The Mississippi Bar v. Winthrop G. Gardner
Annotate this Case
Download PDF
IN THE SUPREME COURT OF MISSISSIPPI
NO. 98-BD-00345-SCT
THE MISSISSIPPI BAR
v.
WINTHROP G. GARDNER
DATE OF JUDGMENT:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
03/09/1998
COMPLAINT TRIBUNAL
MICHAEL B. MARTZ
PRO SE
CIVIL - BAR MATTERS
SUSPENSION - 10/29/98
12/7/98
EN BANC.
PITTMAN, PRESIDING JUSTICE, FOR THE COURT:
¶1. This matter is before the Court en banc on a Formal Complaint filed March 9, 1998 by The Mississippi
Bar seeking suspension of Winthrop G. Gardner's privileges for the practice of law in Mississippi under the
provisions of the Rules of Discipline of the Mississippi Bar, Rule 13, providing for action based upon
reciprocal discipline in the case of disciplinary action imposed in another jurisdiction. With the Complaint,
the Bar has submitted certified copies of the Opinion and Decree of the Supreme Court of Louisiana in the
matter styled In re: Winthrop G. Gardner, No. 97-B-1314 by virtue of which Attorney Gardner was
suspended from practice in Louisiana for two years, with six months of that suspension deferred, and
directing that after the completion of the active portion of the suspension Gardner be placed on two years
probation, subject to conditions recommended by the hearing committee in that proceeding.
¶2. Attorney Gardner appeared seeking additional time to respond to the Complaint, and the Court granted
an extension through July 25, 1998 for him to respond. However, no response to the allegations against him
has been made.
¶3. Under the provisions of Rule 13, the certification of sanction imposed by the appropriate authority of
another jurisdiction is conclusive evidence of the guilt of the offense or unprofessional conduct in which
sanction was ordered, and the sole issue to be determined in the present proceeding is the extent of the final
discipline to be imposed by this Court on the attorney. No further fact finding on the offense is required.
Here, the Bar seeks only that Gardner be disciplined, but has expressed no view as to the nature or extent
of discipline to be imposed. Gardner could have offered matters in mitigation of the offenses charged, and
the Court in imposing penalty is not bound by findings of the Louisiana authority. The Court is at liberty to
impose sanctions either less or greater than those imposed in Louisiana. See Mississippi Bar v. Pels, 708
So. 2d 1372 (Miss. 1998); Mississippi Bar v. Felton, 699 So. 2d 949 (Miss. 1997).
¶4. In the Louisiana proceedings the underlying facts were stipulated and involve several instances of
conversion of clients funds, with accountants' studies concluding that between $10,000 and $30,000 of
client and third party funds were unaccounted for. However, it was also found that, at the time of the
hearing in Louisiana, albeit with unreasonable delay, all clients and third-parties had been repaid and that no
one suffered any loss of funds. It was concluded that his conduct was at best gross negligence and at worst
knowing misconduct. Initially, Gardner sought a disposition under that state's consent disciplinary procedure
with two and one-half years suspension, one and one-half year deferred with two years probation. The
Office of Disciplinary Counsel concurred, but the Louisiana Supreme Court declined the proposal and
ordered a hearing. In re Gardner, 647 So. 2d 1103 (La. 1994). The hearing committee found that
Gardner had commingled and converted his clients' funds in at least fifteen instances.
¶5. Although the Louisiana decree is conclusive as to the facts underlying the offense, this Court considers
disciplinary matters de novo and must judge each case on its own merits when it comes to the extent of
sanctions. In judging each case, we look at the nature of the offenses, and the need to deter similar
misconduct and to preserve the dignity of the profession, along with the mitigating and aggravating
circumstances. Pels, 708 So.2d at 1375.
¶6. The commingling and misappropriation of clients' funds is a grave breach of professional duties, and has
been held, under some circumstances, to justify disbarment. See Haimes v. Mississippi Bar, 601 So. 2d
851 (Miss. 1992) (where the attorney misappropriated $6,500 of client trust funds, having been previously
suspended for commingling funds); Reid v. Mississippi State Bar, 586 So. 2d 786 (Miss. 1991)
(mishandling of approximately $10,000 by overdrawing his trust account); Mississippi State Bar Ass'n v.
Mayo, 525 So. 2d 1289 (Miss. 1988) (where attorney converted approximately $8,000 along with
soliciting a case and charging unconscionable fees).
¶7. In the present case, the fact that Gardner ultimately repaid the converted funds mitigates in his favor.
The Louisiana Supreme Court noted that the Office of Disciplinary Counsel presented five aggravating
factors: (1) prior disciplinary offenses, (2) pattern of misconduct, (3) multiple offenses, (4) vulnerable
victims, and (5) substantial experience in the practice of law. By way of mitigation, five other elements were
set forth: (1) absence of dishonest motive, (2) personal problems, (3) full disclosure to the disciplinary
system, (4) prior reputation, and (5) remorse. We do not have before us the details underpinning these
factors, and Gardner, having failed to respond to the complaint, provides us with little else in his favor.
¶8. Under the facts of this case, we deem it proper that Gardner be suspended from the practice of law in
Mississippi for a period of one year; that he be reinstated to practice only upon petition under the provisions
of Rule 12 of the Rules of Discipline of the Mississippi Bar; and that prior to reinstatement he take the
Multi-State Professional Responsibility Exam and achieve a score as provided for in Rule 12.5.
¶9. WINTHROP G. GARDNER IS HEREBY SUSPENDED FROM THE PRACTICE OF LAW
IN ALL COURTS IN THE STATE OF MISSISSIPPI FOR ONE YEAR, SHALL BE
READMITTED ONLY UPON PETITION UNDER RULE 12 OF THE RULES OF
DISCIPLINE OF THE MISSISSIPPI BAR AND UPON TAKING THE MULTI-STATE
PROFESSIONAL RESPONSIBILITY EXAM WITH A SCORE AS PROVIDED IN RULE 12.5.
PRATHER, C.J., SULLIVAN, P.J., BANKS, McRAE, ROBERTS, SMITH MILLS AND
WALLER, JJ., CONCUR.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
