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Final Disciplinary Actions਍ഀ
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whether or not it is intentional. Id. at 876. violate or attempt violate the rules of pro-
The Court has previously explained that
whenever a lawyer commingles his funds
with his clients he can always claim that
any check he wrote for his personal ben-
efit came from his money in the account
as opposed to the client’s money, and
there often no way to prove otherwise.
Miss. State Bar Assn v. Moyo, 525 So.
2d 1289, 1297 (Miss. 1988). This is why
comingling is an unethical practice of
the most serious order and conversion
is inferred from the commingling. Id.
When a lawyer receives funds belonging
to another, deposits those funds into his
trust account and prior to disbursement
the trust account shows a total deposit less
than the amount entrusted, the attorney
has converted funds to an unauthorized
use. Reid v. Miss. State Bar, 586 So. 2d
786, 788 (Miss. 1991). Restitution of
funds previously misappropriated does
not mitigate the offense. Cotton v. Miss.
Bar, 809 So. 2d 582, 587 (Miss. 2000).
Mr. Smith failed to prevent the commin-
gling of funds in his lawyer trust accounts
and failed to safekeep the funds of clients
and third parties. Mr. Smith paid multiple
personal and business expenses from his
lawyer trust account. Mr. Smith’s failure
to maintain proper trust account records
renders it impossible to know what money
belonged to who at any given time in
his lawyer trust account. Each time Mr.
Smith paid a personal or business expense
from his lawyer trust accounts he con-
verted funds for his own personal benefit,
regardless of his intent at the time of the
transaction. Mr. Smith’s lawyer trust
account was overdrawn on multiple occa-
sions. Each time his lawyer trust account
dipped below the amount entrusted, Mr.
Smith converted funds to an unauthor-
ized use, regardless of the length of time
the account remained in overdraft and
regardless of Mr. Smith’s intent at the
time of the transaction. Mr. Smith’s com-
mingling of his funds with the funds of
others and conversion of those funds for
his own personal benefit are a violation
of Rule 1.15(a), MRPC. Mr. Smith failed
to maintain any record that would demon-
strate the ownership of funds, much less
seven years of records in violation of Rule
1.15(a), MRPC.
Rule 8.4(a), MRPC, provides that it is
professional misconduct for a lawyer to
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36 Summer 2016
fessional conduct. Rule 8.4(d), MRPC,
states it is professional misconduct for a
lawyer to engage in conduct that is preju-
dicial to the administration of justice.
There is no more damaging evidence
as to a lawyer’s fitness to practice law
than his mishandling of his trust account.
McIntyre v. Miss. Bar, 38 So. 3d 617, 625
(Miss 2010). The dignity and reputation
of the legal profession is dependent on
the trustworthiness and reliability of its
lawyer members. Id. at 626. Mr. Smith’s
mishandling of his lawyer trust accounts
casts doubt on the profession as a whole
and threatens the administration of jus-
tice.
Donald Jason Embry of Long Beach
Mississippi: A Complaint Tribunal਍ഀ
appointed by the Supreme Court of
Mississippi entered a Default Judgment
and issued a Three (3) Year Suspension
from the practice of law in Cause No.
2015-B-447 for violations of Rules 1.2(a),
1.3, 1.4(a), 1.5(a), 1.15(a), 1.16(d), 8.1(b) pursued. Rule 1.3, MRPC, provides that਍ഀ
and 8.4(a and d) of the Mississippi Rules
of Professional Conduct (MRPC).
Mr. Embry was hired to represent a cli-
ent in an appeal of a DUI II convic-
tion to the County Court of Harrison
County, Mississippi. Mr. Embry entered
his appearance in the appeal. However,
Mr. Embry failed to advise the client of
the court date for the trial. As a result,
neither the client nor Mr. Embry appeared
for the trial and the judge issued a writ of
procedendo. The client was placed in jail.
The client was then forced to hire another
lawyer to file a petition for a writ of habe- lawyer shall maintain complete records of਍ഀ
as corpus. The new lawyer attempted to
retrieve the file from Mr. Embry, but Mr.
Embry failed or refused to communicate
with the client or the new attorney. In
essence, Mr. Embry abandoned his client.
Mr. Embry’s contract of representation
with the client provided that he would
represent him at a rate of $150.00 per
hour and charge him for a nonrefundable
retainer in the amount of $1,500.00. The
funds received for the retainer should
have been placed in Mr. Embry’s lawyer
trust account and billed against at the
hourly rate. On information and belief,
Mr. Embry failed to put the retainer funds
into his lawyer trust account. Further, Mr.
Embry did not earn the amount of the fees
received for the retainer.਍ഀ
On September 2, 2014, the Bar sent Mr.਍ഀ
Embry a copy of a Bar complaint and a਍ഀ
demand for a response. The Bar resent the਍ഀ
Bar complaint and demand to Mr. Embry਍ഀ
on September 16, 2014. On September਍ഀ
30, 2014, Mr. Embry sent the Bar a਍ഀ
request for additional time to respond to਍ഀ
the Bar complaint. In spite of his request਍ഀ
for additional time to respond and subse-਍ഀ
quent demands for a response, Mr. Embry਍ഀ
failed to respond to the Bar complaint. In਍ഀ
addition to the written demands, the Bar਍ഀ
unsuccessfully attempted to contact Mr.਍ഀ
Embry by telephone to solicit a response.਍ഀ
The Bar left messages for Mr. Embry on਍ഀ
at least two occasions. On a third occa-਍ഀ
sion, Mr. Embry initially answered the਍ഀ
telephone, but disconnected the call upon਍ഀ
the Bar’s disclosure of its identity.਍ഀ
Rule 1.2(a), MRPC, provides that a law-਍ഀ
yer shall abide by a client’s decisions਍ഀ
concerning the objectives of representa-਍ഀ
tion and shall consult with the client as਍ഀ
to the means by which they are to be਍ഀ
a lawyer shall act with reasonable dili-਍ഀ
gence and promptness in representing a਍ഀ
client. Rule 1.4(a), MRPC, provides that਍ഀ
a lawyer shall keep a client reasonably਍ഀ
informed about the status of a matter਍ഀ
and promptly comply with reasonable਍ഀ
requests for information. Rule 1.5(a),਍ഀ
MRPC, requires a lawyer’s fee to be rea-਍ഀ
sonable. Rule 1.15(a), MRPC, which pro-਍ഀ
vides that a lawyer shall hold the property਍ഀ
of clients and third parties separate from਍ഀ
the lawyers own property. The lawyer਍ഀ
must identify this other property and safe-਍ഀ
guard it. The rule also provides that the਍ഀ
trust account funds for a period of seven਍ഀ
years following termination of the repre-਍ഀ
sentation. Rule 1.16(d), MRPC, provides਍ഀ
that upon termination of representation,਍ഀ
a lawyer shall take reasonable steps rea-਍ഀ
sonably practicable to protect a client’s਍ഀ
interests, such as surrendering papers and਍ഀ
property to which the client is entitled.਍ഀ
Rule 8.1(b), MRPC, provides that a law-਍ഀ
yer shall not fail to disclose a fact neces-਍ഀ
sary 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 by a disciplinary਍ഀ
authority. Rule 8.4(a) and (d), MRPC,਍ഀ
provides that it is professional miscon-਍ഀ
duct for a lawyer to violate or attempt਍ഀ
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