Miss. Bar v. Shaw
| Docket Number: | 2003-BA-01702-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 06-23-2005 Opinion Author: Randolph, J. Holding: 90 DAY SUSPENSION |
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| Additional Case Information: |
Topic: Bar discipline - Advances to clients - Miss.R.Prof.Conduct 1.8(e) - Sanction Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson and Dickinson, JJ. Non Participating Judge(s): Waller, P.J., and Diaz, J. Dissenting Author : Graves, J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - BAR MATTERS |
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| Trial Court: |
Date of Trial Judgment: 07-10-2003 Appealed from: COMPLAINT TRIBUNAL Judge: Ed Patten Disposition: Unanimously found that a thirty-day suspension was appropriate. Case Number: 2003-B-115 |
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| Party Name: | Attorney Name: | |||
| Appellant: | The Mississippi Bar |
ADAM BRADLEY KILGORE, GWEN COMBS |
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| Appellee: | Frank H. Shaw, Jr. | ERIK M. LOWREY, ROBERT R. MARSHALL, DAVID ALAN PUMFORD, RICHARD ANTHONY FILCE, SHAWN M. LOWREY |
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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 - Advances to clients - Miss.R.Prof.Conduct 1.8(e) - Sanction |
| Summary of the Facts: | Attorney Frank H. Shaw, Jr. submitted detailed information to the Mississippi Bar regarding advancements which he made to clients. The Bar began an investigation, resulting in a formal Complaint being filed by the Bar alleging that Shaw violated Rules 1.8 and 8.4 of the Mississippi Rules of Professional Conduct. Shaw filed a Response, pled affirmative matters and requested a formal hearing before a Tribunal. The Tribunal issued a Judgment granting a directed verdict dismissing all claims under M.R.P.C. 8.4(d) and unanimously found, by clear and convincing evidence, that Shaw violated M.R.P.C. 1.8(e). The Tribunal unanimously found that a thirty-day suspension was the appropriate sanction for these violations. The Mississippi Bar appeals. |
| Summary of Opinion Analysis: | The Bar argues that a suspension of significant duration is the appropriate discipline to be imposed upon Shaw. In assessing a sanction in an attorney discipline case, the Court considers the nature of the misconduct involved; the need to deter similar misconduct; the preservation of the dignity and reputation of the profession; the protection of the public; the sanctions imposed in similar cases; the duty violated; the lawyer's mental state; the actual or potential injury resulting from the misconduct; and the existence of aggravating and/or mitigating factors. The nature of the conduct involved included 555 advances made to sixty-seven clients over a three-year period totaling more than $160,000. Approximately $30,000 of the advances were made after a settlement had been agreed upon, but before the settlement documents were executed and funds were available for distribution. A majority of the advances were for basic necessities such as utilities, rent, food, travel, medical, and other living expenses. Although Shaw made these advances to clients after an inquiry that the clients were in dire and necessitous circumstances, he failed to report these instances as required by M.R.P.C. 1.8(e). There is a need to deter similar conduct of making advancements without reporting them. Furthermore, advancing large sums of money to clients may frustrate a party’s willingness or ability to settle and/or cause a conflict of interest for the attorney. No evidence was presented that Shaw’s clients were made promises of any future payments. Nor does the evidence presented give the impression that Shaw had a revolving credit plan for his clients. Shaw self-reported these violations to the bar. However, the self reporting of the violations came only after an argument over fees arose and after his former law partner had threatened disclosure. The repeated, ongoing nature of the violations, coupled with Shaw’s knowing violation of the Rule are aggravating factors. Mitigating factors include the fact that Shaw disclosed all advances made, to whom, and disclosed the amounts of each advance. Shaw did not make any advances subsequent to reporting the violations to the Bar and cooperated fully with the Bar in their investigation into these matters. Shaw has never had any prior disciplinary action taken against him and has never been accused of any deceitful act in his practice. Shaw appears to enjoy a good reputation and has served his country in the military since 1981 and now is a Judge Advocate in the Mississippi Air National Guard. Shaw’s conduct did not amount to buying clients, but rather a violation of the reporting requirements of Rule 1.8(e). The reporting requirements must be adhered to in order to preserve the dignity of the profession and to protect the attorney-client relationship. Because of the substantial and numerous violations by Shaw, he is suspended from the practice of law for 90 days. |
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