3) (Rev. 2007). Stewart also, initially at least, refused even to provide the Bar a copy of the two expungement-related orders. He arguedthat an expungement is confidential, and that he was not...
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