Miss. Bar v. Ogletree

226 So.3d 79

THE MISSISSIPPI BAR

v.Robert Bryan OGLETREE.

No. 2013-BA-01276-SCT.

Supreme Court of Mississippi.

March 5, 2015.

Melissa Selman Martin, Adam Bradley Kilgore and James Russell Clark, Jackson, attorneys for appellant.

Robert Bryan Ogletree, Brandon, pro se.

Christopher A. Tabb, Brandon, attorneys for appellee.

EN BANC.

WALLER, Chief Justice, for the Court:

¶ 1. After finding that attorney Brian Ogletree had violated Rule 1.15(a) and Rule 8.4(a) and (d) of the Mississippi Rules of Professional Conduct, a Complaint Tribunal suspended Ogletree from the practice of law for six months. The Mississippi Bar appeals from this ruling, arguing that a harsher penalty should be imposed. Finding the Complaint Tribunal's disciplinary action to be sufficient, we affirm Ogletree's six-month suspension.

FACTS & PROCEDURAL HISTORY

¶ 2. Robert Ogletree was admitted to the Mississippi Bar in 1996, and he was an active member in good standing prior to the instant matter. He has not had any previous disciplinary actions.

¶ 3. The parties submitted a stipulation of facts to the Complaint Tribunal, so the following facts are not in dispute. In January 2011, John Buckley hired Ogletree to represent him in a child-support modification matter. Ogletree requested a $1,000 retainer, from which he would charge $250 per hour. Buckley gave Ogletree a check for $400 as partial payment of the retainer. While Ogletree maintained three trust accounts at the time, he did not deposit Buckley's $400 check into any of them. Rather, the check was deposited into Ogletree's general operating account. Ogletree subsequently terminated his representation of Buckley. Ogletree wrote Buckley a check for $400 from one of his trust accounts to refund Buckley's partial payment of the retainer. The check was returned for insufficient funds. Ogletree then delivered $440 in cash to Buckley.

¶ 4. Buckley's new wife then submitted an informal complaint to the Mississippi Bar, claiming that Ogletree had violated the Mississippi Rules of Professional Conduct in the representation of her husband. The Mississippi Bar's Committee on Professional Responsibility reviewed the matter and requested additional information from Ogletree—specifically, all records pertaining to any lawyer trust accounts Ogletree had maintained in the previous three years. Ogletree submitted bank statements from three trust accounts, but he did not have ledgers, records of deposits, or records of the amounts owed to specific clients. Ogletree's bank records revealed a pattern of misconduct regarding his trust accounts. After an investigatory hearing, the Committee recommended that the Bar file a Formal Complaint against Ogletree.

¶ 5. The Formal Complaint alleged that Ogletree had failed to safekeep client funds, that he had commingled personal and business funds with client and third-party funds, that he had written checks for personal and business expenses from his trust accounts, and that his trust accounts were overdrawn several times and several checks were returned for insufficient funds. The Formal Complaint asserted that Ogletree had violated Rule 1.15(a) and Rule 8.4(a) and (d) of the Mississippi Rules of Professional Conduct. In response to the Formal Complaint, Ogletree admitted that he had paid personal expenses out of his trust accounts, that the trust accounts had been overdrawn, and that checks had been returned for insufficient funds. However, he claimed that the errors were inadvertent mistakes and the result of miscalculations; he denied commingling or intentional misappropriation of client funds.

¶ 6. In response to the Bar's request for production of documents, Ogletree produced various bank statements, deposit slips, and check stubs for his three trust accounts for the years 2005 through 2011. Between 2009 and 2011, Ogletree's trust accounts were overdrawn and/or checks were returned for insufficient funds on fourteen occasions. During the same period, Ogletree paid business or personal expenses out of the trust accounts five times, including payments to Dish Network, AT & T, Honda, Wells Fargo Mortgage, and Ogletree's landlord.

¶ 7. The Complaint Tribunal held a hearing, and Ogletree testified on his own behalf. Ogletree testified that, in 2002, his wife learned that she had a brain tumor and underwent surgery. A year and a half later, his wife began having grand mal seizures, and she had to be induced into a coma to stop the seizures. She is now on medication to keep the seizures under control. Since his wife became ill, Ogletree has had trouble sleeping and has suffered from depression and anxiety—conditions for which he takes medication.

¶ 8. Regarding the trust accounts, Ogletree testified that he looked at the accounts online every morning and if "something was wrong" he would "try to fix it or move the money to where it was supposed to be." He admitted that Mississippi Valley Title Company had advised him previously that his record keeping was insufficient. He said he did not intentionally pay his bills out of the trust accounts. He explained that he carried a voided check from each account in his wallet, so he would have the routing and account numbers and could pay bills from the road. He admitted that the trust account checks each had "Ogletree Law Firm Trust Account" printed on them and that he should have seen that the check was from a trust account when he was giving the account number over the phone. Ogletree noted that some of the money in his trust accounts represented fees he had earned and simply had failed to transfer to his operating account. Nevertheless, he recognized that he should have paid his business and personal expenses out of his operating account. He testified that he had just made a mistake and that he should have paid more attention. Ogletree claimed that none of his clients had lost money in spite of his errors.

¶ 9. The Complaint Tribunal held that Ogletree had violated Rules 1.15(a) and 8.4(a) and (d) of the Mississippi Rules of Professional Conduct. The Tribunal suspended Ogletree from the practice of law for six months and referred him to the Lawyers and Judges Assistance Program. The Bar filed a motion to reconsider, which was denied. The Bar then appealed to this Court, arguing that Ogletree should have been disbarred or suspended for a minimum of three years. Ogletree initially did not file a brief, and the Court issued a Show Cause Order requiring him to respond to the Bar's brief. Ogletree responded that his failure to file a brief was not done out of willful disregard; rather, he simply surrendered to the will of the Court. He explained that his financial, physical, and mental resources had been depleted, and his attorney had withdrawn because Ogletree could not pay him. Ogletree wrote that he did not have the resources to fight the Bar, and he believed that the Court would uphold the Complaint Tribunal's ruling.

STANDARD OF REVIEW

¶ 10. The Supreme Court has exclusive jurisdiction over attorney discipline matters, which we review de novo. Miss. Bar v. Shelton, 855 So.2d 444, 445 (Miss.2003). See also Miss. R. Disc. 1(a). While "no substantial evidence or manifest error rule shields the [Complaint] Tribunal from scrutiny," this Court may grant deference to the findings of the Tribunal "due to its exclusive opportunity to observe the demeanor and attitude of the witnesses, including the attorney, which is vital in weighing evidence." Foote v. Miss. Bar Ass'n, 517 So.2d 561, 564 (Miss.1987) ; Parrish v. Miss. Bar, 691 So.2d 904, 906 (Miss.1996). "The burden is usually on the Mississippi Bar to show by clear and convincing evidence that an attorney's actions constitute professional misconduct." Shelton, 855 So.2d at 445 (quoting Miss. Bar v. Pels, 708 So.2d 1372, 1374 (Miss.1998) ).

DISCUSSION

¶ 11. The Complaint Tribunal suspended Ogletree from the practice of law for six months after finding that he had violated Rules 1.15(a) and 8.4(a) and (d) of the Mississippi Rules of Professional Conduct. Rule 1.15 requires lawyers to maintain separate accounts and complete records for the property of clients and third parties:

A lawyer shall hold clients' and third persons' property separate from the lawyer's own property. Funds shall be kept in a separate trust account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such trust account funds and other property shall be kept and preserved by the lawyer for a period of seven years after termination of the representation.

Miss. R. Prof'l Cond. 1.15(a). Rule 8.4 defines attorney misconduct, in pertinent part, as follows: "It is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another; ... (d) engage in conduct that is prejudicial to the administration of justice." Miss. R. Prof'l Cond. 8.4(a), (d). The Complaint Tribunal found that Ogletree had violated the rules by commingling client funds with his own, failing to keep safe client property, misusing client funds, and failing to keep adequate records. Ogletree does not dispute the Complaint Tribunal's findings. The only issue is whether the Complaint Tribunal imposed sufficient punishment.

¶ 12. The Bar asserts that the seriousness of Ogletree's violations warrants a harsher punishment. Based on the Court's prior holdings, the Bar argues that disbarment or, at a minimum, a three-year suspension is the appropriate sanction for an attorney who misappropriates client funds and commingles client funds with his own. The Bar is correct that disbarment or a three-year suspension are the most common punishments for commingling client funds. However, "the Court must decide each disciplinary case on its own unique merits." Pels, 708 So.2d at 1374 (quoting Fougerousse...