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H. LANIER B. FOOTE v. MISSISSIPPI STATE BAR ASSOCIATION

DECEMBER 02, 1987

H. LANIER B. FOOTE
v.
MISSISSIPPI STATE BAR ASSOCIATION



EN BANC:

PRATHER, JUSTICE, FOR THE COURT:

This is a consolidated appeal from two decisions of the Mississippi State Bar Complaint Tribunals, wherein the appellant Lanier B. Foote, was found guilty of violating certain provisions of the Code of Professional Responsibility of the Mississippi State Bar and Miss. Code Ann. 73-3-35. For one of these violations, the Tribunals imposed the sanction of disbarment.

Foote appeals both decisions which arise out of three separate sets of facts. In Conf. Misc. 226, the attorney, H. Lanier B. Foote appeals the sanction of disbarment, assigning the following as error:

 The appellant was disbarred for violations of the Code of Professional Responsibility in connection with the misappropriation of client's funds handled by the appellant during a loan closing, which disbarment was a disproportion any severe sanction in light of previous cases decided by this Court.

 In Conf. Misc. 218, the attorney appeals the sanctions of a public reprimand and a 90-day suspension, assigning as error the following:

 (1) The appellant was determined to have violated the Code of Professional Responsibility for not having refunded $50.00 to a client and the sanction ordered is a public reprimand. This is essentially a fee dispute and the appellant should not be given any more than a private reprimand.

 (2) The appellant was suspended from the practice of law for ninety days for neglecting a criminal matter after having received a fee. The sanction is disproportionate to the severity of the infraction and should be reduced to, at most, a public reprimand.

 I.

 A.

 The appellant admits that since the allegations made in the complaint filed by Deryl Ferguson before the Mississippi State Bar Complaints Tribunal were uncontested, the facts as outlined in the opinion and judgment of the statutorily convened tribunal are the ones to be properly adopted by this Court. The attorney was duly noticed of the complaint filed against him, but elected not to file an answer or appear at the tribunal hearing. The allegations of the State Bar's complaint were taken as true by the tribunal and confessed by the attorney respondent. The tribunal adopted the allegations as the findings of fact in its opinion as follows:

 On or about March 1, 1985, the Respondent served as closing attorney for the sale of property to Deryl Ferguson by William Watkins and Donna Watkins and at the closing of the aforesaid sale of real property Ferguson presented to the Respondent a check for $15,976.00 representing the purchase price of the said property, including $10,396.00 as payoff for the First Deed of Trust on the property held by the Rankin County Bank. That Respondent accepted the check and gave William and Donna Watkins their share of the proceeds from the sale of the property which was approximately $4,296.00 and Respondent was to make the necessary arrangements to payoff the First Deed of Trust held by the Rankin County Bank.

 In June, 1985, Deryl Ferguson, while attempting to sell the subject real property, discovered that the Rankin County Bank's First Deed of Trust had not been paid off and thereafter Deryl Ferguson and his real estate agent attempted to contact the Respondent by telephone leaving numerous messages with Respondent's secretary as to the nature of the problem that Ferguson was experiencing but Respondent failed to return any of Deryl Ferguson's or his real estate agent's telephone calls.

 Ferguson was then forced to pay $10,830.03 to pay off the Rankin County Bank's First Deed of Trust in order to consummate his sale of the subject real property and that this amount was $433.45 more than on the March 1, 1985 closing of

 the sale of the subject real property.

 The Respondent did contact Deryl Ferguson on or about June 30, 1985, and advised Deryl Ferguson he would look into the matter and contact Deryl Ferguson, but Deryl Ferguson received no further telephones [sic] calls from the Respondent and Deryl Ferguson was unsuccessful in attempting to see Respondent on July 2, 1985, in an attempt to resolve the unpaid First Deed of Trust in favor of the Rankin County Bank.

 In the interim, Deryl Ferguson had contacted another attorney to help resolve the problems he was experiencing with the Respondent and the Respondent's failure to pay off the Rankin County Bank's First Deed of Trust on the subject property and Ferguson's other attorney also attempted to contact the Respondent by telephone and wrote the Respondent on July 2, 1985, requesting that the Respondent reply by July 8, 1985, with regard to what the Respondent's intentions were concerning any action that he may take in order to fulfill his responsibilities as closing attorney on the sale of the subject property.

 On July 12, 1985, the Respondent presented Deryl Ferguson's second attorney the sum of $11,280.00 in cash for Deryl Ferguson and Deryl Ferguson was then given $10,880.00 and the remaining amount was retained by the second attorney as his attorney fees and expenses.

 The Respondent's failure to pay off the mortgage at the time of the closing was in derogation of his duty as closing attorney as established in the settlement statement dated March 1, 1985.

 Based upon the above findings, it is the opinion of the Tribunal that the Respondent readily accepted representation of Deryl Ferguson, William Watkins and Donna Watkins to act as the closing attorney for the sale of certain real property to Deryl Ferguson by William and Donna Watkins. However, the Respondent failed to make the necessary arrangements to pay off the First Deed of Trust on the subject property to the Rankin County Bank; failed to carry out his responsibilities and duties as closing attorney

 which resulted in Mr. Ferguson paying an additional $433.45 in interest on the Deed of Trust when finally paid off than if the Deed of Trust was paid off at closing; and, failed to handle a client's funds in accordance with the applicable Rules of Discipline as adopted by the Mississippi Supreme Court for use by members of the Mississippi State Bar.

 The Mississippi State Bar Complaint Tribunal found the attorney guilty of violating the following disciplinary rules:

 DR 1-102. Misconduct

 (A) A lawyer shall not:

 (3) Engage in illegal conduct involving moral turpitude.

 (4) Engage in conduct involving dishonesty, fraud, deceit, or ...


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