No No Nanette

The Tennessee Board of Professional Responsibility has issued a notice concerning reciprocal discipline based on a one-year suspension in Mississippi.

The Mississippi Supreme Court Complaint Tribunal had found (linked here and here)

Mr. Moore settled the wrongful death claim filed in the United States District Court for the Southern District of Mississippi, Northern Division, on or about September 21, 2018, for $300,000.00. Those funds were deposited in Mr. Moore’s IOLTA Account. Upon receipt of the funds, Mr. Moore failed to make any attempts to contact Jamuric Mallard to give notice. Jamuric Mallard was incarcerated at the time, so his whereabouts were known. However, Mr. Moore did not send any letters notifying Jamuric Mallard of the wrongful death settlement funds or serve him with any pleadings to approve or disburse the settlement funds, as no such pleadings were filed at that time. There is no evidence that Jamuric Mallard had actual notice of the receipt of wrongful death settlement funds in 2018 prior to Mr. Moore’s disbursement of the full amount to Nanette Mallard from his IOLTA account. Therefore, Mr. Moore violated Rule 1.15(b), MRPC, by failing to promptly notify a third person of receipt of funds in which the third person has an interest.

On October 1, 2018, Nanette Mallard signed an Acknowledgement of Conclusion of Representation and Disbursement Authority and Direction, etc. which was drafted by Mr. Moore’s office. The document outlined the disbursement of funds from Mr. Moore’s IOLTA account as follows: attorney fees to Moore Law Group in the amount of $65,000.00; expenses to Moore Law Group in the amount of $11,000.00; attorney fees to Mike Carr in the amount of $34,650.00; expenses to Mike Carr in the amount of $708.50; lien to Oasis in the amount of $6,950.00; and remainder to the heirs, consisting of Nanette Mallard in the amount of $90,845.75 and Jamuric Mattard in the amount of $90,845.75. Mr. Moore disbursed the portion belonging to Jamuric Mallard to Nanette Mallard from his IOLTA account.

Mr. Moore testified that he personally delivered the check for $181,691.50 to Nanette Mallard in 2018. He stated that he told Nanette Mallard to keep Jamuric Mallard’s portion of the funds until they could be disbursed to Jamuric, but did not assist her in setting up an estate account or give her any specific instructions on how to keep the funds. More than two and a half years later, Jamuric Mallard’s attorney contacted Mr. Moore regarding the whereabouts of Jamuric Mallard’s portion of the wrongful death settlement proceeds and was told he would need to enter an appearance in the Estate of Jamaal Mallard, Deceased. On July 2, 2021, Jamuric Mallard, through counsel, filed a Petition to Provide Accounting and inventory. One week later, on July 9, 2021, Mr. Moore transferred $90,845.75 of his own personal funds into his IOLTA account and wrote a check to Jamuric Mallard for the same amount. Mr. Moore did not speak with Nanette Mallard prior to paying the funds to Jamuric Maltard, even though it is his testimony that he told her to deposit the funds.  Mr. Moore testified that he read Rule 1.15 of the Mississippi Rules of Professional Conduct and determined that he had to pay it. Mr. Moore learned on January 11, 2022, during the Zoom hearing with Chancellor Owens that Nanette Mallard had converted the funds belonging to Jamuric Mallard to her own personal use.

Aggravating factors

An aggravating factor present in this case is Mr. Moore’s prior discipline for similar misconduct. On September 30, 2019, an Agreed Opinion and Judgment was entered publicly reprimanding Mr. Moore in Supreme Court of Mississippi Cause Number 2018-6-1485. In that case, Mr. Moore represented a building contractor with a BP oil spill claim. The client took out a loan in 2013 to buy a bulldozer. The loan was secured by a security interest in the bulldozer and an assignment in the BP oil spill claim. Mr. Moore received a copy of the assignment and signed an acknowledgment. In 2016, settlement proceeds were disbursed to Mr. Moore’s client without payment of the lien. Mr. Moore received a public reprimand for violations of Rules 1.15(a) and 1.15(b), MRP-C.

Another aggravating factor is Mr. Moore’s refusal to take responsibility for his misconduct and his lack of remorse. Through his testimony, Mr. Moore has indicated his actions were intentional and believes he has done nothing wrong. This aspect was particularly troubling to the members of the Tribunal.

Mr. Moore may argue that payment of the $90,845.75 to Jamuric Mallard from his own personal funds in 2021 is a mitigating factor. As has already been discussed, “restitution by an attorney of funds previously misappropriated does not mitigate the offense.” Cotton v. Mississippi Bar, 809 So.2d 582, 587 (Miss. 2000) (quoting Clark v. Mississippi Bar, 471 So. 2d 352, 357 (Miss. 1985)).

Mr. Moore has indicated that he will offer the following as mitigating factors in this case: his service to the Mississippi Bar as a member of the Ethics Committee, as a Bar Commissioner, and as Chair of the Workers’ Compensation Committee; his service to the National Bar Association, including his time as President for the 2021-2022 year; and his willingness to take on controversial cases. None of these facts negate Mr. Moore’s misconduct in this case. If anything, Mr. Moore’s service on the Mississippi Bar’s Ethics Committee should have heightened Mr. Moore’s understanding and awareness of his responsibilities under the Mississippi Rules of Professional Conduct. 

(Mike Frisch)