author: RANDOLPH, Justice, EASLEY, Justice,

text:
    Azki SHAH v. THE MISSISSIPPI BAR.
    No. 2005-BA-00951-SCT.
    Supreme Court of Mississippi.
    Jan. 4, 2007.
    Rehearing Denied April 19, 2007.

      Azki Shah (pro se).
    Gwendolyn G. Combs, Adam Bradley Kilgore, James Russell Clark, Jackson,, attorneys for appellee.
   RANDOLPH, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. The case at bar involves an attorney with over twenty-two years of experience, who has been repeatedly and severely sanctioned by the Committee on Professional Responsibility (“Committee”), the Complaint Tribunal (“Tribunal”) and this Court. Initially, Azki Shah (“Shah”) was issued a private reprimand, stemming from an informal complaint filed by Marcus Simmons (“Simmons”). However, Shah chose to have the private reprimand vacated and sought a formal complaint and hearing. After the hearing, the Tribunal chose to disbar Shah. Due to the facts in the case sub judice, we conclude that the leap between private reprimand and disbarment is too great. Today we do not affirm the ruling of the Tribunal, but instead issue a suspension of three years. “This Court is free to modify the punishment as needed to best serve the interests of the Bar and the public.” Miss. Bar v. Hodges, 949 So.2d 683, 685, 2006 Miss. LEXIS 379, *3 (Miss.2006) (citations omitted).

112. As Shah was initially issued a private reprimand by the Committee, this opinion should not be misinterpreted as granting leave to The Mississippi Bar (“Bar”) to enhance punishment against an attorney because he elects to appeal, nor should this decision by the Court be misconstrued to discourage attorneys to appeal decisions issued by the Committee, when warranted.

¶ 3. This incident represents the seventh time in less than eight years that Shah has been charged with violating the Rules of Professional Conduct. Shah has previously been suspended from the practice of law on two occasions, once for two years and again for six months. Shah has received three private reprimands and one informal admonition. Shah has repeatedly violated the same rules. In this proceeding, Shah was charged with violating Rule 1.3, a rule he has previously violated on three occasions; Rule 1.4, a rule Shah violated on four prior occasions; Rule 8.4(a), a rule Shah violated on three prior occasions; and Rule 8.4(c), a rule Shah violated on one previous occasion.

¶ 4. When imposing sanctions, this Court, as well as the Tribunal, considers the following:

(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 circumstances.

Id. at 686, 2006 Miss. LEXIS 379, at *5-6 (citation omitted).

¶ 5. Our decision to suspend Shah is markedly influenced by the fact that Shah has not been a stranger to disciplinary proceedings. It is quite apparent that pri- or attempts at disciplining Shah have failed. As opposed to disbarment, we are hopeful that our ruling will help Shah ameliorate his behavior upon completion of his suspension.

¶ 6. On October 30, 2003, an informal complaint was filed by Simmons against Shah. The Committee referred the complaint to the Office of General Counsel for the Mississippi Bar (“Bar”) for investigation, hearing and a report concerning Shah’s alleged violations of Mississippi Rules of Professional Conduct 1.2(a), 1.3, 1.4, 8.1(b) and 8.4(a) and (d).

¶ 7. A report was prepared by the Bar and a hearing was scheduled for April 16, 2004. Despite notice, neither Simmons nor Shah attended the hearing. The Bar submitted its investigatory report to the Committee. A copy of the report was furnished to Shah. Shah submitted an Answer to the Investigatory Report. The Committee found Shah violated three Rules of Professional Conduct and imposed a private reprimand.

¶ 8. Shah filed a Formal Request for Disciplinary Proceeding. Accordingly, the private reprimand was vacated. See M.R.D. 7(c). Thus, the Bar then initiated a formal complaint against Shah. The formal complaint alleged Shah violated M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(b), and 8.4(a). Shah answered the formal complaint by denying the allegations made by Simmons and averring the Committee wrongfully imposed discipline.

¶ 9. Subsequently, Shah filed a motion to dismiss the formal complaint, based on the allegation that the Bar contacted and interviewed Simmons in violation of M.R.D. 5.8, after Simmons failed to attend the investigatory hearing. Shah asserts he should have been contacted and allowed to attend the conversation with Simmons. In its Response, the Bar plead Simmons had contacted the Bar to explain his absence from the investigatory hearing and the information Simmons furnished the Bar resulted in no prejudice to Shah. A hearing was held by the Tribunal and Shah’s motion to dismiss was denied.

¶ 10. On the same date, the Tribunal proceeded with a formal hearing on the complaint and later, the Tribunal announced its ruling, finding by clear and convincing evidence that Shah violated M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(a), 8.4(a) and 8.4(c). Due to Shah’s prior violations, pattern of misconduct, refusal to acknowledge the wrongful nature of his misconduct, his substantial experience in the practice of law, and due to the fact that there were no mitigating factors, the Tribunal found Shah’s punishment should be immediate disbarment and to pay all costs of the proceedings. The Tribunal issued an Opinion and Judgment (“Opinion”), which contained its Findings of Fact and Conclusions of Law, finding that Shah violated M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(a), 8.4(a) and 8.4(c). Shah filed a Motion for Judgment of Acquittal Notwithstanding the Verdict, or in the Alternative, a New Trial.

¶ 11. The Tribunal ruled that the issues raised by Shah’s Motion for Judgment of Acquittal Notwithstanding the Verdict, or in the Alternative, a New Trial were without merit and denied his motion. Shah timely filed this appeal, listing numerous issues for appeal. The Bar summarized the issues before this Court as follows:

I. Whether the Complaint Tribunal erred in not granting Shah’s Motion to Dismiss.
II. Whether the Complaint Tribunal’s findings were supported by clear and convincing evidence.
III. Whether the Complaint Tribunal erred in denying Shah’s Motion for Judgment of Acquittal Notwithstanding the Verdict, or in the alternative for a New Trial.
IV. Whether the Complaint Tribunal erred in allowing the Mississippi Bar to amend its pleadings at trial to conform to the evidence.
V. Whether two members of the Complaint Tribunal should have recused themselves.

FACTS

¶ 12. Simmons hired Shah as his attorney on April 8, 2002, as Simmons needed an attorney to determine whether Simmons had valid title to property purchased at a tax sale. No written contract of employment was utilized. Simmons paid Shah $165 to research whether Simmons had a legitimate claim, which was confirmed by a receipt at the hearing. Simmons testified that in May of 2002, Shah informed him that he had a valid claim and that Simmons needed to pay him an additional $365 in order for Shah to pursue the claim. In contrast, Shah testified that he charged Simmons a one time fee of $375 to draft, file and serve a complaint.

¶ 13. Simmons testified Shah never initiated contact with him after that date, though Simmons continued to frequent Shah’s office to check on the progress of his case. Simmons testified Shah told him he was trying to obtain a court date and later asserted he had obtained a court date. Simmons asked Shah if he needed to be present, as his daughter was very ill and had a doctor’s appointment scheduled for the court date. Simmons testified Shah told him he did not need to be there. Simmons stated the initial court date was never mentioned again. Later, Shah told him there was a second court date and that Simmons needed to attend. Simmons stated he took off of work to attend. However, when Simmons arrived at the courthouse, he could not find Shah in the building. Simmons learned then that no court date had been scheduled for his case. Simmons “kept going to the courthouse” and checking with the Chancery Clerk of Coahoma County to find out if anything had been filed regarding his case. Simmons later received a letter from the Clerk which revealed that after researching all dockets from April of 2002 through October 23, 2003, the Clerk could find no case filed on behalf of Simmons. When Simmons later confronted Shah about not filing the suit, Shah presented Simmons with an unfiled complaint.

¶ 14. Shah disputed he told Simmons he had a court date on any occasion. Shah claimed he drafted a complaint for Simmons around December 2002. Shah drafted the complaint based on information Simmons gave him and he was going to research the claim after he drafted the complaint. Shah testified that after research, he determined Simmons’ claim lacked merit and thus Simmons did not have a case, which was why the complaint was never filed. Shah claims he explained to Simmons his case lacked merit and refunded him the $375 Simmons had paid to Shah.

¶ 15. Contrary to Shah’s version, Simmons stated Shah never told him his claim lacked merit and that Shah would not go forward with it. As Simmons was frustrated with Shah’s representation, he contacted the Mississippi Bar. He was advised to request a refund from Shah. Therefore, Simmons wrote Shah a letter terminating the representation and demanding a refund of all fees paid. In the letter, Simmons claimed he had absolutely no communication with Shah for “more than six months” and that he had called Shah’s office several times, without result. Simmons wrote that if he did not receive a refund from Shah by October 7, 2003, he would file a complaint with the Bar. On October 10, 2003, Simmons received a check from Shah for $375. On October 30, 2003, Simmons filed an informal complaint with the Office of General Counsel for the Mississippi Bar. Simmons stated he filed the complaint after he received the $375, because he “paid him and never did have court.”

¶ 16. Shah filed a one paragraph Answer to Simmons’s informal complaint, which averred that Simmons’s payment was returned after Shah decided Simmons’s claim lacked merit, and asked that Simmons’ informal complaint be dismissed. An investigatory hearing was scheduled. Simmons and Shah were noticed by letter of the investigatory hearing, and neither attended. Shah stated he chose not to attend the investigatory hearing based on a previous encounter with Michael Martz (former General Counsel for the Mississippi Bar), without elaboration. Shah further stated he chose not to attend because he did not believe that he was required to attend.

¶ 17. Simmons also did not attend the investigatory hearing. However, shortly after the hearing was scheduled, Simmons called the Bar to explain his absence. Adam B. Kilgore (“Kilgore”), General Counsel for the Bar, testified Simmons related to him that he had received a refund from Shah. Therefore, Simmons felt he did not need to miss work in order to attend the hearing.

¶ 18. Subsequently, the Bar filed its investigatory report. The report stated, inter alia, that Simmons had contacted the Bar to state he had received a refund, that he had communicated with Shah during Shah’s representation and that Shah never informed Simmons his claim was without merit.

¶ 19. After the investigatory report was submitted to the Committee, the Committee imposed a private reprimand, based on the limited information before it. Shah then filed a Formal Request for a Disciplinary Proceeding, which automatically vacated the imposition of the proposed discipline, a Private reprimand, pursuant to Mississippi Rule of Discipline 7(c). Shah asserted it was improper for the Committee to issue a judgment, when Shah did not attend the investigatory hearing. Based on Shah’s request, the Bar initiated proceedings by filing a formal complaint which alleged Shah violated M.R.P.C. 1.2(a), 1.3,1.4, 8.1(b), and 8.4(a).

¶20. Of significance, the formal complaint contained Shah’s prior disciplinary history, unlike the informal complaint: (1) On May 20, 2004, Shah was suspended for two years for violation of M.R.P.C. 1.2(a), 1.3, 1.4, 1.5(a), 8.1(b), and 8.4(a) and (d); (2) On March 20, 2002, Shah was issued a private reprimand for violation of M.R.P.C. 1.16(d); (3) On March 20, 2002, Shah received a second private reprimand for an unrelated violation of M.R.P.C. 1.3, 1.4, and 8.4(a) and (d); (4) On July 29, 1999, Shah was suspended from the practice of law for six months based on reciprocal discipline imposed by the United States Bankruptcy Court for the Northern District of Mississippi, See Miss. Bar v. Shah, 749 So.2d 1047 (Miss.1999); (5) On December 4, 1998, Shah received an informal admonition for violation of M.R.P.C. 1.4 and 8.1(b); and (6) On December 14, 1998, Shah was issued a private reprimand for violation of M.R.P.C. 1.2, 1.3, 1.4, and 8.4(a), (c), and (d).

¶ 21. Shah filed a motion to dismiss the formal complaint, asserting the Bar contacted Simmons after Simmons failed to attend the investigatory hearing and interviewed Simmons over the phone, which deprived Shah the right to cross-examine Simmons. In its Response, the Bar stated Simmons contacted the Bar and Kilgore did not “interview” Simmons, and in fact, the information Simmons furnished Kil-gore favored Shah, rather than prejudiced him.

¶ 22. Following the hearing on the motion to dismiss, a hearing was held on the formal complaint. The Tribunal found by clear and convincing evidence that Shah violated M.R.P.C. 1.3, 1.4, 8.1(a), 8.4(a), and 8.4(c). On April 4, 2005, an Opinion and Judgment outlining the findings of the Tribunal was issued.

STANDARD OF REVIEW

¶ 23. “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). Although this Court may grant deference to the Tribunal, this Court “reviews the evidence de novo, on a case-by-case basis, sitting as triers of fact and no substantial evidence or manifest error rule shields the Tribunal from scrutiny.” Id. Further, “[t]his Court retains exclusive jurisdiction and is the ultimate judge of attorney discipline matters, pursuant to Rule 1(a) of the Rules of Discipline for the Mississippi State Bar.” Hodges, 949 P.3d at 685, 2006 Miss. LEXIS 379 at *3 (quoting Miss. Bar v. Inserra, 855 So.2d 447, 450 (Miss.2003)).

ANALYSIS

I. Whether the Complaint Tribunal erred in not granting Shah’s Motion to Dismiss.

¶24. Shah argues the Tribunal erred in not granting his Motion to Dismiss for the following reasons: (1) the Bar interviewed Simmons over the telephone without notifying Shah and giving him the opportunity to cross-examine Simmons; and further, that information from this conversation was submitted to the Committee; (2) Simmons was not placed under oath during his telephone conversation with the Bar; and (3) the Committee on Professional Responsibility rendered a decision without an investigatory hearing and the Committee failed to reschedule the investigatory hearing.

¶25. Shah argued the telephone conversation between Simmons and Kilgore should have been recorded under oath. Since it was not, Kilgore should not have submitted the contents of the conversation to the Committee on Professional Responsibility. Both Kilgore and Simmons testified the purpose of the call from Simmons was to explain his absence. Kilgore testified it was a very short conversation wherein Simmons explained he could not attend the investigatory hearing because he had to work and felt his attendance was not necessary as he had received a refund of the fee. Kilgore’s testimony as to the details of the conversation were confirmed by Simmons in testimony at the hearing on the formal complaint. Kilgore testified he did not feel it necessary to swear in Simmons as the conversation was simply a courtesy phone call in order to explain Simmons’s absence. The Bar argues Shah’s arguments are baseless as they each stem from Shah’s choice not to attend the investigatory hearing. Shah was aware that Simmons was scheduled to attend the hearing, and Shah may not later argue he did not get the opportunity to interview Simmons, when he was afforded that opportunity and chose not to exercise it. Of even more import, Shah’s discipline from the Committee was vacated and he was subsequently afforded a full evidentia-ry hearing. At the Formal Disciplinary Hearing, all witnesses were placed under oath and were available to be cross-examined by the parties. As Shah’s appeal stems from the discipline issued by the Tribunal after the formal disciplinary hearing took place, and the initial discipline issued by the Committee on Professional Responsibility was vacated at Shah’s request, the Tribunal did not err in denying Shah’s Motion to Dismiss.

II. Whether the Complaint Tribunal’s findings were supported by clear and convincing evidence

¶ 26. “ ‘The burden is on the Bar to show by clear and convincing evidence that an attorney’s actions constitute professional misconduct.’ ” Attorney W.L. v. Miss. Bar, 621 So.2d 235, 237 (Miss.1993) (citations omitted). “ ‘Certainly, when it is performing its important duties, the Complaint Tribunal should employ the clear and convincing evidence standard.’ Levi v. Miss. State Bar, 436 So.2d 781, 784 (Miss.1983).” Liebling v. Miss. Bar, 929 So.2d 911 (Miss.2006).

¶ 27. Shah claims the Bar did not prove by clear and convincing evidence he violated M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(a), 8.4(a), and 8.4(c). Shah asserted he did not file Simmons’s complaint, as to do so would have caused Shah to be subjected to sanctions, fines, payment of court costs, legal fees, and loss of credibility for filing a non-meritorious claim. Shah testified he charged Simmons a flat fee of $375 and that he did not initially charge a separate research fee. Shah testified Simmons retained his services in December 2002, and Shah informed Simmons he did not have a claim in October 2003, when he refunded Simmons’ retainer.

¶28. Simmons testified he paid Shah $165 to research his claim and at a later date, “after [Shah] researched it and told me I [Simmons] had a case, I turned around and paid him $365 to take the case for me to court.” During the hearing on the formal complaint, Simmons produced two receipts, one for $165 paid to Shah to research the file, and a second receipt for $365 “to take the case to court.” Although Shah swore he charged only a one time fee of $375, both receipts were handwritten and signed by Shah.

¶ 29. Additionally, Simmons stated he always had to initiate contact with Shah, for Shah never contacted him. Simmons testified he went by Shah’s office on a daily basis because Shah always told him to “check back tomorrow” or “check back [the] next day.” Shah claimed Simmons would not show up for appointments, but Simmons denied this during testimony.

¶ 30. The Tribunal was presented with conflicting testimony and rendered its decision accordingly. Further, the Tribunal properly considered Shah’s prior disciplinary history, his refusal to acknowledge the wrongful nature of his conduct, his refusal to accept responsibility for his misconduct, and his twenty-two year experience in the practice of law. In its opinion, the Tribunal outlined its findings for each violation and held, “[t]he Tribunal finds, by clear and convincing evidence, that Mr. Shah’s conduct amounts to violations of the following Rules of the Mississippi Rules of Professional Conduct....”

¶ 31. “This Court may accept or reject the evidence presented in whole or in part, although deference may be given to the findings of the Complaint Tribunal because it has the best opportunity to observe the witnesses.” Stegall v. Miss. Bar, 618 So.2d 1291, 1294 (Miss.1993). Although this Court does not uphold the sanction issued by the Tribunal, after thorough review of the record, this Court finds that the Tribunal did not err in its findings that Shah did indeed violate M.R.P.C. 1.2(a), 1.3, 1.4, 8.1(a), 8.4(a), and 8.4(c).

III. Whether the Complaint Tribunal erred in denying Shah’s Motion for Judgment of Acquittal Notwithstanding the Verdict, or in the Alternative, Motion for New Trial

¶ 32. “ ‘The standard of review in considering a trial court’s denial of a motion for judgment notwithstanding the verdict is de novo.’ Wilson v. Gen. Motors Acceptance Corp., 888 So.2d 56, 64 (Miss.2004). ‘The trial court must view the evidence in the light most favorable to the non-moving party and look only to the sufficiency, and not the weight of the evidence.’” Id. at 63; Irby v. Travis, 985 So.2d 884, 888 (Miss.2006) (citation omitted).

¶ 33. Following the hearing and ruling by the Tribunal on the formal complaint, Shah filed a Motion for Judgment of Acquittal Notwithstanding the Verdict, or in the Alternative, a New Trial. In his Motion, Shah stated the Tribunal erred for the following reasons: (1) denying Shah’s Motion to Dismiss as he was denied the opportunity to cross-examine witnesses who were to have appeared at the investigatory hearing; (2) allowing the telephone conversation between Simmons and Kil-gore to be admitted into the investigatory report, when Simmons was not placed under oath; (3) in considering Shah’s prior sanctions as the Bar did not present these in its case-in-chief; (4) the evidence against Shah was less than clear and convincing; and (5) the Bar violated the rules of discovery for not tendering to Shah receipts produced at trial by Simmons. Further, Shah claimed the Bar violated the rules of discovery by failing to adequately respond to a multitude of interrogatories.

¶ 34. Issues (1) and (2) have been discussed supra and are without merit. Shah’s argument regarding Issue (3), that the Tribunal erred in considering Shah’s prior sanctions, is likewise without merit. “It is well settled that a complaint tribunal may consider prior disciplinary offenses of the attorney as aggravating factors when deciding what type and degree of discipline to impose.” Haimes v. Miss. Bar, 601 So.2d 851, 853-54 (Miss.1992) (citations omitted). Further, when deciding on the imposition of discipline, the Tribunal is required to consider Shah’s previous disciplinary history. See Miss. Bar v. Inserra, 855 So.2d at 450 (Miss.2003).

¶ 35. As to Issue (4), this has been discussed supra and is without merit. Regarding Shah’s argument in support of Issue (5), the Bar replied it did not know Simmons was going to produce the receipts for the $165 and $365 he paid Shah. Simmons pulled the receipts from his pocket during his testimony. The Bar stated it introduced copies of the receipts only after Simmons showed the receipts to the Tribunal. The exchange between counsel for the Bar and Simmons was as follows:

Bar: How much did you pay him to research your case?
Simmons: It was $165 if I’m not mistaken. You know, I have it here. I have a copy of it here. I have a copy of it, but I think it was $165 to review the file.
Bar: Do you have a receipt? Did you get a receipt for the $165?
Simmons: Yes ma’am.

¶ 36. The Bar moved these receipts be admitted into evidence, and the Tribunal asked Shah if he had any objection, and he responded, “[n]o objection.” As the Bar was not aware of these receipts prior to the hearing, the Bar did not posses the receipts to supplement their discovery responses. Of even greater import, Shah did not object to these receipts being entered into evidence. Therefore, Shah is barred from raising this issue. This Court ruled in Younger v. State, that when an issue is not raised at trial, but only in a post-trial motion, it is barred. “The circuit judge’s reasons for refusing to allow the detective to testify are of no consequence because Younger attempted to bring an issue on a post-trial motion that she failed to raise at the trial court level. Such attempts are barred.” Younger v. State, 931 So.2d 1289, 1291 (Miss.2006).

¶ 37. The Bar additionally highlighted that Shah testified that he only charged Simmons one fee, when the evidence clearly revealed Shah charged Simmons two fees. Shah stated he was unaware of the existence of the receipts, although the receipts were prepared and signed by Shah. The Bar argued it was Shah who was not forthcoming during the discovery proceedings, nor in his testimony to the Tribunal.

¶ 38. Additionally, Shah claims a multitude of the Bar’s responses to his interrogatories were inadequate and should have been supplemented after information was obtained in the telephone conversation with Simmons. Shah had access to the information given by Simmons in this conversation through the investigatory report. Further, Shah’s initial discipline and what was learned or not learned in anticipation of the first hearing is not at issue. Shah’s proceedings began “anew” when his initial discipline was vacated and Formal Hearing took place at his request. After review of the interrogatories and responses, this Court finds no error in the holding of the Tribunal, wherein it stated, “[although Mr. Shah provides a lengthy list of perceived discovery violations, the Tribunal can find no such violations in the discovery process in this case. Evidence was properly exchanged and admitted before the Tribunal for its consideration.”

¶ 39. “The standard of review for a post-trial motion is abuse of discretion.” Id. *5. (citations omitted). We cannot say the Tribunal abused its discretion in denying Shah’s Motion for Judgment of Acquittal Notwithstanding the Verdict, or in the Alternative, for a New Trial.

IV. Whether the Complaint Tribunal erred in allowing the Bar to amend its pleadings

¶ 40. “This Court has stated that ‘motions for leave to amend are left to the sound discretion of the trial court. This Court reviews such determinations under an abuse of discretion standard and unless convinced that the trial judge abused his discretion, we are without authority to reverse.’ ” Church v. Massey, 697 So.2d 407, 412-13 (Miss.1997) (citations omitted).

¶ 41. At the close of its case-in-chief, pursuant to Mississippi Rule of Civil Procedure 15(b), the Bar moved to amend its formal complaint to include that Shah also violated M.R.P.C. 8.1(a), a different portion of 8.1(b), 8.4(c), and 1.16(d) based on evidence received at the hearing. Shah never objected to Simmons’s testimony regarding Shah’s representation, nor did Shah object to the admittance of the receipts into evidence. Shah exercised his right to question Simmons regarding these matters. Therefore, pursuant to M.R.C.P. 15(b), “[w]hen issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.... ”

¶42. The Tribunal granted the Bar leave to amend to its pleadings. Pursuant to M.R.C.P. 15(b), this Court finds that the Tribunal did not err in granting the Bar leave to amend its pleadings to conform to the evidence presented at trial.

V. Whether the Tribunal members should have been required to re-cuse themselves from this case

¶ 43. Shah claims two of the Tribunal members should have recused themselves from this case, as they had previously heard a case against Shah and imposed discipline on Shah. Shah asserts this proves bias in favor of the Bar.

¶ 44. On August 10, 2004, Shah presented an identical argument in his Motion to Rescind Court’s August 3, 2004 Order [which appointed the three judge panel], or in the Alternative to Recuse the Three Judge Panel of the Complaint Tribunal. On September 20, 2004, this Court issued an Order Denying the Motion to Rescind Court’s August 3, 2004 Order, or in the Alternative, to Recuse the Three Judge Panel of the Complaint Tribunal.

¶ 45. This Court held, “There is no rule of law stating that a Tribunal member (or any other judicial official) cannot hear successive cases against the same party. If this were so, a repeat criminal offender could not be tried in the same court twice. This argument is utterly specious.” Haimes v. Miss. Bar, 601 So.2d at 854.

¶ 46. This issue likewise fails for lack of merit.

CONCLUSION

¶ 47. “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.’ ” Catledge v. Miss. Bar, 913 So.2d 179, 183 (Miss.2005) (citation omitted). Shah should not misconstrue our non-affirmation of the sanctions imposed by the Tribunal as vindication for his unprofessional conduct. We do not take lightly either Shah’s present or previous violations. It is to this end we quote from Justice Dickinson’s dissent found in Miss. Bar v. Walls, “It is [our] sincere hope that [Shah] has ... some desire to overcome what appears to be a habit of violating the Rules of Professional Conduct.” Miss. Bar v. Walls, 890 So.2d 875, 880 (Miss.2004) (Dickinson, J., dissenting). “The purpose of discipline is not simply to punish the guilty attorney, but to protect the public, the administration of justice, to maintain appropriate professional standards, and to deter similar misconduct.” Miss. State Bar Ass’n v. A Miss. Attorney, 489 So.2d 1081, 1084 (Miss.1986). We are hopeful that the imposition of a three year suspension shall be sufficient to accomplish that purpose.

¶ 48. Therefore, this Court suspends Azki Shah from the practice of law for three years and that upon completion of this suspension, and preceding his application for reinstatement pursuant to M.R.D. 12.2, Shah shall be required to take and pass the Multi-State Professional Responsibility Exam, consistent with the guidelines set forth in M.R.D. 12.5. Shah is further ordered to pay all costs of these proceedings.

¶ 49. AZKI SHAH IS SUSPENDED FROM THE PRACTICE OF LAW FOR THREE (3) YEARS. UPON COMPLETION OF THIS SUSPENSION, AND PRECEDING HIS APPLICATION FOR REINSTATEMENT PURSUANT TO M.R.D. 12.2, SHAH SHALL BE REQUIRED TO TAKE AND PASS THE MULTI-STATE PROFESSIONAL RESPONSIBILITY EXAM, CONSISTENT WITH THE GUIDELINES SET FORTH IN M.R.D. 12.5. SHAH SHALL PAY ALL COSTS OF THESE PROCEEDINGS.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. CARLSON, J., NOT PARTICIPATING.

EASLEY, Justice,

Dissenting:

¶ 50. I must respectfully dissent from the majority’s suspension of Azki Shah from the practice of law. I find that Shah’s due process rights were violated.

¶ 51. “The Supreme Court of Mississippi has exclusive and inherent jurisdiction in bar disciplinary matters.” Miss. Bar v. Pels, 708 So.2d 1372, 1373 (Miss.1998); see also M.R.D. 1(a). In matters involving attorney discipline, this Court conducts a de novo review. Miss. Bar v. Shelton, 855 So.2d 444, 445 (Miss.2003) (citing Pels, 708 So.2d at 1373); see also M.R.D. 9.4. This Court must decide each disciplinary case on its own unique merits. Fougerousse v. Miss. State Bar Ass’n, 563 So.2d 1363, 1366 (Miss.1990).

¶ 52. However, “[s]inee Mississippi Bar disciplinary matters are quasi-criminal in nature, attorneys accused in such matters are entitled to due process of law under both the Fourteenth Amendment to the United States Constitution and Article 3, Section 14 of our state constitution.” Goeldner v. Miss. Bar, 891 So.2d 130, 133 (Miss.2004); Harrison v. Miss. Bar, 637 So.2d 204, 218 (Miss.1994); see also In re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968) (disciplinary proceedings which seek to impose sanctions on an attorney are adversary proceedings of a quasi-criminal nature).

¶ 53. In Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 434, 102 S.Ct. 2515, 2522, 73 L.Ed.2d 116 (1982), the United States Supreme Court held that “bar disciplinary proceedings are neither criminal nor civil in nature, but rather are sui generis.” Id. (citing In re Logan, 70 N.J. 222, 358 A.2d 787 (1976)). “The judiciary as well as the public is dependent upon professionally ethical conduct of attorneys and thus has a significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice.” Middlesex County Ethics Comm., 457 U.S. at 434, 102 S.Ct. 2515; see also Theard v. United States, 354 U.S. 278, 281, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957).

¶ 54. Such proceedings are in the nature of an inquest or inquiry as to the conduct of the attorney to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and the public from persons unfit to practice law. See Ex parte Wall, 107 U.S. 265, 289-90, 2 S.Ct. 569, 27 L.Ed. 552 (1882). In Wall, the United States Supreme Court stated:

The question, what constitutes due process of law within the meaning of the Constitution, was much considered by this court in Davidson v. New Orleans, 96 U.S. 97, [24 L.Ed. 616]; and Mr. Justice Miller, speaking for the court, said: “It is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the State, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case.” And, referring to Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How. 272, [15 L.Ed. 372], he said: “An exhaustive judicial inquiry into the meaning of the words ‘due process of law,’ as found in the Fifth Amendment, resulted in the unanimous decision of this court, that they do not necessarily imply a regular proceeding in a court of justice, or after the manner of such courts.”

Wall, 107 U.S. at 289-90, 2 S.Ct. 569; see Theard, 354 U.S. at 282, 77 S.Ct. 1274 (ample opportunity must be afforded to the accused practitioner to show cause).

¶ 55. In Ruffalo, 390 U.S. at 550-551, 88 S.Ct. 1222, the United States Supreme Court addressed the violation of the attorney’s right to due process due to the introduction of new evidence where the attorney was not provided notice of the new evidence. The Court stated:

Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer. Ex parte Garland, 4 Wall. 333, 380, [18 L.Ed. 366]; Spevack v. Klein, 385 U.S. 511, 515, [87 S.Ct. 625, 17 L.Ed.2d 574], He is accordingly entitled to procedural due process, which includes fair notice of the charge. See In re Oliver, 333 U.S. 257, 273, [68 S.Ct. 499, 92 L.Ed. 682], It was said in Randall v. Brigham, 7 Wall. 523, 540, [19 L.Ed. 285], that when proceedings for disbarment are “not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence [sic].” Therefore, one of the conditions this Court considers in determining whether disbarment by a State should be followed by disbarment here is whether “the state procedure from want of notice or opportunity to be heard was wanting in due process.” Selling v. Radford, 243 U.S. 46, 51, [37 S.Ct. 377, 61 L.Ed. 585],
In the present case petitioner had no notice that his employment of Orlando would be considered a disbarment offense until after both he and Orlando had testified at length on all the material facts pertaining to this phase of the case. As Judge Edwards, dissenting below, said, “Such procedural violation of due process would never pass muster in any normal civil or criminal litigation.” n3 370 F.2d, at 462.

Ruffalo, 390 U.S. at 550-51, 88 S.Ct. 1222.

¶ 56. Here, the Bar scheduled an investigatory hearing which was not attended by the complainant, Marcus Simmons, or Shah. Subsequent to the hearing, Simmons contacted the Bar’s general counsel, Adam Kilgore, to explain his absence. Simmons told Kilgore that Shah had refunded $375 to him; and therefore, he saw no reason to attend the hearing. Kilgore prepared and submitted a report to the Committee on Professional Responsibility. The report included the details of the telephone conversation between Simmons and Kilgore. Shah had no knowledge of the telephone conversation or the report prepared for the Committee prior to Kilgore’s filing the report with the Committee. As such, the Bar submitted information to the Committee without providing notice to Shah, violating his due process rights.

¶ 57. Further, the Bar argues that Shah should have appeared at the investigatory hearing. The Bar, in effect, used Shah’s failure to appear against him as an indication that he had failed to cooperate. The Mississippi Rules of Discipline provide:

The accused attorney is a party to the proceedings, and after written notice of the investigation or complaint has been given to the attorney by Complaint Counsel, the accused attorney or his counsel may appear at any investigatory hearing conducted by complaint counsel.

M.R.D. 5.7. (Emphasis added). The Mississippi Rules of Professional Conduct provide:

An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
[F]ail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

M.R.P.C. 8.1(b) (emphasis added). The Bar incorrectly interprets M.R.P.C. 8.1(b) as requiring Shah to appear at the investigatory hearing. Shah contends that he supplied the information requested by the Bar and filed an answer. The Bar argues that the answer was inadequate. Regardless of whether the information was adequate or not, neither M.R.P.C. 8.1(b) nor M.R.D 5.7 required Shah’s presence at the investigatory hearing. M.R.D. 5.7 merely states that Shah must be afforded the opportunity to appear, and M.R.P.C. 8.1(b) only requires that Shah provide information to the Bar.

¶ 58. That being said, the Bar’s letter to Shah informed him of the investigatory hearing and contained language similar to M.R.D. 5.7, which stated that his presence was not required. The Bar’s letter sent to Shah specifically stated:

The attorney subject of the Complaint, together with his Counsel, if any, may appear at the Investigatory Hearing, but the attorney, subject of the Complaint, cannot be compelled to cooperate or testify except as provided by Rule 8.1of the Rules of Professional Conduct.

(Emphasis added). The Tribunal even noted the confusion surrounding the Bar’s letter, noting that the Bar should clarify the language used in the letter. Therefore, Shah was informed that he may appear, not that he had to appear in order to not be viewed by the Bar as failing to cooperate.

¶ 59. Because Shah’s due process rights were violated, I cannot agree to Shah’s suspension from the practice of law. The complaint is not properly before the Court and should be dismissed.

GRAVES, J, JOINS THIS OPINION.


source: Caselaw Access Project

author:
DIAZ, Justice,
      EASLEY, Justice,

license: Public Domain

text:
    Ceola JAMES v. The MISSISSIPPI BAR.
    No. 2005-BA-01622-SCT.
    Supreme Court of Mississippi.
    Jan. 18, 2007.

      Ceola James, pro se.
    James Russell Clark, Adam Bradley Kil-gore, Gwen Combs, Jackson, attorneys for appellee.
   DIAZ, Justice,

for the Court.

¶ 1. In this attorney discipline case we are asked whether a former judge may represent a party in a case related to one over which she formerly presided. Because the Rules of Professional Conduct squarely prohibit such a situation, we hold that she may not.

FACTS AND PROCEDURAL HISTORY

¶ 2. Unusually, the factual situation underlying this case has already been examined and ruled upon by our appellate courts. See J.N.W.E. v. W.D.W., 922 So.2d 12 (Miss.Ct.App.2005), cert. denied 926 So.2d 922 (Miss.2006). The facts are undisputed. Attorney Ceola James served as a Chancellor in the Ninth Chancery District, which is composed of Humphreys, Issaquena, Sunflower, Warren, and Washington Counties. The case of J.N.W.E. v. W.D.W., which triggered the complaint at hand, arose in the Chancery Court of Washington County, where Ms. James was chancellor.

¶3. Styled a “Petition for Protection from Domestic Abuse,” J.N.W.E. was brought by a mother seeking court-ordered protection for her child, who had allegedly been physically abused by her husband, W.D.W. The couple was in the process of a divorce action situated in Ya-zoo County.

¶ 4. J.N.W.E. moved the court for a protective order that would prevent her husband, W.D.W., from visiting with their child, alleging that the child was subject to physical harm by the father. At an emergency hearing on November 21, 2001, the court heard testimony from multiple witnesses and a statement allegedly signed by the defendant was introduced as evidence. Based upon the testimony and evidence presented, Ms. James entered an order staying any unsupervised visitation by the child’s father on that same day.

¶ 5. On December 14, 2001, Ms. James held a final hearing on the issue in which the defendant appeared and acknowledged he had indeed signed the statement previously admitted as evidence, while contesting that he had actually done the acts portrayed in the statement. After this hearing, Ms. James entered another order on January 23, 2002 extending the previous order and barring W.D.W. from any unsupervised visitation with the child. This order was to extend until the final disposition of the divorce case in Yazoo County, the trial of which was set to begin the next day, on January 24.

¶ 6. On June 20, 2002, a final judgment of divorce was entered in Yazoo County. Over a year later, on November 24, 2004, an ex parte order was entered substituting Ms. James as counsel of record for J.N.W.E. in the Yazoo County divorce action. Opposing counsel quickly filed a motion to disqualify Ms. James as attorney of record, citing her previous involvement in the related child abuse case and the prohibition set forth in Mississippi Rule of Professional Conduct 1.12. After the failure of Ms. James to respond to the motion or appear at the hearing, the trial court disqualified her as J.N.W.E.’s attorney.

¶ 7. Ms. James responded with a motion to reconsider that ruling, arguing that she did not receive proper notice regarding the motion to disqualify, and also filed a motion to disqualify the attorney of W.D.W. and a motion for recusal against the trial judge. The trial judge set aside the original order to disqualify Ms. James and allowed a hearing on the merits.

¶ 8. After this hearing, the trial judge found again that Ms. James had violated Rule 1.12 and, accordingly, could not represent J.N.W.E. The court also denied the motions for disqualification of attorney and recusal filed by Ms. James, finding that they had no merit.

¶ 9. Ms. James then appealed to this Court to review the decision of the trial court. We assigned the case to our Court of Appeals for decision, but notified the Mississippi Bar of the possible violation of Rule 1.12. As noted supra, the Court of Appeals found that the trial court was correct in disqualifying Ms. James as attorney of record for J.N.W.E. because of the Rule 1.12 conflict, and we denied cer-tiorari to review that decision.

¶ 10. Concerned that a breach of ethics had occurred, the Bar notified the Committee on Professional Responsibility, which investigated the alleged attorney misconduct. See M.R.D. 7(a). The Committee found a violation of Rule 1.12 had occurred, and a public reprimand for violation of Rule 1.12 was issued to Ms. James on January 24, 2005.

¶ 11. Pursuant to M.R.D. 7(c), Ms. James requested a formal proceeding to review the decision of the committee, and a three-member Complaint Tribunal convened for a trial of the matter on June 29, 2005. The Complaint Tribunal found — as had the Court of Appeals and the Committee on Professional Responsibility — that Ms. James had violated Rule 1.12. It recommended a public reprimand as penalty for the violation.

¶ 12. Ms. James appealed this decision, at which time the Bar filed a motion asking for damages, as the Bar considered the appeal frivolous. The Bar argued that because multiple bodies had found a violation of Rule 1.12 — including the trial court; the Court of Appeals; this Court by implication, as we denied certiorari; the Committee on Professional Responsibility; and the Complaint Tribunal' — -Ms. James’ appeal was wholly frivolous.

¶ 13. We denied the motion, citing Rule 9 of the Rules of Discipline, which allow that “the accused attorney may, as a matter of right, appeal any disposition of the Tribunal to the [Supreme] Court.” (emphasis added). For even an attorney who admits that her conduct was a violation of our rules may still appeal “the extent or absence of discipline” assessed by the Complaint Tribunal. M.R.D. 9(b).

¶ 14. Ms. James asks us to review twelve issues, and the Bar tells us there is but one. There are actually two: was there a violation of Rule 1.12? And, if so, is a public reprimand warranted? After a full review, we conclude there was a violation and that a public reprimand is warranted.

STANDARD OF REVIEW

¶ 15. This Court has exclusive jurisdiction over attorney discipline matters and is the ultimate judge in those proceedings. See Rule 1(a) of the Rules of Discipline for the Mississippi State Bar; Miss. Bar v. Inserra, 855 So.2d 447, 450 (Miss.2003). Accordingly, matters of attorney discipline are reviewed de novo. Id. We also apply a proportionality requirement to Bar discipline cases to ensure the fairness of any penalty. Miss. Bar v. Drungole, 913 So.2d 963, 967 (Miss.2005). We will modify any punishment as needed to best serve the interests of the Bar and the public. Parrish v. Miss. Bar, 691 So.2d 904, 907 (Miss.1996).

DISCUSSION

¶ 16. The Bar urges that this matter has already been fully adjudicated by the J.N.W.E. decision in our Court of Appeals, and indeed, the facts presented to us are the same. However, attorney discipline is not a matter to be taken lightly, and as noted supra, this Court has exclusive jurisdiction over it. Whether Ms. James should be disqualified due to Rule 1.12 was a component of the J.N.W.E. case but it was not reviewed as an ethical violation, as we do here.

The Rule.

¶ 17. Rule 1.12(a) of the Mississippi Rules of Professional Conduct states, in pertinent part, that “a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge.” The Comment explains that the Rule is not excessively broad, as

The term ‘personally and substantially’ signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits.

The Rule’s purpose is to safeguard the integrity of the legal profession in Mississippi. We have never before addressed the Rule in the context of attorney discipline, but we have in the context of judicial discipline. Miss. Comm’n on Judicial Performance v. Atkinson, 645 So.2d 1331 (Miss.1994). In that case, we were faced with a municipal judge who presided over a bond hearing and established the bond for a criminal defendant, then later became an attorney for the defendant and attempted to have the same bond reduced. Id. at 1333. We found this was “a direct conflict” and agreed with the Commission on Judicial Performance that a judge who establishes a bond for a criminal defendant has acted in a substantial way in the judicial process. Id. at 1336.

Substantial Participation.

¶ 18. In the case at hand, Ms. James urges that, unlike Judge Atkinson, she did not participate substantially in the case. “Substantial participation” is not as simple as a mathematical formula, although the extent of the judge’s repeated participation should be assessed. The extent of the judge’s interaction with the case and the litigants should be the primary focus of the inquiry.

¶ 19. The facts are undisputed that while acting as chancellor Ms. James entered three orders in the child abuse case in Washington County and presided over two hearings. The first hearing was apparently ex parte and not transcribed. The second hearing was transcribed and runs to thirty-two pages, which does not include the arguments of counsel, which were not transcribed. Ms. James questioned both attorneys about the case and specifically directed inquiries to W.D.W. about whether he had indeed abused his child or signed a statement admitting he had.

¶ 20. One of the orders crafted a temporary injunction against W.D.W. preventing him from having any unsupervised visitation with his child. Another converted this temporary injunction to a permanent one pending the outcome of the Yazoo County divorce case.

¶21. Accordingly, Ms. James substantially participated in the case. She read motions, conducted hearings, heard testimony, and entered orders. In fact, she handled the entirety of the child abuse case.

“Matter” Defined.

¶ 22. Ms. James further argues that even if she had participated substantially as a judge in the Washington County child abuse case, the Yazoo County divorce case is not the same “matter” as contemplated by Rule 1.12. The cases were certainly situated in different counties and had different cause numbers, and the Bar does not contend Ms. James was originally involved in the Yazoo County case. The question thus turns on what “a matter” means as contemplated by Rule 1.12.

¶ 23. The Comment to Rule 1.12 begins by noting that “[t]his Rule generally parallels Rule 1.11,” which defines “matter.” Rule 1.11(d)(1) sets forth that “the term ‘matter’ includes ... any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties.”

Application to the Case at Hand.

¶ 24. Ms. James oversaw the Washington County child abuse petition, not the Yazoo County divorce action. However, the two cases were greatly intertwined. The parties, J.N.W.E. and W.D.W., are the same. The initial pleading filed before Ms. James by J.N.W.E., styled a “Petition for Protection from Domestic Abuse,” discusses the evolution of the divorce case in Yazoo County. It further reveals that the Yazoo County Chancery Court had ruled previously on the custody issue between J.N.W.E. and W.D.W., which was the sole subject of the Washington County case. At the second hearing in the Washington County child abuse case, Ms. James acknowledged that information regarding the alleged child abuse “w[as] presented to the Yazoo Chancery Court.”

¶ 25. It is also indisputable that any divorce action will include a discussion and ruling by the chancery court on custody of any children to the marriage. Ms. James ruled explicitly on the rights of W.D.W. to have visitation with his child. Custody and visitation are inextricably bound to the divorce action in Yazoo County where Ms. James later attempted to represent J.N.W.E.

¶ 26. While the two cases do not share the same docket number, they do involve the same parties, the same issues, and the same concerns. As a judge, Ms. James personally and substantially participated in the Washington County child abuse action, which was focused exclusively on the visitation of the minor child.

¶ 27. Critically, Ms. James admits she was hired by J.N.W.E. to obtain a modification of the Yazoo County divorce order, specifically a “modification so [J.N.W.E.] could get custody.” Custody of the minor child is exactly the matter Ms. James oversaw in the Washington County child abuse case.

¶ 28. Because she substantially participated in the custody matter as a judge, Ms. James cannot now represent J.N.W.E. — nor, for that matter, could she represent the father, W.D.W. The only circumstance in which Ms. James could have represented “anyone in connection [in the] matter” is if “all parties to the proceeding give informed consent confirmed in writing.” M.R.P.C. 1.12(a). As signaled by his motion to disqualify, W.D.W. expressly did not consent to Ms. James representing his ex-wife, J.N.W.E.

The Discipline Imposed.

¶ 29. “Our primary concern when imposing sanctions for attorney misconduct is that the punishment be sufficient to vindicate the overall reputation of the Bar in the public eye.” Goeldner v. Miss. Bar, 891 So.2d 130, 135 (Miss.2004). “While we are free to evaluate the discipline the Bar has imposed and modify that punishment as best needed to serve the best interest of the Bar and the public, we consider a set of nine criteria” in assessing punishment. Id. at 135. They are:

(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;
(5) the sanctions imposed in similar cases;
(6) the duty violated;
(7) the lawyer’s mental state;
(8) the actual or potential injury caused by the lawyer’s misconduct; and
(9) the existence of aggravating or mitigating circumstances.

Id.

¶ 30. Ms. James has violated Rule 1.12, which is designed to preserve the integrity of the legal system from real or potential conflicts of interest. There is a compelling need to deter members of the Bench and Bar from this type of conduct and protect the public from this type of behavior. The Comment to Rule 1.11 is illustrative in this respect, as enforcement of that Rule, as well as Rule 1.12, “prevents a lawyer from exploiting public office for the advantage of a private client.” At all times we must protect the public from these types of conflicts of interest.

¶ 31. In terms of mitigation, we may contemplate the previous performance of a lawyer and whether they have any prior infractions. Goeldner, 891 So.2d at 135. Ms. James has been a member of the Mississippi Bar for 29 years, and the record shows that the Bar has never instituted disciplinary proceedings against her before. She has repeatedly testified and argued that she wished to become counsel of record for J.N.W.E. in order to help the minor child, and we cannot impugn that honorable impulse. While we are reluctant to discipline longstanding members of the Bar with no history of infractions, we cannot ignore the conduct that has triggered the case at hand, especially in light of the plain language of Rule 1.12.

¶ 32. The Bar suggested that Ms. James receive a public reprimand as the sole punishment because of her violation of Rule 1.12, which was the punishment assessed against Judge Atkinson for a similar violation. 645 So.2d at 1337. In light of the foregoing, this is not an excessive punishment.

CONCLUSION

¶ 33. In order to protect the integrity of our profession, our Rules of Professional Conduct specifically prohibit attorneys who are former judges from later representing anyone in a matter in which they personally and substantially participated as a judge. Because Ms. James violated this prohibition, she must be publicly reprimanded.

¶ 34. CEOLA JAMES SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE ON THE FIRST DAY OF THE NEXT TERM OF THE WARREN COUNTY CIRCUIT COURT.

COBB, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J. RANDOLPH, J., JOINS IN PART. WALLER, P.J., AND GRAVES, J., NOT PARTICIPATING.

EASLEY, Justice,

concurring in part and dissenting in part.

¶ 35. While I concur with the majority that disciplinary action is warranted and sanctions are necessary, I respectfully dissent from the majority’s imposition of only a public reprimand. I believe that this Court should impose additional discipline on James. The Bar requested $69.17 for costs and expenses, including costs incurred in the investigation of this action. James claims that she already paid these costs. Notwithstanding James’s assertion, the record reflects no documentation or other evidence of this payment. Therefore, I believe that the Bar is entitled to $69.17, or, in the alternative, the Bar should be provided proof of payment of these costs by James.

¶ 36. Additionally, I believe that James’s conduct was so egregious that this Court should impose a ninety-day suspension. See M.R.D. 8(b)(iii). As a former judge, James handled a matter involving the same parties. Once she became a practicing lawyer, James chose to represent one of the parties that had appeared before her in her capacity as a judge. The trial court disqualified James and found that her actions involving the same two parties and the same subject matter was a violation of M.R.P.C. 1.12. J.N.W.E. v. W.D.W., 922 So.2d 12, 15 (Miss.Ct.App.2005), cert. denied, 926 So.2d 922 (Miss.2006). The Court of Appeals affirmed the trial court and held:

Based on these facts, we find that James’ participation in the litigation between the parties, as a chancellor, was substantial, and thus she was properly disqualified under Rule 1.12 of the Rules of Professional Conduct from representing J.N.W.E. in her ongoing battle with W.D.W. over the custody of the parties’ minor child. Therefore, we affirm the chancellor’s decision disqualifying James as J.N.W.E.’s attorney.

J.N.W.E., 922 So.2d at 16.

¶37. James’s representation of this party unequivocally violated the Rule of Professional Conduct 1.12. There is no doubt that James, as a former judge and now as an attorney, should have been keenly aware of this conflict. The principle that a lawyer should not represent anyone in a matter in which he or she substantially participated in his or her capacity as a judge is elementary. For the above reasons, I conclude that the Bar is entitled to payment in the amount of $69.17 and, I would impose a ninety-day suspension.

SMITH, C.J., JOINS THIS OPINION. RANDOLPH, J., JOINS THIS OPINION IN PART.

      . The Court of Appeals saw fit to seal the names of the parties because the interests of a child were at stake; we will similarly refrain from identifying them.

      . Ms. James does not argue that she did not personally participate in the case, so we need not examine that portion of the Rule.

      . Although the documents are not in the record, Ms. James testified that W.D.W. was ultimately granted custody of the minor child in the Yazoo County divorce action.

      . A similar conclusion was reached by the Mississippi Bar in Ethics Opinion No. 226, rendered April 6, 1995. There, the Bar concluded "that a former chancellor may not later represent parties in proceedings for contempt or modification of decrees and judgments which were rendered in the case by the former chancellor.”


author: /s/ James W. Smith, Jr. JAMES W. SMITH, Jr., CHIEF JUSTICE EASLEY, Justice,

text:
    In re the Petition of Chokwe LUMUMBA for Reinstatement in the Mississippi Bar.
    No. 2006-BR-00990-SCT.
    Supreme Court of Mississippi.
    Jan. 18, 2007.
   ORDER

¶ 1. Chokwe Lumumba was suspended from the practice of law for six months and until he retook and passed the Ethics portion of the Mississippi Bar Examination, fined $1,000, and required to pay the Bar’s costs. Miss. Bar v. Lumumba, 912 So.2d 871, 889 (Miss.2005), cert. denied, 546 U.S. 825, 126 S.Ct. 363, 163 L.Ed.2d 70 (2005).

¶ 2. Lumumba now petitions this Court for reinstatement to the Mississippi Bar pursuant to Rule 12 of the Mississippi Rules of Discipline. In support, Lumumba submits that he has satisfied all requirements for reinstatement, In re Benson, 890 So.2d 888, 890 (Miss.2004), and the Mississippi Bar agrees.

¶ 3. Finding that Chokwe Lumumba has sufficiently demonstrated that he has satisfied the conditions precedent for reinstatement to the Bar, we grant his Petition and reinstate Chokwe Lumumba as a member of the Mississippi Bar to the privilege of practicing law in the State of Mississippi effective upon the entry of this order.

¶ 4. SO ORDERED.

/s/ James W. Smith, Jr. JAMES W. SMITH, Jr., CHIEF JUSTICE

FOR THE COURT

WALLER AND COBB, P.JJ., DIAZ, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN STATEMENT.

EASLEY, Justice,

Separate Written Statement:

¶ 5. I respectfully object to the reinstatement of Chokwe Lumumba to the Mississippi Bar. Lumumba publicly insulted Judge Marcus Gordon in open court. Judge Gordon is a long-serving circuit judge in Mississippi. He takes his office seriously and is committed to maintaining fairness and integrity in his court. When Lumumba chose to insult Judge Gordon, Lumumba insulted both Judge Gordon and the entire Judiciary of the State of Mississippi.

¶ 6. Our courts must have the highest degree of integrity in order for our citizens to have trust and respect for the court system. The Mississippi judiciary, including Judge Gordon, always strives to achieve this high goal. Our citizens, including attorneys practicing in the court system, must be courteous, maintain decorum, and show proper respect for our judges and the court system.

¶ 7. In his affidavit, attached to the petition for reinstatement, and in his deposition, attached to the Bar’s answer, Lu-mumba acknowledged that his choice of words were poor. By not apologizing to Judge Gordon, orally or in writing, Lu-mumba has not acted in good faith and has not shown real remorse for his actions. Therefore, I respectfully object to the reinstatement of Lumumba.


author: DICKINSON, Justice, DIAZ, Justice,

text:
    In re William C. BELL.
    No. 2006-M-01895-SCT.
    Supreme Court of Mississippi.
    March 1, 2007.

      William E. Spell, Clinton, attorney for appellant.
   DICKINSON, Justice,

for the Court.

¶ 1. Three judicial candidates filed a complaint in the Hinds County Chancery Court claiming that a fourth candidate made a false and misleading statement in violation of both Canon 5 of the Mississippi Code of Judicial Conduct and Section 23-15-977.1 of the Mississippi Election Code. After the chancery court issued a temporary restraining order (“TRO”) requiring the defendant to cease making the statement, the defendant filed an emergency appeal to this Court. Finding the plaintiffs’ petition failed to state a claim upon which relief could be granted by the chancery court, we vacated the TRO by order entered on November 6, 2006. The purpose of this opinion is to provide this Court’s reasoning for dissolving the TRO.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. William C. Bell was a candidate for Chancery Judge of the Fifth Chancery Court District, Subdistrict 5-1. During the course of his campaign, Bell promised that, if elected, he would dedicate his time to “help clear the backlog of criminal cases in Hinds County.”

¶ 3. On Saturday, November 4, 2006— three days prior to the election — three other candidates (“Plaintiffs”) for the same position filed a complaint in the Hinds County Chancery Court seeking, inter alia, a TRO. On that same day, the chancellor held a hearing and issued a TRO which temporarily restrained Bell “from making or publicizing further false and misleading claims that if he is elected as a Chancery Judge of the Fifth Chancery Court District, he will help clear the backlog of criminal cases in Hinds County, or any such similar claims.”

¶ 4. Immediately thereafter, pursuant to Rule 21 of the Mississippi Rules of Appellate Procedure, Bell filed a petition for an extraordinary writ asking that we dissolve the TRO. A quorum of this Court, sitting en banc, reviewed Bell’s petition, an answer filed by the three plaintiffs, and a response filed by Bell. With one justice dissenting, we found the complaint failed to state a claim upon which relief could be granted by the chancery court, and we dissolved the TRO.

DISCUSSION

I.

¶ 5. The restraining order issued against Bell raises serious and substantial constitutional issues, such as prior restraint of the First Amendment right to free speech. There also is some logic to the argument that a system which forces one with aspirations of judicial office to jump into the political arena, raise money, and campaign for votes, and then judicially restrains the candidate from what he or she might say in the course of the campaign exhibits a touch of hypocrisy. But we need not address those concerns today because this case must be decided on a different level.

¶ 6. This case, brought in chancery court against a judicial candidate, alleges the candidate has violated — and is likely to continue to violate — the Mississippi Code of Judicial Conduct. Stated another way, and to be very clear, the cause of action alleged in this matter is the violation of the Mississippi Code of Judicial Conduct, and the remedy sought for that violation is a restraining order, maturing into an injunction. Although restraining orders and injunctions frequently are issued by our chancery courts as remedies for various legal and equitable claims, they are not— and have never been — issued by our trial courts to remedy violations of the Code of Judicial Conduct.

¶ 7. We think it important to state at the outset that those who believe a judicial candidate or a judge has violated (or will violate) the Mississippi Code of Judicial Conduct have another forum in which to seek an appropriate remedy. As we will discuss herein, such claims must be filed with the Judicial Performance Commission in accordance with the Mississippi Constitution. And if the Judicial Performance Commission fails to act, the aggrieved party may seek a writ of mandamus from this Court, ordering the Commission to address the issue. But the aggrieved party is not allowed—and has never been allowed—to pursue as a cause of action such a claim in our state courts.

¶ 8. Article 1, Section 1, of the Mississippi Constitution establishes and empowers Mississippi’s three separate branches of government, one of which is the judiciary. Under Article 6, which addresses the distribution of judicial power, the jurisdiction of the chancery court is established:

¶ 9. The chancery court shall have full jurisdiction in the following matters and cases, viz.:

(a) All matters in equity;
(b) Divorce and alimony;
(c) Matters testamentary and of administration;
(d) Minor’s business;
(e) Cases of idiocy, lunacy, and persons of unsound mind;
(f)All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.

Miss. Const. art. 6, § 159.

¶ 10. This Court has previously stated that “ ‘[t]he constitution makers of 1890 knew, when they invested the chancery court with full jurisdiction of all matters in equity, (Sec. 159 of Const.) that the supreme court had theretofore held that equity is defined as that system of justice which was administered by the high court of chancery in England....’” Mitchell v. Rawls, 493 So.2d 361, 364 (Miss.1986) (quoting Griffith’s Mississippi Chancery Practice § 584 (2d Ed.1950)). Thus, the equitable jurisdiction and power of the chancery court is limited to the system of justice administered by England’s high court of chancery.

¶ 11. Based upon this authority, we have searched in vain for citation of authority which suggests that the high court of chancery in England entertained and adjudicated disputes between candidates for public office. Instead, as this Court held in In re McMillin, 642 So.2d 1336, 1339 (Miss.1994), “[cjhancery courts in this state do not have the jurisdiction to enjoin elections or to otherwise interfere with political and electoral matters which are not within the traditional reach of equity jurisdiction.” See also Goodman v. Rhodes, 375 So.2d 991, 994 (Miss.1979) (Court dissolved injunction because chancery court had no jurisdiction to determine the candidates whose names should appear on the ballot); Brumfield v. Brock, 169 Miss. 784, 788, 142 So. 745, 746 (1932) (“By a long line of decisions this court has held that courts of equity deal alone with civil and property rights and not with political rights.”). Thus, the challenge to Bell’s conduct does not fall within the chancery court’s equitable jurisdiction.

¶ 12. It is true of course that, in a proper case, restraining orders and injunctions are within the jurisdiction of our chancery courts. See, e.g., S. Bus Lines, Inc. v. Amalgamated Ass’n of Street, Elec. Ry. & Motor Coach Employees, 205 Miss. 354, 374, 38 So.2d 765, 768 (1949) (injunction allowed in chancery to enjoin unlawful conspiracy to commit violence); Miss. Theatres Corp. v. Hattiesburg Local Union No. 615, 174 Miss. 439, 449, 164 So. 887, 890 (1936) (injunction allowed in chancery to restrain breach of contract). But these and other cases require that an application for injunctive relief be predicated upon some legal or equitable claim which will, at some point, proceed to the merits. Indeed, an applicant for injunctive relief must demonstrate, inter alia, a substantial likelihood of prevailing on the merits of the claim. City of Durant v. Humphreys County Mem’l Hosp./Extended Care Facility, 587 So.2d 244, 250 (Miss.1991). No such showing could be made in this case.

II.

¶ 13. The courts which make up our judiciary are not authorized to resolve every claim and dispute that may arise between our citizens. The plaintiff must file a complaint which alleges some cognizable claim or cause of action against the defendant. Absent some colorable claim that a candidate or other defendant committed a tort or violated a statute or constitutional provision, our courts consistently have refused to adjudicate election disputes. For instance, this Court held in 1907 that

[tjhere is no provision in the law for the courts to entertain contests between rival candidates of a particular political party, and determine for that party which of the candidates shall be declared its nominee.... The only contests that the courts can entertain are those originating under general election laws.

Ramey v. Woodward, 90 Miss. 777, 781, 44 So. 769, 769 (1907). See also Howard v. Sheldon, 151 Miss. 284, 294, 117 So. 839, 839 (1928) (citing Ramey and recognizing that “courts should not assume such jurisdiction”).

¶ 14. Our courts do, however, have jurisdiction and constitutional authority to adjudicate election-related claims of violation of a statute or constitutional provision. For instance, in City of Grenada v. Harrelson, 725 So.2d 770, 774 (Miss.1998), this Court found that the circuit court erred in failing to enjoin an election that was based on improper ward lines. The circuit court had found that, based on this Court’s decision in McMillin, it did not have the authority to enjoin the election. Id. at 773. In overruling the trial court, this Court stated:

This Court has long followed the doctrine of non-judicial interference in the election scheme. See In re Wilbourn, 590 So.2d 1381 (Miss.1991). However, we have said, “ ‘[A court] can direct an official or commission to perform its official duty or to perform a ministerial act, but it cannot project itself into the discretionary function of the official or the commission. Stated differently, it can direct action to be taken, but it cannot direct the outcome of the mandated function.’ ” In re Wilbourn, 590 So.2d at 1385 (quoting Hinds County Democratic Executive Committee v. Muirhead, 259 So.2d 692, 695 (Miss.1972)). We have also said, “[t]hus, a court could, if necessary, compel by mandamus an election commission or executive committee to perform its statutory duty upon its failure to do so, or prohibit it by way of injunction or writ of prohibition from exceeding its statutory authority in some respect; use of an extraordinary writ, however, cannot be extended to actually telling the commission what action to take.” Id.

Harrelson, 725 So.2d at 773-74. See also Scott v. Stater, 707 So.2d 182, 185 (Miss.1997) (affirming circuit court’s issuance of a restraining order preventing a mayor from suspending a properly appointed judge for violations of the Judicial Code of Conduct; only constitutional avenue of relief was to file a formal complaint with the Judicial Performance Commission).

¶ 15. The complaint filed against Bell in the chancery court alleges that, during the course of the campaign, he made “false and misleading statements” which were “in violation of Canon 5 of the Mississippi Code of Judicial Conduct and ... Bell’s oath taken pursuant to Section 23-15-977.1 of the Mississippi Election Code.” It is, of course, within the prerogative of the Legislature to create a civil cause of action for lying while running for public office. However, were it to do so, it is not likely that our courts — at their current operational and budgetary levels — could handle the additional caseload. We do note, though, that the plaintiffs were not without a forum within which to seek a remedy.

III.

¶ 16. According to its Preamble, the Mississippi Code of Judicial Conduct (“Code”), adopted April 2, 2002, establishes “standards of ethical conduct of judges.” The Preamble further provides that the Code “is not designed or intended as a basis for civil liability or criminal prosecution.”

¶ 17. The Commission on Judicial Performance (“Commission”), established by Article 6, Section 177A of the Mississippi Constitution, receives and investigates certain complaints against judges, including “conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” Miss. Const, art. 6, § 177A. Thus, alleged violations of the Canons fall within the Commission’s scope and authority. The Commission, however, has no authority to discipline or sanction judges or candidates for judicial office. Instead, the Commission makes recommendations to this Court, which is constitutionally empowered to exercise oversight over the judiciary and ultimately to determine the discipline of judicial officers for violations of the Canons.

¶ 18. In promulgating the Canons, this Court established a Special Committee on Judicial Election Campaign Intervention (“Special Committee”) “whose responsibility shall be to issue advisory opinions and to deal expeditiously with allegations of ethical misconduct in campaigns for judicial office.” Miss.Code of Judicial Conduct Canon 5(F). Absent legislative enactment imposing criminal or civil liability for violation of the Canons, the circuit and chancery courts have no power to grant relief for such alleged violations. Finding no such statute, we hold that an alleged violation of the Canons is not cognizable as a cause of action before our trial courts, but rather must be pursued through the Commission or the Special Committee.

IV.

¶ 19. The plaintiffs also accuse Bell of violating Section 23-15-977.1 of the Mississippi Code, which requires candidates for judicial office to sign a “pledge under oath and under penalty of perjury.” Plaintiffs do not allege that Bell failed to sign the pledge recited in the statute, so we must assume they claim he violated the pledge. The only remedy provided in the statute for offering false information in the pledge or oath is a criminal action for perjury. The statute provides no civil claim or cause of action for the failure of a candidate to fulfill the pledge or oath. Because (as the plaintiffs argued and the chancellor correctly found) the chancery courts do not hear criminal cases, they are powerless to adjudicate a criminal charge of perjury. See Miss. Const, art. 6, § 159.

CONCLUSION

¶ 20. Based upon the authorities and discussion herein, this Court dissolved the temporary restraining order issued by the Hinds County Chancery Court.

¶ 21. TEMPORARY RESTRAINING ORDER VACATED.

WALLER AND COBB, P.JJ., CONCUR. RANDOLPH, J., CONCURS IN RESULT ONLY. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION. SMITH, C.J., EASLEY, CARLSON AND GRAVES, JJ., NOT PARTICIPATING.

DIAZ, Justice,

Dissenting.

¶ 22. By refusing to address the merits of this case, the majority fails to recognize that any wrong existed beyond the violation of a judicial canon. Once Respondents sought relief via the Special Committee, and the Committee failed to act as required by Canon 5, the Respondents had a right to seek equitable relief in the chancery court.

¶ 23. First, while the First Amendment certainly protects political speech, States may restrict false and misleading statements provided that the restriction comports with strict scrutiny. See Republican Party of Minn. v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (finding that the Minnesota Code of Judicial Conduct’s “announce clause,” prohibiting candidates for judicial office from announcing her views on a contested issue, violated the First Amendment); Brown v. Hartlage, 456 U.S. 45, 53-54, 102 S.Ct. 1523, 1529, 71 L.Ed.2d 732, 741 (1982) (‘When a State seeks to restrict directly the offer of ideas by a candidate to the voters, the First Amendment surely requires that the restriction be demonstrably supported by not only a legitimate state interest, but a compelling one, and that the restriction operate without unnecessarily circumscribing protected expression.”).

¶ 24. Second, the majority incorrectly finds that Respondents were without “some legal or equitable claim which [would], at some point, proceed to the merits.” Our Canons require the Special Committee to take action when a judicial candidate is suspected of violating the Code of Judicial Conduct, therefore, Respondents had a claim which should have proceeded on the merits. Miss.Code of Judicial Conduct Canon 5(F)(4) (2006). By issuing the TRO, the chancellor correctly found that there was no adequate remedy at law. Moore v. Sanders, 558 So.2d 1383, 1385 (Miss.1990) (the basis for injunctive relief is inadequacy of a remedy at law).

¶ 25. Third, the majority mischaracter-izes the jurisdiction of our chancery courts. The finding that “the equitable jurisdiction and power of the chancery court is limited to the system of justice administered by England’s high court of chancery,” is a misapprehension of our judicial system. The jurisdiction of our chancery courts is not limited to the definition of equity as it existed in nineteenth century England. There are in fact three sources of our chancery court’s subject matter jurisdiction: (1) the Mississippi Constitution; (2) statutory law; and (3) case law. See Bridges & Shelson, Griffith Mississippi Chancery Practice (2000 Ed.) § 24. Fourth, by holding that election matters do not fall within the chancery court’s equitable jurisdiction, the majority fails to mention the cases where this Court has found chancery jurisdiction proper. In Adams Cty. Election Comm’n v. Sanders, 586 So.2d 829, 831 (Miss.1991), we held that state courts, including chancery courts, had concurrent jurisdiction with the federal courts to consider whether Section 5 of the Voting Rights Act applied to changes in election procedures. This Court previously had decided Carter v. Luke, 399 So.2d 1356 (Miss.1981) and Lovorn v. Hathorn, 365 So.2d 947 (Miss.1978), which involved chancery review of similar election matters. Though the cases later were consolidated for review by the Supreme Court in Hathorn v. Lovorn, 457 U.S. 255, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982), they were never reversed for lack of proper jurisdiction. Moreover, ample evidence exists that candidates for judicial election historically have sought equitable relief from our chancery courts in election matters. See Leslie Southwick, The Least of Evils for Judicial Selection, 21 Miss. C.L.Rev. 209, 226-35 (2002) (summarizing the 2000 Supreme Court campaigns where candidates sought injunctive relief in chancery courts to curb United States Chamber of Commerce television advertisement).

¶ 26. Fifth, and contrary to the majority’s holding, there is no need for the Legislature to create a civil cause of action for making misrepresentations while running for public office. A chancery court may issue an injunction in the absence of a statutory or constitutional violation, as the absence of a remedy at law is the very nature of equity jurisdiction. Equity is defined by Black’s Law Dictionary as “|j]ustice administered according to fairness as contrasted with the strictly formulated rules of common law.” Black’s Law Dictionary 484 (5th ed.1979). Legislative action is not needed because “there is always jurisdiction in equity to afford relief for all rights withheld or wrongs done or impendingly threatened to be done. If there is no plain, adequate and complete remedy at law, litigants may resort to equity.” Griffith § 24(c) (emphasis supplied).

¶ 27. Finally, judicial elections are unique in that both the Legislature and this Court have taken steps to remove them from the political realm. In 1994, the Legislature adopted the Nonpartisan Judicial Election Act, prohibiting judicial candidates from aligning themselves with political parties. Miss.Code Ann. §§ 23-15-974 through 23-15-981 (Supp.2006). Eight years later, this Court established the Special Committee on Judicial Election Campaign Intervention to oversee alleged misconduct in judicial campaigns, with this Court having ultimate authority over judicial candidates. Miss.Code of Judicial Conduct Canon 5(F)(4) (2006). The unique nature of judicial elections undermines the majority’s reliance on the doctrine of nonjudicial interference in political matters.

¶ 28. Since Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), we have rejected the argument that elections were political questions outside the reach of the courts. See, e.g., Boyd v. Tishomingo Cty. Democratic Exec. Comm. & Members, 912 So.2d 124 (Miss.2005) (upholding circuit court’s judgment affirming primary election results); Waters v. Gnemi, 907 So.2d 307 (Miss.2005) (circuit court’s order authorizing a special election was proper); Barbour v. Gunn, 890 So.2d 843, 846 (Miss.2004) (circuit court had authority to hear election contest); Grist v. Farese, 860 So.2d 1182 (Miss.2003) (affirming circuit court’s determination that former chancellor was not qualified to run for district attorney); In re Proposed Initiative Measure No. 20 v. Mahoney, 714 So.2d 397 (Miss.2000) (holding that circuit courts could judge constitutionality of ballot initiatives); City of Grenada v. Harrelson, 725 So.2d 770 (Miss.1998) (circuit court had jurisdiction to enjoin elections that violated statutory requirements).

¶ 29. However, the majority relies on the pre-Baker decisions of Howard v. Sheldon, 151 Miss. 284, 294, 117 So. 839 (1928), and Ramey v. Woodward, 90 Miss. 777, 781, 44 So. 769, 769 (1907), for the proposition that “our courts have consistently refused to adjudicate election disputes.” This misstates modern election law by focusing on antiquated interpretations of nonjusticiability. We have clearly moved away from such a position, particularly where judicial elections are concerned.

¶ 30. For the foregoing reasons, the chancery court had jurisdiction to provide an equitable remedy once the Special Committee failed to act.

      . Attached to Bell’s petition were the pleadings filed in the chancery court proceeding.

      . Our analysis of equity jurisdiction may not fairly be read to imply that a chancery court’s jurisdiction is limited to equity matters. As our discussion above recognizes, the Mississippi Constitution and numerous statutes detail a variety of non-equity matters over which a chancery court may properly exercise its jurisdiction. However, neither the Mississippi Constitution nor any statute or rule of equity grants to our chancery courts the power to issue an order restraining a judicial candidate from violating the Code of Judicial Conduct.

      . Similarly, we find no authority which suggests that the chancery courts in Mississippi exercised jurisdiction over election disputes prior to adoption of the Mississippi Constitution in 1890. The Mississippi Supreme Court held in 1874 "that the constitution confers upon the chancery court full jurisdiction of all matters in equity, and equity is defined to be that system of justice which is administered by the high court of chancery in England in the exercise of its extraordinary jurisdiction.” Smith v. Everett, 50 Miss. 575, 579 (1874), overruled on other grounds by Bank of Miss. v. Duncan, 52 Miss. 740, 748-49 (1876).

      . Nor does the challenge relate to divorce and alimony; matters testamentary and of administration; minor's business; or cases of idiocy, lunacy, or persons of unsound mind. See Miss. Const. art. 6, § 159.

      . We, of course, do not contend that the judiciary must shy away from all matters of a political nature. The Harrelson quote above explains as much. However, as the cases cited by the dissent demonstrate, our courts have noted probable jurisdiction in election cases only to enforce a statutory or constitutional requirement or prohibition. We find no case where this Court has allowed a trial court to take jurisdiction over a violation of the Code of Judicial Conduct. This Court, of course, takes jurisdiction over matters from the Judicial Performance Commission, as provided by the Mississippi Constitution.

      . Although the Code and its five Canons ordinarily address the conduct of judges, Canon 5 specifically applies to the conduct of “a judge or a candidate for election to judicial office.”

      . In addition to Article 6 Section 159 cited by the majority, the Constitution grants chancery courts jurisdiction over six additional matters. Miss. Const. Art. 6 §§ 160-61. Through roughly 200 statutes, our Legislature has added to the original equity jurisdiction of the chanceiy court. Griffith § 24a. It has long been understood that ''[t]he legislature may add new equity powers to those established by the Constitution.” Davis v. Davis, 194 Miss. 343, 346, 12 So.2d 435, 436 (1943).


text:
    The MISSISSIPPI BAR v. Judith Kristie SMITH-MILLER.
    No. 2006-BD-02028-SCT.
    Supreme Court of Mississippi.
    March 19, 2007.
   ORDER

¶ 1. The Mississippi Bar has filed a Formal Complaint pursuant to Rule 6 of the Rules of Discipline for the Mississippi State Bar (MRD), seeking disbarment of attorney Judith Kristie Smith-Miller, who pled guilty to the crime of accessory after the fact in violation of Miss.Code Ann. § 97-1-5 (Rev.2006). Upon acceptance of Smith-Miller’s guilty plea to Count II in cause number 2006-0240, the Circuit Court of Madison County, Mississippi, Judge Sa-mac S. Richardson presiding, sentenced Smith-Miller to serve a term of five years in the custody of the Mississippi Department of Corrections and to pay court costs in the amount of $354.50; however, the last four years of this sentence were to be served on supervised probation pursuant to statute. In addition, the circuit court ordered Smith-Miller to “voluntarily surrender her license to practice law as a member of the Mississippi Bar within 30 days of the filing of a formal complaint by the State Bar.” We conclude that all procedural prerequisites have been met and order disbarment.

I.

¶ 2. The Bar, on its own initiative, filed the present Formal Complaint against Smith-Miller on November 30, 2006. In this Formal Complaint, the Bar requested that Smith-Miller be disbarred based on the 2006 felony conviction. On December 6, 2006, Smith-Miller filed her Notice of Irrevocable Resignation effectively resigning from the practice of law in the State of Mississippi pursuant to MRD 10.5. This Notice was approved as to form by Smith-Miller’s attorney, as indicated by her attorney’s signature on the Notice. In this Notice, Smith-Miller stated, inter alia, that “I do not desire to defend this matter. I hereby request permission to irrevocably resign with prejudice from the Mississippi Bar in accordance with Rule 10.5, MRD.”

II.

¶ 3. MRD 6(a) states in pertinent part that whenever any attorney enters a plea of guilty to any felony (other than manslaughter), the judgment of conviction “shall be conclusive evidence” of the attorney’s guilt. MRD 6(a) likewise states that the Supreme Court “shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.” MRD 6(a). Smith-Miller pled guilty to the felony offense of accessory after the fact, and the circuit judge forthwith accepted Smith-Miller’s guilty plea and entered a judgment of conviction and sentence. Therefore, there is unquestionably before this Court conclusive evidence of Smith-Miller’s guilt as required by MRD 6(a).

¶ 4. MRD 10.5 states, inter alia:

An attorney may tender an irrevocable resignation to either the Court or the Tribunal.... Upon receipt of such a 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 the 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.

Because of Smith-Miller’s filing of her Notice of Irrevocable Resignation in compliance with MRD 10.5, this Court must enter an order disbarring Smith-Miller.

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

1. Judith Kristie Smith-Miller is hereby DISBARRED from the practice of law in the state of Mississippi.
2. This order shall constitute notice of disbarment in this cause.
3. 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 Madison County, Mississippi, and the Senior Judge of each court shall enter this order upon the minutes of their respective courts.
4. The Clerk of the Supreme Court of Mississippi shall likewise immediately forward an attested copy of this order to the Clerks of the United States District Courts for the Northern and Southern Districts of Mississippi, the Clerk of the United States Court of Appeals for the Fifth Circuit, and the Clerk of the Supreme Court of the United States.
5. Costs of these proceedings are hereby assessed against Judith Kristie Smith-Miller.

¶ 6. SO ORDERED, this the 19th day of March, 2007.

/s/George C. Carlson, Jr. GEORGE C. CARLSON, JR., JUSTICE

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.