Stewart v. Miss. Bar


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Docket Number: 2009-BR-01954-SCT
Linked Case(s): 2009-BR-01954-SCT ; 2009-BR-01954-SCT

Supreme Court: Opinion Link
Opinion Date: 01-06-2011
Opinion Author: Waller, C.J.
Holding: Reinstatement denied.

Additional Case Information: Topic: Bar discipline - Reinstatement - Miss.R.Disc. 12 - Expungement - Section 41-29-150 (d)(2)
Judge(s) Concurring: Carlson, P.J., Randolph, Lamar, Chandler and Pierce, JJ.
Dissenting Author : Dickinson, J.
Dissent Joined By : Kitchens, J.
Concurs in Result Only: Graves, P.J.
Nature of the Case: CIVIL - BAR MATTERS

Trial Court: Date of Trial Judgment: 09-02-2004
Case Number: 2004-BD-455-S

  Party Name: Attorney Name:  
Appellant: Joe Gregory Stewart




MICHAEL B. MARTZ



 

Appellee: The Mississippi Bar ADAM B. KILGORE  

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Topic: Bar discipline - Reinstatement - Miss.R.Disc. 12 - Expungement - Section 41-29-150 (d)(2)

Summary of the Facts: Joe Gregory Stewart was disbarred in 2004 after he pleaded guilty in federal court to one count of conspiracy to commit extortion under color of official right. He has now filed a second petition for reinstatement to the practice of law.

Summary of Opinion Analysis: A petitioner seeking reinstatement carries the burden of proving that he has rehabilitated himself and has established the requisite moral character to entitle him to the privilege of practicing law. He or she must demonstrate a firm resolve to live a correct life evidenced by outward manifestation sufficient to convince a reasonable mind clearly that the person has reformed. Rule 12 of the Mississippi Rules of Discipline requires a petitioner to state the cause or causes for suspension or disbarment; provide the names and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss as a result of the improper conduct; make full amends and restitution; demonstrate that he or she has the necessary moral character to practice law; and show that he or she possesses the requisite legal education to be reinstated. The cause for Stewart’s disbarment was his guilty plea to the felony of extortion. Stewart says that he is “extremely remorseful” for the State’s financial loss and is prepared to pay whatever is required, but only after an appropriate authority has determined the amount, if anything, he owes. Otherwise, according to Stewart, the State’s financial loss is purely speculative. Because Stewart has paid all of the fines and costs he owes, he has made full amends and restitution. The Bar deposed Stewart twice in its investigation of this petition. During his first deposition, the Bar asked Stewart whether he had ever had anything nonadjudicated or expunged. Stewart replied, “No.” After this first deposition, the Bar received two letters opposing Stewart’s reinstatement which stated that Stewart had had a conviction expunged during the 1980s. At the second deposition, the Bar confronted Stewart about the prior expungement. Stewart explained that he previously had answered “no” because he did not believe that he had had anything expunged. The word “expungement,” he said, had never been used with him. Stewart said that, since then, he had retrieved some paperwork from his deceased grandfather’s files and learned that he did, in fact, have an expunged record. Although Stewart acknowledged the expunged record, he refused to discuss the underlying conduct. When the Bar asked Stewart if he had been convicted of a criminal act other than the one leading to his disbarment, he invoked the protections of section 41-29-150 (d)(2). Stewart continues to insist that an expungement is not public record, and that it can be used only for the limited purposes prescribed by law. He contends that even asking someone if they have an expunged matter may violate that person’s due-process and equal protection rights. Mississippi law restricts who may access expungement orders and sets out the purposes for which that information may be used. Because the Supreme Court has exclusive authority over admission and reinstatement to practice law, the Bar had the right to ask Stewart if he had an expunged record, and the Bar could inquire about the underlying circumstances or offense. By seeking readmission to practice law, Stewart opened his past to inspection and could not refuse to disclose expunged criminal records. Requiring such disclosure furthermore did not violate Stewart’s constitutional rights. Because the Bar had a right to ask Stewart whether he had had anything expunged, Stewart had an obligation to answer the question truthfully. Stewart said that his reason for not doing so was that the word “expungement” had never been used with him. But the word “expunge,” or some derivation thereof, is used no less than nine times between the two expungement-related orders. The word “expunging” is even included in the title of one order. Stewart’s failure to respond truthfully to the Bar’s clear, direct question reflects negatively on his character and may alone be sufficient grounds for denial of reinstatement. Stewart only exacerbated the situation by refusing to cooperate with the Bar and answer its additional inquiries concerning the expungement. An additional reason that the Bar opposes Stewart’s reinstatement is its perception that Stewart was untruthful and misleading about his prior military experience. At his first deposition, when asked whether he had ever served in the military, Stewart responded, “No.” During his second deposition, it was brought out, apparently by Stewart himself, that he had undergone basic training with the United States Marine Corps in 1987. Stewart explained that he had completed basic training but was not allowed to participate in the commissioning ceremony. Stewart said that the Marines would not allow him to be commissioned because of certain information it had received from the Mississippi Bureau of Narcotics. Considering the record in its entirety, it does not appear that Stewart was attempting to deceive the Bar about his prior military experience. The Bar, in fact, already knew about his time with the Marines. Many of Stewart’s civic, church, and charitable activities were already noted but he has also been involved in more civic, church, and community involvement since then. Stewart includes letters of recommendation from nine of the same individuals as before. Each of these individuals maintains their support for Stewart’s reinstatement and speaks highly of his personal character, his commitment to family, and his charitable deeds. In addition to the individuals who submitted letters of support for his first attempt at reinstatement, Stewart now produces eighteen more letters of recommendation, eleven of which are authored by members of the Mississippi Bar. After his disbarment, Stewart operated a hotel that he and his wife had purchased. He did this until they sold the hotel, sometime around March 2008. He and his wife used the proceeds from that sale to finance a triple-net lease on three Wendy’s restaurants. These three properties are currently his only source of income. Stewart continues to express a desire to associate with another attorney in a small real estate practice. He has strong opinions about child-support enforcement and even mentions the possibility of working for the Mississippi Department of Human Services in the child-support division. Stewart also expresses a desire to enlist in the Mississippi National Guard. Stewart was not deceitful, as claimed by the Bar, in expressing a desire to join the Guard. While there is conflicting evidence about the felony-waiver issue, Stewart received information from several knowledgeable individuals, each of whom indicated that felony waivers are available. Additionally, his solicitation letter acknowledged that he had to overcome the waiver issue before being able to enlist. There is no evidence in the record to suggest that Stewart suffers from any mental or emotional problems. Stewart completed more than twenty-six hours of continuing legal education in 2009, including four hours of ethics. He also passed the Multi-State Professional Responsibility Exam with a scaled score of not less than 80. Despite the factors weighing in his favor, Stewart’s second petition for reinstatement still falls short. Stewart answered falsely when the Bar asked if he had an expunged offense. And when forced to acknowledge the expungement, Stewart refused to disclose any information about the underlying offense. Because of these deficiencies, and considering the Bar’s continued opposition to his reinstatement, Stewart’s second petition for reinstatement is denied.


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