The Mississippi Bar v. Azki Shah
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 1998-BD-01789-SCT
THE MISSISSIPPI BAR
v.
AZKI SHAH
DATE OF
JUDGMENT:
COURT FROM
WHICH
APPEALED:
8/27/98
COMPLAINT TRIBUNAL
MICHAEL B. MARTZ
ATTORNEY FOR
APPELLANT:
ATTORNEY FOR PRO SE
APPELLEE:
NATURE OF THE CIVIL - BAR MATTERS
CASE:
DISPOSITION: AZKI SHAH IS SUSPENDED FROM THE PRACTICE OF LAW IN THE
STATE OF MISSISSIPPI FOR A PERIOD OF SIX MONTHS FROM THE
DATE OF THIS OPINION; HE SHALL ONLY BE REINSTATED UPON
PETITION UNDER RULE 12 OF THE RULES OF DISCIPLINE OF THE
MISSISSIPPI BAR; AND PRIOR TO HIS REINSTATEMENT HE SHALL
TAKE THE MULTI-STATE PROFESSIONAL RESPONSIBILITY EXAM AND
ACHIEVE A SCORE AS PROVIDED FOR IN RULE 12.5. - 7/29/1999
MOTION FOR
08/04/99; denied 11/18/99
REHEARING
FILED:
MANDATE
ISSUED:
EN BANC.
MILLS, JUSTICE, FOR THE COURT:
¶1. Clarksdale attorney, Azki Shah, a member of the Mississippi Bar, is accused ofunprofessional and
unethical conduct evincing unfitness for the practice of law which constitutes legal grounds for the imposition
of discipline. The Mississippi Bar brings before this Court a formal complaint filed pursuant to Rule 13 of
the Rules of Discipline, providing for an action based on reciprocal discipline in the case of disciplinary
action imposed in another jurisdiction. The Bar has submitted with its complaint copies of the August 27,
1998, Consent Order and Injunction from the United States Bankruptcy Court for the Northern District of
Mississippi in the matter styled In re: Elsie Miller, No. 97-46038. Shah had previously been sanctioned
by that bankruptcy court for similar conduct on March 17, 1998 in the case of In re: Linda Upshaw
Neloms, No. 97-42550.
¶2. Shah's client, Ms. Miller, paid $400 prepetition for filing fees and attorney's fees in trust to Shah, but on
December 1, 1997, Shah signed a disclosure statement which indicated he had received no compensation.
The transfer from Ms. Miller was in direct violation of an order permitting the bankruptcy fee to be paid in
installment payments. Shah petitioned the court for this order. Additionally, the proposed Chapter 13 plan
Shah filed in bankruptcy court would have allowed him to receive more compensation than he reported to
the court. While Shah did not admit wrongdoing, the parties entered an agreement as to sanctions and
requested court approval. The following injunction was ordered:
IT IS THEREFORE ORDERED that the above specified agreement is hereby approved by this
court. Azki Shah is hereby enjoined effective October 1, 1998:
1. from the practice of law before any bankruptcy court in the United States;
2. from representing or giving legal advice to any entity concerning the bankruptcy laws of the United
States; and
3. from any and all acts that could constitute the practice of law on a bankruptcy issue.
However, this injunction shall not apply to Azki Shah's representation of himself and shall not apply to
any case filed by Azki Shah prior to October 1, 1998. In addition, and as a condition of this
injunction being terminated, Azki Shah shall pay to the debtor, Elsie Miller, no later than October 1,
1998, the sum of $360.00 as disgorgement of the attorney's fee paid by the debtor in this case, and
waives any claim for any money from this estate. Furthermore, and as a condition of this injunction
being terminated, Azki Shah shall pay the sum of $500.00 to the clerk of court in five (5) monthly
installments of one hundred dollars ($100.00) a month commencing no later than the first (1st ) day of
October, 1998, and continuing no later than the first (1st ) day of each succeeding month thereafter for
a period of five (5) months until paid in full.
Additionally, and prior to this injunction being terminated, Azki Shah shall also complete 12 hours of
continuing legal education in bankruptcy law that has been approved by The Mississippi Bar that is in
addition to the 12 hours of continuing legal education in bankruptcy law required to be completed
between July 1, 1998 and July 1, 1999 in the Neloms case.
This injunction shall continue in full force and effect to September 30, 2000 . . . .
¶3. Rule 13 provides that when a sanction is imposed by another jurisdiction, the findings of that jurisdiction
are conclusive evidence of guilt, and the sole issue for this Court to determine is the extent of final discipline
to be imposed on the attorney in this jurisdiction. We are not to conduct any further fact finding. The Bar
has expressed no view as to the discipline to be imposed against Shah. We are free to impose sanctions
either greater or lesser than those imposed by the bankruptcy court. Mississippi Bar v. Gardner, 730 So.
2d 546 (Miss. 1998)(citing Mississippi Bar v. Pels, 708 So. 2d 1372 (Miss.1998); Mississippi Bar v.
Felton, 699 So.2d 949 (Miss. 1997)). Factors which should be considered when imposing discipline
include but are not limited to the following:
(1) the nature of the misconduct involved;
(2) the need to deter similar misconduct;
(3) the preservation of the dignity and reputation of the legal profession;
(4) the protection of the public; and
(5) sanctions imposed in similar cases.
Mississippi Bar v. Pels, 708 So.2d 1372, 1375 (Miss. 1998) (citing Mississippi Bar Ass'n v. A
Mississippi Attorney, 489 So.2d 1081, 1083-84 (Miss. 1986)). The American Bar Association also lists
guidelines to consider which include:
(1) the duty violated;
(2) the lawyer's mental state; and
(3) the actual or potential injury resulting from misconduct, and the existence of aggravating or
mitigating factors.
Id.
¶4. When an attorney failed to make the requisite filings for his client in a Chapter 7 bankruptcy after being
ordered to do so, this Court imposed a 180-day suspension and ordered the attorney to pay all costs and
expenses of appeal. Felton, 699 So. 2d at 952. This Court has also suspended an attorney for six months
when he failed to comply with court orders and pay sanctions. Mississippi Bar v. Alexander, 669 So.2d
40, 42 (Miss. 1996). When an attorney was either misleading the court or made a false statement to the
court, he was suspended from practice for six months. Mississippi Bar v. Robb 684 So.2d 615 (Miss.
1996).
¶5. Under the facts in this case, we deem proper and hereby order a six-month suspension of Azki Shah
from the practice of law in Mississippi; that he shall 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
shall take the Multi-State Professional Responsibility Exam and achieve a score as provided for in Rule
12.5. Further, all costs of this disciplinary proceeding shall be taxed against Azki Shah.
¶6. AZKI SHAH IS SUSPENDED FROM THE PRACTICE OF LAW IN THE STATE OF
MISSISSIPPI FOR A PERIOD OF SIX MONTHS FROM THE DATE OF THIS OPINION;
HE SHALL ONLY BE REINSTATED UPON PETITION UNDER RULE 12 OF THE RULES
OF DISCIPLINE OF THE MISSISSIPPI BAR; AND PRIOR TO HIS REINSTATEMENT HE
SHALL TAKE THE MULTI-STATE PROFESSIONAL RESPONSIBILITY EXAM AND
ACHIEVE A SCORE AS PROVIDED FOR IN RULE 12.5.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, SMITH, WALLER AND
COBB, JJ., CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
McRAE, JUSTICE, DISSENTING:
¶7. The instant case deals with Rule 13 of the Mississippi Rules of Discipline. This is a case in which another
court, the United States Bankruptcy Court for the Northern District of Mississippi, issued an order of
sanctions to which Shah consented. However, Shah never admitted wrongdoing. Cases such as this involve
the disciplinary rules for the bar association and, thus, because it is a bar association issue, only the bar
association should handle it. Nonetheless, we continue to blindly recognize sanctions by other courts even
though the Mississippi Bar, rather than Mississippi's state court system, is required to handle all sanctions
originating in the jurisdiction of Mississippi. Why do we construe Rule 13 such that it becomes incongruent
with how we handle intra-state sanction matters? I wish I knew. Yet, we do it and, thereby, allow courts in
other jurisdictions, rather than the bar associations of such jurisdictions, to certify what amount to automatic
sanctions in Mississippi. This is wrong. Accordingly, I dissent.
¶8. A federal court is not "another jurisdiction" as intended by the drafters of Rule 13. See Mississippi Bar
v. Straus, 601 So. 2d 840, 847 (Miss. 1992) (McRae, J., dissenting). If one reads the Rules of Discipline
as a whole, it becomes clear that "another jurisdiction" refers to entities "empowered to judge an attorney's
professional and ethical fitness to hold and exercise a license to practice law." Id. A federal court may
determine whether an attorney will practice before it, but that court neither has the power to take an
attorney's license nor to discipline an attorney for a violation of a state's rules of professional responsibility.
Id. Hence, in the instant case, the federal bankruptcy court is not duly empowered within the sense of the
term "another jurisdiction".
¶9. Federal courts lack the "power to impose disciplinary sanctions of the type to which the Rules of
Discipline pertain," yet the federal bankruptcy court at issue is the only "jurisdiction" upon which this Court
relies to sanction Shah. Id. Given this lack of jurisdiction, we should not sanction Shah.
¶10. The majority's holding creates the opportunity for even more egregious mistreatment of lawyers. The
majority is inherently stating that when a federal court issues a monetary sanction against a lawyer, that
lawyer is automatically guilty of something whether the sanction be a fine of de minimis value-say $25-or
whatever. The majority deems the Court should automatically find guilt by trotting out Rule 13. This should
not be the case. Here, the parties agreed to the sanctions of the court. If these sanctions are insufficient, the
case should be remanded to the Bar for further development with the potential of a formal complaint, but
the case is not worthy of being brought under Rule 13.
¶11. For the aforementioned reasons, I dissent. I would remand the case to the Bar Association for it to
determine whether a formal complaint is necessary. Then, I would have the case brought forward. I dissent.
BANKS, JUSTICE, DISSENTING FROM THE DENIAL OF THE MOTION FOR
REHEARING:
¶12. I would grant this motion for rehearing because it makes clear that there is a procedural due process
problem in imposing a sanction based upon another jurisdiction disciplinary consent order, where that order
is based on neither an admission of misconduct nor any finding of fact about that misconduct.
¶13. Unlike the bar disciplinary rules of other states and the American Bar Association's Model Rules for
Lawyer Disciplinary Enforcement, Rule 13 of the Rules of Discipline of the Mississippi Bar, read literally,
allows the imposition of a reciprocal sanction without regard to whether the other jurisdiction imposing a
sanction has done so through a process that requires a finding of misconduct. Thus we, in instances where
the other jurisdiction allows such an imposition of sanctions, deem conclusive findings that another
jurisdiction has never made. In my view it is not the intent of our rule to have such an effect.
¶14. The ABA Model Rules for Lawyer Disciplinary Enforcement require a lawyer to acknowledge the
material facts as true when consenting to a stated form of discipline. Model Rules for Lawyer Disciplinary
Enforcement Rule 21 (D)(3)(1996). The ABA suggests that there be some admission of misconduct when
disciplinary actions are based on the consent of the attorney. The ABA's Model Rules for Lawyer
Disciplinary Enforcement states in pertinent part as follows "Affidavit of Consent. A lawyer who consents to
a stated form of discipline shall present to the board an affidavit stating that he or she consents to the
discipline and that: ...(3) The lawyer acknowledges that the material facts so alleged are true." Model Rules
for Lawyer Disciplinary Enforcement 21(D)(3).
¶15. The commentary section to that standard provides a reason for this requirement.
The respondent should be required to admit the charges before discipline is stipulated, so that
evidence of guilt will be available if he later claims that he was not, in fact, guilty. Petitions for
reinstatement are often filed years after discipline has been imposed, and if there is no admission it
may be difficult for the agency to establish the misconduct because relevant evidence and witnesses
may no longer be available.
Model Rules for Lawyer Disciplinary Enforcement 21 cmt.
¶16. Most jurisdictions' rules on reciprocal discipline provide that findings of another court will be
conclusive for reciprocal discipline. However, those states also give the attorney an opportunity to address
due process errors. The ABA Model Rules for Lawyer Disciplinary Enforcement reflect what the majority
of jurisdictions' rules state pertaining to reciprocal discipline. The ABA Model Rules provide as follows:
Discipline to be Imposed. Upon the expiration of [thirty] days from service of the notice pursuant to
the provisions of paragraph B, this court shall impose the identical discipline unless disciplinary
counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the
record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation
of due process; or
(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction
that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice; or
(4) The misconduct established warrants substantially different discipline in this state; or
(5) The reason for the original transfer to disability inactive status no longer exists.
If this court determines that any of those elements exists, this court shall enter such other order as it
deems appropriate. The burden is on the party seeking different discipline in this jurisdiction to
demonstrate that the imposition of the same discipline is not appropriate.
Model Rules for Disciplinary Enforcement Model Rule 22(D).
¶17. This general formulation followed by most jurisdictions is in accord with the American Bar
Association's Model Rules for Lawyer Disciplinary Enforcement in addressing reciprocal disciplinary
proceedings. E.g., CO-C.R.C.P. Rule 251.21; FL West's F.S.A. Bar Rule 3-4.6 (1999); HISup.Ct.Rules, Rule 2; IO-Court Rule 118.17, I.C.A. Ch. 602 App.; ME-Bar Rule 7.3; MI-E.D.Mich. LR
83.22; NV-Sup. Ct. Rules, Rule 14; NH-Sup. Ct. Rules, Rule 37. See also American Bar Association,
Survey of Lawyer Disciplinary Procedures in the United States 31 (1984).
¶18. The local federal court rule that governs the federal bankruptcy court, the jurisdiction involved here,
also provides that an attorney that is subject to reciprocal discipline may show cause why he or she should
not be suspended because a lack of procedural due process in the original proceedings or lack of
substantial evidence to support the factual findings. Unif. Local R. U.S. Dist. Cts. N. & S. Ds. Miss.
83.1(C)(2).
¶19. Here, Shah is subject to a sanction by this Court pursuant to Rule 13, which as interpreted by the
majority, denies him procedural due process by affirming a sanction from another jurisdiction in which there
was no finding of fact or admission of misconduct. Our Rule 13 should be read to afford the due process
safeguards that are found in other statutes. Here, there was no admission or finding of fact of guilt.
¶20. Shah is being denied procedural due process when this Court bases its sanction on the Consent
Order, which was based neither on an admission of misconduct by Shah nor any finding of fact establishing
Shah's misconduct. I would hold that, where, as here, the sanction imposed by another jurisdiction is not
supported by either an admission or a finding of misconduct, Rule 13 has no application.
McRAE, J., JOINS THIS OPINION.
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