Ogletree v. Miss. Bar

269 So.3d 102

Robert Bryan OGLETREE

v.The MISSISSIPPI BAR

NO. 2018-BR-00758-SCT

Supreme Court of Mississippi.

November 29, 2018

TIMOTHY D. MOORE, Jackson, ATTORNEY FOR PETITIONER

ADAM B. KILGORE, Jackson, ATTORNEY FOR RESPONDENT

En Banc.

WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. This is Robert Bryan Ogletree's first petition for reinstatement to the practice of law following his six-month suspension in 2015. Ogletree has met the jurisdictional requirements for reinstatement and has met his burden of proving that he has rehabilitated his conduct and moral character. Accordingly, this Court grants Ogletree's petition for reinstatement.

FACTS & PROCEDURAL HISTORY

¶ 2. The facts leading to Ogletree's suspension are set out in this Court's opinion in Mississippi Bar v. Ogletree , 226 So.3d 79, 80-81 (Miss. 2015) :

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.

....

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 own 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.¹

At the hearing before the Complaint Tribunal, Ogletree testified that, in 2002, his wife learned that she had a brain tumor and underwent major surgery. Id. Ogletree testified that, as a result of his wife's illness, he suffered from depression, anxiety, and insomnia—conditions for which he took medications. Id. Due to his mental state at the time, Ogletree admitted that he failed to adequately monitor his accounts. Id. at 82. Ogletree fully acknowledged that he made a mistake and that he should have paid his business and personal expenses out of his operating account. Id.

¶ 3. Ultimately, 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. Id. Consequently, Ogletree was suspended from the practice of law for six months and was referred to the Lawyers and Judges Assistance Program. Id. On the Bar's appeal from the Tribunal's decision, this Court affirmed, finding that, given the totality of the circumstances, the six-month suspension was appropriate to punish Ogletree for his misconduct. Id. at 87. Justice Coleman, joined by Presiding Justice Randolph, dissented and would have imposed a three-year suspension. Id. at 87-89 (Coleman, J., dissenting).

STANDARD OF REVIEW

¶ 4. This Court has exclusive jurisdiction over attorney-reinstatement cases. In re Morrison , 819 So.2d 1181, 1183 (Miss. 2001). This Court conducts a de novo review of the evidence in such cases, acting as the trier of fact on a case-by-case basis. Id. The petitioner "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 v. Miss. Bar , 5 So.3d 344, 346-47 (Miss. 2008) (citing In re Holleman , 826 So.2d 1243, 1246 (Miss. 2002) ). The petitioner must exhibit "[a] firm resolve to live a correct life evidenced by outward manifestations sufficient to convince a reasonable mind clearly that the person has reformed ...." Phillips v. Miss. Bar , 427 So.2d 1380, 1382 (Miss. 1983) (quoting Ex parte Marshall , 165 Miss. 523, 556, 147 So. 791, 798 (1933) ). The standard of proof in reinstatement cases is clear and convincing evidence. Wong v. Miss. Bar , 5 So.3d 369, 371 (Miss. 2008).

DISCUSSION

I. Jurisdictional Requirements

¶ 5. The petitioner must meet the jurisdictional requirements under Rule 12 of the Mississippi Rules of Discipline for the State Bar. Miss. R. Discipline 12; In re Benson , 890 So.2d 888, 890 (Miss. 2004) (citing In re Holleman , 826 So.2d at 1247 ).

¶ 6. Rule 12 requires that a petitioner (1) state the cause or causes for suspension or disbarment; (2) provide the names and current address 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. Discipline 12.7; see also In re Benson , 890 So.2d at 890.

¶ 7. Though not a jurisdictional requirement, the Bar's position is a factor for consideration as well. In re Benson , 890 So.2d at 890 (citing In re Holleman , 826 So.2d at 1248 ). The Bar supports Ogletree's reinstatement based on the fact that he took responsibility for his actions, the mitigating circumstances of his wife's illness during the period of the violation, and his aggressive and honest pursuit of rehabilitation.

A. Cause for Suspension

¶ 8. Ogletree, in his petition, accepted full responsibility for his actions in his representation of Buckley, which resulted in his suspension. In addition, he provided the Bar with copies of this Court's decision suspending him and discussed the matter thoroughly throughout his deposition. Through his petition and testimony, Ogletree sufficiently explained the reason for his suspension and accepted full responsibility.

B. Names and Current Addresses of all Persons, Parties, Firms, or Legal Entities Who Suffered Pecuniary Loss Due to Ogletree's Misconduct

¶ 9. Ogletree avers that no person, party, firm, or legal entity suffered any pecuniary loss or indirect pecuniary harm as a result of his misconduct. Ogletree has declared that no clients were harmed by his suspension, that none of his clients' cases were adversely affected, and that none his clients had trouble finding new counsel. The Bar does not contest this assertion. Ogletree reimbursed the Bar for costs.

C. Amends and Restitution

¶ 10. Ogletree also avers that he has made full amends and restitution to those hurt financially by his conduct. Specifically, Ogletree refunded to Buckley all costs and losses—including overdraft charges—he incurred from a check that was refused for insufficient funds. In his deposition and petition Ogletree states that no other funds were owed to Buckley or any of his other clients. The Bar does not contest this assertion.

D. Requisite Legal Education for Reinstatement

¶ 11. Ogletree testified that he has completed twenty-four hours of continuing legal education. In addition, Ogletree asserts that he consistently reads summaries of new opinions from this Court and the Court of Appeals and that he has studied regulations related to workplace safety. Ogletree has also taken two week-long classes related to Occupational Safety and Health Administration ("OSHA") regulations and he currently serves as an authorized OSHA instructor for general industry. Furthermore, Ogletree testified that he has studied multi-party liability and construction issues, an area of law in which he intends to practice in the event of his reinstatement.

E. Rehabilitation and Requisite Moral Character

¶ 12. Ogletree provides the following evidence as proof he has demonstrated the necessary moral character to be reinstated to the practice of law.

1. Letters of Support

¶ 13. Ogletree submitted twelve letters of support for his reinstatement.² Chip Glaze, Director of the Lawyer and Judges Assistance Program ("LJAP"), wrote that Ogletree had met the criteria for fitness to practice law. Every letter submitted supported Ogletree's skill and fitness for the practice of law. Moreover, these letters uniformly state that Ogletree has been both honest and remorseful about the actions that resulted in his suspension and express provide high opinions of Ogletree's honesty, humility, and dedication to his community.

2. Employment Since Suspension

¶ 14. Ogletree testified that he ceased to practice law in the fall of 2012, almost a year before his suspension. During that time, Ogletree worked as an automobile salesman in order to "pay the bills." After Ogletree's suspension in 2013, he worked as a construction safety worker. Since August of 2013, Ogletree has been employed by the Alabama Department of Transportation.

3. Mental and Emotional Status

¶ 15. The Bar reported that, during his deposition, Ogletree appeared to be mentally fit and without apparent medical problems. Ogletree testified that he does not use illegal drugs, that he does not abuse alcohol, that he no longer suffers from depression, and that he generally is in good health. Ogletree contended that his depression manifested after his wife's first brain tumor from 2001 to 2002. He testified that he felt "helpless and despair" that he had never felt before. As a result, Ogletree's depression was considered by this Court to be a mitigating factor in the evaluation of his actions and, in turn, his suspension. Ogletree , 226...