Watkins v. Mississippi Bar

• Decision Date: 06 November 1991
• Docket Number: Nos. 90-BA-444,91-BA-740,s. 90-BA-444
• Citation: Watkins v. Mississippi Bar, 589 So.2d 660 (Miss. 1991)
• Parties: William F. WATKINS v. MISSISSIPPI BAR. MISSISSIPPI BAR v. William F. WATKINS
• Court: Mississippi Supreme Court

Page 660

589 So.2d 660

William F. WATKINS v. MISSISSIPPI BAR.

MISSISSIPPI BAR v. William F. WATKINS.

Nos. 90-BA-444, 91-BA-740.

Supreme Court of Mississippi

Nov. 6, 1991.

Andrew J. Kilpatrick, Jr., Reynolds & Kilpatrick, Jackson, for appellant.

Charles J. Mikhail, Jackson, for appellee and petitioner.

No response filed for respondent.

EN BANC.

McRAE, Justice, for the Court:

This opinion reflects the consolidation of two actions. The first ("Watkins I ") is an appeal by Mississippi attorney William F. Watkins ("Watkins") from a judgment of the complaint tribunal publicly reprimanding him, suspending him from the practice of law for thirty days, and directing him to repay a debt. The second ("Watkins II ") involves a complaint by the Mississippi Bar ("the Bar") which seeks to have Watkins disbarred from the practice of law pursuant to Rule 6 of the Mississippi Rules of Discipline.

We reverse the judgment of the complaint tribunal in Watkins I but grant the Bar's request in Watkins II for an Order of Disbarment. Since the disbarment effectively moots the suspension issue raised in the Watkins I appeal, we shall first address matter of Watkins II.

I.

DISBARMENT (WATKINS II)

The Bar's "Formal Complaint for Disbarment" arises out of Watkins' guilty plea and subsequent sentencing in U.S. District Court on multiple felony counts of financial institution fraud and false statements to influence actions of a federally insured financial institution. Watkins pleaded guilty to three counts of a six-count indictment in the U.S. District Court for the Eastern District of Louisiana. The June 5, 1991, "Judgment and Probation- /Commitment Order" from the district court indicates that Watkins pleaded guilty to the offenses proscribed in 18 U.S.C. Secs. 2, 1014 and 1344 and secured dismissal of the other three counts of the six-count indictment. The Order also imposes concurrent sentences of five years' probation for each count and requires Watkins to pay a fine of $5,000, to make restitution to Southeast National Bank of Hammond, Louisiana, in the sum of $27,174.54, to make restitution to Pelican Homestead Bank of Metarie, Louisiana, in the sum of $107,335.00, and to pay a special assessment in the amount of $150.00. The sentence further requires Watkins to perform 300 hours of community service, to obtain approval from the probation officer before incurring new or additional credit, to provide a financial statement twice a year to the probation officer along with any financial information requested, and to report to the probation officer any transactions that involve the sale or resale of personal, family, or business properties.

Miss. Rules of Discipline, Rule 6(a) provides:

Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted in any court of any state or in any federal court, or enter a plea of guilty ... therein, of any felony (other than manslaughter) ... a certified copy of the judgment of conviction shall be presented to the Court of Complaint Counsel and shall be conclusive evidence thereof. The Court shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.

Rules 6.1--6.2 further provide:

A Formal Complaint, with a certified copy of the criminal judgment or conviction attached, and a motion for indefinite suspension pending appeals shall be filed with the Court, upon which the attorney shall be automatically suspended subject to the right of such attorney to move for reconsideration upon a showing that the judgment or conviction has been reversed or a new trial is granted.... Upon a showing that the time for all appeals has expired, or that all appeals have been concluded without reversal, the attorney shall be automatically disbarred.

All elements of the above-quoted rules are satisfied (including the attachment to the Bar's complaint of a certified copy of the criminal judgment). Since Watkins pleaded guilty to the crimes out of which the Bar's complaint arises and consented to the Judgment and Commitment, ¹ no appeal will be forthcoming. Further, Watkins has responded neither to the complaint nor to this Court's customary order to show cause. Automatic disbarment is thus appropriate under Rule 6.2 of the Mississippi Rules of Discipline. See Mississippi State Bar v. Nichols, 562 So.2d 1285, 1288 (Miss.1990) (guilty plea to felony offense, inter alia, warranted disbarment).

II.

SUSPENSION, REPRIMAND, AND RESTITUTION (WATKINS I )

A. Facts and Procedural History

In January, 1987, Watkins attempted to obtain a $32,000 loan from Claude Mullins, a long-time friend and business associate. Watkins needed the money to redeem 1,237 shares of First Southwest Corporation stock that he had pledged as collateral to Trustmark National Bank of McComb in order to deliver these same shares to a Jackson banker by 5:00 p.m. on January 29. Mr. Mullins could not loan Watkins the money. Watkins then asked Mrs. Carolyn Mullins, Claude's wife, for the loan, assuring her that he would repay the $32,000 in one week out of proceeds from other business ventures and loans and also pay her a $4,000 premium for the use of the money for the week. Mrs. Mullins agreed to loan the $32,000 to Watkins and made out a check payable to Claude Mullins, who in turn negotiated the check and gave Watkins a cashier's check for $32,000. In exchange for the loan, Watkins gave Mrs Mullins a promissory note dated January 29, 1987, obligating himself to pay her $36,000 on February 6, 1987. He also gave her a letter dated January 19, 1987, acknowledging the debt and assuring her that he had instructed his wife that should he die before repaying the loan and premium that she was to pay back Mrs. Mullins out of his life insurance proceeds.

Watkins used the money to redeem the shares, but he did not repay Mrs. Mullins in one week as he promised and failed to honor Mrs. Mullins' repeated requests for repayment. Watkins filed for reorganization under Chapter 11 of the Bankruptcy Reform Act in September, 1987. He listed Mrs. Mullins as an unsecured creditor.

On June 10, 1988, sixteen months after she was promised repayment, Mrs. Mullins filed a complaint against Watkins with the Mississippi State Bar.

On April 25, 1989, the Bar filed a formal complaint against Watkins. The Bar alleged that Watkins, in entering into a usurious contract with Mrs. Mullins, had violated DR1-102(A)(4) of the Code of Professional Responsibility and Miss.Code Ann. Sec. 73-3-35 (1972). DR1-102(A)(4) provides that a lawyer shall not "[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Miss.Code Ann. Sec. 73-3-35 (1972), includes the Attorney's Promise to demean himself with "good fidelity" to court and client and, inter alia, to abstain from falsehood.

On May 19, 1989, Watkins answered the Bar's complaint. He admitted agreeing to pay Mrs. Mullins a $4,000 premium for the use of $32,000 for a week and that he had given her a letter assuring her that his wife, should he die before he repaid the loan and premium, would pay her out of his insurance proceeds. He insisted, however, that, in doing so, he was not dishonest, did not commit fraud, was not deceitful, and did not engage in a misrepresentation. Watkins also claimed that Claude Mullins was fully aware of his financial condition since Mullins and he were often partners in business ventures. Watkins raised five affirmative defenses. He asserted:

1. that the formal complaint failed to state a cause of action;

2 .that the usury laws were not applicable where a borrower offers to pay additional money in return for a loan and that he never intended to raise usury as a defense to repayment of the loan;

3. that no attorney-client relationship existed between Mrs. Mullins and him;

4. that his listing of Mrs. Mullins as a creditor was pursuant to and in compliance with the Bankruptcy Reform Act; and

5. that Mrs. Mullins filed a complaint with the Bar for the sole purpose of harassing him and attempting to get him to pay back the loan.

As to the last defense, Watkins claimed Mrs. Mullins' complaint to the Bar was a "malicious prosecution and abuse of process" which entitled him to "maintain a civil action against Mullins to recover all damages, cost and expenses" incurred by him in defending the complaint. Watkins, and thereafter the Bar, moved for summary judgment.

On November 22, 1989, the Complaint Tribunal filed an opinion denying Watkins' motion for summary judgment and granting the Bar summary judgment on its counter motion. A 2-1 majority found that "Mr. Watkins' conduct is in violation of DR1-102(A) [Rule 8.4(c) of the Rules of Professional Conduct] ... [and that] Mr. Watkins has demonstrated unprofessional and unethical conduct, conduct which constitutes legal grounds for the imposition of discipline." Presiding Judge Larry Roberts filed a dissenting opinion favoring the granting of Watkins' motion for summary judgment.

On January 30, 1990, the Tribunal entered judgment in accordance with the majority opinion and ordered that Watkins be issued a public reprimand and suspended from the practice of law for 30 days. The Tribunal also ordered Watkins to either make restitution to Mrs. Mullins within 30 days of the entry of final judgment or reaffirm the $32,000 indebtedness in the form of a note payable on demand with interest from the date of the advancement by Mrs. Mullins at the prime rate plus 1% and deliver the note to Mullins within 30 days of the entry of final judgment.

Watkins has appealed.

B. Law

In considering this appeal, this Court proceeds de novo. Mississippi State Bar v. Nichols, 562 So.2d 1285, 1287 (Miss.1990). The Court may in its discretion give deference to the findings of the Complaint Tribunal, Mississippi State Bar v. Odom, 566 So.2d 712, 714 (Miss.1990), but it can affirm the Complaint Tribunal's grant of summary judgment only if it finds that the evidence, viewed in...