Tucker v. Miss. Bar

326 So.3d 407

Samuel L. TUCKER, Sr.

v.The MISSISSIPPI BAR

NO. 2019-BA-01728-SCT

Supreme Court of Mississippi.

December 3, 2020

ATTORNEY FOR APPELLANT: SAMUEL L. TUCKER, SR. (PRO SE)

ATTORNEY FOR APPELLEE: MELISSA SELMAN SCOTT

EN BANC.

MAXWELL, JUSTICE, FOR THE COURT:

¶1. In this bar-discipline appeal, attorney Samuel L. Tucker, Sr., does not challenge the Complaint Tribunal's finding he violated the rules of professional conduct and its imposition of a six-month suspension. Instead, the now-retired Tucker requests this Court automatically reinstate him to the practice of law at the end of the suspension period, alleviating the time and expense of the reinstatement process imposed by Rule 12(a) of the Rules of Discipline for the Mississippi State Bar.

¶2. As part of our exclusive jurisdiction over bar-discipline matters, this Court has the inherent authority to lift Rule 12(a)'s petition requirements or reduce Tucker's suspension to less than six months, which would lead to the same result.¹ While sympathetic to the practical reality the now-retired Tucker faces—namely, the effort and expense it would take to be reinstated when he is no longer engaged in the full-time practice of law—we decline to take either action.

¶3. This Court disciplines attorneys "not to punish the guilty attorney, but to protect the public[ and] the administration of justice, to maintain appropriate professional standards, and to deter similar conduct."² With these purposes in mind, Tucker's six-month suspension for negligently commingling his client's funds and not maintaining a client trust account for a prolonged period of time is an appropriate sanction. And under Rule 12(a), an attorney who has been suspended for six months or more must petition this Court for reinstatement.

¶4. We affirm the Complaint Tribunal's suspending Tucker from the practice of law for six months.

Background Facts

¶5. In 2011, Tucker agreed to represent Elton Hartzler in Hartzler's dispute with his contractor. The representation contract required "a non-refundable retainer of $2500 against which the attorney will charge his time at the rate of $200.00 per hour, accounted in quarter hour increments." Tucker did not place this advance fee in a client trust account because, going as far back as 1995, Tucker had no client trust account. Tucker testified he saw no need for one, giving that his practice mainly consisted of bankruptcy and probate work.

¶6. According to his testimony, Tucker had performed only minimal work on Hartzler's case when the two "fell out" and Hartzler came and got his file. Tucker did not maintain a record of the work he performed. And he did not return the unearned portion of Hartzler's retainer until May 2019—three years after Hartzler filed a complaint with the Mississippi Bar and months after the Bar filed a formal complaint against Tucker.

¶7. Tucker appeared before the Complaint Tribunal in June 2019. He admitted the Bar's allegations were true. He had deposited the unearned fee into his business account because he had no client trust account from 1995 to 2019. And while he did ultimately return Hartzler's unearned retainer, he conceded this occurred "way beyond" Hartzler's bar complaint.

Complaint Tribunal's Ruling

¶8. The Complaint Tribunal concluded Tucker had violated three of the Mississippi Rules of Professional Conduct.

¶9. First, Rule 1.5(a) requires a lawyer's fee to be reasonable. Miss. R. Pro. Conduct 1.5(a) And the nonrefundable retainer, when little to no work is performed, was unreasonable. See Miss. R. Pro. Conduct 1.5(a) cmt. ("A lawyer may require advance payment of a fee, but is obliged to return any unearned portion."); see also Miss. R. Pro. Conduct 1.16(d) ("Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as ... refunding any advance payment that has not been earned.").

¶10. Second, Rule 1.15(a) prohibits the commingling of a client's funds, which this Court has recognized as "the ‘cardinal sin’ of the legal profession, whether done intentionally or not." Miss. Bar v. Coleman , 849 So. 2d 867, 874 (Miss. 2002) (quoting Haimes v. Miss. Bar , 601 So. 2d 851, 854 (Miss. 1992) ). Rule 1.15(a) requires that a lawyer hold the property of clients and third parties separate from the lawyer's own property in a separate trust account. Miss. R. Pro. Conduct 1.15(a). The rule also requires complete records of such trust accounts to be kept and preserved by the lawyer for seven years after the representation is terminated. Id. Tucker did not place Hartzler's advance fee in a trust account, a per se violation of Rule 1.15(a). Miss. Bar v. Ogletree , 226 So. 3d 79, 86 (Miss. 2015). He instead commingled Hartzler's funds with his own in his firm's operating account. Further, because Tucker did not obtain a client trust account until 2019, Tucker had potentially been commingling client funds for twenty-four years.

¶11. Finally, Rule 8.4(a) provides that it is professional misconduct for a lawyer to violate or attempt to violate the rules of professional conduct. Miss. R. Pro. Conduct 8.4(a). According to the Complaint Tribunal, the above described conduct also violated Rule 8.4(a). See Ogletree , 226 So. 3d at 86 (failure to place unearned fee in trust account a per se violation both Rule 1.15(a) and 8.4 ).

¶12. The Complaint Tribunal then considered the nine Liebling factors³ and the aggravating and mitigating circumstances in determining a six-month suspension was appropriate. In particular, the Complaint Tribunal balanced the serious nature of the offense of commingling—and the reputational harm it causes upon the profession—against the mitigating circumstances of Tucker's remorse and advanced age. The Complaint Tribunal found Tucker's conduct was comparable to the attorney's conduct in Ogletree , in which this Court agreed a six-month suspension was appropriate. Ogletree , 226 So. 3d at 87.

Standard of Review

¶13. Tucker has appealed raising only the issue of the "extent of discipline."

¶14. This Court has exclusive jurisdiction over attorney discipline and reviews each matter de novo. Ogletree , 226 So. 3d at 82 (citing Miss. Bar v. Shelton , 855 So. 2d 444, 445 (Miss. 2003) ; Miss. R. Discipline 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.’ " Id. (quoting Foote v. Miss. Bar Ass'n , 517 So. 2d 561, 564 (Miss. 1987) ; Parrish v. Miss. Bar , 691 So. 2d 904, 906 (Miss. 1996) ). And while the Tribunal's finding of misconduct is not contested here, "[t]he burden is usually on the Mississippi Bar to show by clear and convincing evidence that an attorney's actions constitute professional misconduct." Miss. Bar v. Pels , 708 So. 2d 1372, 1374 (Miss. 1998) ).

Discussion

¶15. Under Rule 12(a) of the Rules of Discipline for the Mississippi State Bar, "No person disbarred or suspended for a period of six (6) months or longer shall be reinstated to the privilege of practicing law except upon petition to the Court ...." This Court, however, "has the inherent authority either to reduce the suspension period to less than six months or to lift Rule 12(a)'s petition requirements." Gibbons , 297 So. 3d at 223 (citing Broome , 603 So. 2d at 354 ). Tucker asks for the latter—that this Court relieve him of Rule 12(a)'s petition requirement.

I. Automatic Reinstatement

¶16. The relief Tucker requests is best stated in his own words:

The six month term of suspension will expire on or about May 22, 2020, most likely before the Court considers these arguments. As a practical matter going forward the period of suspension will be moot. Thus, Tucker asks the Court to exercise its authority to reinstate his bar license upon the Court's review, in lieu of requiring him to petition for reinstatement. Restoration of his license will take several months beyond the six that he has served and at substantial additional expense. Immediate reinstatement by the Court would do no harm to the vindication of the Mississippi Bar which is preserved by the imposition of the sanctions already served. Tucker is now 75 years of age and has retired from practice. Tucker has closed his office with no plans to resume an office practice or full-time employment as an attorney.

¶17. As support, Tucker relies on Broome . In that case, this Court automatically reinstated Attorney Broome to the practice of law at the end of his thirty-day suspension. Broome , 603 So. 2d at 350. "Even though the Rules of Discipline provide[d] for reinstatement through petition," this Court held "that an order of automatic reinstatement is within the scope of this Court's exclusive and inherent jurisdiction of attorney discipline matters." Id. at 354. But when we decided Broome , suspensions for any length of time required a petition to be reinstated. Id. Broome had been appropriately suspended for thirty days for allowing the statute of limitations to run on his client's claim—conduct this Court found to be negligent but not unethical. Id. at 353. But under the rules as they stood then, this Court concluded Broome's one-month suspension was not really a one-month suspension. Instead, "[a]s a practical matter, his application for reinstatement and the accompanying proceedings [would] stretch his suspension into a minimum of three and possibly five months." Id. at 354. Because this was "hardly the result envisioned by the Tribunal or the rules as they now stand," this Court waived the petition requirement and automatically reinstated Broome at the end of the thirty-day suspension period. Id.

¶18. Since Broome the rules have changed. Now, only suspensions of six months or more require a petition for reinstatement. Miss. R. Discipline 12(a). So the practical...