The Mississippi Bar v. Coleman, 2001-BA-00988-SCT.
| Citation | 849 So.2d 867 |
| Decision Date | 12 December 2002 |
| Docket Number | No. 2001-BA-00988-SCT.,2001-BA-00988-SCT. |
| Parties | THE MISSISSIPPI BAR v. Joe Price COLEMAN a/k/a J. Price Coleman. |
| Court | United States State Supreme Court of Mississippi |
Michael B. Martz, J. David Wynne, Oxford, attorneys for appellant.
Alex A. Alston, Jr., David W. Dogan, Jackson, attorneys for appellee.
EN BANC.
McRAE, P.J., for the Court.
¶ 1. Attorney Joe Price Coleman was charged with commingling, misappropriation and conversion of client funds in violation of Rules 1.15 and 8.4 () of the Mississippi Rules of Professional Conduct. The Complaint Tribunal (Tribunal) found a Rule 1.15 violation only and suspended Coleman from the practice of law for thirty (30) days and ordered that he receive a public reprimand. Both the Mississippi Bar (the Bar) and Coleman appeal.
¶ 2. We affirm as to Rule 1.15, but reverse as to Rules 8.4 () and therefore order that Coleman is suspended from the practice of law for three (3) years.
STATEMENT OF THE CASE
¶ 3. The Bar brought a complaint against Coleman alleging violation of Rules 1.15 and 8.4(a), (c), and (d) of the Rules Professional of Conduct. In response, Coleman moved to dismiss or in the alternative for summary judgment on the basis that the Complaint Committee (Committee) heard the matter in violation of the Mississippi Rules of Discipline, which require that any complaint considered by the Committee must first be in writing. His motion was denied. A hearing followed. The Committee found that Coleman violated Rule 1.15, but not Rules 8.4(a), (c), and (d). He was suspended from practice for thirty days, and ordered to receive a public reprimand.
¶ 4. The Bar asserts that the Tribunal erred in failing to find, in addition to the Rule 1.15 violation, that Coleman misappropriated and converted those commingled client funds for his own personal use in violation of Rules 8.4(a), (c), and (d). The Bar asserts this decision is arbitrary and capricious as it is against the overwhelming weight of the evidence presented.
¶ 5. Coleman asserts on cross-appeal that (1) the Tribunal's actions are void for lack of authority because the complaint against him was considered without a written complaint; (2) a reprimand or an admonition is appropriate; and (3) Rules 8.4(a), (c), and (d) are inapplicable because: (1) double jeopardy results when applied in conjunction with Rule 1.15; (2) his conduct was not dishonest or fraudulent; and (3) there was no legal proceeding with which his conduct could interfere, thus precluding any liability outside of Rule 1.15.
¶ 6. The facts of this case arose during Jackson attorney Joe Price Coleman's change of employment from the law firm of Daniel Coker Horton & Bell, P.A. (Daniel Coker) to the Baker, Donelson, Bearman & Caldwell, P.C. (Baker Donelson) law firm. On March 24, 2000, Coleman, as administrator of the Arkansas Shared Counsel Defense Fund (Fund), which was administered by Daniel Coker, wrote and signed a check in the amount of $14,904.94 payable to the Fund, which he signed and then deposited into his personal checking account on March 28, 2000. The purpose of the draft was to move the proceeds of that account to the Mississippi Hearing Loss Joint Defense Fund of which Raymond Brown was administrator. Coleman claims he intended to deliver the funds to Raymond Brown the following week, but that opportunities to do so in a timely manner were impeded by other responsibilities, deadlines, travel, and by the process of changing firms. Additionally, Coleman claims he was concerned that Daniel Coker would cancel the check since many of the Fund clients had not formally transferred their files to Coleman's new firm.
¶ 7. Seventy-two (72) checks were written from Coleman's personal bank account between the time the deposit was made and the time the money was finally delivered to Raymond Brown. Most of these were written by Mrs. Coleman. Again, at the time of deposit, the Colemans' account had a negative balance of over $12,000. Coleman's Banker testified that it was not unusual for Coleman's account to be in over-draft and that no consequence would have ever resulted, as the Colemans maintained overdraft protection. He also testified that no check ever went unpaid by the bank.
¶ 8. Coleman finally delivered the money to Raymond Brown on May 1, 2000. On the very same day, Daniel Coker mailed a letter to Coleman regarding the money and requesting that he call the Firm. The letter was received at Coleman's new firm on May 2. On May 3, 2000, Coleman called Daniel Coker and reported that the money had been transferred to Raymond Brown. Because the funds had been placed in Coleman's personal account, however, Daniel Coker expressed its responsibility to report the matter to the Bar. Coleman desired to participate in the report and acting jointly with Daniel Coker reported the matter to the Bar. Daniel Coker never filed a written complaint.
¶ 9. Following Daniel Coker's oral report, Complaint Counsel for the Bar drafted a "Memorandum to the Committee" (Memo) dated May 24, 2000, summarizing the results of his investigation into the matter. The memo was entitled "Commingling and Misappropriation of Funds." In the Memo, Complaint Counsel recommended that, in the absence of a written complaint, "an Information and Belief Complaint" should be filed against Coleman. The Committee considered the matter at a regularly conducted meeting on June 15, 2000. At this time, no written complaint, either formal, informal, by a third-party complainant or one based upon Complaint Counsel's information and belief had been made. Coleman's counsel requested a record of this proceeding, but was refused on the basis of confidentiality and privilege. Neither Coleman nor his attorney were ever informed of the Memo, or that the Committee would consider the matter on the basis of the Memo. They did not learn of the Memo until the middle of the hearing on Coleman's motion to dismiss. However, both Coleman and his attorney were informed of the process Complaint Counsel would follow, including his talk before the Committee prior to the filing of a written complaint.
¶ 10. On June 23, 2000, the Complaint Counsel, based "on information and belief and at the direction of the Committee on Professional Responsibility," filed an "Information and Belief" Complaint against Coleman as the Complainant. By letter dated September 15, 2000, and addressed to Complaint Counsel, the Committee determined there was probable cause to believe that Coleman engaged in misconduct. The Committee directed Complaint Counsel to "prepare and file a Formal Complaint Against J. Price Coleman in accordance with the provisions of Rule 8 of the Rules of Discipline for the Mississippi Bar." The Complaint was filed on September 25, 2000.
¶ 11. Coleman moved to dismiss the case, or in the alternative for summary judgment on the basis that the Complaint Committee considered the matter without a written complaint, as prescribed by the Rules, and was therefore without the ability to dismiss the cause or admonish the attorney at that time, since it may not act except upon a "written complaint." The motion was denied. The matter was heard on the merits.
STANDARD OF REVIEW
¶ 12. The standard of review in this matter is de novo. Cotton v. Miss. Bar, 809 So.2d 582, 585 (Miss.2000). This Court has "exclusive jurisdiction and inherent jurisdiction of matters pertaining to attorney discipline." Broome v. Miss. Bar, 603 So.2d 349, 354 (Miss.1992). This Court sits as the trier of fact and is not bound by a substantial evidence or manifest error rule. Asher v. Miss. Bar, 661 So.2d 722, 727 (Miss.1995). However, deference is given to the Tribunal's findings on the basis that it was the exclusive trier of credibility and demeanor, which cannot be duplicated on appeal to this Court. Stegall v. Miss. Bar, 618 So.2d 1291, 1294 (Miss.1993).
DISCUSSION
¶ 13. Coleman asserts that this matter was considered in violation of disciplinary procedure and that, as a result, he was prejudiced. He also asserts that the procedure employed violates the equal protection clause of the Fourteenth Amendment and the Mississippi Constitution. Therefore, he argues that this Court should dismiss the case. We disagree.
Procedure
¶ 14. The Rules of Discipline for the Mississippi Bar set forth the procedure for the investigation and prosecution of attorney misconduct. They read in relevant part:
Miss. R. Disc. 4. The Rules also enumerate in detail what the written complaint shall contain, including the name and address of the complainant, the name and address of the accused attorney, a statement of the facts of the complaint, a list of witnesses, and copies of any statement by witnesses. Id. 4.2(a)-(e). Further, Rules 5 and 7 outline the required complaint procedure:
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