Clencie L. Cotton v. The Mississippi Bar
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 1998-BA-01488-SCT
CLENCIE L. COTTON
v.
THE MISSISSIPPI BAR
DATE OF JUDGMENT:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
08/28/1998
COMPLAINT TRIBUNAL
JACK F. DUNBAR
THOMAS J. SUSZEK
WALTER ALAN DAVIS
MICHAEL B. MARTZ
CHRISTINA JACQUELINE KELSEY
CIVIL - BAR MATTERS
DISBARRED - 07/27/2000
8/15/2000; denied 10/5/2000
EN BANC.
PRATHER, CHIEF JUSTICE, FOR THE COURT:
INTRODUCTION
¶1. Attorney Clencie L. Cotton represented Phyllis Evans in a personal injury case arising out of an
automobile accident, and this case was eventually settled. From the settlement money, Cotton deducted
both his attorney's fee and the amount of Evans medical bills, and disbursed the rest to Evans. Thereafter,
Cotton failed to pay the medical bills, and Evans' medical provider sued her to collect payment of those
bills. Cotton eventually paid Evans' bills, and the lawsuit was dropped. Thereafter, Evans filed a Bar
complaint against Cotton with the Mississippi Bar, resulting in a formal complaint being filed by the Bar.
Cotton failed to appear and defend himself in the disciplinary proceedings and was disbarred by the
Complaint Tribunal. He now appeals to this Court, asserting that although some punishment is justified,
disbarment is too harsh.
STATEMENT OF THE CASE
¶2. In 1996, Clencie L. Cotton represented Phyllis Evans in a personal injury case, which was eventually
settled for $10,000. On August 22, 1996, Evans signed the disbursement sheet, and Cotton divided the
$10,000 in the following manner: kept $3,333 as his attorney fee; kept $2,846, the amount of Evans'
medical bills; and disbursed the remaining $3,821 to Evans. However, Cotton never forwarded any part of
that $2,846 to Evans' medical provider (hereinafter "creditor"). According to the Tribunal's Finding of Fact,
the creditor tried to contact Cotton regarding the unpaid medical bills, but Cotton advised them not to
harass him. According to the Assistant General Counsel's Investigatory Report, Cotton could not recall if
the creditor contacted him requesting payment of the medical bills. The creditor eventually turned its account
over to a collection agency, and in January, 1997, Evans was sued in Marshall County Justice Court for the
unpaid medical bills. Because of Justice Court jurisdictional limits, the creditor sued for $2,499 plus $44.00
court costs, for a total of $2,543. Between the time Evans received her summons, until she was to appear in
court on January 28, she could not get in touch with Cotton. Evans called him and left messages several
times during this period, but she never heard back from him. When she appeared in court, she learned that
Cotton had obtained a continuance in her case, although she had not asked him to do so or even spoken to
him about representing her in the creditor's lawsuit. Cotton contacted Evans on February 6, 1997, and
advised her that he had not paid her medical bills because he had used the money for other purposes. He
said that he applied the money towards an unrelated case and office overhead. On February 7, Cotton
obtained a second continuance in the Evans case. Evans still had not asked him to represent her in the
matter. On February 11, Cotton paid the creditor $2,543, and paid Evans $347 (the difference between
the $2,846 initially retained by Cotton for the medical bills and the $2,499 sought in Justice Court by the
creditor). This payment was made from Cotton's regular operating account, as he previously admitted
transferring the $2,846 in question from his escrow account into his regular operating account. As of
February 11, 1997, the dispute between the creditor and Evans was over.
¶3. On October 13, 1997, Evans filed a bar complaint against Cotton which the Mississippi Bar, which he
answered two (2) weeks later. By letter to Evans dated February 17, 1998 (53 weeks after Cotton paid
the outstanding medical bills), Cotton stated that he had received notice that a hearing concerning the
creditor situation was pending before the Bar Committee, and he expressed his regret over the matter. An
investigatory hearing was held on March 2, 1998, and Cotton appeared and testified. A formal complaint
was filed on May 13, 1998, and although Cotton was forwarded a letter stating that a formal complaint was
forthcoming, he failed to return the acknowledgment accompanying said letter. Cotton was served with
process on July 1, 1998, to which he never filed an answer. Cotton subsequently failed to respond to a
August 19, 1998, letter informing him that the Bar was going to file a Motion for Entry of Default against
him. He also failed to respond to Notice of the hearing to consider the Default Motion. The hearing on the
Bar's Motion for Entry of Default was held before the Tribunal on August 28, 1998. As previously
mentioned, Cotton failed to appear at this hearing. Counsel for the Bar stated that they had no knowledge
of Cotton's personal life, and consequently, no idea why he failed to respond to the action being taken
against him. Cotton does not contend that he suffered from diminished mental capacity, or any other
physical or emotional problems in this case. Cotton previously had two (2) complaints filed against him,
however, both were dismissed without any disciplinary action being taken against him. The subject matter
involved in those two (2) prior complaints is unknown. After hearing the evidence presented by the Bar and
prior to handing down its ruling, the members sitting on the Complaint Tribunal tried unsuccessfully to reach
Cotton by telephone. The Tribunal found that Cotton violated the following Mississippi Rules of
Professional Conduct:
MRPC 1.2, providing, in part, that a lawyer shall abide by a client's decisions concerning the
objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as
to the means by which they are to be pursued;
MRPC 1.3, providing that a lawyer shall act with reasonable diligence and promptness in representing
a client;
MRPC 1.4, providing that a lawyer shall keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information, and a lawyer shall explain a
matter to the extent reasonably necessary to permit the client to make informed decisions regarding
the representation;
MRPC 1.15, which sets out the conditions for a lawyer holding property for a client; and
MRPC 8.4 (a) and (d), providing that it is professional misconduct for a lawyer to violate or attempt
to violate the rules of professional conduct, to engage in conduct involving dishonesty, fraud, deceit or
misrepresentation, or to engage in conduct that is prejudicial to the administration of justice.
The Tribunal granted the Default Judgment, and recommended to this Court that Cotton be disbarred.
¶4. In appealing to this Court, Cotton admits that he erred in transferring the settlement money from his
escrow account to his general operating account. He further admits that he failed to pay Evans' medical bills
in a timely manner. However, Cotton claims that these things occurred out of simple negligence and raises
the following issue for this Court's consideration:
Although some form of punishment is appropriate in this situation, the imposition of
disbarment, the ultimate sanction in a Bar disciplinary proceeding, is too harsh under the
facts of this case
LEGAL ANALYSIS
¶5. "This Court has exclusive jurisdiction of matters pertaining to attorney discipline and reinstatement, and
this Court is the ultimate judge of matters arising under the Rules of Discipline for the Mississippi Bar."
Broome v. Mississippi Bar, 603 So.2d 349, 354 (Miss. 1992). When reviewing disciplinary matters this
Court, "reviews the evidence de novo, on a case-by-case basis, sitting as triers of fact, and no substantial
evidence or manifest error rule shields the Tribunal from scrutiny." Asher v. Mississippi Bar, 661 So.2d
722, 727 (Miss. 1995) (quoting Underwood v. Mississippi Bar, 618 So.2d 64, 66-67 (Miss. 1993)).
"[This] Court may impose sanctions either more or less severe than the Complaint Tribunal...." Broome,
603 So.2d at 353 (citing Mississippi State Bar v. Strickland, 492 So.2d 567 (Miss. 1986)).
¶6. In Pitts v. Mississippi State Bar Ass'n, 462 So.2d 340, 343 (Miss. 1985), this Court stated the
following:
The theory behind punishment imposed as the result of Bar disciplinary proceedings is that the
punishment, like a criminal sanction, serves a three-fold purpose. First, there is the obvious intent to
punish the wrongdoer to the degree that the sanction is appropriate for the offense. Secondly, many
theories on the role of sanctions recognize their utility as a deterrence to further violations both on the
part of the immediate offender and the general community. Finally, sanctions have a definite role in
reinforcing the confidence of the general public in the ability of society to govern itself. This third role is
particularly important in regard to Bar disciplinary proceedings because our profession assumes the
responsibility of governing its members. Therefore, public confidence and faith in the integrity of the
entire Bar is dependent upon our willingness to impose appropriate sanctions on our members who
have violated the Code of Professional Responsibility.
¶7. Our case law has established that the following criteria be used in determining what sanctions to impose
in an attorney discipline case:
1. the nature of the misconduct involved;
2. the need to deter similar misconduct;
3. the preservation of the dignity and reputation of the profession;
4. the protection of the public;
5. the sanctions imposed in similar cases;
6. the duty violated;
7. the lawyer's mental state;
8. the actual or potential injury resulting from the misconduct; and
9. the existence of aggravating or mitigating factors.
Rogers v. Mississippi Bar, 731 So.2d 1158, 1171 (Miss. 1999).
The duty violated
The nature of the misconduct involved
¶8. The Tribunal found that Cotton (1) failed to abide by Evans' decisions related to her personal injury
claim and obtained continuances in her Justice Court case without her consent (MRPC 1.2), (2) failed to
exercise reasonable diligence in handling Evans' personal injury case (MRPC 1.3), (3) failed to keep Evans
reasonably informed about her personal injury case (MRPC 1.4), (4) failed to properly handle funds related
to Evans' personal injury case (MRPC 1.15), and (5) committed professional misconduct by violating the
rules of professional conduct (MRPC 8.4 a,c,d). Although none of these violations are insignificant, the
most serious violation committed by Cotton was his improper handling of the settlement money. He
acknowledged transferring the money for the medical bills from his escrow account to his general operating
account. He also acknowledged his failure to pay those medical bills in a timely manner. Additionally,
through the testimony of Evans, the Complaint Tribunal heard evidence that Cotton used this money for
purposes related to his law practice, but unrelated to Evans' case. When Cotton finally paid the medical
bills, the funds used for said payment came from his general operating account.
¶9. "Generally, violations of Rule 1.15 (b) are found where an attorney has commingled, converted, or
otherwise mishandled a client's money." Mathes v. Mississippi Bar, 637 So.2d 840, 847 (Miss. 1994).
"The moment a lawyer succumbs to a temptation to appropriate for his own use any of his client's money
entrusted to his safekeeping is the moment he shows his unfitness to be a practicing lawyer. Such a
character flaw should not be tolerated. Acts such as [Cotton's] cannot be tolerated by members of our
profession." Mississippi State Bar v. Odom, 566 So.2d 712, 716 (Miss. 1990). The mishandling of a
client's money by an attorney has often been referred to as the "cardinal sin" for lawyers.
The need to deter similar misconduct
The preservation of the dignity and reputation of the profession
The protection of the public
¶10. In Pitts, this Court held that two of the three purposes behind punishment in Bar disciplinary matters is
to deter future misconduct similar to that at hand, and to preserve the reputation of the profession in the
eyes of the public. Obviously there is an important need in protecting the public from the type of misconduct
present in this case, and one way to do that is to levy penalties in situations like this which will deter future
conduct of a like character.
The lawyer's mental state
¶11. As previously mentioned, the Bar has no information regarding Cotton's personal life, including his
financial situation, any substance abuse problems, or his mental state. Cotton does not contend that he
suffered from diminished mental capacity or any other physical or emotional problems in this case.
The existence of aggravating or mitigating factors
The actual or potential injury resulting from the misconduct
¶12. As Cotton failed to appear before the Complaint Tribunal, the record is void of any mitigating factors
in his favor. However, he may present such factors for the first time to this Court, as the Supreme Court
may consider mitigation evidence not presented to a Complaint Tribunal. Vining v. Mississippi State Bar
Ass'n, 508 So.2d 1047 (Miss. 1987).
¶13. Prior to this case, Cotton had never been disciplined by the Bar. "The ABA Standards do list the
absence of a prior disciplinary record as a mitigating factor, ABA Standard 9.32 (a), but the presence of
prior disciplinary offenses is listed as an aggravating factor, Standard 9.22 (a). Thus, this mitigating factor is
not especially strong since it consists in the mere absence of a certain aggravating factor." Foote v.
Mississippi State Bar Ass'n , 517 So.2d 561, 565 (Miss. 1987).
¶14. By paying the medical bills owed to the creditor and forwarding the remaining money to Evans, Cotton
eventually made restitution to all parties in this case. This situation is similar to that in Clark, where this
Court stated "[t]he appellant further argues that the conservatorship suffered no loss because all principal
and interest had been restored to the estate. However, restitution by an attorney of funds previously
misappropriated does not mitigate the offense, particularly where the restitution has been made under
pressure." Clark v. Mississippi State Bar Ass'n, 471 So.2d 352, 357 (Miss. 1985) (citing In re Smiley,
286 Ala. 216, 238 So.2d 716 (1970)).
¶15. Cotton made no attempt to mislead the Bar or any Court, and he has candidly admitted his mistakes in
this matter. "Under the ABA Standards, full and free disclosure to the disciplinary board or cooperative
attitude toward the proceedings is a mitigating factor, Standard 9.32 (e), and bad faith obstruction of the
disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency is an
aggravating factor, Standard 9.22 (e)." Foote, 517 So.2d at 565. However, "the mere absence of an
attempt by the attorney to mislead the Bar or the Court as to what was done, particularly where there is a
default judgment, is a neutral factor." Id.
The sanctions imposed in similar cases
¶16. "The commingling and misappropriation of clients' funds is a grave breach of professional duties, and
has been held, under some circumstances, to justify disbarment." The Mississippi Bar v. Gardner, 730
So.2d 546, 548 (Miss. 1999). Previously, this Court has imposed penalties of both suspension and
disbarment for conduct similar to that in the case sub judice.
¶17. In Mississippi State Bar Ass'n v. Strickland, 492 So.2d 567 (Miss. 1986), an attorney
represented an estate in a lawsuit, eventually obtaining a judgment of nearly $40,000 in favor of the estate.
Rather than collecting his attorney fee and disbursing the remaining proceeds to the estate, Strickland kept
all the money, deposited it into his personal account, and used it for personal expenditures. The estate
eventually obtained a judgment for $24,000 against Strickland (the lawsuit proceeds minus attorney fees),
but Strickland failed to pay said judgment. The estate then filed a summary motion seeking payment of the
$24,000, to which Strickland responded with a Motion to Dismiss. In support of his Motion to Dismiss,
Strickland presented to the court a forged memorandum which purportedly assigned all of the lawsuit
proceeds to him. Strickland finally paid the judgment fifteen (15) months after it was issued. For
misappropriating client funds, inexcusably failing to satisfy a judgment in a timely manner, and attempting to
perpetrate a fraud on the court, Strickland was suspended from the practice of law for three (3) years. In
so ruling, this Court recognized the following as mitigating factors in Strickland's favor: (1) he suffered from
alcoholism, (2) he had marital problems, (3) he served honorably in the Korean Conflict, (4) he had
previously served as a public official of this state without incident.
¶18. In Mississippi State Bar v. Odom, 566 So.2d 712 (Miss. 1990), an attorney represented the coexecutrices (who were also the sole devisees) of an estate which had, as its primary asset, the residence of
the decedent. The chancery court approved the sale of the residence, and ordered that after the expenses
of the sale were paid off, Odom was to establish a trust account and deposit the remaining proceeds
therein. However, upon receiving a check for over $45,000 from the sale, Odom deposited the money in
his already existing non-trust account. From this account, Odom paid personal expenses, as well as
business expenses not related to the estate. Odom subsequently presented the co-executrixes with an
"accounting sheet" which showed the estate to have a final value of $28,234, and on that same day, wrote
them each a check for $14,117. The checks were drawn on the same non-trust account in which the sale
proceeds were originally deposited, but the account was overdrawn by $55.03 when the checks were
written. Using the pretext of needing to get court approval for the disbursement, but knowing that the
checks would not be honored because of insufficient funds, Odom asked the co-executrices to hold the
checks for a couple of weeks before cashing them. One of the co-executrices ignored Odom's request, and
upon cashing her check, it was dishonored for insufficient funds. For failing to abide by the chancery court's
order regarding the establishment and use of a trust account, commingling and misusing the estate's funds,
misleading his clients with regard to needing court approval of disbursement of their inheritance, and
knowingly writing bad checks, this Court, in a 5-3 decision, suspended Odom from the practice of law for
three (3) years.
¶19. In Reid v. Mississippi State Bar, 586 So.2d 786 (Miss. 1991), an attorney represented some of the
heirs of Muriel Reagan, who was payee of a promissory note. During her lifetime, Reagan received monthly
payments under the promissory note; however, after her death, the makers of the note wished to pay off the
remaining balance with a lump sum payment. On February 14, 1986, the makers paid off the promissory
note by delivering a check for $10,362.45 to Reid, which he deposited into his trust account. On February
28, 1986, his trust account had a balance of $3,904.41, although he had, as of that date, not distributed any
of the $10,362.45 to Reagan's heirs. On July 8, 1986, Reid mailed separate checks, drawn on his trust
account, to each of Reagan's heirs. One of the checks was deposited and returned because of insufficient
funds, and that heir finally received her money approximately three (3) weeks later. Reid subsequently
admitted using the Reagan heirs' money for his own purposes. Notwithstanding that Reid had previously
never been the subject of a Bar complaint, and that he admitted his mistakes and expressed remorse, this
Court ruled that he be disbarred for the unauthorized conversion of funds from his trust account.
¶20. In Foote v. Mississippi State Bar Ass'n, 517 So.2d 561 (Miss. 1987), Foote served as the closing
attorney for the sale of real property. The buyer presented Foote a check for $15,976, which included $10,
396, the payoff of the First Deed of Trust on the property. Foote gave the sellers their share of the
proceeds, keeping the $10,396 with the agreement that he would pay off the mortgage on the property.
Several months later, the buyer attempted to sell the property, only to learn that the mortgage had yet to be
paid off. Upon his discovery, the buyer and his real estate agent repeatedly called Foote, but none of their
calls were ever returned.
¶21. The buyer was forced to pay off the mortgage himself, for which Foote eventually reimbursed him.
Noting that there were no mitigating factors in Foote's favor, this Court ordered that he be disbarred for
misusing his client's funds.
CONCLUSION
¶22. In prior cases dealing with an attorney's misusing client funds, this Court has imposed as punishment
either a three (3) year suspension or disbarment. Recognizing that there is precedent supporting either
sanction being handed down in the case sub judice, this Court finds that Cotton should be disbarred for his
actions in dealing with Evans. The fact that Cotton had not previously been disciplined by the Bar is not an
especially strong mitigating factor and that he eventually made restitution to all parties involved is not a
mitigating factor at all. Additionally, the fact that he made no attempt to mislead the Bar or this Court, and
that he candidly admitted his errors, is also not a mitigating factor in his favor. Therefore, no significant
mitigating factors weigh in Cotton's favor.
¶23. Under Odom, Cotton's fitness to practice law became questionable once he converted his client's
funds for his own use. That he made no attempt to defend himself once the Bar filed a formal complaint
raises additional concerns regarding his fitness to practice law. If he does not tend to his own legal matters,
will he tend to the legal matters of his clients? In the case of Evans, he did not. Therefore, disbarment is the
sanction which would most appropriately punish Cotton, deter attorneys from acting in the same manner in
the future, and restore public confidence in the Bar. Accordingly, this Court adopts the recommendation of
the Complaint Tribunal and disbars Clencie L. Cotton from the practice of law in the State of Mississippi.
¶24. CLENCIE L. COTTON IS HEREBY DISBARRED FROM THE PRACTICE OF LAW
AND SHALL PAY ALL COSTS.
PITTMAN, P.J., MILLS, WALLER, COBB AND DIAZ, JJ., CONCUR. McRAE, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION. BANKS, P.J., AND SMITH, J.,
NOT PARTICIPATING.
McRAE, JUSTICE, DISSENTING:
¶25. While the majority admits that Clencie L. Cotton ("Cotton") has not previously been disciplined(1), has
made restitution to all parties involved and has candidly admitted all of his errors, it appears to give
unwarranted weight to the fact that Cotton made no attempt to defend himself against the allegations found
in the complaint at the default judgment hearing.(2) However, "involvement in the bar proceedings" is not a
factor enumerated by this Court to be considered in attorney misconduct cases. In fact, in Vining v.
Mississippi State Bar, 508 So.2d 1047, 1048 (Miss. 1987), this Court dismissed the contention that an
attorney was being "punished for his failure to appear before the Complaint Tribunal rather than his neglect
of his client's case" and imposed a six-month suspension. While some type of punishment is in order, I
would suspend for three years rather than disbar. Accordingly, I dissent.
¶26. The Complaint Tribunal found that Cotton violated rules of conduct set out in the MRPC, granted a
default judgment against Cotton and recommended to this Court that he be disbarred. While Cotton admits
to transferring settlement funds from a client's ("Evans") escrow account into his own operating account and
failing to pay Evans's medical bills in a timely manner, he argues that these occurrences took place due to
simple negligence and that the imposition of disbarment is too harsh.
¶27. This is not a case of fraud or open and outright deception. Instead, Cotton is only guilty of acts of
inadvertence which do not justify disbarment, especially in the absence of prior bar discipline. Cotton
willingly admitted that he was negligent in failing to pay the medical care provider in time and freely did so
when notice was given. The majority cannot and has not disputed the fact that this Court has consistently
imposed sanctions less than disbarment in cases of simple neglect and inadvertence. See, Mississippi Bar
v. Pels, 708 So.2d 1372, 1377 (Miss. 1998)(single instance of commingling of funds warranted only a 30
day suspension); Mathes v. Mississippi State Bar, 637 So.2d 840, 842 (Miss. 1994)(attorney's failure
to timely pay $1,215.52 of client funds to third party justified six month suspension from the practice of
law); Hall v. Mississippi State Bar, 631 So.2d 120, 127 (Miss. 1993)(90 day suspension warranted
where lawyer's inattentiveness to case resulted in $9,768.07 judgment against client); Pitts v. Mississippi
State Bar Ass'n, 462 So.2d 340 (Miss. 1985)(30 day suspension and public reprimand where attorney
failed to account for client funds and misrepresent to client and the court the location of funds).
¶28. In the present case, Cotton sent a letter to the Tribunal before the effective date of disbarment which
read as follows:
Dear Judge Richardson,
I am in receipt of the Default Judgment with respect to the above mentioned matter and do not
contest the Default Judgment. I have contacted Ms. Kelsey, the Assistant General Counsel, to request
that I be allowed to make a very brief presentation to yourself and the Committee prior to the
imposition of discipline.
I have not chosen to waste your and the committee's time contesting the allegations of the pleadings
because they are essentially true. Nevertheless, it was never my intention not to pay Dr. Medlin the
monies withheld from Mrs. Evans' settlement and would never have allowed this matter to go on in the
Justice Court were we able to make contact with each other concerning those proceedings.
I am very much aware of the things that I did wrong with regard to communicating with my client as
well as misuse of the Trust Account.
I have, since this matter arose, begun to structure my practice and improve my office procedures,
such that this problem should not happen again in the future.
I would request the opportunity to appear personally before your committee prior to your imposition
of discipline in this case, if at all possible.
¶29. Over one week later, the Tribunal executed its opinion and order recommending Cotton's disbarment.
The above letter makes it clear that, while Cotton did not wish to contest the allegations against him, he also
did not understand that punishment was to be imposed at the default judgment hearing. Cotton was not
alone in this thinking. A member of the Tribunal was himself not certain of the scope of the proceeding and
was forced to ask, "What's the consequence of the motion for default? Do we decide the punishment [now]
. .?"
¶30. What Cotton did desire to do was to address the Tribunal regarding punishment. He was never given
that opportunity. While I agree that we should strive to gain public confidence in the Bar and that some
form of punishment is warranted in this case, the majority's implication that Cotton committed fraud or some
other similar offense is unfounded. Instead, Cotton, admittedly due to his own negligence, inadvertently
failed to pay a bill and did not catch his error for a five-month period. Upon learning of his mistake Cotton
rectified the situation. What else did this Court expect Cotton to do? Such actions warrant a suspension, but
not disbarment. Accordingly, I dissent.
1. Cotton has practiced law in Holly Springs, Mississippi, for over ten years and during that time has never
been the recipient of Bar sanctions.
2. "If he does not tend to his own legal matters, will he tend to the legal matters of his clients?"
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