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PAUL H. "BUD" HOLMES v. MISSISSIPPI STATE BAR ASSOCIATION

DECEMBER 03, 1986

PAUL H. "BUD" HOLMES
v.
MISSISSIPPI STATE BAR ASSOCIATION



BEFORE ROY NOBLE LEE, ANDERSON and PRATHER

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

The Mississippi State Bar filed a formal complaint against attorney Paul H. "Bud" Holmes on December 1, 1985, representing to the Mississippi Supreme Court that Holmes should be disbarred from the practice of law within the State of Mississippi. Copies of the guilty plea, sentencing proceedings and judgment entered in the United States District Court for the Southern District of Mississippi involving Holmes were made exhibits to the complaint.

This case is intertwined with, and grew out of, facts surrounding the Walter L. Nixon case in the same U.S. District Court. The complaint here was filed prior to the suspension of Walter L. Nixon's license to practice law in the State of Mississippi.

 The present complaint proceeded under Rule 6(a) of the Rules of Discipline adopted by this Court, effective from and after January 1, 1984. Pertinent portions of the Rules of

 Discipline follow:

 Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted, plead guilty, or enter a plea of nolo contendere to any felony (other than manslaughter) or any misdemeanor involving fraud, dishonesty, misrepresentation, deceit, or wilful failure to account for money or property of a client, a certified copy of the Judgment of Conviction shall be presented to the Court by General Counsel and shall be conclusive evidence thereof. Rule 6(a), Rules of Discipline

 A Formal Complaint, with a certified copy of the criminal judgment or conviction attached, and a Motion for Indefinite Suspension pending Appeal shall be filed with the Court, upon which the attorney shall be automatically suspended subject to the right of such attorney to move for reconsideration upon a showing that the judgment or conviction has been reversed or a new trial is granted. Rule 6.1, Rules of Discipline

 Upon a showing that the time for all appeals has expired, or that all appeals have been concluded without reversal, the attorney shall be

 automatically disbarred. Rule 6.2, Rules of Discipline

 The basis of the Bar's complaint is 18 U.S.C. 401(1), which provides:

 A Court of the United States shall have the power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as - (1) misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; . . . . "

 Section 401 was the authority for bringing the charge against Holmes in the U.S. District Court for which he entered a plea of guilty and was sentenced to one (1) years imprisonment and the payment of a ten-thousand-dollar ($10,000) fine. A bill of information was filed in the said district court, which charged Holmes with a crime coming within Rule 6 of the Mississippi Rules of Discipline.

 After Holmes entered the guilty plea to the bill of information, the U.S. District Judge signed a judgment and probation/commitment order which recited that Holmes had entered a plea of guilty to a violation of 18 U.S.C. 401(1) and that he was sentenced to one year in the custody of the Attorney General of the United States and fined the sum of $10,000. The order also recited, on motion of counsel for the government, that the original indictment, which contained four (4) felony counts, was dismissed.

 Holmes argues two assignments of error, i.e., (a) that the complaint tribunal failed to properly apply the provisions of Rule 6, Mississippi Rules of Discipline, and Mississippi Code Annotated 73-3-339 (1972), and (b) the complaint tribunal denied appellant due process. He contends that, proceeding as a Rule 6 hearing, the complaint should be dismissed, since the court could look to nothing except the judgment of conviction, which recited that Holmes was convicted of a 18 U.S.C. 401(1) violation, and that the court could not consider the underlying charge, i.e., the bill of information and guilty plea. In the alternative, he argues that the disbarment should be overturned and that the cause should be remanded for a Rule 8 hearing, where he should be permitted to show that his guilty plea to 18 U.S.C. 401(1) was a result of prosecutorial and judicial process abuse, compromise, and misleading representations. We reject those contentions of Holmes.

 In Mississippi State Bar v. Walter L. Nixon, 494 So.

 2d 1388 (Miss. 1986), decided September 24, 1986, by this Court, the Mississippi State Bar filed its formal complaint presenting as an exhibit thereto a certified copy of the judgment of conviction dated March 31, 1986, adjudging Nixon guilty of two counts of perjury in violation of 18 U.S.C. 623. Proceeding under Rule 6(a), Rules of Discipline, the Court ordered the suspension of Nixon until his pending appeal before the United States Court of Appeals for the Fifth Circuit District was finally determined.

 The Court said:

 In the alternative, Judge Nixon objects to the somewhat summary proceedings authorized by Rule 6 and, instead, urges the formation of a complaint tribunal to hear and determine the matter. To be sure, most bar disciplinary matters are heard by a complaint tribunal in accordance with Rule 8 of the Rules of Discipline. Proceedings when one subject to the disciplinary jurisdiction of the court has been convicted of a crime such as that involved here, however, are excepted from Rule 8 and instead are governed by Rule 6. The reason for this is the rather obvious one that a complaint tribunal hears matters involving disputes regarding questions of fact. Even though the ultimate decision in such matters is for this Court, see Levi v. Mississippi State Bar, 436 So.2d 781, 782-83 (Miss. 1983), we regard it of immeasurable benefit that the complaint tribunal conducts a factual hearing and submits to us proposed findings of fact and a proposed ...


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