The Mississippi Bar v. Jimmy Doug Shelton
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-BD-00762-SCT
THE MISSISSIPPI BAR
v.
JIMMY DOUG SHELTON
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
MICHAEL B. MARTZ
ALEX A. ALSTON, JR.
T. STEWART LEE, JR.
CIVIL - BAR MATTERS
SUSPENSION FROM THE PRACTICE OF
LAW - 05/22/2003
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC
GRAVES, JUSTICE, FOR THE COURT:
¶1.
This matter is before this Court on a Motion for Indefinite Suspension Pending Appeal, Striking
From Roll, Suspending and Staying proceedings brought by the Mississippi Bar (herein-after Bar)
against Jimmy Doug Shelton (hereinafter Shelton).
FACTS
¶2.
A formal complaint was filed by the Bar against Shelton on May 13, 2002, based upon Shelton’s
entry of a guilty plea in federal district court on January 10, 2002, pursuant to a plea agreement. He pled
guilty to the charge of aiding and assisting in fraud and making false statements related to filing of a tax
return to the Internal Revenue Service. A judgment was entered in connection with the plea on April 17,
2002.
DISCUSSION
¶3.
The Bar alleges that Shelton pled guilty to a crime which triggers Rule 6 of the Rules of Discipline
for the Mississippi Bar. The Bar recommends indefinite suspension until the Bar can show that the time to
appeal the conviction has expired or the appeal was concluded without reversal. Moreover, upon the
showing of either, the Bar suggests that it will file a motion for reconsideration for Shelton’s immediate
disbarment. Shelton contends that he never entered a final plea of guilty as required by Rule 6 of the Rules
of Discipline for the Mississippi State Bar, but only a conditional plea. In the plea agreement, Shelton
reserved the right to appeal the federal district court’s ruling relating to a motion to suppress the evidence
obtained during a warrantless search. Because he entered a conditional plea, Shelton maintains that he is
not legally guilty and that the Bar cannot use Rule 6 as a device to automatically suspend him from the Bar.
In support of his argument that his conviction is not legally and finally determined, Shelton cites to the
Federal Rules of Criminal Procedure Rule 11 (a)(2) which when he pled provided that:
Conditional Plea. With the approval of the court and the consent of the government, a
defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the
right, on appeal from the judgment, to review of the adverse determination of any specified
pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.
He also argues that a suspension would be inequitable, unjust and would do violence to the well-established
rule requiring a strict reading of the disciplinary rules.
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¶4.
Under our standard of review, this Court has exclusive and inherent jurisdiction regarding the
discipline of attorneys as promulgated in the Rules of Discipline for the Mississippi State Bar. See Miss.
R. Disc.1(a); Miss. Bar v. McGuire, 647 So.2d 706, 708 (Miss. 1994). We conduct a de novo review
in cases involving the discipline of attorneys. See Miss. Bar v. Pels, 708 So. 2d 1372, 1374 (Miss. 1998).
“The burden is usually on the Mississippi Bar to show by clear and convincing evidence that an attorney's
actions constitute professional misconduct.” Id.
¶5.
Rule 6(a) of the Rules of Discipline for the Mississippi Bar provides:
(a) Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be
convicted in any court of any state or in any federal court, or enter a plea of guilty or a plea
of nolo contendere therein, or tender a guilty plea pursuant to the provisions of Miss. Code
Ann. §§ 99-15-26 (Supp.1993), or any similar provision in state or federal law therein of
any felony (other than manslaughter) or of any misdemeanor involving fraud, dishonesty,
misrepresentation, deceit, or willful failure to account for money or property of a client, a
certified copy of the judgment of conviction or order accepting or acknowledging the offer
or tender of a guilty plea pursuant to the provisions of Miss. Code Ann. §§ 99-15-26
(Supp.1993), or any similar provision in state or federal law shall be presented to the
Court by Complaint Counsel and shall be conclusive evidence thereof. The Court shall then
forthwith strike the name of the attorney and order his immediate suspension from the
practice of law.
¶6.
As previously stated, a judgment was entered against Shelton on April 17, 2002. A certified copy
of the judgment and a copy of the plea agreement has been included as part of the record in this matter.
Shelton pled to aiding and assisting in fraud and false statements related to the filing of a return, affidavit,
claim or document with the Internal Revenue Service before Judge W. Allen Pepper, Jr. in the United
States District Court for the Northern District of Mississippi. United States v. Jimmy Doug Shelton,
Crim. Ac. No. 1:00CR00127-001 (N.D. Miss.), appeal pending, 5th Cir. No. 02-60326.
¶7.
Conclusive evidence has been introduced to prove that Shelton committed a crime resulting in
unprofessional and unethical conduct evincing unfitness for the practice of law. Because Rule 6 further
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provides that “upon reversal of the conviction or judgment that has resulted in the automatic suspension,
the attorney [Shelton] shall be immediately reinstated. . . .” Miss. R. Disc. 6(b). Shelton is not without a
remedy should he prevail on appeal of his conviction. This Court accepts the recommendation of the Bar
and strikes Shelton’s name from the roll of attorneys and orders that he is suspended from the Mississippi
Bar pursuant to Rule 6 of the Rules of Discipline for the Mississippi Bar.
¶8.
JIMMY DOUG SHELTON IS SUSPENDED FROM THE PRACTICE OF LAW IN
THE STATE OF MISSISSIPPI.
PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR.
McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ
AND EASLEY, JJ. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY McRAE, P.J., AND DIAZ, J.
McRAE, PRESIDING JUSTICE, DISSENTING:
¶9.
I dissent to the majority's finding that Rule 6 can be used to indefinitely suspend Shelton under these
circumstances in advance of a final conviction. A conditional plea is not a final judgment or admission of
guilt.
¶10.
Rule 6(a) of the Rules of Discipline states in part:
Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be
convicted in any court of any state or in any federal court, or enter a plea of guilty or
plea of nolo contendere therein, or tender a guilty plea pursuant to the provisions of
Miss. Code Ann. § 99-15-26 (Supp. 1993), or any similar provision in state or federal law
therein of any felony (other than manslaughter) or of any misdemeanor involving fraud,
dishonesty, misrepresentation, deceit, or willful failure to account for money or property
of a client, a certified copy of the judgment of conviction or order accepting
or acknowledging the offer or tender of a guilty plea pursuant to the provision
of Miss. Code Ann. § 99-15-26 (Supp. 1993), or any similar provision in state or federal
law shall be presented to the Court by Complaint Counsel and shall be conclusive evidence
thereof.
(emphasis added).
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¶11. Rule 6 is to be invoked when there is a "final judgment or a guilty plea," not a conditional plea pending
an appeal. A conditional plea is not a guilty plea or an admission of guilt.
¶12.
Furthermore, a conditional plea is different from a guilty or nolo contendere plea and cannot be
found to be a final judgment since it can be withdrawn under Rule 11 of the Federal Rules of Criminal
Procedure. Rule 6 addresses pleas of "guilty" or "nolo contendere." Rule 6 does not address conditional
pleas, which as Rule 11 illustrates are in a class of their own. Additionally, conditional guilty pleas under
Fed. R. Crim. P. 11 may be withdrawn before the court accepts the plea and after the court accepts the
plea but before sentencing under certain circumstances. Fed. R. Crim. P. 11(d). Rule 6 was not meant
to address conditional guilty pleas as found in Rule 11. If the Bar wishes to use this Rule 6 mechanism, it
has to wait until after the final appeal of this matter. Therefore, I would deny the Mississippi Bar's motion
at this time, as it is premature.
¶13.
As a side note, a review of the Fifth Circuit Court of Appeals docket indicates that United States
of America v. Jimmy Doug Shelton, NO. 02-40719, was argued on February 11, 2003.1 This
decision, unlike ours, will be out shortly, and then the Bar may proceed with appropriate action.
¶14.
For these reasons, I respectfully dissent.
DIAZ AND EASLEY, JJ., JOIN THIS OPINION.
EASLEY, JUSTICE, DISSENTING:
¶15.
The majority suspends Shelton from the practice of law; however, I must respectfully dissent.
Shelton has not entered a final guilty plea. In Shelton's conditional plea agreement, he reserved the right
to appeal the trial court's ruling on a motion to suppress. Shelton has appealed that ruling to the United
1
See internet cite http://www.ca5.uscourts.gov/clerk/calendar/0302/24.htm.
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States Court of Appeals for the Fifth Circuit. Since the Fifth Circuit has not ruled on that appeal, I do not
find that Shelton has been finally convicted of a crime that would subject him to suspension at this time.
The majority has jumped the gun by ordering Shelton's suspension thereby depriving Shelton of due
process. Therefore, I do not find that a violation of Rule 6(a) of the Rules of Discipline has occurred at this
time. Based on the language of this unique conditional plea arrangement, the majority should have
awaited the appellate ruling on the suppression of evidence before accepting the conditional plea agreement
as a tendered guilty plea. For these reasons, I would deny the Mississippi Bar's motion.
McRAE, P.J. AND DIAZ, J., JOIN THIS OPINION.
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