The Mississippi Bar v. Daniel L. Inserra
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-BD-02017-SCT
THE MISSISSIPPI BAR
v.
DANIEL L. INSERRA
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
ADAM B. KILGORE
PRO SE
CIVIL - BAR MATTERS
PUBLIC REPRIMAND - 05/29/2003
EN BANC.
WALLER, JUSTICE, FOR THE COURT:
¶1.
The Mississippi Bar filed a Formal Complaint seeking reciprocal discipline pursuant to Rule 13 of
the Rules of Discipline for the Mississippi State Bar against attorney Daniel L. Inserra based on a public
censure and two-year probation entered against him by the Disciplinary Commission of the Supreme Court
of Arizona. Finding that reciprocal discipline is warranted, we hold that Inserra be publicly reprimanded.
FACTS AND PROCEDURAL HISTORY
¶2.
On December 20, 2002, the State Bar of Arizona ("State Bar") filed a Formal Complaint with the
Disciplinary Commission of the Supreme Court of Arizona against attorney Daniel L. Inserra in response
to four overdraft notices on his trust account.
¶3.
The State Bar received the first overdraft notice on September 19, 2000, indicating that Inserra's
trust account was overdrawn in the amount of $146.14. The overdraft was caused by the debit of service
charges from the account for processing credit card payments. Inserra's trust account at the time contained
only administrative funds and earned attorney's fees and held no funds owed to clients or third-party
lienholders. Inserra corrected the overdraft prior to the State Bar's receipt of the overdraft notice.
¶4.
On October 19, 2000, Inserra informed the State Bar that he had received another overdraft
notice. This overdraft was again caused by an electronic debit of a credit card processing service charge.
What had happened was the $30.00 service charge was presented when the account had a balance of only
$13.09. Again, Inserra's account contained only administrative funds and no funds owed to any client or
third-party lienholder.
¶5.
The State Bar received two additional overdraft notices on November 27, 2000. The first notice
was the result of the payment of a check for $800 on November 14, 2000, when the account held a
balance of only $612.87. A $25.00 insufficient funds fee was charged, thereby leaving a balance of
negative $212.13. The account held administrative funds and funds belonging to one of Inserra's clients,
Thomas Greco. The $800 check was written on behalf of Greco. The second notice indicated a rejection
on November 15, 2000, of a $38.91 electronic debit constituting a lease payment on credit card processing
equipment Inserra maintained in his office. The debit was rejected because the overdraft from the day
before had left the $212.13 negative balance. A $25.00 insufficient funds charge was assessed, increasing
the negative balance to $237.13.
¶6.
Inserra conditionally admitted that he was negligent by failing to reconcile his trust account monthly
in violation of Arizona's Trust Account Guidelines. He also conditionally admitted failing to use only prenumbered checks drawn on his trust account when he deposited funds into the account to be used to post
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bond on behalf of a client and used a bank check instead of a pre-numbered check to obtain the funds from
the account.
¶7.
The tender of admissions and agreement for discipline by consent also included the following
conditional admissions:
Respondent conditionally admits that he was negligent in his accounting and record keeping
practices; that he failed to maintain complete trust account records for a period of five
years; that he failed to exercise due professional care in the maintenance of his client trust
account; and that he was unable to account for all transactions relating to his client trust
account by failing to specifically identify clients affiliated with each transaction.
Inserra also conditionally admitted that he failed to keep his own funds separate from client funds by
depositing earned fees into his trust account and failing to withdraw immediately fees when earned.
¶8.
On the basis that Inserra and the State Bar agreed on the conditional admissions, the Disciplinary
Commission imposed a sanction of public censure and two years probation with the requirement that
Inserra enter into a probation agreement in compliance with a Law Office Management Assistance Program
assessment. He was also ordered to attend the State Bar's Trust Account Ethics Enhancement Program.
¶9.
The Mississippi Bar filed its Formal Complaint with this Court on December 9, 2002, seeking
reciprocal discipline under Rule 13. The complaint indicated that Inserra is a resident of Scottsdale,
Arizona, and is currently on suspension for failure to pay bar enrollment fees. See Miss. Code Ann. § 733-127 (2000). Inserra was served via certified mail restricted delivery on January 27, 2003, at 7500 East
McDonald Dr., Suite 102A, Scottsdale, Arizona 85250 pursuant to Rule 161 and never responded to the
Bar's complaint.
STANDARD OF REVIEW
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Rule 16 of the Rules of Discipline for the Mississippi State Bar concerns the jurisdiction of and
notice and service on nonresident attorneys.
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¶10.
In matters pertaining to attorney discipline and reinstatement, we retain exclusive jurisdiction and
are the ultimate judge of matters that arise under the Rules of Discipline for the Mississippi State Bar. Rules
of Discipline for the Miss. State Bar Rule 1(a); Rogers v. Miss. Bar, 731 So. 2d 1158, 1163 (Miss.
1999) (citing Broome v. Miss. Bar, 603 So. 2d 349, 354 (Miss. 1992)). We review such matters of
attorney discipline de novo. Miss. Bar v. Logan, 726 So. 2d 170, 174 (Miss. 1998); Miss. Bar v.
Alexander, 697 So. 2d 1164, 1168 (Miss. 1997); Miss. Bar v. Carter, 678 So. 2d 981, 983 (Miss.
1996).
DISCUSSION
¶11.
The Mississippi Bar presents this Formal Complaint pursuant to Rule 13 of the Rules of Discipline
for the Mississippi State Bar. Rule 13 provides for the imposition of sanctions in this state as a result of
sanctions imposed in another jurisdiction:
When an attorney should be subjected to disciplinary sanctions in another
jurisdiction, such sanction shall be grounds for disciplinary action in this state, and
certification of such sanction by the appropriate authority of such jurisdiction to the
Executive Director of the Bar or to the Court, shall be conclusive evidence of the guilt of
the offense or unprofessional conduct on which said sanction was ordered, and it will not
be necessary to prove the grounds for such offense in the disciplinary proceeding in this
state. The sole issue to be determined in the disciplinary proceeding in this state shall be
the extent of the final discipline to be imposed on the attorney, which may be less or more
severe than the discipline imposed by the other jurisdiction.
Thus, our sole inquiry is the kind and extent of discipline to be imposed on Inserra. We need not refer this
matter to a Complaint Tribunal. Miss. Bar v. Strauss, 601 So. 2d 840, 844 (Miss. 1992) (stating that
"the matter of reciprocal discipline is to be presented directly to this Court and not to a Complaint
Tribunal").
¶12.
In assessing a sanction in an attorney discipline case, we apply the following nine criteria: (1) the
nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the preservation of the
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dignity and reputation of the profession; (4) the protection of the public; (5) the sanctions imposed in similar
cases; (6) the duty violated; (7) the lawyer's mental state; (8) the actual or potential injury resulting from
the misconduct; and (9) the existence of aggravating and/or mitigating factors. Rogers, 731 So. 2d at
1171 (citing Miss. Bar v. Felton, 699 So. 2d 949, 951 (Miss. 1997)). See also Miss. Bar v. Shah,
749 So. 2d 1047 (Miss. 1999); Attorney AAA v. Miss. Bar, 735 So. 2d 294 (Miss. 1999); Miss. Bar
v. Logan, 726 So. 2d 170 (Miss. 1998); Alexander v. Miss. Bar, 725 So. 2d 828 (Miss. 1998).
¶13.
We have no reported opinions on point sanctioning attorneys for the conduct for which Inserra was
disciplined in Arizona. We have, however, imposed reciprocal discipline on attorneys for conduct ranging
from failing to comply with court orders, Mississippi Bar v. Alexander, 669 So. 2d 40 (Miss. 1996),
to being convicted of transporting stolen money and illegally structuring transactions, Mississippi Bar
v. Thompson, 797 So. 2d 197 (Miss. 2000). See also Miss. Bar v. Walls, 797 So. 2d 217 (Miss.
2001) (issuing public reprimand and ordering restitution against attorney suspended by Fifth Circuit for
failing to keep client informed, failing to file a brief timely, and failing to prepare for an appeal); Miss. Bar
v. Shah, 749 So. 2d 1047 (Miss. 1999) (imposing six-month suspension on attorney suspended from
practicing before bankruptcy courts because of improperly transferring client money in violation of order);
Miss. Bar v. Gardner, 730 So. 2d 546 (Miss. 1998) (suspending attorney for one year based on twoyear suspension rendered in Louisiana for commingling and converting client funds); Miss. Bar v. Pels,
708 So. 2d 1372 (Miss. 1998) (imposing 30-day suspension on attorney disbarred in the District of
Columbia for placing settlement funds in an account used for both business operations and personal
expenses and allowing balance to fall below amount required to satisfy third-party claims against the client's
funds); Miss. Bar v. Felton, 699 So. 2d 949 (Miss. 1997) (suspending attorney for 180 days for failing
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to comply with orders entered by the United States Bankruptcy Court); Miss. State Bar v. Edwins, 534
So. 2d 218 (Miss. 1988) (imposing two-year suspension following two-year suspension entered in
Louisiana against attorney for failing to render a proper accounting of settlement funds in two workers'
compensation cases, charging excess fees, and commingling funds).
¶14.
In the instant case, Inserra's trust account was overdrawn on four occasions due to electronic debits
with a maximum negative balance of $237.13 that was immediately resolved. Also, Inserra submitted in
mitigation during the Arizona proceedings affidavits from former clients attesting that, during Inserra's
representation of them, he never owed them any money. Furthermore, he fully cooperated with the State
Bar of Arizona since the filing of its formal complaint.
¶15.
The conduct for which Inserra was disciplined in Arizona surely warrants discipline in Mississippi.
He neglected his trust account and allowed it to become overdrawn but never converted client funds for
his own personal use, so it really cannot be said that he defiled the dignity and reputation of the legal
profession. While no clients were prejudiced or harmed by such neglect, failing to maintain a balance
sufficient to cover the electronic debits and maintain the requisite records and reconciliations warrants a
public reprimand.
¶16.
There remains in this case the issue of the relationship between Inserra's current suspension for
nonpayment of enrollment fees and the discipline imposed herein. Suspension for nonpayment of enrollment
fees is an administrative matter between the attorney and the Bar and does not involve this Court. Pursuant
to Miss. Code Ann. § 73-3-127 (2000), an attorney can be suspended for failing to pay enrollment fees
and shall be reinstated upon payment of the delinquent fees and a penalty of one-half of those delinquent
fees.
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¶17.
While Inserra is not a member in good standing, he should still be subject to discipline, whether a
public reprimand or whatever other sanction the circumstances may warrant. The West Virginia Supreme
Court of Appeals arrived at a similar conclusion, holding that the fact that an attorney was on suspension
for nonpayment of dues was not controlling in a disciplinary proceeding where the attorney was
convicted of felony embezzlement and breaking and entering. Comm. on Legal Ethics v. Six, 380
S.E.2d 219, 220 (W. Va. 1989).
CONCLUSION
¶18.
Pursuant to Rule 13, we accept the Disciplinary Commission of the Supreme Court of Arizona's
discipline of Daniel L. Inserra as conclusive proof of his failure to maintain properly his trust account.
Reciprocal sanctions are warranted; therefore, we impose a public reprimand, see Rules of Discipline for
the Miss. State Bar Rule 8.6(ii), to be enforced in the event Inserra ever seeks reinstatement under Miss.
Code Ann. § 73-3-127 by curing his enrollment fee obligations.
¶19.
DANIEL L. INSERRA SHALL BE PUBLICLY REPRIMANDED.
PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, DIAZ, EASLEY, CARLSON
AND GRAVES, JJ., CONCUR.
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