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DEMPSEY M. LEVI AND EARL L. DENHAM v. MISSISSIPPI STATE BAR

JULY 20, 1983

DEMPSEY M. LEVI AND EARL L. DENHAM
v.
MISSISSIPPI STATE BAR



BEFORE WALKER, P.J., DAN LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT

I. Introduction

This case comes before us on the Complaint of the Mississippi State Bar that two attorneys, Dempsey M. Levi and Earl L. Denham, have been guilty of misconduct within the meaning and contemplation of certain Disciplinary Rules of the Mississippi Code of Professional Responsibility.

 Exhaustive and exhausting proceedings were had before the Complaint Tribunal duly constituted as provided by law. Miss. Code Ann. 73-3-323, -325, and -327. (Supp. 1982). A ten volume record has been produced, including numerous exhibits, all of which we have reviewed with care. The Complaint Tribunal found Levi and Denham guilty of misconduct. It imposed a one year suspension.

 From that decision Levi and Denham have prosecuted this appeal. Under the rules applicable to cases such as this, we consider the matter de novo. Having done so, it is our opinion that the Mississippi State Bar has failed to prove its case. Accordingly, the Complaint is finally dismissed.

 II. De Novo Review

 The Complaint Tribunal in many ways has acted as a trial court sitting without a jury. It has issued detailed findings of fact and conclusions of law and has rendered what is in essence a final judgment.

 In one decisive respect, however, we do not proceed here as we would in any other appeal from the final judgment of a trial court sitting without a jury. We are the triers of fact. As a matter of law, we are not bound by those limited scope-of-review rules applicable in appeals generally, rules whereby we are without power to disturb findings of fact if they are supported by substantial evidence.

 This Court's charge is found in Section 73-3-329 (5) (Supp. 1982) which reads:

 On appeal, the Court may review all of the evidence and the law and the findings and conclusions of the complaint tribunal and it may makes such findings and conclusions and render such order as it may find to be appropriate based upon the whole record.

 In its brief the State Bar concedes the point, stating:

 This Court is the ultimate judge of the facts and the law in disciplinary cases. . . .

 And further:

 " The Bar also does not intend to controvert this Court's right, power and duty to review the entire matter and enter orders as the Court may deem appropriate ".

 See Mississippi State Bar v. Phillips, 385 So. 2d 943, 945 (Miss.1980).

 All of this is wholly consistent with the well established proposition that lawyer disciplinary proceedings are with this Court's exclusive and inherent jurisdiction, notwithstanding the statutory format pursuant to which this matter has proceeded. See, Mississippi State Bar v. Phillips, 385 So. 2d 943, 944 (Miss. 1980); Matter of Mississippi State Bar, 361 So. 2d 503, 505 (Miss. 1978); Bramlett v. Burgin, 382 So. 2d 284, 285 (Miss. 1979). Those inherent powers have been enhanced, not diminished, by the statutory scheme. Mississippi State Bar v. Phillips, 385 So. 2d 943, 945 (Miss. 1980).

 It may well be that the Complaint Tribunal obtained valuable insights by its personal observation of the appearance and demeanor of the witnesses. And, to be sure, in the exercise of our sound discretion we are by no means prohibited from giving to findings of fact made by the Tribunal such weight as in our judgment they may deserve. This we may do so long as we do not lose sight of the fact that, as a matter of law, it is our non-delegable duty and responsibility to make findings of fact in cases such as this.

 III. Burden of Proof

 Bar disciplinary proceedings are inescapably" adversary proceedings of a quasi-criminal nature ". In Re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, 122 (1968); see also Netterville v. Mississippi State Bar, 397 So. 2d 878, 883 (Miss. 1981); and Ex Parte Redmond, 156 Miss. 439, 452, 125 So. 833, 835 (Miss. 1930). A standard of proof higher than the ordinary" beyond a preponderance of the evidence "standard is thus appropriate.

 Beyond that, we are confronted in this case with charges of fraud and other equivalent forms of misconduct. In civil litigation generally, it is settled in our law that, before a plaintiff may prevail on a charge of fraud, he must prove his case by clear and convincing evidence. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1028 (Miss. 1979); Parker v. Howarth, 340 So. 2d 434, 437 (Miss. 1976); Aponaug Manufacturing Co. v. Collins, 207 Miss. 460, 473, 42 So. 2d 431, 434 (1949).

 In its written opinion in accordance with Section 73-3-327

 (Supp. 1982), the Complaint Tribunal recognized the clear and convincing evidence burden of proof imposed upon the Bar when it stated:

 In this case, in order to show that the Respondents [Levi and Denham] should be disciplined or disbarred, the Mississippi State Bar has the burden of showing a violation. . . by clear and convincing proof.

 In Re Quinn's Disbarrment, 223 Miss. 660, 665, 78 So. 2d 883, 884 (1955); Ex Parte Redmond, 156 Miss. 439, 452, 125 So. 833, 835 (1930).

 And in its brief on this appeal, the Bar acknowledges" that the burden to be met in support of discipline is clear and convincing proof, "citing Mississippi State Bar v. Phillips, 385 So. 2d 943 (Miss. 1980) and Netterville v. Mississippi State Bar, 397 So. 2d 878, 884 (Miss. 1981).

 The Bar here charges that Levi and Denham have violated Mississippi Code of Professional Responsibility Disciplinary Rule 1-102 (A) (4) and 1-102 (A) (6) which provide as follows:

 9. DR 1-102[A] [4] provides:" DR 1-102 Misconduct. [A] A lawyer shall not:

 * * *

 [4] Engage in conduct involving dishonesty, fraud, deceit, or ...


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