MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Judiciary A

By: Representative Green (72nd)

AN ACT TO AMEND SECTIONS 73-3-301, 73-3-303, 73-3-305, 73-3-309, 73-3-311, 73-3-319, 73-3-321, 73-3-329, 73-3-333, 73-3-335, 73-3-337, 73-3-339, 73-3-341, 73-3-345, 73-3-365 AND 73-3-371, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ATTORNEY DISCIPLINE SHALL BE A NONDELEGABLE DUTY OF THE SUPREME COURT; TO PROVIDE THAT THE SUPREME COURT SHALL EMPLOY COMPLAINT COUNSEL AND ESTABLISH DISCIPLINARY AGENCIES; TO PROVIDE THAT COMPLAINTS SHALL BE FILED AND DOCKETED WITH THE CLERK OF THE SUPREME COURT; TO REVISE CERTAIN FILING AND NOTICE PROVISIONS; TO AUTHORIZE COMPLAINT COUNSEL TO APPEAL DECISIONS OF THE COMPLAINT TRIBUNAL; TO REVISE RESIGNATION, REINSTATEMENT AND DISBARMENT PROVISIONS; TO AUTHORIZE THE STATE AUDITOR TO AUDIT THE MISSISSIPPI BAR; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 73-3-301, Mississippi Code of 1972, is amended as follows:

73-3-301. Any attorney regularly admitted to practice law in the State of Mississippi or any attorney specially admitted to practice law by a court of this state or any individual admitted to practice as an attorney in any other jurisdiction who regularly engages in the practice of law within this state as house counsel to corporations or other entities, counsel for governmental agencies, out-of-state lawyers admitted or permitted to practice law in this state by comity, bar examination or otherwise are subject to the exclusive, inherent * * * and nondelegable disciplinary jurisdiction of the Supreme Court of Mississippi and the disciplinary agencies hereinafter established and designated; provided, however, nothing herein contained shall be construed to deny to any other court such powers as are necessary for that court to maintain control over practice in and proceedings conducted before it, such as the power of contempt, nor to prohibit local bar associations from censuring, suspending or expelling their members from membership in such local bar association.

SECTION 2. Section 73-3-303, Mississippi Code of 1972, is amended as follows:

73-3-303. The jurisdiction of the court shall be administered in the manner hereinafter set out, and the following entities are hereby established and designated as agencies of the court for such purposes:

(a) The Supreme Court and complaint counsel.

(b) The committee on complaints of the Supreme Court.

(c) The complaint tribunals appointed by the Supreme Court of Mississippi.

SECTION 3. Section 73-3-305, Mississippi Code of 1972, is amended as follows:

73-3-305. The composition of the aforesaid disciplinary agencies shall be as follows:

(a) * * * The Supreme Court shall have the authority to employ and compensate a competent person to serve as complaint counsel, who shall be a member of the bar of this state and who shall serve at the pleasure of the court, either in a full-time or part-time capacity. In addition, the court shall have the authority to employ and compensate such assistants to and staff for the complaint counsel and to employ and compensate such other persons as the court may from time to time deem necessary or advisable to effect the disciplinary procedures set forth herein.

(b)  * * * The committee on complaints shall be appointed by the Chief Justice of the Supreme Court, but said committee shall consist of at least three (3) members from each of the Supreme Court districts of the state. The chairman and vice-chairman of the committee shall be designated by the Chief Justice of the Supreme Court.

(c)  * * * Complaint tribunals for each of the Supreme Court districts of the state, consisting of three (3) members who are members of the bar of this state, shall be appointed by the Chief Justice of the Supreme Court to serve on a calendar year basis.

SECTION 4. Section 73-3-309, Mississippi Code of 1972, is amended as follows:

73-3-309. Complaints, irrespective of source, touching upon the professional conduct or conduct evincing unfitness for the practice of law made against attorneys who are members of the bar of this state or who may be temporarily practicing in this state under any rule of comity or courtesy, that may be received by or that may come to the attention of any judicial officer, complaint counsel or any members of the Mississippi State Bar, shall be referred to the committee on complaints for preliminary investigation and such disposition or further action as may be appropriate. The complaint must be in writing and signed by the person making the complaint or charge and the complaint must be sworn to or supported by affidavit or the signature of the complaining party witnessed by two (2) persons twenty-one (21) years of age or older. Additionally, the complaint shall contain the street address of the complaining party and each witness.

SECTION 5. Section 73-3-311, Mississippi Code of 1972, is amended as follows:

73-3-311. When any complaint or charge touching upon the professional conduct or conduct evincing unfitness for the practice of law against any attorney subject to discipline hereunder is received by the committee on complaints, the committee shall, within ten (10) days thereof, take the following action:

(a) Cause the complaint or charge to be filed and docketed with the Clerk of the Supreme Court;

(b) Screen the complaint or charge for merit or the lack thereof, if such determination can be made from the allegations of the complaint and any accompanying documents; and

(c) Dismiss any frivolous or ill-grounded complaint or one obviously without merit; or

(d) Refer the complaint to complaint counsel for further investigation, hearing and report.

SECTION 6. Section 73-3-319, Mississippi Code of 1972, is amended as follows:

73-3-319. Within thirty (30) days of its receipt of complaint counsel's report, the committee on complaints shall take the following action:

(a) If upon review of the record, complaint counsel's report and any written response by the accused attorney, the committee determines that there is not reasonable ground to believe that the accused attorney has been guilty of unprofessional conduct or conduct evincing unfitness for the practice of law, the committee may either re-refer the matter to complaint counsel for further investigation or may dismiss the complaint and retire the file. In the latter event, the person filing the complaint, the accused attorney and the Chief Justice of the Supreme Court shall be given written notice of the committee's determination.

(b) If upon review of the record, complaint counsel's report and any written response by the accused attorney, the committee determines that there is reasonable ground to believe that the accused attorney has been guilty of unprofessional conduct or conduct evincing unfitness for the practice of law, and is of the further opinion that a reprimand of the accused attorney is all that justice requires and will adequately afford the disciplinary sanctions required by the particular circumstances, the committee may administer a private reprimand, or it may, in its discretion, make public the fact of the reprimand by having the same delivered in open court by the chancery or circuit court of the county of the accused attorney. However, such action shall not be taken except upon proper notice and hearing, such notice and hearing to be upon the same formal requirements and assuring to the accused attorney the same rights and privileges as provided in Section 73-3-321 et seq. for hearings upon complaints which, if proven, would warrant suspension or disbarment. Further, any decision of the complaint tribunal to issue a reprimand shall be appealable in the same manner and to the same extent as provided in Section 73-3-329. The committee, in its discretion, may require the accused attorney to appear before it for delivery of the reprimand or may forward it to him by registered mail. In any event, written notice of the delivery of such reprimand shall be given to the person filing the complaint, the clerk of the court, the Chief Justice of the Supreme Court, and to the judges of the circuit and chancery court districts of the accused attorney.

(c) If the committee determines there is reasonable cause to believe the accused attorney is guilty of such conduct, which, if proven, would warrant suspension for a definite or an indefinite period or permanent disbarment, the committee shall direct complaint counsel in writing to prepare and file a formal complaint against the accused attorney. Complaint counsel shall prosecute the case to conclusion, unless the Chief Justice of the Supreme Court, in his sole discretion, shall appoint one or more active members of the Mississippi Bar to either assist complaint counsel or to serve independently as trial attorney or attorneys in the prosecution of the proceeding to conclusion.

SECTION 7. Section 73-3-321, Mississippi Code of 1972, is amended as follows:

73-3-321. All formal complaints shall be filed in the court and shall be prosecuted in the name of the State of Mississippi * * *. The formal complaint and other pleadings shall comply with the following requirements:

(a) The formal complaint shall be filed with the clerk of the court within thirty (30) days of the receipt by complaint counsel of the written notice from the committee on complaints directing him to file said complaint.

(b) The complaint shall set forth with fair and reasonable certainty the particulars of the offense of which the accused attorney is charged.

(c) All matters of defense or abatement asserted by the accused attorney shall be filed within twenty (20) days after a copy of the complaint is served upon the accused attorney. Provided that upon application to the clerk the accused attorney may be granted such additional time as the circumstances warrant.

(d) The complaint shall be personally served upon the accused attorney * * * by the complaint counsel unless the accused attorney shall waive the same by execution and delivery to the clerk of receipt and waiver of personal service.

SECTION 8. Section 73-3-329, Mississippi Code of 1972, is amended as follows:

73-3-329. (1) The entire record of the proceeding of the complaint tribunal shall be filed with the clerk of the court within thirty (30) days after the conclusion of the hearing or within such additional time as the clerk, on motion therefor, may allow.

(2) If no appeal from the judgment of the complaint tribunal is perfected within thirty (30) days from the date of said judgment, the judgment of the complaint tribunal shall be final.

(3) Either the attorney or the complaint counsel shall have the right to an appeal to the court, which appeal shall be perfected within thirty (30) days of the date of the judgment of the complaint tribunal by the aggrieved party filing a notice of appeal with the clerk of the court.

(4) The record on appeal shall consist of the formal complaint, all other pleadings, the transcript of the testimony and the written opinion and judgment of the complaint tribunal.

(5) On appeal, the court may review all of the evidence and the law and the findings and conclusions of the complaint tribunal and it may make such findings and conclusions and render such order as it may find to be appropriate based upon the whole record.

(6) The rules of practice and procedure for the filing of briefs and oral arguments governing appeals from the chancery or circuit courts of Mississippi shall apply to and govern appeals from the judgment of the complaint tribunals; provided, however, whenever possible, the court shall advance and expedite the cause on its docket.

SECTION 9. Section 73-3-333, Mississippi Code of 1972, is amended as follows:

73-3-333. At any stage of the disciplinary proceedings an accused attorney who is the subject of investigation may submit his resignation and agree to the entry by the court of a consent order of suspension or dismissal by submitting to the Supreme Court an affidavit stating that he desires to resign from the bar and to surrender his privilege to practice law, and that:

(a) His resignation is freely and voluntarily rendered; he is not being subjected to coercion or duress; and he is fully aware of the implications of submitting his resignation.

(b) He is aware that there is pending an investigation into allegations that he has been guilty of unprofessional conduct, the nature of which he shall specifically set forth.

(c) He acknowledges that the material facts upon which the complaint is based are true.

(d) He submits his resignation because he knows that if charges were predicated on the misconduct under investigation, he could not defend himself successfully against them.

Notwithstanding the provisions of Section 73-3-315(e) to the contrary, upon receipt of said affidavit, the investigation or disciplinary procedure shall terminate, and the complaint counsel will present to the court an agreed order to be entered by the court either suspending or disbarring said attorney by consent, as the particular circumstances of the matter may require in the discretion of the Supreme Court. Said order shall be a public record, and certified copies thereof shall be mailed to the judges of the circuit and chancery court districts within which the attorney resides.

Once a complaint has been filed against an attorney, this shall be the exclusive method for resignation pending the investigation and determination of said complaint, and no other resignation procedure will be permitted or recognized by the bar.

SECTION 10. Section 73-3-335, Mississippi Code of 1972, is amended as follows:

73-3-335. Any time after the entry of a final judgment of suspension and after the expiration of at least one-fourth (1/4) of the period of the ordered suspension, the convicted attorney may file a petition in the court to modify or terminate said suspension; provided, however, any petition to modify or terminate subsequent to the initial petition shall not be filed within six (6) months from the date of the adverse determination of any prior petition. A filing fee of Two Hundred Fifty Dollars ($250.00) to defray the expense of investigating the matter shall be paid the Supreme Court upon the filing of each petition to modify or terminate. A copy of said petition shall be served upon the Supreme Court, and it shall be under a duty to investigate the matter, respond to the petition and appear at the hearing. Modification or termination of suspension shall be granted only upon a showing of good cause and exceptional circumstances.

SECTION 11. Section 73-3-337, Mississippi Code of 1972, is amended as follows:

73-3-337. Upon the termination of the period of suspension, the convicted attorney may be reinstated by the court, pursuant to a petition filed with the court and a copy thereof served upon the complaint counsel. A filing fee of Two Hundred Fifty Dollars ($250.00) to defray the expense of investigating the matter shall be paid the Supreme Court upon the filing of such petition. The complaint counsel shall investigate the matter and report all relevant facts for the consideration of the court.

Any time after the expiration of three (3) years from and after the date of the final judgment of disbarment, the convicted attorney may petition the court for reinstatement. The petition shall be in writing and verified by the petitioner, and it shall set forth the full name, age, residence and mailing address of the petitioner, the offense or misconduct for which he was disbarred, a concise statement of the facts claimed to justify restoration and that he has made full amends and restitution to all persons, firms or legal entities, naming them, who may have suffered pecuniary loss by reason of the misconduct or offense for which he was disbarred. A copy of said petition shall be served on the complaint counsel, and a filing fee of Five Hundred Dollars ($500.00) to defray the expense of investigating the matter shall be paid the Supreme Court upon the filing of each petition. Any petition for reinstatement subsequent to the initial petition shall not be filed by the convicted attorney within one (1) year from the date of the adverse determination of any prior petition.

The court shall examine the petition and, if satisfied that it states sufficient grounds, shall set the same for hearing and shall cause the clerk of the court to serve each person named in the petition with a copy thereof by sending the same to them by registered mail. If the court deems it necessary or proper to so do, it may cause an investigation to be made by complaint counsel.

If the court is satisfied that all material allegations of the petition for reinstatement are true and that the ends of justice will be served, the court may reinstate the convicted attorney and enter judgment accordingly; provided, however, no judgment of reinstatement shall be entered by default or on an ex parte basis, and in all cases the court shall hear the complaint counsel and may hear any party named in the petition.

SECTION 12. Section 73-3-339, Mississippi Code of 1972, is amended as follows:

73-3-339. Whenever any attorney subject to the disciplinary jurisdiction of the court shall be convicted in any state court or in any federal court, or enter a plea of guilty or a plea of nolo contendere therein, of any felony other than manslaughter or any violation of the United States Internal Revenue Code, or of any offense involving fraud, dishonesty, misrepresentation, deceit, failure to account for money or property of a client, or of any offense involving moral turpitude, a certified copy of the judgment of conviction shall be presented to the court by the complaint counsel. Upon the presentation of such certified copy of judgment, the court shall forthwith strike the name of the attorney so convicted or who entered such a plea from the rolls of the Mississippi Bar and order his immediate suspension from practice, pending an appeal and final disposition of disciplinary proceedings. Such attorney will be reinstated immediately upon the reversal of his conviction for the offense that has resulted in his automatic suspension, but such reinstatement shall not terminate any disciplinary proceeding then pending against the attorney.

A certified copy of the final judgment of conviction of an attorney for any offense hereinabove specified shall be conclusive evidence of his guilt of that offense in any disciplinary proceeding instituted against him and based on said conviction.

Upon the conviction of an attorney, or the entry by him of a plea of nolo contendere, for the above offenses, excluding manslaughter or any violation of the United States Internal Revenue Code, the Supreme Court shall immediately direct complaint counsel to institute a disciplinary proceeding in which the sole issue to be determined will be the extent of the final discipline to be imposed; provided, however, a disciplinary proceeding so instituted shall not be brought to hearing until all appeals from such conviction have been concluded.

The judge of any court within this state in which an attorney has been convicted for any of the above enumerated offenses shall cause to be transmitted to the court and to the complaint counsel a certified copy of the judgment of conviction.

SECTION 13. Section 73-3-341, Mississippi Code of 1972, is amended as follows:

73-3-341. Whenever any attorney subject to the disciplinary jurisdiction of the court shall be disbarred or suspended from the practice of law in another jurisdiction, such disbarment or suspension shall be grounds for disciplinary action in this state, and certification of such disbarment or suspension by the appropriate authority of such jurisdiction to the Chief Justice of the Supreme Court shall be conclusive evidence of his guilt of the offense or unprofessional conduct on which said disbarment or suspension was ordered, and it shall not be necessary to prove the grounds of such offense in the disciplinary proceeding in this state. The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on said attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.

SECTION 14. Section 73-3-345, Mississippi Code of 1972, is amended as follows:

73-3-345. All complaints filed pursuant hereto shall be absolutely privileged, and no lawsuit predicated thereon may be instituted, and each person, firm, association or legal entity filing such a complaint shall be immune from any civil suit predicated thereon. The Supreme Court justices, the committee on complaints, * * * the complaint counsel, the complaint tribunals, and their assistants, staff and employees shall be immune from civil suit for any conduct arising out of the performance of their official duties. Every person shall be immune from civil suit for all of his sworn or written statements made or given in the course of any investigation, investigatory hearing, formal hearing or review proceedings held and conducted under these disciplinary rules.

SECTION 15. Section 73-3-365, Mississippi Code of 1972, is amended as follows:

73-3-365. Procedures for reinstatement of an attorney suspended because of personal incapacity to practice law shall be, insofar as is applicable, the same as the procedure for reinstatement of an attorney following suspension upon disciplinary grounds. The petition for reinstatement shall be filed with the clerk of the court, and a copy of said petition shall be served upon the complaint counsel, and it shall be under a duty to investigate the matter, respond to the petition and appear at the hearing. The petitioner shall be required to supply such supporting proof of personal capacity as may be necessary and, in addition, the attorney may be required to submit to examinations by physicians or psychiatrists selected by the court. If the court is satisfied that the attorney has regained his capacity to practice law, the court may reinstate the petitioner to the practice of law and enter judgment accordingly; provided, however, no judgment of reinstatement shall be entered by default or on an ex parte basis, and in all cases the court shall hear the complaint counsel. A filing fee of One Hundred Fifty Dollars ($150.00) to defray the expense of investigating the matter shall be paid the Supreme Court upon the filing of each petition for reinstatement, and any petition for reinstatement subsequent to the initial petition shall not be filed within six (6) months from the date of an adverse determination of any prior petition.

SECTION 16. Section 73-3-371, Mississippi Code of 1972, is amended as follows:

73-3-371. At any stage of the disciplinary proceedings, the complaint counsel may, in the exercise of its sole discretion, accept a plea of nolo contendere from the accused attorney and agree to the entry by the court of a consent order of suspension or disbarment of the accused attorney.

Notwithstanding the provisions of Section 73-3-315(e) to the contrary, upon the acceptance of a plea of nolo contendere the investigation or disciplinary procedure shall terminate, and the complaint counsel will present to the court an agreed order to be entered by the court either suspending or disbarring said attorney by consent, as the particular circumstances of the matter may require in the discretion of the Board of Commissioners. Said order shall be a public record, and certified copies thereof shall be mailed to the judges of the circuit and chancery court districts within which the attorney resides.

For the purpose of determining the discipline to be imposed on the accused attorney, the Board of Commissioners shall consider a plea of nolo contendere as tantamount to proof of guilt of the offense or unprofessional conduct or personal disability to practice law on which said disciplinary proceeding was grounded.

SECTION 17. In addition to any other audits authorized by law, the Mississippi Bar shall be subject to audit by the State Auditor in the same manner as any other state agency created by statute.

SECTION 18. This act shall take effect and be in force from and after July 1, 1998.