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ROY PITTS v. MISSISSIPPI STATE BAR ASSOCIATION

JANUARY 09, 1985

ROY PITTS
v.
MISSISSIPPI STATE BAR ASSOCIATION



ON PETITION FOR REHEARING

EN BANC

DAN LEE, JUSTICE, FOR THE COURT:

This cause was originally decided on September 5, 1984. The appellant thereafter filed a Petition For Rehearing. Finding merit in that Petition, our original opinion rendered September 5, 1984, is hereby withdrawn and this one is substituted therefor.

 This is an appeal from a decision of the Mississippi State Bar Complaint Tribunal wherein the appellant, Roy Pitts, was found guilty of various infractions of the Code of Professional Responsibility of the Mississippi State Bar and thereafter suspended from practice for one hundred eighty (180) days. The disciplinary rules Pitts was found guilty of violating are DR 1-102; DR 6-101; DR 7-101, DR 7-102; and DR 9-102. Pitts was also found guilty of violating 73-3-35 Miss. Code Ann. (1972), the oath of an attorney. Feeling aggrieved by the decision of the Complaint Tribunal, Pitts brings this appeal and assigns as error:

 (1) that this action is barred by the Statute of Limitations:

 (2) that the Tribunal failed to show by clear and convincing evidence violation of certain Disciplinary Rules; and

 (3) that the penalty imposed upon the Appellant was unduly harsh and disproportionate to the offense.

 There is little dispute regarding the factual scenario in this cause. By his answer to the complaint, Pitts has admitted the facts upon which the complaint is based. His answer denied only that those facts constitute violations of the Code of Professional Responsibility.

 On May 24, 1967, Roy Pitts, acting as the attorney for Gary T. Byrd, Sr., filed a petition in the Chancery Court of Lauderdale County seeking to have Byrd appointed as general guardian for Gary T., Byrd, Jr. The younger Byrd was to receive $2,520.68 as the result of being the beneficiary of a deceased uncle's life insurance policy. On the same date the chancery court entered a decree appointing Gary T., Byrd, Sr. as the general guardian for Gary T. Byrd, Jr. and as a result the insurance funds were disbursed to the elder Byrd. Pursuant to a petition for further instructions filed by Roy Pitts, the chancery court ordered that the insurance proceeds be invested in a savings account at Home Federal Savings and Loan Association of Meridian. The court further ordered that the court costs and expenses, together with an attorney's fee in the amount

 of $100 be paid from the proceeds.

 When he and Pitts left the Lauderdale County Courthouse, Byrd endorsed the insurance check and gave it to Pitts. Byrd stated that he understood that Pitts was to put the money in the Home Federal Savings and Loan.

 On July 18, 1967, Pitts deposited the check in his trust account and wrote himself a check for $100 as attorney's fee. It was not until June 22, 1976 that Pitts took the remaining insurance proceeds and deposited them in an account at Home Federal. This nine year delay in depositing the funds is the basis for the present action.

 Gary Byrd, Sr. testified that on numerous occasions he asked Pitts about the money. He stated that he was aware of the requirement of annual accounts and also aware that no annual accountings had been filed in this cause. Byrd stated that he wrote letters and" at least one hundred attempts on the phone "to get Pitts to make some sort of accounting. Generally, Byrd was not able to get through Pitts' secretary but when he did Pitts assured him that everything was taken care of and that he would take care of the accountings.

 Byrd moved several times between 1967 and 1973. He stated that normally after each move he would attempt to contact Pitts to get the status of the account. Byrd testified that he had written Pitts at least ten personal ...


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