Mississippi State Bar Ass'n v. Cotter

512 So. 2d 1288, 1987 Miss. LEXIS 2819
CourtMississippi Supreme Court
DecidedSeptember 23, 1987
DocketNo. CM-255
StatusPublished
Cited by2 cases

This text of 512 So. 2d 1288 (Mississippi State Bar Ass'n v. Cotter) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mississippi State Bar Ass'n v. Cotter, 512 So. 2d 1288, 1987 Miss. LEXIS 2819 (Mich. 1987).

Opinion

ON MOTION TO DISMISS AND ANSWER

HAWKINS, Presiding Justice,

for the Court:

The Mississippi State Bar filed a formal complaint with the Court against John T. Cotter, an attorney pursuant to Rule 6 of the Rules of Discipline for the Mississippi [1289]*1289State Bar, attaching thereto certified copies of eight convictions of Cotter in the Justice Court of Jackson County for executing checks when he had insufficient funds in the bank to cover them. We have reviewed Cotter’s response and concluded he should be disbarred.

FACTS

John T. Cotter, an attorney, over a period of time executed eight checks to business establishments in Jackson County for merchandise or cash when he had insufficient funds in the bank to pay the amount of the check.

On May 20, 1984, he executed a check to a nursery and floral business for $31.48 returned for insufficient funds. A criminal affidavit was filed against him in the Jackson County Justice Court on November 14, 1984.

On May 30, 1984, he executed a check to “Joe’s Short Stop” for $15.00 returned for insufficient funds. A criminal affidavit was filed against him in the justice court on November 30, 1984.

On June 2,1984, he executed a check to a “K-Mart” store for $40.20 returned for insufficient funds. A criminal affidavit was filed against him in the justice court on January 23, 1985.

On June 3,1984, he executed a check to a Piggly Wiggly store for $67.69 which was returned for insufficient funds. A criminal affidavit was filed against Cotter in the justice court on August 9.

On November 15, 1985, he executed a check to “Publik Warehouse” for $100 returned for insufficient funds. A criminal affidavit was filed against him in the justice court on December 23.

On November 30, 1985, he executed a check to “K-B Drugs” for $34.00 returned for insufficient funds. A criminal affidavit was filed against him in the justice court on January 24, 1986.

On December 3, 1985, he executed a check to “Tastee Freeze #2” for $9.86 returned for insufficient funds. A criminal affidavit was filed against him in the justice court on January 23, 1986.

For these seven offenses he was found “guilty in absentia” on March 3, 1986, by the justice court, and fined $25.00 plus $27.50 costs in each case, and ordered to make restitution. He paid each of these fines.

On July 1, 1986, he executed a check to “Gautier Chevron” for $40.00 returned for insufficient funds. A criminal affidavit was filed against him in the justice court on August 29. Cotter pleaded guilty on October 8, was fined $50.00 plus costs, with the fine suspended, and also ordered to make restitution.

The criminal affidavits charged him with obtaining money under false pretenses by making, issuing and delivering a check when he had insufficient funds to pay the check in the bank, and that it was with the intent to defraud.

No appeal was taken by Cotter as to any of the convictions in the justice court.

On February 6, 1987, the Mississippi State Bar filed a formal complaint against Cotter for being found guilty of violating Miss.Code Ann. § 97-19-55 in these cases, alleging these convictions authorized his disbarment under Rule 6 of the Rules of Discipline for the Mississippi State Bar. A certified abstract of the court record in each of Cotter’s convictions was attached to the complaint.

On February 9, 1987, this Court issued a show cause order to Cotter giving him twenty days to respond. Paragraph 7 of our order recites:

(7) That the response hereby permitted shall limit itself to whether or not the crimes to which Respondent was found guilty are beyond the scope of Rule 6 of the Rules of Discipline for the Mississippi State Bar; whether or not these convictions have been reversed upon appeal; and whether or not Respondent’s rights under the Constitution of the United States or the State of Mississippi have been or in any way will be violated by proceeding under the provisions of the Rules of Discipline for the Mississippi State Bar....

[1290]*1290In due course Cotter, through his counsel, has filed a “Motion to Dismiss and Answer.” The substance of this response may be summarized as follows:

—He admitted he executed all of the checks when he had insufficient funds with which to pay them. He denied, however, that any such check was executed with intent to defraud, and affirmatively alleged that restitution had been made as to each check.
—He claimed the convictions against him for the first seven bad checks were void because he was not tried within 270 days from the time of arrest. He also alleged that as to each of these he was unaware of his conviction in the justice court.
—As to the last check for $40.00 given on July 1, 1986, he admitted he conviction, but denied the check was given with any intent to defraud or deceive.

LAW

None of Cotter’s convictions was reversed upon appeal, for no appeal was taken.

Cotter makes no claim that any constitutional right was violated, unless his claim that he was not tried within 270 days of arrest can be construed of constitutional dimension.

As to the first direction of our order, whether the convictions constitute a violation of the offenses under the scope of Rule 6, Cotter makes no direct response, either, except his contention he did not execute any check with any intent to defraud or deceive.

Addressing Cotter’s claim of delay in bringing him to trial, in that he was not tried within 270 days from arrest, he cites no statute in support of such allegation. Miss.Code Ann. § 99-17-1 (Supp.1986) applies to indictments in circuit court and is limited to 270 days after an accused has been arraigned. It is clear, therefore, this statute has no application to Cotter.

The pertinent parts of Rule 6 and 6.1 of the Rules of Discipline are as follows:

Rule 6: Suspensions and Disbarments based on Other Proceedings
(a) Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted in any court of any state or in any federal court, or enter a plea of guilty or a plea of nolo conten-dere therein, of felony (other than manslaughter) or of any misdemeanor involving fraud, dishonesty, misrepresentation, deceit ... a certified copy of the judgment of conviction shall be presented to the Court by General Counsel and shall be conclusive evidence thereof. The court shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.
3¡í ⅜ Sfc * * *
(d) When time for appeal from judgment or conviction provided above expires or all appeals have been concluded without reversal, General Counsel shall certify that result to the Court, and the Court shall forthwith enter an order of disbarment.
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Cite This Page — Counsel Stack

Bluebook (online)
512 So. 2d 1288, 1987 Miss. LEXIS 2819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-state-bar-assn-v-cotter-miss-1987.