author: McRAE, P.J., for the Court. COBB, J.,

text:
    THE MISSISSIPPI BAR v. Joe Price COLEMAN a/k/a J. Price Coleman.
    No. 2001-BA-00988-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2002.
    Rehearing Denied Feb. 27, 2003.

      Michael B. Martz, J. David Wynne, Oxford, attorneys for appellant.
    Alex A. Alston,. Jr., David W. Dogan, Jackson, attorneys for appellee.
   McRAE, P.J., for the Court.

¶ 1. Attorney Joe Price Coleman was charged with commingling, misappropriation and conversion of client funds in violation of Rules 1.15 and 8.4 (a, c, and d) of the Mississippi Rules of Professional Conduct. The Complaint Tribunal (Tribunal) found a Rule 1.15 violation only and suspended Coleman from the practice of law for thirty (30) days and ordered that he receive a public reprimand. Both the Mississippi Bar (the Bar) and Coleman appeal.

¶ 2. We affirm as to Rule 1.15, but reverse as to Rules 8.4(a, c, and d) and therefore order that Coleman is suspended from the practice of law for three (3) years.

STATEMENT OF THE CASE

¶ 3. The Bar brought a complaint against Coleman alleging violation of Rules 1.15 and 8.4(a), (c), and (d) of the Rules Professional of Conduct. In response, Coleman moved to dismiss or in the alternative for summary judgment on the basis that the Complaint Committee (Committee) heard the matter in violation of the Mississippi Rules of Discipline-, which require that any complaint considered by the Committee must first be in writing. His motion was denied. A hearing followed. The Committee found that Coleman violated Rule 1.15, but not Rules 8.4(a), (c), and (d). He was suspended from practice for thirty days, and ordered to receive a public reprimand.

¶ 4. The. Bar asserts that the Tribunal erred in failing to find, in addition to the Rule 1.15 violation, that Coleman misappropriated and converted those commingled client funds for his own personal use in violation of Rules 8.4(a), (c), and (d). The Bar asserts this decision is arbitrary and capricious as it is against the overwhelming weight of the evidence presented.

¶ 5. Coleman asserts on cross-appeal that (1) the Tribunal’s actions are void for lack of authority because the complaint against him was considered without a written complaint; (2) a reprimand or an admonition is appropriate; and (3) Rules 8.4(a), (c), and (d) are inapplicable because: (1) double jeopardy results when applied in conjunction with Rule 1.15; (2) his conduct was not dishonest or fraudulent; and (3) there was no legal proceeding with which his conduct could interfere, thus precluding any liability outside of Rule 1.15.

¶ 6. The facts of this case arose during Jackson attorney Joe Price Coleman’s change of employment from the law firm of Daniel Coker Horton & Bell, P.A. (Daniel Coker) to the Baker, Donelson, Bear-man & Caldwell, P.C. (Baker Donelson) law firm. On March 24, 2000, Coleman, as administrator of the Arkansas Shared Counsel Defense Fund (Fund), which was administered by Daniel Coker, wrote and signed a check in the amount of $14,904.94 payable to the Fund, which he signed and then deposited into his personal checking account on March 28, 2000. The purpose of the draft was to move the proceeds of that account to the Mississippi Hearing Loss Joint Defense Fund of which Raymond Brown was administrator. Coleman claims he intended to deliver the funds to Raymond Brown the following week, but that opportunities to do so in a timely manner were impeded by other responsibilities, deadlines, travel, and by the process of changing firms. Additionally, Coleman claims he was concerned that Daniel Coker would cancel the check since many of the Fund clients had not formally transferred their files to Coleman’s new firm.

¶ 7. Seventy-two (72) checks were written from Coleman’s personal bank account between the time the deposit was made and the time the money was finally delivered to Raymond Brown. Most of these were written by Mrs. Coleman. Again, at the time of deposit, the Colemans’ account had a negative balance of over $12,000. Coleman’s Banker testified that it was not unusual for Coleman’s account to be in over-draft and that no consequence would have ever resulted, as the Colemans maintained overdraft protection. He also testified that no check ever went unpaid by the bank.

¶ 8. Coleman finally delivered the money to Raymond Brown on May 1, 2000. On the very same day, Daniel Coker mailed a letter to Coleman regarding the money and requesting that he call the Firm. The letter was received at Coleman’s new firm on May 2. On May 3, 2000, Coleman called Daniel Coker and reported that the money had been transferred to Raymond Brown. Because the funds had been placed in Coleman’s personal account, however, Daniel Coker expressed its responsibility to report the matter to the Bar. Coleman desired to participate in the report and acting jointly with Daniel Coker reported the matter to the Bar. Daniel Coker never filed a written complaint.

¶ 9. Following Daniel Coker’s oral report, Complaint Counsel for the Bar drafted a “Memorandum to the Committee” (Memo) dated May 24, 2000, summarizing the results of his investigation into the matter. The memo was entitled “Commingling and Misappropriation of Funds.” In the Memo, Complaint Counsel recommended that, in the absence of a written complaint, “an Information and Belief Complaint” should be filed against Coleman. The Committee considered the matter at a regularly conducted meeting on June 15, 2000. At this time, no written complaint, either formal, informal, by a third-party complainant or one based upon Complaint Counsel’s information and belief had been made. Coleman’s counsel requested a record of this proceeding, but was refused on the basis of confidentiality and privilege. Neither Coleman nor his attorney were ever informed of the Memo, or that the Committee would consider the matter on the basis of the Memo. They did not learn of the Memo until the middle of the hearing on Coleman’s motion to dismiss. However, both Coleman and his attorney were informed of the process Complaint Counsel would follow, including his talk before the Committee prior to the filing of a written complaint.

¶ 10. On June 23, 2000, the Complaint Counsel, based “on information and belief and at the direction of the Committee on Professional Responsibility,” filed an “Information and Belief’ Complaint against Coleman as the Complainant. By letter dated September 15, 2000, and addressed to Complaint Counsel, the Committee determined there was probable cause to believe that Coleman engaged in misconduct. The Committee directed Complaint Counsel to “prepare and file a Formal Complaint Against J. Price Coleman in accordance with the provisions of Rule 8 of the Rules of Discipline for the Mississippi Bar.” The Complaint was filed on September 25, 2000.

¶ 11. Coleman moved to dismiss the case, or in the alternative for summary judgment on the basis that the Complaint Committee considered the matter without a written complaint, as prescribed by the Rules, and was therefore without the ability to dismiss the cause or admonish the attorney at that time, since it may not act except upon a “written complaint.” The motion was denied. The matter was heard on the merits.

STANDARD OF REVIEW

¶ 12. The standard of review in this matter is de novo. Cotton v. Miss. Bar, 809 So.2d 582, 585 (Miss.2000). This Court has “exclusive jurisdiction and inherent jurisdiction of matters pertaining to attorney discipline.” Broome v. Miss. Bar, 603 So.2d 349, 354 (Miss.1992). This Court sits as the trier of fact and is not bound by a substantial evidence or manifest error rule. Asher v. Miss. Bar, 661 So.2d 722, 727 (Miss.1995). However, deference is given to the Tribunal’s findings on the basis that it was the exclusive trier of credibility and demeanor, which cannot be duplicated on appeal to this Court. Stegall v. Miss. Bar, 618 So.2d 1291, 1294 (Miss.1993).

DISCUSSION

I. WHETHER THE TRIBUNAL’S ACTIONS ARE VOID BECAUSE THE COMPLAINT COMMITTEE CONSIDERED THE MATTER WITHOUT A WRITTEN COMPLAINT.

¶ 13. Coleman asserts that this matter was considered in violation of disciplinary procedure and that, as a result, he was prejudiced. He also asserts that the procedure employed violates the equal protection clause of the Fourteenth Amendment and the Mississippi Constitution. Therefore, he argues that this Court should dismiss the case. We disagree.

Procedure

¶ 14. The Rules of Discipline for the Mississippi Bar set forth the procedure for the investigation and prosecution of attorney misconduct. They read in relevant part:

Rule 4. INITIATION AND FILING OF COMPLAINTS
(a) Any matter touching on the misconduct of an attorney licensed in the State of Mississippi or any attorney who renders or has rendered legal services in this state shall be called to the attention of Complaint Counsel either verbally or in writing ...
(c) The Committee on Complaints shall not consider the matter until it has been reduced to writing ...

Miss. R. Disc. 4. The Rules also enumerate in detail what the written complaint shall contain, including the name and address of the complainant, the name and address of the accused attorney, a statement of the facts of the complaint, a list of witnesses, and copies of any statement by witnesses. Id. 4.2(a)-(e). Further, Rules 5 and 7 outline the required complaint procedure:

Rule 5. COMPLAINT COUNSEL-DUTIES AND POWERS
The Complaint Counsel shall investigate complaints, prosecute formal complaints, and discharge other duties assigned by the Board of Commissioners. Complaint Counsel shall conduct any investigation or investigatory hearing fairly and impartially and shall seek to elicit any and all facts which might be exculpatory or incriminatory of the accused attorney. All proceedings under these rules shall be expeditiously conducted to the end that no complainant be deprived of his right to a timely, fair and proper investigation of a complaint and that no attorney be subjected to unfair and unjust charges.
(5.1) General. Upon receipt of a written complaint or information indicating probable cause, Complaint Counsel shall conduct an investigation ... Complaint Counsel may require a complaint to be in writing or may file a complaint on information and belief
(5.2) Investigations and Reports. Complaint Counsel shall investigate and report to the Committee on Professional Responsibility within sixty days from receipt of the written complaint....
(5.8) The Investigatory Hearing. After written notice of the complaint or investigation is given to the attorney, such attorney or counsel therefor shall have the right to appear at any investigatory hearing for the purposes of examining or cross-examining all witnesses and for presenting witnesses and evidence on behalf of the attorney ...
Rule 7. COMMITTEE ON PROFESSIONAL RESPONSIBILITY DUTIES AND POWERS ...
(7.3) Formal Complaints. If, after conclusion of the investigation, the Committee is of the opinion that probable cause exists to believe the attorney is guilty of conduct warranting discipline, the matter shall be referred to Complaint Counsel for filing of a Formal Complaint for trial before a Complaint Tribunal.

¶ 15. In the present case, Complaint Counsel prepared an “information and belief’ complaint after the matter had been considered by the Committee on the basis of a Memo. Coleman’s counsel first saw the Memo during the hearing before the Tribunal on Coleman’s motion to dismiss, when Complaint Counsel first argued that it, and not a complaint, could serve as the required writing.

¶ 16. The applicable Rule is written as a mandate: “The Committee on Complaints shall not consider the matter until it has been reduced to writing ...” Miss. R. Disc. 4. Neither do the Rules allow Complaint Counsel the option of acting before the committee in the absence of a written complaint. Id. 5.1. Instead, they require counsel to conduct an investigation only “upon receipt of a written complaint or information indicating probable cause.” Id. Complaint Counsel then has 60 days “from receipt of the written complaint” to report to the Committee. Id. 5.2.

¶ 17. In Mississippi Bar v. Attorney G., 630 So.2d 344 (Miss.1994), this Court held that it is bound by its own disciplinary rules. The Court announced that:

Attorney disbarment and suspension cases are quasi-criminal in character. In the Matter of Richard A. Thalheim, Jr., Plaintiff-Appellant, 853 F.2d 383 (5th Cir.1988), Accordingly, the court’s disciplinary rules are to be read strictly, resolving any ambiguity in favor of the person charged. Id. at 388. [citations omitted.] The above case further states that: When a court undertakes to sanction an attorney for violating court rules, it is incumbent upon the sanctioning court to observe scrupulously its own disciplinary procedure. If the rules are inadequate, the court can proceed to amend them. But unless and until such amendment occurs, attorneys have the right to rely upon the rules. Id. at 390.

Attorney G., 630 So.2d at 348.

¶ 18. We emphasize the above case and instruct Complaint Counsel and the Bar to endeavor, committing its principle to memory. As to the present facts, however, Coleman was fully informed, in advance, of each step Complaint Counsel took outside of prescribed procedure, including Counsel’s appearance before the Committee prior to the filing of a written complaint. There was complete cooperation and candor throughout the process on both sides. Coleman was also informed of when and how Complaint Counsel was going to present the matter from the outset. As such, we find that Coleman waived his procedural argument and was not prejudiced by the procedural deviations from the rules.

¶ 19. Coleman also argues that' the Complaint Counsel’s use of two methods, the “oral report/information and belief method” and the “written complaint” method, results in unconstitutional classifications of accused attorneys, with one group receiving less due process than the other, the other receiving more. For the same reasons we have discussed above, we find that this has no merit.

II. WHETHER MULTIPLE RULE APPLICATIONS TO THE SAME CONDUCT TRIGGERS DOUBLE JEOPARDY.

¶ 20. Coleman suggests that findings of multiple Rule violations resulting from a single offense constitutes double jeopardy. This argument is without merit.

¶ 21. The double jeopardy clause protects against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. The latter of these is at issue in the present appeal.

¶ 22. This issue was recently considered by one of our sister Courts, the Supreme Court of South Carolina. In re Chastain, 340 S.C. 356, 532 S.E.2d 264 (2000). The issue was whether a lawyer who has been sanctioned under the disciplinary rules for improperly failing to return a retainer can be sanctioned a second, time under the rules after he is convicted of a criminal charge stemming from his initial rule violation. Id. The attorney argued that it would violate the Double Jeopardy Clause to sanction him a second time for the same offense. Citing this Court’s holding in Mississippi State Bar v. Young, 509 So.2d 210, 212 (Miss.1987), the South Carolina Supreme Court recognized that states classify disciplinary proceedings in one of three ways, either civil, special, or quasi-criminal. “Regardless of the exact label,” however, “courts uniformly have concluded that the Double Jeopardy Clause is not implicated in disciplinary proceedings.” Id. The South Carolina Supreme Court relied in great measure on a persuasive analysis by the Seventh Circuit:

[I]t would be well to note that disbarment and suspension proceedings are neither civil nor criminal in nature but are special proceedings, suie generis, and result from the inherent power of courts over their officers. Such proceedings are not lawsuits between parties litigant but rather are in the nature of an inquest or inquiry as to the conduct of the respondent. They are not for the purpose of punishment, but rather seek to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and the public from the official ministration of person unfit to practice. , Thus the real question at issue in a disbarment proceeding is the public interest and an attorney’s right to continue to practice a profession imbued with public trust.

Id. (citing In re Echeles, 430 F.2d 347, 349-50 (7th Cir.1970)). See also Fitzsimmons v. State Bar, 34 Cal.3d 327, 193 Cal.Rptr. 896, 667 P.2d 700, 703 (1983)(although afforded great measure of due process, disciplinary proceedings do not extend to attorneys the extent of due process afforded a criminal defendant because such proceedings are sui generis as opposed to purely criminal or purely civil).

¶ 23. The case law, in this jurisdiction and others, could not be clearer. Double jeopardy is triggered only in a criminal setting, and as such is inapplicable to disciplinary proceedings. Mississippi Bar disciplinary actions, although deemed quasi-criminal, are not criminal proceedings. The primary purpose of disciplinary proceedings is not to punish an attorney for misconduct, but rather to protect the public and preserve the integrity of the Bar. For these reasons, Coleman’s double jeopardy claim is without merit.

III. WHETHER THE COMPLAINT TRIBUNAL ERRED IN FAILING TO FIND COLEMAN IN VIOLATION OF RULES 8.4 (a, c, and d); AND IF SO, THEREFORE IMPOSED INADEQUATE SANCTIONS.

¶ 24. The Bar asserts that the Tribunal, despite clear and convincing evidence, failed to find that Coleman also violated Rule 8.4 (a, c and e) in addition to Rule 1.15. These Rules read as follows:

Rule 1.15 Safekeeping Property.
(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property ...
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another ...
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.

¶ 25. In assessing disciplinary violations, this Court considers: (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) the 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 or mitigating factors. Miss. Bar v. Walls, 797 So.2d 217, 219 (Miss.2001) (citing Rogers v. Miss. Bar, 731 So.2d 1158, 1171 (Miss.1999)). “Worthy of most consideration when contemplating sanctions is vindicating ‘in the eyes of the public the overall reputation of the bar.’ ” Id. (quoting Hall v. Miss. Bar, 631 So.2d 120, 125 (Miss.1993)).

The duty violated

The nature of the misconduct involved

¶ 26. Commingling of client funds is the “cardinal sin” of the legal profession, whether done intentionally or not. Haimes v. Miss. Bar, 601 So.2d 851, 854 (Miss.1992). See also Cotton v. Miss. Bar, 809 So.2d 582, 587 (Miss.2000); Miss. Bar v. Gardner, 730 So.2d 546, 547 (Miss.1998); Reid v. Miss. State Bar, 586 So.2d 786 (Miss.1991). In many cases, it has been grounds for disbarment or denial of reinstatement. It is indeed the ultimate breach of fiduciary trust.

¶ 27. In the present ease, the Tribunal found that Coleman unquestionably commingled client funds in violation of Rule 1.15. Indeed, Coleman admitted as much. Coleman testified, however, that he never intended to keep the money or convert it for his own personal use. Instead, he claimed that his job transition, the possible threat of Daniel Coker keeping the money, and his burdened schedule contributed to the delay in delivering the funds.

¶ 28. On the issue of intent, the Tribunal found that while Coleman could have “easily endorsed the Daniel Coker check to Raymond Brown, written his own personal check to Raymond Brown and promptly mailed either, or made a special trip” to deliver the funds, “there was no clear showing” that his actions demonstrated intent to misappropriate or convert the funds for his own use. We do not agree.

¶29. In Reid v. Miss. State Bar, 586 So.2d 786, 788 (Miss.1991), we found that:

When a lawyer receives and deposits in his trust account funds belonging to others, and prior to disbursing any of such funds to the lawful payees, the trust account shows a total deposit less than the amount he had been entrusted with, this supports the conclusion that the attorney has converted funds to an unauthorized and unlawful use. Jackson v. State Bar, 25 Cal.3d 398, 158 Cal.Rptr. 869, 600 P.2d 1326 (1979); Giovanazzi v. State Bar of California, 28 Cal.3d 465, 169 Cal.Rptr. 581, 619 P.2d 1005 (1980).

¶ 30. We find Reid instructive in the present case. Coleman personally wrote the fund check out to himself and deposited it into his personal checking account. Coleman also knew for five weeks that the client’s money was in his personal account. He and his wife presented seventy-two checks on this personal account over the period of that five weeks which were paid in large measure from the clients’ money. This is simply unacceptable.

The need to deter similar misconduct

The preservation of the dignity and reputation of the profession

The protection of the public

¶31. This Court has repeatedly held that the primary purposes of Bar discipline are deterrence of future misconduct and the preservation of the legal profession’s reputation in the eyes of the public. See, e.g., Cotton, 809 So.2d at 587. See also Miss. State Bar Ass’n v. A Miss. Attorney, 489 So.2d 1081, 1084 (Miss.1986); Phillips v. Miss. State Bar, 427 So.2d 1380, 1382 (Miss.1983).

¶32. This Court has observed that:

There can be no legal profession in the absence of scrupulous honesty by attorneys with other people’.s money. Public confidence here is vital. There may be worse sins, but the ultimate wrong of a lawyer to his profession is to divert clients’ and third parties’ funds entrusted to him to an unauthorized use. A lawyer guilty of such conduct exhibits a character trait totally at odds with the purposes, ideals and objectives of our profession.

Reid, 586 So.2d at 788. We also said in this case, “[t]here can be no more damaging evidence ... as to a lawyer’s fitness to practice law than mishandling a trust account.” Id. Further, “[t]here may be worse sins, but the ultimate wrong of a lawyer to his profession is to divert clients’ and third parties’ funds entrusted to him to an unauthorized use. A lawyer guilty of such conduct exhibits a character trait totally at odds with the purposes, ideals and objectives of our profession.” Id.

¶ 33. Indeed, the viability of the legal profession hinges upon the conservation of its character, a primary component of which is trust, an additional component of which is consistent and responsible self-regulation. No force of deterrence or public trust is served by inconsistent regulation. Discipline should be rendered consistently, and it should be maintained in order to satisfy disciplinary purposes. A thirty-day suspension on the facts of the present case fails to serve these purposes.

The lawyer’s mental state

¶ 34. Coleman’s mental state is not at issue in this case.

The existence of aggravating or mitigating factors

The actual or potential injury resulting from the misconduct

¶ 35. Coleman finally returned the money to appropriate hands, which mitigates in his favor. See Miss. Bar v. Gardner, 730 So.2d 546, 547 (Miss.1998) (repayment is a mitigating factor). Likewise, Coleman both initiated this proceeding with the Daniel Coker representatives and cooperated throughout the entire matter. With the exception of this incident, the record reveals that Coleman’s professional reputation is without blemish. He has been practicing for over 25 years and has not previously been charged with a disciplinary violation. Notably, he served on the Bar committee that facilitated the transfer from the Code of Professional Responsibility to the Rules of Professional Conduct. According to testimony before the tribunal, he is known as the kind of attorney an adversary can deal with on a handshake. These are all mitigating factors, but they cannot and do not aid Coleman in avoiding disciplinary action on these facts. In fact, he is the kind of attorney from whom we would naturally expect the highest regard for professional responsibility.

¶ 36. As to aggravating circumstances, the record is not revealing. Nor does it reveal any injury to third-parties as a result of Coleman’s personal use of the commingled funds.

Sanctions imposed in similar cases

¶37. The Tribunal reasoned that this case is most factually in line with our decision in Mississippi Bar v. Pels, 708 So.2d 1372 (Miss.1998), as opposed to other of our decisions where commingling was coupled with patent and flagrant abuses of trust. See, e.g., Gex v. Miss. Bar, 656 So.2d 1124, 1125-26 (Miss.1995) (attorney misrepresented his authority to cancel deed of trust in return for payoff when in fact he had assigned his interest in the deed to a third party; he then received and used the payoff funds for personal expenses); Haimes v. Miss. Bar, 601 So.2d 851, 852-53 (Miss.1992) (attorney transferred $5000.00 belonging to guardianship of incompetent to personal account and paid himself unauthorized “fees” for services rendered); Clark v. Miss. State Bar Ass’n, 471 So.2d 352, 354 (Miss.1985) (attorney withdrew and spent funds from conservatorship’s savings account then filed reports reflecting balance in account when no account existed). We do not agree. We have rarely treated commingling and conversion cases lightly.

¶ 38. In Pels, we determined that Pels had not engaged in a systematic diversion of his client’s funds for personal purposes. Pels, 708 So.2d 1372 (attorney suspended for thirty days for negligently commingling client funds). The money at issue in Pels was placed into an account used for both Pels’s business and personal finances. And within days of receiving the funds at issue, Pels sent his client the full amount to which she was potentially entitled under the original retainer agreement. Further, after paying two of the medical care providers promptly, Pels delayed payments to the two additional providers until he was satisfied that their charges were not dupli-cative or excessive. Additionally, Pels sent his client a letter before any dispute arose, in which he informed her that there were “outstanding costs on your account” and that “those past non-waived costs will be adjusted into your account upon completing the adjusted medical charges.” We found that this letter notified the client of Pels’ intention to use any amount saved through his negotiations with the medical provider to offset his considerable ' un-waived past expenses. It also informed the client that there would be “small additional costs associated with the finalization of your account.” Id.

¶ 39. In the present case, there is no evidence of timely communication or conscientiousness, be it made in good faith, or out of confusion. Instead, we deal with the sheer fact that Coleman put over $14,000 into his personal checking account, from which 72 checks were drawn and paid before the money was returned to the Fund Administrator. We do not find Coleman’s case, therefore, strictly in fine with our Pels decision. Nor are we persuaded, as counsel for Coleman urged during oral argument in this case, that Coleman made a simple “mistake.”

¶ 40. While we do not find that Coleman should be disbarred, neither do we find that Coleman’s conduct warrants but a thirty-day suspension. The Tribunal is affirmed as to Rule 1.15, but reversed as to Rules 8.4 (a, c, and d). We find Coleman violated these Rules. We therefore order that Coleman be suspended from the practice of law for three years.

¶ 41. JOE PRICE COLEMAN IS HEREBY SUSPENDED FROM PRACTICING LAW IN THE STATE OF MISSISSIPPI FOR THREE YEARS.

PITTMAN, C.J., DIAZ, EASLEY AND CARLSON, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. COBB, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, P. J. WALLER, J., NOT PARTICIPATING.

COBB, J.,

concurring in part and dissenting in part:

¶ 42. I concur in, the majority’s rejection of Coleman’s procedural and double jeopardy arguments and its conclusion that Coleman’s conduct at issue here violated Rule 1.15 and 8.4 (a, c, and d) of the Mississippi Rules of Professional Conduct. However, I respectfully disagree with the majority that a three-year suspension is an adequate punishment for the conduct at issue.

¶ 43. The Bar has stated to this Court that Coleman’s conduct “warrants either disbarment or the imposition of a three (3) year suspension, if this Court deems leniency should be shown.” The majority apparently so deems. I must disagree with that decision. There is no persuasive ground for leniency here. If this Court is to take its own pronouncements seriously, then the penalty of disbarment is the more appropriate sanction.

¶ 44. As the majority’s citation to previous commingling cases reveals, we have been less than consistent in the penalties imposed. But past penalties are, at most, one of several factors to be considered:

This Court has considered five (5) factors in determining the severity of the sanction when an attorney is subject to discipline:
(A) Nature of the misconduct involved;
(B) Need to deter similar misconduct;
(C) Preservation of dignity and reputation of the legal profession;
(D) Protection of the public; and
(E) Sanctions imposed in similar cases.

Stegall v. Miss. Bar, 618 So.2d 1291, 1294 (Miss.1993) (quoting Culpepper v. Miss. State Bar, 588 So.2d 413, 420 (Miss.1991)). It is entirely proper for this Court to compare previous cases in deciding what sanctions to impose, so long as we remain cautious that our past leniency does not result in a gradual diminution of the high ethical standards which it is our duty to uphold.

¶ 45. The majority contends that Coleman’s eventual restitution of the misappropriated funds to the client is a mitigating factor, citing our case law for this proposition. See Miss. Bar v. Gardner, 730 So.2d 546, 547 (Miss.1998). But Gardner is an aberration in our jurisprudence on this question. “[RJestitution by an attorney of funds previously misappropriated does not mitigate the offense, particularly where the restitution has been made under pressure.” Cotton v. Miss. Bar, 809 So.2d 582, 587 (Miss.2000) (emphasis added) (quoting Clark v. Miss. State Bar Ass’n, 471 So.2d 352, 357 (Miss.1985)); accord, Foote v. Miss. State Bar Ass’n, 517 So.2d 561, 565 (Miss.1987). Our opinion in Gardner failed to note Clark or Foote, or to support its reasoning on that point with any authority. I believe that these contrary authorities carry more weight than our momentary deviation. Why should the restitution to the client of what the attorney wrongly took be considered mitigation? Jail, not only disbarment, would otherwise confront the attorney. Therefore, restitution is uncertain evidence at best with regards to repentance and contrition.

¶ 46. Nor do I consider that Coleman’s reputation or service should mitigate his offense. The majority notes that he “served on the Bar committee that facilitated the transfer from the Code of Professional Responsibility to the Rules of Professional Conduct.” This makes his wrongdoing more egregious, not less. Surely if anyone should have known beyond doubt that what he was doing was absolutely unacceptable, it was Coleman. And yet, this knowledge did not deter him. Apparently he considered himself above the very rules which he had helped to adopt.

¶ 47. The most important consideration in disciplinary proceedings is “to vindicate the reputation of the bar in the eyes of the public, not to punish an attorney’s misdeeds.” Haimes v. Miss. Bar, 601 So.2d 851, 854 (Miss.1992). I believe that the reputation of this Court is also implicated here. Do we actually mean what we have said about misappropriation and commingling of funds?

¶48. In Reid v. Miss. State Bar, 586 So.2d 786 (Miss.1991), the attorney commingled and converted client funds and was therefore disbarred. This Court wrote that

There can be no legal profession in the absence of scrupulous honesty by attorneys with other people’s money. Public confidence here is vital. There may be worse sins, but the ultimate wrong of a lawyer to his profession is to divert clients’ and third parties’ funds entrusted to him to an unauthorized use. A lawyer guilty of such conduct exhibits a character trait totally at odds with the purposes, ideals and. objectives of our profession.

Id. at 788 (emphasis added). How can we say that commingling is “the ultimate wrong” without imposing the ultimate professional penalty? Does a three-year suspension suggest that such conduct is “totally at odds” with our profession, or just somewhat at odds with it?

¶49. “The mishandling of a client’s money by an attorney has often been referred to as the ‘cardinal sin’ for lawyers.” Cotton, 809 So.2d at 586 (attorney disbarred for failing to pay client’s bills out of funds held for that purpose). See Haimes, 601 So.2d at 854 (attorney who had “now twice committed the cardinal sin — mishandling a client’s money” was disbarment). Should not the cardinal sin reap the cardinal penalty?

¶ 50. In Miss. State Bar Ass’n v. Moyo, 525 So.2d 1289 (Miss.1988), the attorney’s many offenses included commingling and conversion. Upholding disbarment, this Court wrote:

When a lawyer puts a client’s money into his personal account, he can always say that any check he wrote for his personal benefit came from his money in the account, not the client’s, and there is no way to actually prove otherwise. Because of this, it is an unethical practice of the most serious order for a lawyer even to mix his client’s funds in with his own or, conversely, to use a trust account for personal as well as his clients’ transactions.

Id. at 1297. Surely, an offense “of the most serious order” merits the most serious penalty.

¶ 51. In an earlier case wherein we did not match our rhetoric with our reality, Mississippi State Bar v. Odom, 566 So.2d 712 (Miss.1990), the attorney had commingled and converted estate funds. This Court stated: “The moment a lawyer succumbs to a temptation to appropriate for his own use any of his client’s money entrusted to his safekeeping is the moment he shows his unfitness to be a practicing lawyer.” Id. at 716. No mitigating factors were cited. Nevertheless, only three years’ suspension was imposed, just as the majority does today. Three justices dissented, calling for disbarment (they “would disbar Mr. Odom, not merely suspend his license to steal,” id. at 718 (Sullivan, J., dissenting)). We were shortly thereafter obliged to disbar Odom upon his conviction in circuit court. Miss. State Bar v. Odom, 578 So.2d 710 (Miss.1990).

¶ 52. With every year, our profession seems to become less like a true profession and more like just another business enterprise. Bearing in mind our reputation in the eyes of the public, it is imperative that we draw a bold line between our practices and those of the fallen corporate leaders who have recently graced the pages of our newspapers. Given the lack of any acceptable justification for Coleman’s offense, and our use of the strongest language to condemn the offense that he committed, any penalty less than disbarment arguably casts doubt on the commitment of the legal profession and of this Court to uphold the highest ethical standards. We have the Bar’s recommendation of disbarment before us. How will the Bar succeed in raising the ethical standards of our state’s legal professionals if we succumb to a leniency that is unsupported by the facts of the case? It is important that we support the Bar’s effort to take a firm stand.

¶ 58. I would disbar Coleman and let him pursue the arduous path to reinstatement if his calling to our profession is sincere. I therefore respectfully concur in part and dissent in part.

SMITH, P.J., JOINS THIS OPINION.

      . The distinction between commingling and, for example, mishandling one's own financial affairs — that may lead to, say, tax evasion — is that commingling is the inappropriate use of someone else’s money.

      . See, e.g., Haimes v. Miss. Bar, 601 So.2d 851 (Miss.1992) (attorney disbarred for using guardianship funds to pay for personal expenses and failure to learn anything from previous suspension); Reid v. Miss. State Bar, 586 So.2d 786 (Miss.1991) (attorney disbarred for depositing client funds into his trust account and using the money for personal expenses); Miss. State Bar v. Odom, 566 So.2d 712 (Miss.1990) (attorney suspended for three years where he deposited a check he received from the sale of an estate into his non-trust account, which he used to. pay personal expenses); Foote v. Miss. State Bar Ass'n, 517 So.2d 561 (Miss.1987) (attorney disbarred for failing to pay off a mortgage for his client with money given to him for that sole purpose); Miss. State Bar Ass’n v. Strickland, 492 So.2d 567 (Miss.1986) attorney suspended for three years, where after collection of judgment, kept all the money, deposited it in his personal account and used it for personal expenditures.


source: Caselaw Access Project

author: CARLSON, J., for the Court.

license: Public Domain

text:
    The Matter of the Petition for REINSTATEMENT to the Practice of Law OF Jimmy D. McGUIRE.
    No. 2002-BR-01076-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2003.
    Floyd Logan, Gulfport, attorney for appellant.
    Michael B. Martz, attorney for appellee.
   CARLSON, J., for the Court.

¶ 1. This is Jimmy D. McGuire’s second Petition for Reinstatement to the practice of law. See McGuire v. Miss. Bar, 798 So.2d 476 (Miss.2001). McGuire was disbarred in 1997, Miss. Bar v. McGuire, 694 So.2d 674 (Miss.1997), based upon his felony conviction in the United States District Court for the Southern District of Mississippi for filing a false currency reporting form as required by the IRS. United States v. McGuire, 99 F.3d 671 (5th Cir. 1996) (en banc), cert. denied, 520 U.S. 1251, 117 S.Ct. 2407, 138 L.Ed.2d 174 (1997). The following facts are taken from our opinion concerning McGuire’s first Petition for Reinstatement:

McGuire was taped conspiring with purported drug trafficking clients (who were actually undercover agents) to accept cash payments in a manner shielding the source and purpose of the cash in violation of federal law. In the process he advised these purported drug dealers of routes of travel that they could use to avoid detection in their drug trafficking. Though McGuire was acquitted on other counts, he received the maximum sentence because he was involved in other money laundering schemes and he attempted to obstruct justice in his trial.

McGuire, 798 So.2d at 477.

¶ 2. The Mississippi Bar opposes McGuire’s Petition for Reinstatement to the practice of law because it has serious doubts that McGuire has proven, by clear and convincing evidence, his rehabilitation and “firm resolve to live a correct life.”

DISCUSSION

¶ 3. Rule 12 of the Rules of Discipline governs the reinstatement of suspended or disbarred attorneys. Burgin v. Miss. State Bar, 453 So.2d 689, 690 (Miss.1984). “The burden of proving that he has rehabilitated himself and re-established the requisite moral character sufficient to entitle him to reinstatement is upon the Petitioner.” Id., at 691 (citing Ex parte Marshall, 165 Miss. 523, 147 So. 791 (1933)). The fundamental question to be addressed before reinstatement is the attorney’s rehabilitation in conduct and character since the disbarment. Burgin, 453 So.2d at 691 (citing Miss. State Bar Ass’n v. Wade, 250 Miss. 625, 167 So.2d 648 (1964)).

A court, in such a proceeding is not administering punishment; it is passing upon character. We do not believe it requires a long period to discipline and effect a rehabilitation of character. A firm resolve to live a correct life evidenced by outward manifestations sufficient to convince a reasonable mind clearly that the person has reformed is only required. In restoring a disbarred attorney, the principal question is whether that particular' attorney would be safe to assist in administering justice, if readmitted; and the effect of his readmission upon the conduct of others, while important, is a subsidiary consideration. A man who has redeemed himself and become worthy to be readmitted should not be kept out of the profession to which, perhaps, he has devoted much of his life and means, because others might, possibly, be led to do evil.

Ex parte Marshall, 165 Miss. 523, 556, 147 So. 791, 798 (1933).

¶ 4. Certain jurisdictional requirements must be met prior to reinstatement. Those requirements are as follows:

(1) Each petitioner must include a list of names and addresses of persons, parties, firms, or legal entities who suffered pecuniary loss due to the attorney’s misconduct; (2) There must be a showing that the petitioner has made full amends and restitution or a statement to the effect that full amends and restitution is not appropriate or has been imposed; (8) The petitioner must show that he has the requisite moral character to be reinstated; and (4) The petitioner must show that he has the requisite legal learning to be reinstated to the privilege of practicing law.

Miss. R. Discipline 12.7. See also In re Morrison, 819 So.2d 1181, 1183-84 (Miss.2001); In re Smith, 758 So.2d 396, 398 (Miss.1999); Burgin, 453 So.2d at 691.

1. Pecuniary Loss

¶ 5. Although the United States District Court for the Southern District of Mississippi did not order any type of restitution with regards to McGuire’s criminal conviction, a $50,000.00 fine was imposed upon McGuire, and he was ordered to forfeit $20,000.00. McGuire has provided proof of such payment.

2. Full Amends

¶ 6. On February 15, 1995, McGuire was ordered to pay the Bar’s costs and expenses involved in the investigation and prosecution of the disbarment proceedings. The costs and expenses, which amounted to $437.51, have been fully paid.

3. Requisite Moral Character

¶ 7. The Bar deposed McGuire on July 31, 2002, as part of its investigation of McGuire’s Petition for Reinstatement. The following categories were considered in an attempt to provide this Court with information concerning McGuire’s moral character.

A. Civic, Church and Charitable Involvement

¶ 8. McGuire testified that since his release from the federal correctional institution, he has engaged in several activities which serve his community. He regularly attends Gateway Methodist Church where he is an usher and church historian. McGuire taught a GED course for one semester, but he has not participated in the program since it has been taken over by the Hancock County High School. He has also contributed funds to several charitable foundations. McGuire testified he has been unable to participate in local charities due to the large number of volunteers already active.

B. Personal Recommendations

¶ 9. McGuire provided the Bar with thirty letters of recommendation. Eight of the letters were from Mississippi attorneys. One letter was from his minister at Gateway Methodist Church. The remaining letters were from friends and family. Several of these letters do not shed any light on McGuire’s remorse regarding the crimes he committed, or even the extent of the seriousness of his offenses.

C. Mental and Emotional Status

¶ 10. The Bar noted that McGuire appeared to be mentally and emotionally stable during his deposition. McGuire testified that he was not suffering from any medical problems and was not taking any prescription medication.

D. Future Plans

¶ 11. McGuire testified that he has not worked for anyone other than himself since the time he has been released from incarceration. Since his release, McGuire has been earning an income “buying and selling property, rental income, receiving] royalties from my two lawbooks that I published many years ago, things of that nature.” McGuire stated, if reinstated, he plans to reestablish his ■ practice on the Mississippi Gulf Coast. He indicated he does not intend to represent anyone who is charged with a drug violation. McGuire stated if he were not reinstated he would most likely travel “overseas.”

4. Requisite Legal Learning

¶ 12. McGuire testified that since his disbarment he has read various legal textbooks concerning legal matters which interest him. He worked in the law library while incarcerated in the Talladega facility and assisted in its upgrade. McGuire has also tried to keep up with developments in the law through periodic review of case decisions.

¶ 13. McGuire earned an LL.M. from the Universiteit Utrecht, which is located in Utrecht, Holland, in June 2000 in the field of law and economics. McGuire also took and passed the Multi-State Professional Responsibility Exam in March 2001.

¶ 14. Five years have passed since McGuire’s disbarment, and he now petitions a second time for reinstatement of his license to practice law. McGuire asserts that he has performed all of the necessary requirements for reinstatement. As stated previously, the burden of proving rehabilitation and requisite moral character sufficient for reinstatement is upon the petitioner. Burgin, 453 So.2d at 691 (citing Ex parte Marshall, 165 Miss. 523, 147 So. 791 (1933)).

¶ 15. The Bar opposes McGuire’s Petition for Reinstatement on the grounds that McGuire has not met his burden of proving rehabilitation or requisite moral character. The Bar states the details of McGuire’s community service and admission of wrongdoing are minimal, at best, revealing a superficial appearance of rehabilitation. The Bar argues there was no evidence that McGuire demonstrated he has a “firm resolve to live a correct life.” The Bar also finds it disheartening that McGuire has not been gainfully employed since his release; it contends that living off investments is not indicative of a rehabilitative character justifying reinstatement.

¶ 16. We agree with the Bar’s assessment of McGuire’s lack of rehabilitation. In denying McGuire’s first petition for reinstatement, this Court stated:

McGuire has performed no acts of community service, has not fully admitted the consequences of his failings as an attorney, and has done little if anything to convince us that he has a “firm resolve to live a correct life.” Williams [v. Miss. State Bar Ass’n ], 492 So.2d [578], at 580 (Miss.1986).

McGuire, 798 So.2d at 480. We find McGuire has failed again to meet the burden of satisfying to this Court that he has rehabilitated himself. He continues to show no remorse for his actions. Many of the letters of recommendation which were submitted on McGuire’s behalf do not acknowledge the gravity of his offenses, nor does McGuire’s own petition. Although McGuire was convicted of filing a false IRS report, he was sentenced to the maximum penalty allowed after the judge determined his conduct in connection with the acquitted counts justified such a penalty. McGuire has given $100.00 to a few charities, but he has failed to become involved on a more personal level. His claim that several of these charities already have ample volunteers is unconvincing. His employment is minimal. Although McGuire argues self-employment should not be indicative of lacking industriousness, his testimony does not indicate his employment is steady.

¶ 17. McGuire’s petition fails to provide clear and convincing evidence of rehabilitation justifying reinstatement. Therefore, we find McGuire’s petition is again lacking in any proof that McGuire possesses a “firm resolve to live a correct life” which would justify this Court granting his petition and reinstating his license to practice law.

CONCLUSION

¶ 18. Because Jimmy D. McGuire has not met his burden of proof and has failed to satisfy the requirements of Rule 12 and the requirements set forth by this Court, this Court denies McGuire’s second petition for reinstatement.

¶ 19. PETITION FOR REINSTATEMENT DENIED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY AND GRAVES, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Although of no moment in the case before us today, Rule 12 was amended by this Court on April 4, 2002, as follows:
      (c) An attorney who has been disbarred for conviction of a felony criminal offense which occurred after April 4, 2002, in a court of this state or any other state, or a court of the United States for any felony crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, the sale or distribution of a controlled substance, or an attempt, conspiracy or solicitation of another to commit such a crime, shall be ineligible for reinstatement to the practice of law.


author: PITTMAN, C.J., for the Court. COBB, J.,

text:
    The MISSISSIPPI BAR v. Henrietta SWEENEY.
    No. 2001-BA-01440-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2003.

      Michael B. Martz, Christina Jacqueline Kelsey, Jackson, attorneys for appellant.
    Hernrietta Sweeney, Pro se, attorney for appellee.
   PITTMAN, C.J., for the Court.

¶ 1. After a formal hearing, the Complaint Tribunal of the Court found attorney Henrietta Sweeney guilty of violating several rules of the Mississippi Rules of Professional Conduct and suspended her from the practice of law for one year. The Bar appeals and requests that the Court review the sanctions and determine if the punishment was too lenient in fight of Sweeney’s misconduct. We affirm the findings of the Tribunal and render a suspension for three years.

FACTS

¶2. James Allen Fairley (Fairley) died on November 27, 1995 leaving three surviving heirs-at-law: his brother, Adam Fairley, Jr. (Adam) and his two sisters, Nannie Mae Hall (Hall) and Annie Rankin (Rankin). On March 15, 1996, the Chancery Court of Covington County appointed Rankin as the Administratrix of Fairley’s estate. On April 1,1996, David Shoemake, the attorney for Adam and Hall, wrote to Henrietta Sweeney, the attorney for Rankin, requesting an inventory and an accounting of the estate property. Shoe-make wrote twice with same requests, but Sweeney never responded. With the third and final request dated October 4, 1996, Shoemake expressed his clients’ concerns that Rankin had taken personalty from Fairley’s residence that belonged to Fair-ley’s estate, taken possession of Fairley’s automobile, and removed funds from Fair-ley’s account at Covington County Bank. Also, he expressed their concerns regarding the location of the proceeds of Fair-ley’s $100,000 fife insurance policy and money held in another bank account at Union Planters Bank. On November 26, 1996, the Covington County Chancellor granted a petition, joined by all three heirs (Adam, Hall, and Rankin), authorizing Rankin, as Administratrix, to sell certain real property of the estate.

¶ 3. On April 1, 1997, Shoemake, on behalf of his clients, filed a motion to compel Rankin to provide an inventory and an accounting. On May 9, 1997, the chancery court granted the motion and required Rankin to file a full and complete inventory and accounting before May 12, 1997. Without serving either the other two heirs or their attorney, on May 15 Rankin filed a Petition for Approval of First and Final Account of Executor and Closing of the Estate. This petition failed to render an accounting of receipts or disbursements from Fairley’s estate, and indicated that since the inception of the estate Rankin had lost many of the assets belonging to the estate. The petition mentioned the two bank accounts and the insurance proceeds, but did not account for their whereabouts. Additionally, the petition indicated that Rankin sold Fairley’s automobile without court approval or notice to other parties. On July 31, 1997, Rankin was removed as the Administratrix and ordered to provide an accounting by August 13.

¶ 4. Almost two years later, Adam and Hall filed a motion to cite Rankin for contempt of court because she failed to file an inventory or an accounting and for her negligence and misconduct in managing the estate. The chancery court entered a judgment on August 27,1999. Relevant to Sweeney, the court found that in November or December of 1996 Sweeney endorsed and deposited into her trust account a check payable to Fairley’s Estate that she received as proceeds from the sale of estate property. Likewise, the court noted that Sweeney only produced the proceeds from this check two days prior to the hearing. The court found that proceeds from the sale of Fairley’s automobile and other personal property (approximately $2,000) were paid to either Sweeney or Rankin and that these two women mishandled assets of the estate and failed or refused to turn over assets of the estate to the present Administratrix. Following this judgment, the Mississippi Bar began an investigation.

¶ 5. The Bar determined that Sweeney, as counsel for Rankin, had in her possession a check dated November 7, 1996, in the amount of $6,600.65 resulting from the sale of estate property and payable to the “Estate of James Fairley.” She deposited this check into her trust account at Citizens State Bank in Magee, Mississippi, on December 19, 1996. Between December 19, 1996, and August 20, 1999, the balance of Sweeney’s trust account frequently fell below $6,600.65.

¶ 6. The Complaint Tribunal held that Sweeney misappropriated her client’s property for her own use and benefit; that she should have been aware that the funds she received were not to be deposited in her trust account but instead into a separate account; and that she allowed assets of the estate to be sold without court approval.

¶ 7. The Complaint Tribunal’s decision followed a formal investigation and a hearing on Sweeney’s conduct. At no time throughout the proceedings or this appeal did Sweeney appear or respond to the allegations. The transcript from the hearing reflects that counsel for the Bar, Christina Jacqueline Kelsey, spoke with Sweeney the day before the hearing and that Sweeney stated she was having on going personal problems related to her children and that she was under the care of a psychiatrist. Sweeney said she planned to close her practice and considered relocating to North Carolina. Further, she acknowledged that she was in default and expressed her hope that the Tribunal would be lenient.

¶ 8. The Tribunal entered a default judgment finding that, by clear and convincing evidence, Sweeney engaged in conduct involving dishonesty, fraud, deceit, misrepresentation and violated certain Rules of Professional Conduct, including:

Rule 1.1, MRPC, which provides that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Rule 1.3, MRPC, which provides that a lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.4, MRPC, which provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information and shall further explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Rule 1.15, MRPC, which provides the conditions for a lawyer holding property belonging to a client.
Rule 8.4 (a, c, and d), MRPC, which provides that it is professional misconduct to violate or attempt to violate the rules of the professional conduct, to engage in conduct involving dishonesty, fraud, deceit and misrepresentation or to engage in conduct that is prejudicial to the administration of justice.

STANDARD OF REVIEW

¶ 9. This Court has exclusive and inherent jurisdiction of matters pertaining to attorney discipline, reinstatement, and appointment of receivers for suspended and disbarred attorneys. Rules of Discipline for Miss. State Bar 1(a). Appeals from judgments rendered by the complaint tribunal are provided for in Miss.Code Ann. § 73-3-329 (1999). On appeal, this Court, “shall review the entire record and the findings and conclusions of the Tribunal, and shall render such orders as the Court may find appropriate.” Foote v. Miss. State Bar Ass’n, 517 So.2d 561, 564 (Miss.1987). We review the evidence under the de novo standard, on a case-by-case basis, sitting as the trier of fact, and no substantial evidence or manifest error rule shields the Tribunal from scrutiny. Foote, 517 So.2d at 564 (citing Hoffman v. Miss. State Bar Ass’n, 508 So.2d 1120, 1124 (Miss.1987); Vining v. Miss. State Bar Ass’n, 508 So.2d 1047, 1049 (Miss.1987)). However, the Court may give deference to the findings of the Tribunal. Parrish v. Miss. Bar, 691 So.2d 904, 906 (Miss.1996), (citing Miss. State Bar v. Odom, 566 So.2d 712, 714 (Miss.1990)).

DISCUSSION

¶ 10. The only issue before this Court: Is whether the one year suspension imposed on Sweeney was sufficient under the facts and applicable law?

¶ 11. The primary concern when imposing sanctions for attorney misconduct is that the punishment be sufficient “to vindicate in the eyes of the public the overall reputation of the Bar.” Parrish, 691 So.2d at 907 (citations omitted). The Court uses two sets of criteria when reviewing the sanctions for misconduct. Miss. Bar v. Alexander, 669 So.2d 40, 42 (Miss.1996). However, the Court is essentially “free to evaluate the discipline imposed on an attorney and on review modify punishment as needed to best serve the interest of the Bar and public.” Parrish, 691 So.2d at 907 (citing Miss. State Bar v. Blackmon, 600 So.2d 166, 173 (Miss.1992)).

¶ 12. The first set of criteria employed by this Court include:

(1) the nature of the conduct involved;
(2) the need to deter similar misconduct;
(3) the preservation of the dignity and reputation of the profession;
(4) the protection of the public; and
(5) the sanctions imposed in similar cases.

Parrish, 691 So.2d at 907; Alexander, 669 So.2d at 42; Miss. Bar v. Attorney ST, 621 So.2d 229, 233 (Miss.1993). The second set of criteria we consider originates from the ABA standards for imposing sanctions. These include:

(a) the duty violated;
(b) the lawyer’s mental state;
(c) the actual or potential injury caused by the lawyer’s misconduct; and
(d) the existence of aggravating or mitigating circumstances.

Parrish, 691 So.2d at 907; Blackmon, 600 So.2d at 173.

¶ 13. Because Sweeney failed to respond to the allegations, the factual findings of the judgment are based solely on the Bar’s complaint. An exhaustive analysis applying the eight factors to Sweeney’s actions is not needed. Because the allegations are uncontroverted, Sweeney’s misconduct clearly warrants a significant sanction.

¶ 14. It is undisputed that Sweeney misappropriated funds belonging to the estate. Unquestionably, mishandling of estate funds is the type of professional misconduct that the Court and the Bar must deter. Such misconduct reveals a want of personal honesty and integrity and reflects negatively upon an attorney’s fitness to practice law.

¶ 15. Following a court order, Sweeney made the proper disbursements. Thus, economically speaking, little injury resulted from Sweeney’s conduct. However, there will be significant injury to the dignity and reputation to the profession if attorneys are not substantially punished for converting client funds. The Court has held that a lawyer should not be rewarded for finally doing what he is already obliged to do. Foote, 517 So.2d at 565 (citing Clark v. Miss. State Bar Ass’n, 471 So.2d 352, 357 (Miss.1985)). “The restitution by an attorney of funds previously misappropriated does not mitigate the offense, particularly where the restitution has been made under pressure.” Clark, 471 So.2d at 357.

¶ 16. The Bar suggests that the proper penalty for Sweeney’s conduct is either disbarment or, at a minimum, a three-year suspension. Our review of precedent indicates that the punishment varies in relation to the circumstances. In Haimes v. Miss. Bar, 601 So.2d 851 (Miss.1992), we held that an attorney’s commingling of funds belonging to the guardianship of a minor warranted disbarment. Haimes, 601 So.2d at 855. This Court stated that “there may be worse sins, but the ultimate wrong of a lawyer to his profession is to divert clients’ and third parties’ funds entrusted to him to an unauthorized use.” Id. (citations omitted). A lawyer guilty of such conduct exhibits a character trait totally at odds with the purposes, ideals and objectives of our profession. Id.

¶ 17. In Miss. State Bar Ass’n v. Strickland, 492 So.2d 567 (Miss.1986), this Court held that the conversion of estate funds merited a three-year suspension, not withstanding the attorney’s personal problems including addiction to alcohol. We stated that Strickland’s taking of money belonging to an estate he represented and converting the money for his own use involved moral turpitude. Id. at 573. After closely analyzing Strickland, we conclude that Sweeney’s punishment should not exceed that imposed on Strickland.

¶ 18. Strickland’s actively sought to defraud the judiciary with forged documents and continued to practice law despite a suspension. Strickland eventually abandoned efforts to mislead the judiciary while defending himself, and focused on presenting evidence of “insidious alcoholism.” Conversely, Sweeney never sought to mislead the Tribunal or the investigation. Actually, Sweeney failed to do anything.

¶ 19. The public and members of the bar must understand the seriousness of proceedings before the Complaint Tribunal. Sweeney’s conduct and decision not to respond, or even appear, before the tribunal ought to be significantly punished. Her failure to respond to the allegations or appear before the tribunal are almost as serious as her misconduct. However, Sweeney’s telephone conversation with Kelsey and her failure to provide a defense leads the Court to believe that Sweeney may indeed have serious personal problems. The failure to defend one’s self is indicative of a person with serious personal problems (i.e. depression). The failure to defend herself may be more persuasive testimony regarding personal problems than any medical affidavits she could have provided. Nevertheless, the presence of personal problems does not excuse Sweeney’s misconduct or her failure to respond to the Tribunal.

CONCLUSION

¶ 20. Based on the record, the Court finds Sweeney’s misconduct deserving of a greater punishment than the one-year suspension imposed by the Complaint Tribunal. Because the facts are uncontroverted, we hereby affirm the tribunals’ findings of fact, reverse the one-year suspension, and suspend Henrietta Sweeney from practicing law in the State of Mississippi for three years.

¶ 21. HENRIETTA SWEENEY IS SUSPENDED FROM PRACTICING LAW IN THE STATE OF MISSISSIPPI FOR THREE YEARS.

SMITH, P.J., WALLER, DIAZ AND CARLSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. COBB, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. McRAE, P.J., NOT PARTICIPATING.

COBB, J.,

concurring in part and dissenting in part:

¶ 22. I concur with the majority’s conclusion that attorney Henrietta Sweeney was guilty of serious professional misconduct, but I disagree with the majority’s conclusion that a three-year suspension is an appropriate disciplinary sanction. This Court should lend its maximum support to the Mississippi Bar’s efforts to strictly enforce the highest ethical standards for the legal community. Sweeney held estate proceeds for over two years without making any effort to disburse them to their rightful owner. Her bank account balance indicates that this money ostensibly held in trust was improperly used by Sweeney. The Complaint Tribunal found that she had misappropriated for her own use the property of her client and that she had allowed estate assets to be sold without court approval. Moreover, Sweeney did not even appear before the tribunal, citing family-related “personal problems,” so that a default judgment was entered against her.

¶ 23. This Court has stated:

There can be no legal profession in the absence of scrupulous honesty by attorneys with other people’s money. Public confidence here is vital. There may be worse sins, but the ultimate wrong of a lawyer to his profession is to divert clients’ and third parties’ funds entrusted to him to an unauthorized use. A lawyer guilty of such conduct exhibits a character trait totally at odds with the purposes, ideals and objectives of our profession.

Reid v. Miss. State Bar, 586 So.2d 786, 788 (Miss.1991). The majority acknowledges that Sweeney has behaved “totally at odds with the purposes, ideals and objectives of our profession,” but then belies its words by finding her conduct to warrant only a three-year suspension. In my view, the “ultimate wrong,” professionally speaking, should carry the ultimate professional penalty, disbarment. The majority finds Sweeney’s non-appearance before the tribunal “almost as serious as her misconduct” and says that her failure to appear “ought to be significantly punished.” But then it assigns the same punishment as we have meted out to attorneys guilty of commingling, without additional fault. Its main authority is Mississippi State Bar Ass’n v. Strickland, 492 So.2d 567 (Miss.1986), in which this Court suspended for three years an attorney whose conduct had been arguably more reprehensible than Sweeney’s.

¶ 24. However, past penalties are only one element for this Court to consider:

This Court has considered five (5) factors in determining the severity of the sanction when an attorney is subject to discipline:
(A) Nature of the misconduct involved;
(B) Need to deter similar misconduct;
(C) Preservation of dignity and reputation of the legal profession;
(D) Protection of the public; and
(E) Sanctions imposed in similar cases.

Stegall v. Miss. Bar, 618 So.2d 1291, 1294 (Miss.1993) (quoting Culpepper v. Miss. State Bar, 588 So.2d 413, 420 (Miss.1991)). What may have been well-intentioned leniency in the past ought not prevent this Court’s present-day efforts to promote the highest professional standards. The reputation of our state’s attorneys in the eyes of the public is the principal consideration in determining what sanctions are proper, Miss. Bar v. Walls, 797 So.2d 217, 219 (Miss.2001) (quoting Hall v. Miss. Bar, 631 So.2d 120, 125 (Miss.1993)). I do not think anything would alarm the public more about its own dealings with attorneys than the fear that client money is not being handled with the utmost propriety, or that the rare attorneys who mishandle client money are not being punished with the utmost severity.

¶ 25. Notwithstanding our compassion for Sweeney’s personal problems, whatever they may be, we should not lose sight of the fact that Sweeney’s conduct — perhaps because of those problems, perhaps not— has put her far beyond the bounds of what the Mississippi legal community expects of its members. I therefore would disbar Sweeney.

      . I am troubled by the majority's statement that her "failure to defend herself may be more persuasive testimony regarding personal problems than any medical affidavits she could have provided.” Maj. op. at 8. This could encourage malfeasant attorneys to absent themselves from disciplinary proceedings and to plead nonspecific personal problems in the calculated hope of obtaining mercy from a well-meaning tribunal.


author: JAMES W. SMITH, JR., P.J.

text:
    In re Irrevocable Resignation from the Practice of Law of C. Aden McDANIEL.
    No. 2002-BD-01923-SCT.
    Supreme Court of Mississippi.
    Jan. 23, 2003.
   ORDER

JAMES W. SMITH, JR., P.J.

¶ 1. This matter is before the Court sitting En Banc on the written request of C. Aden McDaniel to irrevocably resign his membership in The Mississippi Bar. We conclude that all procedural prerequisites have been met and accept his irrevocable resignation.

I.

¶2. On November 21, 2002, C. Aden McDaniel wrote this Court asking to irrevocably resign his membership in The Mississippi Bar. At the time of that letter the following disciplinary matters were pending against McDaniel:

Janice Cade Docket No. 01-379-2
Lisa M. Cauthen Docket No. 01-393-2
Cleotha Dixon Docket No. 01-402-2
Lenoria Meeky Docket No. 01-380-2
Marsha K. Cook Docket No. 01-366-2

¶ 3. The Bar filed a response on November 26, 2002, submitting that it does not have any objection to this Court accepting Mr. McDaniel’s irrevocable resignation for membership in The Mississippi Bar and. surrendering of his privilege license to practice law in this State provided all of the conditions of Rule 10 of the Mississippi Rules of Discipline are satisfied.

II.

¶ 4. The Rules of Discipline for The Mississippi State Bar Rule 10.5 provides:

An attorney may tender an irrevocable resignation to either the Court or the Tribunal. Such a resignation shall acknowledge each and all disciplinary matters then pending, provide the docket number or numbers, state that the attorney does not desire to defend, and request permission to resign with prejudice from the Bar. Upon receipt of such resignation, and any response that the Bar may elect to file, the disciplinary proceedings shall terminate and either the Court or the Tribunal shall enter its order accepting resignation, revoking the attorney’s license, and barring forever thereafter the attorney’s right to seek reinstatement to the privilege of practicing law in this state. Such a resignation and order shall be considered disciplinary action, and the resignation shall be considered tantamount to the proof of guilt on the matter charged.

The Rules also provide that this Court has exclusive and inherent jurisdiction over matters pertaining to attorney discipline. The Rules of Discipline govern all bar disciplinary matters. Harrison v. Miss. Bar, 637 So.2d 204, 215 (Miss.1994).

¶ 5. IT IS, THEREFORE, ORDERED, ADJUDGED, and DECREED as follows:

The irrevocable resignation for membership in The Mississippi Bar by C. Aden McDaniel is hereby accepted.

¶ 6. This order shall constitute notice of irrevocable resignation in this cause.

¶ 7. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this order to the Circuit Court Judges and Chancellors in and for Hinds County, Mississippi, and the Senior Judges of such courts shall enter this order upon the minutes of their respective courts.

¶ 8. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this order to the Circuit Court Judges and Chancellors in and for Attala County, Mississippi, and the Senior Judges of such courts shall enter this order upon the minutes of their respective courts.

¶ 9. The Clerk of the Supreme Court of Mississippi shall immediately forward a copy of this order to the Clerks of the United States District Courts for the Northern and Southern Districts of Mississippi, and to the Clerk of the United States Court of Appeals for the Fifth Circuit, and to the Clerk of the Supreme Court of the United States.

¶ 10. Costs should be and are hereby assessed against C. Aden McDaniel.

¶11. SO ORDERED, ADJUDGED, and DECREED this the 23rd day of January, 2003.

McRAE, P.J., and DIAZ, J., not participating.


author: WALLER, J., for the Court.

text:
    Robert CALHOUN v. STATE of Mississippi. Victor Kearley v. State of Mississippi.
    Nos. 2002-CP-00552-SCT, 2002-CP-00553-SCT.
    Supreme Court of Mississippi.
    May 15, 2003.
    Rehearing Denied July 24, 2003.

      Robert Calhoun, Pro Se, attorney for appellants.
    Victor Kearley, Pro Se, attorney for appellants.
    Office of the Attorney General, by Charles W. Maris, attorneys for appellee.
   WALLER, J., for the Court.

¶ 1. After being charged with capital rape, Robert Calhoun pled guilty to the charge of sexual battery and was sentenced to thirty years imprisonment, with ten suspended. He then filed a petition for post-conviction collateral relief drawn up by writ writer Victor Kearley. The Circuit Court of Marion County, Mississippi, summarily dismissed the petition as frivolous and sanctioned both Calhoun and Kearley for filing a frivolous pleading. We find that, while one issue contained in the petition was frivolous, the circuit court should have addressed the merits of the petition, instead of summarily dismissing the rest of the petition and should not have imposed sanctions.

FACTS

¶ 2. Calhoun, who was twenty-three years old at the time of the crime, confessed to raping an eleven-year-old girl. He admitted that he knew that she was only eleven years old and that he knew that what he did was wrong. Calhoun underwent extensive psychiatric examinations at the Mississippi State Hospital at Whitfield. The physicians there gave him a provisional diagnosis of pedophilia and that he “had both a factual and rational understanding of the nature and object of the legal proceedings against him and that he possessed sufficient ability to assist his attorney with his defense,” and that “he understood the nature and quality of his crime at the time he committed it and that [he] understood it was wrong.” The physicians concluded that “Calhoun was not mentally retarded, but rather somewhat limited intellectually ... [arising] from development or personality disorder, rather than from a major mental disorder or mental retardation.”

¶3. Calhoun later pled guilty to the reduced charge of sexual battery. The circuit court, citing the pre-sentence report and Calhoun’s written confession, sentenced him to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended if Calhoun acquired a GED certificate, underwent a complete evaluation at Whitfield, and complied with any suggested treatment. The suspension was also contingent upon a psychologist’s approval.

¶ 4. Calhoun filed a motion for post-conviction collateral relief in which he raised the following issues:

1. Whether Miss.Code Ann. § 97-3-95 is ambiguous and unconstitutional on its face. The statute makes no distinction between violent and non-violent actions and deprives an accused of presenting a defense by immunizing “so-called” under-age victims. The statute takes away the right to trial by jury. The under-age victim enticed Calhoun, who was mentally impaired, and therefore should be convicted, not Calhoun.
2. Whether the sentencing schemes under Miss.Code Ann. § 97-3-95 are in violation of the laws of the United States and Amendment 8 to the United States Constitution. Calhoun’s sentence was grossly disproportionate to the circumstances of the crime. It was error for the circuit court to consider Calhoun’s past sexual behavior with other young girls when he has never been charged with any other crime.
3. Whether the conviction of a legally incompetent defendant violates due process of law. Calhoun is a psychiatric patient and takes “mind altering medication to function in the world and still has problems with being unable to understand the nature of consequences of his actions.... ” The State did not provide an adequate competency hearing.
4. Whether Calhoun’s counsel was ineffective. Counsel failed to present evidence of Calhoun’s incapacity. Counsel told Calhoun if that he pled guilty he would be sentenced to five years, but that if he went to trial on capital rape charges, he would get life imprisonment. Counsel failed to do any pre-trial investigation or any legal research. He failed to present evidence that the victim committed the crime, not Calhoun. Counsel failed to protect Calhoun’s right to a speedy trial by requesting several continuances. Counsel failed to interview potential witnesses and failed to present numerous character references to the court. Counsel told Calhoun to lie at the entry of the guilty plea. Counsel failed to object to the harsh sentence. Counsel failed to object to Calhoun’s conviction and sentence when Calhoun did not commit any crimes.
5. Whether Calhoun was actually and factually innocent. Calhoun was the actual victim and the victim was the criminal. Calhoun is mentally incompetent and retarded.
6.- Whether the guilty plea was knowingly and voluntarily given. Calhoun “could not have given an intelligent or knowledgeable plea. It was coaxed and rehearsed under false pretense of a plea agreement which did not exist.”

¶ 5. The circuit court “summarily dismissed” Calhoun’s motion for post-conviction relief, finding that it was frivolous and without merit.

DISCUSSION

ISSUES PERTAINING TO CALHOUN’S CONVICTION AND SENTENCE

I. WHETHER CALHOUN’S RIGHT TO DUE PROCESS WAS VIOLATED INASMUCH AS HE WAS INCOMPETENT.

¶ 6. Even though Calhoun claims that he was incompetent, the record shows otherwise. As stated above, Calhoun underwent two separate psychiatric evaluations prior to the entry of the guilty plea, and he was found to be competent to stand trial and competent to have understood the difference between right and "wrong. Calhoun produces no new evidence to show that the psychiatrists were mistaken in their conclusions.

¶ 7. Furthermore, the transcript of the guilty plea shows that Calhoun understood the nature of the charges against him and that he knowingly and voluntarily entered a plea of guilty. This claim is without merit.

II. WHETHER DEFENSE COUNSEL WAS INEFFECTIVE.

¶ 8. The standard for reviewing claims of ineffective assistance of counsel was set forth in Hansen v. State, 649 So.2d 1256, 1259 (Miss.1994) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The inquiry under Strickland is twofold: (1) whether defense counsel’s performance deficient when measured by the objective standard of reasonable professional competence, and if so (2) whether the defendant was prejudiced by that failure to meet that standard. Hansen, 649 So.2d at 1259. Defense counsel is presumed competent, and the burden of proving otherwise rests on the appellant. Id. at 1258. The defendant must prove both prongs of the Strickland test to succeed. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Our scrutiny of defense counsel’s performance is highly deferential. Hansen, 649 So.2d at 1259. With respect to the overall performance of the attorney, his choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within his discretion in planning a trial strategy. Cole v. State, 666 So.2d 767, 777 (Miss.1995).

¶ 9. Calhoun claims that defense counsel was ineffective by asking for several continuances, failing to get him out on bond, failing to investigate certain character references, allowing him to plead guilty when he did not understand what he was doing, coercing him to plead guilty by promising a five-year sentence, failing to object to the “harsh” sentence imposed upon him, and failing to develop a defense.

¶ 10. The record shows that two continuances were granted on Calhoun’s motions — one for Calhoun to undergo a psychiatric evaluation at the Pine Belt Mental Health Center in Hattiesburg and then one for evaluation at Whitfield. When even Calhoun claims that he is incompetent, it is frivolous to claim that he was prejudiced by postponing his trial so that he could undergo psychiatric evaluations.

¶ 11. Calhoun cannot show that he was prejudiced in any way by failing to be released on bond. Moreover, during his pre-trial detention, he was sent to Hatties-burg and to Whitfield for necessary psychiatric testing. This claim is without merit.

¶ 12. Calhoun does not show what the character references were and how he was prejudiced by counsel’s failure to investigate.

¶ 13. The transcript of the entry of the guilty plea shows that Calhoun affirmatively stated that no one had made any promises to him regarding his sentence. The circuit court thoroughly questioned him during the entry of the guilty plea and determined that the plea was voluntarily and intelligently given.

¶ 14. Calhoun cannot complain that counsel failed to object to the “harsh” sentence he received because the 30-year sentence was within the statutory limits.

¶ 15. Finally, Calhoun complains that counsel failed to prepare a defense. We find that counsel’s efforts were praiseworthy-getting a capital rape charge reduced to a sexual battery charge in light of the explicit confession given by Calhoun.

¶ 16. Calhoun’s ineffective assistance of counsel claim is without merit.

III. WHETHER CALHOUN’S SENTENCE WAS INDEFINITE.

¶ 17. Calhoun complains that ten years of his sentence may be suspended if certain conditions are met. One of these conditions was that an MDOC psychologist approve of Calhoun’s release. Calhoun claims that a psychologist’s approval directly bears on his incompetence and that the sentence is therefore impermissibly indefinite. He cites Arnett v. State, 582 So.2d 1003, 1012-13 (Miss.1988), in which the Court held that the only time a trial judge may suspend a sentence is immediately after the defendant is convicted and sentenced.

¶ 18. Calhoun misreads Arnett, however. Arnett stands for the proposition that a trial judge cannot suspend part of a sentence at any time other than the time the conviction is entered and the sentence imposed. Once a defendant begins serving his sentence, a trial judge cannot change that sentence. Making a suspension contingent upon certain conditions is absolutely permissible. A portion of Calhoun’s sentence was suspended during the imposition of the sentence. This claim is without merit.

IV. WHETHER CALHOUN’S SENTENCE WAS DISPROPORTIONATE TO THE NATURE OF THE CRIME.

¶ 19. When a sentence is within the limits fixed by the statute, the sentence cannot be said to be excessive. Carter v. State, 450 So.2d 67, 69 (Miss.1984). Calhoun was sentenced to thirty years in the custody of the Mississippi Department of Corrections, with ten years suspended. This sentence was well within the statutory limits. Miss.Code Ann. § 97-3-101 (Rev.2000). This claim is without merit.

V.WHETHER MISS. CODE ANN. § 97-3-95 IS AMBIGUOUS AND UNCONSTITUTIONAL ON ITS FACE.

¶ 20. “The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954). A statute so indefinite that it “encourages arbitrary and erratic arrests and convictions” is void for vagueness. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972). See also Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 683, 58 L.Ed.2d 596, 607 (1979).

¶ 21. We have previously ruled that Miss.Code Ann. § 97-3-95 (Rev.2000) is not unconstitutionally vague and that “there is little doubt that Miss.Code Ann. § 97-3-95 gives a person of ordinary intelligence fair notice that appellant’s conduct was forbidden.” Roberson v. State, 501 So.2d 398, 400 (Miss.1987). Indeed, Calhoun himself admitted that he knew what he wanted to do was wrong, but he did it anyway. Also, here, as in Roberson, “there is no indication from the facts of this case that § 97-3-95 ‘encourages erratic arrests and convictions.’ ” Id. Calhoun’s arrest and conviction were not erratic. The 11-year-old victim reported the sexual act to her teachers at school the next day. Calhoun signed a full confession of his misdeeds. There was more than enough evidence to support an arrest and a conviction. This claim is without merit.

VI. WHETHER CALHOUN WAS INNOCENT OF THE CHARGE AGAINST HIM.

¶22. Calhoun incredibly claims that, since he is incompetent, the eleven-year-old girl engaged in sexual battery on him. In view of the psychiatrists’ opinions noted above, it is clear that Calhoun was competent. This issue is frivolous.

ISSUE PERTAINING TO BOTH CALHOUN AND KEARLEY

VIL WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN FINDING THAT CALHOUN’S PETITION WAS FRIVOLOUS AND IN IMPOSING SANCTIONS.

¶ 23. A trial court’s finding that a pleading is frivolous is subject to an abuse of discretion standard. Dock v. State, 802 So.2d 1051, 1056 (Miss.2001). In determining whether a case brought in forma pauperis should be dismissed as frivolous, a court must decide (1) whether the complaint has a realistic chance of success, (2) whether the complaint presents an arguably sound basis in law, and (3) whether the complainant can prove any set of facts that would warrant relief. Id.; Evans v. State, 725 So.2d 613, 677 (Miss.1997). Pro se parties should be held to the same rules regarding procedure and substantive law as represented parties. Ivy v. Merchant, 666 So.2d 445, 451 (Miss.1995). Furthermore, the imposition of monetary sanctions against inmates is appropriate. Ivy v. State, 688 So.2d 223, 224 (Miss.1997).

¶24. We find that most of Calhoun’s petition was at least arguable, even though his theory that his incompetence made the 11-year-old girl guilty of sexual battery shocks the Court’s conscience. The merits of the other issues raised in the petition should have been addressed and not summarily dismissed. “Though a case may be weak or ‘light-headed,’ that is not sufficient to label it frivolous.” Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 195 (Miss.1995) (quoted in Wilson v. Greyhound Bus Lines, Inc. 830 So.2d 1151, 1159 (Miss.2002)).

CONCLUSION

¶ 25. We' find that the circuit court erred in summarily dismissing Calhoun’s petition for post-conviction relief and in imposing sanctions upon Calhoun and Kearley, but that the dismissal was harmless in view of the fact that the petition’s claims are without merit and/or frivolous. We therefore affirm the dismissal of the petition and reverse and render the imposition of sanctions.

¶ 26. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J„ CONCURS IN RESULT ONLY. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . The charge was reduced on the State’s motion.

      . Section 97-3-95(1) provides that:
      A person is guilty of sexual battery if he or she engages in sexual penetration with ... (c) A child under the age of twelve (12) years.