The MISSISSIPPI BAR
v.
Paula E. DRUNGOLE.
Supreme Court of Mississippi.
*964 Michael B. Martz, Jr., Adam B. Kilgore, attorneys for appellant.
Jerry Askew, attorney for appellee.
EN BANC.
*965 GRAVES, Justice, for the Court.
¶ 1. This bar discipline case is before the Court en banc on formal complaint filed by the Mississippi Bar (hereinafter "the Bar") seeking discipline against Paula E. Drungole under the provisions of Rule 13 of the Rules of Discipline for the Mississippi State Bar. Drungole is a licensed attorney in this State and is subject to the disciplinary jurisdiction of this Court.
¶ 2. On or about January 13, 2003, the United States Bankruptcy Court for the Northern District of Mississippi entered a consent order enjoining Drungole from: (1) the practice of law before any bankruptcy court in the United States; (2) representing or giving legal advice to any entity concerning the bankruptcy laws of the United States; and (3) any and all acts that constitute the practice of law on a bankruptcy issue. The actions which prompted the bankruptcy court's order are set forth below.
¶ 3. Drungole, a practicing bankruptcy attorney, filed a bankruptcy petition styled In Re: Camesha L. Robertson, No. 02-12292, in the United States Bankruptcy Court for the Northern District of Mississippi on April 12, 2002. On the previous day, she filed a required disclosure of compensation stating that she had not received compensation. Upon filing the petition, Drungole paid $100 of the $200 filing fee and filed an application to pay the remainder in installments. The court issued an order authorizing Drungole to pay the remainder in one payment of $100 no later than May 20, 2002. Drungole failed to pay the remainder by the specified date. On June 25, 2002, the clerk of the Bankruptcy Court notified the United States Trustee of the delinquent fee. The Trustee filed notice of potential dismissal on July 2, 2002, but Drungole never responded and never paid the $100 remainder owed.
¶ 4. The Trustee filed a motion for sanctions, to examine fees and for other relief against Drungole. The Trustee alleged two violations concerning the Federal Rules of Bankruptcy Procedure and submitted evidence along with his motion. Money order receipts revealed that Drungole's client gave her $425[1] on March 30, 2002, to satisfy filing fees and a portion of Drungole's attorney fees. The Trustee alleges that Drungole accepted the $425 before satisfying the clerk's filing fee. Rule 1006 of the Federal Rules of Bankruptcy Procedure requires payment of the filing fees in full before the attorney may accept fees. Also, in the fee disclosure statement required by Rule 2016 of the Federal Rules of Bankruptcy Procedure, Drungole stated that she had received no compensation, when in fact she had received $425 for filing fees and compensation. Drungole knew that possession of those funds made her ineligible to request installment payments; nonetheless, she filed the request. To address Drungole's misconduct, the Trustee requested that the bankruptcy court impose any and all appropriate sanctions, including disgorgement of any and all fees paid to her in connection with this matter, certification of the matter to district court for imposition of the appropriate sanctions, and the disbarment of Drungole from the practice of law in federal court.
¶ 5. Filed with the Bar's formal complaint are certified copies of the motion for sanctions to examine fees and the order entered by the United States Bankruptcy Court for the Northern District of Mississippi, *966 which constitute conclusive evidence of Drungole's guilt.
¶ 6. The Mississippi Bar sent a summons and notice to respondent at her last known address with a copy of the formal complaint attached. Drungole, by and through counsel, timely filed a response.
¶ 7. The Bar recommends the imposition of reciprocal discipline by this Court, including the payment of all costs and expenses associated with this action. Drungole contends that she should not be further punished and that the Bar's complaint against her should be dismissed.
DISCUSSION
¶ 8. This Court has exclusive and inherent jurisdiction in matters pertaining to attorney discipline. R. Discipline Miss. State Bar 1(a); Asher v. Miss. Bar,
¶ 9. Typically, the Bar bears the burden of showing that an attorney's actions constitute professional misconduct by "clear and convincing evidence." Goodsell v. Miss. Bar,
Rule 13. DISCIPLINE IN ANOTHER JURISDICTION
When an attorney should be subjected to disciplinary sanctions in another jurisdiction, such sanction shall be grounds for disciplinary action in this state, and certification of such sanction by the appropriate authority of such jurisdiction to the Executive Director of the Bar or to the Court, shall be conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered, and it will not be necessary to prove the grounds for such offense in the disciplinary proceeding in this state. The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.
Procedure
(13.1) Upon receipt by the Executive Director of a certified copy of disciplinary sanctions imposed by the bar or a court in another jurisdiction or by a Mississippi trial court or local bar association upon an attorney subject to these rules, the Executive Director shall immediately docket same as a complaint, charge or grievance and shall immediately forward the matter to Complaint Counsel. Complaint Counsel shall present the certified copies of the disciplinary action of the other court or Bar to the Court wherein the sole issue to be determined shall be the extent of final discipline to be imposed on the attorney in this state, which discipline may be less or more severe than the discipline imposed by the other jurisdiction.
*967 R. Discipline Miss. State Bar 13. Conclusive evidence has already been established; and therefore, it is therefore unnecessary for this Court to engage in additional fact-finding.
¶ 10. Pursuant to Rule 13, the Bar admits that the punishment imposed by this Court could be more or less severe than that imposed by the bankruptcy court, Mississippi Bar v. Gardner,
¶ 11. In her response to the Bar's formal complaint, Drungole asserts one general affirmative defense that allegedly explains her conduct. Drungole argues, as she did in the consent order, that "she does not admit to any wrongdoing and does not admit any facts set forth in [the consent order]," but "consented to being enjoined from the practice of law for the time period stated in the Order" in order to "prevent further embarrassment and humiliation." Drungole alleges now, as she did when the motion for sanctions was filed against her, that the "allegations set forth in the Motion occurred due to mistake and inadvertence and was not done by a deliberate and intentional act on behalf of [her] to defraud the client or to deceive the Court."
¶ 12. We have held in attorney discipline matters that the purpose of discipline is not simply to punish the guilty attorney, but to protect the public, the administration of justice, to maintain appropriate professional standards, and to deter similar conduct. Miss. Bar v. Coleman,
¶ 13. Factors which should be considered when imposing discipline include, but are not limited to the following:
(1) the nature of the misconduct involved;
(2) the need to deter similar misconduct;
(3) the preservation of the dignity and reputation of the legal profession;
(4) the protection of the public; and
(5) sanctions imposed in similar cases.
Pels,
(1) the duty violated;
(2) the lawyer's mental state; and
(3) the actual or potential injury resulting from misconduct, and the existence of aggravating or mitigating factors.
Id.
Nature of the Misconduct
¶ 14. Drungole made material misrepresentations to the U.S. Bankruptcy Court, violated the Bankruptcy court's order to have the filing fee accompany the petition, and violated Rule 1006 of the Federal Rules of Bankruptcy Procedure which requires *968 payment of the filing fees in full before the attorney may accept fees.
Need to Deter Similar Conduct
¶ 15. The sanction we impose in the case sub judice reflects this Court's position that this conduct among members of the Bar is wholly inappropriate and is sanctionable under the Mississippi Rules of Professional Conduct.
Sanctions Imposed in Similar Case
¶ 16. Under the facts in this case, the consent order and injunction issued by the bankruptcy court enjoined Drungole from the practice of law effective January 13, 2003. Further, the injunction was to remain in full force and effect to February 12, 2003, and terminate on that date only if Drungole timely paid to the bankruptcy court clerk the sum of $100.00, paid the debtor the sum of $375.00 and submitted proof to the bankruptcy court that these funds had been paid and the required hours of continuing legal education had been completed. In her response, Drungole agreed to and subsequently paid the court, disgorged herself of the fees from the client and completed twelve hours of continuing legal education in bankruptcy law. While the bankruptcy court's order was conditioned upon Drungole performing the aforementioned tasks, the resulting length of her suspension before the bankruptcy court was only for a period of thirty days.
¶ 17. In assessing sanctions for reciprocal attorney discipline cases, we give deference to the sanction imposed by the foreign jurisdiction. After all, this Court takes the findings of the foreign jurisdiction as conclusive evidence of professional misconduct. See R. Discipline Miss. State Bar 13. In accepting the findings of the foreign jurisdiction, our focus on the due process protections afforded the attorney must never waiver. See generally Selling v. Radford,
¶ 18. We note that in reciprocal attorney discipline cases, a majority of our sister states have elected to impose sanctions equal to or less than those issued by the foreign jurisdiction with few exceptions. See People v. Distel,
¶ 19. Because this Court takes the cold record of the foreign jurisdiction as conclusive, we hold that in reciprocal attorney discipline cases, deference must be afforded to the foreign jurisdiction's findings. Clearly Rule 13 provides that this Court can impose whatever sanction it deems appropriate in reciprocal attorney discipline cases. However, Rule 13 is not an invitation to disregard logic, reason or common sense. Only under extraordinary circumstances should there be significant variance from a sanction imposed by the foreign jurisdiction. The case sub judice does not present any extraordinary circumstances which compel, justify or support variance from the foreign jurisdiction's sanction.
¶ 20. We deem proper and hereby order a thirty-day suspension of Paula E. Drungole from the practice of law in Mississippi; that she shall be reinstated to practice upon expiration of the thirty-day period and pursuant to the provisions of Rule 12 of the Rules of Discipline of the Mississippi. Further, all costs of this disciplinary proceeding are taxed against Drungole.
¶ 21. PAULA E. DRUNGOLE IS SUSPENDED FROM THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI FOR A PERIOD OF THIRTY DAYS FROM THE DATE OF THIS OPINION; SHE SHALL ONLY BE REINSTATED UPON EXPIRATION OF THIRTY DAYS FROM THE DATE OF THIS OPINION PURSUANT TO RULE 12 OF THE MISSISSIPPI RULES OF DISCIPLINE.
WALLER, P.J., EASLEY, CARLSON, AND DICKINSON, JJ., CONCUR. RANDOLPH, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY SMITH, C.J., AND COBB, P.J. DIAZ, J., NOT PARTICIPATING.
RANDOLPH, Justice, Concurring in Part and Dissenting in Part.
¶ 22. "Deceit, whether visited on a court or an attorney who is an officer of the court or a private citizen, should be dealt with in a firm manner. To allow an attorney to act in such a manner without imposing appropriate sanctions is tantamount to condoning acts of deceit." Miss. Bar v. Robb,
¶ 23. I agree with the majority in suspending Paula E. Drungole from the practice of law in this State because of her false representation to the United States Bankruptcy Court for the Northern District of Mississippi that she had received no compensation, thus gaining eligibility to pay her filing fees in installment payments, and her false representation that she was in compliance with bankruptcy procedures requiring payment of filing fees in full before accepting compensation.
¶ 24. Drungole agreed to the entry of a consent order and injunction issued by the United States Bankruptcy Court for the Northern District of Mississippi, which enjoined her from practicing bankruptcy law for one month.[2] However, Drungole should be suspended for a minimum of five *971 additional months.[3]See generally Miss. Bar v. Shah,
¶ 25. This Court is free to evaluate the discipline imposed on an attorney and on review modify punishment as needed to best serve the interests of the Bar and the public. Parrish v. Miss. Bar,
¶ 26. The majority opines: "In assessing sanctions for reciprocal attorney discipline cases, we give deference to the sanction imposed by the foreign jurisdiction." This is contrary to prior decisions of this Court.[4]See Miss. Bar v. Gardner,
¶ 27. We do take the finding of guilt of the foreign jurisdiction as conclusive evidence and afford it deference because Rule 13 requires that we "shall" do same. However, Rule 13 makes no statement and offers no inference that this Court is required to give, as the majority suggests, deference to the actual sanction imposed. See R. Discipline Miss. State Bar 13. Not only does Rule 13 not address giving deference to the sanction, the majority's failure to cite prior cases of this Court to *972 support its newly created rule repudiates the unambiguous language of Rule 13, which states that the sole issue for this Court to decide is the extent of final discipline, which may be more or less severe than that imposed by the foreign jurisdiction. See R. Discipline Miss. State Bar 13.
¶ 28. The majority errs in failing to cite controlling cases, for this Court's holdings have been clearly opposite. Therefore, by adopting this flawed reasoning, the majority should necessarily overrule all cases to the contrary and then rewrite Rule 13.
¶ 29. Furthermore, without citing prior case law or a rule, the majority opines: "Only under extraordinary circumstances should there be significant variance from a sanction imposed by the foreign jurisdiction." This opinion is not supported by our decisions. See Gardner,
¶ 30. This proposition is also completely at odds with Rule 13. Rule 13 does not state that we "shall" give deference to the actual sanction imposed by the foreign jurisdiction. Leaving this Court with only the sole determination as to what the discipline shall be in this State, the drafters of the Rules evidently deemed it sufficiently important to require this Court to grant deference to the foreign jurisdiction's findings in regard to guilt, but did not deem it appropriate for this Court to be submissive to a foreign jurisdiction regarding the sanction imposed and to abrogate not only this Court's inherent right to determine the discipline, but its statutory and rule imposed duty. See Miss.Code Ann. § 73-3-341 (Rev.2004); R. Discipline Miss. State Bar 1.
¶ 31. The majority seeks to buttress its newly created standard by relying on cases[5] from other jurisdictions. However, according to the Rules of Discipline for the Mississippi State Bar, this Court retains the exclusive jurisdiction to deal with bar disciplinary matters and unambiguously retains the power to impose discipline as it deems fit. See R. Discipline Miss. State Bar 1, 13. The majority relies on cases from other jurisdictions notwithstanding the fact that there is no necessity or valid reason in doing so, as this Court has its own clearly established body of law and Rule 13 which are directly on point with the issue presented in the case sub judice. *973 Assuming arguendo, this State's law regarding sanctions to be imposed by this Court represents a minority view, this State has enacted its own body of law, and Rule 13 remains the law to which we are bound, until such time as Rule 13 is repealed or amended and all cases in support thereof are explicitly overruled. This Court is not bound by the law of foreign jurisdictions.
¶ 32. Our Court should not focus on foreign jurisdiction punishment or foreign jurisdiction laws, but rather should rely and adhere to the principle of stare decisis. This Court should not create a new standard and blindly adhere to what a foreign jurisdiction imposes, especially when there is no evidence that the same exact rules or law are part of the foreign jurisprudence. Rather, this Court should rely upon its own body of law to ensure predictability and consistency. See Myers,
¶ 33. This Court is duty-bound to honor Rule 13 and prior case law when disciplining an attorney. Consequently, I cannot agree with either the majority's logic or reasoning, as both ignore prior case law and the clear language contained in Rule 13, which states: "The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction." (Emphases added).
¶ 34. The majority opines: "Clearly Rule 13 provides that this Court can impose whatever sanction it deems appropriate. However, Rule 13 is not an invitation to disregard logic, reason and common sense." The majority's assault on stare decisis suggests that this Court's prior rulings disregard logic, reason and common sense. I cannot join in this attack.
¶ 35. Let us not forget that Drungole intentionally made more than one false representation to the bankruptcy court, thereby prejudicing her client, the court and the public's confidence in the Bar. Making false representations to any court is an issue that this Court needs to sternly address in order to protect clients and courts, deter similar future conduct, and protect the public confidence in the Bar's integrity. Imposing a mere 30-day suspension does not, in my opinion, send an unequivocal message that this Court will not condone such conduct. In light of the circumstances in the case sub judice, I conclude that the purposes of attorney discipline preservation of the dignity and reputation of the legal profession and the protection of the public are properly served by a five-month suspension. See Haimes v. Miss. Bar,
¶ 36. For this reason, I respectfully concur in part and dissent in part.
SMITH, C.J., AND COBB, P.J. JOIN THIS OPINION.
NOTES
Notes
[1] Subsequent to the filing of the case, on or around June 14, 2002. Paula E. Drungole received an additional $150 from the debtor.
[2] Importantly, Drungole's injunction from practicing before the bankruptcy courts was more akin to a contempt proceeding, not a bar disciplinary matter. Bar disciplinary matters are the exclusive province of this Court. Miss. Bar v. Thompson,
[3] Although six months is the appropriate suspension for her conduct, I recognize the hardship associated with such a period of suspension and I acknowledge Drungole's suspension from practicing before any bankruptcy court for 30 daysher primary practice area. Therefore, I would only suspend Drungole for five additional months, resulting in a total suspension of six months, which is consistent with our prior decisions. Additionally, a five-month suspension would not require her to take and pass the Mississippi Bar Examination before being admitted to practice again in this State.
[4] The majority's excursion into a due process discussion in support of its deference holding was not an issue raised by Drungole.
[5] People v. Distel,