The Mississippi Bar v. Johnnie E. Walls, Jr.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-BA-01255-SCT
THE MISSISSIPPI BAR
v.
JOHNNIE E. WALLS, JR.
DATE OF JUDGMENT:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
6/7/2002
COMPLAINT TRIBUNAL
ADAM BRADLEY KILGORE
MICHAEL B. MARTZ
HIAWATHA NORTHINGTON, II
RENIA AELAIN ANDERSON
CIVIL - BAR MATTERS
PUBLIC REPRIMAND - 08/05/2004
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1.
The Mississippi Bar appeals the sanction of pubic reprimand imposed against attorney Johnnie E.
Walls, Jr., by the Tribunal for violation of Rules 1.2, 1.3, 1,4, 8.1(b) of the Mississippi Rules of
Professional Conduct. The Tribunal’s opinion and judgment were entered on July 15, 2002. Walls entered
a nolo contendere plea pursuant to Rule 10.2, Mississippi Rules of Discipline.
¶2.
The Mississippi Bar appeals arguing that a public reprimand is insufficient under these facts and
circumstances and that a lengthy suspension is a more appropriate sanction.
FACTS
¶3.
Since Walls entered a plea of nolo contendere to the charges against him, the facts in this case are
not disputed. However, we will briefly summarize the facts of this case.
¶4.
Upon the death of Ernest Lee Davis, Sr., Mary Ann Davis retained Walls to represent Mr. Davis’s
children and her in a wrongful death suit. Mr. Davis was shot and killed in the presence of a police officer
employed by the City of Leland, Mississippi. In 1994, Walls filed a notice of claim with the Mayor of
Leland and subsequently filed suit on behalf of Mrs. Davis and the children against the City of Leland and
the police officer. The presiding judge dismissed the complaint, stating that Walls failed to comply with the
Mississippi Tort Claims Act in filing the complaint.
¶5.
Mrs. Davis subsequently filed an informal complaint against Walls. The Bar forwarded the
complaint to Walls and advised him that he was to file a response by April 4, 2001. Walls requested ten
additional days to respond to the complaint. The Bar granted Walls twelve additional days to respond.
¶6.
By April 16, 2001, Walls had still not submitted a response. On April 16, 2001, pursuant to Rule
8.1(b) of the Mississippi Rules of Professional Conduct, the Bar sent Walls a letter demanding that he file
a response to Mrs. Davis’s complaint by April 23, 2001. Walls did not submit a response by the date
demanded.
¶7.
Walls requested a postponement and rescheduling of the Tribunal hearing due to a conflict with his
trial schedule, but this request was denied. Walls responded to the complaint and submitted a statement
to the Bar in lieu of a personal appearance. Attorney Lynda Robinson appeared on his behalf at the
hearing. Mrs. Davis appeared at the hearing and was examined by the Bar and cross-examined by Walls’s
representative. Thereafter, the Bar submitted its investigatory report.
¶8.
Pursuant to the Mississippi Rules of Discipline, Walls entered a nolo contendere plea after the
hearing. The Tribunal accepted the plea and heard Walls’s mitigation testimony. Walls testified that he
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didn’t have enough help in his office and that didn’t have the best staff. As a result of the high volume of
his practice, “sometimes things...just...got[] past” Walls. The Tribunal’s opinion concluded that “[t]he only
extenuating or mitigating circumstances offered by Mr. Walls was he had a very busy law practice and his
membership in the State Senate required that he devote a lot of his time to the representation of his district
and constituency.” The Tribunal imposed the sanction of public reprimand against Walls.
DISCUSSION
¶9.
Rule 9 of the Rules of Discipline for the Mississippi State Bar governs appeals of the Tribunal’s final
disposition. Because Walls entered a plea of nolo contendere, M.R.D. 9(b) limits the sole question on
appeal to the extent or absence of discipline. Furthermore, M.R.D. 9.4 outlines the extent of appellate
review:
Upon appeal the Court shall review the entire record and the findings and
conclusions of the Tribunal, and shall render such orders as the Court may find to be
appropriate. In so ruling, the Court shall not be bound by the rule applicable to
administrative agencies to the effect that their orders must be affirmed, unless they are
arbitrary and capricious and are not supported by substantial evidence, or the rule that, as
in chancery, the chancellor will not be reversed on the facts unless he is manifestly wrong.
Upon the conclusion of any appeal the Court shall award costs and expenses as in its
discretion appears appropriate.
We review attorney discipline matters de novo on a case-by-case basis, and we are permitted to defer to
the finding of the Tribunal because it has the exclusive opportunity to observe the demeanor and attitude
of the witnesses. Byrd v. The Miss. Bar, 826 So.2d 1249, 1252 (Miss. 2002).
¶10.
When assessing the sanction to be imposed against an attorney in a disciplinary action, this Court
applies the following nine criteria:
(1) the nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the
preservation of the dignity and reputation of the profession; (4) the protection of the public;
(5) the sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer’s mental
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state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence
of aggravating or mitigating factors.
Miss. Bar v. Inserra, 855 So. 2d 447, 450 (Miss. 2003).
Nature of the misconduct involved and the Duty violated
¶11.
Walls entered a nolo contendere plea to violations of the following Mississippi Rules of Professional
Conduct:
Rule 1.2, which provides that a lawyer shall abide by a client’s decisions concerning the
objectives of the representation and shall consult with the client as to means by which such
objectives are to be pursued;
Rule 1.3, which provides that a lawyer shall act with reasonable diligence and promptness
when representing a client;
Rule 1.4, which provides that a lawyer shall keep a client reasonably informed about the
status of a matter and promptly comply with reasonable requests for information and shall
further explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding representation; and
Rule 8.1 (b), which provides that a lawyer in connection with a disciplinary matter shall not
knowingly fail to respond to a lawful demand for information from the Bar.
The Bar argues that Walls neglected his duties to his client while assuring her he was working on her case
and that he blatantly ignored her pleas for action and communication. Once she had filed a complaint with
the Bar, Walls failed to respond or cooperate with the disciplinary authority in its investigation of the
complaint. The Bar contends that these actions show a want of personal honesty and integrity. Walls
argues that his actions do not evince a lack of personal honesty and integrity because he made efforts to
respond to the Bar and that he made attempts to contact his client when appropriate.
Need to deter similar misconduct
¶12.
There is a need to deter similar misconduct, as attorneys should not neglect their clients and then
fail to cooperate with the Bar in resulting disciplinary proceedings.
Preservation of the dignity and reputation of the profession
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¶13.
The Bar argues that the dignity and reputation of the legal profession as a whole will be adversely
affected if attorneys are allowed to violate the rules of professional conduct on numerous occasions and
not suffer corresponding sanctions. However, Walls argues that the public reprimand imposed by the
Tribunal is the appropriate sanction and preserves the dignity and reputation of the profession.
Protection of the public
¶14.
The Bar argues that it is not in the public’s best interest to allow a lawyer who has violated the rules
of professional conduct on numerous occasions to continue practicing law. Walls argues that he will feel
the impact of his actions through the public reprimand and that if he is not suspended, he will be able to
continue to represent his current clients. Furthermore, Walls argues that if he is unable to continue to serve
his current clients due to suspension, they will be harmed and thus, the public will be adversely affected.
Sanctions imposed in similar cases
¶15.
In Mississippi Bar v. Logan, 726 So. 2d 170, 180 (Miss. 1998), this Court publicly
reprimanded an attorney for violation of the professional rules of conduct prohibiting conduct prejudicial
to the administration of justice by failing to inform the opposing party of his ex parte contact with a
magistrate. This Court specifically characterized Logan’s conduct as “deceit.” Id.
¶16.
In Mississippi State Bar Ass'n v. Moyo, 525 So. 2d 1289, 1298 (Miss. 1988), this Court
suggested that a public reprimand would be the appropriate sanction for a first offense of solicitation of
business by an attorney.
¶17.
In Alexander v. The Mississippi Bar, 651 So. 2d 541, 547 (Miss. 1995), this Court issued
a public reprimand for an attorney’s failure to communicate with clients and to bring matters to trial,
together with an order to pay $2,000 in restitution.
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¶18.
In Alexander v. The Mississippi Bar, 725 So. 2d 828, 834-36 (Miss. 1998), this Court
disbarred Alexander after citing his extensive disciplinary record. One factor considered by this Court in
reaching its disbarment decision was that Alexander had engaged in similar misconduct on several prior
occasions. Id. The Bar argues that like Alexander, Walls has engaged in similar misconduct on prior
occasions and so should be sanctioned more severely. However, Alexander had been publicly
reprimanded three times and suspended three times on prior occasions by this Court, id., where Walls has
not previously been suspended by this Court. Walls has been suspended by the United States Court of
Appeals for the Fifth Circuit. The Bar does not contend that Walls should be disbarred but does request
a lengthy suspension. According to Walls, Alexander’s misconduct included not informing a client of his
suspension from practice, misleading a client about doing work on a case, making misrepresentations to
clients, and acting otherwise dishonestly. The charges against Walls do not directly accuse him of
dishonesty nor did he plead nolo contendere to violation of rules which indicate acts of dishonesty on his
part.
¶19.
InTerrell v. Mississippi Bar, 662 So. 2d 586, 588-89 (Miss. 1995), the attorney had engaged
in conduct amounting to neglect and failure to keep a client advised of the status of a case. Accordingly,
the Tribunal imposed a six-month suspension to run concurrently with an earlier suspension, but this Court
enhanced the Tribunal’s sanction by imposing a six-month sentence not to run concurrently with any other
discipline. Id. at 592-94.
¶20.
In The Mississippi Bar v. Hall, 612 So. 2d 1075, 1078 (Miss. 1992), this Court held that the
attorney’s neglect of a client’s case, after having been previously disciplined for similar conduct, warranted
a sixty-day suspension. One year later this Court imposed an additional ninety-day suspension on the same
attorney for neglectful conduct. Hall v. Miss. Bar, 631 So. 2d 120, 127 (Miss. 1993).
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¶21.
In Foote v. Mississippi State Bar Ass’n, 517 So. 2d 561, 566-67 (Miss. 1987), this Court
held that a ninety-day suspension was an appropriate sanction for the neglect of a criminal matter after the
attorney had received a fee but had failed to keep the client adequately informed, failing to return phone
calls, and misleading the client as to the status of the case.
Lawyer’s mental state
¶22.
Walls’s mental state has not been put at issue in this case.
Actual or potential injury resulting from the misconduct
¶23.
The Bar does not identify any specific injury that resulted from Walls’s misconduct in the handling
of the Davis case. Walls argues that this Court’s interpretation of the various provisions of the Mississippi
Tort Claims Act at the time the case was being handled made his actions reasonable. Walls further argues
that the case would have been dismissed on the merits anyway based on applicable precedent.
Existence of aggravating or mitigating factors
¶24.
The only mitigating factor Walls puts forth is that he pled nolo contendere. Historically, this Court
has found such things a “personal health,” “family member’s health,” and “personal distress” to be
reasonable mitigating factors justifying a more lenient sentence. Vining v. Miss. State Bar Ass’n, 508
So. 2d 1047, 1049 (Miss. 1987).
¶25.
The aggravating factor cited by the Bar is Walls’s previous history of misconduct and sanctions.
Walls’s disciplinary record consists of eight informal reprimands, three private reprimands, one public
reprimand, and a one-year suspension issued on May 3, 2000, by the United States Court of Appeals for
the Fifth Circuit. The Bar argues that Walls has not learned from his previous misconduct and disciplinary
sanctions.
CONCLUSION
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¶26.
Although we review disciplinary matters de novo, we are permitted to defer to the findings of the
Tribunal. The Tribunal considered all of the evidence in this case, including its personal observation of the
witnesses as well as Walls’s mitigation testimony and determined that a public reprimand was appropriate
under these facts. We agree and find that public reprimand is the appropriate sanction in this matter.
¶27. JOHNNIE E. WALLS, JR., SHALL BE PUBLICLY REPRIMANDED IN OPEN
COURT BY THE PRESIDING JUDGE IN THE CIRCUIT COURT OF WASHINGTON
COUNTY ON THE FIRST MONDAY OF THE NEXT TERM OF THAT COURT AFTER
THIS DECISION IS FINAL AND PAY ALL COSTS OF THIS APPEAL.
WALLER, P.J., EASLEY, CARLSON AND GRAVES, JJ., CONCUR. DICKINSON,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY COBB, P.J., AND
RANDOLPH, J. DIAZ, J., NOT PARTICIPATING.
DICKINSON, JUSTICE, DISSENTING:
¶28.
The majority is correct in stating that: (1) this Court often defers to the findings of the Tribunal; and
(2) this Court often finds public reprimand to be the appropriate sanction for offenses similar to the conduct
here. However, there comes a point where persistent, serial misconduct requires punishment more severe
than a reprimand. Because I believe this is such a case, I respectfully dissent.
¶29.
To justify my opinion, I begin by quoting the majority:
Walls's disciplinary record consists of eight informal reprimands, three
private reprimands, one public reprimand, and a one-year suspension
issued on May 3, 2000, by the United States Court of Appeals for the
Fifth Circuit.
Maj. op. ¶25.
¶30.
I could find no case where an attorney with a disciplinary history as dismal as that of Mr. Walls
received less than a suspension. To do less here seems inequitable, not only in the general sense, but also
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to those who have been more severely punished for less. More importantly, I believe the majority's
decision today deals yet another blow to public confidence in our judicial and legal systems.1
¶31.
In my opinion, Walls is lucky. After twelve reprimands issued by our state system, he has once
again escaped suspension and disbarment. He is also lucky because, in ordering a public reprimand against
him in a prior case, this Court incorrectly understood that he had “no prior disciplinary sanctions imposed
upon him.” Miss. Bar v. Walls, 797 So. 2d 217, 222 (Miss. 2001) (“Significantly, Walls has not had
prior disciplinary sanctions imposed upon him.” “Keeping in mind that this is Walls's first offense . . . .”),
Contrary to this Court’s understanding, it was not Walls’s “first offense;” nor his second or third or fourth.
It was his twelfth. We are now faced with his thirteenth.
¶32.
It is my sincere hope that Walls has some appreciation of his good fortune for the leniency this
Court provides him today and some desire to overcome what appears to be a habit of violating the Rules
of Professional Conduct.
¶33.
Because under the facts of this case I believe we should require some suspension, I respectfully
dissent.
COBB, P.J., AND RANDOLPH, J., JOIN THIS OPINION.
1
I note with interest that, in ordering a public reprimand in a prior case against Walls, this Court
stated: [T]he 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. Walls, 797 So. 2d 217, 221 (Miss. 2001) (citing Miss. State Bar Ass’n v. A Miss.
Attorney, 489 So. 2d 1081, 1084 (Miss. 1986)).
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