MISSISSIPPI LEGISLATURE
2002 Regular Session
To: Judiciary A
By: Representative Watson
AN ACT TO REENACT SECTIONS 73-3-101, 73-3-103, 73-3-105, 73-3-107, 73-3-109, 73-3-111, 73-3-113, 73-3-115, 73-3-117, 73-3-119, 73-3-120, 73-3-121, 73-3-123, 73-3-125, 73-3-127, 73-3-129, 73-3-131, 73-3-133, 73-3-135, 73-3-137, 73-3-139, 73-3-140, 73-3-141, 73-3-143, 73-3-145, 73-3-171, 73-3-301, 73-3-303, 73-3-305, 73-3-307, 73-3-309, 73-3-310, 73-3-311, 73-3-313, 73-3-315, 73-3-317, 73-3-319, 73-3-321, 73-3-323, 73-3-325, 73-3-327, 73-3-329, 73-3-331, 73-3-333, 73-3-335, 73-3-337, 73-3-339, 73-3-341, 73-3-343, 73-3-345, 73-3-347, 73-3-349, 73-3-351, 73-3-353, 73-3-355, 73-3-357, 73-3-359, 73-3-361, 73-3-363, 73-3-365, 73-3-367, 73-3-369, 73-3-371 AND 73-3-373, MISSISSIPPI CODE OF 1972, WHICH CREATE MISSISSIPPI BAR AND THE STATE BOARD OF BAR COMMISSIONERS AND PRESCRIBE ITS DUTIES AND POWERS; TO AMEND SECTION 73-3-403, MISSISSIPPI CODE OF 1972, TO EXTEND THE REPEALER ON THE MISSISSIPPI BAR AND THE STATE BOARD OF BAR COMMISSIONERS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 73-3-101, Mississippi Code of 1972, is reenacted as follows:
73-3-101. The resident lawyers now authorized to practice law in the State of Mississippi are hereby and herewith constituted an association which shall be known as the Mississippi Bar.
SECTION 2. Section 73-3-103, Mississippi Code of 1972, is reenacted as follows:
73-3-103. All resident persons now or hereafter admitted to practice law in the state shall be members of this association.
SECTION 3. Section 73-3-105, Mississippi Code of 1972, is reenacted as follows:
73-3-105. The bar shall elect a president, a first vice president and president-elect, and a second vice president, who shall each serve for a term of one (1) year. None of such officers shall be eligible to succeed himself.
The bar shall adopt bylaws for its government, fixing the term of office for the officers and members of the board of commissioners, providing for the times and methods of the election of officers and members of the board of commissioners, authorizing sections of the bar, providing for committees through which the activities of the bar would be carried on, prescribing the methods by which the time for the annual meetings of the bar and of the board of commissioners shall be set, prescribing the manner in which special meetings of the officers, the board, and the bar may be called and held, authorizing the board to elect an executive committee with a determination of its composition and what powers may be delegated to such executive committee, and covering other proper subjects. Such bylaws shall not be inconsistent with the provisions of this chapter.
SECTION 4. Section 73-3-107, Mississippi Code of 1972, is reenacted as follows:
73-3-107. The bar shall be controlled and governed by a board of commissioners consisting of as many members as shall be established by the bylaws of the bar or any amendments thereto, adopted at an annual meeting of the bar.
SECTION 5. Section 73-3-109, Mississippi Code of 1972, is reenacted as follows:
73-3-109. At all meetings of the board of commissioners a majority of the entire membership shall constitute a quorum for action upon any questions that may come before the board except such questions as this article or the bylaws of the organization may require to be passed upon by a larger portion of the membership.
SECTION 6. Section 73-3-111, Mississippi Code of 1972, is reenacted as follows:
73-3-111. A secretary, who may be designated as executive director, shall be elected by the board of commissioners and shall hold office for one (1) year.
The secretary shall keep and maintain rolls which shall contain the name and place of residence of every lawyer in the state. He may adopt such means as he thinks best to make the rolls accurate and complete. There shall be made a separate roll for each circuit court district.
The secretary shall keep minutes of all meetings of the board of commissioners and such minutes, signed by the chairman and secretary, shall be the evidence of the proceedings had and actions taken by the board. He shall also keep the minutes of each meeting of the bar, which minutes signed by him and by the presiding officer shall be evidence of the proceedings had and actions taken by the bar.
SECTION 7. Section 73-3-113, Mississippi Code of 1972, is reenacted as follows:
73-3-113. The secretary shall also perform the duties of treasurer. He shall make bond for the safe handling of all funds for which he may become responsible, the bond to be in such penalty, with such sureties, and conditioned as the board of commissioners may require. Annually, and not less than thirty (30) days in advance of the date the board of commissioners is to consider the proposed budget of the bar for the next fiscal year, the secretary shall publish in an official publication of the bar a detailed accounting of all projected revenues and each item of expenditure in the proposed budget. Items of expenditure relating to disciplinary functions of the bar shall appear separately from those relating to nondisciplinary functions. In addition, the secretary shall annually cause to be made an independent audit by a certified public accountant of all receipts, expenditures and funds under the control of the bar and shall publish such audit in an official publication of the bar.
SECTION 8. Section 73-3-115, Mississippi Code of 1972, is reenacted as follows:
73-3-115. The secretary shall maintain his office at the seat of government. But the meetings of the board of commissioners shall be at such places as the board may select from time to time or as may be designated in calls made as herein authorized. The meetings of the bar shall be held at such places as the bar may from time to time select. The secretary shall attend all meetings of the board and all meetings of the bar.
SECTION 9. Section 73-3-117, Mississippi Code of 1972, is reenacted as follows:
73-3-117. The secretary shall receive a salary in such amount and payable in such manner as the board of commissioners may prescribe from time to time. No other officer shall be paid a salary. But the traveling expenses of members of the board attending meetings of the board and such expenses of committees making trips on business of the bar shall be paid.
SECTION 10. Section 73-3-119, Mississippi Code of 1972, is reenacted as follows:
73-3-119. Enrollment on the list of members of the bar and the payment of annual enrollment fees as required hereby shall be prerequisites to the continued practice by any lawyer already admitted and to the engaging in the practice by persons hereafter admitted. The date on which the provisions of this section shall become operative will be determined in the manner hereinafter provided.
SECTION 11. Section 73-3-120, Mississippi Code of 1972, is reenacted as follows:
73-3-120. Members of the bar shall be divided into active and inactive membership classes which shall be defined as follows:
(a) "Active member" means any person admitted to practice law in this state and who is engaged in the practice of law in this state. Except as otherwise provided in Section 73-3-125, all active members shall be entitled to vote and hold office in the bar.
(b) "Inactive member" means any member, in good standing, who is not engaged in the practice of law in this state. A person may, upon written request, be enrolled as an inactive member. Inactive members shall not be entitled to vote and hold office in the bar.
As used in this section, the "practice of law" shall include any person holding himself out as a practicing attorney or occupying any position in which he may be called upon to give legal advice or counsel or to examine the law or to pass upon the legal effect of any act, document or law.
The Mississippi Bar shall promulgate rules and regulations regarding continuing legal education requirements between active and inactive status.
SECTION 12. Section 73-3-121, Mississippi Code of 1972, is reenacted as follows:
73-3-121. Any lawyer changing his residence from one circuit to another shall promptly notify the secretary who shall make the changes on his rolls to show such person's name on the roll of the proper district.
SECTION 13. Section 73-3-123, Mississippi Code of 1972, is reenacted as follows:
73-3-123. Each member of the bar shall, unless exempt by virtue of Section 73-3-125, pay enrollment fees each year in an amount as established by the board of commissioners, but not to exceed the sum of Two Hundred Dollars ($200.00) until August 1, 1997, and not to exceed Two Hundred Twenty-five Dollars ($225.00) thereafter until August 1, 1999, and not to exceed Two Hundred Fifty Dollars ($250.00) thereafter for those members admitted to practice law for three (3) years or more; and One Hundred Ten Dollars ($110.00) for those members admitted to practice law for one (1) year, but less than three (3) years; and Fifty Dollars ($50.00) for those members admitted to practice law less than one (1) year; and Fifty Dollars ($50.00) for those members on inactive status. All enrollment fees shall be paid for the same period, that is, for the period of one (1) year beginning on the day and month to be determined as provided in Section 73-3-127. The enrollment fees shall be paid to the secretary of the bar.
SECTION 14. Section 73-3-125, Mississippi Code of 1972, is reenacted as follows:
73-3-125. All lawyers over the age of seventy-five (75) years, and the judges of the Supreme Court, Court of Appeals and circuit, chancery and county judges, United States magistrates, judges of the bankruptcy courts, and the judges of the federal courts are exempt from the payment of enrollment fees. Lawyers over the age of seventy-five (75) years and judges of the classes enumerated in this section shall be active members except that no judge shall be eligible to membership on the board of commissioners. Lawyers who have retired from the practice of law because of age, serious illness or permanent disability may be placed on inactive status and shall be exempt from the payment of enrollment fees.
SECTION 15. Section 73-3-127, Mississippi Code of 1972, is reenacted as follows:
73-3-127. Any member failing to pay any enrollment fees within sixty (60) days after the same become due shall be considered delinquent and shall be given written notice of his delinquency mailed to him by United States mail, addressed to his last known address. If the delinquent fails to pay such enrollment fees within thirty (30) days after written notice of delinquency, he shall stand suspended from membership in the Mississippi Bar. It shall be the duty of the secretary, upon any member's becoming suspended as above stated, to notify the delinquent in writing by United States certified mail of his suspension, and to notify the courts of the county of his last known address of such fact, viz; the circuit court, the chancery court and the county court, if there be a county court, by mailing such notice to the presiding judge and to the clerk of such court. Any member shall be reinstated upon payment of delinquent enrollment fees and a penalty in an amount equal to one-half (1/2) of the delinquent enrollment fees. The secretary, upon such payment, shall forthwith notify the courts above-mentioned of such fact and the clerks thereof shall file and preserve such notice.
SECTION 16. Section 73-3-129, Mississippi Code of 1972, is reenacted as follows:
73-3-129. The president shall preside at all meetings of the bar, and shall have such duties as the bar may by its bylaws prescribe. In his absence, or in case of his inability to perform his duties they shall devolve upon the first vice president; and in the absence or inability to act of the first vice president the duties of the president shall be performed by the second vice president.
SECTION 17. Section 73-3-131, Mississippi Code of 1972, is reenacted as follows:
73-3-131. The president shall be a member and the chairman of the board of commissioners. In case he is absent from any meeting of the board, the vice president and president-elect shall preside; and in case the vice president and president-elect is absent from any meeting of the board, some other member of the board shall be selected by the members in attendance to preside at that meeting.
SECTION 18. Section 73-3-133, Mississippi Code of 1972, is reenacted as follows:
73-3-133. The vice president and president-elect and the second vice president shall be members of the board of commissioners.
SECTION 19. Section 73-3-135, Mississippi Code of 1972, is reenacted as follows:
73-3-135. Vacancies in any office, including the office of commissioner, shall be filled by the board of commissioners and any person so elected by the board of commissioners to fill a vacancy shall hold for the balance of the term of his immediate predecessor in office.
SECTION 20. Section 73-3-137, Mississippi Code of 1972, is reenacted as follows:
73-3-137. If any member of the board shall be absent from three (3) successive meetings thereof, unless the reason for his absence shall be temporary illness, the board may declare his office vacant and proceed to fill it as provided in the last preceding section.
SECTION 21. Section 73-3-139, Mississippi Code of 1972, is reenacted as follows:
73-3-139. The membership of the bar shall establish by the adoption of bylaws and amendments thereto at any annual meeting of the bar the time, method and procedures for the election of officers and members of the board. The names of those persons nominated by any method other than by petition of the general membership shall be published in an official publication of the bar at least thirty (30) days in advance of the deadline for nominations by petition of the general membership to be filed, and the bylaws of the bar shall provide in addition to any other method for the nomination of officers and members of the board the manner and procedure by which the general membership of the bar may make nominations by petition. All bylaws of the bar in existence at the time of the adoption of this section shall continue in full force and effect, until such time as such bylaws may be amended by the membership of the bar in accordance with the provisions of the bar bylaws.
SECTION 22. Section 73-3-140, Mississippi Code of 1972, is reenacted as follows:
73-3-140. The board of commissioners, any officer or the Executive Director of the Mississippi Bar shall not be authorized to lease any office space for the use of the Mississippi Bar if such space is being leased for an annual amount in excess of the annual amount paid by the State Supreme Court for its office space. The lease of any office space by the Board of Commissioners, an officer or the Executive Director of the Mississippi Bar for the use of the Mississippi Bar must be approved by the Department of Finance and Administration. The bylaws of the bar shall not be in conflict with the provisions of this section. The provisions of this section shall not apply to any lease existing as of July 1, 1991.
SECTION 23. Section 73-3-141, Mississippi Code of 1972, is reenacted as follows:
73-3-141. The Mississippi Bar shall be governed by the board of commissioners which shall have the powers and duties in this article conferred and which shall be charged with the executive functions of the bar and with the duty to enforce the provisions of this article. But the board of commissioners shall observe general rules, not in conflict with the provisions of this article, adopted in the form of bylaws or otherwise by the bar.
SECTION 24. Section 73-3-143, Mississippi Code of 1972, is reenacted as follows:
73-3-143. (1) The board shall, subject to the approval of the justices of the Supreme Court, formulate reasonable rules governing the conduct of all persons admitted to practice.
(2) The board of commissioners shall render advisory opinions, upon the written request of any member of the bar, as to the validity or propriety of any proposed act or course of conduct.
SECTION 25. Section 73-3-145, Mississippi Code of 1972, is reenacted as follows:
73-3-145. (1) It shall be the duty of the Mississippi Bar, by and through its president, to recommend to the State Legislature such legislation relating to the courts, to matters of pleading, practice and procedure, and any other legislation which in its judgment will improve the courts and the law, or render the members of the bar more efficient as ministers of justice and the courts more efficient as instrumentalities for its attainment.
(2) The bar shall have the right to make rules and bylaws not in conflict with any of the terms of this article concerning the selection and tenure of its officers and committees and their powers and duties, and generally for the control and regulation of the business of the board and of the bar.
(3) The bar shall have the authority to hold and conduct educational and social meetings and activities among the members of the bar, to publish journals and generally to do such things as in their judgment may tend to improve the educational and ethical standing of the bench and bar.
SECTION 26. Section 73-3-171, Mississippi Code of 1972, is reenacted as follows:
73-3-171. The board of commissioners shall have no authority to regulate the fees or charges of lawyers for the rendition of their professional services. Nor shall it in any way undertake to regulate such fees or charges.
SECTION 27. Section 73-3-301, Mississippi Code of 1972, is reenacted 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 and inherent 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 28. Section 73-3-303, Mississippi Code of 1972, is reenacted 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 board of commissioners of the Mississippi Bar, including the Executive Director of the Mississippi Bar and complaint counsel.
(b) The committee on complaints of the Mississippi Bar.
(c) The complaint tribunals appointed by the Supreme Court of Mississippi.
SECTION 29. Section 73-3-305, Mississippi Code of 1972, is reenacted as follows:
73-3-305. The composition of the aforesaid disciplinary agencies shall be as follows:
(a) Board of Commissioners. The Board of Commissioners of the Mississippi Bar is provided for in Section 73-3-107, Mississippi Code of 1972. The board 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 board, either in a full-time or part-time capacity. In addition, the board 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 board may from time to time deem necessary or advisable to effect the disciplinary procedures set forth herein.
(b) Committee on complaints. The committee on complaints shall be appointed by the President of the Mississippi Bar in the manner provided in its bylaws, but said committee shall consist of at least one (1) member from each of the Supreme Court districts of the state. The chairman and vice chairman of the committee shall be designated by the President of the Mississippi Bar.
(c) Complaint tribunals. 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 30. Section 73-3-307, Mississippi Code of 1972, is reenacted as follows:
73-3-307. Each of the disciplinary agencies is hereby given such jurisdiction and lawful powers as are necessary to conduct a proper and speedy disposition of any complaint. The power to summons and examine witnesses under oath and to compel their attendance to take or cause to be taken the deposition of witnesses and to order the production of books, papers, records and other documentary evidence necessary or material to the investigation or complaint shall be coequal to the powers exercisable by the courts of record of this state. All summonses or subpoenas shall be issued by the clerk of the court, and it shall be the duty of any person so summoned to appear and testify as in the writ commanded and to produce the books, papers, records or other documentary evidence required. Summonses and subpoenas issued by the clerk of the court shall be delivered to the sheriff of the county where they are to be executed, and the sheriff shall serve such writs and notices, or cause them to be served, as he is required to do with respect to writs received by him from any other court of record.
Any defiance of any summons or subpoena so issued, or other extrajudicial conduct which shall inhibit, impede or disrupt any of the above disciplinary agencies in the performance of the duties and in the exercise of the powers herein given shall be treated as contempt of the court and punishable accordingly.
SECTION 31. Section 73-3-309, Mississippi Code of 1972, is reenacted 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, the Board of Commissioners or any members of the Mississippi 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 32. Section 73-3-310, Mississippi Code of 1972, is reenacted as follows:
73-3-310. The chancery and circuit courts shall have the duty to file a complaint under the terms and provisions as outlined in Section 73-3-309 against any attorney who is a resident of the court's district and who demonstrates conduct evincing unfitness for the practice of law.
SECTION 33. Section 73-3-311, Mississippi Code of 1972, is reenacted 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 Executive Director of the Mississippi Bar;
(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 34. Section 73-3-313, Mississippi Code of 1972, is reenacted as follows:
73-3-313. The complaint counsel shall immediately investigate the complaint; and upon completion of his investigation, excluding the investigatory hearing, he shall inform the accused attorney that a complaint has been filed against him and that he is under investigation, advise the accused attorney of the general nature of the charges, furnish him a copy of the complaint and any evidence supporting it, afford the accused attorney a hearing, and advise the attorney of the time and place of such hearing. Communications and notices to the accused attorney shall be transmitted by registered or certified mail, return receipt requested, and marked "Deliver to Addressee Only."
SECTION 35. Section 73-3-315, Mississippi Code of 1972, is reenacted as follows:
73-3-315. The following rules for investigatory hearings by complaint counsel are for the guidance of complaint counsel and shall be strictly followed:
(a) The complainant is not a party to the proceeding and has no right to be present at any stage thereof.
(b) The accused attorney has no right to be present at any stage of the investigatory hearing, either in person or by counsel, except complaint counsel shall afford him an opportunity to make a statement, either personally or by counsel, verbally or in writing, refuting or admitting the alleged misconduct and to offer any matter in mitigation or extenuation. The accused attorney may document his statement to include the admission of affidavits but shall not have the right to present other testimony or evidence and shall have no right to confrontation.
(c) The investigatory hearing shall neither be public nor assume the character of an adversary proceeding, and a full evidentiary hearing on the merits is not contemplated.
(d) Formal rules of evidence will not be applied.
(e) Investigation by complaint counsel will not be stayed by settlement, compromise, admission of guilt or restitution.
(f) Any attorney called as a witness shall be informed before he gives evidence as to whether he is under investigation and, if so, the nature of the charges against him.
(g) Testimony will not be elicited or received which is not germane to the charges being investigated by complaint counsel.
SECTION 36. Section 73-3-317, Mississippi Code of 1972, is reenacted as follows:
73-3-317. Complaint counsel will cause the testimony of any witnesses at an investigatory hearing to be taken and transcribed and shall certify the same to the committee on complaints, along with his written findings, within thirty (30) days from and after the date on which the complaint was received by him, except that, for good cause shown, upon application to the chairman of said committee, complaint counsel may be granted a total of not more than thirty (30) additional days in which to make said certification. A copy of complaint counsel's report shall be sent to the accused attorney by certified mail, and the accused attorney shall have ten (10) days after the receipt by him of complaint counsel's report to file a written response thereto with the committee on complaints. Upon application to the chairman of the said committee, the accused attorney may be granted such additional time as circumstances warrant.
SECTION 37. Section 73-3-319, Mississippi Code of 1972, is reenacted 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 Executive Director of the Mississippi Bar 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 Executive Director of the Mississippi Bar, 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 President of the Mississippi Bar, 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 38. Section 73-3-321, Mississippi Code of 1972, is reenacted as follows:
73-3-321. (1) All formal complaints shall be filed in the court and shall be prosecuted in the name of the Mississippi Bar. 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 Executive Director of the Mississippi Bar or 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.
(2) The procedure for suspending an attorney from the practice of law for being out of compliance with an order for support, as defined in Section 93-11-153, and the procedure for reinstating an attorney to practice law after suspension for being out of compliance, and the payment of any fees for reinstating an attorney to practice law after suspension for being out of compliance, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this article, the provisions of Section 93-11-157 or 93-11-163, as the case be, shall control.
SECTION 39. Section 73-3-323, Mississippi Code of 1972, is reenacted as follows:
73-3-323. Within five (5) days after the formal complaint is filed with the clerk of the court by complaint counsel, the chief justice shall designate a complaint tribunal to conduct a hearing on the formal complaint and to determine the matter; provided, however, the complaint tribunal so designated by the chief justice shall not be composed of members from the same supreme court district as that within which the accused attorney resides. The chief justice shall designate one (1) member of the complaint tribunal to be the presiding judge thereof. Any member of the complaint tribunal who is not an elected judge or chancellor shall be entitled to a per diem as authorized by Section 25-3-69 for each day's service in attending hearings or necessary business of the tribunal and shall receive reimbursement for necessary expenses and mileage as is authorized by Section 25-3-41. Said per diem and expense reimbursement, subject to funds being appropriated therefor, shall be paid from any available funds appropriated to the Supreme Court.
SECTION 40. Section 73-3-325, Mississippi Code of 1972, is reenacted as follows:
73-3-325. Within forty-five (45) days after the designation by the Chief Justice of the complaint tribunal to hear and determine the formal complaint, the complaint tribunal shall conduct a hearing of the matter at such place and within such hours as determined by the tribunal; provided, however, such hearing shall be held and conducted within the county in which the accused attorney resides and provided further that for good cause shown the complaint tribunal may grant a reasonable continuance or continuances of said hearing. Written notice of the date, time and place of said hearing shall be mailed by the clerk of the court at the direction of the presiding judge of the complaint tribunal to the accused attorney by registered mail, return receipt requested, no less than ten (10) days prior to the commencement of said hearing.
All hearings by a complaint tribunal shall be a full evidentiary hearing, conducted on an adversary basis. The rules of evidence and procedure applicable to and followed by the chancery courts of Mississippi shall apply to such hearings. A duly qualified court reporter shall be in attendance and shall make a full and complete transcript of the proceedings. The hearing by the complaint tribunal shall be closed, unless the accused attorney shall request a public hearing; and the complaint tribunal shall have the right and duty to impose such reasonable restrictions as it may deem necessary or appropriate to insure an orderly, expeditious and impartial proceeding.
SECTION 41. Section 73-3-327, Mississippi Code of 1972, is reenacted as follows:
73-3-327. (1) At the conclusion of the hearing the complaint tribunal, upon the majority vote of the members of such tribunal, shall render a written opinion incorporating a finding of fact and a judgment thereon. The judgment of the complaint tribunal may provide the following:
(a) Exonerate the accused attorney and dismiss the complaint.
(b) Reprimand and admonish the attorney, as provided in Section 73-3-319(b) of this article.
(c) Suspend the attorney from the practice of law for any period of time.
(d) Permanently disbar the attorney.
(2) In cases in which the Clerk of the Supreme Court has received notice from the division that the attorney is out of compliance with an order for support, as defined in Section 93-11-153, the Supreme Court shall suspend the attorney from the practice of law until such time as the attorney may be reinstated to practice law because of the attorney's compliance with the requirements of Section 93-11-157 or 93-11-163, as the case may be.
SECTION 42. Section 73-3-329, Mississippi Code of 1972, is reenacted 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 Mississippi Bar 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.
(7) Actions taken by the Supreme Court in suspending an attorney from the practice of law when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of the suspension of an attorney from the practice of law that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.
SECTION 43. Section 73-3-331, Mississippi Code of 1972, is reenacted as follows:
73-3-331. Upon a final judgment of suspension or disbarment by a complaint tribunal, the convicted attorney shall not be privileged to practice law within this state unless and until he is restored the privilege of practice as hereinafter provided. Appeal from a judgment by the complaint tribunal shall operate as a supersedeas. An appeal from a judgment of the Supreme Court suspending an attorney from the practice of law when required by Section 93-11-157 or 93-11-163 may operate as a supersedeas only as may be allowed under Section 93-11-157 or 93-11-163, as the case may be.
SECTION 44. Section 73-3-333, Mississippi Code of 1972, is reenacted 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 board of commissioners 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 board of commissioners 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.
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 45. Section 73-3-335, Mississippi Code of 1972, is reenacted 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 Mississippi Bar upon the filing of each petition to modify or terminate. A copy of said petition shall be served upon the Mississippi Bar, 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.
The procedure for reinstating an attorney to practice law after suspension for being out of compliance with an order of support, as defined in Section 93-11-153, and the payment of any fees for reinstating an attorney to practice law after suspension for being out of compliance, shall be governed by Section 93-11-157 or 93-11-163, as the case may be.
SECTION 46. Section 73-3-337, Mississippi Code of 1972, is reenacted 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 Mississippi Bar. A filing fee of Two Hundred Fifty Dollars ($250.00) to defray the expense of investigating the matter shall be paid the Mississippi Bar upon the filing of such petition. The Mississippi Bar 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 Mississippi Bar, and a filing fee of Five Hundred Dollars ($500.00) to defray the expense of investigating the matter shall be paid the Mississippi Bar 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 Mississippi Bar and may hear any party named in the petition.
The procedure for reinstating an attorney to practice law after suspension for being out of compliance with an order of support, as defined in Section 93-11-153, and the payment of any fees for reinstating an attorney to practice law after suspension for being out of compliance, shall be governed by Section 93-11-157 or 93-11-163, as the case may be.
SECTION 47. Section 73-3-339, Mississippi Code of 1972, is reenacted 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 board of commissioners. 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 board of commissioners 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 board of commissioners a certified copy of the judgment of conviction.
SECTION 48. Section 73-3-341, Mississippi Code of 1972, is reenacted 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 Executive Director of the Mississippi Bar 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 49. Section 73-3-343, Mississippi Code of 1972, is reenacted as follows:
73-3-343. All disciplinary agencies of the court, all court reporters, clerks, witnesses and parties are strictly enjoined to keep and maintain confidential all things concerning the matters under investigation and the proceedings thereon; provided, however, all proceedings before any complaint tribunal and in the court may be public if requested by the accused attorney. The complaint tribunal may, however, file with the Supreme Court an opinion or summary of the findings of fact and conclusions of law without disclosing the identity or residence of the accused, the complaining party or parties, witnesses, or any person, firm or corporation involved. Violation of this section or any part hereof shall be a misdemeanor punishable by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than thirty (30) days or by both.
SECTION 50. Section 73-3-345, Mississippi Code of 1972, is reenacted 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 board of commissioners, the committee on complaints, the executive director, 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 51. Section 73-3-347, Mississippi Code of 1972, is reenacted as follows:
73-3-347. For the purposes of Sections 73-3-347 through 73-3-365, the term "personally incapable" to practice law shall include: (a) suffering from mental or physical illness of such character as to render the person afflicted incapable of managing himself, his affairs or the affairs of others with the integrity and competence requisite for the proper practice of law; or (b) habitual use of alcoholic beverages or liquids of any alcoholic content, hallucinogens, sedatives, drugs, narcotics or other mentally or physically disabling substances of any character whatsoever to any extent which impairs or tends to impair the ability to conduct efficiently and properly the affairs undertaken for a client in the practice of law.
SECTION 52. Section 73-3-349, Mississippi Code of 1972, is reenacted as follows:
73-3-349. Whenever it has been determined that any attorney subject to the disciplinary jurisdiction of the court is personally incapable to practice law, he shall be suspended from the practice of law until reinstated by order of the court.
SECTION 53. Section 73-3-351, Mississippi Code of 1972, is reenacted as follows:
73-3-351. Proceedings to determine whether an attorney is personally incapable to practice law shall be instituted and conducted in the same manner and upon the same procedure as disciplinary proceedings, except as otherwise set out in Sections 73-3-347 through 73-3-365. In addition to, and without exclusion of, any other circumstances, cause to believe that an attorney may be personally incapable to practice law shall exist whenever information is received that such member (a) has interposed successfully a defense of mental incompetence to secure abatement of, or to defeat an adverse determination in, a disciplinary proceeding brought against him in any tribunal in any jurisdiction, (b) has defended, upon like grounds, a suit brought against him in any tribunal in any jurisdiction, (c) has been judicially declared incompetent, or (d) has been legally committed to an institution for the treatment of mental illness.
SECTION 54. Section 73-3-353, Mississippi Code of 1972, is reenacted as follows:
73-3-353. In proceedings under Sections 73-3-347 through 73-3-365, the attorney shall be entitled to representation by counsel. An attorney who has been declared mentally incompetent, judicially, or who has been committed, judicially, to an institution for the treatment of the mentally ill shall be defended by his legally appointed guardian or guardian ad litem, if any; if a guardian or guardian ad litem has not been appointed, the Chief Justice, on certification by the board of commissioners, shall appoint a guardian ad litem. The same procedure shall apply to an attorney who has asserted his incompetence, or whose incompetence to defend becomes apparent during the proceedings. In all cases, counsel previously selected by the attorney will be appointed guardian ad litem, absent clear and compelling reasons to the contrary.
SECTION 55. Section 73-3-355, Mississippi Code of 1972, is reenacted as follows:
73-3-355. Service of process or notice to an attorney who has been committed or declared incompetent shall be accomplished in the same manner as that for process of incompetents in proceedings in the chancery courts of Mississippi. After the appointment of a guardian ad litem, notices shall be served upon said guardian ad litem.
SECTION 56. Section 73-3-357, Mississippi Code of 1972, is reenacted as follows:
73-3-357. A certified copy of the court order declaring an attorney mentally incompetent, or an order of commitment if he has been committed to an institution for the mentally incompetent, shall constitute sufficient evidence that said attorney is personally incapable to practice law, if such is not successfully rebutted.
SECTION 57. Section 73-3-359, Mississippi Code of 1972, is reenacted as follows:
73-3-359. In any proceeding where mental incompetency is an issue, the attorney may be required to submit to a mental examination by one or more practicing psychiatrists selected by the board of commissioners or by the complaint tribunal after its designation. Reports of physicians regarding the mental condition of an attorney may be received as probative evidence, if the physicians are available for cross-examination.
SECTION 58. Section 73-3-361, Mississippi Code of 1972, is reenacted as follows:
73-3-361. If, after a full hearing, the complaint tribunal finds the attorney personally incapable to practice law, the complaint tribunal shall enter a judgment formally suspending said attorney from the practice of law until the further order of the court.
SECTION 59. Section 73-3-363, Mississippi Code of 1972, is reenacted as follows:
73-3-363. Procedures for the filing of the record and appeal from the judgment of the complaint tribunal shall be the same as the appeal procedures from a judgment of suspension or disbarment upon disciplinary grounds.
SECTION 60. Section 73-3-365, Mississippi Code of 1972, is reenacted 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 Mississippi Bar, 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 Mississippi Bar. A filing fee of One Hundred Fifty Dollars ($150.00) to defray the expense of investigating the matter shall be paid the Mississippi Bar 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 61. Section 73-3-367, Mississippi Code of 1972, is reenacted as follows:
73-3-367. All disciplinary agencies of the court are hereby authorized to incur reasonable and necessary expenses in connection with the investigation and disposition of charges and complaints.
SECTION 62. Section 73-3-369, Mississippi Code of 1972, is reenacted as follows:
73-3-369. The acceptance by a nonresident attorney of the rights and privileges of the practice of law within this state, as evidenced by his practice of law in this state, shall be deemed equivalent to an appointment by such nonresident attorney of the Executive Director of the Mississippi Bar to be his true and lawful attorney, upon whom may be served all process summons or notice of any and all proceedings against him instituted pursuant to and conducted under these rules of disciplinary procedure; and the acceptance of such rights and privileges and the practice of law by any such nonresident attorney in this state shall be a signification of his agreement that any such process, summons or notice against him which is so served shall be of the same legal force and validity as if served on him personally.
Notice of the service of such process, summons or notice, together with a copy of any complaint or charge, shall be mailed forthwith by the executive director by United States certified mail or registered mail, return receipt requested, restricted for delivery to addressee only, and with postage prepaid, to such nonresident attorney at his last known address.
When such process, summons or notice is served as herein provided it shall be deemed sufficient to give the court, and its disciplinary agencies provided for herein jurisdiction over said nonresident attorney for the purpose of investigating and finally determining any complaint or charge touching upon the professional conduct or conduct evincing unfitness for the practice of law or the personal incapacity to practice law of any such nonresident attorney.
SECTION 63. Section 73-3-371, Mississippi Code of 1972, is reenacted as follows:
73-3-371. At any stage of the disciplinary proceedings, the board of commissioners 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 board of commissioners 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 64. Section 73-3-373, Mississippi Code of 1972, is reenacted as follows:
73-3-373. This article shall not be construed to modify or restrict the inherent right of the courts of record of the State of Mississippi to supervise the bar as an incident to their power to admit attorneys to practice and to the fulfillment of their responsibility for the proper administration of justice, it being here declared that it is an inherent power of the judicial branch of government ultimately to determine the qualifications of those to be admitted to practice in its court, for assisting in its work, and to protect itself and the citizenry of this state in this respect from the unfit, those lacking in sufficient learning and those not possessing good moral character. Any disciplinary proceeding in which the Mississippi Bar is a complaining party shall be conducted in accordance with the remaining sections of this article.
SECTION 65. Section 73-3-403, Mississippi Code of 1972, is amended as follows:
73-3-403. Sections 73-3-101 through 73-3-145, 73-3-171 and 73-3-301 through 73-3-373, Mississippi Code of 1972, which create the State Board of Bar Commissioners and prescribe its duties and powers, shall stand repealed as of December 31, 2011.
SECTION 66. This act shall take effect and be in force from and after July 1, 2002.