Keeping the Bar raised

June 26, 2011

Business

Disbarring lawyers not a simple matter

Disbarred.

The fall from grace of a number of high-profile ex-attorneys such as Dickie Scruggs and Paul Minor have put that word in numerous headlines of late. Both Scruggs and Minor received felony convictions, which made their disbarment automatic.

Automatic perhaps, but there is a set of rules and processes that dictate how disbarments are handled even if an attorney has committed a crime.

The Supreme Court or a designee of the Court, not The Mississippi State Bar, rules whether or not an attorney may keep his or her right to practice law. The procedure is similar to any other trial, with the Bar having to present its case for disbarment. Often the Bar can find itself on the wrong side of the Court’s decision, forcing it to keep a member the Bar would like to drop from its rolls and take off the streets.

According to Adam Kilgore, general counsel at the Bar, the Bar fields on average approximately 550 complaints annually alleging attorney misconduct and/or unethical behavior. Formal complaints are one of three paths to possible disbarment. The others are conviction of a crime and suspension or disbarment in other jurisdiction outside of Mississippi.

Disbarment is just one possible disciplinary action. The others are a letter of admonition, private reprimand, public reprimand, suspension or disbarment. The attorney may also be referred to the Lawyers and Judges Assistance Committee for evaluation and, as recommended by the Committee, treatment, monitoring and assistance.

Criminal acts and out-of-state suspensions and/or disbarments constitute automatic disbarment. However, attorneys appealing a conviction will have their formal disbarment withheld until all appeals are exhausted. (The Bar can petition for a temporary suspension of the right to practice while the appeal process in ongoing.)

Roughly 60 percent of disbarments in Mississippi are the result of criminal convictions and complaints, with the remainder based on out-of-state disciplinary actions.

On average only five Mississippi lawyers are disbarred each year.

“I’m often asked to go speak before groups about disbarment, and I go in thinking, ‘These people are going to be bored to tears,’” Kilgore said. “But I find people are fascinated by the process and have little or no idea of how it actually works.”

The Board of Commissioners of the Bar has the authority to employ and compensate competent persons to serve as complaint counsel, assistant complaint counsel and non-lawyer staff, who serve at the pleasure of the Board, either in full-time or part-time capacity, as the Board may from time to time deem necessary or advisable to effect the disciplinary procedures. Any matter touching on the misconduct of an attorney licensed by the State of Mississippi or any attorney who renders or has rendered legal services in this state shall be called to the attention of complaint counsel either verbally or in writing.

The complaint counsel keeps a docket of all written complaints, but complaints may not be considered a grievance or charge touching the attorney’s conduct until docketed with the executive director of the Bar by the Committee on Professional Responsibility, which functions as a grand jury in matters of attorney discipline.

Until docketed with the Bar’s executive director, the attorney may state that no complaint, grievance or charge has been filed against him.

Upon receipt of a written complaint or information indicating probable cause, complaint counsel conducts an investigation, either with or without notice to the accused attorney.

To investigate possible disbarment, the Supreme Court appoints a panel of judges and attorneys from each Supreme Court District, and from those panels Complaint Tribunals are designated and constituted as the need arises. The term of office of all panel members is three years, and no panel member can serve more than two consecutive three-year terms.

Each tribunal consists of two attorneys and one judge, and the judge member also serves as the presiding judge of the Tribunal.

Within 10 days following the designation of a Complaint Tribunal, the presiding judge must establish a tentative schedule for discovery, motion hearings and rulings, trial and adjudication, all of which must be completed within 180) days from the date of the designation of the Tribunal, unless extended by the Court on motion of either party for good cause shown.

Unless the presiding judge of the Complaint Tribunal grants an extension, the accused attorney’s answer must be filed within 20 days after a copy of the formal complaint is served.

Attorneys who are disciplined, including those facing disbarment, can appeal. Any notice of appeal has to be filed and served on all opposing counsel within 30 days of the date on which the Tribunal’s judgment was filed with the Clerk of the Court and by paying within that time all sums assessed as costs and expenses.

Disbarred lawyers, except those convicted of a crime, may seek reinstatement. As with disbarments, the Supreme Court rules on reinstatement.

For more on disbarment rules and procedures, visit the Mississippi Supreme Court’s web site at www.mssc.state.ms.us, click “Rules” then choose “Rules of Discipline for the Mississippi State Bar.”

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