The Mississippi Bar v. Warner Hodges, III
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-BD-01917-SCT
THE MISSISSIPPI BAR
v.
WARNER HODGES, III
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
ADAM KILGORE
PRO SE
CIVIL - BAR MATTERS
SUSPENDED- 07/27/2006
EN BANC.
COBB, PRESIDING JUSTICE, FOR THE COURT:
¶1.
Warner Hodges, III, was charged court costs and suspended from the practice of law in
the State of Tennessee for a period of one year for the violation of Rules 5.5(a) and
8.4(a)(c)(d)(g)
of the Tennessee Rules of Professional Conduct.
Subsequently,
the
Mississippi Bar filed a Formal Complaint with this Court pursuant to Rule 13 of the
Mississippi Rules of Discipline, which provides for reciprocal discipline.
FACTS AND PROCEDURAL HISTORY
¶2.
Hodges tendered a Conditional Guilty Plea to the Board of Professional Responsibility
of the Supreme Court of Tennessee, after a bar complaint was filed against him for consuming
alcohol in violation of his monitoring agreement with the Tennessee Lawyers Assistance
Program (TLAP).1
As a result, the Supreme Court of Tennessee suspended Hodges for the
period of one year2 and assessed court costs against him.
Pursuant to that action, the
Mississippi Bar filed a formal complaint against Hodges recommending that he be suspended
from practicing law in Mississippi in accordance with Rule 13 of the Mississippi Rules of
Discipline. No specific length of time for the suspension was recommended.
ANALYSIS
¶3.
This Court retains exclusive jurisdiction and is the ultimate judge of attorney discipline
matters, pursuant to Rule 1 (a) of the Rules of Discipline for the Mississippi State Bar. Miss.
Bar v. Inserra, 855 So. 2d 447, 450 (Miss. 2003). We review matters of attorney discipline
de novo, including those arising out of reciprocal discipline.
proportionality requirement to Bar discipline cases.
Id.
We also apply a
Miss. Bar v. Drungole, 913 So. 2d 963,
967 (Miss. 2005). This Court is free to modify the punishment as needed to best serve the
1
Both Tennessee and Mississippi have initiated lawyer assistance programs to provide
immediate and continuing assistance to lawyers, judges, and law students who suffer from
afflictions such as alcoholism, drug addiction, and mental health problems. Compliance with
the monitoring agreements established under these assistance programs is a critical component
to the successful completion of the program and the recovery.
2
Apparently the TLAP process provides for immediate suspension upon violation of
their monitoring agreement, because the July 11, 2005, Supreme Court of Tennessee Order
of Enforcement stated that Hodges “shall be suspended from the practice of law for a period
of one (1) year retroactive to October 1, 2004, the date upon which he was first suspended.”
The Order further provided that Hodges “shall continue in his monitoring agreement with
Tennessee Lawyers Assistance Program (TLAP) upon terms and conditions recommended by
TLAP, for a period of five (5) years, with any reported incidence of non-compliance
constituting immediate grounds for summary suspension.”
2
interests of the Bar and the public. Parrish v. Miss. Bar, 691 So.2d 904, 907 (Miss.1996);
Miss. State Bar v. Blackmon, 600 So.2d 166, 173 (Miss. 1992).
¶4.
Rule 13 of the Mississippi Rules of Discipline (MRD) provides that disciplinary
sanctions in another jurisdiction shall be grounds for disciplinary action in this state.
The rule
further states that the sanction of the sister state shall be conclusive proof of guilt, and the sole
issue to be determined in our state’s disciplinary proceedings is the extent of the final
discipline to be imposed on the attorney, which may be more or less severe than the discipline
imposed by the sister state.
¶5.
This is a case of first impression before this Court and arises from the imposition of
disciplinary sanctions for violations of a monitoring agreement required through a lawyers’
assistance program of a state bar.
The standards and requirements which we apply in other
reciprocal disciplinary actions shall apply.
¶6.
In his Response to Formal Complaint filed with this Court in November, 2005, Hodges
states that he has been alcohol free since his relapse in the summer of 2004 and regularly
attends Alcoholics Anonymous meetings.
Hodges, then a resident of Germantown, Tennessee,
points out that he rarely practiced in Mississippi, has no pending Mississippi cases nor any
intention of taking on any in the future, and has been a resident of Georgia since July of 2005.
Further, Hodges states that he has not engaged in unprofessional or unethical conduct in
Mississippi.
He also clearly acknowledges that his suspension in Tennessee is sufficient
grounds for suspension in Mississippi, under the provisions of MRD Rule 13.
Finally, Hodges
asks that we take into consideration that his one year suspension in Tennessee expired on
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October 1, 2005, prior to the filing of the Formal Complaint by the Mississippi Bar on
October 11, 2005.
¶7.
In this Court’s application of the reciprocity doctrine, the sanction imposed in this State
generally mirrors the sanction imposed in the sister state, absent extraordinary circumstances
which compel, justify or support variance from the foreign jurisdiction’s sanction. Drungole,
913 So. 2d at 970.
We may impose sanctions less than or greater than those imposed by
another jurisdiction. Miss. Bar v. Gardner, 730 So. 2d 546, 547 (Miss. 1998). An attorney
“who is subject to reciprocal discipline may . . . offer any mitigating factors which he thinks
serve to diminish his culpability and therefore diminish the necessity for, or severity of,
sanctions to be imposed by this Court.” Miss. Bar v. Strauss, 601 So.2d 840, 844 (Miss.
1992).
¶8.
The following nine criteria are applied when determining the appropriate sanctions for
an attorney:
(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) protection
of the public;
(5) the sanctions imposed in similar cases;
(6) the duty violated; (7) the
lawyer’s mental state; (8) the actual or potential injury resulting from the misconduct; and (9)
the existence of aggravating and/or mitigating factors.
Inserra, 855 So. 2d at 450.
It is
logical that the same criteria should also be considered when determining reciprocal
discipline, although all may not apply.
There is no need for this Court to address separately
each criterion, so long as each is taken into consideration.
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¶9.
Upon consideration of factors one through four, as well as six, it is evident that the
actions of TLAP have addressed and dealt not only with Hodges’s non-compliance with the
monitoring agreement, but also with the duty violated, and his underlying misconduct
(excessive drinking) and deterred it, thus preserving the dignity and reputation of the
profession and protecting the public.
The fact that TLAP is monitoring Hodges for five years
provides additional assurance that he has stabilized, and the potential injury resulting from his
misconduct is alleviated.
¶10.
We thus need only to address the two remaining factors, beginning with the following
mitigating circumstances presented by Hodges:
(1) The original infraction did not involve an act of moral turpitude like dishonesty,
corruption, fraud, etc.
Rather, Hodges relapsed by drinking alcohol in violation of the TLAP
monitoring agreement.
(2) He is a regular attendant at Alcoholics Anonymous with a sponsor who has a lengthy
sobriety, and, at the time of filing his Response with this Court, was halfway through the 12step program.
(3) He has reentered the Tennessee Lawyers Assistance Program and is in compliance
with the monitoring program, including weekly review and peer groups.
(4) He has completed serving his one-year suspension in Tennessee and was assessed
costs of $1,843.30.
(5)
There is no evidence of any prior infractions or that any client has been
significantly harmed by Hodges’s violation of the monitoring agreement.
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¶11.
The last of the nine criteria is the sanction imposed in similar cases.
A review of
reciprocal discipline from other states, as well as from other courts within our state, reveals
a wide range of infractions resulting in a wide range of sanctions.3
All of them have been
scrutinized on a case-by-case basis.
¶12.
In Mathes v. Miss. Bar, 637 So.2d 840 (Miss.1994), which involved an attorney
suspended in the bankruptcy courts, this Court said suspensions from the practice of law have
been reserved for instances where some form of dishonesty has significantly harmed the client,
or constituted a fraud on a court, or both. We only suspended Mathes for six months rather than
the one year suspension he received in the bankruptcy court. There is no evidence before us
that Hodges engaged in dishonesty or misrepresentation.
¶13.
In Miss. Bar v. Pels, 708 So. 2d 1372, 1373 (Miss. 1998), this Court imposed a 30-
day suspension, instead of disbarment which was the sanction imposed by the District of
Columbia,
because there was
no
evidence
that
Pels
engaged
in dishonesty or
misrepresentations, and he was taking steps to better educate himself on the matter so the
problem did not arise again in the future.
Pels had commingled personal funds with those of
a client, and allowed the balance in the account to drop below that required to satisfy thirdparty claims against the client’s funds.
Id. at 1375-77.
In the present case, Hodges is also
trying to rehabilitate himself by attending Alcoholics Anonymous regularly, and he has been
in full compliance with the TLAP the monitoring agreement.
3
A good compilation of these cases is set forth in Inserra, 855 So. 2d at 451.
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¶14.
In Miss. Bar v. Walls, 797 So. 2d 217, 222 (Miss. 2001), this Court determined that
a public reprimand was a sufficient sanction where the attorney failed to keep his client
properly informed and failed to properly prepare for appeal.
In the present case, there is no
indication of direct harm to any clients in Mississippi, unlike the infraction in Walls.
¶15.
Another legitimate concern in the present case warrants additional consideration.
Tennessee’s retroactive application of its one year suspension, to October 1, 2004, resulted
in Hodges’s Tennessee suspension being completed ten days prior to the filing of the formal
complaint against him in Mississippi.
To now enter an additional year of suspension here, in
light of the nature of the violation and the surrounding facts and circumstances, seems
impractical, if not illogical.
¶16.
This Court has long held that the purpose of lawyer discipline is not so much to punish
the errant attorney as it is to maintain appropriate standards of professional conduct necessary
to protect the public and the administration of justice. Miss. Bar v. Carter, 678 So. 2d 981,
982 (Miss. 1996).
That said, we can see no just reason to suspend Hodges prospectively for
his professed wrongdoing which occurred in 2004.
He has availed himself of the TLAP
process, and there is no evidence before us that he has violated the conditions of his
Tennessee suspension.
¶17.
The unusual circumstances in the present case do not fit “squarely” within the
procedures set forth in MRD Rule 11, to be followed when an attorney is suspended.
However, after due consideration of the facts before us, we determine that the following
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discipline is appropriate under the Rules of Discipline and practical in its application:
1. Hodges’s license to practice law in the State of Mississippi is hereby suspended for
a period of one year, retroactive to July 11, 2005, the date that the Tennessee Supreme Court
entered its Order of Enforcement which suspended Hodges for one year.
2.
Hodges shall continue to comply with his monitoring agreement with TLAP for the
period of time remaining on the five year commitment required by the Tennessee order and
shall provide this Court with confirmation of compliance on an annual basis.
3. Hodges shall, within 14 days of the date of this opinion, file an Affidavit with this
Court stating either that he has not practiced law in the State of Mississippi since July 11,
2005, and thus no notices are required, or that he has given the following notices required
under MRD 11(c): (1) notice to all Mississippi clients of his suspension and his consequent
inability to act as an attorney from and after the effective date of his suspension;
(2) notice
to each client involved in pending litigation or administrative proceedings and the attorney or
attorneys for each adverse party in such proceedings, of his suspension and consequent
inability to act as an attorney after the effective date of his suspension; (3) advise each client
promptly to substitute another attorney or attorneys in his place or to seek legal advice
elsewhere;
(4) notify all affected courts and agencies of his disbarment, suspension or
resignation and consequent inability to act as an attorney after July 11, 2005;
and (5) give
such other notice as the disciplinary agency last having jurisdiction may direct in the public
interest.
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¶18.
Should Hodges seek reinstatement to the practice of law in the State of Mississippi,
he shall be required not only to comply with all the requirements of MRD Rule 12, but also
to present proof to the Mississippi Bar that he has completed, or is continuing in compliance
with, the conditions of his TLAP monitoring agreement, as required by the Tennessee
Supreme Court.
CONCLUSION
¶19.
Warner Hodges, III,
is hereby suspended from the practice of law in the State of
Mississippi for a period of one year, retroactive to July 11, 2005.
He shall pay all costs
associated with this disciplinary action and shall timely provide the notices and affidavit as
set forth above.
¶20. WARNER HODGES, III, IS SUSPENDED FROM THE PRACTICE OF LAW IN
THE STATE OF MISSISSIPPI FOR ONE YEAR FROM AND AFTER JULY 11, 2005,
AND SHALL PAY ALL COSTS OF THIS APPEAL.
SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. GRAVES, J.,
DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
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