Stewart v. Mississippi Bar

84 So. 3d 9, 2011 Miss. LEXIS 2, 2011 WL 32479
CourtMississippi Supreme Court
DecidedJanuary 6, 2011
DocketNo. 2009-BR-01954-SCT
StatusPublished
Cited by4 cases

This text of 84 So. 3d 9 (Stewart v. Mississippi Bar) 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
Stewart v. Mississippi Bar, 84 So. 3d 9, 2011 Miss. LEXIS 2, 2011 WL 32479 (Mich. 2011).

Opinions

WALLER, Chief Justice,

for the Court:

¶ 1. This is Joe Gregory Stewart’s second petition for reinstatement to the practice of law. Stewart v. Miss. Bar, 5 So.3d 344 (Miss.2008) (Stewart I). Stewart has made great strides toward rehabilitating his character, and has demonstrated a changed life in many ways. Yet because he made a false statement to the Mississippi Bar and failed to cooperate with the Bar during its investigation of his petition, we deny Stewart’s request for reinstatement.

FACTS & PROCEDURAL HISTORY

¶ 2. 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. Miss. Bar v. Stewart, 890 So.2d 900 (Miss.2004). Stewart admits that, in 1998, he paid a Tunica County sheriffs deputy to absent himself as a witness in five DUI matters in justice court. Stewart I, 5 So.3d at 346. The deputy sheriffs absence led to the dismissal of those cases. Id. Stewart self-reported his illegal activity to the Federal Bureau of Investigation (FBI). Id. He eventually was sentenced to three years probation and ordered to pay a [12]*12$20,000 fine and a $100 special assessment. Id.

¶ 3. This Court denied Stewart’s first petition for reinstatement, finding that he had failed clearly to establish a rehabilitated character. Id. at 352. Stewart contends that this, his second petition, demonstrates sufficient evidence of rehabilitation in character to warrant his reinstatement to the Bar.

¶ 4. The Bar continues to oppose Stewart’s reinstatement. The Bar opposed his first petition for reinstatement on the basis that Stewart’s misconduct was simply too egregious. Stewart I, 5 So.3d at 346. The Bar maintains that stance and, after further investigation, now gives additional reasons for its opposition: (1) Stewart failed to make any meaningful attempt to compensate the State for its pecuniary loss resulting from his misconduct; (2) he has not been forthcoming about his prior criminal history; (3) he has been untruthful and misleading about his prior military experience; and (4) in soliciting letters of recommendation, he communicated his desire to enlist in the Mississippi National Guard if reinstated, despite knowing that he was ineligible to do so because of his prior felony conviction.

DISCUSSION

¶ 5. This Court has “ ‘exclusive and inherent jurisdiction’ ” over attorney-reinstatement cases. In re Morrison, 819 So.2d 1181, 1183 (Miss.2001) (quoting In re Smith, 758 So.2d 396, 397 (Miss.1999)). We review these matters de novo, on a case-by-case basis. In re Morrison, 819 So.2d at 1183 (quoting In re Smith, 758 So.2d at 397).

¶ 6. 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.” Stewart I, 5 So.3d at 346-47 (citing In re Holleman, 826 So.2d 1243, 1246 (Miss.2002)). 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. . . .'" In re Petition of Massey, 670 So.2d 843, 845 (Miss.1996) (quoting Phillips v. Miss. Bar, 427 So.2d 1380, 1382 (Miss.1983)). Part of doing so involves meeting the jurisdictional requirements under Rule 12 of the Mississippi Rules of Discipline. Miss. R. Disc. 12; In re Benson, 890 So.2d 888, 890 (Miss.2004) (citing In re Holleman, 826 So.2d 1243, 1247 (Miss.2002)).

¶ 7. Rule 12 requires a petitioner to (1) state the cause or causes for suspension or disbarment; (2) 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; (3) make full amends and restitution; (4) demonstrate that he or she has the necessary moral character to practice law; and (5) show that he or she possesses the requisite legal education to be reinstated. Miss. R. Disc. 12.7; see also In re Benson, 890 So.2d at 890. The Bar’s position, while not a jurisdictional requirement, is a factor in deciding whether to grant reinstatement. In re Benson, 890 So.2d at 890 (citing In re Holleman, 826 So.2d at 1248).

¶ 8. It is important to point out that Stewart most likely would not be eligible for reinstatement had he committed his felony offense under our current Rules of Discipline. See Miss. R. Disc. 12(c). But he is eligible to seek reinstatement based on the rules that were in effect at the time of his offense.

I. Cause for disbarment

¶ 9. As already mentioned, the cause for Stewart’s disbarment was his guilty plea to [13]*13the felony of extortion. Stewart I, 5 So.3d at 347.

II. Full amends and restitution to anyone suffering pecuniary loss

¶ 10. In his first petition, Stewart alleged that no person, party, firm, or legal entity had suffered pecuniary loss due to his misconduct. Stewart I, 5 So.3d at 347. But we pointed out that if Stewart’s clients were in fact guilty, the State has incurred a financial loss in the form of unpaid fines. Id. at 347 (citing Miss.Code Ann. § 99-19-73(1) (Rev.2007)). We added that “[n]o determination has been made of any pecuniary loss incurred by the [S]tate.” Stewart I, 5 So.3d at 348.

¶ 11. 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. He also argues that his clients, not he, would have had to pay any applicable fines.

¶ 12. Though Stewart would have bene-fitted from some type of good-faith effort to address the Court’s stated concerns regarding the State’s financial loss, we agree that he should not be held accountable for failing to pay for hypothetical losses. There is nothing in the record to indicate a determination of guilt in any of the DUI cases. Stewart’s clients must be presumed innocent “unless and until the government proves beyond a reasonable doubt each element of the offense charged.” Clark v. Arizona, 548 U.S. 735, 766, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006) (citations omitted). Furthermore, no court or tribunal, including this Court, has ever determined the amount of the State’s pecuniary loss or directly ordered Stewart to reimburse this loss. Stewart I cited several cases to support that the State can suffer pecuniary loss because of lost fines. Id. at 347 (citing Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004); Miss. Comm’n on Judicial Performance v. Hartzog, 904 So.2d 981, 984, 986 (Miss.2004)). But the cases cited in Stewart I involved instances in which this Court explicitly required disciplined judges to reimburse their respective municipalities and counties for financial losses resulting from those judges’ misconduct. Stewart I, 5 So.3d at 347 (citing Gibson, 883 So.2d at 1158; Hartzog, 904 So.2d at 986).

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Bluebook (online)
84 So. 3d 9, 2011 Miss. LEXIS 2, 2011 WL 32479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-mississippi-bar-miss-2011.