Barrett B. Daly v. The Mississippi Bar
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2010-BR-00716-SCT
BARRETT B. DALY
v.
THE MISSISSIPPI BAR
DATE OF JUDGMENT:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
03/02/2007
PRO SE
ADAM B. KILGORE
CIVIL - BAR MATTERS
REINSTATEMENT CONDITIONALLY
GRANTED - 01/20/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CHANDLER, JUSTICE, FOR THE COURT:
¶1.
A complaint tribunal suspended Barrett B. Daly from the practice of law in
Mississippi for three years. Daly petitions this Court for reinstatement to the practice of law
pursuant to Rule 12 of the Rules of Discipline of the Mississippi State Bar. The Bar has filed
a motion to dismiss the petition. The Court finds that Daly has proven by clear and
convincing evidence that he has rehabilitated himself and is worthy of reinstatement to the
practice of law. Therefore, we grant the petition for reinstatement conditional upon Daly’s
taking and passing the Mississippi Bar Examination as ordered by the complaint tribunal.
FACTS
¶2.
On March 5, 2007, a complaint tribunal appointed by this Court suspended Daly from
the practice of law for a period of three years. See The Mississippi Bar v. Barrett B. Daly,
cause no. 2005-B-2168.
The suspension resulted from Daly’s omissions during his
representation of a client and from his failure to fulfill certain requirements imposed on him
in a prior disciplinary matter.
Pursuant to Rule of Discipline 12, Daly now seeks
reinstatement to the practice of law.
¶3.
This matter began when attorney David K. Lukinovich filed an informal complaint
against Daly that alleged violations of the Mississippi Rules of Professional Conduct
concerning Daly’s handling of a probate matter. The Bar filed a formal complaint against
Daly on November 22, 2005. When Daly failed to appear at his trial on September 15, 2006,
the complaint tribunal set the matter for trial on January 26, 2006, and referred Daly to the
Lawyers and Judges Assistance Program (LJAP) for evaluation of physical and mental
impairment raised in his pleadings. On January 12, 2007, Daly signed a contract with the
LJAP.
¶4.
The trial occurred on January 26, 2007, with Daly present. After the trial, the
complaint tribunal found the following. The Louisiana law firm of David K. Lukinovich had
hired Daly for an ancillary Mississippi probate matter. Daly was supposed to transfer
mineral rights from the estate of Joseph B. Storey, Sr., to individuals named in Storey’s will.
Daly did prepare and file documents for the estate in chancery court. However, the tribunal
found that the chancery court file contained no evidence that Daly had obtained proof of
publication of the notice to creditors for the estate after the court had entered an order
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accepting the will for probate and had directed the clerk to issue letters testamentary.1 The
tribunal further found that Daly had failed to communicate with the Lukinovich law firm
concerning the estate after August 31, 2005. Consequently, the estate was forced to
terminate Daly and hire substitute counsel to complete the probate case. The tribunal also
found that Daly had failed to cooperate with his client and had made no effort to protect the
interests of his client after the estate had terminated Daly’s representation. In his trial
testimony, Daly maintained that the reasons for his omissions concerning the estate were that
he had emotional problems, had family problems and had lost two homes and two offices in
Hurricane Katrina, and, in particular, had allowed himself to become overburdened by his
duties toward his primary client.
¶5.
The complaint tribunal also considered Daly’s prior disciplinary action, which had
resulted in a sixty-day suspension. One of the terms of suspension imposed on Daly had
been to notify his current clients and all courts, agencies, and adverse parties in any
proceeding in which he was involved of the suspension pursuant to Rule of Discipline 11(c).
Daly was to file an affidavit with this Court attesting that he had made the required
notifications. The complaint tribunal found that the affidavit which Daly had filed in this
Court was false because, while Daly attested that he had made the required notifications, in
fact he had not made the required notifications. The complaint tribunal found that Daly’s
filing of the false affidavit was at least gross negligence. The complaint tribunal also noted
that Daly had failed to respond to Lukinovich’s informal complaint, that he had knowingly
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Daly has submitted documentation to the Bar that showed the notice to creditors
actually had been published in the local newspaper.
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failed to attend the investigative hearing, and that he had a history of noncompliance with the
bar disciplinary process.
¶6.
As a result of Daly’s actions, the complaint tribunal concluded that Daly should have
discipline imposed on him in the form of a three-year suspension. The complaint tribunal
required Daly, subsequent to the time of eligibility for reinstatement, to submit certificates
from a psychiatrist and a medical doctor stating that he is mentally and physically able to
practice law. The complaint tribunal stated that Daly’s choice of psychiatrist and medical
doctor was subject to the approval of the LJAP. However, the complaint tribunal stated that
it did not require Daly to remain under contract with the LJAP. The complaint tribunal
required Daly to file an affidavit with this Court within thirty days stating he had notified all
present clients of his suspension, as well as all courts, agencies, and adverse parties in any
proceeding in which he was presently involved.
¶7.
The complaint tribunal also required Daly, subsequent to the time of his eligibility for
reinstatement, to take and pass the Mississippi Bar Exam (MBE) and the Mississippi
Professional Responsibility Exam (MPRE). Daly has submitted proof that he has taken and
passed the MPRE. He states that, although he applied to take the July 2010 MBE, the
Mississippi Board of Bar Admissions would not allow him to sit for the exam without a
reinstatement order from this Court.
Daly requests that this Court either waive the
requirement that he take and pass the MBE, or issue an order allowing him to take the MBE.
DISCUSSION
¶8.
This Court has “exclusive and inherent jurisdiction of matters pertaining to attorney
discipline [and] reinstatement . . . .” M.R.D. 1(a). Under Rule 12 of the Rules of Discipline
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for the Bar, an attorney suspended for six months or longer must petition this Court for
reinstatement. M.R.D. 12(a). We review petitions for reinstatement de novo. In re Prisock,
5 So. 3d 319, 322 (Miss. 2008) (quoting In Re Baldwin, 890 So. 2d 56, 58 (Miss. 2003)).
On review, this Court sits as a trier of fact, and is not bound by substantial-evidence or
manifest-error rules. Id. “In determining whether to grant reinstatement, ‘[t]he Court's
fundamental inquiry is whether [the attorney] has rehabilitated himself in conduct and
character since the suspension was imposed.’” In re Asher, 987 So. 2d 954, 958 (Miss.
2008) (quoting In re Steele, 722 So. 2d 662, 664 (Miss. 1998)).
¶9.
An attorney must meet five jurisdictional requirements before he or she may be
reinstated under Rule 12. In Re Benson, 890 So. 2d 888, 890 (Miss. 2004). An attorney
must:
(1) state the cause or causes for suspension or disbarment; (2) give the name
and current address of all persons, parties, firms or legal entities who suffered
pecuniary loss due to the improper conduct; (3) make full amends and
restitution; (4) show that he has the necessary moral character for the practice
of law; and (5) demonstrate the requisite legal education to be reinstated to the
privilege of practicing law.
Id. “In cases of suspension pending satisfaction of conditions precedent, reinstatement shall
not be permitted except upon proof that the conditions have been met.” M.R.D. 12.2. The
attorney petitioning for reinstatement has the burden to prove by clear and convincing
evidence that he has rehabilitated himself and possesses the requisite moral character to
entitle him to reinstatement to the practice of law. Prisock, 5 So. 3d at 322. Although the
Bar’s support is not a jurisdictional requirement, this Court also considers the position of the
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Bar as to reinstatement in determining whether to grant or deny the petition. Benson, 890
So. 2d at 890.
¶10.
In the Bar’s motion to dismiss Daly’s petition, the Bar contends that Daly failed to
meet two jurisdictional requirements and failed to satisfy the conditions precedent for
reinstatement. After considering each jurisdictional requirement, followed by the conditions
precedent, we find Daly has proven he has rehabilitated himself and possesses the requisite
moral character for reinstatement to the practice of law.
A. Jurisdictional requirements
(1) State the cause or causes for suspension or disbarment.
¶11.
Daly filed a petition followed by six supplemental and amended petitions. The Bar
contends that Daly did not state the cause or causes for his suspension in the petition. It is
true that Daly’s initial petition did not provide the meaningful detail about the cause or
causes for his suspension that is required for reinstatement. The petition stated Daly was
suspended by a complaint tribunal, that the matter arose from an informal complaint by
Lukinovich regarding Daly’s handling of the Storey estate, and listed the Rules of
Professional Responsibility which the complaint tribunal had found Daly to have violated.
¶12.
This Court has held that the mere mention of the act for which the attorney was
suspended is insufficient. Benson, 890 So. 2d at 890. Rather, the attorney must provide a
clear description of the improper conduct that led to the suspension. Id. The Court finds
that, although the cause or causes for the suspension stated in the initial petition were
insufficient, Daly’s Fifth Supplemental and Amended Petition for Reinstatement provided
a clear description of the causes of his suspension for misconduct in the representation of the
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Storey estate. This description stated: (1) the documents which Daly had been hired to file;
(2) that he had failed to complete the work for which he had been hired; (3) that the Estate
had to hire another law firm to complete the work; (4) that Daly had made a false
representation to the complaint tribunal and this Court by filing a false affidavit attesting that
he had notified all clients, opposing counsel, courts and agencies that he was unable to
practice law from June 16, 2004, through August 14, 2004; and (5) that, regarding the Estate:
(a) I failed to abide by the client’s decisions concerning the objectives of
representation.
(b) I failed to act with reasonable diligence and promptness in representing the
Estate of Storey.
(c) I failed to communicate with the Estate of Storey.
(d) I made a false statement of material fact to the Complaint Tribunal and this
Court with respect to the affidavit I filed in cause number 2004-B-151.
Daly further stated: “I did not cooperate with the Bar concerning the informal Bar complaint
filed by Mr. Lukonovich. I did not respond to the informal Bar complaint. I did not attend
the investigatory hearing.”
¶13.
The Court finds that, while Daly’s initial petition did not include a sufficient statement
of the cause or causes of his suspension, Daly cured the problem with a supplemental and
amended petition that provided a detailed summary of the causes of his suspension. This
Court previously has considered the contents of supplemental petitions for reinstatement in
determining whether the jurisdictional requirements were met. See In re Reinstatement of
Hodges, 19 So. 3d 656, 660-61 (Miss. 2009). Therefore, we find that Daly has fulfilled this
requirement.
(2) Give the name and current address of all persons, parties, firms or
legal entities who suffered pecuniary loss due to the improper conduct.
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¶14.
The petition states that there was no suggestion of pecuniary loss in this case. At the
hearing, the complaint tribunal found that no actual damages were suffered by Daly’s client.
Indeed, nothing in the record indicates that any person, party, firm, or legal entity suffered
pecuniary loss as a result of Daly’s improper conduct. Therefore, the Court finds that Daly
has fulfilled this jurisdictional requirement.
(3) Make full amends and restitution.
¶15.
The complaint tribunal required Daly to pay, if not already paid, $41.27 previously
assessed by the Committee on Professional Responsibility within thirty days of the entry of
the judgment. Further, the complaint tribunal ordered Daly to pay all costs and expenses
associated with the litigation of the formal complaint, with the costs and expenses to be
determined at a later date upon application of the Bar, and payable by Daly thirty days after
the entry of the order for costs and expenses. In the petition, Daly states that he already has
paid the $41.27 assessed by the Committee on Professional Responsibility. He attaches a
bank account statement showing the check has cleared. Daly also states that, although the
complaint tribunal has not entered an order of costs and expenses, he will pay the amount
assessed within thirty days of the entry of the order. The Bar does not dispute that Daly’s
petition has satisfied this requirement, and the Court finds that Daly’s petition meets this
jurisdictional requirement.
4) Show that he has the necessary moral character for the practice of law.
¶16.
Daly submitted seven letters from attorneys recommending his reinstatement,
including one letter from the complainant, Lukinovich. Each letter states that the writer
personally knows that Daly has the moral character to practice law, and that Daly has learned
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not to take on projects that he does not have the time to fulfill. Daly also submitted his own
affidavit, attesting that he regularly attends church with his family and assists at his son’s
school. Daly states that he thinks of his past mistakes every day, truly regrets his mistakes,
and is greatly sorry for his mistakes.
¶17.
Daly bears the burden to prove by clear and convincing evidence that he is
rehabilitated and possesses the requisite moral character to practice law. Prisock, 5 So. 3d
at 323-24. The Bar contends that Daly did not show that he possesses the necessary moral
character to practice law.
The Bar argues that Daly’s submission of six letters of
recommendation “does not demonstrate a ringing endorsement” of Daly’s reinstatement.2
However, this Court does not require a minimum number of letters as a prerequisite to
reinstatement. See Wong v. The Mississippi Bar, 5 So. 3d 369, 372-74 (Miss. 2008) (this
Court conditionally granted Wong’s petition for reinstatement after finding that Wong was
rehabilitated; the petition included three letters of recommendation). The Bar also points out
that Daly has not performed any community service, and his own affidavit is the only proof
of his attendance at church and assisting at his son’s school.
¶18.
As evidence of moral unfitness, the Bar also points to Daly’s accusations against the
LJAP in the misunderstanding over the termination of his LJAP contract. Daly explains this
dispute in the petition, and he has attached associated documentation. On September 18,
2006, the complaint tribunal entered an order requiring Daly to enter into a contract with the
LJAP. Daly signed a contract with the LJAP on January 12, 2007. But at the January 26,
2
Daly submitted a seventh letter after the Bar’s motion to dismiss.
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2007 trial, the complaint tribunal relieved Daly of his LJAP contract. However, the
complaint tribunal’s order failed to recite that Daly was relieved of his LJAP contract.
Apparently, the LJAP was not notified that Daly had been relieved of his LJAP contract.
Accordingly, on August 6, 2008, the LJAP sent Daly a letter stating that he was out of
compliance with his LJAP contract.
¶19.
Daly attempted to obtain the LJAP’s approval of his certifications from a medical
doctor and a psychiatrist that he was medically and mentally able to practice law, as required
by the order of the complaint tribunal as a prerequisite to his reinstatement. He submitted
a letter from his treating psychiatrist, Dr. Alvin M. Rouchell of Ochsner Health System,
certifying that he is mentally able to practice law, and a letter from his treating physician, Dr.
Robert Miles, also of Ochsner, certifying that he is physically able to practice law. On April
2, 2010, he e-mailed a copy of the certifications and the physicians’ biographies to the
director of the LJAP, Betty Daugherty. On April 20, 2010, Dr. Rouchell sent a letter to the
LJAP that elaborated on his treatment of Daly and opined that Daly had no psychiatric
impediments to practicing law. But on April 22, 2010, Daugherty sent a letter to Daly’s
counsel denying the request for approval of his choice of psychiatrist and medical doctor.
The fundamental reason for the denial was that Daugherty believed Daly to be out of
compliance with his LJAP contract.
¶20.
On April 26, 2010, Daly sent a seventeen-page response letter to the LJAP, and copied
the staff of the LJAP, the committee members of the LJAP, all attorneys in the Office of
General Counsel, and the Executive Director of the Mississippi Bar. In the letter, Daly took
issue with Daugherty’s refusal to approve his choice of physicians. Daly complained that,
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on April 9, 2010, an attorney with the LJAP had e-mailed him an assurance that his
physicians were qualified to treat Daly and to opine as to his fitness. Daly expressed
frustration with the LJAP’s failure to acknowledge that he had been relieved of his LJAP
contract, and with the fact that he was forced to purchase a trial transcript for $2,000 in order
to prove that the tribunal had relieved him of the LJAP contract. Although the Bar cites
Daly’s conduct in this matter as evidence of his unfitness, the record reflects that the LJAP
misunderstood Daly’s status through no fault of Daly. Considering the entirety of Daly’s
petition and attachments, we find that Daly’s expressions of frustration with the LJAP are
no impediment to his reinstatement to the practice of law.
¶21.
Daly has submitted seven letters of recommendation, including one from the same
attorney who filed the informal complaint that culminated in his three-year suspension. Daly
has sworn that he has attended church and volunteered at his child’s school. He has
thoroughly acknowledged his misconduct and expressed remorse. We find that Daly’s
petition meets the jurisdictional requirement of proving by clear and convincing evidence
that Daly is rehabilitated and possesses the requisite moral character to practice law.
(5) Demonstrate the requisite legal education to be reinstated to the
privilege of practicing law.
¶22.
“[A]ttorneys who eventually wish to be reinstated have a responsibility to show a
continuing commitment to staying informed and competent in the practice of law.” In re
Benson, 890 So. 2d at 891. In the petition, Daly stated that between January 8, 2007, and
March 23, 2010, he completed 77.5 hours of continuing legal education. He stated that, since
before January 26, 2007, he regularly has read new state and federal caselaw and statutes,
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and has kept abreast of developing patent law and tax law. In Daly’s Sixth Supplemental and
Amended Petition for Reinstatement, he averred that he had attended an additional 7.5 hours
of continuing legal education. Attachments to the petition and sixth supplemental petition
documented his completion of continuing legal education in areas including estate planning
and tax law. The Bar does not dispute that Daly has met this requirement. The Court finds
that Daly has met this jurisdictional requirement.
B. Conditions precedent
¶23.
Rule 12.2 states “[i]n cases of suspension pending satisfaction of conditions precedent,
reinstatement shall not be permitted except upon proof that the conditions have been met.”
The Bar contends that Daly has failed to comply with the condition precedent of filing
affidavits in this Court within thirty days of his suspension stating he has notified all clients,
courts, agencies and adverse parties of his suspension. In his petition, Daly admits he never
filed the required affidavits. He points out that he testified under oath at the trial that he had
no Mississippi clients and was not involved in any lawsuits in Mississippi. He states that the
reason he did not file the required affidavits was that, because he had no Mississippi clients
or cases, he was unable truthfully to swear that he had made the required notifications. The
Court finds that, while it would have been preferable for Daly to have filed an affidavit
attesting that he was not involved in any Mississippi cases, Daly’s failure to do so is not fatal
to his petition for reinstatement.
¶24.
The Bar also points out that Daly has failed to submit certifications from a psychiatrist
and a medical doctor who have been approved by the LJAP stating he is mentally and
physically able to practice law.
As previously noted, Daly attached the required
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certifications from a psychiatrist and a medical doctor, but the LJAP did not approve his
choices because the LJAP erroneously found that Daly was in breach of an LJAP contract.
Daly has filed a “Motion to Deem Petitioner’s Choice of Psychiatrist and Medical Doctor
Approved by the LJAP.” We observe that Daly’s psychiatrist, Dr. Rouchell, is the chairman
of psychiatry at Ochsner Health System, and his physician, Dr. Miles, is also with Ochsner.
Certainly, these physicians are well-qualified to opine on Daly’s mental and physical fitness
to practice law. We grant Daly’s motion, and find that Daly has satisfied the requirement
that he submit medical certifications on his mental and physical fitness to practice law.
¶25.
Finally, we address the requirement that Daly take and pass the MBE. Daly avers that
the Mississippi Board of Bar Admissions prevented him from sitting for the MBE without
a reinstatement order from this Court.
We note that, while taking the MPRE is an
examination requirement of an attorney suspended for six months or longer, the Mississippi
Rules of Discipline do not require such an attorney to take the MBE. See M.R.D. 12.5.
Rather, the complaint tribunal imposed this additional requirement, which we deem
appropriate in this case. Therefore, we order the Mississippi Board of Bar Admissions to
allow Daly to sit for the MBE.
CONCLUSION
¶26.
This Court holds that Daly’s petition meets the jurisdictional requirements for
reinstatement to the practice of law. We find that Daly has demonstrated by clear and
convincing evidence that he has rehabilitated himself and possesses the requisite moral
character to practice law. This Court holds that Daly’s petition for reinstatement to the
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practice of law should be granted on the condition that he take and pass the Mississippi Bar
Examination.
¶27. PETITION OF BARRETT B. DALY FOR REINSTATEMENT TO THE
PRACTICE OF LAW IN THE STATE OF MISSISSIPPI IS CONDITIONALLY
GRANTED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH,
LAMAR, KITCHENS AND PIERCE, JJ., CONCUR.
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