Mississippi Bar v. McHann 618 So. 2d 702

ORDER OF DISBARMENT

BANKS, Justice,

for the Court:

The Court, sitting en banc, having considered the Formal Complaint of the Mississippi Bar seeking disbarment of Bob L. McHann, and McHann’s response to the Formal Complaint, is of the opinion that the relief requested in the Formal Complaint should be granted. Having given the matter full and careful consideration, the Court finds as follows:

I.

McHann, having been licensed to practice law in the State of Mississippi, is subject to the disciplinary jurisdiction of this Court and its designated agencies.

II.

On January 11, 1991, the Mississippi Bar filed a Formal Complaint seeking disbarment of Bob L. McHann pursuant to Rule 6 of the Rules of Discipline for the Mississippi Bar. McHann was served with an order dated January 23, 1991, of this Court requiring him to file a response addressing the issues of: whether or not the crime of which he was found guilty was beyond the scope of Rule 6; whether or not his conviction had been reversed upon appeal, if any; and whether or not any constitutional right would be violated by proceeding under the Rules of Discipline for the Mississippi Bar. McHann responded to the Formal Complaint and the order of the Court in a response filed on March 19, 1991.

III.

The Bar alleged in its Formal Complaint that McHann, on or about November 30, 1990, was convicted in cause number J90-00070(B) in the United States District Court for the Southern District of Mississippi of the crime of falsifying a loan closing statement submitted to the United States Department of Housing and Urban Development in violation of 18 U.S.C. § 1012.

IV.

The crime for which McHann was convicted is among the types of offenses contemplated by Rule 6 of the Rules of Discipline, i.e., it is a misdemeanor involving dishonesty, fraud, deceit or misrepresentation. The Bar presented a certified copy of the judgment of conviction and that document serves as conclusive evidence of McHann’s guilt of the offense. McHann did not file an appeal of his conviction and the time for appeal has passed. Pursuant to Rule 6, the evidence presented by the Bar warrants the imposition of the sanction of automatic disbarment.

V.

The Bar is entitled to recover from McHann the costs and expenses which it *703incurred in this cause and General Counsel for the Bar shall within ten (10) days of the date of entry of this order file with the Clerk of the Court a motion for costs and expenses.

THEREFORE, IT IS ORDERED that:

A. For McHann’s conviction of the crime of falsifying a document in violation of 18 U.S.C. § 1012, he should be, and hereby is, disbarred.

B. This order of disbarment shall constitute notice of disbarment in this cause.

C. McHann shall pay to the Bar its costs and expenses in this cause and General Counsel of the Bar shall file his motion for costs and expenses within ten (10) days from the date of entry of this order.

D. The Clerk of the Mississippi Supreme Court shall forward an attested copy of this order to the judges of the county, circuit, and chancery courts in and for Hinds County, Mississippi, and the senior judges of those courts shall enter this order upon the minutes of their respective courts.

E. The Clerk of the Mississippi Supreme Court shall forward an attested copy of this order to the clerks of the United States District Court in and for the State of Mississippi, to the Clerk of the United States Court of Appeals for the Fifth Circuit, and to the Clerk of the United States Supreme Court.

F. This order shall in all respects be a public record and shall remain in full force and effect until further order of this Court.

SO ORDERED.

DAN M. LEE, P.J., dissents with separate written opinion joined by McRAE, J.

SMITH, J., not participating.

DAN M. LEE, Presiding Justice,

dissenting:

Because I cannot join the majority in ordering the automatic disbarment of Bob L. McHann, I write separately to respectfully express my dissent. Rule 6 allows for “Suspensions and Disbarments Based on Other Proceedings.” In this case the other proceedings did not reliably establish the moral turpitude necessary for disbarment of a misdemeanant. Therefore, I would send this matter to a Complaint Tribunal to afford McHann an opportunity to dispute his culpability.

I have no doubt that the summary procedure described in Rule 6 contributes to the expeditious handling of disciplinary matters. However, ease of administration is not the only worthy goal to be considered by this Court when attempting to maintain the integrity of the bar.

Rule 6 describes certain misdemeanors that result in disbarment with only abbreviated fact finding proceedings. These misdemeanors all involve a culpable intent that is inconsistent with the values and judgment capabilities necessary to members of the legal profession (i.e. fraud, dishonesty, misrepresentation, deceit, etc.). The clear intent of the rule is to avoid duplicative procedures where reliable information establishes the aforementioned mental state.

In a typical case, a factual finding of guilt, including the necessary mens rea, will be made at trial. Thus I can reluctantly accept a rule that affords no further procedural safeguards for an attorney convicted after a full blown trial. Likewise, the rule provides for automatic disbarment for any felony. Consequently, the dishonest mental state is not relevant, and no further proceedings are necessary. Both these cases are fundamentally different from the case sub judice.

In the present case, McHann admits the conduct but denies the intent to defraud. He claims that he entered his guilty plea based on practical considerations involving a weighing of the monetary and other costs of defending versus the trivial criminal consequences of a guilty plea. Automatic disbarment was apparently not considered as a consequence of the guilty plea. The critical question for now is not whether we believe McHann but whether we may punish a certain mental state without ever having established that it in fact existed. I do not see how we can and remain true to *704the standards of fundamental fairness contained in the right to due process.

For the foregoing reasons, I would send this matter to a properly designated complaint tribunal for a factual determination of whether McHann’s actions warrant disbarment.

McRAE, J., joins this dissent.