Shah v. Miss. Bar
| Docket Number: | 2005-BA-00951-SCT Linked Case(s): 2005-BA-00951-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 01-04-2007 Opinion Author: Randolph, J. Holding: Azki Shah is suspended from the practice of law for three (3) years. |
|
| Additional Case Information: |
Topic: Bar discipline - Motion to dismiss - Clear and convincing evidence - M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(a), 8.4(a), and 8.4(c) - Amendment of pleadings - M.R.C.P. 15(b) - Recusal Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Diaz and Dickinson, JJ. Non Participating Judge(s): Carlson, J. Dissenting Author : Easley, J. Dissent Joined By : Graves, J. Nature of the Case: CIVIL - BAR MATTERS |
|
| Trial Court: |
Date of Trial Judgment: 03-07-2005 Appealed from: COMPLAINT TRIBUNAL Disposition: The Tribunal chose to disbar Shah. Case Number: 2004B1499 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Azki Shah |
AZKI SHAH (PRO SE) |
||
| Appellee: | The Mississippi Bar | GWENDOLYN G. COMBS ADAM BRADLEY KILGORE JAMES RUSSELL CLARK |
|
|
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. |
|
| Topic: | Bar discipline - Motion to dismiss - Clear and convincing evidence - M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(a), 8.4(a), and 8.4(c) - Amendment of pleadings - M.R.C.P. 15(b) - Recusal |
| Summary of the Facts: | Initially, Azki Shah was issued a private reprimand, stemming from an informal complaint filed by Marcus Simmons. However, Shah chose to have the private reprimand vacated and sought a formal complaint and hearing. After the hearing, the Tribunal chose to disbar Shah. Shah was charged with violating Rule 1.3, a rule he has previously violated on three occasions; Rule 1.4, a rule Shah violated on four prior occasions; Rule 8.4(a), a rule Shah violated on three prior occasions; and Rule 8.4(c), a rule Shah violated on one previous occasion. Shah appeals. Due to the facts in the case, the leap between private reprimand and disbarment is too great. Therefore, he is suspended for three years. |
| Summary of Opinion Analysis: | Issue 1: Motion to dismiss Shah argues the Tribunal erred in not granting his Motion to Dismiss, because the Bar interviewed Simmons over the telephone without notifying Shah and giving him the opportunity to cross-examine Simmons and information from this conversation was submitted to the Committee; Simmons was not placed under oath during his telephone conversation with the Bar; and the Committee on Professional Responsibility rendered a decision without an investigatory hearing and the Committee failed to reschedule the investigatory hearing. The Bar argues Shah’s arguments are baseless as they each stem from Shah’s choice not to attend the investigatory hearing. Shah’s discipline from the Committee was vacated and he was subsequently afforded a full evidentiary hearing at which all witnesses were placed under oath and were available to be cross-examined by the parties. As Shah’s appeal stems from the discipline issued by the Tribunal after the formal disciplinary hearing took place, and the initial discipline issued by the Committee on Professional Responsibility was vacated at Shah’s request, the Tribunal did not err in denying Shah’s Motion to Dismiss. Issue 2: Clear and convincing evidence Shah argues the Bar did not prove by clear and convincing evidence he violated M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(a), 8.4(a), and 8.4(c). Shah asserted he did not file Simmons’s complaint, as to do so would have caused Shah to be subjected to sanctions, fines, payment of court costs, legal fees, and loss of credibility for filing a non-meritorious claim. He testified Simmons retained his services in December 2002, and Shah informed Simmons he did not have a claim in October 2003, when he refunded Simmons’ retainer. During the hearing on the formal complaint, Simmons produced two receipts, one for $165 paid to Shah to research the file, and a second receipt for $365 to take the case to court. Although Shah swore he charged only a one time fee of $375, both receipts were handwritten and signed by Shah. Additionally, Simmons stated he always had to initiate contact with Shah, for Shah never contacted him. The Tribunal was presented with conflicting testimony and rendered its decision accordingly. Further, the Tribunal properly considered Shah’s prior disciplinary history, his refusal to acknowledge the wrongful nature of his conduct, his refusal to accept responsibility for his misconduct, and his twenty-two year experience in the practice of law. The Tribunal did not err in its findings that Shah did indeed violate M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(a), 8.4(a), and 8.4(c). Issue 3: Amendment of pleadings At the close of its case-in-chief, pursuant to M.R.C.P. 15(b), the Bar moved to amend its formal complaint to include that Shah also violated M.R.P.C. 8.1(a), a different portion of 8.1(b), 8.4(c), and 1.16(d) based on evidence received at the hearing. Shah argues that the Tribunal erred in granting the Bar leave to amend to its pleadings. Shah never objected to Simmons’ testimony regarding Shah’s representation, nor did Shah object to the admittance of the receipts into evidence. Shah exercised his right to question Simmons regarding these matters. Therefore, pursuant to M.R.C.P. 15(b), the Tribunal did not err in granting the Bar leave to amend its pleadings to conform to the evidence presented at trial. Issue 4: Recusal Shah argues that two of the Tribunal members should have recused themselves from this case, as they had previously heard a case against Shah and imposed discipline on Shah. There is no rule of law stating that a Tribunal member (or any other judicial official) cannot hear successive cases against the same party. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
