Daniel B. Smith v. The Mississippi Bar
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 1998-BR-01828-SCT
IN RE: PETITION OF DANIEL B. SMITH FOR REINSTATEMENT TO THE PRACTICE
OF LAW
DATE OF JUDGMENT:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
9/11/95
COMPLAINT TRIBUNAL
PRO SE
J. DAVID WYNNE
CIVIL - BAR MATTERS
PETITION FOR REINSTATEMENT TO THE
PRACTICE OF LAW GRANTED CONTINGENT
UPON TAKING AND PASSING ETHICS PORTI
OF THE MULTI-STATE PROFESSIONAL
RESPONSIBILITY EXAM AS PROVIDED IN RU
12.5 OF THE MISSISSIPPI RULES OF DISCIPLI
- 6/17/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, JUSTICE, FOR THE COURT:
INTRODUCTION
¶1. Daniel B. Smith, a suspended former member of the Mississippi Bar, has petitioned this Court for
reinstatement of his license to practice law in Mississippi. We find that Smith has met the necessary
requirements and that his license to practice law in Mississippi should be reinstated contingent upon his
taking and passing the Multi-State Professional Responsibility Exam as provided in Rule 12.5 of the
Mississippi Rules of Discipline.
STATEMENT OF FACTS
¶2. Smith was originally admitted as a member of the Mississippi Bar in May 1982 and was engaged in the
private practice of law in Hattiesburg.
¶3. The Bar filed a formal complaint against Smith on January 11, 1994, for unprofessional conduct in the
handling of an appeal on behalf of his client, Willie Wells. The Complaint Tribunal entered a default
judgment because Smith failed to answer, plead or otherwise defend the formal complaint against him, and
failed to appear at the hearing on the Bar's Motion for Entry of Default Judgment. On April 24, 1994,
Smith was suspended from the practice of law for a period of one year and ordered to pay the Bar the sum
of $44.73.
¶4. On June 8, 1994, the Bar filed a formal complaint against Smith for unprofessional conduct in failing to
communicate with his client, Frances Snyder. The Complaint Tribunal entered a default judgment against
Smith for his failure to answer, plead or otherwise defend the formal complaint and his failure to appear at
the hearing on the Bar's Motion for Entry of Default Judgment. On September 19, 1994, the Complaint
Tribunal imposed on Smith a suspension of two years from the practice of law which was to run consecutive
to any prior suspension that had been imposed upon him. Further, the Complaint Tribunal required that
Smith pay restitution in the amount of $50 to Frances Snyder and pay the Bar the amount of $27.38
previously assessed plus all costs and expenses associated with the litigation. Smith's subsequent appeal to
this Court was dismissed on the joint motion of Smith and the Bar. Smith v. Mississippi Bar, 665 So.2d
189 (Miss. 1995).
¶5. On March 28, 1995, the Bar filed a formal complaint against Smith for failure to communicate with his
client, Shirley Ruth Wilson. Smith filed an answer on April 20, 1995. On September 11, 1995, the
Complaint Tribunal imposed a suspension of two and one-half years upon Smith which was not to run
consecutively with any other discipline Smith may have imposed upon him. Also, the Complaint Tribunal
ordered Smith to pay the sum of $32.88 previously assessed plus all costs associated with this complaint.
¶6. On December 11, 1998, Smith petitioned this Court for reinstatement and alleged that he 1) paid Ms.
Snyder restitution required by the Complaint Tribunal, 2) underwent rehabilitation of his mind, his financial
condition, and his spirit, 3) read the published decisions of this Court and reviewed other publications and
continuing legal education material, and 4) has been gainfully employed since just after the beginning of his
suspension.
¶7. On March 12, 1999, the Bar filed its response to Smith's petition for reinstatement, in which it took no
position on whether Smith's petition should be granted.
¶8. The Bar admitted that Smith paid restitution to Snyder. The Bar admitted that, although not paying the
Bar's costs and expenses within the time ordered by the Complaint Tribunal, Smith paid these costs and
expenses by money order dated June 1, 1998, prior to filing his Petition for Reinstatement. Also the Bar
admitted that, although Smith failed to file timely affidavits of notices of his suspension to his clients, counsel
opposite and courts, he satisfied this prerequisite to his reinstatement. The Bar stated that Smith has been
cooperative during this investigation and has continually expressed remorse over his actions leading to his
suspensions. The Bar also stated its willingness to conduct any additional investigation which this Court
might find appropriate.
LEGAL ANALYSIS
¶9. The standard of reviewing questions of attorney reinstatement is well-settled:
The Supreme Court of Mississippi (the Court) has exclusive and inherent jurisdiction of matters
pertaining to attorney discipline, reinstatement, and appointment of receivers for suspended and
disbarred attorneys. When reviewing disciplinary matters this Court reviews the evidence de novo, on
a case-by-case basis sitting as triers of fact.
****
The guidelines for reinstatement to the Mississippi State Bar are set forth in Miss. Code Ann. § 73-3337 and in Rule 12 of the Rules of Discipline for the Mississippi Bar. Rule 12 reads in pertinent part
as follows...
All reinstatement petitions shall be addressed to the Court, shall state the cause or causes for
suspension or disbarment, give the names and current addresses of all persons, parties, firms, or legal
entities who suffered pecuniary loss due to the improper conduct, the making of full amends and
restitution, the reasons justifying reinstatement, and requisite moral character and legal learning to be
reinstated to the privilege of practicing law.... The matters set out in this paragraph shall be
jurisdictional.
In Re Pace, 699 So.2d 593, 595 (Miss. 1997)(quoting In re Underwood, 649 So.2d 825, 827 (Miss.
1995)).
WHETHER DANIEL SMITH HAS COMPLIED WITH ALL NECESSARY
REQUIREMENTS FOR REINSTATEMENT TO PRACTICE LAW.
¶10. The Court's fundamental inquiry is whether Smith has rehabilitated himself in conduct and character
since the suspension was imposed. In re Steele, 722 So.2d 662, 664 (Miss. 1998);In re Mathes, 653
So.2d 928, 929 (Miss. 1995); Haimes v. Mississippi State Bar, 551 So.2d 910, 912 (Miss. 1989).
Certain jurisdictional requirements must be met for reinstatement. The requirements are: (1) Each petitioner
must include a list of names and addresses of persons, parties, firms, or legal entities who suffered
pecuniary loss due to the attorney's misconduct; (2) There must be a showing that the petitioner has made
full amends and restitution or a statement to the effect that full amends and restitution is not appropriate or
has been imposed; (3) The petitioner must show that he has the requisite moral character to be reinstated;
and (4) The petitioner must show that he has the requisite legal learning to be reinstated to the privilege of
practicing law. Mississippi Rules of Discipline 12.7; Burgin v. Mississippi State Bar, 453 So.2d 689,
691 (Miss. 1984).
¶11. Requirements (1)& (2) above have been clearly met as verified by the Bar and the submitted money
order to Ms. Snyder on June 2, 1998. No restitution was ordered to Wells or Wilson. Smith paid the Bar's
costs and expenses in all three disciplinary matters.
¶12. With regard to requisite moral character, the record indicates that due to Smith's travel required for his
job, he is not as involved as he would like to be with community activities, but is extremely involved with his
church activities. Smith is a Sunday School teacher, Chairman of his church's Mission Committee, and is
Mission Trip Chairman for a mission trip scheduled for a group in his church to travel to Mexico. In his
deposition, Smith stated that he attends church on Sunday mornings, Sunday evenings and Wednesday
nights. Forty-nine attorneys in the Hattiesburg area agree because they have supported Smith's
reinstatement petition.
¶13. After the suspension, Smith sought medical treatment from a local psychiatrist who prescribed Prozac
and referred Smith to a local psychologist. Smith was never admitted in-house anywhere nor placed on any
other medication. Smith is not seeing a physician at this time and feels that he is now back on his feet from a
psychological standpoint. Further Smith believes that he is ready to be entrusted with the responsibilities of
client matters.
¶14. Smith is currently employed with the Mississippi Department of Transportation as a title or right-ofway agent. Just after his suspension until February 1997, Smith was employed by a friend at a loan
company and was the manager of the Hattiesburg branch until it closed its Hattiesburg office. Smith has no
future plans, if reinstated, to return to private practice. However, Smith has been told that it would open up
other employment opportunities within the Department of Transportation for him if he were reinstated. With
regard to requisite legal learning, Smith indicated that he has read recent Supreme Court decisions and
advance sheets. Smith is married with three children, and throughout the hard financial times of his law
practice and his suspension from the practice of law, he has still been able to provide for his family.
¶15. Throughout his deposition, Smith expressed remorse for his misconduct. Further, the Bar was
somewhat impressed by the frankness with which Smith responded to his questions and acknowledged his
failing in the representation of the clients in the above disciplinary matters. We conclude that Smith has the
requisite moral character for reinstatement.
¶16. The Bar takes no position on Smith's petition for reinstatement and stands ready to perform any
additional investigation, if requested, in whatever area this Court deems appropriate. We reiterate that fortynine Hattiesburg area attorneys support Smith's reinstatement. Based upon this proof, we conclude that
Smith's license to practice law in Mississippi should be reinstated contingent upon his taking and passing the
Ethics portion of the Multi-State Professional Responsibility Exam as provided in Rule 12.5 of the
Mississippi Rules of Discipline.
CONCLUSION
¶17. Smith has met the conditions for reinstatement set forth by the Complaint Tribunal. In addition, he has
met the jurisdictional requirements for reinstatement, including: 1) a proper petition; 2) full amends and
restitution; 3) requisite moral character; and 4) requisite legal learning. For this reason, his petition for
reinstatement is granted.
¶18. PETITION FOR REINSTATEMENT TO THE PRACTICE OF LAW GRANTED
CONTINGENT UPON TAKING AND PASSING OF THE ETHICS PORTION OF THE
MULTI-STATE PROFESSIONAL RESPONSIBILITY EXAM AS PROVIDED IN RULE 12.5
OF THE MISSISSIPPI RULES OF DISCIPLINE.
PRATHER, C.J., PITTMAN, P.J., BANKS, McRAE, MILLS, WALLER AND COBB, JJ.,
CONCUR. SULLIVAN, P.J., NOT PARTICIPATING.
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