The Mississippi Bar v. Attorney G., 93-BD-0301
| Citation | 630 So.2d 344 |
| Decision Date | 13 January 1994 |
| Docket Number | No. 93-BD-0301,93-BD-0301 |
| Parties | THE MISSISSIPPI BAR v. ATTORNEY G. |
| Court | United States State Supreme Court of Mississippi |
Michael B. Martz, Jackson, for petitioner.
John L. Hunter, Cumbest Cumbest Hunter & McCormick, Brent M. Bickham, Pascagoula, for respondent.
En Banc.
The issue in this attorney discipline case is whether an attorney may be disbarred under the summary procedure of Rule 6(a) of the Rules of Discipline when there has been a non-adjudication of his guilt of a felony crime, but there has been an admission by the attorney of his felonious conduct. The Mississippi Bar contends the summary procedure is proper; the attorney's position is that without a "judgment of conviction," he is entitled to a tribunal hearing under Rule 8 of the Rules of Discipline.
Since the criminal statutory procedure of Miss.Code Ann. Sec. 99-15-26 (Supp.1993) does not provide this Court with a final decree nor a judgment of conviction of a crime, this Court holds that the disciplinary rules require a Complaint Tribunal hearing. However, to correct this deficiency in our Rules of Discipline, this Court amends Rule 6(a) to remedy this situation in future discipline cases.
Attorney G's brief contains the following recital of facts.
Attorney G presented himself to the Circuit Court of the First Judicial District of Harrison County, Mississippi, in cause number 27,073, and executed a Waiver of Indictment to the charge set forth in Section 77-1-11(1), Mississippi Code 1972, Annotated as amended, (1992 Supp.), 1 and tendered a Petition to Proceed by Bill of Information without the finding of a Grand Jury indictment in regard to said charge. The information alleged that Attorney G "while a duly qualified candidate for the office of Public Service Commissioner for the Southern District of Mississippi, did willfully, knowingly, and feloniously accept, either directly or indirectly, a gift and campaign contribution from Clarence Johnson, Jr., a person interested as owner, agent and representative of Orange Grove Utilities, Inc., a utility company that comes under the jurisdiction and supervision of the Public Service Commission" and this conduct violated Mississippi Code Annotated Section 77-1-11(1), as amended (Supp.1992). During the proceedings, Attorney G tendered a plea to this charge which the Circuit Court refused to accept as shown in its Order to the Bar's Formal Complaint. The Circuit Court also withheld There has been no final order of dismissal in this proceeding, and it is still a pending case.
adjudication of guilt. As a part of its Order, the Court placed Attorney G on probation and retained jurisdiction of this matter to enter a final Order, conditioned upon the successful or unsuccessful completion of the probation.
The Mississippi Bar filed a formal complaint against Attorney G to disbar the attorney under the summary procedure of Rule 6(a) of the Mississippi Rules of Discipline. 2 Attorney G objects to the applicability of Rule 6(a), but contends that he is entitled to a Rule 8 3 Complaint Tribunal hearing and an opportunity to present mitigating circumstances. On appeal, Attorney G raises the following issue:
The Bar has not complied with the procedures for disbarment of Rule 6 because (a) Attorney G's guilty plea was not accepted by the trial court and (b) the Bar failed to present a certified copy of a judgment of conviction.
Attorney G argues that the Bar has failed to comply with any of the requirements for automatic disbarment as enumerated in Rule 6(a) of the Rules of Discipline. He reasons that because a proceeding to disbar an accused attorney implicates due process, Rule 6(a) must be strictly construed. It is his contention that, under a strict construction of the rule, none of the requirements for disbarment are met. In the proceeding on May 28, 1992, Attorney G "tendered" a plea of guilty pursuant to Miss.Code Ann. Sec. 99-15-26 (Supp.1993). 4 The attorney further contends that, under this statute, the trial judge then "withheld acceptance" of the plea and ordered that Attorney G be placed on two (2) years non-reporting probation on certain conditions. No final decree of dismissal has been entered in this cause.
Attorney G argues that the trial court in this case specifically withheld acceptance of his guilty plea and also withheld adjudication of guilt based upon the plea that he "tendered." Therefore, he asserts that neither a guilty plea, nor a final judgment of conviction, as required in Rule 6(a) has been entered. The trial court retained jurisdiction to enter a final order conditioned upon the successful completion of the probation ordered, and if Attorney G complies with the terms of his probation, there will be no adjudication of guilt.
The Bar argues that even though Attorney G's guilty plea may not have been accepted by the trial court and the court has not adjudicated Attorney G guilty of the any crime, he should be summarily disbarred according to Rule 6(a) because of the entry of his guilty plea. 5
Initially, this Court does not accept the premise that the attorney's guilty plea was "tendered" and not "entered" in the circuit court. Miss.Code Ann. Sec. 99-15-26 (Supp.1993) requires "the entry of a plea of guilty by a criminal defendant ..." before the circuit court can act under the statute. (Emphasis added). The statute grants the authority to the Court to impose sentence. It is a situation similar to imposition of probation without sentencing. Delaney v. State, 190 So.2d 578 (Fla.1966); 56 ALR 3d 933.
Further, the statute provides that the Court may "withhold acceptance" of the plea pending successful completion of the conditions imposed by the Court. Attorney G's counsel represents to this Court that the plea was not accepted, and that the case has not been closed. The circuit court record is not before this Court.
The Bar relies upon the case of Mississippi State Bar v. Odom, 573 So.2d 710 (Miss.1990), to support its position that a summary procedure may be used notwithstanding the lack of a final adjudication of a criminal proceeding. Odom is distinguishable from this case. In Odom, the non-adjudication of guilt procedure of Sec. 99-15-26 was utilized, but the conditions imposed by the circuit court included a requirement that Odom surrender his license to practice law and ordered that he not practice law for a three year probationary period. Odom agreed to this condition voluntarily. The order recited that its conditions were "independent of any disciplinary action that the Mississippi State Bar may impose"; and imposed a prohibition against Odom's contest of the Bar's complaint "currently pending against him" and noted that he agreed to be disbarred. Nevertheless, Odom did contest disbarment, contrary to his agreement with the court. None of those facts are present in the instant case. The holding in Odom was that the non-adjudication of guilt order was "not technically a 'judgment of conviction,' " but that the order of the circuit court brought him within the summary process of Rule 6(a).
The Rules of Discipline adopted by this Court are rules under which attorneys are sanctioned for violation of ethical standards. The rules afford procedural due process to attorneys when accusations of misconduct are made. One method of imposing a sanction provides for a summary procedure when the attorney has had a "final adjudication of a criminal process in a court of competent jurisdiction." Odom at 711. The criminal proceeding has afforded the attorney his forum and the certified judgment of conviction is presumed to be reliable. It is, therefore, not necessary for a Complaint Tribunal to hear the facts again. Mississippi Bar Discipline Rule 6(a). The certified judgment of conviction is a sufficient basis upon which to proceed summarily. However, where unethical conduct not processed through a criminal court is charged, the Bar must present its proof in a Complaint Tribunal hearing before Here, this Court is faced with a "loophole" in the procedure when an attorney has confessed to the felonious conduct, but there is no "certified judgment of conviction." This Court, however, is bound by its own disciplinary rules. Since attorney disbarment and suspension cases are quasi-criminal in character, this Court must construe the rules strictly. In the Matter of Richard A. Thalheim, Jr., Plaintiff-Appellant, 853 F.2d 383 (5th Cir.1988), the Fifth Circuit Court of Appeals held:
a sanction may be imposed. Mississippi Bar Discipline Rule 8.
Attorney disbarment and suspension cases are quasi-criminal in character. Accordingly, the court's disciplinary rules are to be read strictly, resolving any ambiguity in favor of the person charged.
Id. at 388. [citations omitted.] The above case further states that:
When a court undertakes to sanction an attorney for violating court rules, it is incumbent upon the sanctioning court to observe scrupulously its own disciplinary procedure. If the rules are inadequate, the court can proceed to amend them. But unless and until such amendment occurs, attorneys have the right to rely upon the rules.
Id. at 390. This Court, in Odom, declined to answer the question of whether an order which did not technically constitute a "certified copy of the judgment of conviction" falls within the realm of Rule 6(a) because it found that Odom had plead guilty, the lower court had accepted that plea, and Odom agreed not to contest a disciplinary proceeding against him. Odom is not authoritative on the question before us.
Without a certified copy of a judgment of conviction, the rules dictate that this Court convene a Complaint Tribunal under Rule 8 and afford Attorney G a hearing. The Bar may file a complaint before the Tribunal, which will be expeditiously convened.
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