Edward O'Neal Benson v. The Mississippi Bar
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-BR-00072-SCT
IN THE MATTER OF THE PETITION
OF EDWARD O. BENSON FOR
REINSTATEMENT TO THE
PRACTICE OF LAW
DATE OF JUDGMENT:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
11/19/1999
PRO SE
ADAM KILGORE
CIVIL - BAR MATTERS
REINSTATEMENT DENIED - 08/19/2004
EN BANC.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1.
Edward O'Neal Benson petitions for reinstatement to the practice of law. The Mississippi Bar
opposes his petition for reinstatement. We deny Benson's petition.
FACTS
¶2.
On November 19, 1999, we entered an order disbarring Benson from membership in the
Mississippi Bar and revoking his license to practice law in the State of Mississippi. Miss. Bar v. Benson,
749 So. 2d 1052, 1053 (Miss. 1999). We automatically disbarred Benson in accordance with Mississippi
Rule of Discipline 6 (a) after he pled guilty to the felony of information embezzlement. Id. The Circuit
Court of Pike County convicted Benson of information embezzlement and ordered him to be placed on
probation for five years, perform 150 hours of community service, pay a fine of $1,000.00, pay court costs,
and make full restitution. Id.
DISCUSSION
¶3.
We have exclusive and inherent jurisdiction over matters regarding attorney discipline,
reinstatement, and appointment of receivers for suspended and disbarred attorneys. In re Morrison, 819
So. 2d 1181, 1183 (Miss. 2001). We review the evidence in disciplinary matters de novo on a case-bycase basis as triers of fact. Id.
¶4.
Under Mississippi Rule of Discipline 12, an attorney who has either been suspended or disbarred
for six months or longer must petition this Court in order to be reinstated and demonstrate compliance with
any related sanctions. Miss. R. D. 12. In making his petition for reinstatement, the petitioner carries the
burden of proving that he has rehabilitated himself and established the requisite moral character to entitle
him to the privilege of practicing law. In re Holleman, 826 So. 2d 1243, 1246 (Miss. 2002).
¶5.
Before we will reinstate, the fundamental issue we must address is the attorney's rehabilitation in
conduct and character since the disbarment. Id. at 1246-47. The petitioner must demonstrate this by
meeting the jurisdictional requirements of Rule 12. Id. at 1247.1
¶6.
In past decisions, we have stated varying versions of the jurisdictional requirements of Rule 12.2
Today, for the sake of jurisprudential clarity, we enunciate the following five jurisdictional requirements
1
We note that under revised Mississippi Rule of Discipline 12, any attorney who has been disbarred
for conviction of a felony offense is ineligible for reinstatement to the practice of law. Miss. R. D. 12(c).
However, Rule 12(c) only applies to felony criminal offenses which occurred after April 4, 2002; and
therefore, it does not apply to Benson's 1999 conviction.
2
Compare In re McGuire, 849 So. 2d 880, 881-82 (Miss. 2003); In re Holleman, 826 So.
2d 1243, 1247 (Miss. 2002); In re Burgin, 654 So. 2d 40, 42 (Miss. 1995). In all three of these cases
we enunciated a similar, but differing, set of jurisdictional requirements.
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which will henceforth apply to Rule 12 reinstatement petitions. The petitioner must: (1) state the cause or
causes for suspension or disbarment; (2) give the name and current address of all persons, parties, firms,
or legal entities who suffered pecuniary loss due to the improper conduct; (3) make full amends and
restitution, (4) show that he has the necessary moral character for the practice of law; and (5) demonstrate
the requisite legal education to be reinstated to the privilege of practicing law. Though not a jurisdictional
requirement, we consider the Bar's position as to reinstatement as a factor in determining whether to grant
the petition. Id. at 1248.
¶7.
First, in giving the cause for disbarment, Benson merely states that he "pled guilty to information
embezzlement" and that he does not dispute the facts warranting discipline. Though Benson may not
dispute the facts warranting discipline, he leaves us wholly uninformed as to what those facts are. Benson
is not required to give a meticulous account of his past indiscretions, but he does have a responsibility to
give us a clear description of what improper actions led to his disbarment. Merely mentioning the act for
which he pled guilty does not suffice, and he has therefore failed this prong of the jurisdictional requirement.
¶8.
Second, Benson totally neglects to give the names and current addresses of those who suffered
pecuniary loss as a result of his improper conduct. Instead, without explaining who "The Brumfield[s]" are,
he flatly alleged that the pecuniary loss he had caused them had either been settled or compromised. The
Bar also noted that the Brumfields were not the only parties who suffered pecuniary loss as a result of
Benson's conduct; yet he neglected to mention any others. He then gave the Court the name, address, and
phone number of his probation officer and the District Attorney who handled his case. The information
provided is clearly insufficient, and Benson fails this prong of the jurisdictional requirement as well.
¶9.
Third, as a prerequisite to fully making amends and restitution, the circuit court required Benson
to, among other things, remain on probation for a period of five years, perform 150 hours of community
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service work, and make full restitution. The Bar noted that Benson did pay investigation and prosecution
costs, and Benson provided evidence which showed that the circuit court placed him on non-reporting
probation status in January 2002 after finding that Benson "had complied with all the requirements while
on probation."
¶10.
However, rather than providing further proof of his making amends and restitution, Benson baldly
asserts that restitution was a condition to his being placed on non-reporting status, and apparently believes
that a copy of the circuit court's order is sufficient to establish that he satisfied the third prong of the
jurisdictional requirement. It is not. Furthermore, in regard to our 1999 order that Benson file affidavits
stating that he complied with the order, Benson says that he cannot "confirm or deny whether an affidavit
was filed with the Court" within the prescribed time. Solid proof of a disbarred attorney's full completion
of restitution to those he harmed is required before an attorney may be reinstated, and without further proof
of such restitutionary measures, Benson has not met the third jurisdictional requirement for reinstatement.
¶11.
Fourth, in attempting to show that he has the necessary moral character to be reinstated to the
practice of law, Benson asserts, among other things, that he is married with three children. He also claims
to have held an interest in a number of businesses, been involved in local political campaigns, and abstained
from tobacco, drugs, alcohol, and gambling. Benson also attached his income tax statement and a list of
the names and addresses of over two dozen character references.
¶12.
It is not the proper role of this Court to contact references, and an income tax statement alone
hardly suffices as proof of a petitioner's moral character. Benson has not offered any letters of
recommendation on his behalf, given evidence of community service, or shown any substantial verification
of his employment since disbarment. Without further proof, Benson's attempt at demonstrating the
necessary moral character for the practice of law is wholly insufficient.
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¶13.
Fifth, in support of his contention that he has the requisite legal education to be reinstated to the
privilege of practicing law, Benson admits that he has not attended one continuing legal education course
in the last four years, but explains that he could not do so at the expense of taking time away from his
businesses. He does assert that he "has taken steps to enroll" in an upcoming CLE course. Under Rule
12, disbarred attorneys who eventually wish to be reinstated have a responsibility to show a continuing
commitment to staying informed and competent in the practice of law. Benson's failure to make even the
least attempt in doing so demonstrates that he has failed the fifth prong of the jurisdictional requirements.
¶14.
Finally, we do take into consideration the recommendation of the Mississippi Bar. The Bar
opposed Benson's reinstatement in light of his failure to provide sufficient evidence that he has met the
jurisdictional requirements of Rule 12. Although the Bar's recommendation is not conclusive, we do
carefully consider it and, in this case, thoroughly agree with that recommendation.
CONCLUSION
¶15.
We deny Benson's petition for reinstatement to the Mississippi Bar and the reissuance of his license
to practice law in this State.
¶16.
PETITION FOR REINSTATEMENT TO THE PRACTICE OF LAW DENIED.
SMITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
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