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Mississippi Bar v. Burtoff

Supreme Court of Mississippi, En Banc

October 18, 2018

THE MISSISSIPPI BAR
v.
BRUCE D. BURTOFF

          ATTORNEYS FOR APPELLANT: JAMES RUSSELL CLARK ADAM KILGORE

          ATTORNEY FOR APPELLEE: BRUCE D. BURTOFF (PRO SE)

          BEAM, JUSTICE

         ¶1. The Mississippi Bar, under Rule 13 of the Rules of Discipline for the Mississippi Bar, filed a formal complaint against Bruce D. Burtoff. Because the Supreme Court of Florida issued a public reprimand to Bruce D. Burtoff, and because he is licensed to practice in Mississippi, the Bar is obligated to present a certified copy of the judgment to this Court and to seek reciprocal discipline. The Bar asks this Court to discipline Burtoff appropriately and to tax all costs and expenses incurred in filing the formal complaint to Burtoff. After due consideration, we find that the requested relief should be granted.

         FACTS & PROCEDURAL HISTORY

         ¶2. In 2004, Burtoff drafted estate planning documents for his mother-in-law and father- in-law, Mary and Charles Bullington. Mary Bullington died in 2012, and a dispute arose regarding the trust Burtoff had drafted. Burtoff represented his wife, the personal representative of Mary Bullington's estate and filed suit against Charles Bullington, his former client. Burtoff took positions contrary to the interests of his former client and continued representation of his wife in the probate matter when he knew or reasonably should have known he had a conflict of interest. Burtoff ultimately was disqualified as counsel for his wife and was found to have acted in violation of Rule 4-1.9(a) of the Rules Regulating the Florida Bar. On May 31, 2018, the Supreme Court of Florida reprimanded Burtoff publicly. Because Burtoff is licensed to practice in Mississippi, the Mississippi Bar, in compliance with Rule 13 of the Mississippi Rules of Discipline, filed its formal complaint.

         DISCUSSION

         ¶3. This Court possesses "exclusive and inherent jurisdiction" over the discipline of attorneys under the Mississippi Rules of Discipline. McIntyre v. Miss. Bar, 38 So.3d 617, 623 (Miss. 2010). Burtoff is a licenced attorney in Mississippi and, therefore, is subject to the disciplinary jurisdiction of this Court. Mississippi Rule of Discipline 13, which governs reciprocal discipline, provides,

When an attorney should be subjected to disciplinary sanctions in another jurisdiction, such sanction shall be grounds for disciplinary action in this state, and certification of such sanction by the appropriate authority of such jurisdiction to the Executive Director of the Bar or to the Court, shall be conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered, and it will not be necessary to prove the grounds for such offense in the disciplinary proceeding in this state. The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.

M.R.D. 13. Under Rule 13, the certified copy of the judgment of public reprimand is "conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered." Id. This Court will not engage in further fact-finding when a sanction is imposed by another jurisdiction. Miss. Bar v. Shah, 749 So.2d 1047, 1049 (Miss. 1999). The sole issue before this Court is "the extent of final discipline to be imposed on the attorney in this jurisdiction." Id.

         ¶4. In this Court's application of the reciprocity doctrine, the sanction imposed here generally mirrors the sanction imposed in the sister state, absent extraordinary circumstances which compel, justify, or support variance from the foreign jurisdiction's sanction. Miss. Bar v. Drungole, 913 So.2d 963, 970 (Miss. 2005). The Court may impose sanctions less than or greater than those imposed by another jurisdiction. Miss. Bar v. Gardner, 730 So.2d 546, 547 (Miss. 1998). The following nine criteria are considered when determining reciprocal discipline:

(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.

Miss. Bar v. Ogletree, 226 So.3d 79, 83 (Miss. 2015). So long as each is taken into consideration, this Court need not address each criterion separately. Id. 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 ...


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