Azki Shah v. The Mississippi Bar
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2010-BR-00933-SCT
AZKI SHAH
v.
THE MISSISSIPPI BAR
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
PRO SE
ADAM B. KILGORE
CIVIL - BAR MATTERS
REINSTATEMENT CONDITIONALLY
GRANTED - 05/12/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
LAMAR, JUSTICE, FOR THE COURT:
¶1.
Azki Shah has been disbarred since June 23, 2005, and became eligible for
reinstatement after April 19, 2010. Shah applied for reinstatement on June 9, 2010, after
obtaining the requisite score on the Multistate Professional Responsibility Examination and
complying with the various conditions imposed by this Court and under Mississippi Rule of
Discipline 12. The Mississippi Bar opposes Shah’s reinstatement based on his “failure to
satisfy the moral character component for reinstatement and his failure to accept and
articulate full responsibility for his misconduct.” We disagree with the Bar’s position and
grant Shah’s petition for reinstatement conditioned upon his passage of the complete
Mississippi Bar Examination administered by the Mississippi Board of Bar Admissions.
Miss. R. Discipline 12.5.
FACTS & PROCEDURAL HISTORY
¶2.
On June 23, 2005, this Court disbarred Shah after he failed to perfect an appeal on
behalf of Colon Vaughn, a criminal defendant. Shah v. Mississippi Bar, 919 So. 2d 59, 61
(Miss. 2005) (Shah I). Vaughn had paid Shah $3,750 to prosecute his appeal. Id. at 61-62.
Shah had retained the payment, but never had filed Vaughn’s appeal. Id. at 64. Shah then
had lied to Vaughn about the status of the appeal. Id. at 64, 66. This Court found Shah had
violated Rules of Discipline 1.1 (duty of competence), 1.15 (duty of loyalty, including
preserving the client’s property, maintaining confidentiality, and avoiding conflicts), 1.3 and
1.4 (duty of diligence), and 8.4 (duty of candor). Id. at 65. We disbarred Shah based on his
pattern of misconduct;1 his failure to file Vaughn’s appeal and the serious deprivation that
Vaughn had suffered as a result; his deception of Vaughn; and his deliberate evasiveness and
lack of candor throughout the investigation process. Id. at 65-66.
¶3.
Though already disbarred, Shah received additional sanctions on January 4, 2007.
Shah v. Mississippi Bar, 962 So. 2d 514, 519-20 (Miss. 2007) (Shah II). The Court
imposed a three-year suspension from the practice of law for misconduct that had occurred
prior to Shah’s June 2005 disbarment. Id. In April 2002, Marcus Simmons had hired Shah
to determine whether Simmons had valid title to certain real property. Id. at 519. Simmons
1
See id. 65-66 for discussion of Shah’s complete disciplinary history.
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had paid Shah an initial research fee, and later had paid Shah an additional amount to pursue
the claim. Id. Shah first had informed Simmons that a court date had been set, but that
Simmons’s presence was not required. Id. Shah later had told Simmons that a second court
date had been set, and that Simmons needed to attend this particular hearing. Id. Simmons
had arrived at the courthouse on said date, but had found no trace of Shah. Id. Simmons
eventually had learned that Shah had never filed any case on his behalf. Id. This Court
determined that Shah’s actions had violated Rules of Discipline 1.2(a) (duty regarding scope
of representation), 1.3 and 1.4 (duty of diligence), 8.1(a) (duty in disciplinary matter not to
make a knowingly false statement of material fact), 8.4(a) (duty not to violate or attempt to
violate rules of professional conduct), and 8.4(c) (duty not to engage in conduct involving
dishonesty, fraud, deceit or misrepresentation). Id. at 522.
Consequently, the Court
suspended Shah from the practice of law for three years. Id. Since Shah already had been
disbarred, the effect of this three-year suspension was simply to extend the time before Shah
could petition this Court for reinstatement. In re Petition for Reinstatement of Shah, 987
So. 2d 964, 966 (Miss. 2008).
¶4.
Since 2007, Shah has filed two petitions for reinstatement. His first petition was
dismissed without prejudice as premature. Id. at 964, 966. The second petition was denied
both as premature and because Shah had not passed the Multistate Professional
Responsibility Exam. In re Petition of Shah for Reinstatement, 5 So. 3d 352, 355 (Miss.
2008). In denying his second petition, this Court instructed that Shah could not petition for
reinstatement until April 19, 2010. Id. at 356. We instructed that any petition on or after
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that date must be preceded by proof of a passing score on the Multistate Professional
Responsibility Examination. Id.
DISCUSSION
¶5.
This Court reserves “‘exclusive and inherent jurisdiction’” over attorney-reinstatement
cases. In re Petition for Reinstatement of Morrison, 819 So. 2d 1181, 1183 (Miss. 2001)
(quoting In re Petition of Smith for Reinstatement, 758 So. 2d 396, 397 (Miss. 1999)).
These matters are reviewed de novo on a case-by-case basis. Id. The fundamental issue in
a reinstatement case is the “attorney’s rehabilitation in conduct and character since the
disbarment.” In re Petition of Benson for Reinstatement, 890 So. 2d 888, 890 (Miss. 2004).
The petitioner must demonstrate this by meeting the jurisdictional requirements of Rule 12,
which are: (1) stating the cause or causes for suspension or disbarment, (2) providing the
names and current addresses of all persons, parties, firms, or legal entities who suffered
pecuniary loss due to improper conduct, (3) making full amends and restitution, (4) showing
requisite moral character for the practice of law, and (5) demonstrating the requisite legal
education. Id. This Court also will consider the Bar’s position as to reinstatement. Id.
I.
¶6.
Cause for disbarment and suspension
Shah acknowledges that his actions in the Vaughn and Simmons matters were the
bases for his disbarment and suspension. His initial petition summarily discussed the
Vaughn case, but it did not address the Simmons matter. Shah filed an amendment to his
petition in which he discussed the Simmons matter. While Shah did not provide details
regarding the facts of these matters, we find his description sufficient. We also note that he
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discussed both cases more thoroughly in his deposition with the Bar, which was submitted
in this matter. We find that Shah has satisfied this requirement.
II.
¶7.
Full amends and restitution to anyone suffering pecuniary loss
Shah maintains that Vaughn and Simmons are the only two individuals who suffered
pecuniary loss as a result of his actions. In Shah I, this Court ordered Shah to pay restitution
to Vaughn in the amount of $3,750. Shah I, 919 So. 2d at 66. Shah has submitted
photocopies of twenty-one cashier’s checks made out to Vaughn’s mother, Jimmie Nell
Vaughn, totaling $3,750. And in Shah II, the evidence supported that Simmons had paid
Shah an initial, $165 research fee and a second, $365 fee to pursue the claim. Shah II, 962
So. 2d at 522, 524. Shah submitted proof that he had refunded Simmons $375 in October
2003 (prior to the disciplinary complaint being filed), and that he had forwarded Simmons
an additional $165 in June 2010. We find that Shah has made full amends and restitution.
III.
¶8.
Rehabilitation and requisite moral character
Since his disbarment, Shah has worked as a cook at the local Sonic Drive-In. From
January 2005 to July 2009, Shah worked part-time at Sonic and full-time at Planter’s Service
and Sales, a fertilizer plant. Shah estimated that he had worked ninety hours a week between
the two jobs. He also briefly tried his hand at soybean farming in 2006, but abandoned that
venture because of the arduous work schedule between Sonic and Planter’s. Shah also
mentioned that he once owned a beauty-supply store, but said that he had to close the store
within the past ten years. It is not clear whether this store closed before or after Shah’s
disbarment.
Shah stated that he has not engaged in any law-related work since his
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disbarment and suspension. He did, however, represent himself in a civil suit against the
Farmers Home Administration (FHA).
¶9.
The Bar argues that Shah offers no civic, church, or charitable involvement in support
of his reinstatement, other than alumni donations to his alma mater, Amherst College. It also
argues that Shah’s petition does not include any personal letters in support of his
reinstatement. Letters of support, while laudable and relevant, are not necessarily dispositive
of moral character and are not required by Mississippi Rule of Discipline 12. We also note
that the Bar has not submitted any letters in opposition to Shah’s reinstatement. As noted by
the dissent, Shah attached a petition in support of reinstatement signed by fifty-three citizens
in the Eleventh Circuit District.
¶10.
Shah acknowledged being aware that this Court ascribes value to participation in
civic, church, or charitable activities, when weighing the merits of a petition for
reinstatement. But Shah asserts that his nearly ninety-hour-a-week work schedule, between
two jobs, left him no time to participate in these activities.
¶11.
The Bar and the dissent focus on Shah’s actions which led to his disbarment and
Shah’s disagreement with a few of the Court’s specific findings in Shah I and Shah II.
Rather than focusing on Shah’s conduct since his disbarment, they rehash his prior misdeeds,
for which he has been punished. Furthermore, Shah’s disagreement was in response to the
Bar’s questions during a deposition in this matter. His disagreement with a specific finding
of fact does not detract from his agreement with our findings as a whole. Nor should it
prevent his reinstatement.
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¶12.
Additionally, as a prerequisite to seeking reinstatement, Shah was required to obtain
a passing score on the Multistate Professional Responsibility Examination. In re Petition
of Shah for Reinstatement, 5 So. 3d at 356. Shah attached to his petition a document from
the National Conference of Bar Examiners showing that he had scored a 90 on the Multistate
Professional Responsibility Examination, well above the required score of 80. Miss. R.
Discipline 12.5.
¶13. Shah accepted responsibility and expressed remorse for his actions throughout his
petitions and deposition. Shah submits that he has learned a valuable lesson over the past six
years: that he cannot overextend himself. He insists that his main problem was that he tried
to handle too many cases at one time. Shah asserts that, if reinstated, he will employ strict
guidelines in the number and type of cases he will handle in the future. Shah plans to reopen
his solo practice and to focus on bankruptcy and criminal cases. We find Shah has shown
sufficiently that he is rehabilitated and has the requisite moral character to practice law in this
State.
IV.
¶14.
Requisite legal education for reinstatement
In addition to taking and passing the Multistate Professional Responsibility
Examination, Shah’s petition also includes five statements from the Mississippi Commission
on Continuing Legal Education. These statements show that from 2006 to 2008, Shah
acquired 48.9 credit hours of continuing legal education in the areas of bankruptcy and
criminal law. Additionally, Shah asserts that he regularly reads published decisions from this
Court and the Court of Appeals. Further, the issue of Shah’s requisite legal education will
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be tested by his taking the complete Mississippi Bar Examination as required by Mississippi
Rule of Discipline 12.5.
CONCLUSION
¶15.
We find Shah has met each jurisdictional requirement and condition imposed by this
Court, and that he should be reinstated to practice law in Mississippi conditioned upon his
passage of the complete Mississippi Bar Examination administered by the Mississippi Board
of Bar Admissions, as required by Mississippi Rule of Discipline 12.5.
¶16. PETITION OF AZKI SHAH FOR REINSTATEMENT TO THE PRACTICE
OF LAW IN THE STATE OF MISSISSIPPI IS GRANTED CONDITIONAL ON
PASSAGE OF THE MISSISSIPPI BAR EXAMINATION.
CARLSON AND DICKINSON, P.JJ., KITCHENS, CHANDLER AND PIERCE
JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY RANDOLPH, J. KING, J., NOT PARTICIPATING.
WALLER, CHIEF JUSTICE, DISSENTING:
¶17.
I disagree that Shah has met the requirements to warrant reinstatement. Aside from
his own testimony, the only evidence offered to show Shah’s general reputation is a “Petition
in Support of Petitioner’s Petition to be Readmitted to the Mississippi State Bar” signed by
fifty-three individuals, only two of whom Shah knew personally. Furthermore, Shah has yet
to accept full responsibility for his actions. Throughout the Bar’s deposition, Shah continued
to dispute material facts surrounding the prior incidences of misconduct that eventually led
to his disbarment. For these reasons, I do not agree that Shah has met his burden of proving
a rehabilitated character. Therefore, I respectfully dissent.
¶18.
In determining character, the opinion of the public and of those intimately acquainted
with the petitioner serves as the best evidence. Ex Parte Marshall, 165 Miss. 523, 147 So.
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791, 796 (Miss. 1933). Consequently, petitioners seeking reinstatement almost always
include letters of support or recommendation from acquaintances, colleagues, employers,
community and business leaders, and members of the Bar. The number of letters is often
significant. E.g. In re Petition of Coleman, 949 So. 2d 680, 682 (Miss. 2006) (thirty-six
letters of recommendation); In re McGuire, 912 So. 2d 902, 905 (Miss. 2005) (sixty-six
letters of recommendation); In re Reinstatement of Holleman, 826 So. 2d 1243, 1246 (Miss.
2002) (sixty letters of recommendation); Matter of Reinstatement of Tucker, 656 So. 2d
799, 802-03 (Miss. 1995) (more than 100 letters in support). Though such letters are not
required per se, they are helpful in assessing a petitioner’s fitness to practice law, if the letters
are substantive and the sources are diverse. In re Shelton, 987 So. 2d 898, 904 (Miss. 2006).
¶19.
Shah offers nothing comparable to a letter of support. He submits instead a “Petition
in Support of Petitioner’s Petition to be Readmitted to the Mississippi State Bar.” This
petition states that:
We the undersigned citizens of the 11th Circuit Judicial District, and the State
of Mississippi wholeheartedly support Petitioner’s Petition to [b]e Readmitted
to [t]he Mississippi State Bar due to his long-term efforts in making the legal
profession accessable [sic] to those who could not afford it; Petitioner’s
zealous advocacy; Petitioner’s dedication to the legal profession, and his
clients, by signing our names to this Petition.
Fifty-three people signed the petition, none of whom were attorneys. Shah gathered these
signatures back in 2007 by going door-to-door in various towns. He said that many of these
individuals knew him “from the trials . . . in Coahoma County and various places.” He added
that he knew “a few” personally, but was unable to recall any such person until the Bar
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allowed him to refresh his memory by reviewing the petition. Even then, he named only two
signatories whom he knew personally.
¶20.
Shah’s “petition in support” fails to provide any meaningful, substantive information
about Shah’s reputation and character. The signatories apparently had little or no knowledge
about Shah apart from their brief, three-to-five minute encounter with him on the day that
they signed the petition. The petition, therefore, is not helpful in determining Shah’s fitness
to practice law.
¶21.
The deficiency of having no letters of support, or anything comparable, is
compounded by the fact that Shah continues to dispute material facts that were established
in his prior disciplinary matters. This, in my view, indicates that he has not yet truly come
to terms with and accepted full responsibility for his prior misconduct.
¶22.
It is true that, at several points throughout his deposition, Shah said that he accepted
responsibility for his actions and even expressed remorse. But he made other comments that
raise doubts about those expressions. For example, Shah disputed the Bar’s characterization
of his disciplinary history as “extensive.” “I wouldn’t label it as extensive,” said Shah, “I
think it’s indicative probably of a pattern of not paying attention to detail . . . .” But more
significantly, Shah continued to contest certain material facts that were established in Shah
II and Shah III.
¶23.
With regard to Shah II, Shah insisted that he never had tried to deceive the lower
court by implying in his motion for out-of-time appeal that another attorney, not Shah, had
failed to timely file Vaughn’s appeal. The Complaint Tribunal, however, found that Shah
had tried to deceive the lower court, and Shah did not contest that finding on appeal. Shah
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II, 919 So. 2d at 62-63. Shah also disagreed that the $3,750 fee that he had charged Vaughn
was unreasonable.
Id. at 62.
Shah said that the $3,750 fee compensated Shah for
representing Vaughn on two separate matters: the appeal and Vaughn’s trial on an earlier,
unrelated charge. But even if the $3,750 amount did represent a combined fee, as Shah
suggests, the fee was still unreasonable, because the fact remains that Shah accepted full
payment without performing at least some of the agreed-upon services. See id. at 62. Shah
accepted payment to prosecute an appeal that he never filed; the fact that he would suggest
that his fee in such instance was not unreasonable is especially troubling.
¶24.
As for Shah III, Shah maintained that he never had informed Simmons of a court date
that did not exist. This Court, however, concluded otherwise in Shah III. Shah III, 962 So.
2d at 519-22.
¶25.
Finally, Shah insisted that he always has tried to cooperate with the Bar. During his
deposition, the Bar questioned Shah as to why he had filed only a brief, one-paragraph
response to Simmons’s bar complaint against him, and why he had failed to attend the Bar’s
investigatory hearing concerning Simmons’s bar complaint. Shah said he thought his
response was “adequate enough,” given the little information he had about the case. And
Shah said he chose not to attend the investigatory hearing because of a personal conflict
between himself and Michael Martz, who had served as general counsel for the Bar at that
time. A “personal conflict” with the Bar’s general counsel hardly justifies not attending an
investigatory hearing. Moreover, Shah’s lack of cooperation with the Bar was not isolated
to the Simmons matter. Shah II cited Shah’s “deliberate prevarication, lack of candor[,] and
evasiveness” throughout disciplinary proceedings concerning the Vaughn matter, as well.
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Shah II, 919 So. 2d at 66. It is clear that, contrary to his assertions, Shah has not always
fully cooperated with the Bar.
¶26.
Because Shah continues to dispute material, established facts concerning his prior
misconduct, I cannot say that he has accepted full resposibility for his actions.
¶27.
I applaud Shah for making full amends and restitution, exhibiting an exemplary work
ethic, and obtaining a passing score on the Multistate Professional Responsibility Exam. But,
for the reasons discussed above, I find his petition to be lacking. Thus, I respectfully dissent.
RANDOLPH, J., JOINS THIS OPINION.
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