McIntyre v. Miss. Bar
| Docket Number: | 2008-BA-01436-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 03-11-2010 Opinion Author: Pierce, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Bar discipline - Misappropriation of funds - Mitigating factors - Sanction - Representation - Rules of Professional Conduct 1.9 Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Randolph, Lamar, Kitchens and Chandler, JJ. Concurs in Result Only: Graves, P.J. Nature of the Case: CIVIL - BAR MATTERS |
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| Trial Court: |
Date of Trial Judgment: 08-13-2008 Appealed from: COMPLAINT TRIBUNAL Judge: Richard W. McKenzie Case Number: 2008-B-00083 |
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| Party Name: | Attorney Name: | |||
| Appellant: | JAMES GRANT McINTYRE |
JANE E. TUCKER, THOMAS E. ROYALS |
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| Appellee: | THE MISSISSIPPI BAR | GWENDOLYN G. COMBS, ADAM BRADLEY KILGORE, JAMES RUSSELL CLARK |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Bar discipline - Misappropriation of funds - Mitigating factors - Sanction - Representation - Rules of Professional Conduct 1.9 |
| Summary of the Facts: | The Mississippi Bar filed a formal complaint charging James McIntyre with violating multiple rules of the Mississippi Rules of Professional Conduct. McIntyre confessed to the allegations and was disbarred after a hearing before the Complaint Tribunal. McIntyre appeals. |
| Summary of Opinion Analysis: | Issue 1: Misappropriation of funds McIntyre argues that the Bar never charged him with misappropriation, and to now find him guilty of this charge would violate his due process rights. Paragraph 23, section “B” of the formal Complaint states that “McIntyre’s client and/or third party funds were not safe from being appropriated by Mr. McIntyre and others for personal or business purposes.” This allegation by the Bar is sufficient to place McIntyre on notice that his alleged misappropriation of client funds was at issue. McIntyre also argues that the burden of proof was wrongly placed upon him to prove that he did not misappropriate his clients’ funds. However, the record shows that this was not the case. Regardless of whether McIntyre eventually replaced the money, he violated the Rules of Professional Conduct at the time he initially misused money from the trust account -- no matter how briefly he kept it. Restitution by an attorney of funds previously misappropriated does not mitigate the offense. Therefore, the tribunal correctly found that the Bar proved misappropriation by clear and convincing evidence. Issue 2: Mitigating factors McIntyre argues that the tribunal failed to consider the mitigating factors he presented, specifically, the factors of cooperative attitude toward proceedings, absence of a dishonest and selfish motive, delay in disciplinary hearing, character or reputation, and remoteness of prior offenses which weigh in his favor. The tribunal is not required to accept mitigation evidence as absolute truth, but must determine how much weight to accord the evidence presented. Although McIntyre ultimately acquiesced to the proceedings, the filing of several motions to dismiss the proceedings indicates that McIntyre was not as cooperative as he asserts. With regard to absence of a dishonest and selfish motive, McIntyre admits in his brief that he “could have ceased the conduct of the bank from debiting the account,” but did not because the bank had “taken over his business,” and he feared financial ruin. This admission is indicative of a selfish motivation. Because McIntyre has taken steps to correct the problem at issue and to prevent it from occurring in the future, the mitigating factor of the delay in a disciplinary hearing is applicable in the present matter. While witnesses who testified may not have been aware of the manner in which McIntyre had handled his business and personal finances, they did present evidence that McIntyre is, in their opinion, generally of good character. Therefore, this mitigating factor is applicable in the present matter. McIntyre contends that since he has only one prior major violation and only a few minor offenses in the past, remoteness of prior offenses should weigh in his favor. His most recent offense was in 2006. While he received only a private reprimand, it is hard to say that this offense is remote in time. Therefore, this mitigating factor is inapplicable in the present matter. It is clear the tribunal erred in finding the evidence of McIntyre’s good character and the evidence that he had corrected the problems with his lawyer trust account to be inapplicable. Nonetheless, the existence of mitigating factors does not necessarily require that a less severe sanction be issued, but must be examined in light of the circumstances of the offense, the aggravating factors, and the purposes of attorney discipline. Issue 3: Sanction The purpose of discipline is not simply to punish the guilty attorney, but to protect the public, the administration of justice, to maintain appropriate professional standards, and to deter similar misconduct. Commingling of client funds is considered to be the cardinal sin of the legal profession. Consistent patterns of commingling and misappropriation, such as in the present case, generally are deserving of harsh sanctions which serve to protect the public from greater harm. Precedent clearly supports McIntyre being disbarred, particularly in light of the fact that the complaint at issue included multiple instances of commingling over a prolonged period of time. Despite McIntyre’s claims that he returned the money to the trust account, it is unclear exactly when the funds were replaced. Furthermore, the potential for the clients’ total loss of use of the funds made the potential injury great. McIntyre previously has been disciplined by the Bar for advancing money to a client in violation of Rule 1.8(e), failing to implement measures within his firm to ensure all lawyers in the firm comport with the Rules of Professional Conduct in violation of Rule 5.1, failing to respond to a lawful demand for information from a disciplinary authority in violation of Rule 8.1(b), failing to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3, failing to keep a client reasonably informed about his or her matter in violation of Rule 1.4, failing to explain a matter to a client to the extent necessary for the client to make informed decisions, and failing to abide by the client’s decision in violation of Rule 1.2(a) and Rule 1.4(b). McIntyre also has previously been suspended for one year for obtaining a loan from a client in violation of Disciplinary Rules 1-102(A)(1, 5 and 6) and 5-104(A). McIntyre has been practicing law for more than forty years. Because of the amount of time he has spent in the legal profession, McIntyre is, or should be, well aware of the duties he owes to his clients and the profession in general. Issue 4: Representation McIntyre argues that he has the right to be represented by the attorney of his choosing. The attorney he initially chose was former general counsel for the Bar when McIntyre was prosecuted for an ethical violation in 1988. The Bar argues that there was a conflict of interest, and under Rule 1.9, where a conflict exists, the opposing party must waive that conflict. The Bar has refused to waive the conflict here. Attorney-discipline cases do not trigger all constitutional rights. Therefore, McIntyre’s contention that his Sixth Amendment rights were violated is without merit. |
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