Chapter 1. Architects

§ 73-1-1. License required.

In order to safeguard life, health and property, no person shall practice architecture in this state, or use the title “architect,” or any prefix, suffix or other form thereof, or any title, sign, card or device to indicate that such person is practicing architecture, or is an architect, unless such person shall have secured from the board a license as hereinafter set forth, as architect, in the manner hereinafter provided, and shall thereafter comply with the provisions of this chapter.

HISTORY: Codes, 1942, § 8632-01; Laws, 1954, ch. 320, § 1; Laws, 1976, ch. 363, § 1; reenacted, Laws, 1983, ch. 377, § 1, eff from and after July 1, 1983.

Cross References —

Authority of a board of supervisors of a county to enter into contracts for professional services with architects licensed by the State Board of Architecture, see §19-3-69.

Disciplinary procedures and penalties for a violation of this section, see §73-1-29.

JUDICIAL DECISIONS

1. In general.

An architect is required to exercise ordinary professional skills and diligence and such duty is nondelegable. U.R.S. Co. v. Gulfport-Biloxi Regional Airport Authority, 544 So. 2d 824, 1989 Miss. LEXIS 253 (Miss. 1989).

A licensed and registered architect who undertakes a project is alone responsible, and delegates any part of his duties at his peril. State Board of Registration v. Rogers, 239 Miss. 35, 120 So. 2d 772, 1960 Miss. LEXIS 263 (Miss. 1960).

RESEARCH REFERENCES

ALR.

Practice of architecture by corporation. 56 A.L.R.2d 726.

What amounts to architectural or engineering services within license requirements. 82 A.L.R.2d 1013.

Architect’s liability for personal injury or death allegedly caused by improper or defective plans or design. 97 A.L.R.3d 455.

Am. Jur.

5 Am. Jur. 2d, Architects §§ 1 et seq.

2 Am. Jur. Pl & Pr Forms (Rev), Architects, Forms 1 et seq.

CJS.

6 C.J.S., Architects §§ 2 et seq.

Practice References.

The American Institute of Architects Legal Citator (Matthew Bender).

§ 73-1-3. Definitions.

For purposes of this chapter, the following terms shall have the meaning ascribed herein unless the context otherwise requires:

“Board” means the State Board of Architecture.

“Architect” means a person who engages in the practice of architecture as hereinafter defined.

A person engaging in the practice of architecture, within the meaning and intent of this chapter, is one who holds himself out as able to perform any professional service such as planning, design, including aesthetic and structural designs, and consultation in connection therewith, or responsible inspection of construction, in connection with (except as specifically exempted herein) any buildings, structures, or projects, or the equipment or utilities thereof, or the accessories thereto, wherein the safeguarding of life, health or property is concerned or involved, when such professional service requires the application of the art and science of construction based upon the principles of mathematics, aesthetics, functional planning, and the physical sciences; provided that nothing in this definition shall be construed as encompassing or limiting the practice of engineering as that practice is provided for under the laws of this state.

“Registrant” means architect or registered architect.

HISTORY: Codes, 1942, §§ 8632-02, 8632-20; Laws, 1954, ch. 320, §§ 2, 20; Laws, 1976, ch. 363, § 2; reenacted, Laws, 1983, ch. 377, § 2; Laws, 1988, ch. 578, § 1, eff from and after July 1, 1988.

Cross References —

Payment and deposit in state treasury of funds received by state board of architecture, see §73-1-43.

Regulation of practice of engineering, see §§73-13-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Practice of architecture, as defined in Miss. Code Section 73-1-3(c), does not specifically include preparation of land subdivision plans, storm water management, grading, drainage or erosion and sediment control plans; Miss. Code Section 73-1-3(c) does includes within “practice of architecture” planning of buildings, structures or projects or equipment or utilities thereof or the accessories thereto; “buildings”, “structures”, “projects”, “utilities” and “accessories” are not defined by Miss. Code Section 73-1-3(c), therefore, architects are authorized to prepare and submit site and subdivision plans. Kilpatrick, Jan. 8, 1993, A.G. Op. #92-0964.

RESEARCH REFERENCES

ALR.

Architect’s liability for personal injury or death allegedly caused by improper or defective plans or design. 97 A.L.R.3d 455.

Am. Jur.

5 Am. Jur. 2d, Architects §§ 1, 2.

CJS.

6 C.J.S., Architects § 1.

Practice References.

The American Institute of Architects Legal Citator (Matthew Bender).

§ 73-1-5. Appointment of state board of architecture.

The State Board of Architecture is composed of five (5) members who are licensed architects residing in this state and who have been engaged in the practice of architecture not less than seven (7) years. It is the duty of the board to carry out the purposes of this chapter as herein provided.

The Governor shall appoint the members of the board, and each member shall serve for a term of five (5) years. The terms shall be staggered so that the term of not more than one (1) member shall expire each year on June 1.

Each member shall hold over after the expiration of his term until his successor is duly appointed and qualified. The Governor shall fill any vacancy occurring in the membership of the board for the unexpired term of such membership. The Governor may remove any of the members of said board for inefficiency, neglect of duty or dishonorable conduct.

HISTORY: Codes, 1930, § 3611; 1942, § 8632-03; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 3; reenacted without substantive change, Laws, 1983, ch. 377, § 3; Laws, 1988, ch. 578, § 2, eff from and after July 1, 1988.

Cross References —

General powers and duties of governor, see §7-1-5.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Architects §§ 3 to 5.

§ 73-1-7. Organization, oath and bond of treasurer.

The members of the board shall, before entering upon the discharge of their duties, take and subscribe an oath before any officer authorized to administer oaths in the state, for the faithful performance of duty, and file same with the Secretary of State. The members of the board shall as soon as possible, after their appointment and qualification, meet and shall annually thereafter in the month of January elect from their number a president, and a secretary who shall also be treasurer. The treasurer shall file a bond in the penal sum of Three Thousand Dollars ($3,000.00) with the Secretary of State, such bond to be accepted and approved by the Secretary of State before the treasurer shall enter upon the duties of his office.

HISTORY: Codes, 1930, § 3612; 1942, § 8632-04; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 4; reenacted without change, Laws, 1983, ch. 377, § 4; Laws, 1988, ch. 578, § 3, eff from and after July 1, 1988.

§ 73-1-9. Rules, records, seal, quorum of board.

The board shall adopt all necessary rules, regulations and bylaws to govern its proceedings not inconsistent with this chapter or the laws of this state. The board shall adopt a seal, and the secretary shall have the care and custody thereof, and shall keep a record of all proceedings of the board, which shall always be open to public examination. Three members of the board shall constitute a quorum.

HISTORY: Codes, 1930, § 3613; 1942, § 8632-05; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 5; reenacted without substantive change, Laws, 1983, ch. 377, § 5, eff from and after July 1, 1983.

§ 73-1-11. Compensation and expense of board.

The board is hereby authorized to pay from registration and other fees provided for herein the expenses of said board and the office thereof, the examinations held by said board, the bond premium of the treasurer, the pay of clerks or assistants hired by the board in the performance of its duties, attorney’s fees for services rendered in connection with the affairs of the board, and fees and necessary expenses incident to cooperation with national boards and like boards of other states, and in no case shall any of such fees or expenses be paid by the state of Mississippi or be charged against said state.

The members of the board shall be entitled to receive a per diem in such amount as shall be set by resolution of the board but not to exceed the amount provided for in Section 25-3-69, and shall be entitled to be reimbursed for their traveling expenses and hotel expenses incurred in the pursuance of their duties. The secretary and treasurer of said board shall receive such annual compensation as shall, by resolution adopted by the board, be provided by the board, subject to the approval of the state personnel board.

HISTORY: Codes, 1930, § 3614; 1942, § 8632-06; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 6; reenacted and amended, Laws, 1983, ch. 377, § 6, eff from and after July 1, 1983.

Cross References —

Annual certificate of renewal fees, see §73-1-27.

Payment and deposit in state treasury of funds received by state board of architecture, see §73-1-43.

§ 73-1-13. Rules and regulations for examination and registration.

  1. The board shall adopt rules and regulations for the eligibility, examination and registration of applicants desiring to practice architecture in accordance with this chapter and may amend, modify or repeal such rules and regulations.

    The board shall receive applications for registration as an architect only on forms prescribed and furnished by the board and upon receipt of such application may approve such applicant, providing such applicant meets the following requirements:

    1. The applicant must have a professional degree in architecture from a school or college of architecture on the list of accredited schools of architecture issued by the National Architectural Accrediting Board;
    2. The applicant must have been enrolled for a minimum of one (1) year in, and have completed all requirements of, a practical work internship program patterned after the National Council of Architectural Registration Boards intern-architect development program that will be prepared, adopted and approved by the board and must have received from the board a certification by the board that the applicant has met or exceeded the work requirements of the board. The internship work program shall include but not be limited to the following subjects:
      1. Design and construction documents;
      2. Construction administration;
      3. Office management; and
      4. Related special activities.
    3. The applicant must have passed the applicable National Council of Architectural Registration Board’s examination;
    4. The applicant must have satisfied the board as to the applicant’s good standing in the profession and his moral character. Any of the following acts shall preclude an applicant’s eligibility as a candidate for registration:
      1. Conviction by any court for commission of any felony or any crime involving moral turpitude;
      2. Conviction by any court of a misdemeanor involving fraud, deceit or misrepresentation;
      3. Misstatement or misrepresentation of fact by the applicant in connection with the applicant’s application for registration in this state or another jurisdiction;
      4. Violation of any of the rules of conduct required of applicants or architects as adopted by board;
      5. Practicing architecture, or holding himself out as capable of practicing architecture, in this state in violation of the chapter.

      The board may admit an applicant otherwise precluded from consideration because of the prohibitions imposed in this paragraph (d) if the board determines that the applicant has shown clear and convincing evidence of rehabilitation and reform. Such decision is in the sole discretion of the board and upon such terms, conditions and evidence as the board may require.

      Additionally, notwithstanding the provisions of paragraph (b) of this subsection, if the applicant can provide sufficient and satisfactory evidence that he is unable to obtain the intern-architect development program certification, the board may accept in lieu thereof certification by the applicant that he has completed not less than three (3) continuous years of actual engagement in architectural work in the office or offices of a licensed architect or architects. Such certification shall be on such terms, conditions and requirements as the board may establish.

  2. The board may require that the applicant appear before the board for a personal interview.

HISTORY: Codes, 1930, § 3615; 1942, § 8632-07; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 7; Laws, 1976, ch. 363, § 3; reenacted and amended, Laws, 1983, ch. 377, § 7; Laws, 1985, ch. 337; Laws, 1988, ch. 578, § 4, eff from and after July 1, 1988.

Cross References —

Qualifications required of architects residing outside this state, see §73-1-21.

Annual certificate of renewal fees, see §73-1-27.

The disciplinary procedures and penalties for a violation of this section, see §73-1-29.

Regulation of landscape architects, see §§73-2-1 et seq.

RESEARCH REFERENCES

ALR.

Grant or denial of license to practice architecture. 2 A.L.R.4th 1103.

§ 73-1-15. Filing notice of election of officers, rules and regulations.

The board shall immediately upon the election of each officer thereof, and upon adoption, repeal or modification of its rules of government or its rules and regulations for registration of applicants, file with the secretary of state, the name and postoffice address of each officer, and a copy of such rules and regulations or the amendments, repeal or modifications thereof.

HISTORY: Codes, 1930, § 3616; 1942, § 8632-08; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 8; reenacted without change, Laws, 1983, ch. 377, § 8, eff from and after July 1, 1983.

§ 73-1-17. Architect registration examination.

Applicants for registration by examination must pass the Architect Registration Examination as provided below. The board shall administer the Architect Registration Examination, as prepared by the National Council of Architectural Registration Boards, to all candidates who have been approved by the board in accordance with the training and educational requirements pertaining to registration by examination. The examination must be administered in compliance with those methods and procedures recommended by the National Council of Architectural Registration Boards and adopted by the board. Examinations will be administered by the board to approved candidates only.

An application for examination shall be made upon forms prescribed and furnished by the board. The board shall consider such application only if the applicant has met all training and educational requirements pertaining to registration by examination, has furnished a completed council record from the National Council of Architectural Registration Boards, and has supplied any additional evidence or information required by the board. Failure to supply such additional evidence or information within a specific time set by the board may be considered just and sufficient cause for denial of the application.

The Architect Registration Examination must be graded in accordance with the methods and procedures recommended by the National Council of Architectural Registration Boards. To achieve registration, an examination candidate shall pass all sections of the examination with the minimum score specified by the National Council of Architectural Registration Boards.

Once registration is granted an applicant, all examination materials held in the applicant’s file shall be destroyed. The only information retained shall be the actual test results and the date of examination. The examination materials for unsuccessful candidates shall be held until such candidates have passed all sections of the Architect Registration Examination. If a candidate fails to take three (3) consecutive examinations, then the only information retained in such candidate’s file shall be the actual scores of the attempted sections along with the dates such examinations were taken. All other material must be destroyed.

The board may adopt such other rules and regulations pertaining to the administration, grading, cost and fees of the examination as the board may deem proper.

Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64, Mississippi Code of 1972.

HISTORY: Codes, 1930, § 3617; 1942, § 8632-09; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 9; Laws, 1976, ch. 363, § 4; reenacted and amended, Laws, 1983, ch. 377, § 9; Laws, 1988, ch. 578, § 5; Laws, 1997, ch. 588, § 23, eff from and after July 1, 1997.

Editor’s Notes —

Laws of 1997, ch. 588, § 150, effective July 1, 1997, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Cross References —

Compensation of board from registration and other fees, see §73-1-11.

Payment and deposit in state treasury of funds received by state board of architecture, see §73-1-43.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Architects §§ 3 to 5.

Practice References.

The American Institute of Architects Legal Citator (Matthew Bender).

§ 73-1-19. Practice by copartnership of architects and engineers, professional corporation, or professional limited liability company; posting certificates; persons exempt from chapter.

In the case of a copartnership of architects, or architects and engineers, or a professional corporation, or professional limited liability company, either foreign or domestic, each active member or stockholder, and each officer, director or manager, must hold a certificate to practice architecture or engineering in that member’s state of residence; and, in the case of a foreign corporation or professional limited liability company doing business in this state, at least one (1) active member or stockholder must hold a certificate to practice architecture in this state. No stock company, corporation, professional corporation or professional limited liability company shall be entitled to a certificate to practice architecture. No company other than a professional corporation or a professional limited liability company shall advertise or otherwise hold itself out to be an architect or to be authorized to practice architecture in this state.

Nothing in this chapter shall be construed as prohibiting a joint enterprise, partnership, professional corporation, professional limited liability company or association between one (1) or several registered professional engineers and/or duly registered architects; and it shall be lawful for such partnership, joint enterprise, professional corporation, professional limited liability company or association to use in its title the words architects and engineers or engineers and architects; provided, however, that all announcements, cards, stationery, printed matter and listings of such partnership, joint enterprise, professional corporation, professional limited liability company or association shall indicate as to each member whether he be a registered architect or a registered engineer; provided, further, that the name of such partnership, professional corporation, professional limited liability company or association shall contain the name of at least one (1) person who is registered as an architect in this state and that no such person be named on any announcement, card, stationery, printed matter or listing of such partnership, professional corporation, professional limited liability company or association used in this state unless there is designated thereon whether or not such person is licensed in this state. Employees of a firm who are not registered as architects, or engineers in the case of a joint enterprise, partnership, professional corporation, professional limited liability company or association between architects and engineers, may use business cards for that firm if the job title of such individual is clearly stated.

Each person holding a certificate to practice architecture in this state shall post such certificate in a prominent place in the architect’s place of business. Failure to post the certificate shall be sufficient cause for revocation of such certificate.

The following persons and practices shall be exempted from the provisions of this chapter:

Draftsmen, students, clerks-of-work and other employees of those lawfully practicing as registered architects under the provisions of this chapter acting under the instruction, control or supervision of their employers.

HISTORY: Codes, 1930, § 3618; 1942, § 8632-10; Laws, 1928, ch. 133; Laws, 1930, ch. 117; Laws, 1954, ch. 320, § 10; Laws, 1968, ch. 508, § 1; Laws, 1976, ch. 363, § 5; Laws, 1981, ch. 367, § 1; reenacted, Laws, 1983, ch. 377, § 10; Laws, 1988, ch. 578, § 6; Laws, 1994, ch. 350, § 1; Laws, 2002, ch. 331, § 1, eff from and after July 1, 2002.

Amendment Notes —

The 2002 amendment inserted “or professional limited liability company” following “professional corporation” and “foreign corporation” throughout the section; in the first paragraph, inserted “and each officer director or manager” following “each active member of stockholder” in the first sentence, and substituted “company” for “corporation” in the last sentence.

Cross References —

Penalty for practicing without certificate, see §73-1-25.

Disciplinary procedures and penalties for a violation of this section, see §73-1-29.

Reissuance of certificates, see §73-1-33.

Regulation of practice of engineering, see §§73-13-1 et seq.

Engineering corporations or partnerships, see §73-13-43.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 8632-10] operates to exempt a registered architect from also registering as an engineer where the work of the two professions overlaps. State Board of Registration v. Rogers, 239 Miss. 35, 120 So. 2d 772, 1960 Miss. LEXIS 263 (Miss. 1960).

One not registered as a professional engineer does not illegally engage in the practice of engineering by calling himself a “mechanical designer” and preparing plans for heating, ventilation, air conditioning and plumbing for buildings under instructions from supervising architects or engineers. State Board of Registration v. Rogers, 239 Miss. 35, 120 So. 2d 772, 1960 Miss. LEXIS 263 (Miss. 1960).

OPINIONS OF THE ATTORNEY GENERAL

A limited liability partnership may transact any architectural business in Mississippi. Kilpartick, Jr., Mar. 9, 2001, A.G. Op. #01-0089.

RESEARCH REFERENCES

ALR.

Validity and application of statute prohibiting use of name descriptive of engineering by business organization not practicing profession of engineering. 13 A.L.R.4th 676.

Am. Jur.

5 Am. Jur. 2d, Architects § 4.

2 Am. Jur. Pl & Pr Forms (Rev), Architects, Forms 3, 4.

CJS.

6 C.J.S., Architects § 3.

Practice References.

The American Institute of Architects Legal Citator (Matthew Bender).

§ 73-1-21. Qualifications required of architects residing outside this state.

Any architect residing outside this state may obtain a certificate to practice in the State of Mississippi by complying with Section 73-1-13, and by paying the fees prescribed by the rules of the board; however, no such nonresident applicant shall receive a certificate to practice in this state unless the applicant furnishes evidence satisfactory to the board that the applicant holds a current and valid registration issued by a registration authority recognized by the board, holds a National Council of Architectural Registration Board’s certificate, has never been restrained from practicing architecture, and has never had a certificate or license revoked. Each nonresident applicant shall submit, as a part of the application, a sworn affidavit stating that neither such applicant nor any person in, or agent of, the applicant’s firm has practiced or is practicing architectural work in this state prior to the applicant having been licensed by the board unless such person or agent holds a license to practice architecture in this state. Failure to submit this affidavit is just cause for disapproval of the application. Every applicant for reciprocity registration shall comply fully with the requirements for resident applicants, except that nonresident applicants who met the requirements for issuance of a certificate of registration by the board prior to January 1, 1987, and who, on that date, held a current and valid registration by a registration authority recognized by the board or were qualified exam candidates in another jurisdiction recognized by the board, shall not be required to meet the degree requirements of Section 73-1-13. The board shall have the further right to exercise its discretion as to whether such nonresident architect shall be issued such certificate to practice.

The issuance of a certificate by reciprocity to a military-trained applicant or military spouse shall be subject to the provisions of Section 73-50-1.

HISTORY: Codes, 1930, § 3620; 1942, § 8632-11; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 11; Laws, 1976, ch. 363, § 6; reenacted, Laws, 1983, ch. 377, § 11; Laws, 1988, ch. 578, § 7; Laws, 2000, ch. 472, § 1; Laws, 2010, ch. 361, § 1; Laws, 2013, ch. 350, § 4, eff from and after July 1, 2013.

Amendment Notes —

The 2010 amendment inserted “shall not be required to meet the degree requirements of Section 73-1-13” in the next-to-last sentence.

The 2013 amendment added the second paragraph and made a minor stylistic change.

Cross References —

Penalty for practicing without certificate, see §73-1-25.

Disciplinary procedures and penalties for a violation of this section, see §73-1-29.

Payment and deposit in state treasury of funds received by state board of architecture, see §73-1-43.

RESEARCH REFERENCES

ALR.

Right of architect or engineer licensed in one state to recover compensation for services rendered in another state, or in connection with construction in another state, where he was not licensed in the latter state. 32 A.L.R.3d 1151.

§ 73-1-23. Temporary licenses not to be issued.

No temporary license to practice shall be issued by the board, except as authorized under Section 73-50-1.

HISTORY: Codes, 1942, § 8632-12; Laws, 1954, ch. 320, § 11; Laws, 1976, ch. 363, § 7; reenacted, Laws, 1983, ch. 377, § 12; Laws, 2013, ch. 350, § 5, eff from and after July 1, 2013.

Amendment Notes —

The 2013 amendment added the exception at the end of the paragraph.

Cross References —

Disciplinary procedures and penalties for a violation of this section, see §73-1-29.

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Architects, Forms 1 et seq.

§ 73-1-25. Penalty for practicing without certificate; injunctive relief.

It is unlawful and it is a misdemeanor punishable by a fine of not exceeding One Thousand Dollars ($1,000.00) or by imprisonment of not exceeding ninety (90) days, or both, for a person to practice architecture, as defined in this chapter, without current certificate in this state, or to advertise or put out any sign or card or other device which might indicate to the public that the person is entitled to practice as an architect.

If any person, firm or corporation violates any of the provisions of this chapter, the secretary of the board shall, upon direction of a majority of the board, in the name of the State of Mississippi, acting through an attorney employed by the board, apply in any chancery court of competent jurisdiction for an order enjoining such violation or for an order enforcing compliance with the provisions of this chapter. Upon the filing of a verified petition in the proper court, such court or any judge thereof, if satisfied by the sworn petition, by affidavit or otherwise, that such person has violated this chapter, may issue a temporary injunction on five (5) days’ notice to the defendant enjoining such continued violation, and such injunction shall remain in force and effect until a final hearing. If at such hearing it is established that such person has violated, or is violating this chapter, the court may enter a decree permanently enjoining such violation or enforcing compliance with this chapter and awarding all cost and expenses, including reasonable attorney’s fees, to the board. In case of violation of any decree issued in compliance with this subsection, the court may try and punish the offender for contempt of court and shall fine the offender a sum of not less than Two Hundred Fifty Dollars ($250.00) per offense. Each day of the violation is a separate offense, and the court shall proceed as in other cases in chancery.

The proceedings in this section shall be in addition to and not in lieu of the other remedies and penalties provided in this chapter.

HISTORY: Codes, 1930, § 3621; 1942, § 8632-13; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 13; Laws, 1976, ch. 363, § 8; reenacted, Laws, 1983, ch. 377, § 13; Laws, 1988, ch. 578, § 8; Laws, 2011, ch. 387, § 1, eff from and after July 1, 2011.

Amendment Notes —

The 2011 amendment deleted former fourth sentence of (b) which read as follows: “If the enjoined party prevails, the board shall be liable to the enjoined party for all costs and attorney’s fees.”

Cross References —

Disciplinary procedures and penalties for a violation of this section, see §73-1-29.

Appeals from action of board, see §73-1-31.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

ALR.

Recovery back of money paid to unlicensed person required by law to have occupation or business license or permit to make contract. 74 A.L.R.3d 637.

Am. Jur.

5 Am. Jur. 2d, Architects § 5.

§ 73-1-27. Annual certificate of renewal.

Except as provided in Section 33-1-39, every registered architect who resides in this state and desires to continue to practice his profession in this state shall, during the time he shall continue to practice, pay biennially to the secretary of said board during the month of November, a fee not to exceed Four Hundred Dollars ($400.00) and every registered architect residing out of this state who desires to continue to practice his profession in this state shall, during the time he shall continue to practice, pay biennially to the secretary of said board during the month of November, a fee not to exceed Four Hundred Dollars ($400.00), and the secretary shall thereupon issue to such registered architect a certificate of renewal of his registration for a term of two (2) years. Upon failure to have his certificate renewed during the month of November as provided by this section, the holder thereof shall have his certificate revoked, but the failure to renew said registration in ample time shall not deprive him of the right to renewal upon payment of said fee, provided his application for reinstatement is made within two (2) years after the expiration of his certificate. On all applications for reinstatement made after January 1 of the year immediately succeeding the year in which the fee is due, there shall be a late charge of Five Dollars ($5.00) per month charged for the processing of such application.

HISTORY: Codes, 1930, § 3622; 1942, § 8632-14; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 14; Laws, 1964, ch. 489; Laws, 1976, ch. 363, § 9; reenacted and amended, Laws, 1983, ch. 377, § 14; Laws, 1994, ch. 350, § 2; Laws, 2007, ch. 309, § 2, eff from and after passage (approved Mar. 8, 2007.).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected errors in the first sentence. The word “of” was deleted in two places so that “pay . . . a fee of not to exceed” reads “pay . . . a fee not to exceed.” The Joint Committee ratified the correction at its August 5, 2008 meeting.

Amendment Notes —

The 2007 amendment added “Except as provided in Section 33-1-39,” at the beginning of the first sentence of the section.

Cross References —

Compensation of board from registration and other fees, see §73-1-11.

Disciplinary procedures and penalties for a violation of this section, see §73-1-29.

Payment and deposit in state treasury of funds received by state board of architecture, see §73-1-43.

§ 73-1-29. Disciplinary procedures; penalties and costs; reissuance of certificate.

  1. The board, upon satisfactory proof and in accordance with this chapter and the regulations of the board, is authorized to take the disciplinary actions provided for hereinafter against any person for any of the following reasons:
    1. Violating any of the provisions of Sections 73-1-1 through 73-1-43 or the bylaws, rules, regulations or standards of ethics or conduct duly adopted by the board pertaining to the practice of architecture;
    2. Obtaining a certificate of registration by fraud, deceit or misrepresentation;
    3. Gross negligence, malpractice, incompetency or misconduct in the practice of architecture;
    4. Any professional misconduct, as defined by the board through bylaws, rules and regulations, and standards of conduct and ethics; (professional misconduct may not be defined to include bidding by architects for contracts based on price);
    5. Practicing or offering to practice architecture on an expired certificate or while under suspension or revocation of certificate unless such suspension or revocation is abated through probation, as provided for hereinafter;
    6. Practicing architecture under an assumed or fictitious name;
    7. Being convicted by any court of a felony, except conviction of culpable negligent manslaughter, in which case the record of conviction shall be conclusive evidence;
    8. Willfully misleading or defrauding any person employing him as an architect by any artifice or false statement; or
    9. Having undisclosed financial or personal interests which compromise his obligation to his client.
  2. Any person may prefer charges against any other person for committing any of the acts set forth in subsection (1). Such charges need not be sworn to, may be made upon actual knowledge or upon information and belief, and must be filed with the board. If any person licensed under Sections 73-1-1 through 73-1-43 is expelled from membership in any Mississippi or national professional architectural society or association, the board shall thereafter cite such person to appear at a hearing before the board to show cause why disciplinary action should not be taken against that person.

    The board shall investigate all charges filed with it and, upon finding reasonable cause to believe that the charges are not frivolous, unfounded or filed in bad faith, may cause a hearing to be held, at a time and place fixed by the board, regarding the charges and may compel the accused by subpoena to appear before the board to respond to the charges.

    No disciplinary action may be taken until the accused has been furnished both a statement of the charges against him and notice of the time and place of the hearing thereof, which shall be personally served on the accused or mailed by registered or certified mail, return receipt requested, to the last known business or residence address of the accused not less than thirty (30) days prior to the date of the hearing.

  3. At any hearing held hereunder, the board, upon application and approval of the chancery court, shall have the power to subpoena witnesses and compel their attendance and may also require the production of books, papers and other documents, as provided in this chapter. The hearing shall be conducted before the full board with the president of the board serving as the presiding judge. Counsel for the board shall present all evidence relating to the charges. All evidence shall be presented under oath, which may be administered by any member of the board, and thereafter the proceedings may, if necessary, be transcribed in full by the court reporter and filed as part of the record in the case. Copies of such transcriptions may be provided to any party to the proceedings at a cost fixed by the board.

    All witnesses who are subpoenaed and who appear in any proceedings before the board shall receive the same fees and mileage as allowed by law in judicial civil proceedings, and all such fees shall be taxed as part of the costs in the case.

    If in any proceeding before the board any witness fails or refuses to attend upon subpoena issued by the board, refuses to testify, or refuses to produce any books and papers the production of which is called for by the subpoena, the attendance of such witness and the giving of his testimony and the production of the books and papers shall be enforced by any court of competent jurisdiction of this state in the manner provided for the enforcement of attendance and testimony of witnesses in civil cases in the courts of this state.

    The accused shall have the right to be present at the hearing in person, by counsel or other representative, or both. The accused shall have the right to present evidence and to examine and cross-examine all witnesses. The board may continue or recess the hearing as may be necessary.

  4. At the conclusion of the hearing, the board may either decide the issue at that time or take the case under advisement for further deliberation. The board shall render its decision not more than forty-five (45) days after the close of the hearing and shall forward to the last known business or residence address of the accused by certified or registered mail, return receipt requested, a written statement of the decision of the board.

    If a majority of the board finds the accused guilty of the charges filed, the board may:

    1. Issue a public or private reprimand;
    2. Suspend or revoke the certificate of the accused, if the accused is a registrant; or
    3. In lieu of or in addition to such reprimand, suspension or revocation, assess and levy upon the guilty party a monetary penalty of not less than One Hundred Dollars ($100.00) nor more than Five Thousand Dollars ($5,000.00) for each violation.
  5. A monetary penalty assessed and levied under this section shall be paid to the board upon the expiration of the period allowed for appeal of such penalties under this section, or may be paid sooner if the guilty party elects. Money collected by the board under this section shall be deposited to the credit of the special fund created in Section 73-1-43, Mississippi Code of 1972.

    When payment of such monetary penalty assessed and levied by the board is delinquent, the board shall have the power to institute and maintain proceedings in its name for enforcement of payment in the chancery court of the county of residence of the guilty party. If the guilty party is a nonresident of the State of Mississippi, such proceedings shall be in the Chancery Court of the First Judicial District of Hinds County, Mississippi.

  6. When the board has taken a disciplinary action under this section, the board may stay such action and place the guilty party on probation for a period not to exceed one (1) year upon condition that the guilty party shall not further violate either the laws of the State of Mississippi pertaining to the practice of architecture or the bylaws, rules and regulations, or standards of conduct and ethics promulgated by the board.
  7. The board may assess and tax any part or all of the costs of any disciplinary proceedings conducted under this section against the accused if the accused is found guilty of the charges.
  8. The power and authority of the board to assess and levy the monetary penalties provided for in this section shall not be affected or diminished by any other proceeding, civil or criminal, concerning the same violation or violations except as provided in this section.
  9. The board, for sufficient cause, may reissue a revoked certificate of registration by a majority vote of the board members; but in no event shall a revoked certificate be issued within two (2) years of the revocation. A new certificate of registration required to replace a revoked, lost, mutilated or destroyed certificate may be issued, subject to the rules of the board, for a charge not to exceed Ten Dollars ($10.00).
  10. In addition to the reasons specified in subsection (1) of this section, the board shall be authorized to suspend the certificate of registration of any person for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a certificate for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a certificate suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a certificate suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

HISTORY: Codes, 1930, § 3623; 1942, § 8632-15; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 15; Laws, 1976, ch. 363, § 10; Laws, 1981, ch. 367, § 2; reenacted, Laws, 1983, ch. 377, § 15; Laws, 1988, ch. 578, § 9; Laws, 1996, ch. 507, § 19, eff from and after July 1, 1996.

Cross References —

Revocation of certificate for failure to display certificate in a prominent place in architect’s place of business, see §73-1-19.

Penalty for practicing without certificate, see §73-1-25.

Authority of the board to reissue a certificate of registration to any person whose certificate has been suspended or revoked, upon the vote of at least three members, see §73-1-33.

Suspension of state issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 et seq.

RESEARCH REFERENCES

ALR.

Responsibility of one acting as architect for defects or insufficiency of work attributable to plans. 25 A.L.R.2d 1085.

Revocation or suspension of license to practice architecture. 58 A.L.R.3d 543.

Am. Jur.

5 Am. Jur. 2d, Architects § 5.

1A Am. Jur. Pl & Pr Forms (Rev), Administrative Law, Form 341.2 (complaint, petition, or declaration – by license holder – against administrative agency – to enjoin further proceedings to suspend or revoke license – attempt to suspend or revoke license on grounds not listed in statute authorizing suspension or revocation of license).

2 Am. Jur. Pl & Pr Forms (Rev), Architects, Forms 31 et seq.

14 Am. Jur. Pl & Pr Forms (Rev), (complaint for injunction to enjoin suspension or revocation of license arising from performance of judgment for services for which licensee was required was discharged in bankruptcy).

26 Am. Jur. Proof of Facts 2d 325, Architect’s Negligence.

CJS.

6 C.J.S., Architects § 13.

§ 73-1-31. Appeal of order, judgment or action of board.

Within thirty (30) days after entry of a final order or judgment denying or revoking a certificate to practice architecture, whether an initial licensure or renewal, or action of the board as a result of disciplinary proceedings conducted under this section, any person aggrieved thereby may appeal such order, judgment or action either to the chancery court of the county wherein the appellant resides or to the Chancery Court of the First Judicial District of Hinds County, Mississippi, upon giving bond with sufficient security in the amount of Five Hundred Dollars ($500.00), approved by the clerk of the chancery court and conditioned to pay any costs which may be adjudged against such person. If the appellant is a nonresident of this state, the appeal shall be made to the Chancery Court of the First Judicial District of Hinds County, Mississippi.

Notice of appeal shall be filed in the office of the clerk of the chancery court, who shall issue a writ of certiorari directed to the board commanding it within ten (10) days after service thereof to certify to such court its entire record in the matter in which the appeal has been taken. The content of the briefs shall be in accordance with M.R.A.P. 28 and the briefing schedule shall be in accordance with M.R.A.P. 31 unless the court, in its discretion, directs otherwise. The appeal shall thereupon be heard in due course by the court, and the court shall review the record and make its determination of the cause between the parties within sixty (60) days of the close of briefing.

Any order, judgment or decision of the board shall not take effect until after the time for appeal to the court shall have expired. All appeals perfected hereunder shall act as a supersedeas of the order, judgment or action appealed from.

Actions taken by the board in suspending a certificate of registration when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a suspension of a certificate that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.

HISTORY: Codes, 1930, § 3623; 1942, § 8632-15; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 15; Laws, 1976, ch. 363, § 11; reenacted, Laws, 1983, ch. 377, § 16; Laws, 1988, ch. 578, § 10; Laws, 1996, ch. 507, § 20; Laws, 2015, ch. 370, § 1, eff from and after passage (approved Mar. 17, 2015.).

Amendment Notes —

The 2015 amendment in the first paragraph, substituted “entry of a final order or judgment denying or revoking a certificate to practice architecture, whether an initial licensure or renewal, or action of the board as a result of disciplinary proceedings conducted under this section” for “any order, judgment or action of the board” in the first sentence, added the last sentence; in the second paragraph, inserted the second sentence and added “within sixty (60) days of the close of briefing” at the end of the last sentence.

Cross References —

Suspension of state issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

§ 73-1-33. Reissuance of certificates.

The board, for reasons it may deem sufficient, may reissue a certificate of registration to any person whose certificate has been suspended or revoked, providing three (3) or more members of the board vote in favor of such reissuance. The procedure for the reissuance of a certificate that is suspended for being out of compliance with an order for support, as defined in Section 93-11-153, shall be governed by Section 93-11-157 or 93-11-163, as the case may be.

HISTORY: Codes, 1942, § 8632-16; Laws, 1954, ch. 320, § 16; reenacted, 1983, Laws, ch. 377, § 17; Laws, 1988, ch. 578, § 11; Laws, 1996, ch. 507, § 21, eff from and after July 1, 1996.

Cross References —

Revocation of certificate for failure to display certificate in a prominent place in architect’s place of business, see §73-1-19.

Provision authorizing the board to reissue a revoked certificate of registration by a majority vote of the board, but not within two years of the revocation, see §73-1-29.

Payment and deposit in state treasury of funds received by state board of architecture, see §73-1-43.

§ 73-1-35. Architects to have seal or stamp.

Each architect, upon registration, shall obtain a seal or stamp of the design authorized by the board as set forth in the rules and regulations of the board.

No architect shall affix his seal or stamp to any document which has not been prepared under his or her responsible control.

The signature of the architect and date of execution shall appear over the seal or stamp on all documents prepared by the architect for use in this state.

HISTORY: Codes, 1930, § 3624; 1942, § 8632-17; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 17; reenacted without change, Laws, 1983, ch. 377, § 18; Laws, 1988, ch. 578, § 12; Laws, 1994, ch. 350, § 3; Laws, 2002, ch. 331, § 2, eff from and after July 1, 2002.

Amendment Notes —

The 2002 amendment inserted “or stamp” following “seal” in the first paragraph; substituted “responsible control” for “individual supervision” in the second paragraph; and in the third paragraph, deleted “live” preceding “signature of the architect,” inserted “and date of execution,” thereafter, and inserted “seal or” following “shall appear over the.”

Cross References —

Disciplinary procedures and penalties for a violation of this section, see §73-1-29.

JUDICIAL DECISIONS

1. In general.

In an action by a general contractor against an architect alleging negligence in preparing a drainage plan for a construction site, the absence of the architect’s professional seal on the drainage plan did not operate to relieve the architect from liability for defects in the drainage plan. Owen v. Dodd, 431 F. Supp. 1239, 1977 U.S. Dist. LEXIS 15736 (N.D. Miss. 1977).

§ 73-1-37. Annual report by board.

Within the second week of January annually, the secretary of the board shall make to the governor of the state a complete statement of the receipts and expenditures of said board, attested by affidavit of the president and secretary, and a complete report of the transactions of the board with such recommendations for the advancement and betterment of the profession as it may think best.

HISTORY: Codes, 1930, § 3625; 1942, § 8632-18; Laws, 1928, ch. 133; Laws, 1954, ch. 320, § 18; Laws, 1976, ch. 363, § 12; reenacted, Laws, 1983, ch. 377, § 19, eff from and after July 1, 1983.

Cross References —

Payment and deposit in state treasury of funds received by state board of architecture, see §73-1-43.

§ 73-1-39. Saving clause; excepted occupations and activities.

A certificate of registration as registered architect, heretofore duly issued under the laws of this state, shall serve the same purpose as, and is hereby declared to be the license required by this chapter.

This chapter shall not apply to:

The practice of architecture solely as an officer or employee of the United States, but persons so engaged or employed shall not engage in the private practice of architecture in this state without first having a registration certificate as herein provided;

Any person, firm or corporation that prepares plans and specifications for the erection of any buildings owned by the State of Mississippi, or any of its political subdivisions, containing less than ten thousand (10,000) square feet of ground floor area, and not exceeding two (2) stories in height; or any person, firm or corporation that supervises the erection of any such buildings; or to any person, firm or corporation that prepares plans and specifications for, or that supervises repairs, alterations or additions to such existing buildings; provided further that such person, firm or corporation does not in any manner represent himself or itself to be an architect, architectural designer, or employ some other title of profession or business using some form of the word architect;

Contractors, superintendents, inspectors, foremen or building trades craftsmen while performing their customary duties;

Professional engineers licensed by the Mississippi State Board of Registration for Professional Engineers and Land Surveyors practicing in compliance with the laws of this state;

Professional landscape architects who are engaged in the preparation of drawings for and the supervision of planting, grading, walks, paving and appurtenances related to such work;

City and regional planners or professional planners while advising, consulting, administering or performing professional work or planning services;

Golf course architects who are engaged in the preparation of drawings and specifications and responsible supervision, including related consultation, investigation, reconnaissance, research and design, where the dominant purpose of such services is the design of a golf course, in accordance with accepted professional standards of public health and safety;

Any person who prepares plans and specifications for, or supervises the erection, enlargement or alteration of:

Any building on any farm for the use by any farmer;

Any one-family or two-family residence buildings, regardless of cost;

Any domestic outbuilding appurtenant to any one-family or two-family residence, regardless of cost; or

Any other type building which contains less than five thousand (5,000) square feet and is less than three (3) stories in height.

HISTORY: Codes, 1942, § 8632-19; Laws, 1954, ch. 320, § 19; Laws, 1976, ch. 363, § 13; reenacted, Laws, 1983, ch. 377, § 20; Laws, 1994, ch. 558, § 22; Laws, 2002, ch. 331, § 3, eff from and after July 1, 2002.

Editor’s Notes —

Laws of 1994, ch. 558, § 24, provides as follows:

“SECTION 24. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action for taxes due or accrued under the ad valorem tax laws before the date on which this act becomes effective, whether such claims, assessments, appeals, suits or actions have been begun before the date on which this act becomes effective or are begun thereafter; and the provisions of the ad valorem tax laws are expressly continued in full force, effect and operation for the purpose of the assessment, collection and enrollment of liens for any taxes due or accrued and the execution of any warrant under such laws before the date on which this act becomes effective, and for the imposition of any penalties, forfeitures or claims for failure to comply with such laws.”

Amendment Notes —

The 2002 amendment deleted “or to any privately owned buildings” following “two (2) stories in height” in (b); added (h); and made minor stylistic changes.

Cross References —

Regulation of landscape architectural practice, see §§73-2-1 et seq.

Regulation of practice of engineering, see §§73-13-1 et seq.

JUDICIAL DECISIONS

1. In general.

In an action by a general contractor against an architect alleging negligence in preparing a drainage plan for a construction site, the absence of the architect’s professional seal on the drainage plan did not operate to relieve the architect from liability for defects in the drainage plan. Owen v. Dodd, 431 F. Supp. 1239, 1977 U.S. Dist. LEXIS 15736 (N.D. Miss. 1977).

OPINIONS OF THE ATTORNEY GENERAL

This section and §73-13-45 should be read and applied together. Section73-1-39 encompasses exceptions to licensure that involve public building size, while §73-13-45 encompasses exceptions to licensure that involve public work cost, which work reasonably includes construction of public buildings owned by the state. Adams. Jan. 21, 2004, A.G. Op. 03-0637.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Architects §§ 3 et seq.

§ 73-1-41. Venue.

The venue of action against the state board of architecture wherein said board is a defendant shall be in Hinds County.

HISTORY: Codes, 1942, § 8632-21; Laws, 1954, ch. 320, § 21; reenacted without change, Laws, 1983, ch. 377, § 21, eff from and after July 1, 1983.

Cross References —

Venue of actions generally, see §§11-11-1 et seq.

§ 73-1-43. Payment and deposit in state treasury of funds received by state board of architecture.

All fees from examinations and licenses by the state board of architecture, as established by Section 73-1-3 et seq., and any other funds received by said board shall be paid to the state treasurer, who shall issue receipts therefor and who shall deposit such funds in the state treasury in a special fund to the credit of said board. All such funds shall be expended only pursuant to appropriation approved by the legislature and as provided by law.

HISTORY: Laws, 1973, ch. 381, § 7; reenacted, Laws, 1983, ch. 377, § 22; Laws, 1984, ch. 488, § 275, eff from and after July 1, 1984.

Editor’s Notes —

Laws of 1984, ch. 488, § 341, provides as follows:

“SECTION 341. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action which accrued prior to the date on which the applicable sections of this act become effective, whether such assessments, appeals, suits, claims or actions shall have been begun before the date on which the applicable sections of this act become effective or shall thereafter be begun.”

Cross References —

Direction that money collected by the board under its disciplinary procedures be deposited to the credit of the special fund created in this section, see §73-1-29.

§ 73-1-45. Repealed.

Repealed by Laws of 1988, ch. 578, § 13, eff from and after July 1, 1988.

[En Laws, 1979, ch. 301, § 18; Laws, 1979, ch 357, § 4; Laws, 1983, ch. 377, § 23]

Editor’s Notes —

Former §73-1-45 provided for the repeal of §§73-1-1 through73-1-43.

Chapter 2. Landscape Architectural Practice

§ 73-2-1. Title.

This chapter shall be known and may be cited as the “Landscape Architectural Practice Law.”

HISTORY: Laws, 1973, ch. 471, § 1; reenacted, Laws, 1983, ch. 348, § 1; reenacted, Laws, 1988, ch. 517, § 1; reenacted without change, Laws, 1991, ch. 318, § 1; reenacted without change, Laws, 1999, ch. 371, § 1; reenacted without change, Laws, 2001, ch. 406, § 1; reenacted without change, Laws, 2005, ch. 361, § 1, eff from and after July 1, 2005.

Editor’s Notes —

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

RESEARCH REFERENCES

Practice References.

The American Institute of Architects Legal Citator (Matthew Bender).

§ 73-2-3. Definitions.

As used in this chapter:

“Landscape architect” means a person who is licensed to practice landscape architecture in this state under the authority of this chapter and is engaging in the practice of landscape architecture within the meaning and intent of this chapter when he performs or holds himself out as capable of performing any of the services or creative works within the definition of landscape architecture.

“Landscape architecture” means any service or creative work, the adequate performance of which requires landscape architectural education, training and experience; the performance of professional services such as consultation, investigation, research, associated planning, design, preparation of drawings, specifications and contract documents, and responsible supervision or construction management in connection with the development of land areas where, and to the extent that, dominant purpose of such services is the preservation, enhancement or determination of proper land uses, natural land features, ground cover and plantings, naturalistic and aesthetic values; the determination of settings, grounds and approaches for buildings and structures or other improvements; the determination of environmental problems of land relating to erosion, flooding, blight and other hazards; the shaping and contouring of land and water forms; the setting of grades, determination of drainage and providing for storm drainage systems where such systems do not require structural design of system components, and determination of landscape irrigation; the design of such tangible objects and features as are necessary to the purpose outlined herein, but shall not include the design of buildings or structures with separate and self-contained purposes such as are ordinarily included in the practice of architecture or engineering.

“Board” means the Mississippi State Board of Architecture as established by Section 73-1-3 et seq.

“License” means a certificate granted by the Mississippi State Board of Architecture authorizing its holder to practice landscape architecture.

“Mississippi chapter” means the Mississippi Chapter of the American Society of Landscape Architects.

HISTORY: Laws, 1973, ch. 471, § 2; reenacted, Laws, 1983, ch. 348, § 2; reenacted and amended, Laws, 1988, ch. 517, § 2; reenacted without change, Laws, 1991, ch. 318, § 2; reenacted without change, Laws, 1999, ch. 371, § 2; reenacted and amended, Laws, 2001, ch. 406, § 2; reenacted without change, Laws, 2005, ch. 361, § 2, eff from and after July 1, 2005.

Editor’s Notes —

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

RESEARCH REFERENCES

Practice References.

The American Institute of Architects Legal Citator (Matthew Bender).

§ 73-2-5. License required.

No person shall practice landscape architecture in this state or use the title “landscape architect” on any sign, title, card or device to indicate that such person is practicing landscape architecture or is a landscape architect, unless such person shall have secured from the board a license as landscape architect in the manner hereinafter provided, and shall thereafter comply with the provisions of this chapter. Every holder of a current license shall display it in a conspicuous place in his principal office or place of employment.

HISTORY: Laws, 1973, ch. 471, § 3; reenacted, Laws, 1983, ch. 348, § 3; reenacted, Laws, 1988, ch. 517, § 3; reenacted without change, Laws, 1991, ch. 318, § 3; reenacted without change, Laws, 1999, ch. 371, § 3; reenacted and amended, Laws, 2001, ch. 406, § 3; reenacted without change, Laws, 2005, ch. 361, § 3, eff from and after July 1, 2005.

Editor’s Notes —

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

Cross References —

Regulation of architects, see §§73-1-1 et seq.

Disciplinary proceedings, see §73-2-16.

Injunctions to restrain illegal practice of profession, see §73-51-1.

RESEARCH REFERENCES

Practice References.

The American Institute of Architects Legal Citator (Matthew Bender).

§ 73-2-7. Qualifications of applicant.

In order to qualify for a license as a landscape architect, an applicant must:

Submit evidence of his good moral character and integrity to the examining board.

Have received a degree in landscape architecture from a college or university having a minimum four-year curriculum in landscape architecture approved by the board or have completed seven (7) years of work in the practice of landscape architecture of a grade and character suitable to the board. Graduation in a curriculum other than landscape architecture from a college or university shall be equivalent to two (2) years’ experience of the seven (7) specified above in this section, except that no applicant shall receive credit for more than two (2) years’ experience for any scholastic training.

Pass such written examination as required in Section 73-2-9.

Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64, Mississippi Code of 1972.

HISTORY: Laws, 1973, ch. 471, § 4; reenacted, Laws, 1983, ch. 348, § 4; reenacted and amended, Laws, 1988, ch. 517, § 4; reenacted without change, Laws, 1991, ch. 318, § 4; Laws, 1994, ch. 424, § 1; reenacted without change, Laws, 1996, ch. 451, § 1; Laws, 1997, ch. 588, § 24; reenacted without change, Laws, 1999, ch. 371, § 4; reenacted without change, Laws, 2001, ch. 406, § 4; reenacted without change, Laws, 2005, ch. 361, § 4, eff from and after July 1, 2005.

Editor’s Notes —

Laws of 1996, ch. 451, § 7, amended Laws of 1994, ch. 424, § 6, to remove the language providing for the repeal of the amendment by that act effective July 1, 1996.

Laws of 1997, ch. 588, § 150, effective July 1, 1997, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

Cross References —

Applicability of this section to membership on the advisory committee, see §73-2-13.

Disciplinary proceedings, see §73-2-16.

RESEARCH REFERENCES

Am. Jur.

51 Am. Jur. 2d, Licenses and Permits § 30.

CJS.

53 C.J.S., Licenses §§ 58, 59 et seq.

Practice References.

The American Institute of Architects Legal Citator (Matthew Bender).

§ 73-2-9. Examination of applicant.

Examinations for the license shall be held by the board annually. The board shall adopt rules and regulations covering the subjects and scope of the examinations, publish appropriate announcements, and conduct the examinations at the times designated. Except as otherwise provided in this chapter, every applicant shall be required, in addition to all other requirements, to take and pass a written examination. Each written examination may be supplemented by such oral examinations as the board shall determine.

HISTORY: Laws, 1973, ch. 471, § 5; reenacted, Laws, 1983, ch. 348, § 5; reenacted, Laws, 1988, ch. 517, § 5; reenacted without change, Laws, 1991, ch. 318, § 5; reenacted without change, Laws, 1999, ch. 371, § 5; reenacted without change, Laws, 2001, ch. 406, § 5; reenacted without change, Laws, 2005, ch. 361, § 5, eff from and after July 1, 2005.

Editor’s Notes —

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

Cross References —

Additional qualifications of landscape architect, see §73-2-7.

Disciplinary proceedings, see §73-2-16.

RESEARCH REFERENCES

CJS.

53 C.J.S., Licenses § 63.

Practice References.

The American Institute of Architects Legal Citator (Matthew Bender).

§ 73-2-11. Exemptions from examination.

The board may exempt from examination any applicant who holds a license or certificate to practice landscape architecture issued to him upon examination by a legally constituted board of examiners of any other state or Washington, D.C., or any other territory or possession under the control of the United States, provided that such requirements of the state in which the applicant is registered are equivalent to those of this state.

Each nonresident applicant shall submit, as part of the application, a sworn affidavit stating that neither such applicant nor any person in or agent of the applicant’s firm has practiced or is practicing landscape architectural work in this state prior to the applicant having been licensed by the board unless such person or agent holds a license to practice landscape architecture in this state. Failure to submit this affidavit or submitting an affidavit which is false in any respect shall constitute just cause for denial of the application.

An applicant who is a licensed landscape architect but who was admitted in a jurisdiction which did not offer a written examination acceptable to the board or was admitted without the requirement of passing a written examination may be issued a license to practice landscape architecture in this state upon the taking and passing of any examination or procedure as may be adopted by the board, provided that such applicant meets all other requirements for issuance of a license to practice landscape architecture in this state.

The issuance of a license by reciprocity to a military-trained applicant or military spouse shall be subject to the provisions of Section 73-50-1.

HISTORY: Laws, 1973, ch. 471, § 6; reenacted, Laws, 1983, ch. 348, § 6; reenacted and amended, Laws, 1988, ch. 517, § 6; reenacted without change, Laws, 1991, ch. 318, § 6; reenacted without change, Laws, 1999, ch. 371, § 6; reenacted and amended, Laws, 2001, ch. 406, § 6; reenacted without change, Laws, 2005, ch. 361, § 6; Laws, 2013, ch. 350, § 6, eff from and after July 1, 2013.

Editor’s Notes —

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2013 amendment added the last paragraph.

RESEARCH REFERENCES

Am. Jur.

51 Am. Jur. 2d, Licenses and Permits §§ 24 et seq.

CJS.

53 C.J.S., Licenses §§ 56, 57.

Practice References.

The American Institute of Architects Legal Citator (Matthew Bender).

§ 73-2-13. Advisory committee.

There shall be an advisory committee to the board to consist of five (5) members appointed by the Governor from a list of names supplied by Mississippi Chapter of the American Society of Landscape Architects, giving the names of no fewer than three (3) times the number of persons to be appointed. Each member of the initially appointed committee shall be qualified as described by Section 73-2-7. Appointments shall be licensed landscape architects only and shall be for five-year terms. Each member shall hold office until the appointment and qualification of his successor. Vacancies occurring prior to the expiration of the term shall be filled by appointment in like manner for the unexpired term.

The committee shall review, approve or disapprove, and make recommendations on all applications for landscape architect’s license. At the direction of the board, the committee shall also review and investigate any charges brought against any landscape architect as provided for in Section 73-2-16 and make findings of fact and recommendations to the board concerning any disciplinary action which the committee deems necessary and proper pursuant to Section 73-2-16.

Each member of the committee shall be entitled to receive a per diem in such amounts as shall be set by the board, but not to exceed the amount provided for in Section 25-3-69, and shall be reimbursed for expenses that are incurred in the actual performance of his duties under the provisions of Section 25-3-41.

Before entering upon the discharge of his duties, each member of the committee shall take and subscribe to the oath of office and file it with the Secretary of State. The committee shall elect at the first meeting of every calendar year from among its members, a chairman and a secretary to hold office for one (1) year.

HISTORY: Laws, 1973, ch. 471, § 7; reenacted, Laws, 1983, ch. 348, § 7; reenacted and amended, Laws, 1988, ch. 517, § 7; reenacted without change, Laws, 1991, ch. 318, § 7; Laws, 1994, ch. 424, § 2; reenacted without change, Laws, 1996, ch. 451, § 2; reenacted without change, Laws, 1999, ch. 371, § 7; reenacted without change, Laws, 2001, ch. 406, § 7, eff from and after July 1, 2001; reenacted without change, Laws, 2005, ch. 361, § 7, eff from and after July 1, 2005.

Editor’s Notes —

Laws of 1996, ch. 451, § 7, amended Laws of 1994, ch. 424, § 6, to remove the language providing for the repeal of the amendment by that act effective July 1, 1996.

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

Cross References —

Constitutional provision setting forth oath of office, see Miss Const Art. 14, § 268.

§ 73-2-15. License fees; seal.

Except as provided in Section 33-1-39, the board shall require that every landscape architect shall pay a biennial license renewal fee set by the board not in excess of Two Hundred Dollars ($200.00). The renewal fee shall be due and payable on the first day of January of each year in which the fee is required to be paid and shall become delinquent after the thirty-first day of January of such year, and if the renewal fee is not paid before it becomes delinquent, a penalty fee of Five Dollars ($5.00) shall be added to the amount thereof per month. If the renewal fee and penalty are not paid before the first day of June in the year in which they become due, the landscape architect’s certificate shall be suspended. The certificate may be reinstated upon the payment of the renewal fee, the penalty fees and a reinstatement fee of Fifty Dollars ($50.00), and provision of such proof of the landscape architect’s qualifications as may be required in the sound discretion of the board.

The board shall send a receipt to each landscape architect promptly upon payment of the renewal fee.

The board may recognize, prepare or administer continuing education programs for landscape architects as a basis for license renewal.

The board shall adopt an appropriate seal for use by licensed landscape architects.

HISTORY: Laws, 1973, ch. 471, § 8; reenacted, Laws, 1983, ch. 348, § 8; reenacted and amended, Laws, 1988, ch. 517, § 8; reenacted without change, Laws, 1991, ch. 318, § 8; Laws, 1994, ch. 424, § 3; reenacted without change, Laws, 1996, ch. 451, § 3; reenacted without change, Laws, 1999, ch. 371, § 8; reenacted without change, Laws, 2001, ch. 406, § 8; reenacted without change, Laws, 2005, ch. 361, § 8; Laws, 2007, ch. 309, § 3, eff from and after passage (approved Mar. 8, 2007.).

Editor’s Notes —

Laws of 1996, ch. 451, § 7, amended Laws of 1994, ch. 424, § 6, to remove the language providing for the repeal of the amendment by that act effective July 1, 1996.

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2007 amendment added “Except as provided in Section 33-1-39,” at the beginning of the first paragraph.

Cross References —

Disciplinary proceedings, see §73-2-16.

Examination fees, see §73-2-17.

RESEARCH REFERENCES

Am. Jur.

51 Am. Jur. 2d, Licenses and Permits §§ 37 et seq.

CJS.

53 C.J.S., Licenses §§ 82 et seq.

§ 73-2-16. Disciplinary proceedings.

  1. The board shall also have the power to revoke, suspend or annul the certificate or registration of a landscape architect or reprimand, censure or otherwise discipline a landscape architect.
  2. The board, upon satisfactory proof and in accordance with the provisions of this chapter, may take the disciplinary actions against any registered landscape architect for any of the following reasons:
    1. Violating any of the provisions of Sections 73-2-1 through 73-2-21 or the implementing bylaws, rules, regulations or standards of ethics or conduct duly adopted and promulgated by the board pertaining to the practice of landscape architecture;
    2. Fraud, deceit or misrepresentation in obtaining a certificate of registration;
    3. Gross negligence, malpractice, incompetency or misconduct in the practice of landscape architecture;
    4. Any professional misconduct, as defined by the board through bylaws, rules and regulations and standards of conduct and ethics (professional misconduct shall not be defined to include bidding on contracts for a price);
    5. Practicing or offering to practice landscape architecture on an expired license or while under suspension or revocation of a license unless said suspension or revocation be abated through probation;
    6. Practicing landscape architecture under an assumed or fictitious name;
    7. Being convicted by any court of a felony, except conviction of culpable negligent manslaughter, in which case the record of conviction shall be conclusive evidence;
    8. Willfully misleading or defrauding any person employing him as a landscape architect by any artifice or false statement;
    9. Having undisclosed financial or personal interest which compromises his obligation to his client;
    10. Obtaining a certificate by fraud or deceit; or
    11. Violating any of the provisions of this chapter.
  3. Any person may prefer charges against any other person for committing any of the acts set forth in subsection (2). Such charges need not be sworn to, may be made upon actual knowledge, or upon information and belief, and shall be filed with the board. In the event any person licensed under Sections 73-2-1 through 73-2-21 is expelled from membership in any Mississippi or national professional landscape architectural society or association, the board shall thereafter cite said person to appear at a hearing before the board and to show cause why disciplinary action should not be taken against that person.

    The board shall investigate all charges filed with it and, upon finding reasonable cause to believe that the charges are not frivolous, unfounded or filed in bad faith, may, in its discretion, cause a hearing to be held, at a time and place fixed by the board, regarding the charges and may compel the accused by subpoena to appear before the board to respond to said charges.

    No disciplinary action taken hereunder may be taken until the accused has been furnished both a statement of the charges against him and notice of the time and place of the hearing thereof, which shall be personally served on the accused or mailed by registered or certified mail, return receipt requested, to the last known business or residence address of the accused not less than thirty (30) days prior to the date fixed for the hearing.

  4. At any hearing held under the provisions of this section, the board shall have the power to subpoena witnesses and compel their attendance and require the production of any books, papers or documents. The hearing shall be conducted before the full board with the president of the board serving as the presiding judge. Counsel for the board shall present all evidence relating to the charges. All evidence shall be presented under oath, which may be administered by any member of the board, and thereafter the proceedings may, if necessary, be transcribed in full by the court reporter and filed as part of the record in the case. Copies of such transcription may be provided to any party to the proceedings at a cost to be fixed by the board.

    All witnesses who shall be subpoenaed and who shall appear in any proceedings before the board shall receive the same fees and mileage as allowed by law in judicial civil proceedings, and all such fees shall be taxed as part of the costs of the case.

    Where in any proceedings before the board any witness shall fail or refuse to attend upon subpoena issued by the board, shall refuse to testify or shall refuse to produce any books and papers, the production of which is called for by the subpoena, the attendance of such witness and the giving of his testimony and the production of the books and papers shall be enforced by any court of competent jurisdiction of this state in the manner provided for the enforcement of attendance and testimony of witnesses in civil cases in the courts of this state.

    The accused shall have the right to be present at the hearing in person, by counsel or other representative, or both. The accused shall have the right to present evidence and to examine and cross-examine all witnesses. The board is authorized to continue or recess the hearing as may be necessary.

  5. At the conclusion of the hearing, the board may either decide the issue at that time or take the case under advisement for further deliberation. The board shall render its decision not more than forty-five (45) days after the close of the hearing, and shall forward to the last known business or residence address of the accused by certified or registered mail, return receipt requested, a written statement of the decision of the board.

    If a majority of the board finds the accused guilty of the charges filed, the board may: (a) issue a public or private reprimand; (b) suspend or revoke the license of the accused, if the accused is a registrant; or (c) in lieu of or in addition to such reprimand, suspension or revocation, assess and levy upon the guilty party a monetary penalty of not less than One Hundred Dollars ($100.00) nor more than Five Thousand Dollars ($5,000.00) for each violation.

  6. A monetary penalty assessed and levied under this section shall be paid to the board upon the expiration of the period allowed for appeal of such penalties under this section, or may be paid sooner if the guilty party elects. Money collected by the board under this section shall be deposited to the credit of the board’s general operating fund.

    When payment of a monetary penalty assessed and levied by the board in accordance with this section is not paid when due, the board shall have the power to institute and maintain proceedings in its name for enforcement of payment in the chancery court of the county and judicial district of the residence of the guilty party and if the guilty party be a nonresident of the State of Mississippi, such proceedings shall be in the Chancery Court of the First Judicial District of Hinds County, Mississippi.

  7. When the board has taken a disciplinary action under this section, the board may, in its discretion, stay such action and place the guilty party on probation for a period not to exceed one (1) year upon the condition that the guilty party shall not further violate either the law of the State of Mississippi pertaining to the practice of landscape architecture or the bylaws, rules and regulations, or standards of conduct and ethics promulgated by the board.
  8. The board, in its discretion, may assess and tax any part or all of the costs of any disciplinary proceedings conducted under this section against the accused, if the accused is found guilty of the charges.
  9. The power and authority of the board to assess and levy the monetary penalties provided for in this section shall not be affected or diminished by any other proceeding, civil or criminal, concerning the same violation or violations except as provided in this section.
  10. The board, for sufficient cause, may reissue a revoked license of registration whenever a majority of the board members vote to do so but in no event shall a revoked license be issued within two (2) years of the revocation. A new license of registration required to replace a revoked, lost, mutilated or destroyed license may be issued, subject to the rules of the board, for a charge not to exceed Twenty-five Dollars ($25.00).
  11. The board may direct the advisory committee to review and investigate any charges brought against any landscape architect under this chapter and to hold the hearings provided for in this section and to make findings of fact and recommendations to the board concerning the disposition of such charges.
  12. Nothing herein contained shall preclude the board or advisory committee from initiating proceedings in any case. The advisory committee shall furnish legal advice and assistance to the board whenever such service is requested.
  13. In addition to the reasons specified in subsection (2) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

HISTORY: Laws, 1988, ch. 517, § 9; reenacted without change, Laws, 1991, ch. 318, § 9; Laws, 1994, ch. 424, § 4; reenacted without change, Laws, 1996, ch. 451, § 4; Laws, 1996, ch. 507, § 22; reenacted without change, Laws, 1999, ch. 371, § 9; reenacted without change, Laws, 2001, ch. 406, § 9; reenacted without change, Laws, 2005, ch. 361, § 9, eff from and after July 1, 2005.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected typographical errors. The words “of this act” were deleted following “Section 93-11-153” and following all occurrences of “Section 93-11-157 or 93-11-163.” The Joint Committee ratified the corrections at its May 16, 2002 meeting.

Editor’s Notes —

Laws of 1996, ch. 451, § 7, amended Laws of 1994, ch. 424, § 6, to remove the language providing for the repeal of the amendment by that act effective July 1, 1996.

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

Cross References —

Conduct of hearings by the advisory committee, see §73-2-13.

RESEARCH REFERENCES

Am. Jur.

1A Am. Jur. Pl & Pr Forms (Rev), Administrative Law, Form 341.2 (complaint, petition, or declaration – by license holder – against administrative agency – to enjoin further proceedings to suspend or revoke license – attempt to suspend or revoke license on grounds not listed in statute authorizing suspension or revocation of license).

§ 73-2-17. Examination fees; certificate fees.

Each applicant for examination as a landscape architect shall pay to the board for the purposes of procuring, administering and grading the examination, an administration fee not to exceed One Hundred Dollars ($100.00) together with an application fee in such amount as the board may set, but in no event to exceed the actual cost to the board of purchasing, preparing and evaluating the examination. Upon passing the examination and meeting the requirements of this chapter and upon paying an initial registration fee in an amount set by the board, an applicant shall be issued an original certificate as a licensed landscape architect and a rubber stamp bearing the seal adopted by the board for use by landscape architects. Each holder of a certificate as provided herein shall be entitled to practice as a licensed landscape architect without additional fee or charge until the next biennial renewal period, and thereafter upon payment of the biennial license fee as provided by Section 73-2-15.

A fee of Twenty-five Dollars ($25.00) shall be charged for each duplicate certificate issued by the board.

All checks or money orders submitted to the board shall be made payable to the board.

HISTORY: Laws, 1973, ch. 471, § 9; reenacted and amended, Laws, 1983, ch. 348, § 9; reenacted and amended, Laws, 1988, ch. 517, § 10; reenacted without change, Laws, 1991, ch. 318, § 10; reenacted without change, Laws, 1999, ch. 371, § 10; reenacted without change, Laws, 2001, ch. 406, § 10; reenacted without change, Laws, 2005, ch. 361, § 10, eff from and after July 1, 2005.

Editor’s Notes —

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

Cross References —

Disciplinary proceedings, see §73-2-16.

§ 73-2-19. Practices exempt from licensing.

This chapter shall not require licensing in the following cases:

The practice of landscape architecture by any person who acts under the supervision of a registered landscape architect or by an employee of a person lawfully engaged in the practice of landscape architecture and who, in either event, does not assume responsible charge of design or supervision.

The practice of landscape architecture by employees of the United States government while engaged within this state in the practice of landscape architecture for said government.

The practice of planning as customarily done by regional and urban planners.

The practice of arborists, foresters, gardeners, home builders, floriculturists and ornamental horticulturists performing their respective trades or professions.

The practice of any nurseryman or landscape contractor to practice planting design, planting, and location and arrangement of plant materials.

The practice of architecture or engineering as defined by the laws of the State of Mississippi including, but not limited to, such planting as might be incidental to such practice.

The work or practice of a regular employee of a public service company or public utility, by rendering to such company landscape architectural service in connection with its facilities which are subject to regulation, supervision and control in order to safeguard life, health and property by the Public Service Commission of this state shall be exempt so long as such person is thus actually and exclusively employed.

Any person, firm or corporation performing landscape architecture and working on his own land or property.

Golf course architects engaged in the preparation of drawings and specifications for a golf course, in accordance with accepted professional standards of public health and safety.

HISTORY: Laws, 1973, ch. 471, § 10; reenacted, Laws, 1983, ch. 348, § 10; reenacted and amended, Laws, 1988, ch. 517, § 11; reenacted without change, Laws, 1991, ch. 318, § 11; Laws, 1994, ch. 558, § 23; Laws, 1994, ch. 424, § 5; reenacted without change, Laws, 1996, ch. 451, § 5; reenacted without change, Laws, 1999, ch. 371, § 11; reenacted and amended, Laws, 2001, ch. 406, § 11; reenacted without change, Laws, 2005, ch. 361, § 11, eff from and after July 1, 2005.

Editor’s Notes —

Laws of 1994, ch. 558, § 24, provides as follows:

“SECTION 24. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action for taxes due or accrued under the ad valorem tax laws before the date on which this act becomes effective, whether such claims, assessments, appeals, suits or actions have been begun before the date on which this act becomes effective or are begun thereafter; and the provisions of the ad valorem tax laws are expressly continued in full force, effect and operation for the purpose of the assessment, collection and enrollment of liens for any taxes due or accrued and the execution of any warrant under such laws before the date on which this act becomes effective, and for the imposition of any penalties, forfeitures or claims for failure to comply with such laws.”

Laws of 1996, ch. 451, § 7, amended Laws of 1994, ch. 424, § 6, to remove the language providing for the repeal of the amendment by that act effective July 1, 1996.

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

RESEARCH REFERENCES

Am. Jur.

51 Am. Jur. 2d, Licenses and Permits §§ 24 et seq.

CJS.

53 C.J.S., Licenses §§ 56, 57.

Practice References.

The American Institute of Architects Legal Citator (Matthew Bender).

§ 73-2-21. Prohibited acts.

It shall be a misdemeanor for any person to:

Offer to practice or hold himself out as entitled to practice landscape architecture, unless duly certified and registered under this chapter.

Present as his own the certificate of another.

Give false or forged evidence to the board or any member thereof in obtaining a certificate.

Falsely impersonate any other practitioner of like or different name.

Use or attempt to use a certificate that has been revoked.

Otherwise violate any of the provisions of this chapter.

Such misdemeanor shall be punishable by a fine of not less than Five Hundred Dollars ($500.00) and not more than One Thousand Dollars ($1,000.00), or imprisonment for not more than one (1) year in the county jail, or both.

If any person, firm or corporation violates any of the provisions of this chapter, the secretary of the board shall, upon direction of a majority of the board, in the name of the State of Mississippi, acting through an attorney employed by the board, apply in any chancery court of competent jurisdiction for an injunction or temporary restraining order pursuant to the Mississippi Rules of Civil Procedure enjoining such violation or for an order enforcing compliance with the provisions of this chapter. If at such hearing it is established that such person has violated or is violating this chapter, the court may, in addition to enjoining such violation or enforcing compliance with this chapter, award all cost and expenses, including reasonable attorney’s fees, to the board. In case of violation of any decree issued in compliance with this paragraph, the court may try and punish the offender for contempt of court and shall fine such offender a sum of not less than Two Hundred Fifty Dollars ($250.00) per offense. Each day of such violation shall constitute a distinct and separate offense.

HISTORY: Laws, 1973, ch. 471, § 11; reenacted, Laws, 1983, ch. 348, § 11; reenacted and amended, Laws, 1988, ch. 517, § 12; reenacted without change, Laws, 1991, ch. 318, § 11; reenacted without change, Laws, 1999, ch. 371, § 12; reenacted without change, Laws, 2001, ch. 406, § 12; reenacted without change, Laws, 2005, ch. 361, § 12, eff from and after July 1, 2005.

Editor’s Notes —

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

Cross References —

Disciplinary proceedings, see §73-2-16.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violations, see §99-19-73.

Rule governing the procedure for injunctions and temporary restraining orders, see Miss. R. Civ. P. 65.

RESEARCH REFERENCES

Am. Jur.

51 Am. Jur. 2d, Licenses and Permits § 43.

CJS.

53 C.J.S., Licenses §§ 125 et seq.

§ 73-2-23. Prosecution of offenses.

All courts of competent jurisdiction within their respective territorial jurisdiction are hereby empowered to hear, try and determine such crimes without indictment and to impose in full the punishments of fines and imprisonments herein prescribed. All violations of this chapter, when reported to the board and duly substantiated by affidavits or other satisfactory evidence, shall be investigated by it, and if the report is found to be true and the evidence substantiated, the board shall report such violations to the Attorney General and request prompt prosecution.

HISTORY: Laws, 1973, ch. 471, § 12; reenacted, Laws, 1983, ch. 348, § 12; reenacted without change, Laws, 1991, ch. 318, § 13; reenacted without change, Laws, 1999, ch. 371, § 13; reenacted without change, Laws, 2001, ch. 406, § 13; reenacted without change, Laws, 2005, ch. 361, § 13, eff from and after July 1, 2005.

Editor’s Notes —

Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, contained a repealer for §§73-2-1 through73-2-23, effective July 1, 2005. The repealer was deleted from Laws of 1999, ch. 371, § 17, as amended by Laws of 2001, ch. 406, § 15, by Laws of 2005, ch. 361, § 14, effective from and after July 1, 2005.

Amendment Notes —

The 2005 amendment reenacted the section without change.

Cross References —

Disciplinary proceedings, see §73-2-16.

§ 73-2-25. Repealed.

Repealed by Laws of 2001, ch. 406, § 14, eff from and after July 1, 2001.

[Laws, 1973, ch. 471, § 13; reenacted, Laws, 1983, ch. 348, § 13; reenacted without change, Laws, 1991, ch. 318, § 14; reenacted without change, Laws, 1999, ch. 371, § 14, eff from and after July 1, 1999.]

Editor’s Notes —

Former §73-2-25 provided that the use of landscape architects for landscape architecture jobs was not required under this chapter.

§ 73-2-27. Repealed.

Repealed by Laws of 1999, ch. 371, § 15, eff from and after July 1, 1999.

[Laws, 1979, ch. 301, § 19; ch. 357, § 5; Laws, 1983, ch. 348, § 14; Laws, 1991, ch. 318, § 15, eff from and after July 1, 1991; reenacted without change, Laws, 1996, ch. 451, § 6, eff from and after July 1, 1996.]

Editor’s Notes —

Former §73-2-27 provided for the repeal of §§73-2-1 through73-2-25.

Chapter 3. Attorneys at Law

Article 1. Admission and Conduct of Attorneys.

§ 73-3-1. Repealed.

Repealed by Laws of 1979, ch. 486, § 10, eff from and after November 1, 1979.

[Codes, 1942, § 8647; Laws, 1932, ch. 122; Laws, 1954, ch. 213, §§ 1, 2 ¶¶ 1, 2]

Editor’s Notes —

Former §73-3-1 created the Board of Bar Admissions. See now §73-3-2.

Laws of 1980, ch. 560, § 27, purported to amend §73-3-1 which was repealed by section 10 of Chapter 486, Laws of 1979. It appears, however, that the Mississippi Legislature had no intent to alter the procedures established by §73-3-2 for admitting persons to the bar, but rather that Section 27, Chapter 560, Laws of 1980 was intended only to alter the provisions relating to compensation of members of the board of bar admissions pursuant to the general intent of said Chapter 560 to establish and prescribe uniform per diem compensation for members of all state boards. The Mississippi Attorney General’s Office has directed the publisher’s editorial staff not to implement the amendment to §73-3-1 by Section 27 of Chapter 560, Laws of 1980. For provisions relating to compensation of the members of the board of bar admissions, see §73-3-2.

§ 73-3-2. Power to admit persons to bar; qualifications for admission; appeal from denial of admission; board of bar admissions; written examination; review for failing applicants; fees; certification of applicants for admission; issuance of order granting license to practice.

  1. Power to admit persons to practice.— The power to admit persons to practice as attorneys in the courts of this state is vested exclusively in the Supreme Court of Mississippi.
  2. Qualifications.— (a)Each applicant for admission to the bar, in order to be eligible for examination for admission, shall be at least twenty-one (21) years of age, of good moral character, and shall present to the Board of Bar Admissions satisfactory evidence:
      1. That he has successfully completed, or is within sixty (60) days of completion of, a general course of study of law in a law school which is provisionally or fully approved by the section on legal education and admission to the bar of the American Bar Association, and that such applicant has received, or will receive within sixty (60) days, a diploma or certificate from such school evidencing the satisfactory completion of such course, but in no event shall any applicant under this paragraph be admitted to the bar until such applicant actually receives such diploma or certificate. However, an applicant who, as of November 1, 1981, was previously enrolled in a law school in active existence in Mississippi for more than ten (10) years prior to the date of application shall be eligible for examination for admission; provided that such an applicant graduated prior to November 1, 1984;
      2. That he has notified the Board of Bar Admissions in writing of an intention to pursue a general course of study of law under the supervision of a Mississippi lawyer prior to July 1, 1979, and in fact began study prior to July 1, 1979, and who completed the required course of study prior to November 1, 1984, in accordance with Sections 73-3-13(b) and 73-3-15 as the same exist prior to November 1, 1979; or
      3. That in addition to complying with either of the above requirements, he has received a bachelor’s degree from an accredited college or university or that he has received credit for the requirements of the first three (3) years of college work from a college or university offering an integrated six-year prelaw and law course, and has completed his law course at a college or university offering such an integrated six-year course. However, applicants who have already begun the general course of study of law as of November 1, 1979, either in a law school or under the supervision of a Mississippi lawyer shall submit proof they have successfully completed two (2) full years of college work.
    1. The applicant shall bear the burden of establishing his or her qualifications for admission to the satisfaction of the Board of Bar Admissions. An applicant denied admission for failure to satisfy qualifications for admission shall have the right to appeal from the final order of the board to the Chancery Court of Hinds County, Mississippi, within thirty (30) days of entry of such order of denial.
  3. Creation of Board of Bar Admissions.— There is hereby created a board to be known as the “Board of Bar Admissions” which shall be appointed by the Supreme Court of Mississippi. The board shall consist of nine (9) members, who shall be members in good standing of the Mississippi State Bar and shall serve for terms of three (3) years. Three (3) members shall be appointed from each Supreme Court district, one (1) by each Supreme Court Justice from his district, with the original appointments to be as follows: Three (3) to be appointed for a term of one (1) year, three (3) to be appointed for a term of two (2) years, and three (3) to be appointed for a term of three (3) years, one (1) from each district to be appointed each year. No member of the Board of Bar Admissions may be a member of the Legislature. Vacancies during a term shall be filled by the appointing justice or his successor for the remainder of the unexpired term.

    The board shall promulgate the necessary rules for the administration of their duties, subject to the approval of the Chief Justice of the Supreme Court.

  4. Written examination as prerequisite to admission.— Every person desiring admission to the bar, shall be required to take and pass a written bar examination in a manner satisfactory to the Board of Bar Admissions. The Board of Bar Admissions shall conduct not less than two (2) bar examinations each year.
  5. Oath and compensation of board members.— The members of the Board of Bar Admissions shall take and subscribe an oath to be administered by one (1) of the judges of the Supreme Court to faithfully and impartially discharge the duties of the office. The members shall receive compensation as established by the Supreme Court for preparing, giving and grading the examination plus all reasonable and necessary travel expenses incurred in the performance of their duties under the provisions of this section.
  6. Procedure for applicants who have failed.— Any applicant who fails the examination shall be allowed to take the next scheduled examination. A failing applicant may request in writing from the board, within thirty (30) days after the results of the examination have been made public, copies of his answers and model answers used in grading the examination, at his expense. If a uniform, standardized examination is administered, the board shall only be required to provide the examination grade and such other information concerning the applicant’s examination results which are available to the board. Any failing applicant shall have a right to a review of his failure by the board. The board shall enter an order on its minutes, prior to the administration of the next bar examination, either granting or denying the applicant’s review, and shall notify the applicant of such order. The applicant shall have the right to appeal from this order to the Chancery Court of Hinds County, Mississippi, within thirty (30) days of entry of such order.
  7. Fees.— The board shall set and collect the fees for examination and for admission to the bar. The fees for examination shall be based upon the annual cost of administering the examinations. The fees for admission shall be based upon the cost of conducting an investigation of the applicant and the administrative costs of sustaining the board, which shall include, but shall not be limited to:
    1. Expenses and travel for board members;
    2. Office facilities, supplies and equipment; and
    3. Clerical assistance.

      All fees collected by the board shall be paid to the State Treasurer, who shall issue receipts therefor and who shall deposit such funds in the State Treasury in a special fund to the credit of said board. All such funds shall be expended only in accordance with the provisions of Chapter 496, Laws of 1962, as amended, being Section 27-103-1 et seq., Mississippi Code of 1972.

  8. The board, upon finding the applicant qualified for admission, shall issue to the applicant a certificate of admission. The applicant shall file the certificate and a petition for admission in the Chancery Court of Hinds County, Mississippi, or in the chancery court in the county of his residence, or, in the case of an applicant who is a nonresident of the State of Mississippi, in the chancery court of a county in which the applicant intends to practice. The chancery court shall, in termtime or in vacation, enter on the minutes of that court an order granting to the applicant license to practice in all courts in this state, upon taking by the applicant in the presence of the court, the oath prescribed by law, Section 73-3-35, Mississippi Code of 1972.
  9. Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64, Mississippi Code of 1972.

HISTORY: Laws, 1979, ch. 486, §§ 1-8; reenacted and amended, Laws, 1983, ch. 457, § 1; Laws, 1985, ch. 400; Laws, 1991, ch. 560, § 1; Laws, 1997, ch. 588, § 25; reenacted without change, Laws, 1999, ch. 372, § 2; reenacted without change, Laws, 2003, ch. 524, § 1; reenacted without change, Laws, 2006, ch. 471, § 1, eff from and after July 1, 2006.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected errors in (2)(a)(iii) and (4). The words “he has” in (2)(a)(iii) were changed to “they have” so that “. . . applicants who have already begun the general course of study of law . . . shall submit proof he has successfully completed . . . college work.” will read as “. . . applicants who have already begun the general course of study of law . . . shall submit proof they have successfully completed . . . college work.” In addition, the words “or graduation” were deleted from the subsection heading in (4) so that “(4) Written examination or graduation as prerequisite to admission.” will read as “(4) Written examination as prerequisite to admission.” The Joint Committee ratified the corrections at its August 5, 2008 meeting.

Editor’s Notes —

Laws of 1997, ch. 588, § 150, effective July 1, 1997, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Sections 27-103-1 through 27-103-73, referred to in the last paragraph of (7), were repealed by Laws of 1984, ch. 448, § 334, effective from and after July 1, 1984.

Sections 73-3-13 (which outlined the powers of the board of bar admissions) and 73-3-15 (which provided for the study of law under the suspension of an attorney) referred to in (2)(a)(ii) were repealed by Laws of 1979, ch. 486, § 10, effective from and after November 1, 1979.

Former §73-3-401, which provided for the repeal of §§73-3-2 through73-3-59, was repealed by Laws of 2006, ch. 471, § 16, effective from and after July 1, 2006.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Admission of lawyers from other states, see §73-3-25.

Prohibition against board of bar admissions from bringing or maintaining actions to enjoin or prohibit any person from engaging in unauthorized practice of law, and requiring complaints to be delivered to board of commissioners of Mississippi State Bar, see §73-51-1.

Rules governing admission to Mississippi Bar generally, see Rules Governing Admission to the Mississippi Bar I through XIV.

Continuing education requirements to which attorneys are subject following admission to the bar, see Rules and Regulations for Mandatory Continuing Legal Education (Rules 1 through 6).

JUDICIAL DECISIONS

1. In general.

2.-5. [Reserved for future use.]

6. Under former §73-3-13.

1. In general.

Chancery court, when the husband failed to appear at the divorce trial, did not improperly allow the husband’s parents to exercise authority over the property distribution, or act as de facto attorneys for the husband. Instead, the husband’s parents participated in the trial as witnesses and stepped forward and created lists of property belonging to each party, offered through the wife’s counsel, to expedite the property distribution process. Speights v. Speights, 270 So.3d 968, 2018 Miss. App. LEXIS 458 (Miss. Ct. App. 2018).

Applicant contended that his due process rights were violated by the Mississippi Board of Bar Admissions’ denial of his request to be admitted to the bar, and he further contended the burden was on the Board to produce the evidence to support the Board’s finding; however, the applicant bore the burden of establishing his or her qualifications for admission to the satisfaction of the Board. Dean v. Miss. Bd. of Bar Admissions (In re Dean), 972 So. 2d 590, 2008 Miss. LEXIS 42 (Miss. 2008).

The Supreme Court will vacate or modify the Board of Bar Admissions’ bar examination grading decision only where it is found to be “arbitrary, capricious or malicious.” Mississippi Bd. of Bar Admissions v. Applicant F, 582 So. 2d 377, 1991 Miss. LEXIS 181 (Miss.), cert. denied, 502 U.S. 984, 112 S. Ct. 591, 116 L. Ed. 2d 616, 1991 U.S. LEXIS 6863 (U.S. 1991).

[Former] State Supreme Court’s Rule V on bar admission repeats §73-3-2(2)(c) [now §73-3-2(2)(a)(iii)] in substance, notwithstanding that it lacks words “in addition to”, and is clear enough to inform reasonable person that, at very least, it does not authorize alternative bar admission. Nordgren v. Hafter, 789 F.2d 334, 1986 U.S. App. LEXIS 25045 (5th Cir. Miss.), cert. denied, 479 U.S. 850, 107 S. Ct. 177, 93 L. Ed. 2d 113, 1986 U.S. LEXIS 3840 (U.S. 1986).

Provision of §73-3-2(2)(a), which admits for examination graduates of certain unaccredited Mississippi Law Schools but does not admit graduates of unaccredited out-of-state law schools, does not violate equal protection clause of U.S. Constitution. Nordgren v. Hafter, 789 F.2d 334, 1986 U.S. App. LEXIS 25045 (5th Cir. Miss.), cert. denied, 479 U.S. 850, 107 S. Ct. 177, 93 L. Ed. 2d 113, 1986 U.S. LEXIS 3840 (U.S. 1986).

Mississippi Bar Admission Rules, Miss Code §73-3-2(2)(a), which exempted from ABA accreditation and written exam requirements graduates from non-ABA accredited Mississippi law schools who were enrolled and graduated prior to date set up by grandfather provision, but not graduates from non-ABA accredited out-of-state law schools, did not violate equal protection where Mississippi had rational basis for distinction embodied in its admissions criteria including using grandfather clause in order not to unduly prejudice applicants who relied on prior statutory avenue for bar admissions, and avoidance of provisional accreditation of every out-of-state non-ABA accredited law school with Mississippi bound graduates; bar admission statute’s “law clerkship” exception controlled by same analysis, Miss Code §73-3-2(2)(b). Nordgren v. Hafter, 789 F.2d 334, 1986 U.S. App. LEXIS 25045 (5th Cir. Miss.), cert. denied, 479 U.S. 850, 107 S. Ct. 177, 93 L. Ed. 2d 113, 1986 U.S. LEXIS 3840 (U.S. 1986).

Provision of §73-3-2(2)(b), which creates “law clerkship” exception to ABA accreditation and bar exam requirement, does not violate equal protection clause of U.S. Constitution. Nordgren v. Hafter, 789 F.2d 334, 1986 U.S. App. LEXIS 25045 (5th Cir. Miss.), cert. denied, 479 U.S. 850, 107 S. Ct. 177, 93 L. Ed. 2d 113, 1986 U.S. LEXIS 3840 (U.S. 1986).

Provisions of §73-3-2(2)(c) [now §73-3-2(2)(a)(iii)] are not unconstitutionally vague. Nordgren v. Hafter, 789 F.2d 334, 1986 U.S. App. LEXIS 25045 (5th Cir. Miss.), cert. denied, 479 U.S. 850, 107 S. Ct. 177, 93 L. Ed. 2d 113, 1986 U.S. LEXIS 3840 (U.S. 1986).

Plaintiff bar admission applicant was not denied due process under statutory provision, Miss Code §73-3-2(2)(c) [now §73-3-2(2)(a)(iii)], requiring that both ABA-accredited law schools and alternative “reliance class” applicants satisfy certain undergraduate educational requirements where plaintiff’s factual assertion that provision was amended in such manner so as to clarify that provision was merely additional educational requirement rather than alternative prerequisite to bar admission was wrong, and where rule clearly informed reasonable person that provision could not authorize alternative bar admission. Nordgren v. Hafter, 789 F.2d 334, 1986 U.S. App. LEXIS 25045 (5th Cir. Miss.), cert. denied, 479 U.S. 850, 107 S. Ct. 177, 93 L. Ed. 2d 113, 1986 U.S. LEXIS 3840 (U.S. 1986).

Limiting qualified applicants to those with degrees from ABA-accredited law schools does not deprive applicant of fundamental right to livelihood, does not violate privileges and immunities clause of United States Constitution, and is not restraint of trade in violation of Sherman Antitrust Act (15 USCS §§ 1 et seq.); statutory requirement that applicants for bar examination present evidence of having received degree from ABA-accredited law school is not arbitrary, capricious and unreasonable; exceptions provided in statute for individuals enrolled in state college of law without ABA accreditation, for those completing course of study under supervision of Mississippi attorney, and for those afforded diploma privileges under former Mississippi Code §73-3-33 are not capricious and unreasonable determinations on part of legislature. Nordgren v. Hafter, 616 F. Supp. 742, 1985 U.S. Dist. LEXIS 16453 (S.D. Miss. 1985), aff'd, 789 F.2d 334, 1986 U.S. App. LEXIS 25045 (5th Cir. Miss. 1986).

State action doctrine of immunity from antitrust liability applies to state committee’s grading of bar examination where state constitution vests authority in court to determine who should be admitted to practice law in state, court has established committee to examine and recommend applicants for admission to bar, and court rules delegate examinations and applicant recommendations to committee, while reserving to court ultimate authority to grant or deny admission. Hoover v. Ronwin, 466 U.S. 558, 104 S. Ct. 1989, 80 L. Ed. 2d 590, 1984 U.S. LEXIS 76 (U.S. 1984).

2.-5. [Reserved for future use.]

6. Under former § 73-3-13.

A class action asserting the unconstitutionality of the residence requirements for applicants seeking to take the bar examination should be heard by a three-judge court. Kline v. Rankin, 489 F.2d 387, 1974 U.S. App. LEXIS 10119 (5th Cir. Miss. 1974).

That portion of this section [Code 1942, § 8654] which requires an applicant to take the bar examination to be a resident of the state at the time of his application is valid and constitutional. Lipman v. Van Zant, 329 F. Supp. 391, 1971 U.S. Dist. LEXIS 12144 (N.D. Miss. 1971).

That portion of this section [Code 1942, § 8654] which requires a resident applicant, in order to be eligible to take the state bar examination, to reside in the state for one year is unconstitutional and void, as violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution.Lipman v. Van Zant, 329 F. Supp. 391, 1971 U.S. Dist. LEXIS 12144 (N.D. Miss. 1971).

One-year residency requirement of Code 1942, § 8654, for admission to state bar was violative of equal protection under the Fourteenth Amendment, but severable from other provisions of the statute. Lipman v. Van Zant, 329 F. Supp. 391, 1971 U.S. Dist. LEXIS 12144 (N.D. Miss. 1971).

The invalid one-year residency requirement of the Mississippi statute for admission to the state bar, was severable from other provisions of the statute, and eliminating the unconstitutional phrase “for one year preceding the date of the application,” the provision in the statute that an applicant be a resident of the state when applying is a plainly divisible requirement and if valid should be upheld in accordance with a clearly expressed legislative intent as to the act’s severability. Lipman v. Van Zant, 329 F. Supp. 391, 1971 U.S. Dist. LEXIS 12144 (N.D. Miss. 1971).

RESEARCH REFERENCES

ALR.

Sexual conduct or orientation as ground for denial of admission to bar. 21 A.L.R.4th 1109.

Failed applicant’s right of access to bar examination questions and answers. 57 A.L.R.4th 1212.

Divorce and separation: goodwill in law practice as property subject to distribution on dissolution of marriage. 79 A.L.R.4th 171.

Sexual conduct or orientation as ground for denial of admission to bar. 105 A.L.R.5th 217.

Falsehoods, misrepresentations, impersonations, and other irresponsible conduct as bearing on requisite good moral character for admission to bar – Conduct related to admission to bar. 107 A.L.R.5th 167.

Failure to pay creditors as affecting applicant’s moral character for purposes of admission to the bar. 108 A.L.R.5th 289.

Am. Jur.

41 Am. Jur. Trials 445, Computer Technology in Civil Litigation.

41 Am. Jur. Trials 683, Computer Research for the Trial Lawyer.

Law Reviews.

Hafter, Toward the Multistate Practice of Law Through Admission by Reciprocity. 53 Miss. L. J. 1.

Practice References.

Alfini, Lubet, Shaman and Geyh, Judicial Conduct and Ethics (Matthew Bender).

Coquillette, Daniel, Lawyers and Fundamental Moral Responsibility (Anderson Publishing).

Herman and Cary, Legal Counseling, Negotiating, and Mediating: A Practical Approach (Matthew Bender).

Coquillette, Joseph, et al., Moore’s Federal Practice, Third Edition, Division XII, “The Federal Law of Attorney Conduct” (Matthew Bender).

Patterson, Lawyer’s Law: Procedural, Malpractice & Disciplinary Issues, Fourth Edition (Matthew Bender).

Shepard’s Professional and Judicial Conduct Citations All Inclusive Subscription (Shepard’s).

Tanford, The Trial Process: Law, Tactics and Ethics, Fourth Edition (LexisNexis).

Zitrin, Langford and Tarr, Legal Ethics in the Practice of Law (Matthew Bender).

Zitrin and Mohr, Legal Ethics: Rules, Statutes and Comparisons, 2011 Edition (Matthew Bender).

§§ 73-3-3 through 73-3-23. Repealed.

Repealed by Laws of 1979, ch. 486, § 10, eff from and after November 1, 1979.

§73-3-3. [Codes, 1942, § 8648; Laws, 1932, ch. 122; Laws, 1954, ch. 213, § 3]

§73-3-5. [Codes, 1942, § 8650; Laws, 1932, ch. 122; Laws, 1954, ch. 213, § 4]

§73-3-7. [Codes, 1942, § 8652; Laws, 1932, ch. 122]

§73-3-9. [Codes, 1942, § 8652.5; Laws, 1954, ch. 213, § 5]

§73-3-11. [Codes, Hemingway’s 1917, § 181; Laws, 1930, § 3682; 1942, § 8653; Laws, 1916, ch. 107; Laws, 1960, ch. 287]

§73-3-13. [Codes, Hemingway’s 1917, § 182; 1930, § 3683; 1942, § 8654; Laws, 1916, ch. 107; Laws, 1954, ch. 213, § 6; Laws, 1974, ch. 510, § 1]

§73-3-15. [Codes, 1942, § 8654.5; Laws, 1954, ch. 213, § 7]

§73-3-17. [Codes, Hemingway’s 1917, § 183; 1930, § 3684; 1942, § 8655; Laws, 1916, ch. 107]

§73-3-19. [Codes, Hemingway’s 1917, § 184; 1930, § 3685; 1942, § 8657; Laws, 1916, ch. 107; Laws, 1974, ch. 510, § 2]

§73-3-21. [Codes, Hemingway’s 1917, § 185; 1930, § 3686; 1942, § 8658; Laws, 1916, ch. 107; Laws, 1922, ch. 255; Laws, 1954, ch. 213, § 8; Laws, 1977, ch. 462]

§73-3-23. [Codes, Hemingway’s 1921 Supp. § 185a; 1930, § 3687; 1942, § 8659; Laws, 1920, ch. 146; Laws, 1922, ch. 255; Laws, 1974, ch. 510, § 3; Laws, 1977, ch. 360]

Editor’s Notes —

Former §73-3-3 outlined the duties of the secretary of the State Bar.

Former §73-3-5 outlined the powers of the board of bar admissions.

Former §73-3-7 stated the general purpose of Article 1.

Former §73-3-9 provided for the examination required for admission to the bar.

Former §73-3-11 provided for the application to take the examination for admission to the bar.

Former §73-3-13 outlined the qualifications necessary for admission to the bar.

Former §73-3-15 provided for the study of law under the supervision of an attorney.

Former §73-3-17 provided for an inquiry into the moral character and other qualifications of applicants to the bar.

Former §73-3-19 provided for the subjects upon which applicants for bar admission could be examined.

Former §73-3-21 provided for how applicants were to be admitted and enrolled as attorneys.

Former §73-3-23 provided for the dismissal of an application.

For present similar provisions to former §§73-3-5 though73-3-23, see §73-3-2.

§ 73-3-25. Admission of lawyers from other states.

Any lawyer from another state whose requirements for admission to the bar are equivalent to those of this state, who has practiced not less than five (5) years in a state where he was then admitted may be admitted to the practice in this state upon taking and passing such examination as to his knowledge of law as may be prescribed by rules adopted by the Board of Bar Admissions and approved by the Supreme Court and upon complying with the other requirements as set out in the laws and rules governing admission to the bar. Provided, however, the laws of the state from which the applicant comes grant similar privileges to the applicants from this state.

Any lawyer from another state desiring to be admitted to practice in Mississippi must make application to the Board of Bar Admissions. Such applicant shall present to the bar evidence of his good standing in the state from which he came, including a certificate from the clerk of the highest appellate court of the state from which he came, and from two (2) members of the bar of such state, certifying to his qualifications, good standing and moral character of the applicant, and may require the submission of additional evidence by the applicant. Upon satisfactory proof of the applicant’s qualifications and upon the applicant’s compliance with the requirements of this section, the board shall issue a certificate of admission to the applicant, as prescribed in Section 73-3-2(8). Each such applicant shall pay an application fee prescribed by the Board of Bar Admissions according to Section 73-3-2(7).

HISTORY: Codes, Hemingway’s 1921 Supp. § 185b; 1930, § 3688; 1942, §§ 8649, 8660; Laws, 1920, ch. 146; Laws, 1922, ch. 255; Laws, 1932, ch. 122; Laws, 1944, ch. 316; Laws, 1960, ch. 286; Laws, 1964, ch. 374, § 1; Laws, 1971, ch. 403, § 1; Laws, 1974, ch. 510, § 4; Laws, 1977, ch. 392; reenacted, Laws, 1983, ch. 457, § 2; Laws, 1991, ch. 560, § 2; reenacted without change, Laws, 1999, ch. 372, § 3; reenacted without change, Laws, 2003, ch. 524, § 2; reenacted without change, Laws, 2006, ch. 471, § 2, eff from and after July 1, 2006.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Examination requirement for persons desiring admission to bar, generally, see §73-3-2(4).

Attorneys from other states being allowed to appear and plead in special causes, see §73-3-39.

Rules governing admission by comity and reciprocity, see Rules Governing Admission to the Mississippi Bar, Rule VI.

Comparable Laws from other States —

Alabama: Ala. R. Gov’g Admis. Bar Rule VII.

Arkansas: Ark. R. Gov’g Admis. Bar XIV.

Florida: Fla. Bar Reg. R. 4-5.5.

Georgia: Ga. Sup. Ct. 4.

Louisiana: La. Sup. Ct. R. XVII.

North Carolina: N.C. R. Gov’g Admis. to Practice Law Rule .0502.

South Carolina: Rule 404, SCACR.

Tennessee: Tenn. Sup. Ct. R. 7, Sec. 5.01.

Texas: Tex. R. Gov. Bar Admis. XIV.

Virginia: Va. Sup. Ct. R. 1A:1.

West Virginia: W. Va. Admis. Practice Law, Rule 4.0.

JUDICIAL DECISIONS

1. In general.

State residency requirement for admission to bar, without examination, of lawyer admitted to practice in another state, violates federal constitution’s privileges and immunities clause. Supreme Court of Virginia v. Friedman, 487 U.S. 59, 108 S. Ct. 2260, 101 L. Ed. 2d 56, 1988 U.S. LEXIS 2746 (U.S. 1988).

The Mississippi scheme for licensing of attorneys, involving a bar examination, diploma privilege, and a reciprocity exemption, does not penalize the exercise of the right to interstate travel, and is not arbitrary or unrelated to any legitimate state purpose, and, therefore, does not violate equal protection; the bar examination itself, as currently administered, bears a rational relation to professional competence in the practice of law and, therefore, does not violate equal protection. Shenfield v. Prather, 387 F. Supp. 676, 1974 U.S. Dist. LEXIS 11475 (N.D. Miss. 1974).

RESEARCH REFERENCES

ALR.

Criminal record as affecting applicant’s moral character for purposes of admission to the bar. 88 A.L.R.3d 192.

Violation of draft laws as affecting character for purposes of admission to the bar. 88 A.L.R.3d 1055.

Failure to pay creditors as affecting applicant’s moral character for purposes of admission to the bar. 4 A.L.R.4th 436.

Validity, construction, and effect of reciprocity provisions for admission to bar of attorney admitted to practice in another jurisdiction. 14 A.L.R.4th 7.

Attorney’s right to appear pro hac vice in state court. 20 A.L.R.4th 855.

Sexual conduct or orientation as ground for denial of admission to bar. 21 A.L.R.4th 1109.

Falsehoods, misrepresentations, impersonations, and other irresponsible conduct as bearing on requisite good moral character for admission to bar. 30 A.L.R.4th 1020.

Validity, construction, and application of enactment, implementation, or repeal of formal educational requirement for admission to the bar. 44 A.L.R.4th 910.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law § 23.

CJS.

7 C.J.S., Attorney and Client §§ 23-25.

Law Reviews.

Hafter, Toward the Multistate Practice of Law Through Admission by Reciprocity. 53 Miss. L. J. 1.

§§ 73-3-27 and 73-3-29. Repealed.

Repealed by Laws of 1979, ch. 486, § 10, eff from and after November 1, 1979.

§73-3-27. [Codes, Hemingway’s 1917, § 186; 1930, § 3689; 1942, § 8661; Laws, 1916, ch. 107; Laws, 1964, ch. 375, § 1; Laws, 1974, ch. 510, § 5]

§73-3-29. [Codes, Hemingway’s 1917, § 187; 1930, § 3690; 1942, § 8662; Laws, 1916, ch. 107; Laws, 1954, ch. 213, § 9; Laws, 1960, ch. 288; Laws, 1971, ch. 385, § 1; Laws, 1977, ch. 444]

Editor’s Notes —

Former §73-3-27 provided for the time and place for meetings of the board of bar admissions.

Former §73-3-29 provided for an application fee for persons taking the bar examination.

For present similar provisions, see §73-3-2(7).

§ 73-3-31. Persons excepted from educational requirements.

The educational requirements both as to general education and legal education shall not apply to any person who may have graduated from a law school prior to October 1, 1954.

HISTORY: Codes, 1942, § 8662.3; Laws, 1954, ch. 213, § 10; reenacted without change, Laws, 1983, ch. 457, § 3; reenacted, Laws, 1991, ch. 560, § 3; reenacted without change, Laws, 1999, ch. 372, § 4; reenacted without change, Laws, 2003, ch. 524, § 3; reenacted without change, Laws, 2006, ch. 471, § 3, eff from and after July 1, 2006.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

JUDICIAL DECISIONS

1. In general.

Chancery court, when the husband failed to appear at the divorce trial, did not improperly allow the husband’s parents to exercise authority over the property distribution, or act as de facto attorneys for the husband. Instead, the husband’s parents participated in the trial as witnesses and stepped forward and created lists of property belonging to each party, offered through the wife’s counsel, to expedite the property distribution process. Speights v. Speights, 270 So.3d 968, 2018 Miss. App. LEXIS 458 (Miss. Ct. App. 2018).

§ 73-3-33. Repealed.

Repealed by Laws of 1979, ch. 486, § 10, eff from and after November 1, 1979.

[Codes, Hemingway’s 1917, § 188; 1930, § 3691; 1942, § 8663; Laws, 1916, ch. 107]

Editor’s Notes —

Former §73-3-33 provided that a person with a diploma from the University of Mississippi was entitled to admission to the bar.

§ 73-3-35. Oath in each court.

Every attorney and counselor at law, before he or she shall be permitted to practice, shall produce his or her license in each court where he or she intends to practice, and in the presence of such court, shall take the following oath or affirmation to wit:

“I do solemnly swear (or affirm) that I will demean myself, as an attorney and counselor of this court, according to the best of my learning and ability, and with all good fidelity as well to the court as to the client; that I will use no falsehood nor delay any person’s cause for lucre or malice, and that I will support the Constitution of the State of Mississippi and the Constitution of the United States. So help me God.”

And thereupon the name of such person, with the date of his or her admission, shall be entered in a roll or book to be kept in each court for that purpose.

HISTORY: Codes, Hutchinson’s 1848, ch. 26, art. 3 (1, 3); 1857, ch. 9, art. 2; 1871, § 2245; 1880, § 2397; 1892, § 209; 1906, § 215; Hemingway’s 1917, § 189; 1930, § 3692; 1942, § 8664; reenacted without change, Laws, 1983, ch. 457, § 4; reenacted, Laws, 1991, ch. 560, § 4; reenacted without change, Laws, 1999, ch. 372, § 5; reenacted without change, Laws, 2003, ch. 524, § 4; reenacted without change, Laws, 2006, ch. 471, § 4; Laws, 2011, ch. 454, § 1, eff from and after July 1, 2011.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2011 amendment substituted “and the Constitution of the United States” for “so long as I continue a citizen thereof” in the first sentence in the second paragraph; and added gender neutralizing language.

Cross References —

Taking of oath prior to entry of order granting license to practice, see §73-3-2.

JUDICIAL DECISIONS

1. In general.

In defendant’s capital murder case, although the prosecutor’s comments to the jury on defendant having the protection of the constitution while the victim did not were condemned, they did not constitute reversible error where the argument was likely not to have influenced the jury one way or the other. Evidence of defendant’s callous indifference to human life was overwhelming, and the jury’s sentence was well-supported by the record. Goodin v. State, 856 So. 2d 267, 2003 Miss. LEXIS 353 (Miss. 2003), cert. denied, 541 U.S. 947, 124 S. Ct. 1681, 158 L. Ed. 2d 375, 2004 U.S. LEXIS 2196 (U.S. 2004), overruled, Lynch v. State, 951 So. 2d 549, 2007 Miss. LEXIS 34 (Miss. 2007).

A prosecutor violated his oath when, in a capital murder prosecution, he instructed the jurors to ignore the defendant’s constitutional rights; however, such error was harmless as his crude appeals likely did not influence the jury one way or the other. Goodin v. State, 787 So. 2d 639, 2001 Miss. LEXIS 135 (Miss. 2001), cert. denied, 535 U.S. 996, 122 S. Ct. 1558, 152 L. Ed. 2d 481, 2002 U.S. LEXIS 2500 (U.S. 2002).

In a proceeding to remove the disability of minority, the attorney representing the minor violated §73-3-35 by failing to make a full disclosure to the chancellor regarding the existence of a guardianship over the minor in another county; the attorney’s oath of office required the attorney to deal honestly with the court and disclose all material facts. Barrett v. The Mississippi Bar, 648 So. 2d 1154, 1995 Miss. LEXIS 27 (Miss. 1995).

While attorneys are charged with the duty of honorably representing their clients, that duty does not relieve an attorney of his or her duty to make full disclosure to the court. Barrett v. The Mississippi Bar, 648 So. 2d 1154, 1995 Miss. LEXIS 27 (Miss. 1995).

An attorney’s conduct in borrowing money from a nonclient at a usurious interest rate and promising that his wife would repay the debt out of his life insurance proceeds should he die before he repaid the loan and premium did not violate the §73-3-35 attorney’s oath. Watkins v. Mississippi Bar, 589 So. 2d 660, 1991 Miss. LEXIS 764 (Miss. 1991).

An attorney’s conduct in disbursing a minor client’s funds from a judgment directly to the minor’s mother without seeking court approval and without taking steps to set up a guardianship to administer the funds for the minor, warranted a public reprimand which would be reduced to a private reprimand because of the attorney’s contrition. Mississippi State Bar v. Attorney Y, 585 So. 2d 768, 1991 Miss. LEXIS 598 (Miss. 1991).

An attorney’s misconduct, which consisted of disobeying the court by dispensing settlement funds without a court order and deceiving the court by filing a false acknowledgment showing that the money had been deposited in the bank as ordered by the court, warranted a 60-day suspension from practice and 180 days probation upon reinstatement to the State Bar. Mississippi State Bar v. Smith, 577 So. 2d 1249, 1991 Miss. LEXIS 185 (Miss. 1991).

An attorney’s conduct violated §73-3-35 and certain disciplinary rules of the Code of Professional Responsibility for the Bar, warranting disbarment, where the attorney deposited large contingencies into his personal checking accounts without informing his employer of his receipt of the funds, he used the funds for payment of personal obligations, he showed a lack of remorse, and he consistently maintained that he had committed no wrongdoing or ethical violations until being confronted with ironclad proof, at which time he changed his testimony from that given at the investigatory hearing and previous bar proceedings. Tucker v. Mississippi State Bar, 577 So. 2d 844, 1991 Miss. LEXIS 187 (Miss. 1991).

Ninety-day suspension from practice of law was appropriate where attorney had violated various Disciplinary Rules and §73-3-35, including engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, failing to seek lawful objectives of client through reasonably available means, and failing to carry out contract of employment entered into with client. Foote v. Mississippi State Bar Asso., 517 So. 2d 561, 1987 Miss. LEXIS 2951 (Miss. 1987).

Sanction of disbarment was appropriate where attorney was guilty of violating certain provisions of Code of Professional Responsibility of the Mississippi State Bar and §73-3-35. Attorney, after agreeing to act as closing attorney in sale of certain real property, failed to make necessary arrangements to pay off first deed of trust on subject property, which resulted in additional interest, and failed to handle client’s funds in accordance with applicable Rules of Discipline as adopted by Mississippi Supreme Court for use by members of Mississippi State Bar; there was unrebutted evidence that attorney converted funds to his own use. Sanction less severe than disbarment was not warranted, although there was nothing in record to show any previous ethical violations by attorney, attorney made client whole about 2 weeks after demand, and attorney never attempted to mislead court or bar as to what he did. Foote v. Mississippi State Bar Asso., 517 So. 2d 561, 1987 Miss. LEXIS 2951 (Miss. 1987).

The Mississippi State Bar failed to prove by clear and convincing evidence that attorneys uttered a falsehood in violation of their oaths prescribed in §73-3-35, where the attorneys’ client testified at the disciplinary proceedings that his payment of $35,000 of remaining proceeds of his personal injury settlement to the attorneys was a gift conditioned upon their maintaining confidentiality regarding the gift, where he further testified that his reason for the gift was that he felt guilty that these two attorneys were receiving for their services an amount equal to that of a third attorney, who had since resigned from the firm, and who, in his opinion, had done nothing for him, and where the state bar was attempting to prove that the gift theory was a sham, and that the attorneys had made misrepresentations to the third attorney for the purpose of defrauding him of a one-third share of the payment. Levi v. Mississippi State Bar, 436 So. 2d 781, 1983 Miss. LEXIS 2728 (Miss. 1983).

RESEARCH REFERENCES

CJS.

7 C.J.S., Attorney and Client §§ 13, 23.

§ 73-3-37. Duties of attorneys.

It is the duty of attorneys:

  1. To support the Constitution and laws of this state and of the United States;
  2. To maintain the respect due to courts of justice and judicial officers;
  3. To employ for the purpose of maintaining the causes confided to them, such means only as are consistent with truth, and never to seek to mislead by any artifice or false statement of the law;
  4. To maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients;
  5. To abstain from all offensive personalities, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which they are charged;
  6. To encourage neither the commencement nor continuance of an action or proceeding from any motives of passion or personal interest;
  7. Never to reject, for any consideration personal to themselves, the cause of the defenseless or oppressed.

HISTORY: Codes, 1892, § 210; 1906, § 216; Hemingway’s 1917, § 190; 1930, § 3693; 1942, § 8665; reenacted without change, Laws, 1983, ch. 457, § 5; reenacted, Laws, 1991, ch. 560, § 5; reenacted without change, Laws, 1999, ch. 372, § 6; reenacted without change, Laws, 2003, ch. 524, § 5; reenacted without change, Laws, 2006, ch. 471, § 5, eff from and after July 1, 2006.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Authority of attorney to issue written communications expressing opinion as to fairness, accuracy or reliability of financial statements, and not be in violation of laws regulating practice of certified public accounting, see §73-33-15.

Lawyers’ responsibilities generally, see Miss. Rules of Professional Conduct.

JUDICIAL DECISIONS

1. Construction and application, in general.

2. Practice of law.

3. —Authority of attorney.

4. —Contracts for service.

5. —Contract stipulations for attorney’s fees.

6. —Contingent fees.

7. —Attorney’s liens.

8. —Compromises.

9. Attorney-client privilege.

1. Construction and application, in general.

In a medical negligence case, and an interlocutory appeal by the medical clinic, the personal representative specifically pled reliance on “former” attorney’s advice as an element of the defense to the medical clinic’s motion for summary judgment, and as a means to toll the statute of limitations; as such, the personal representative used the attorney-client privilege as a sword, and effectively waived the privilege as it related to the testimony the personal representative gave. Jackson Med. Clinic for Women, P.A. v. Moore, 836 So. 2d 767, 2003 Miss. LEXIS 54 (Miss. 2003).

The attorney-client privilege was held to have been waived as to certain documents sought to be discovered by plaintiff in an abuse of process action where it appeared from the record that these documents contained communications between defense attorneys in which the defense proposed to use a representation, made by plaintiff in an earlier action, not as a defense plea, but rather as a means to delay and interrupt the earlier action through use of injunction and contempt proceedings against plaintiff; The court stated that the privilege was waived not because the communication involved planning a tort, but because the privileged matter sought to turn plaintiff’s representation from a shield into a sword. Hyde Constr. Co. v. Koehring Co., 455 F.2d 337, 1972 U.S. App. LEXIS 11353 (5th Cir. Miss. 1972).

In an action involving the income tax liability of his client, the refusal of an attorney, on the ground of privilege, to answer questions as to whether he had brought certain records with him reflecting dates and amounts paid for services rendered to his client, whether he was involved as attorney in a certain purchase, and whether his client gave him a certain sum of money as a down payment involved in the particular purchase, was justified under the provisions of subdivision (4) of this section [Code 1942, § 8665]. United States v. Ladner, 238 F. Supp. 895, 1965 U.S. Dist. LEXIS 9208 (S.D. Miss. 1965).

In action to cancel as cloud on title a deed of trust securing a note claimed by the maker to have been paid in the payee’s lifetime, brought against payee’s administratrix, in which the maker introduced testimony as to statements by the payee indicating that the note had been paid, payee’s attorney, who also was the trustee named in the deed of trust, was not incompetent to testify on behalf of the administratrix as to payee’s subsequent instructions in the event that a foreclosure should become necessary. McCaslin v. Willis, 197 Miss. 366, 19 So. 2d 751, 1944 Miss. LEXIS 306 (Miss. 1944).

There is no privileged communication statute as to attorney and client other than this section [Code 1942, § 8665], which requires attorneys “to maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients.” McCaslin v. Willis, 197 Miss. 366, 19 So. 2d 751, 1944 Miss. LEXIS 306 (Miss. 1944).

Attorney is an officer of the court. Ex parte Redmond, 120 Miss. 536, 82 So. 513, 1919 Miss. LEXIS 118 (Miss. 1919).

On the death of one member of a law partnership, the survivor is bound, unless discharged by the client, to complete all executory contracts of the firm, and he cannot exact from the client greater compensation than that which the copartnership was to receive. Clifton v. Clark, Hood & Co., 83 Miss. 446, 36 So. 251, 1903 Miss. LEXIS 65 (Miss. 1903).

The obligations of an attorney to prosecute a claim against the government in the courts or through such “diplomatic negotiations” as might be deemed by him best for the interests of his client, is not invalid in the absence of proof that the party did not contemplate by the use of the words, “diplomatic negotiations” an improper procedure. Knut v. Nutt, 83 Miss. 365, 35 So. 686, 1903 Miss. LEXIS 54 (Miss. 1903), aff'd, 200 U.S. 12, 26 S. Ct. 216, 50 L. Ed. 348, 1906 U.S. LEXIS 1451 (U.S. 1906).

2. Practice of law.

An attorney has a responsibility to disclose that he or she represents only one of the participants in a multi-person transaction that is fraught with the probability of conflicting interest so that the other participants are able to take reasonable steps to protect themselves. La Barre v. Gold, 520 So. 2d 1327, 1987 Miss. LEXIS 2792 (Miss. 1987).

Maker acquiring note not entitled to attorney’s fee as against third person assuming payment. Dorman v. McFarlan, 124 Miss. 811, 87 So. 275, 1921 Miss. LEXIS 182 (Miss. 1921).

Attorney retained on a secular day may recover for the value of the retainer although he conferred with his client on Sunday. Bowers v. Jones, 124 Miss. 57, 86 So. 711, 1920 Miss. LEXIS 495 (Miss. 1920).

Judgment obtained by unauthorized appearance by attorney may be enjoined or cancelled. Weems v. Vowell, 122 Miss. 342, 84 So. 249, 1920 Miss. LEXIS 438 (Miss. 1920).

Attorney entitled to retainer though some of services performed on Sunday. Jones v. Brantley, 121 Miss. 721, 83 So. 802, 1920 Miss. LEXIS 116 (Miss. 1920).

Certain legal services may be performed on Sunday. Jones v. Brantley, 121 Miss. 721, 83 So. 802, 1920 Miss. LEXIS 116 (Miss. 1920).

Briefs should be confined to the facts and the law of the case and should not contain the personal opinions counsel may entertain of each other. Felder v. Acme Mills, 112 Miss. 322, 73 So. 52, 1916 Miss. LEXIS 113 (Miss. 1916).

Defendant whose position is in fact adverse to that of another defendant cannot act as the latter’s counsel, unless, if at all, there is an express showing by the record of authorization to do so. Jenkins v. Barber, 85 Miss. 666, 38 So. 36, 1904 Miss. LEXIS 113 (Miss. 1904).

3. —Authority of attorney.

Unauthorized and unratified agreement on the part of an attorney is not binding on the client. Gambrell v. Southern Moline Plow Co., 103 Miss. 824, 60 So. 1012, 1912 Miss. LEXIS 236 (Miss. 1912).

It is presumed that an attorney assuming to represent a party is authorized to do all acts necessary to the proper conduct of the cause, and a party denying has the burden of showing his want of authority. Grand Court of Calanthe v. Downs, 98 Miss. 740, 53 So. 417, 1910 Miss. LEXIS 46 (Miss. 1910).

Acts of an attorney so far as the procedure in a case is concerned are binding on his client. Scarborough v. Harrison Naval Stores Co., 95 Miss. 497, 51 So. 274, 1909 Miss. LEXIS 308 (Miss. 1909).

4. —Contracts for service.

Where attorney stipulated for fee of 10% for collection of money he was bound thereby and after making collection was not entitled to make a greater charge. Emil Nathan & Co. v. Halsell, 91 Miss. 785, 45 So. 856, 1907 Miss. LEXIS 197 (Miss. 1907).

On the death of one member of a law partnership, if a client of the firm fails to exercise his right to discharge the survivor and permits him to render the services, he will be liable on the contract made with the first just as though neither of the partners had died and the estate of the deceased member will be entitled to recover its just proportion of the fees. Clifton v. Clark, Hood & Co., 83 Miss. 446, 36 So. 251, 1903 Miss. LEXIS 65 (Miss. 1903).

Where a contract is made for the professional services of a firm of lawyers, and one of them dies before the completion of the service, the client has an option of abrogating the contract by discharging the survivor and paying for the services already rendered. Clifton v. Clark, Hood & Co., 83 Miss. 446, 36 So. 251, 1903 Miss. LEXIS 65 (Miss. 1903).

Where a contract is made with an attorney-at-law for professional services and it is contracted or understood that he alone is to render the service, or that his skill is depended upon exclusively, the death of the attorney terminated the contract, although he be a member of a copartnership of lawyers. Clifton v. Clark, Hood & Co., 83 Miss. 446, 36 So. 251, 1903 Miss. LEXIS 65 (Miss. 1903).

A written agreement, made before the allowance of the claim, to pay an attorney an amount equal to one-third of any sum that might be allowed on a claim against the government in consideration of services in securing its allowance is valid. Knut v. Nutt, 83 Miss. 365, 35 So. 686, 1903 Miss. LEXIS 54 (Miss. 1903), aff'd, 200 U.S. 12, 26 S. Ct. 216, 50 L. Ed. 348, 1906 U.S. LEXIS 1451 (U.S. 1906).

Such a fee agreement does not invest the attorney with an interest in, or lien upon the claim. Knut v. Nutt, 83 Miss. 365, 35 So. 686, 1903 Miss. LEXIS 54 (Miss. 1903), aff'd, 200 U.S. 12, 26 S. Ct. 216, 50 L. Ed. 348, 1906 U.S. LEXIS 1451 (U.S. 1906).

An irrevocable power authorizing an attorney to prosecute a claim against the United States before any of the United States courts or any department of the government, made before the allowance of the claim, is void. Knut v. Nutt, 83 Miss. 365, 35 So. 686, 1903 Miss. LEXIS 54 (Miss. 1903), aff'd, 200 U.S. 12, 26 S. Ct. 216, 50 L. Ed. 348, 1906 U.S. LEXIS 1451 (U.S. 1906).

The relation of an attorney to his client is created by contract, and the litigants who have in no way assumed liability for attorney’s fees cannot be held therefor because they derived benefits directly or incidentally from the professional services rendered. Rives v. Patty, 74 Miss. 381, 20 So. 862, 1896 Miss. LEXIS 119 (Miss. 1896).

5. —Contract stipulations for attorney’s fees.

Judgment for interest and attorney’s fees provided for by note will be entered on appeal where jury in finding for the principal expressly remitted the interest and attorney’s fee. Burton v. Eureka Bank, 122 Miss. 393, 84 So. 247, 1920 Miss. LEXIS 441 (Miss. 1920).

Grantees of a trust deed by whose direction the trustee refused tender of the amount due were not entitled to attorney’s fees incurred in such tender, where the trust deed did not provide for attorney’s fees but a note of which the other parties did not know did call for such fees. Hardin v. Ross, 117 Miss. 186, 78 So. 2, 1918 Miss. LEXIS 162 (Miss. 1918).

However, where an attorney is made a trustee in a deed of trust to be enforced by making sale of the property, he is entitled to retain from the proceeds for his services only a reasonable compensation as trustee, and this, although the note stipulates for the payment of an attorney’s fee in case it be collected by an attorney. Elkin v. Rives, 82 Miss. 744, 35 So. 200, 1903 Miss. LEXIS 197 (Miss. 1903).

Where suit was brought on promissory note containing provision for payment of attorney’s fee in case of collection by him, and, pending suit, a new note was accepted for the sum demanded, less the attorney’s fees, plaintiff could not recover such fees in the suit, even though it was agreed when the new note was given that the question of liability therefor should be tried in that suit. Davis v. Cochran, 76 Miss. 439, 24 So. 168, 1898 Miss. LEXIS 72 (Miss. 1898).

Generally, a stipulation, in a note or other contract, for the payment of attorney’s fees incurred in enforcement is valid. Brahan v. First Nat'l Bank, 72 Miss. 266, 16 So. 203, 1894 Miss. LEXIS 63 (Miss. 1894); Duggan v. Champlin, 75 Miss. 441, 23 So. 179, 1897 Miss. LEXIS 133 (Miss. 1897); Millsaps v. Chapman, 76 Miss. 942, 26 So. 369, 1899 Miss. LEXIS 29 (Miss. 1899).

Where a debtor sought relief against a usurious contract which was governed by the laws of another state, a stipulation in the contract for the payment of attorney’s fees, in case of litigation or foreclosure, would be disregarded by the chancery court, since the court, in determining the amount to be paid as a condition of relief, was not controlled by the terms of the contract. American Freehold Land & Mortg. Co. v. Jefferson, 69 Miss. 770, 12 So. 464, 1892 Miss. LEXIS 20 (Miss. 1892).

6. —Contingent fees.

Attorney contracting for contingent fee and taking assignment of portion of right of action is not deprived of right of action thereon because third party, without his knowledge, authority, or connivance, promised benefits to client for placing cause of action with such attorney, if such promise was not disclosed at or before time of making contract. Lamar Hardwood Co. v. Case, 143 Miss. 277, 107 So. 868, 1926 Miss. LEXIS 265 (Miss. 1926).

Settlement for injury with notice of contingent fee contract with attorney for share of recovery does not affect attorney’s right to recover on his assignment of part of cause of action. Lamar Hardwood Co. v. Case, 143 Miss. 277, 107 So. 868, 1926 Miss. LEXIS 265 (Miss. 1926).

Parties who have no interest in the proceeds of a claim cannot question the reasonableness of a contingent attorney’s fee contract for prosecution and collection thereof. Lay v. Lay, 118 Miss. 549, 79 So. 291, 1918 Miss. LEXIS 92 (Miss.), aff'd, 248 U.S. 24, 39 S. Ct. 13, 63 L. Ed. 103, 1918 U.S. LEXIS 1716 (U.S. 1918).

Board of supervisors of the county contracted to pay attorneys’ compensation only in event that they successfully resisted payment of county warrants. Judgment in the circuit court was adverse and supervisors over objection of attorneys who had taken appeal, compromised the case; Held, the attorneys were not entitled to compensation. Lamar County v. Tally & Mayson, 116 Miss. 588, 77 So. 299, 1917 Miss. LEXIS 326 (Miss. 1917).

Written contract for services of a lawyer for a contingent fee made by a client thoroughly advised of his rights, will not be vacated on the ground that it was fraudulent or exorbitant, after termination of the suit by acceptance of advantageous compromise at the instance of the client. Humphries v. McLachlan, 87 Miss. 532, 40 So. 151, 1905 Miss. LEXIS 183 (Miss. 1905).

Attorneys in suits for unliquidated damages, brought on an agreement with the plaintiff, operating to transfer to them a share of the sum to be recovered, have an equitable assignment of the recovery to the extent of such share. Harris v. Hazlehurst Oil-Mill & Mfg. Co., 78 Miss. 603, 30 So. 273, 1900 Miss. LEXIS 183 (Miss. 1900).

7. —Attorney’s liens.

However, an attorney has no lien upon a judgment for services securing it where he was employed by creditor’s attorney and not by creditor. Brahan v. National Life & Acci. Ins. Co., 124 Miss. 160, 87 So. 7, 1920 Miss. LEXIS 540 (Miss. 1920).

Contract between sole beneficiary under an unprobated will and an attorney for services for the probate of the will, for one-half of whatever the beneficiary receives under a decree or settlement, does not give the attorney any lien on the estate. Cochran v. Henry, 107 Miss. 233, 65 So. 213, 1914 Miss. LEXIS 70 (Miss. 1914).

Money collected by an attorney on claim due his client for wages, though exempt from execution or garnishment, was not exempt from the attorney’s lien. Halsell v. Turner, 84 Miss. 432, 36 So. 531, 1904 Miss. LEXIS 60 (Miss. 1904).

Upon recovery of the proceeds of property through the services of an attorney, he was entitled to have the proceeds charged with a reasonable fee for his services. Tishomingo Sav. Inst. v. Allen, 76 Miss. 114, 23 So. 305, 1898 Miss. LEXIS 52 (Miss. 1898).

8. —Compromises.

Attorney of record has the entire management and control of the pending case, and it should not be dismissed over his protest until he has withdrawn from it, or until the court, upon petition of the party has removed him or has terminated the relation of attorney and client. De Armond v. Fine, 111 Miss. 737, 72 So. 145, 1916 Miss. LEXIS 379 (Miss. 1916).

Contract between attorney and client that the latter should not compromise or settle a pending or prospective lawsuit is unenforcible. Cochran v. Henry, 107 Miss. 233, 65 So. 213, 1914 Miss. LEXIS 70 (Miss. 1914); New Orleans & N. E. R. Co. v. Tally & Mayson, 109 Miss. 393, 69 So. 186, 1915 Miss. LEXIS 169 (Miss. 1915).

A client, without the consent of his attorney, may compromise with the defendants, and dismiss his suit in an action for damages for assault and battery, and this, though he agrees in retaining the attorney not to compromise without his consent. Mosely v. Jamison, 71 Miss. 456, 14 So. 529, 1893 Miss. LEXIS 96 (Miss. 1893).

9. Attorney-client privilege.

In a suicide wrongful death case against a doctor, the court should have allowed the decedent’s divorce attorney to testify about conversations with the doctor that concerned the discharge plan and its implementation because plaintiff’s counsel voluntarily elicited testimony regarding the substance of privileged conversations and injected a material issue into the case. The discharge plan and its implementation was a material issue before the trial court. Young v. Guild, 2008 Miss. LEXIS 548 (Miss. Oct. 30, 2008), sub. op., op. withdrawn, 7 So.3d 251, 2009 Miss. LEXIS 193 (Miss. 2009).

RESEARCH REFERENCES

ALR.

Rights and remedies of client as regards papers and documents on which attorney has retained lien. 3 A.L.R.2d 148.

Services in connection with tax matters as practice of law. 9 A.L.R.2d 797.

Prejudicial effect in civil trial of counsel’s misconduct in physically exhibiting to jury objects or items not introduced as evidence. 37 A.L.R.2d 662.

Privilege as to communications to attorney in connection with drawing of will. 66 A.L.R.2d 1302.

Persons other than client or attorney affected by, or included within, attorney-client privilege. 96 A.L.R.2d 125.

Attorney-client privilege as affected by communications between several attorneys. 9 A.L.R.3d 1420.

Homicide or assault as ground for disciplinary measures against attorney. 21 A.L.R.3d 887.

Fabrication or suppression of evidence as ground for disciplinary action against attorney. 40 A.L.R.3d 169.

Attorney’s negligence in connection with estate, will, or succession matters. 55 A.L.R.3d 977.

Applicability of attorney-client privilege to matters relating to drafting of nonexistent or unavailable nontestamentary documents. 55 A.L.R.3d 1322.

Rights and duties of attorney in a criminal prosecution where client informs him of intention to present perjured testimony. 64 A.L.R.3d 385.

Applicability of attorney-client privilege to evidence or testimony in subsequent action between parties originally represented contemporaneously by same attorney, with reference to communication to or from one party. 4 A.L.R.4th 765.

Modern status of law regarding solicitation of business by or for attorney. 5 A.L.R.4th 866.

Legal malpractice in connection with attorney’s withdrawal as counsel. 6 A.L.R.4th 342.

Applicability of attorney-client privilege to communications made in presence of or solely to or by third person. 14 A.L.R.4th 594.

Mental or emotional disturbance as defense to or mitigation of charges against attorney in disciplinary proceeding. 26 A.L.R.4th 995.

Advertising as ground for disciplining attorney. 30 A.L.R.4th 742.

Attorney-client privilege as extending to communications relating to contemplated civil fraud. 31 A.L.R.4th 458.

Privilege as to communications between lay representative in judicial or administrative proceedings and client. 31 A.L.R.4th 1226.

Liability of attorney for improper or ineffective incorporation of client. 40 A.L.R.4th 535.

Assignability of claim for legal malpractice. 40 A.L.R.4th 684.

Disciplinary action against attorney for aiding or assisting another person in unauthorized practice of law. 41 A.L.R.4th 361.

Propriety of governmental eavesdropping on communications between accused and his attorney. 44 A.L.R.4th 841.

Insured-insurer communications as privileged. 55 A.L.R.4th 336.

What constitutes negligence sufficient to render attorney liable to person other than immediate client. 61 A.L.R.4th 464.

Attorney’s liability to one other than immediate client, for negligence in connection with legal duties. 61 A.L.R.4th 615.

Incompetence of counsel as ground for relief from state court civil judgment. 64 A.L.R.4th 323.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in matters involving real-estate transactions as ground for disciplinary action – modern cases. 65 A.L.R.4th 24.

Attorney-client privilege: who is “representative of the client” within state statute or rule privileging communications between an attorney and the representative of the client. 66 A.L.R.4th 1227.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in personal injury or property damage actions as ground for disciplinary action – modern cases. 68 A.L.R.4th 694.

Attorney’s assertion of retaining lien as violation of ethical code or rules governing professional conduct. 69 A.L.R.4th 974.

Intentional spoliation of evidence, interfering with prospective civil action, as actionable, 70 A.L.R.4th 984.

Involuntary disclosure or surrender of will prior to testator’s death. 75 A.L.R.4th 1144.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of foreign language speaking defendant. 79 A.L.R.4th 1102.

Admissibility and effect of evidence of professional ethics rules in legal malpractice action. 50 A.L.R.5th 301.

Circumstances under which attorney retains right to compensation notwithstanding voluntary withdrawal from case. 53 A.L.R.5th 287.

Situations in which federal courts are governed by state law of privilege under Rule 501 of the Federal Rules of Evidence. 48 A.L.R. Fed. 259.

Propriety of law firm’s representation of client in federal court where lawyer affiliated with firm is disqualified from representing client. 51 A.L.R. Fed. 678.

Attorney’s liability under 42 USCS § 1983 for improperly instituting or pursuing legal procedure. 72 A.L.R. Fed. 724.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law § 4.

2 Am. Jur. Pl & Pr Forms (Rev), Attorneys At Law, Forms 1 et seq.

17 Am. Jur. Pl & Pr Forms (Rev), Malicious Prosecution, Forms 1 et seq.

41 Am. Jur. Trials 445, Computer Technology in Civil Litigation.

41 Am. Jur. Trials 683, Computer Research for the Trial Lawyer.

CJS.

7 C.J.S., Attorney and Client §§ 41-43.

Law Reviews.

Owens, Wrestling with the Tar Baby: Ethical Obligations of Mississippi Insurance Defense Lawyers, 17 Miss. C. L. Rev. 359.

§ 73-3-39. Attorneys of other states may appear and plead in special causes; conditions and limitations.

  1. It is hereby declared to be the public policy of the State of Mississippi that the practice of law before any court or administrative agency is a matter of privilege and not a matter of right.
  2. Subject to the conditions, rules and regulations adopted by the Supreme Court of Mississippi, any attorney or counselor at law of another state, in good professional standing, of good moral character and who is familiar with the ethics, principles, practices, customs and usages of the legal profession in the State of Mississippi may appear and plead in any special cause before any court or administrative agency in this state; provided, however, that in so appearing such attorney or counselor at law shall subject himself to the jurisdiction of the State Board of Bar Admissions and shall consent to the application of the provisions of this article.
  3. Upon petition of two (2) members in good standing of the bar of any county of the State of Mississippi, not members of the same firm, representing that any attorney or counselor at law of another state is appearing in any cause before any court or administrative agency of this state and raising the question of the qualifications of such attorney or counselor at law as set out in subsection (2) of this section or compliance by such attorney with the conditions, rules and regulations adopted by the Supreme Court of Mississippi, the State Board of Bar Admissions shall, or upon its own initiative may, make inquiry as to the professional standing, moral character, familiarity with the ethics, principles, practices, customs and usages of the legal profession in the State of Mississippi of any such attorney or counselor at law of another state and shall inquire as to such attorney’s professional standing with his local bar and into the question of whether or not such attorney is familiar with and willing to abide by the ethics, principles, practices, customs and usages of the legal profession in the State of Mississippi.
  4. In conducting the inquiry referred to in the preceding section, the State Board of Bar Admissions shall have authority to require the appearance of the attorney or counselor at law involved before it and shall have the power to subpoena witnesses and require the production of evidence, oral and documentary, and issue appropriate process therefor, and to do any and all other things which may be required to determine fully and completely the facts as issued before it. After such hearing the State Board of Bar Admissions shall make such determination as, in its opinion and sound discretion, is justified from the evidence before it and may permit or refuse to permit the said attorney or counselor at law to continue to appear and plead in such special cause.
  5. The action or decision of the Board of Bar Admissions in administering this section is hereby declared to be a judicial function and not administrative in character, and appeals from the decision of said board may be taken in accordance with the provisions of Section 11-51-75, Mississippi Code of 1972.
  6. Any attorney or counselor at law who wilfully makes any false or misleading statement to said board touching upon the matters under inquiry shall be guilty of perjury, shall be punished according to law upon conviction thereof, and the judgment of the court imposing such punishment shall, in addition, provide that such attorney or counselor at law shall be perpetually barred from practice before any court or administrative agency of this state.
  7. Any such attorney or counselor at law of another state who shall appear or plead in any court or administrative agency in this state after his qualifications shall have been called into question by the petition hereinbefore mentioned or by the State Board of Bar Admissions acting upon its own initiative and before having obtained an order from the said State Board of Bar Admissions authorizing his appearance shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or imprisoned in the county jail for not more than six (6) months, or both such fine and imprisonment.

HISTORY: Codes, Hutchinson’s 1848, ch. 26, art. 7; 1857, ch. 9, art. 5; 1871, § 2248; 1880, § 2399; 1892, § 211; 1906, § 217; Hemingway’s 1917, § 191; 1930, § 3694; 1942, § 8666; Laws, 1956, ch. 255, §§ 1-9; reenacted and amended, Laws, 1983, ch. 457, § 6; Laws, 1991, ch. 560, § 6; reenacted without change, Laws, 1999, ch. 372, § 7; reenacted without change, Laws, 2003, ch. 524, § 6; reenacted without change, Laws, 2006, ch. 471, § 6, eff from and after July 1, 2006.

Editor’s Notes —

The language “preceding section” appearing in subsection (4) of this section is apparently incorrect; the language should probably read “preceding subsection”.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Admission to bar without examination of out-of-state attorneys, see §73-3-25.

Punishment of person convicted of perjury, see §97-9-61.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Rules governing admission by comity and reciprocity, see Rules Governing Admission to the Mississippi Bar, Rule VI.

RESEARCH REFERENCES

ALR.

Attorney’s right to appear pro hac vice in state court. 20 A.L.R.4th 855.

Attorneys: revocation of state court pro hac vice admission. 64 A.L.R.4th 1217.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law § 22.

CJS.

7 C.J.S., Attorney and Client §§ 23-25.

§ 73-3-41. Persons convicted of felonies barred from admission; disbarment of licensed attorneys convicted of felonies.

Every person who has been or shall hereafter be convicted of felony in a court of this or any other state or a court of the United States, manslaughter or a violation of the Internal Revenue Code excepted, shall be incapable of obtaining a license to practice law. Any court of the State of Mississippi in which a licensed attorney shall have been convicted of a felony, other than manslaughter or a violation of the Internal Revenue Code, shall enter an order disbarring the attorney.

HISTORY: Codes, Hutchinson’s 1848, ch. 26, art. 3(5); 1857, ch. 9, art. 6; 1871, § 2249; 1880, § 2400; 1892, § 212; 1906, § 218; Hemingway’s 1917, § 192; 1930, § 3695; 1942, § 8667; reenacted without change, Laws, 1983, ch. 457, § 7; Laws, 1991, ch. 560, § 7; reenacted without change, Laws, 1999, ch. 372, § 8; reenacted without change, Laws, 2003, ch. 524, § 7; reenacted without change, Laws, 2006, ch. 471, § 7, eff from and after July 1, 2006.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Manslaughter, see §§97-3-25 through97-3-47.

Suspensions and disbarments based on certain proceedings, see Mississippi Rules of Discipline, Rule 6.

Standards for disqualification of Bar applicant, see Rules Governing Admission to the Mississippi Bar, Rule VIII, § 6.

Federal Aspects—

The Internal Revenue Code, referred to in this section, is codified at 26 USCS §§ 1 et seq.

JUDICIAL DECISIONS

1. Generally.

2. Effect of pardon.

3. Effect of power to suspend sentence.

4. Miscellaneous.

1. Generally.

Mississippi Supreme Court had exclusive inherent jurisdiction over an attorney and his or her license to practice law in Mississippi. Thus, Miss. Code Ann. §73-3-41, which allowed any court (in the instant case a circuit court), to disbar an attorney, was in direct conflict with the aforementioned rule; however, the substantive and procedural prerequisites of Miss. R. Disc. St. Bar 6 had been satisfied, and therefore, the attorney who was convicted of a felony, was suspended from the practice of law pending his appeal of the criminal conviction. Miss. Bar v. Jackson, 904 So. 2d 109, 2004 Miss. LEXIS 1340 (Miss. 2004).

Miss Code §73-3-301, et seq., rather than Miss Code §73-3-41 and former §73-3-53, were applicable in an application for reinstatement to the Mississippi State Bar following disbarment on the ground of conviction of federal felonies involving moral turpitude; accordingly, petitioner would be reinstated where the state bar admitted all the averments and facts of the petition, which set out that no claims had been made, or were contemplated, for restitution of money, that he had conducted himself in a manner beyond criticism, that he had been able to obtain employment and had supplied the needs of his family, that he had continued to be active in community and civic activities and had been a good citizen during the period of his disbarment, and that if he was reinstated, he would be a valuable member of the Mississippi State Bar in the future and would conduct himself in such way as to be a credit to the state bar and to the State of Mississippi. Phillips v. Mississippi State Bar, 427 So. 2d 1380, 1983 Miss. LEXIS 2508 (Miss. 1983).

The conclusion of the Complaint Tribunal that an attorney convicted of nine counts of deceiving and conspiring to defraud the United States government should be suspended from the practice of law pursuant to §73-3-327 would be vacated and the penalty of disbarment imposed pursuant to the authority of §73-3-329, without regard to the automatic disbarment provisions of §73-3-41 and former §73-3-53, where the charges of which the attorney had been convicted involved moral turpitude. Mississippi State Bar v. Phillips, 385 So. 2d 943, 1980 Miss. LEXIS 1937, 1980 Miss. LEXIS 1991 (Miss. 1980).

Where the disbarment of an attorney consists merely in a sentence imposed upon him in criminal proceedings, the circuit and chancery courts are not deprived of jurisdiction to entertain and act upon disbarment proceedings against him, and they may, notwithstanding the judgment and sentence in the criminal case, exercise their inherent power in this area so as to place the results beyond the reach of executive clemency. In re Vance, 275 So. 2d 90, 1973 Miss. LEXIS 1344 (Miss. 1973).

The order of disbarment of an attorney automatically follows his conviction of a felony. Bennett v. State, 211 So. 2d 520, 1968 Miss. LEXIS 1268 (Miss. 1968), cert. denied, 393 U.S. 320, 89 S. Ct. 555, 21 L. Ed. 2d 515, 1969 U.S. LEXIS 2866 (U.S. 1969).

Automatic disbarment under this section [Code 1942, § 8667] is a part of the punishment for the crime. In re Prisock, 244 Miss. 417, 141 So. 2d 715, 1962 Miss. LEXIS 464 (Miss. 1962).

The automatic disbarment under this section [Code 1942, § 8667], consequent upon conviction of a felony, where the attorney’s misconduct was within the sphere of his official duties, does not affect the jurisdiction of a chancery court to entertain disbarment proceedings based upon such misconduct. In re Prisock, 244 Miss. 417, 141 So. 2d 715, 1962 Miss. LEXIS 464 (Miss. 1962).

It was within the discretion of a chancery court to either proceed with a hearing of the petition against the accused attorney as filed by the special committee of the local bar or to hold the proceeding in abeyance pending the outcome of the appeal from the previous conviction of the accused in the circuit for the felony with which he was charged. In re Prisock, 244 Miss. 417, 141 So. 2d 715, 1962 Miss. LEXIS 464 (Miss. 1962).

This section [Code 1942, § 8667] makes mandatory the disbarment of a lawyer convicted of embezzling a client’s funds. Sherman v. State, 234 Miss. 775, 108 So. 2d 205, 1959 Miss. LEXIS 554 (Miss. 1959).

2. Effect of pardon.

Where the disbarment of an attorney consists merely in a sentence imposed upon him in criminal proceedings, the circuit and chancery courts are not deprived of jurisdiction to entertain and act upon disbarment proceedings against him, and they may, notwithstanding the judgment and sentence in the criminal case, exercise their inherent power in this area so as to place the results beyond the reach of executive clemency. In re Vance, 275 So. 2d 90, 1973 Miss. LEXIS 1344 (Miss. 1973).

The granting of a pardon to an attorney whose conviction of crime worked automatic disbarment does not preclude the court from disbarring him because of the acts upon which the conviction was based. In re Prisock, 244 Miss. 417, 141 So. 2d 715, 1962 Miss. LEXIS 464 (Miss. 1962).

Full pardon to attorney, after conviction and sentence which included disbarment, held to absolve attorney from all consequences of order of disbarment, entitling him to reinstatement. Ex parte Crisler, 159 Miss. 247, 132 So. 103, 1931 Miss. LEXIS 46 (Miss. 1931).

3. Effect of power to suspend sentence.

The power of a circuit judge to suspend sentence does not empower him to suspend the order of disbarment of an attorney found guilty of a felony, for the disbarment order, though a part of the punishment, is not a part of the sentence. Bennett v. State, 211 So. 2d 520, 1968 Miss. LEXIS 1268 (Miss. 1968), cert. denied, 393 U.S. 320, 89 S. Ct. 555, 21 L. Ed. 2d 515, 1969 U.S. LEXIS 2866 (U.S. 1969).

Code 1942, § 4004-23 giving the judges of the circuit and county courts power to suspend sentence and place defendants on probation is not applicable to the matter of mandatory disbarment of an attorney upon his conviction of a felony. Bennett v. State, 211 So. 2d 520, 1968 Miss. LEXIS 1268 (Miss. 1968), cert. denied, 393 U.S. 320, 89 S. Ct. 555, 21 L. Ed. 2d 515, 1969 U.S. LEXIS 2866 (U.S. 1969).

4. Miscellaneous.

A lawyer charged with a felony is not entitled on the voir dire examination to advise the jury of the mandatory disbarment required by this section [Code 1942, § 8667]. Bennett v. State, 211 So. 2d 520, 1968 Miss. LEXIS 1268 (Miss. 1968), cert. denied, 393 U.S. 320, 89 S. Ct. 555, 21 L. Ed. 2d 515, 1969 U.S. LEXIS 2866 (U.S. 1969).

The mandatory disbarment of a lawyer convicted of a felony has no bearing whatsoever on the guilt or innocence of that lawyer who is charged with the felony. Bennett v. State, 211 So. 2d 520, 1968 Miss. LEXIS 1268 (Miss. 1968), cert. denied, 393 U.S. 320, 89 S. Ct. 555, 21 L. Ed. 2d 515, 1969 U.S. LEXIS 2866 (U.S. 1969).

RESEARCH REFERENCES

ALR.

State court disciplinary action against attorney for federal income tax conviction. 59 A.L.R.2d 1398.

Pardon as restoring public office or license or eligibility therefor. 58 A.L.R.3d 1191.

Federal income tax conviction as involving moral turpitude warranting disciplinary action against attorney. 63 A.L.R.3d 476.

Federal income tax conviction as constituting nonprofessional misconduct warranting disciplinary action against attorney. 63 A.L.R.3d 512.

Effect of acquittal or dismissal in criminal prosecution as barring disciplinary action against attorney. 76 A.L.R.3d 1028.

Am. Jur.

7 Am. Jur. 2d, Attorneys at law §§ 28, 86 et seq.

CJS.

7A C.J.S., Attorney and Client §§ 72-75.

§ 73-3-43. Clerks, sheriffs and other officers prohibited.

It shall not be lawful for a clerk of any court of record or the deputy or assistant of any such clerk, or for any sheriff or his deputy, to exercise the profession or employment of an attorney or counselor at law, or to be engaged in the practice of law, or to receive any fee or reward for any such services rendered during his continuance in such position; and any person offending herein shall be guilty of a misdemeanor, and, upon conviction, to be fined in a sum not exceeding Five Hundred Dollars ($500.00) and be removed from office; but this shall not prohibit the clerk of any court of record or the sheriff of any county from practicing in any of the courts so far as to enable them to bring to conclusion civil cases in which such clerk or sheriff are employed and which are actually filed and pending at the time when such clerk or sheriff is appointed or nominated in a party primary and subsequently elected to office.

HISTORY: Codes, Hutchinson’s 1848, ch. 26, art. 3 (14); 1857, ch. 9, art. 4; 1871, § 2247; 1880, § 2402; 1892, § 214; 1906, § 220; Hemingway’s 1917, § 194; 1930, § 3697; 1942, § 8669; Laws, 1956, ch. 251; reenacted without change, Laws, 1983, ch. 457, § 8; reenacted, Laws, 1991, ch. 560, § 8; reenacted without change, Laws, 1999, ch. 372, § 9; reenacted without change, Laws, 2003, ch. 524, § 8; reenacted without change, Laws, 2006, ch. 471, § 8, eff from and after July 1, 2006.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Chancery court clerks generally, see §§9-5-131 et seq.

Circuit court clerks generally, see §§9-7-121 et seq.

Sheriffs generally, see §§19-25-1 et seq.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

JUDICIAL DECISIONS

1. In general.

An injunction was properly granted to restrain a chancery clerk from engaging in the practice of law in violation of this section [Code 1942, § 8669]. Darby v. Mississippi State Board of Bar Admissions, 185 So. 2d 684, 1966 Miss. LEXIS 1533 (Miss. 1966).

A chancery clerk who, through the exercise of discretion and the use of her own knowledge and judgment, drew deeds, deeds of trust, bills of sale, and title certificates to real property was not a mere scrivener but was engaged in the unlawful practice of law, and an injunction was properly granted to restrain her from continuing these activities. Darby v. Mississippi State Board of Bar Admissions, 185 So. 2d 684, 1966 Miss. LEXIS 1533 (Miss. 1966).

This statute does not make it unlawful for one excluded from professional activities to draw his own deed in a single transaction. Continental Oil Co. v. Walker, 238 Miss. 21, 117 So. 2d 333, 1960 Miss. LEXIS 371 (Miss. 1960).

RESEARCH REFERENCES

Am. Jur.

48 Am. Jur. Proof of Facts 2d 525, Existence of Attorney-Client Relationship.

§ 73-3-45. Restrictions of certain persons to practice law.

If any justice court judge or the partner in the practice of law of any justice court judge shall appear before a justice court judge of his district as attorney or counsel in any misdemeanor case over which he has jurisdiction, or in any appeal of any such case from the judgment of such officer, or in any certiorari to any such officer for the same, he shall be guilty of a misdemeanor and, on conviction, shall be fined not more than Five Hundred Dollars ($500.00), or be imprisoned not more than six (6) months, or both.

HISTORY: Codes, 1880, § 2403; 1892, § 215; 1906, § 221; Hemingway’s 1917, § 195; 1930, § 3698; 1942, § 8670; reenacted and amended, Laws, 1983, ch. 457, § 9; reenacted, Laws, 1991, ch. 560, § 9; reenacted without change, Laws, 1999, ch. 372, § 10; reenacted without change, Laws, 2003, ch. 524, § 9; reenacted without change, Laws, 2006, ch. 471, § 9, eff from and after July 1, 2006.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Justice court judges generally, see §§9-11-2 et seq.

Municipal police courts generally, see §§21-23-1 et seq.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

ALR.

Judge’s previous legal association with attorney connected to current case as warranting disqualification. 85 A.L.R.4th 700.

Sufficiency of screening measures (Chinese Wall) designed to prevent disqualification of law firm, member of which is disqualified for conflict of interest. 68 A.L.R. Fed. 687.

§ 73-3-47. Partner of justice court judge prohibited from acting as attorney before such judge; penalty.

If the partner in the practice of law of any justice court judge shall appear before such justice court judge of his district, as attorney or counsel in any case, civil or criminal, or in any appeal from the judgment of such officer, or in any certiorari to such officer, he shall be guilty of a misdemeanor and, on conviction, shall be fined not more than Five Hundred Dollars ($500.00), or be imprisoned not more than six (6) months, or both.

HISTORY: Codes, 1906, § 222; Hemingway’s 1917, § 196; 1930, § 3699; 1942, § 8671; Laws, 1904, ch. 138; reenacted and amended, Laws, 1983, ch. 457, § 10; reenacted, Laws, 1991, ch. 560, § 10; reenacted without change, Laws, 1999, ch. 372, § 11; reenacted without change, Laws, 2003, ch. 524, § 10; reenacted without change, Laws, 2006, ch. 471, § 10, eff from and after July 1, 2006.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Justice court judges generally, see §§9-11-2 et seq.

Municipal police courts generally, see §§21-23-1 et seq.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Rules regarding conflicts of interest, see Miss. Rules of Professional Conduct, Rules 1.7 through 1.9.

RESEARCH REFERENCES

ALR.

Judge’s previous legal association with attorney connected to current case as warranting disqualification. 85 A.L.R.4th 700.

Disqualification of member of law firm as requiring disqualification of entire firm-state cases. 6 A.L.R.5th 242.

§ 73-3-49. Partner of district attorney or county attorney not to defend in certain criminal cases.

Where two (2) or more attorneys at law of this state are associated together in practice as attorneys or counselors at law, and one (1) of such attorneys shall be district attorney of his district or the county attorney of his county, it shall be unlawful for such other attorney, or partner, to appear and defend in any of the courts of that county any person charged with a misdemeanor or felony, and this section shall apply, even though such association may exist only for the transaction of civil business in a particular court.

Any attorney violating this section shall be deemed guilty of a misdemeanor and, on conviction shall be fined in the sum of not less than Ten Dollars ($10.00) nor more than One Hundred Dollars ($100.00), and shall forfeit his license to practice law in this state.

HISTORY: Codes, Hemingway’s 1917, §§ 197, 198; 1930, §§ 3700, 3701; 1942, §§ 8672, 8673; Laws, 1912, ch. 155; reenacted without substantive change, Laws, 1983, ch. 457, § 11; reenacted, Laws, 1991, ch. 560, § 11; reenacted without change, Laws, 1999, ch. 372, § 12; reenacted without change, Laws, 2003, ch. 524, § 11; reenacted without change, Laws, 2006, ch. 471, § 11, eff from and after July 1, 2006.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Duties of county prosecuting attorney generally, see §19-23-11.

Restrictions on practice of law by county prosecuting attorney, see §19-23-13.

Duties of district attorney generally, see §25-31-11.

Criminal offense of attorney general or district attorney consulting, advising, counselling or representing criminal defendants, see §97-11-3.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any felony violation, see §99-19-73.

Rules regarding conflicts of interest, see Miss. Rules of Professional Conduct, Rules 1.7 through 1.9.

JUDICIAL DECISIONS

1. In general.

Code 1972, §§19-23-13 and73-3-49, when read together, effectively disqualify a county attorney from representing a defendant in a criminal case in any county of the state, but the partner of a county attorney may represent a defendant in a criminal proceeding outside the county where the county attorney serves. Frackman v. Deposit Guaranty Nat'l Bank, 296 So. 2d 695, 1974 Miss. LEXIS 1532 (Miss. 1974).

OPINIONS OF THE ATTORNEY GENERAL

Section 73-3-49 prohibits an attorney from representing a defendant while that attorney’s law partner is serving as county attorney. Williamson, March 1, 1996, A.G. Op. #96-0092.

The statute prohibited a contemplated association between a law firm which included a county attorney and an attorney who was the appointed attorney to represent juveniles in youth court. Evans, Oct. 13, 2000, A.G. Op. #2000-0593.

RESEARCH REFERENCES

ALR.

Disqualification of member of law firm as requiring disqualification of entire firm-state cases. 6 A.L.R.5th 242.

Sufficiency of screening measures (Chinese Wall) designed to prevent disqualification of law firm, member of which is disqualified for conflict of interest. 68 A.L.R. Fed. 687.

§ 73-3-51. Attorney general and district attorneys and their law partners not to accept employment from corporations of certain kind.

It shall be unlawful for the Attorney General or any assistant attorney general, or any district attorney, or any attorney at law associated in the practice as attorney or counselor at law with any attorney general or district attorney, to accept employment from or to represent as attorney or counselor at law any railroad corporation, street railway corporation, telephone or telegraph corporation, express company, or other common carrier, or public service corporation whatsoever, and any attorney violating this section shall be guilty of a misdemeanor and, on conviction, shall be fined in a sum not less than Ten Dollars ($10.00) nor more than One Hundred Dollars ($100.00), and shall forfeit his license to practice law in this state.

HISTORY: Codes, Hemingway’s 1917, § 199; 1930, § 3702; 1942, § 8674; Laws, 1908, ch. 129; Laws, 1944, ch. 305; reenacted without substantive change, Laws, 1983, ch. 457, § 12; reenacted, Laws, 1991, ch. 560, § 12; reenacted without change, Laws, 1999, ch. 372, § 13; reenacted without change, Laws, 2003, ch. 524, § 12; reenacted without change, Laws, 2006, ch. 471, § 12, eff from and after July 1, 2006.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Duty of attorney general to assist and advise public service commission, see §7-5-49.

Power of railroad corporation to sue and be sued, see §77-9-145.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Rules regarding conflicts of interest, see Miss. Rules of Professional Conduct, Rules 1.7 through 1.9.

RESEARCH REFERENCES

ALR.

Sufficiency of screening measures (Chinese Wall) designed to prevent disqualification of law firm, member of which is disqualified for conflict of interest. 68 A.L.R. Fed. 687.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law §§ 188 et seq.

CJS.

7A C.J.S., Attorney and Client §§ 78-88.

§ 73-3-53. Repealed.

Repealed by Laws of 1983, ch. 457, § 18, eff from and after July 1, 1983.

[Codes, Hutchinson’s 1848, ch. 26, art. 3(6); 1857, ch. 9, art. 7; 1871, § 2250; 1880, § 2404; 1892, § 216; 1906, § 223; Hemingway’s 1917, § 200; 1930 § 3703; 1942, § 8675]

Editor’s Notes —

Former §73-3-53 provided for penalties for misconduct of attorneys.

§ 73-3-55. Unlawful to practice law without license; certain abstract companies may certify titles.

It shall be unlawful for any person to engage in the practice of law in this state who has not been licensed according to law. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished in accordance with the provisions of Section 97-23-43. Any person who shall for fee or reward or promise, directly or indirectly, write or dictate any paper or instrument of writing, to be filed in any cause or proceeding pending, or to be instituted in any court in this state, or give any counsel or advice therein, or who shall write or dictate any bill of sale, deed of conveyance, deed of trust, mortgage, contract, or last will and testament, or shall make or certify to any abstract of title to real estate other than his own or in which he may own an interest, shall be held to be engaged in the practice of law. This section shall not, however, prevent title or abstract of title guaranty companies incorporated under the laws of this state from making abstract or certifying titles to real estate where it acts through some person as agent, authorized under the laws of the State of Mississippi to practice law; nor shall this section prevent any abstract company chartered under the laws of the State of Mississippi with a paid-up capital of Fifty Thousand Dollars ($50,000.00) or more from making or certifying to abstracts of title to real estate through the president, secretary or other principal officer of such company.

HISTORY: Codes, 1906, § 230; Hemingway’s 1917, § 207; 1930, § 3710; 1942, § 8682; Laws, 1926, ch. 257; reenacted and amended, Laws, 1983, ch. 457, § 13; reenacted, Laws, 1991, ch. 560, § 13; reenacted without change, Laws, 1999, ch. 372, § 14; reenacted without change, Laws, 2003, ch. 524, § 13; reenacted without change, Laws, 2006, ch. 471, § 13, eff from and after July 1, 2006.

Editor’s Notes —

Laws of 1999, ch. 372, § 1, provides:

“SECTION 1. Sections 73-3-2 through 73-3-59, which create the Board of Bar Admissions and prescribe its duties and powers, and which provide certain regulations regarding the practice of law in this state, shall stand repealed as of December 31, 2000.”

Laws of 2000, ch. 548, § 1, provides:

“SECTION 1. Sections 73-3-2 through 73-3-59, which create the Board of Bar Admissions and prescribe its duties and powers, and which provide certain regulations regarding the practice of law in this state, shall stand repealed as of December 31, 2003.”

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Injunctions to restrain unlawful practice of profession, see §73-51-1.

Title insurance generally, see §§83-15-1 et seq.

Criminal offense of practicing as an attorney without having obtained license, see §97-23-43.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Unauthorized practice of law, see Miss. Rules of Professional Conduct, Rule 5.5.

JUDICIAL DECISIONS

1. In general.

Paralegal’s email transmitting a fee bill to the trial judge did not amount to the unauthorized practice of law because the attorney wholly failed to show how the paralegal’s statement in an email amount to the practice of law, had anything to do with legal advice, or required any knowledge of law whatsoever. Smith v. Hickman, Goza & Spragins, PLLC, 265 So.3d 139, 2019 Miss. LEXIS 22 (Miss. 2019).

Because the statute specifically prohibited any person from engaging in the practice of law in the State who had not been licensed according to law, there was no error in the circuit court’s denial of defendant’s request for a “next friend” counsel who was not a licensed attorney. Caissie v. State, 254 So.3d 849, 2018 Miss. App. LEXIS 110 (Miss. Ct. App.), cert. denied, 254 So.3d 170, 2018 Miss. LEXIS 410 (Miss. 2018), cert. denied, — U.S. —, 205 L. Ed. 2d 36, 2019 U.S. LEXIS 4809 (U.S. 2019).

Chancery court properly dismissed a first wife’s motion to vacate because the wife’s attorney was not licensed to practice law in the United States and could not use power of attorney to circumvent the statutory requirements; the attorney was not regularly admitted to practice in the State, was not admitted pro hac vice, and was also the only person who signed the motion to vacate. Fernando v. Sapukotana (In re Estate of Sapukotana), 179 So.3d 1105, 2015 Miss. LEXIS 636 (Miss. 2015).

Chancery court erred in granting summary judgment to a Louisiana attorney in a Mississippi client’s legal malpractice action because there was a genuine issue of material fact as to whether the attorney’s letter to the client regarding his Mississippi personal injury claim violated Miss. Code Ann. §73-3-55 and voided the parties’ contingency-fee contract; there was evidence the attorney, who was not admitted to practice pro hac vice in Mississippi, appeared before the Mississippi courts for at least two months and gave legal advice to the client. Forbes v. Louis St. Martin, 145 So.3d 1184, 2013 Miss. App. LEXIS 124 (Miss. Ct. App. 2013), rev'd, 145 So.3d 1124, 2014 Miss. LEXIS 258 (Miss. 2014).

Bankruptcy court struck a motion filed by Chapter 7 debtors which asked the court to amend its judgment awarding a creditor $1,948,801 and finding that the debt was nondischargeable under 11 U.S.C.S. § 523(a)(2)(A) and (a)(4) because the motion was ghostwritten by a family member in violation of Fed. R. Bankr. P. 9011 and constituted the unauthorized practice of law under Miss. Code Ann. §73-3-55. The debtors presented no evidence that they had the ability to prepare the motion independently or that they were responsible for the strategy behind it. Lanier v. Futch (In re Futch), 2011 Bankr. LEXIS 1935 (Bankr. S.D. Miss. May 18, 2011).

Disbarred attorney’s petition for reinstatement was denied where the attorney worked during disbarment in the law office in which the attorney had formerly practiced; the issue of unauthorized practice of law is a matter to be considered in reinstatement proceedings, and, although a disbarred or suspended lawyer may work as a clerk or paralegal under certain stringent guidelines, such a lawyer may not work for a former firm. In re Parsons, 890 So. 2d 40, 2003 Miss. LEXIS 372 (Miss. 2003).

The defendant presented insufficient evidence that a disbarred attorney was engaged in the unauthorized practice of law when he assisted the plaintiff’s attorney by being present at depositions, making telephone calls concerning the trial, preparing proposed exhibits for the trial, working with the attorney for the plaintiffs and arranging for a court reporter for the trial, where discovery was conducted on the issue, but the disbarred attorney asserted his Fifth Amendment privilege and refused to answer questions. Holland v. Mayfield, 826 So. 2d 664, 1999 Miss. LEXIS 195 (Miss. 1999).

The prohibition against others than members of the bar of the State of Mississippi from engaging in the practice of law is not for the protection of the lawyer against lay competition, but is for the protection of the public. Darby v. Mississippi State Board of Bar Admissions, 185 So. 2d 684, 1966 Miss. LEXIS 1533 (Miss. 1966).

The acts designated in this section [Code 1942, § 8682] as constituting the practice of law are not all exclusive nor all inclusive, and manifestly there may be many others which might be performed by an unlicensed person which might also constitute the practice of law; this section simply provides that the designated acts under the defined circumstances constitute the unlawful practice of law, but it does not encroach on the constitutional power of the judiciary to determine that other acts may also do so. Darby v. Mississippi State Board of Bar Admissions, 185 So. 2d 684, 1966 Miss. LEXIS 1533 (Miss. 1966).

The element of compensation for legal services performed by one not licensed to practice law may be a factor in determining whether specified conduct is unlawful, but it is not controlling, and the character of the service and its relation to the public interest determines its classification, not whether compensation is charged. Darby v. Mississippi State Board of Bar Admissions, 185 So. 2d 684, 1966 Miss. LEXIS 1533 (Miss. 1966).

The state board of bar admissions, joined by an unincorporated county bar association and several individual members of the bar, had the right to bring an action to enjoin a chancery clerk from the unlawful practice of law. Darby v. Mississippi State Board of Bar Admissions, 185 So. 2d 684, 1966 Miss. LEXIS 1533 (Miss. 1966).

A chancery clerk who, through the exercise of discretion and the use of her own knowledge and judgment, drew deeds, deeds of trust, bills of sale, and title certificates to real property was not a mere scrivener but was engaged in the unlawful practice of law, and an injunction was properly granted to restrain her from continuing these activities. Darby v. Mississippi State Board of Bar Admissions, 185 So. 2d 684, 1966 Miss. LEXIS 1533 (Miss. 1966).

OPINIONS OF THE ATTORNEY GENERAL

The practice of public adjusting is not per se the unauthorized practice of law. Dale, Sept. 14, 2005, A.G. Op. 05-0481.

RESEARCH REFERENCES

ALR.

Services in connection with tax matters as practice of law. 9 A.L.R.2d 797.

Drafting, or filling in blanks in printed forms, of instruments relating to land real-estate agents, brokers, or managers as practice of law. 53 A.L.R.2d 788.

Trust company’s acts as fiduciary as practice of law. 69 A.L.R.2d 404.

Title examination activities by lending institution, insurance company, or title and abstract company as illegal practice of law. 85 A.L.R.2d 184.

Sale of books or forms designed to enable layman to achieve legal results without assistance of attorney as unauthorized practice of law. 71 A.L.R.3d 1000.

Propriety and effect of law students acting as counsel in court suit. 3 A.L.R.4th 358.

Right of party litigant to defend or counterclaim on ground that opposing party or his attorney is engaged in unauthorized practice of law. 7 A.L.R.4th 1146.

Layman’s assistance to party in divorce proceeding as unauthorized practice of law. 12 A.L.R.4th 656.

Contracts by organizations in business of providing evidence, witness, or research assistance to legal counsel in specific litigation. 15 A.L.R.4th 1255.

Validity and construction of contracts by organizations in business of providing expert witnesses, research assistance, and consultation services to attorneys in specific litigation. 70 A.L.R.5th 513.

What constitutes “unauthorized practice of law” by out-of-state counsel? 83 A.L.R.5th 497.

What constitutes unauthorized practice of law by paralegal. 109 A.L.R.5th 275.

Unauthorized practice of law-Real estate closings. 119 A.L.R.5th 1.

Drafting of Will or Other Estate-Planning Activities as Illegal or Unauthorized Practice of Law. 25 A.L.R. 6th 323.

Actionability under Federal Civil Rights Acts with respect to proceedings to discipline attorney, to regulate admission to practice of law, or to restrain unauthorized practice of law. 9 A.L.R. Fed. 422.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law §§ 119, 120 et seq.

2 Am. Jur. Pl & Pr Forms (Rev), Attorneys at Law, Forms 351 et seq.

CJS.

7 C.J.S., Attorney and Client §§ 26 et seq.

§ 73-3-57. Unlawful to encourage litigation.

It shall be unlawful for an attorney at law licensed in this or any other state, either before or after action brought, to promise, or give or offer to promise or give, a valuable consideration to any person as an inducement to placing, or in consideration of having placed in his hands, or in the hands of any partnership of which he is a member, a demand of any kind, for the purpose of bringing suit or making claim against another, or to employ a person to search for and procure clients to be brought to such attorney.

HISTORY: Codes, 1906, § 231; Hemingway’s 1917, § 208; 1930, § 3711; 1942, § 8683; reenacted without change, Laws, 1983, ch. 457, § 14; reenacted, Laws, 1991, ch. 560, § 14; reenacted without change, Laws, 1999, ch. 372, § 15; reenacted without change, Laws, 2003, ch. 524, § 14; reenacted without change, Laws, 2006, ch. 471, § 14; Laws, 2013, ch. 556, § 2, eff from and after July 1, 2013.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2013 amendment inserted “licensed in this or any other state” near the beginning of the paragraph.

Cross References —

Penalty for violation of the provisions of this section, see §73-3-59.

Criminal offense of conspiring falsely to institute or maintain action or suit, see §97-1-1.

Criminal offense of champerty and maintenance, see §§97-9-11 et seq.

JUDICIAL DECISIONS

1. In general.

2. Attorney advancing “living expenses.”

1. In general.

The decisions of courts in other jurisdictions as to what constitutes champerty and maintenance under the common law aid in the proper construction and enforcement of the champerty and maintenance statute. Whelchel v. Stennett, 192 Miss. 241, 5 So. 2d 418, 1942 Miss. LEXIS 2 (Miss. 1942).

An alleged contract, whereby a detective brought a client’s case to attorneys, and agreed that, in consideration of their promise to pay him one-third of their contingent fee or a percentage of the amount which might be recovered in the action, the detective would work up and furnish evidence for the plaintiff, and investigate the juries serving at the term of court at which the case should be tried, violated the champerty and maintenance statute. Whelchel v. Stennett, 192 Miss. 241, 5 So. 2d 418, 1942 Miss. LEXIS 2 (Miss. 1942).

Evidence disclosing attorney stirred up litigation and purchased papers coming into employee’s hands and wrongfully withheld from employer held to warrant disbarment. In re Latham, 162 Miss. 233, 139 So. 457, 1932 Miss. LEXIS 136 (Miss. 1932).

Contract wherein attorneys assumed to pay expense of contemplated litigation, including cost of expert testimony, held invalid. Harrell v. Daniel & Greene, 151 Miss. 761, 118 So. 899, 1928 Miss. LEXIS 376 (Miss. 1928).

Attorney contracting for contingent fee and taking assignment of portion of right of action is not deprived of right of action thereon because third party, without his knowledge, authority, or connivance, promised benefits to client for placing cause of action with such attorney, if such promise was not disclosed at or before time of making contract. Lamar Hardwood Co. v. Case, 143 Miss. 277, 107 So. 868, 1926 Miss. LEXIS 265 (Miss. 1926).

2. Attorney advancing “living expenses.”

Chancery court erred in granting summary judgment to a Louisiana attorney in a Mississippi client’s legal malpractice action because there was a genuine issue of material fact as to whether the attorney’s conduct in advancing over $ 100,000 to the client for “living expenses” violated Miss. R. Prof. Conduct 1.8(e), Miss. Code Ann. §§97-9-11 and73-3-57, and voided the parties’ contingency-fee contract. Forbes v. Louis St. Martin, 145 So.3d 1184, 2013 Miss. App. LEXIS 124 (Miss. Ct. App. 2013), rev'd, 145 So.3d 1124, 2014 Miss. LEXIS 258 (Miss. 2014).

RESEARCH REFERENCES

ALR.

Assertion of defense of champerty in action by champertous assignee. 22 A.L.R.2d 1000.

Modern status of law regarding solicitation of business by or for attorney. 5 A.L.R.4th 866.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law §§ 73 et seq.

35 Am. Jur. Trials 225, Physician’s Countersuits.

CJS.

7A C.J.S., Attorney and Client § 87.

§ 73-3-59. Unlawful to encourage litigation; penalty.

Any attorney at law who shall violate the provisions of the preceding section shall be guilty of a misdemeanor and shall be removed and disbarred from acting as an attorney at law, and any person who shall, before or after suit brought, receive or agree to receive from any attorney at law, compensation for services in seeking out or placing in the hands of an attorney a demand of any kind for suit or a compromise, shall be guilty of a misdemeanor.

HISTORY: Codes, 1906, § 232; Hemingway’s 1917, § 209; 1930, § 3712; 1942, § 8684; reenacted without change, Laws, 1983, ch. 457, § 15; reenacted, Laws, 1991, ch. 560, § 15; reenacted without change, Laws, 1999, ch. 372, § 16; reenacted without change, Laws, 2003, ch. 524, § 15; reenacted without change, Laws, 2006, ch. 471, § 15, eff from and after July 1, 2006.

Amendment Notes —

The 2003 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

JUDICIAL DECISIONS

1. In general.

The decisions of courts in other jurisdictions as to what constitutes champerty and maintenance under the common law aid in the proper construction and enforcement of the champerty and maintenance statute. Whelchel v. Stennett, 192 Miss. 241, 5 So. 2d 418, 1942 Miss. LEXIS 2 (Miss. 1942).

An alleged contract, whereby a detective brought a client’s case to attorneys, and agreed that, in consideration of their promise to pay him one-third of their contingent fee of a percentage of the amount which might be recovered in the action, the detective would work up and furnish evidence for the plaintiff, and investigate the juries serving at the term of court at which the case should be tried, violated the champerty and maintenance statute. Whelchel v. Stennett, 192 Miss. 241, 5 So. 2d 418, 1942 Miss. LEXIS 2 (Miss. 1942).

Evidence disclosing attorney stirred up litigation and purchased papers coming into employee’s hands and wrongfully withheld from employer held to warrant disbarment. In re Latham, 162 Miss. 233, 139 So. 457, 1932 Miss. LEXIS 136 (Miss. 1932).

RESEARCH REFERENCES

Am. Jur.

35 Am. Jur. Trials 225, Physician’s Countersuits.

§§ 73-3-61 and 73-3-63. Repealed.

Repealed by Laws of 1979, ch. 486, § 10, eff from and after November 1, 1979.

§73-3-61. [Codes, 1942, § 8662.9; Laws, 1954, ch. 213, § 13]

§73-3-63. [En Laws, 1973, ch. 381, § 2]

Editor’s Notes —

Former §73-3-61 provided that certain sections were to be known as the Bar Standards Law.

Former §73-3-63 provided for the payment of all examination and license fees received by the board of law admissions to the state treasurer for deposit in a special fund to the credit of the board, and for the expenditure of such fund.

Article 3. Bar Association.

§ 73-3-101. Bar association created.

The resident lawyers now authorized to practice law in the State of Mississippi are hereby and herewith constituted an association which shall be known as the Mississippi Bar.

HISTORY: Codes, 1942, § 8685; Laws, 1932, ch. 121; reenacted without change, Laws, 1983, ch. 302, § 1; Laws, 1991, ch. 526, § 1; reenacted, Laws, 1992, ch. 515, § 1, eff from and after July 1, 1992.

Cross References —

Exemption of funds collected and disbursed by a state agency created under this article from certain provisions governing state agencies, see §27-104-27.

Provision of specimen copy of legal expense insurance subscriber contract to state bar association, see §83-49-13.

Requirements for admission to Bar, see Rules Governing Admission to the Mississippi Bar, Rules I through XIV.

JUDICIAL DECISIONS

1. In general.

The State Bar Law does not represent an encroachment by the legislature upon the powers of judiciary, the legislature having the power to establish an integrated bar. Board of Comm'rs v. Collins, 214 Miss. 782, 59 So. 2d 351, 1952 Miss. LEXIS 521 (Miss. 1952).

Under the State Bar Law, the board of commissioners of the state bar could seek to enjoin and prohibit the practice of law by an attorney who had been suspended from membership for non-payment of dues. Board of Comm'rs v. Collins, 214 Miss. 782, 59 So. 2d 351, 1952 Miss. LEXIS 521 (Miss. 1952).

In view of its membership, its functions and the purposes of its creation, the state bar possesses none of the attributes of a private corporation, and the State Bar Law is in no sense a local or private act. Board of Comm'rs v. Collins, 214 Miss. 782, 59 So. 2d 351, 1952 Miss. LEXIS 521 (Miss. 1952).

RESEARCH REFERENCES

ALR.

Use of compulsory bar association dues or fees for activities from which particular members dissent. 40 A.L.R.4th 672.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law § 7.

CJS.

7 C.J.S., Attorney and Client § 7.

§ 73-3-103. All lawyers members.

All resident persons now or hereafter admitted to practice law in the state shall be members of this association.

HISTORY: Codes, 1942, § 8686; Laws, 1932, ch. 121; reenacted without change, Laws, 1983, ch. 302, § 2; reenacted, Laws, 1991, ch. 526, § 2; reenacted, Laws, 1992, ch. 515, § 2, eff from and after July 1, 1992.

Cross References —

Requirements of admission to Bar, see Rules Governing Admission to the Mississippi Bar, Rules I through XIV.

§ 73-3-105. Bar association; officers; bylaws.

The bar shall elect a president, a first vice president and president-elect, and a second vice president, who shall each serve for a term of one (1) year. None of such officers shall be eligible to succeed himself.

The bar shall adopt bylaws for its government, fixing the term of office for the officers and members of the Board of Commissioners, providing for the times and methods of the election of officers and members of the Board of Commissioners, authorizing sections of the bar, providing for committees through which the activities of the bar would be carried on, prescribing the methods by which the time for the annual meetings of the bar and of the Board of Commissioners shall be set, prescribing the manner in which special meetings of the officers, the board, and the bar may be called and held, authorizing the board to elect an executive committee with a determination of its composition and what powers may be delegated to such executive committee, and covering other proper subjects. Such bylaws shall not be inconsistent with the provisions of this chapter.

HISTORY: Codes, 1942, § 8724; Laws, 1932, ch. 121; Laws, 1977, ch. 333, § 1; reenacted, Laws, 1983, ch. 302, § 3; Laws, 1991, ch. 526, § 3; reenacted, Laws, 1992, ch. 515, § 3, eff from and after July 1, 1992.

§ 73-3-107. Governing board.

The bar shall be controlled and governed by a Board of Commissioners consisting of as many members as shall be established by the bylaws of the bar or any amendments thereto, adopted at an annual meeting of the bar.

HISTORY: Codes, 1942, § 8687; Laws, 1932, ch. 121; Laws, 1975, ch. 919, § 1; Laws, 1977, ch. 333, § 2; reenacted, Laws, 1983, ch. 302, § 4; Laws, 1991, ch. 526, § 4; reenacted, Laws, 1992, ch. 515, § 4, eff from and after July 1, 1992.

Cross References —

Board of commissioners acting as agency of court for disciplinary purposes, see §73-3-305.

§ 73-3-109. Governing board; quorum.

At all meetings of the board of commissioners a majority of the entire membership shall constitute a quorum for action upon any questions that may come before the board except such questions as this article or the by-laws of the organization may require to be passed upon by a larger portion of the membership.

HISTORY: Codes, 1942, § 8690; Laws, 1932, ch. 121; reenacted without change, Laws, 1983, ch. 302, § 5; reenacted, Laws, 1991, ch. 526, § 5; reenacted, Laws, 1992, ch. 515, § 5, eff from and after July 1, 1992.

§ 73-3-111. Secretary; election; term of office; duties.

A secretary, who may be designated as executive director, shall be elected by the Board of Commissioners and shall hold office for one (1) year.

The secretary shall keep and maintain rolls which shall contain the name and place of residence of every lawyer in the state. He may adopt such means as he thinks best to make the rolls accurate and complete. There shall be made a separate roll for each circuit court district.

The secretary shall keep minutes of all meetings of the Board of Commissioners and such minutes, signed by the chairman and secretary, shall be the evidence of the proceedings had and actions taken by the board. He shall also keep the minutes of each meeting of the bar, which minutes signed by him and by the presiding officer shall be evidence of the proceedings had and actions taken by the bar.

HISTORY: Codes, 1942, §§ 8691, 8693; Laws, 1932, ch. 121; Laws, 1976, ch. 339; reenacted, Laws, 1983, ch. 302, § 6; Laws, 1991, ch. 526, § 6; reenacted, Laws, 1992, ch. 515, § 6, eff from and after July 1, 1992.

§ 73-3-113. Secretary to act as treasurer; bond required; accounting of revenues and expenditures in proposed budget; independent audit of association.

The secretary shall also perform the duties of treasurer. He shall make bond for the safe handling of all funds for which he may become responsible, the bond to be in such penalty, with such sureties, and conditioned as the Board of Commissioners may require. Annually, and not less than thirty (30) days in advance of the date the Board of Commissioners is to consider the proposed budget of the bar for the next fiscal year, the secretary shall publish in an official publication of the bar a detailed accounting of all projected revenues and each item of expenditure in the proposed budget. Items of expenditure relating to disciplinary functions of the bar shall appear separately from those relating to nondisciplinary functions. In addition, the secretary shall annually cause to be made an independent audit by a certified public accountant of all receipts, expenditures and funds under the control of the bar and shall publish such audit in an official publication of the bar.

HISTORY: Codes, 1942, § 8692; Laws, 1932, ch. 121; reenacted and amended, Laws, 1983, ch. 302, § 7; Laws, 1991, ch. 526, § 7; reenacted, Laws, 1992, ch. 515, § 7, eff from and after July 1, 1992.

Cross References —

Exemption of funds collected by the bar association from provisions governing reports of state agencies, see §27-104-27.

§ 73-3-115. Location of office of secretary; meeting of board of commissioners.

The secretary shall maintain his office at the seat of government. But the meetings of the Board of Commissioners shall be at such places as the board may select from time to time or as may be designated in calls made as herein authorized. The meetings of the bar shall be held at such places as the bar may from time to time select. The secretary shall attend all meetings of the board and all meetings of the bar.

HISTORY: Codes, 1942, § 8694; Laws, 1932, ch. 121; Laws, 1970, ch. 352, § 1; reenacted without change, Laws, 1983, ch. 302, § 8; Laws, 1991, ch. 526, § 8; reenacted, Laws, 1992, ch. 515, § 8, eff from and after July 1, 1992.

§ 73-3-117. Compensation.

The secretary shall receive a salary in such amount and payable in such manner as the Board of Commissioners may prescribe from time to time. No other officer shall be paid a salary. But the traveling expenses of members of the board attending meetings of the board and such expenses of committees making trips on business of the bar shall be paid.

HISTORY: Codes, 1942, § 8695; Laws, 1932, ch. 121; reenacted without change, Laws, 1983, ch. 302, § 9; Laws, 1991, ch. 526, § 9; reenacted, Laws, 1992, ch. 515, § 9, eff from and after July 1, 1992.

§ 73-3-119. Membership required.

Enrollment on the list of members of the bar and the payment of annual enrollment fees as required hereby shall be prerequisites to the continued practice by any lawyer already admitted and to the engaging in the practice by persons hereafter admitted. The date on which the provisions of this section shall become operative will be determined in the manner hereinafter provided.

HISTORY: Codes, 1942, § 8696; Laws, 1932, ch. 121; reenacted without change, Laws, 1983, ch. 302, § 10; Laws, 1991, ch. 526, § 10; reenacted, Laws, 1992, ch. 515, § 10, eff from and after July 1, 1992.

RESEARCH REFERENCES

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law § 7.

CJS.

7 C.J.S., Attorney and Client § 7.

§ 73-3-120. Types of membership; active; inactive; continuing legal education requirements.

Members of the bar shall be divided into active and inactive membership classes which shall be defined as follows:

“Active member” means any person admitted to practice law in this state and who is engaged in the practice of law in this state. Except as otherwise provided in Section 73-3-125, all active members shall be entitled to vote and hold office in the bar.

“Inactive member” means any member, in good standing, who is not engaged in the practice of law in this state. A person may, upon written request, be enrolled as an inactive member. Inactive members shall not be entitled to vote and hold office in the bar.

As used in this section, the “practice of law” shall include any person holding himself out as a practicing attorney or occupying any position in which he may be called upon to give legal advice or counsel or to examine the law or to pass upon the legal effect of any act, document or law.

The Mississippi Bar shall promulgate rules and regulations regarding continuing legal education requirements between active and inactive status.

HISTORY: Laws, 1987, ch. 442, § 1; Laws, 1991, ch. 526, § 11; reenacted, Laws, 1992, ch. 515, § 11, eff from and after July 1, 1992.

JUDICIAL DECISIONS

1. Right to counsel.

Defendant’s conviction for felony child abuse was appropriate because his claim that his attorney was an inactive member of the bar and that defendant was unaware of the attorney’s status change, did not deprive defendant of his right to counsel. There was no question that the attorney was engaged in the practice of law during his representation of defendant and the attorney’s recent status change with The Mississippi Bar was harmless error because defendant failed to show any prejudice as a result of the attorney’s status and because such status had no effect on the jury’s determination of guilt. Henry v. State, 40 So.3d 621, 2010 Miss. App. LEXIS 47 (Miss. Ct. App. 2010).

§ 73-3-121. Change of residence.

Any lawyer changing his residence from one circuit to another shall promptly notify the secretary who shall make the changes on his rolls to show such person’s name on the roll of the proper district.

HISTORY: Codes, 1942, § 8697; Laws, 1932, ch. 121; reenacted without change, Laws, 1983, ch. 302, § 11; reenacted, Laws, 1991, ch. 526, § 12; reenacted, Laws, 1992, ch. 515, § 12, eff from and after July 1, 1992.

§ 73-3-123. Enrollment fees.

  1. Each member of the bar shall, unless exempt by virtue of Section 73-3-125 and Section 33-1-39, pay enrollment fees each year in an amount as established by the board of commissioners, but not to exceed the sum of Four Hundred Dollars ($400.00)for those members admitted to practice law for three (3) years or more; and Two Hundred Sixty Dollars ($260.00) for those members admitted to practice law for one (1) year, but less than three (3) years; and Two Hundred Dollars ($200.00) for those members admitted to practice law less than one (1) year; and Fifty Dollars ($50.00) for those members on inactive status. All enrollment fees shall be paid for the same period, that is, for the period of one (1) year beginning on the day and month to be determined as provided in Section 73-3-127. The enrollment fees shall be paid to the secretary of the bar.
  2. The Board of Bar Commissioners shall increase enrollment fees within the limitations imposed by subsection (1) of this section by not more than the minimum increment necessary to cover the annual expenses of The Mississippi Bar.

HISTORY: Codes, 1942, § 8699; Laws, 1932, ch. 121; Laws, 1952, ch. 241; Laws, 1960, ch. 289; Laws, 1968, ch. 374, § 1; Laws, 1973, ch. 479, § 1; Laws, 1976, ch. 482; Laws, 1981, ch. 485, § 1; reenacted and amended, Laws, 1983, ch. 302, § 12; Laws, 1985, ch. 333; Laws, 1987, ch. 442, § 2; Laws, 1991, ch. 526, § 13; reenacted, Laws, 1992, ch. 515, § 13; Laws, 1995, ch. 556, § 2; Laws, 2005, ch. 415, § 1; Laws, 2007, ch. 309, § 4, eff from and after passage (approved Mar. 8, 2007.).

Amendment Notes —

The 2005 amendment rewrote the section to revise the enrollment fees for the Mississippi Bar.

The 2007 amendment added “and Section 33-1-39,” in the first sentence of (1).

Cross References —

Extension of license issued active military personnel for period of time following return from federal active duty, see §33-1-39.

RESEARCH REFERENCES

ALR.

Use of compulsory bar association dues or fees for activities from which particular members dissent. 40 A.L.R.4th 672.

Validity of state or municipal tax or license fee upon occupation of practicing law. 50 A.L.R.4th 467.

§ 73-3-125. Dues; persons exempt or excepted.

All lawyers over the age of seventy-five (75) years, and the judges of the Supreme Court, Court of Appeals and circuit, chancery and county judges, United States magistrates, judges of the bankruptcy courts, the judges of the federal courts, and federal administrative law judges are exempt from the payment of enrollment fees. Lawyers over the age of seventy-five (75) years and judges of the classes enumerated in this section shall be active members except that no judge shall be eligible to membership on the Board of Commissioners. Lawyers who have retired from the practice of law because of age, serious illness or permanent disability may be placed on inactive status and shall be exempt from the payment of enrollment fees.

HISTORY: Codes, 1942, §§ 8698, 8700; Laws, 1932, ch. 121; Laws, 1942, ch. 186; Laws, 1954, ch. 235; Laws, 1981, ch. 485, § 2; reenacted, Laws, 1983, ch. 302, § 13; Laws, 1987, ch. 442, § 3; Laws, 1991, ch. 526, § 14; reenacted, Laws, 1992, ch. 515, § 14; Laws, 2000, ch. 340, § 1; Laws, 2003, ch. 333, § 1, eff from and after July 1, 2003.

Amendment Notes —

The 2003 amendment, in the first sentence, inserted “and federal administrative law judges” preceding “are exempt from the payment of enrollment fees,” and made a minor stylistic change.

Cross References —

Applicability of this section to active members of bar association, see §73-3-120.

Amount of annual dues payable by all members of the bar association except those exempted by this section, see §73-3-123.

RESEARCH REFERENCES

ALR.

Validity of state or municipal tax or license fee upon occupation of practicing law. 50 A.L.R.4th 467.

§ 73-3-127. Dues; failure to pay after notice.

Any member failing to pay any enrollment fees within sixty (60) days after the same become due shall be considered delinquent and shall be given written notice of his delinquency mailed to him by United States mail, addressed to his last known address. If the delinquent fails to pay such enrollment fees within thirty (30) days after written notice of delinquency, he shall stand suspended from membership in the Mississippi Bar. It shall be the duty of the secretary, upon any member’s becoming suspended as above stated, to notify the delinquent in writing by United States certified mail of his suspension, and to notify the courts of the county of his last known address of such fact, viz; the circuit court, the chancery court and the county court, if there be a county court, by mailing such notice to the presiding judge and to the clerk of such court. Any member shall be reinstated upon payment of delinquent enrollment fees and a penalty in an amount equal to one-half (1/2) of the delinquent enrollment fees. The secretary, upon such payment, shall forthwith notify the courts above-mentioned of such fact and the clerks thereof shall file and preserve such notice.

HISTORY: Codes, 1942, § 8710; Laws, 1932, ch. 121; Laws, 1962, ch. 332; reenacted without change, Laws, 1983, ch. 302, § 14; Laws, 1985, ch. 334; Laws, 1987, ch. 442, § 4; Laws, 1991, ch. 526, § 15; reenacted, Laws, 1992, ch. 515, § 15, eff from and after July 1, 1992.

Cross References —

Payment of annual dues for the period determined by this section, see §73-3-123.

JUDICIAL DECISIONS

1. Imposition of discipline when attorney is under suspension.

In a reciprocal disciplinary proceeding in which an attorney had been suspended in Mississippi for failing to pay his enrollment fees, the attorney was still subject to the disciplinary jurisdiction of the Mississippi Supreme Court, and, pursuant to Miss. R. Disc. St. Bar 1, the Mississippi Supreme Court had exclusive and inherent jurisdiction of matters pertaining to attorney discipline. Miss. Bar v. Inserra, 38 So.3d 605, 2009 Miss. LEXIS 446 (Miss. 2009).

Where the attorney was under suspension in Mississippi, pursuant to Miss. Code Ann. §73-3-127, for failure to pay bar enrollment fees, the Mississippi Supreme Court imposed reciprocal discipline in the form of a public reprimand against the attorney that was to become effective in the event that the attorney sought reinstatement. Miss. Bar v. Inserra, 855 So. 2d 447, 2003 Miss. LEXIS 256 (Miss. 2003).

RESEARCH REFERENCES

ALR.

Validity of state or municipal tax or license fee upon occupation of practicing law. 50 A.L.R.4th 467.

Reciprocal Discipline of Attorneys – Commingling or Other Mishandling of Client Funds. 45 A.L.R.6th 175.

§ 73-3-129. President; duties.

The president shall preside at all meetings of the bar, and shall have such duties as the bar may by its bylaws prescribe. In his absence, or in case of his inability to perform his duties they shall devolve upon the first vice president; and in the absence or inability to act of the first vice president the duties of the president shall be performed by the second vice president.

HISTORY: Codes, 1942, § 8701; Laws, 1932, ch. 121; reenacted without change, Laws, 1983, ch. 302, § 15; Laws, 1991, ch. 526, § 16; reenacted, Laws, 1992, ch. 515, § 16, eff from and after July 1, 1992.

§ 73-3-131. President; chairman of the board.

The president shall be a member and the chairman of the board of commissioners. In case he is absent from any meeting of the board, the vice president and president-elect shall preside; and in case the vice president and president-elect is absent from any meeting of the board, some other member of the board shall be selected by the members in attendance to preside at that meeting.

HISTORY: Codes, 1942, § 8702; Laws, 1932, ch. 121; Laws, 1977, ch. 333, § 3; reenacted and amended, Laws, 1983, ch. 302, § 16; reenacted, Laws, 1991, ch. 526, § 17; reenacted, Laws, 1992, ch. 515, § 17, eff from and after July 1, 1992.

§ 73-3-133. Vice-presidents.

The vice president and president-elect and the second vice president shall be members of the board of commissioners.

HISTORY: Codes, 1942, § 8703; Laws, 1932, ch. 121; Laws, 1977, ch. 333, § 4; reenacted and amended, Laws, 1983, ch. 302, § 17; reenacted, Laws, 1991, ch. 526, § 18; reenacted, Laws, 1992, ch. 515, § 18, eff from and after July 1, 1992.

§ 73-3-135. Vacancies.

Vacancies in any office, including the office of commissioner, shall be filled by the board of commissioners and any person so elected by the board of commissioners to fill a vacancy shall hold for the balance of the term of his immediate predecessor in office.

HISTORY: Codes, 1942, § 8704; Laws, 1932, ch. 121; reenacted without change Laws, 1983, ch. 302, § 18; reenacted, Laws, 1991, ch. 526, § 19; reenacted, Laws, 1992, ch. 515, § 19, eff from and after July 1, 1992.

§ 73-3-137. Vacancies; members absent.

If any member of the board shall be absent from three successive meetings thereof, unless the reason for his absence shall be temporary illness, the board may declare his office vacant and proceed to fill it as provided in the last preceding section.

HISTORY: Codes, 1942, § 8705; Laws, 1932, ch. 121; reenacted without change, Laws, 1983, ch. 302, § 19; reenacted, Laws, 1991, ch. 526, § 20; reenacted, Laws, 1992, ch. 515, § 20, eff from and after July 1, 1992.

§ 73-3-139. Board; election.

The membership of the bar shall establish by the adoption of bylaws and amendments thereto at any annual meeting of the bar the time, method and procedures for the election of officers and members of the board. The names of those persons nominated by any method other than by petition of the general membership shall be published in an official publication of the bar at least thirty (30) days in advance of the deadline for nominations by petition of the general membership to be filed, and the bylaws of the bar shall provide in addition to any other method for the nomination of officers and members of the board the manner and procedure by which the general membership of the bar may make nominations by petition. All bylaws of the bar in existence at the time of the adoption of this section shall continue in full force and effect, until such time as such bylaws may be amended by the membership of the bar in accordance with the provisions of the bar bylaws.

HISTORY: Codes, 1942, § 8706; Laws, 1932, ch. 121; Laws, 1977, ch. 333, § 5; reenacted and amended, Laws, 1983, ch. 302, § 20; Laws, 1991, ch. 526, § 21; reenacted, Laws, 1992, ch. 515, § 21, eff from and after July 1, 1992.

§ 73-3-140. Lease of office space.

The Board of Commissioners, any officer or the Executive Director of the Mississippi Bar shall not be authorized to lease any office space for the use of the Mississippi Bar if such space is being leased for an annual amount in excess of the annual amount paid by the State Supreme Court for its office space. The lease of any office space by the Board of Commissioners, an officer or the Executive Director of the Mississippi Bar for the use of the Mississippi Bar must be approved by the Department of Finance and Administration. The bylaws of the bar shall not be in conflict with the provisions of this section. The provisions of this section shall not apply to any lease existing as of July 1, 1991.

HISTORY: Laws, 1991, ch. 526, § 22; reenacted, Laws, 1992, ch. 515, § 22, eff from and after July 1, 1992.

§ 73-3-141. Duties of board.

The Mississippi Bar shall be governed by the Board of Commissioners which shall have the powers and duties in this article conferred and which shall be charged with the executive functions of the bar and with the duty to enforce the provisions of this article. But the Board of Commissioners shall observe general rules, not in conflict with the provisions of this article, adopted in the form of bylaws or otherwise by the bar.

HISTORY: Codes, 1942, § 8707; Laws, 1932, ch. 121; reenacted without change, Laws, 1983, ch. 302, § 21; Laws, 1991, ch. 526, § 23; reenacted, Laws, 1992, ch. 515, § 23, eff from and after July 1, 1992.

§ 73-3-143. Rules of conduct; advisory opinions.

  1. The board shall, subject to the approval of the justices of the Supreme Court, formulate reasonable rules governing the conduct of all persons admitted to practice.
  2. The Board of Commissioners shall render advisory opinions, upon the written request of any member of the bar, as to the validity or propriety of any proposed act or course of conduct.

HISTORY: Codes, 1942, § 8708; Laws, 1932, ch. 121; Laws, 1974, ch. 566, § 28; reenacted, Laws, 1983, ch. 302, § 22; Laws, 1991, ch. 526, § 24; reenacted, Laws, 1992, ch. 515, § 24, eff from and after July 1, 1992.

JUDICIAL DECISIONS

1. In general.

Statutes, regulating the bar and providing for procedure against members for misconduct, are generally regarded as prescribing a preferential method of procedure, which the court may, and in most cases ought, as a matter of discretion, to require to be followed but which is not exclusive; such statutes are not restrictive of the inherent powers which reside in courts to inquire into the conduct of their own officers, and to discipline them for misconduct. In re Higgins, 194 Miss. 838, 13 So. 2d 829, 1943 Miss. LEXIS 110 (Miss. 1943).

The fact that there was not a quorum of the bar commissioners present at meeting when disbarment proceedings were directed to be instituted against erring attorney did not invalidate such proceedings, since, apart from, and independent of, the statutes regulating the bar and the conduct of its members, the superior courts of this state have inherent power derived from their constitutional establishment to discipline members of the bar for misconduct. In re Higgins, 194 Miss. 838, 13 So. 2d 829, 1943 Miss. LEXIS 110 (Miss. 1943).

§ 73-3-145. Bar; recommendations; powers.

  1. It shall be the duty of the Mississippi Bar, by and through its president, to recommend to the State Legislature such legislation relating to the courts, to matters of pleading, practice and procedure, and any other legislation which in its judgment will improve the courts and the law, or render the members of the bar more efficient as ministers of justice and the courts more efficient as instrumentalities for its attainment.
  2. The bar shall have the right to make rules and bylaws not in conflict with any of the terms of this article concerning the selection and tenure of its officers and committees and their powers and duties, and generally for the control and regulation of the business of the board and of the bar.
  3. The bar shall have the authority to hold and conduct educational and social meetings and activities among the members of the bar, to publish journals and generally to do such things as in their judgment may tend to improve the educational and ethical standing of the bench and bar.

HISTORY: Codes, 1942, § 8709; Laws, 1932, ch. 121; reenacted without change, Laws, 1983, ch. 302, § 23; Laws, 1991, ch. 526, § 25; reenacted, Laws, 1992, ch. 515, § 25, eff from and after July 1, 1992.

§§ 73-3-147 through 73-3-169. Repealed.

Repealed by Laws of 1974, ch. 566, § 29, eff from and after July 1, 1974.

§73-3-147. [Codes, 1942, § 8711; Laws, 1932, ch. 121]

§73-3-149. [Codes, 1942, § 8712; Laws, 1932, ch. 121]

§73-3-151. [Codes, 1942, § 8713, Laws, 1932, ch. 121]

§73-3-153. [Codes, 1942, § 8714; Laws, 1932, ch. 121]

§73-3-155. [Codes, 1942, § 8715; Laws, 1932, ch. 121]

§73-3-157. [Codes, 1942, § 8716; Laws, 1932, ch. 121]

§73-3-159. [Codes, 1942, § 8717; Laws, 1932, ch. 121]

§73-3-161. [Codes, 1942, § 8718; Laws, 1932, ch. 121]

§73-3-163. [Codes, 1942, § 8720; Laws, 1932, ch. 121]

§73-3-165. [Codes, 1942, § 8721; Laws, 1932, ch. 121]

§73-3-167. [Codes, 1942, § 8722; Laws, 1932, ch. 121]

§73-3-169. [Codes, 1942, § 8723; Laws, 1932, ch. 121]

Editor’s Notes —

Laws of 1974, ch. 566, § 30, which repealed this section, effective July 1, 1974, provides as follows:

“SECTION 30. Nothing in this act shall be construed to defeat or affect in any manner whatsoever any proceeding, appeal or petition for reinstatement concerning any member or former member of the Mississippi State Bar commenced prior to the effective date of this act under the authority of the statutes hereby repealed.”

Former §73-3-147 provided for disbarment proceedings. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

Former §73-3-149 provided for suspension from practice. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

Former §73-3-151 provided for reprimands. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

Former §73-3-153 provided for reinstatement to practice. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

Former §73-3-155 provided that the disbarment and reinstatement proceedings be recorded. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

Former §73-3-157 conferred jurisdiction on the circuit and chancery courts to hear matters relating to disbarment. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

Former §73-3-159 provided for notice of disbarment proceedings. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

Former §73-3-161 provided for the disqualification of members of the board of commissioners in matters dealing with complaints made against board members. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

Former §73-3-163 dealt with how evidence was to be procured in disbarment proceedings. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

Former §73-3-165 stated the rights of the accused in matters relating to disbarment proceedings. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

Former §73-3-167 provided for the manner in which subpoenas were to be served in disbarment proceedings. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

Former §73-3-169 provided for the payment of fees to witnesses in disbarment proceedings. Matters relating to the suspension or disbarment of attorneys at law may now be found in §§73-3-301 et seq.

§ 73-3-171. Regulation of fees prohibited.

The board of commissioners shall have no authority to regulate the fees or charges of lawyers for the rendition of their professional services. Nor shall it in any way undertake to regulate such fees or charges.

HISTORY: Codes, 1942, § 8719; Laws, 1932, ch. 121; reenacted, Laws, 1991, ch. 526, § 26; reenacted, Laws, 1992, ch. 515, § 26, eff from and after July 1, 1992.

JUDICIAL DECISIONS

1. In general.

An attorney’s fee award to a judgment creditor of 1/3 the amount of the indebtedness in collection matters is reasonable. Dynasteel Corp. v. Aztec Industries, Inc., 611 So. 2d 977, 1992 Miss. LEXIS 828 (Miss. 1992).

While Mississippi Code §73-3-171 prohibits the regulation of attorney fees by the Board of Commissioners, it does not restrict the power of the Supreme Court to discipline attorneys for unprofessional and unethical conduct based upon violation of disciplinary rules, such as Mississippi State Bar Asso. v. Mississippi Attorney, 489 So. 2d 1081, 1986 Miss. LEXIS 2466 (Miss. 1986).

RESEARCH REFERENCES

ALR.

Attorney’s assertion of retaining lien as violation of ethical code or rules governing professional conduct. 69 A.L.R.4th 974.

Am. Jur.

3 Am. Jur. Legal Forms 2d, Attorneys at Law §§ 30:151 et seq. (compensation of attorneys).

Lawyers’ Edition.

Governmental regulation of attorneys’ fees as violating due process under Federal Constitution’s Fifth or Fourteenth Amendment – Supreme Court cases. 108 L. Ed. 2d 1034.

Article 5. Law Students.

§ 73-3-201. Short title.

This article shall be known as “The Law Student Limited Practice Act.”

HISTORY: Codes, 1942, § 8684-01; Laws, 1971, ch. 466, § 1; Laws, 1996, ch. 532, § 1, eff from and after July 1, 1996.

§ 73-3-203. Law student program in public interest.

It is in the public interest to encourage the establishment and operation of effective legal internship and clinical legal education programs by law schools in this state and the utilization of services of law students in such programs as a form of legal education.

HISTORY: Codes, 1942, § 8684-02; Laws, 1971, ch. 466, § 2; Laws, 1996, ch. 532, § 2, eff from and after July 1, 1996.

§ 73-3-205. Definitions; qualifications.

For purposes of this article, the following words and terms shall have the following meanings:

“Law student” means a law student regularly enrolled in a law school in this state who (i) if enrolled and assigned in a legal internship program, has completed two-thirds (2/3) of the required number of hours for graduation from that school, or (ii) if enrolled in a clinical legal education course, has completed one-half (1/2) of the required number of hours for graduation from that school.

“Legal internship program” means a program or course for academic credit which is established by a law school of this state and directed or generally supervised by a member of the faculty or staff of the school in which law students are assigned to work under the supervision of supervising attorneys.

“Supervising attorneys” means attorneys who: (i) are licensed to practice law in Mississippi and who are public officials, or (ii) are licensed to practice law in Mississippi and have actively practiced more than three (3) years in public offices, agencies or departments, in public defender offices, or in nonprofit or publicly funded legal services or agencies and to whom students are assigned as interns.

“Clinical legal education course” means a course for academic credit which is established by a law school in this state in which law students assist a clinical teacher in providing legal services to clients under the direct and regular personal supervision of the clinical teacher.

“Clinical teacher” means a member of the faculty or staff of a law school in this state who teaches and supervises law students in a clinical legal education course and is licensed to practice law in Mississippi.

HISTORY: Codes, 1942, § 8684-03; Laws, 1971, ch. 466, § 3; Laws, 1996, ch. 532, § 3, eff from and after July 1, 1996.

§ 73-3-207. Authorization to practice law; conditions; compensation.

A law student enrolled in a legal internship program or a clinical legal education course is authorized to engage in limited practice in the state and federal courts of this state with the following conditions and limitations:

The law student will petition the court and take the oath, as prescribed in this article, and be admitted to limited practice by an order of a judge of a circuit or chancery court, as prescribed in this article, in the district in which the student will practice, or by an order of a United States District Judge or United States Magistrate Judge of the United States District Court for the Southern District of Mississippi or the United States District Court for the Northern District of Mississippi.

Upon filing the oath and order in the office of the clerk of that court, the law student will be authorized to engage in limited practice in any state or federal court in the state subject to any controls and limitations ordered by the judge of the court.

The authority for limited practice by a law student will continue during any regular school terms in which the law student is enrolled in a legal internship or clinical legal education course, including the intersessions between terms. The authority may be revoked by the court granting it for good cause.

A law student may not directly represent clients but may only assist the supervising attorney or clinical teacher in representing their clients. All pleadings and entries of record in courts must be signed by the supervising attorney or clinical teacher.

Law students may appear and participate in trials and hearings in courts if the supervising attorney or clinical teacher is present and supervising the student.

Law students assigned as interns to prosecuting attorneys may assist the supervising attorney before grand juries subject to the same prohibitions and penalties as to disclosure and secrecy as are members of the grand jury.

Law students will be subject to the same standards and rules of professional conduct and ethics and the same rules of discipline as are licensed attorneys.

Law students shall receive no compensation for their services but may be reimbursed actual expenses if funds are available for that purpose.

HISTORY: Codes, 1942, § 8684-04; Laws, 1971, ch. 466, § 4; Laws, 1972, ch. 415, § 1; Laws, 1974, ch. 327; Laws, 1996, ch. 532, § 4; Laws, 2011, ch. 345, § 1, eff from and after July 1, 2011.

Amendment Notes —

The 2011 amendment inserted “state and federal” preceding “courts of this state” in the introductory language; added language beginning “or by an order of a United States District Judge or United States Magistrate Judge of the United States District Court” to the end of (a); and inserted “state or federal” following “the law student will be authorized to engage in limited practice in any” in (b).

JUDICIAL DECISIONS

1. In general.

Representation by a legal intern, acting under authority of §73-3-207, does not constitute the actual assistance of counsel guaranteed by the Constitution. Benbow v. State, 614 So. 2d 398, 1993 Miss. LEXIS 57 (Miss. 1993).

RESEARCH REFERENCES

ALR.

Legal services provided by law students as basis for award of attorneys’ fees or other litigation costs in action under Freedom of Information Act (5 USCS sec. 552(a)(4)(E)). 73 A.L.R. Fed. 732.

§ 73-3-209. Oath.

A law student who meets the qualifications set forth in this article may petition a circuit court, chancery court, the United States District Court for the Southern District of Mississippi or the United States District Court for the Northern District of Mississippi and present the oath in the following form:

“PETITION AND OATH FOR ADMISSION TO LIMITED PRACTICE

The undersigned,_______________ , does state and affirm that I am a law student who has the qualifications for admission to limited practice under the Law Student Limited Practice Act, Section 73-3-201 et seq., Mississippi Code of 1972, and seek the authority of this court to engage in limited practice under that act.

I do, upon my oath, solemnly swear (or affirm) that when granted that authority I will demean myself in accord with the conditions and limitations of the Law Student Limited Practice Act according to the best of my learning and ability and with all good fidelity as well to the court as to the client; that I will use no falsehood nor delay any person’s cause for lucre or malice, and that I will support the Constitution of the United States and of the State of Mississippi so long as I continue a citizen thereof.

It is therefore prayed that this court order my admission to limited practice pursuant to said act.”

The filing of the petition signed by the law student will constitute a sworn statement by the student under oath.

HISTORY: Codes, 1942, § 8684-05; Laws, 1971, ch. 466, § 5; Laws, 1996, ch. 532, § 5; Laws, 2011, ch. 345, § 2, eff from and after July 1, 2011.

Amendment Notes —

The 2011 amendment inserted “the United States District Court for the Southern District of Mississippi or the United States District Court for the Northern District of Mississippi” and made a stylistic change in the introductory paragraph of the section.

§ 73-3-211. Order of judge administering oath; duration of authority to practice law.

Upon finding that a law student meets the qualifications for limited practice under this article, a judge of the court may order the admission of the student to limited practice in the following form:

“ORDER

Be it known that_______________ , a law student, has petitioned this court for admission to the limited practice of law and presented the prescribed oath pursuant to the provisions of the Law Student Limited Practice Act, Section 73-3-201 et seq., Mississippi Code of 1972, and having found that said petitioner is a citizen of the United States who meets the requirements for such admission, the court therefore finds that petitioner is entitled to admission to the limited practice of law under said act.

It is therefore ordered and adjudged that_______________is admitted to the limited practice of law as a law student in all the state and federal courts of this state for the duration and upon the terms, conditions and limitations prescribed by said act.

Ordered and adjudged this_______________day of_______________ , 20 _______________ .”

The petition and oath of the law student and the order of the court will be kept on file in the office of the clerk of the court.

HISTORY: Codes, 1942, § 8684-06; Laws, 1971, ch. 466, § 6; Laws, 1996, ch. 532, § 6; Laws, 2011, ch. 345, § 3, eff from and after July 1, 2011.

Amendment Notes —

The 2011 amendment inserted “state and federal” preceding “courts of this state” in the second paragraph in the Order.

Article 7. Procedures to Discipline and to Determine Personal Incapacity to Practice Law.

§ 73-3-301. Disciplinary jurisdiction.

Any attorney regularly admitted to practice law in the state of Mississippi or any attorney specially admitted to practice law by a court of this state or any individual admitted to practice as an attorney in any other jurisdiction who regularly engages in the practice of law within this state as house counsel to corporations or other entities, counsel for governmental agencies, out-of-state lawyers admitted or permitted to practice law in this state by comity, bar examination or otherwise are subject to the exclusive and inherent disciplinary jurisdiction of the supreme court of Mississippi and the disciplinary agencies hereinafter established and designated; provided, however, nothing herein contained shall be construed to deny to any other court such powers as are necessary for that court to maintain control over practice in and proceedings conducted before it, such as the power of contempt, nor to prohibit local bar associations from censuring, suspending or expelling their members from membership in such local bar association.

HISTORY: Laws, 1974, ch. 566, § 1; reenacted, Laws, 1983, ch. 302, § 24; reenacted, Laws, 1991, ch. 526, § 27; reenacted, Laws, 1992, ch. 515, § 27, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Rules of discipline, generally, see Rules of Discipline for the Mississippi State Bar, Rules 1 through 29.

Jurisdiction over disciplinary matters, see Rules of Discipline for the Mississippi State Bar, Rule 1.

JUDICIAL DECISIONS

1. In general.

2.-5. [Reserved for future use.]

6. Under former §73-3-157.

1. In general.

Mississippi Supreme Court had exclusive inherent jurisdiction over an attorney and his or her license to practice law in Mississippi. Thus, Miss. Code Ann. §73-3-41, which allowed any court (in the instant case a circuit court), to disbar an attorney, was in direct conflict with the aforementioned rule; however, the substantive and procedural prerequisites of Miss. R. Disc. St. Bar 6 had been satisfied, and therefore, the attorney who was convicted of a felony, was suspended from the practice of law pending his appeal of the criminal conviction. Miss. Bar v. Jackson, 904 So. 2d 109, 2004 Miss. LEXIS 1340 (Miss. 2004).

The complaint procedure established by the Supreme Court for attorney disciplinary proceedings does not violate due process on the ground that members of the complaint tribunal are also members of the Mississippi Bar. Asher v. The Mississippi Bar, 661 So. 2d 722, 1995 Miss. LEXIS 449 (Miss. 1995).

Although the Rules of Discipline for the Mississippi Bar provide for reinstatement through petition, an order of automatic reinstatement is within the scope of the Supreme Court’s exclusive and inherent jurisdiction of attorney discipline matters. Broome v. Mississippi Bar, 603 So. 2d 349, 1992 Miss. LEXIS 385 (Miss. 1992).

All bar disciplinary matters are governed by Rules of Discipline for the Mississippi State Bar, effective January 1, 1984, subject only to Constitutions of State of Mississippi and United States of America, because bar disciplinary statutes were abrogated by new rules issued by Supreme Court when it asserted its exclusive and inherent jurisdiction of matters pertaining to attorney discipline. Mississippi State Bar v. Attorney L., 511 So. 2d 119, 1987 Miss. LEXIS 2615 (Miss. 1987).

United States Constitution Articles I and III do not pre-empt Supreme Court’s authority to act with respect to license to practice law issued by state to United States District Court judge. Mississippi State Bar v. Nixon, 494 So. 2d 1388, 1986 Miss. LEXIS 2674 (Miss. 1986).

Petitioner who files complaint with committee on complaints charging former attorney with unprofessional conduct has no right to appeal dismissal of complaint. Smith v. Mississippi State Bar, 475 So. 2d 148, 1985 Miss. LEXIS 2207 (Miss. 1985).

The appellate court would not grant a writ of prohibition seeking to enjoin an attorney from representing a particular client on the asserted basis that said representation would violate the Mississippi State Bar’s Canons of Ethics, since §73-3-301 et seq. create a mechanism that establishes a regimen of attorney discipline and sanctions post-offense, appropriately eschewing prior restraints. Thornton v. Breland, 441 So. 2d 1348, 1983 Miss. LEXIS 3063 (Miss. 1983).

Bar disciplinary proceedings pursuant to §§73-3-301 et seq. are adversary proceedings of a quasi-criminal nature, at which the State Bar has the burden of proving in the Supreme Court by clear and convincing evidence each and every evidentiary and ultimate fact necessary to support a judgment that an attorney should be disciplined or disbarred; accordingly, the Complaints Tribunal erred in directing that attorneys be reprimanded for holding an open house upon the opening of a branch office, on the asserted basis that their actions constituted solicitation, where the State Bar offered no proof other than the mere fact of the “open house” and a stipulation that no actual solicitation occurred, and where the attorneys’ uncontradicted testimony indicated that they merely wanted their friends, relatives, and former clients to be greeted by them at their new branch office. Walls v. Mississippi State Bar, 437 So. 2d 30, 1983 Miss. LEXIS 2809 (Miss. 1983).

Miss. Code §73-3-301, et seq., rather than Miss. Code §73-3-41, were applicable in an application for reinstatement to the Mississippi State Bar following disbarment on the ground of conviction of federal felonies involving moral turpitude; accordingly, petitioner would be reinstated where the state bar admitted all the averments and facts of the petition, which set out that no claims had been made, or were contemplated, for restitution of money, that he had conducted himself in a manner beyond criticism, that he had been able to obtain employment and had supplied the needs of his family, that he had continued to be active in community and civic activities and had been a good citizen during the period of his disbarment, and that if he was reinstated, he would be a valuable member of the Mississippi State Bar in the future and would conduct himself in such way as to be a credit to the state bar and to the State of Mississippi. Phillips v. Mississippi State Bar, 427 So. 2d 1380, 1983 Miss. LEXIS 2508 (Miss. 1983).

Under the common law as well as statute, any person filing a complaint in accordance with the disciplinary statutes and rules is accorded absolute privilege and no lawsuit predicated thereon may be instituted so long as the statements are made within the course and framework of the disciplinary process and are reasonably relevant to the complaint. And, unless it appears from the face of the pleading that the communication complained of exceeds the purpose of stating a complaint in the proper forum, it is absolutely privileged, and there can be no trial of the underlying motives of the defendant in instituting the complaint. This immunity shall extend to any cause of action, whatever the name, be it libel and slander, invasion of privacy, abuse of process or other. The immunity from suit accorded such privilege does not extend to one who thereafter maliciously publishes and causes said complaint or information contained therein to be circulated about the state to persons not authorized by the statute and regulations to receive same. Although immunity from being sued is accorded anyone, attorney or layman, who files a complaint with the State Bar, attorneys may nevertheless be disciplined by the Complaints Committee for maliciously filing groundless complaints without having at least an arguable justification for doing so. Netterville v. Lear Siegler, Inc., 397 So. 2d 1109, 1981 Miss. LEXIS 1997 (Miss. 1981).

In future proceedings under §§73-3-301 et seq., the investigatory hearing, while not “a full evidentiary hearing,” must be expanded to permit the accused attorney the privilege of offering transcripts of the testimony of witnesses and the right to cross-examine witnesses whose testimony is taken by complaints counsel, the transcripts in each instance to be included as parts of complaints counsel’s report, with other material required by the statute. Moreover, before any punishment may be ordered by the complaints committee, it must find from the report thus made up that there is clear and convincing evidence that the accused attorney is guilty of the professional dereliction with which he is charged. Netterville v. Mississippi State Bar, 397 So. 2d 878, 1981 Miss. LEXIS 1964 (Miss. 1981).

In disciplinary proceedings against an attorney who was convicted of a felony in federal court, the chancery court had no jurisdiction to restrain the State Bar from filing in the Supreme Court a certified copy of the attorney’s conviction, and the Supreme Court’s order invalidating the temporary injunction was valid in every respect, despite the attorney’s contentions that the order was without adequate process and notice to him, and that §73-3-339, which requires that the suspension of an attorney convicted of a felony from practice of law pending appeal, is unconstitutional; the injunction against the State Bar amounted to a usurpation of the powers and duties vested exclusively in the Supreme Court, and the order striking the injunction did not cut off the attorney’s right to raise any defense, contention, or constitutional issue in the pending disciplinary action. Bramlett v. Burgin, 382 So. 2d 284, 1979 Miss. LEXIS 2341 (Miss. 1979).

Insofar as the Supreme Court is vested with exclusive and inherent disciplinary jurisdiction over attorneys in the state, the Board of Commissioners of the bar, which is an agency of the Supreme Court for disciplinary purposes, would be allowed to impose a special annual assessment upon each dues-paying member of the bar for purposes of financing the disciplinary activities and agencies provided for by statute. In re Mississippi State Bar, 361 So. 2d 503, 1978 Miss. LEXIS 2372 (Miss. 1978).

2.-5. [Reserved for future use.]

6. Under former § 73-3-157.

Statutes, regulating the bar and providing for procedure against members for misconduct, are generally regarded as prescribing a preferential method of procedure, which the court may, and in most cases ought, as a matter of discretion, to require to be followed but which is not exclusive; such statutes are not restrictive of the inherent powers which reside in courts to inquire into the conduct of their own officers, and to discipline them for misconduct. In re Higgins, 194 Miss. 838, 13 So. 2d 829, 1943 Miss. LEXIS 110 (Miss. 1943).

RESEARCH REFERENCES

ALR.

Power of court to order restitution to wronged client in disciplinary proceeding against attorney. 75 A.L.R.3d 307.

Effect of acquittal or dismissal in criminal prosecution as barring disciplinary action against attorney. 76 A.L.R.3d 1028.

Method employed in collecting debt due client as ground for disciplinary action against attorney. 93 A.L.R.3d 880.

Attorneys at law: delay in prosecution of disciplinary proceeding as defense or mitigating circumstance. 93 A.L.R.3d 1057.

Lawyer publicity as breach of legal ethics. 4 A.L.R.4th 306.

Advertising as ground for disciplining attorney. 30 A.L.R.4th 742.

Failure to co-operate with or obey disciplinary authorities as ground for disciplining attorney – modern cases. 37 A.L.R.4th 646.

Initiating, or threatening to initiate, criminal prosecution as ground for disciplining counsel. 42 A.L.R.4th 1000.

Sexual misconduct as ground for disciplining attorney or judge. 43 A.L.R.4th 1062.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in matters involving formation or dissolution of business organization as ground for disciplinary action – modern cases. 63 A.L.R.4th 656.

Imposition of sanctions upon attorneys or parties for miscitation of misrepresentation of authorities. 63 A.L.R.4th 1199.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in family law matters as ground for disciplinary action – modern cases. 67 A.L.R.4th 415.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in personal injury or property damage actions as ground for disciplinary action-modern cases. 68 A.L.R.4th 694.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in criminal matters as ground for disciplinary action-modern cases. 69 A.L.R.4th 410.

Attorney’s assertion of retaining lien as violation of ethical code or rules governing professional conduct. 69 A.L.R.4th 974.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in bankruptcy matters as ground for disciplinary action. 70 A.L.R.4th 786.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of foreign language speaking defendant. 79 A.L.R.4th 1102.

Disciplinary action against attorney taking loan from client. 9 A.L.R.5th 193.

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attorneys At Law, Forms 281 et seq.

31 Am. Jur. Trials 633, Defending Lawyers in Disciplinary Proceedings.

44 Am. Jur. Proof of Facts 2d 377, Legal Malpractice in Domestic Relations.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105.

1981 Mississippi Supreme Court Review: Administrative Law. 52 Miss. L. J. 377, June 1982.

1991 Mississippi Supreme Court Review: Misconduct of attorneys and judges. 61 Miss. L. J. 686.

Practice References.

Herman and Cary, Legal Counseling and Negotiating: A Practical Approach (Matthew Bender).

Coquillette, Moore’s Federal Practice, Third Edition, Division XII,“The Federal Law of Attorney Conduct” (Matthew Bender).

Patterson, Lawyer’s Law: Procedural, Malpractice & Disciplinary Issues, Fourth Edition (Matthew Bender).

Shepard’s Professional and Judicial Conduct Citations All Inclusive Subscription (Shepard’s).

Tanford, The Trial Process: Law, Tactics and Ethics, Fourth Edition (LexisNexis).

Zitrin, Langford and Tarr, Legal Ethics in the Practice of Law, Third Edition (Matthew Bender).

Zitrin and Mohr, Legal Ethics: Rules, Statutes and Comparisons, 2011 Edition (Matthew Bender).

§ 73-3-303. Disciplinary agencies of court.

The jurisdiction of the court shall be administered in the manner hereinafter set out, and the following entities are hereby established and designated as agencies of the court for such purposes:

The Board of Commissioners of the Mississippi Bar, including the Executive Director of the Mississippi Bar and complaint counsel.

The committee on complaints of the Mississippi Bar.

The complaint tribunals appointed by the Supreme Court of Mississippi.

HISTORY: Laws, 1974, ch. 566, § 2; reenacted, Laws, 1983, ch. 302, § 25; Laws, 1991, ch. 526, § 28; reenacted, Laws, 1992, ch. 515, § 28, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Jurisdiction over disciplinary matters, see Rules of Discipline for the Mississippi State Bar, Rule 1.

JUDICIAL DECISIONS

1. In general.

The complaint procedure established by the Supreme Court for attorney disciplinary proceedings does not violate due process on the ground that members of the complaint tribunal are also members of the Mississippi Bar. Asher v. The Mississippi Bar, 661 So. 2d 722, 1995 Miss. LEXIS 449 (Miss. 1995).

Although the Rules of Discipline for the Mississippi Bar provide for reinstatement through petition, an order of automatic reinstatement is within the scope of the Supreme Court’s exclusive and inherent jurisdiction of attorney discipline matters. Broome v. Mississippi Bar, 603 So. 2d 349, 1992 Miss. LEXIS 385 (Miss. 1992).

Insofar as the Supreme Court is vested with exclusive and inherent disciplinary jurisdiction over attorneys in the state, the Board of Commissioners of the bar, which is an agency of the Supreme Court for disciplinary purposes, would be allowed to impose a special annual assessment upon each dues-paying member of the bar for purposes of financing the disciplinary activities and agencies provided for by statute. In re Mississippi State Bar, 361 So. 2d 503, 1978 Miss. LEXIS 2372 (Miss. 1978).

RESEARCH REFERENCES

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law §§ 32 et seq.

2 Am. Jur. Pl & Pr Forms (Rev), Attorneys at Law, Forms 281 et seq., 311 et seq.

CJS.

7A C.J.S., Attorney and Client §§ 89, 90 et seq.

Practice References.

L. Ray Patterson, Lawyer’s Law: Procedural, Malpractice & Disciplinary Issues (Matthew Bender).

§ 73-3-305. Composition of disciplinary agencies; employment of complaint counsel and other employees.

The composition of the aforesaid disciplinary agencies shall be as follows:

Board of Commissioners. The Board of Commissioners of the Mississippi Bar is provided for in Section 73-3-107, Mississippi Code of 1972. The board shall have the authority to employ and compensate a competent person to serve as complaint counsel, who shall be a member of the bar of this state and who shall serve at the pleasure of the board, either in a full-time or part-time capacity. In addition, the board shall have the authority to employ and compensate such assistants to and staff for the complaint counsel and to employ and compensate such other persons as the board may from time to time deem necessary or advisable to effect the disciplinary procedures set forth herein.

Committee on complaints. The committee on complaints shall be appointed by the President of the Mississippi Bar in the manner provided in its bylaws, but said committee shall consist of at least one (1) member from each of the Supreme Court districts of the state. The chairman and vice chairman of the committee shall be designated by the President of the Mississippi Bar.

Complaint tribunals. Complaint tribunals for each of the Supreme Court districts of the state, consisting of three (3) members who are members of the bar of this state, shall be appointed by the Chief Justice of the Supreme Court to serve on a calendar year basis.

HISTORY: Laws, 1974, ch. 566, § 3; reenacted, Laws, 1983, ch. 302, § 26; Laws, 1991, ch. 526, § 29; reenacted, Laws, 1992, ch. 515, § 29, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Disciplinary agencies designated, see Rules of Discipline for the Mississippi State Bar, Rule 3.

§ 73-3-307. Powers of disciplinary agencies; contempt.

Each of the disciplinary agencies is hereby given such jurisdiction and lawful powers as are necessary to conduct a proper and speedy disposition of any complaint. The power to summons and examine witnesses under oath and to compel their attendance to take or cause to be taken the deposition of witnesses and to order the production of books, papers, records and other documentary evidence necessary or material to the investigation or complaint shall be coequal to the powers exercisable by the courts of record of this state. All summonses or subpoenas shall be issued by the clerk of the court, and it shall be the duty of any person so summoned to appear and testify as in the writ commanded and to produce the books, papers, records or other documentary evidence required. Summonses and subpoenas issued by the clerk of the court shall be delivered to the sheriff of the county where they are to be executed, and the sheriff shall serve such writs and notices, or cause them to be served, as he is required to do with respect to writs received by him from any other court of record.

Any defiance of any summons or subpoena so issued, or other extrajudicial conduct which shall inhibit, impede or disrupt any of the above disciplinary agencies in the performance of the duties and in the exercise of the powers herein given shall be treated as contempt of the court and punishable accordingly.

HISTORY: Laws, 1974, ch. 566, § 4; reenacted, Laws, 1983, ch. 302, § 27; reenacted, Laws, 1991, ch. 526, § 30; reenacted, Laws, 1992, ch. 515, § 30, eff from and after July 1, 1992.

Cross References —

Power to punish for contempt of court, see §9-1-17.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Power and enforcement over disciplinary matters, see Rules of Discipline for the Mississippi State Bar, Rule 2.

JUDICIAL DECISIONS

1. In general.

The “clerk of the court”, as appearing in §73-3-307, refers to the clerk of the Mississippi Supreme Court, who administers the subpoena process in bar disciplinary proceedings. Attorney K. v. Mississippi State Bar Asso., 491 So. 2d 220, 1986 Miss. LEXIS 2522 (Miss. 1986).

The Mississippi State Bar Association may not vest in its Committee on Complaints discretionary authority to issue or withhold subpoenas. Attorney K. v. Mississippi State Bar Asso., 491 So. 2d 220, 1986 Miss. LEXIS 2522 (Miss. 1986).

Disciplinary proceedings against an attorney before the Committee on Complaints were held in violation of the attorney’s due process rights secured by United States and Mississippi constitutions and by Mississippi Code §73-3-307, where, at a critical stage, no subpoena was issued, despite the attorney’s verbal and written request therefor, to secure the attendance of the chancery judge whom the attorney had allegedly deceived, and the judge, who was a crucial witness, did not appear before the Committee. Attorney K. v. Mississippi State Bar Asso., 491 So. 2d 220, 1986 Miss. LEXIS 2522 (Miss. 1986).

Since Bar disciplinary proceedings are inherently adversarial proceedings of a quasi-criminal nature, in the course of those proceedings there is secured to the accused attorney the right to due process of law, and within such secured due process right is the right of the accused attorney to have access to compulsory process for obtaining attendance of witnesses at critical stages of the proceedings. Attorney K. v. Mississippi State Bar Asso., 491 So. 2d 220, 1986 Miss. LEXIS 2522 (Miss. 1986).

An attorney cannot be compelled to testify at a hearing in the investigatory stages of a state bar disciplinary proceeding or to respond to a subpoena duces tecum prior to the filing of a formal complaint against him by the complaint committee; the legislature did not contemplate forced cooperation by an attorney in the investigative stages. Mississippi State Bar v. Attorney-Respondent in Disciplinary Proceedings, 367 So. 2d 179, 1979 Miss. LEXIS 2210 (Miss. 1979).

RESEARCH REFERENCES

ALR.

Restricting access to records of disciplinary proceedings against attorneys. 83 A.L.R.3d 749.

Discovery or inspection of state bar records of complaints against or investigations of attorneys. 83 A.L.R.3d 777.

Extent and determination of attorney’s right or privilege against self-incrimination in disbarment or other disciplinary proceedings – post-Spevack cases. 30 A.L.R.4th 243.

Failure to co-operate with or obey disciplinary authorities as ground for disciplining attorney – modern cases. 37 A.L.R.4th 646.

Bringing of frivolous civil claim or action as ground for discipline of attorney. 85 A.L.R.4th 544.

Soliciting client to commit illegal or immoral act as ground for discipline of attorney. 85 A.L.R.4th 567.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law §§ 29 et seq.

2 Am. Jur. Pl & Pr Forms (Rev), Attorneys at Law, Forms 295-298.5.

CJS.

7A C.J.S., Attorney and Client §§ 99-103.

Practice References.

L. Ray Patterson, Lawyer’s Law: Procedural, Malpractice & Disciplinary Issues (Matthew Bender).

§ 73-3-309. Committee on complaints; referral of complaints; formal requirement of complaints.

Complaints, irrespective of source, touching upon the professional conduct or conduct evincing unfitness for the practice of law made against attorneys who are members of the bar of this state or who may be temporarily practicing in this state under any rule of comity or courtesy, that may be received by or that may come to the attention of any judicial officer, the board of commissioners or any members of the Mississippi State Bar, shall be referred to the committee on complaints for preliminary investigation and such disposition or further action as may be appropriate. The complaint must be in writing and signed by the person making the complaint or charge and the complaint must be sworn to or supported by affidavit or the signature of the complaining party witnessed by two (2) persons twenty-one (21) years of age or older. Additionally, the complaint shall contain the street address of the complaining party and each witness.

HISTORY: Laws, 1974, ch. 566, § 5; reenacted, Laws, 1983, ch. 302, § 28; reenacted, Laws, 1991, ch. 526, § 31; reenacted, Laws, 1992, ch. 515, § 31, eff from and after July 1, 1992.

Cross References —

Duty of chancery and circuit courts to file complaints, see §73-3-310.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Initiation and filing of complaints, see Rules of Discipline for the Mississippi State Bar, Rule 4.

JUDICIAL DECISIONS

1. In general.

Disciplining attorney for soliciting business through advertisements containing nondeceptive illustrations and legal advice violates attorney’s First Amendment rights. Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 105 S. Ct. 2265, 85 L. Ed. 2d 652, 1985 U.S. LEXIS 19 (U.S. 1985).

Delay in instigation of disciplinary proceedings against attorney does not operate as bar to proceedings absent showing that delay has resulted in prejudice to attorney. Clark v. Mississippi State Bar Asso., 471 So. 2d 352, 1985 Miss. LEXIS 2089 (Miss. 1985).

Dismissal by committee on complaint of complaint against attorney is not judicial determination on merits, but rather is analogous to review by grand jury, and is not res judicata bar against subsequent complaint based on same allegations as those in dismissed complaint. Clark v. Mississippi State Bar Asso., 471 So. 2d 352, 1985 Miss. LEXIS 2089 (Miss. 1985).

An attorney cannot be compelled to testify at a hearing in the investigatory stages of a state bar disciplinary proceeding or to respond to a subpoena duces tecum prior to the filing of a formal complaint against him by the complaint committee; the legislature did not contemplate forced cooperation by an attorney in the investigative stages. Mississippi State Bar v. Attorney-Respondent in Disciplinary Proceedings, 367 So. 2d 179, 1979 Miss. LEXIS 2210 (Miss. 1979).

RESEARCH REFERENCES

ALR.

Participation in allegedly collusive or connived divorce proceedings as subjecting attorney to disciplinary action. 13 A.L.R.3d 1010.

What constitutes representation of conflicting interest subjecting attorney to disciplinary action. 17 A.L.R.3d 835.

Violation of securities regulations as ground of disciplinary action against attorney. 18 A.L.R.3d 1408.

Homicide or assault as ground for disciplinary measures against attorney. 21 A.L.R.3d 887.

Fabrication or suppression of evidence as ground of disciplinary action against attorney. 40 A.L.R.3d 169.

Attorney at law: publication and distribution of announcement of new or changed associations or addresses, change of firm name, or the like as ground for disciplinary action. 53 A.L.R.3d 1261.

Attorneys at law: disciplinary proceeding based upon attorney’s naming of himself or associate as executor or attorney for executor in will drafted by him. 57 A.L.R.3d 703.

Misconduct in capacity as judge as basis for disciplinary action against attorney. 57 A.L.R.3d 1150.

Pardon as defense to disbarment of attorney. 59 A.L.R.3d 466.

Entrapment as a defense in proceedings to revoke or suspend license to practice law or medicine. 61 A.L.R.3d 357.

Use in disbarment proceeding of testimony given by attorney in criminal proceeding under grant of immunity. 62 A.L.R.3d 1145.

Effect of acquittal or dismissal in criminal prosecution as barring disciplinary action against attorney. 76 A.L.R.3d 1028.

Disciplinary action against attorney prior to exhaustion of appellate review of conviction. 76 A.L.R.3d 1061.

Failure to communicate with client as basis for disciplinary action against attorney. 80 A.L.R.3d 1240.

Attorneys at Law: fee collection practice as ground for disciplinary action. 91 A.L.R.3d 583.

Attorney’s failure to report promptly receipt of money or property belonging to client as ground for disciplinary action. 91 A.L.R.3d 975.

Conduct of attorney in connection with settlement of client’s case as ground for disciplinary action. 92 A.L.R.3d 288.

Conduct of attorney in capacity of executor or administrator of decedent’s estate as ground for disciplinary action. 92 A.L.R.3d 655.

Disciplinary action against attorney based on misconduct prior to admission to bar. 92 A.L.R.3d 807.

Restitution as mitigating circumstance in disciplinary action against attorney based on wrongful conduct creating liability to client. 95 A.L.R.3d 724.

Modern status of law regarding solicitation of business by or for attorney. 5 A.L.R.4th 866.

Disciplinary action against attorney for misconduct related to performance of official duties as prosecuting attorney. 10 A.L.R.4th 605.

Attorney’s charging excessive fee as ground for disciplinary action. 11 A.L.R.4th 133.

Admissibility and necessity of expert evidence as to standards of practice and negligence in malpractice action against attorney. 14 A.L.R.4th 170.

Disciplinary action against attorney based on communications to judge respecting merits of cause. 22 A.L.R.4th 917.

Election campaign activities as ground for disciplining attorney. 26 A.L.R.4th 170.

Advertising as ground for disciplining attorney. 30 A.L.R.4th 742.

Disciplinary action against attorney for aiding or assisting another person in unauthorized practice of law. 41 A.L.R.4th 361.

Sexual misconduct as ground for disciplining attorney or judge. 43 A.L.R.4th 1062.

Legal malpractice in handling or defending medical malpractice claim. 78 A.L.R.4th 725.

Disciplinary action against judge for engaging in ex parte communication with attorney, party, or witness. 82 A.L.R.4th 567.

Bringing of frivolous civil claim or action as ground for discipline of attorney. 85 A.L.R.4th 544.

Soliciting client to commit illegal or immoral act as ground for discipline of attorney. 85 A.L.R.4th 567.

Misconduct involving intoxication as ground for disciplinary action against attorney. 1 A.L.R.5th 874.

Admissibility and effect of evidence of professional ethics rules in legal malpractice action. 50 A.L.R.5th 301.

Am. Jur.

14 Am. Jur. Pl & Pr Forms (Rev), (complaint for injunction to enjoin suspension or revocation of license arising from performance of judgment for services for which licensee was required was discharged in bankruptcy).

31 Am. Jur. Trials 633, Defending Lawyers in Disciplinary Proceedings.

Practice References.

L. Ray Patterson, Lawyer’s Law: Procedural, Malpractice & Disciplinary Issues (Matthew Bender).

§ 73-3-310. Duty of chancery and circuit courts to file complaints.

The chancery and circuit courts shall have the duty to file a complaint under the terms and provisions as outlined in Section 73-3-309 against any attorney who is a resident of the court’s district and who demonstrates conduct evincing unfitness for the practice of law.

HISTORY: Laws, 1979, ch. 486, § 9; reenacted, Laws, 1983, ch. 302, § 29; reenacted, Laws, 1991, ch. 526, § 32; reenacted, Laws, 1992, ch. 515, § 32, eff from and after July 1, 1992.

Cross References —

Committee on complaints and formal requirements of complaints, see §73-3-309.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Initiation and filing of complaints, see Rules of Discipline for the Mississippi State Bar, Rule 4.

§ 73-3-311. Committee on complaints; action to be taken upon receipt of complaint or charge.

When any complaint or charge touching upon the professional conduct or conduct evincing unfitness for the practice of law against any attorney subject to discipline hereunder is received by the committee on complaints, the committee shall, within ten (10) days thereof, take the following action:

Cause the complaint or charge to be filed and docketed with the Executive Director of the Mississippi Bar;

Screen the complaint or charge for merit or the lack thereof, if such determination can be made from the allegations of the complaint and any accompanying documents; and

Dismiss any frivolous or ill-grounded complaint or one obviously without merit; or

Refer the complaint to complaint counsel for further investigation, hearing and report.

HISTORY: Laws, 1974, ch. 566, § 6; reenacted, Laws, 1983, ch. 302, § 30; Laws, 1991, ch. 526, § 33; reenacted, Laws, 1992, ch. 515, § 33, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Initiation and filing of complaints, see Rules of Discipline for the Mississippi State Bar, Rule 4.

JUDICIAL DECISIONS

1. In general.

State violated First Amendment by completely prohibiting lawyer from advertising certification by private professional organization as trial specialist; even assuming lawyer’s letterhead was potentially misleading to some consumers, state’s interest in avoiding such potential was insufficient to justify categorical ban against dissemination of accurate factual information; to extent lawyer’s potentially misleading statements could confuse consumers, state might consider screening certifying organizations or requiring disclaimer; inherent authority of state Supreme Court to supervise its own bar did not insulate that court’s judgment from review by United States Supreme Court. Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91, 110 S. Ct. 2281, 110 L. Ed. 2d 83, 1990 U.S. LEXIS 2909 (U.S. 1990).

Dismissal by committee of complaint against attorney is not judicial determination on merits, but rather is analogous to review by grand jury, and is not res judicata bar against subsequent complaint based on same allegations as those in dismissed complaint. Clark v. Mississippi State Bar Asso., 471 So. 2d 352, 1985 Miss. LEXIS 2089 (Miss. 1985).

An attorney cannot be compelled to testify at a hearing in the investigatory stages of a state bar disciplinary proceeding or to respond to a subpoena duces tecum prior to the filing of a formal complaint against him by the complaint committee; the legislature did not contemplate forced cooperation by an attorney in the investigative stages. Mississippi State Bar v. Attorney-Respondent in Disciplinary Proceedings, 367 So. 2d 179, 1979 Miss. LEXIS 2210 (Miss. 1979).

RESEARCH REFERENCES

ALR.

Mandamus to compel disciplinary investigation or action against physician or attorney. 33 A.L.R.3d 1429.

Misconduct involving intoxication as ground for disciplinary action against attorney. 1 A.L.R.5th 874.

§ 73-3-313. Complaint counsel; investigations; notice and hearing to accused attorney.

The complaint counsel shall immediately investigate the complaint; and upon completion of his investigation, excluding the investigatory hearing, he shall inform the accused attorney that a complaint has been filed against him and that he is under investigation, advise the accused attorney of the general nature of the charges, furnish him a copy of the complaint and any evidence supporting it, afford the accused attorney a hearing, and advise the attorney of the time and place of such hearing. Communications and notices to the accused attorney shall be transmitted by registered or certified mail, return receipt requested, and marked “Deliver to Addressee Only.‘

HISTORY: Laws, 1974, ch. 566, § 7; reenacted, Laws, 1983, ch. 302, § 31; reenacted, Laws, 1991, ch. 526, § 34; reenacted, Laws, 1992, ch. 515, § 34, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Complaint counsel – duties and powers, see Rules of Discipline for the Mississippi State Bar, Rule 5.

JUDICIAL DECISIONS

1. In general.

In future proceedings under §§73-3-301 et seq., the investigatory hearing, while not “a full evidentiary hearing,” must be expanded to permit the accused attorney the privilege of offering transcripts of the testimony of witnesses and the right to cross-examine witnesses whose testimony is taken by complaints counsel, the transcripts in each instance to be included as parts of complaints counsel’s report, with other material required by the statute. Moreover, before any punishment may be ordered by the complaints committee, it must find from the report thus made up that there is clear and convincing evidence that the accused attorney is guilty of the professional dereliction with which he is charged. Netterville v. Mississippi State Bar, 397 So. 2d 878, 1981 Miss. LEXIS 1964 (Miss. 1981).

An attorney cannot be compelled to testify at a hearing in the investigatory stages of a state bar disciplinary proceeding or to respond to a subpoena duces tecum prior to the filing of a formal complaint against him by the complaint committee; the legislature did not contemplate forced cooperation by an attorney in the investigative stages. Mississippi State Bar v. Attorney-Respondent in Disciplinary Proceedings, 367 So. 2d 179, 1979 Miss. LEXIS 2210 (Miss. 1979).

RESEARCH REFERENCES

ALR.

Validity and construction of procedures to temporarily suspend attorney from practice, or place attorney on inactive status, pending investigation of, and action upon, disciplinary charges. 80 A.L.R.4th 136.

Law Reviews.

1981 Mississippi Supreme Court Review: Administrative Law. 52 Miss. L. J. 377.

§ 73-3-315. Complaint counsel; rules governing investigatory hearings.

The following rules for investigatory hearings by complaint counsel are for the guidance of complaint counsel and shall be strictly followed:

The complainant is not a party to the proceeding and has no right to be present at any stage thereof.

The accused attorney has no right to be present at any stage of the investigatory hearing, either in person or by counsel, except complaint counsel shall afford him an opportunity to make a statement, either personally or by counsel, verbally or in writing, refuting or admitting the alleged misconduct and to offer any matter in mitigation or extenuation. The accused attorney may document his statement to include the admission of affidavits but shall not have the right to present other testimony or evidence and shall have no right to confrontation.

The investigatory hearing shall neither be public nor assume the character of an adversary proceeding, and a full evidentiary hearing on the merits is not contemplated.

Formal rules of evidence will not be applied.

Investigation by complaint counsel will not be stayed by settlement, compromise, admission of guilt or restitution.

Any attorney called as a witness shall be informed before he gives evidence as to whether he is under investigation and, if so, the nature of the charges against him.

Testimony will not be elicited or received which is not germane to the charges being investigated by complaint counsel.

HISTORY: Laws, 1974, ch. 566, § 7; reenacted, Laws, 1983, ch. 302, § 32; reenacted, Laws, 1991, ch. 526, § 35; reenacted, Laws, 1992, ch. 515, § 35, eff from and after July 1, 1992.

Cross References —

Right of accused attorney to submit resignation and thus terminate the investigation procedure, see §73-3-333.

Termination of investigation or proceedings upon acceptance of plea of nolo contendere, see §73-3-371.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Complaint counsel – duties and powers, see Rules of Discipline for the Mississippi State Bar, Rule 5.

JUDICIAL DECISIONS

1. In general.

In future proceedings under §§73-3-301 et seq., the investigatory hearing, while not “a full evidentiary hearing,” must be expanded to permit the accused attorney the privilege of offering transcripts of the testimony of witnesses and the right to cross-examine witnesses whose testimony is taken by complaints counsel, the transcripts in each instance to be included as parts of complaints counsel’s report, with other material required by the statute. Moreover, before any punishment may be ordered by the complaints committee, it must find from the report thus made up that there is clear and convincing evidence that the accused attorney is guilty of the professional dereliction with which he is charged. Netterville v. Mississippi State Bar, 397 So. 2d 878, 1981 Miss. LEXIS 1964 (Miss. 1981).

An attorney cannot be compelled to testify at a hearing in the investigatory stages of a state bar disciplinary proceeding or to respond to a subpoena duces tecum prior to the filing of a formal complaint against him by the complaint committee; the legislature did not contemplate forced cooperation by an attorney in the investigative stages. Mississippi State Bar v. Attorney-Respondent in Disciplinary Proceedings, 367 So. 2d 179, 1979 Miss. LEXIS 2210 (Miss. 1979).

RESEARCH REFERENCES

ALR.

Restricting access to records of disciplinary proceedings against attorneys. 83 A.L.R.3d 749.

Discovery or inspection of state bar records of complaints against or investigations of attorneys. 83 A.L.R.3d 777.

Admissibility of lie detector test results, or of offer or refusal to take test, in attorney disciplinary proceeding. 79 A.L.R.4th 576.

Validity and construction of procedures to temporarily suspend attorney from practice, or place attorney on inactive status, pending investigation of, and action upon, disciplinary charges. 80 A.L.R.4th 136.

Appointment of counsel for attorney facing disciplinary charges. 86 A.L.R.4th 1071.

Law Reviews.

1981 Mississippi Supreme Court Review: Administrative Law. 52 Miss. L. J. 377.

§ 73-3-317. Complaint counsel; investigatory hearings; report of testimony and findings; response by accused attorney.

Complaint counsel will cause the testimony of any witnesses at an investigatory hearing to be taken and transcribed and shall certify the same to the committee on complaints, along with his written findings, within thirty (30) days from and after the date on which the complaint was received by him, except that, for good cause shown, upon application to the chairman of said committee, complaint counsel may be granted a total of not more than thirty (30) additional days in which to make said certification. A copy of complaint counsel’s report shall be sent to the accused attorney by certified mail, and the accused attorney shall have ten (10) days after the receipt by him of complaint counsel’s report to file a written response thereto with the committee on complaints. Upon application to the chairman of the said committee, the accused attorney may be granted such additional time as circumstances warrant.

HISTORY: Laws, 1974, ch. 566, § 8; reenacted, Laws, 1983, ch. 302, § 33; reenacted, Laws, 1991, ch. 526, § 36; reenacted, Laws, 1992, ch. 515, § 36, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Complaint counsel – duties and powers, see Rules of Discipline for the Mississippi State Bar, Rule 5.

JUDICIAL DECISIONS

1. In general.

Any harm resulting from deprival of right of accused attorney to confront and cross-examine accuser at investigatory hearing is subsequently eliminated when complaints tribunal allows confrontation and cross-examination at full evidentiary hearing. Myers v. Mississippi State Bar, 480 So. 2d 1080, 1985 Miss. LEXIS 2144 (Miss. 1985), cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3335 (U.S. 1986).

There was no violation of §§73-3-317 and73-3-319, by continuing the investigation into alleged violations of disciplinary rules by a Mississippi attorney after the investigatory hearing, or by use of subsequently discovered evidence, where, even though the attorney had not been notified of the subsequent investigation when it had occurred, he received sufficient notice upon receipt of complaint counsel’s report that further investigation had been conducted, and where the attorney had had sufficient time to respond to the report between the time he received his copy and the time a formal complaint was filed against him, and had chosen not to do so. A Mississippi Attorney v. Mississippi State Bar, 453 So. 2d 1023, 1984 Miss. LEXIS 1809 (Miss. 1984).

An attorney cannot be compelled to testify at a hearing in the investigatory stages of a state bar disciplinary proceeding or to respond to a subpoena duces tecum prior to the filing of a formal complaint against him by the complaint committee; the legislature did not contemplate forced cooperation by an attorney in the investigative stages. Mississippi State Bar v. Attorney-Respondent in Disciplinary Proceedings, 367 So. 2d 179, 1979 Miss. LEXIS 2210 (Miss. 1979).

RESEARCH REFERENCES

ALR.

Admissibility of lie detector test results, or of offer or refusal to take test, in attorney disciplinary proceeding. 79 A.L.R.4th 576.

Validity and construction of procedures to temporarily suspend attorney from practice, or place attorney on inactive status, pending investigation of, and action upon, disciplinary charges. 80 A.L.R.4th 136.

§ 73-3-319. Committee on complaints; action to be taken upon receipt of complaint counsel’s report.

Within thirty (30) days of its receipt of complaint counsel’s report, the committee on complaints shall take the following action:

If upon review of the record, complaint counsel’s report and any written response by the accused attorney, the committee determines that there is not reasonable ground to believe that the accused attorney has been guilty of unprofessional conduct or conduct evincing unfitness for the practice of law, the committee may either re-refer the matter to complaint counsel for further investigation or may dismiss the complaint and retire the file. In the latter event, the person filing the complaint, the accused attorney and the Executive Director of the Mississippi Bar shall be given written notice of the committee’s determination.

If upon review of the record, complaint counsel’s report and any written response by the accused attorney, the committee determines that there is reasonable ground to believe that the accused attorney has been guilty of unprofessional conduct or conduct evincing unfitness for the practice of law, and is of the further opinion that a reprimand of the accused attorney is all that justice requires and will adequately afford the disciplinary sanctions required by the particular circumstances, the committee may administer a private reprimand, or it may, in its discretion, make public the fact of the reprimand by having the same delivered in open court by the chancery or circuit court of the county of the accused attorney. However, such action shall not be taken except upon proper notice and hearing, such notice and hearing to be upon the same formal requirements and assuring to the accused attorney the same rights and privileges as provided in Section 73-3-321 et seq. for hearings upon complaints which, if proven, would warrant suspension or disbarment. Further, any decision of the complaint tribunal to issue a reprimand shall be appealable in the same manner and to the same extent as provided in Section 73-3-329. The committee, in its discretion, may require the accused attorney to appear before it for delivery of the reprimand or may forward it to him by registered mail. In any event, written notice of the delivery of such reprimand shall be given to the person filing the complaint, the clerk of the court, the Executive Director of the Mississippi Bar, and to the judges of the circuit and chancery court districts of the accused attorney.

If the committee determines there is reasonable cause to believe the accused attorney is guilty of such conduct, which, if proven, would warrant suspension for a definite or an indefinite period or permanent disbarment, the committee shall direct complaint counsel in writing to prepare and file a formal complaint against the accused attorney. Complaint counsel shall prosecute the case to conclusion, unless the President of the Mississippi Bar, in his sole discretion, shall appoint one or more active members of the Mississippi Bar to either assist complaint counsel or to serve independently as trial attorney or attorneys in the prosecution of the proceeding to conclusion.

HISTORY: Laws, 1974, ch. 566, § 9; Laws, 1981, ch. 480, § 1; reenacted, Laws, 1983, ch. 302, § 34; Laws, 1991, ch. 526, § 37; reenacted, Laws, 1992, ch. 515, § 37, eff from and after July 1, 1992.

Cross References —

Judgment of complaint tribunal reprimanding and admonishing attorney, see §73-3-327.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Committee on professional responsibility – powers and duties, see Rules of Discipline for the Mississippi State Bar, Rule 7.

JUDICIAL DECISIONS

1. In general.

2. Practice and procedure.

3. Application to particular cases.

1. In general.

Complaints committee may recommend that attorney who refuses public reprimand offered by committee and exercises right to de novo hearing before complaints tribunal be suspended or disbarred. Myers v. Mississippi State Bar, 480 So. 2d 1080, 1985 Miss. LEXIS 2144 (Miss. 1985), cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3335 (U.S. 1986).

While no specific guidelines exist as to action to be taken by complaint committee upon receiving complaint counsel’s report, committee decisions are informed by considerations in code of professional responsibility and other practical factors peculiar to case which afford sufficient legal guidance to committee that §73-3-319 is not void for vagueness. Myers v. Mississippi State Bar, 480 So. 2d 1080, 1985 Miss. LEXIS 2144 (Miss. 1985), cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3335 (U.S. 1986).

2. Practice and procedure.

Time limitations in §§73-3-319,73-3-325 are directory rather than jurisdictional and 17-day delay in filing of formal complaint does not justify dismissal of complaint; nor are accused attorneys prejudiced by more protracted delay in holding tribunal hearing when in some instances delays have been requested by attorneys and in one instance delay is due to material case pending before Supreme Court. Myers v. Mississippi State Bar, 480 So. 2d 1080, 1985 Miss. LEXIS 2144 (Miss. 1985), cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3335 (U.S. 1986).

Complaints committee has inherent authority to provide for procedures whereby adverse decisions can be appealed to disciplinary tribunal, subject to statutory limitations. Myers v. Mississippi State Bar, 480 So. 2d 1080, 1985 Miss. LEXIS 2144 (Miss. 1985), cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3335 (U.S. 1986).

Petitioner who files complaint with committee on complaints charging former attorney with unprofessional conduct has no right to appeal dismissal of complaint. Smith v. Mississippi State Bar, 475 So. 2d 148, 1985 Miss. LEXIS 2207 (Miss. 1985).

When attorney is given notice and hearing on charge of exertion of undue influence and violation of fiduciary capacity, which charge is found to be baseless, complaint committee must give attorney additional notice and hearing prior to issuing reprimand based on charge of conflict of interest. A Mississippi Attorney v. Mississippi State Bar, 471 So. 2d 1230, 1985 Miss. LEXIS 2123 (Miss. 1985).

Dismissal by committee of complaint against attorney is not judicial determination on merits, but rather is analogous to review by grand jury, and is not res judicata bar against subsequent complaint based on same allegations as those in dismissed complaint. Clark v. Mississippi State Bar Asso., 471 So. 2d 352, 1985 Miss. LEXIS 2089 (Miss. 1985).

There was no violation of §§73-3-317 and73-3-319, by continuing the investigation into alleged violations of disciplinary rules by a Mississippi attorney after the investigatory hearing, or by use of subsequently discovered evidence, where, even though the attorney had not been notified of the subsequent investigation when it had occurred, he received sufficient notice upon receipt of complaint counsel’s report that further investigation had been conducted, and where the attorney had had sufficient time to respond to the report between the time he received his copy and the time a formal complaint was filed against him, and had chosen not to do so. A Mississippi Attorney v. Mississippi State Bar, 453 So. 2d 1023, 1984 Miss. LEXIS 1809 (Miss. 1984).

An attorney cannot be compelled to testify at a hearing in the investigatory stages of a state bar disciplinary proceeding or to respond to a subpoena duces tecum prior to the filing of a formal complaint against him by the complaint committee; the legislature did not contemplate forced cooperation by an attorney in the investigative stages. Mississippi State Bar v. Attorney-Respondent in Disciplinary Proceedings, 367 So. 2d 179, 1979 Miss. LEXIS 2210 (Miss. 1979).

3. Application to particular cases.

Disbarment of attorney by Complaint Tribunal was reversed and attorney suspended for one year because bulk of evidence consisted chiefly of oral inculpatory statements or confessions allegedly made by attorney to law enforcement officers and members of grand jury, while there was lack of direct or documentary evidence. Hoffman v. MS State Bar Asso., 508 So. 2d 1120, 1987 Miss. LEXIS 2587 (Miss. 1987).

120-day suspension of attorney by Mississippi Bar Complaint Tribunal vacated due to existence and nature of extenuating circumstances and ordered that attorney receive public reprimand, where he had accepted employment and then neglected case, though he regularly told client that he was handling matter. Vining v. Mississippi State Bar Asso., 508 So. 2d 1047, 1987 Miss. LEXIS 2500 (Miss. 1987).

Granting of default judgment against attorney in disciplinary proceeding was proper where attorney made no responsive pleadings to formal complaint at any time. Vining v. Mississippi State Bar Asso., 508 So. 2d 1047, 1987 Miss. LEXIS 2500 (Miss. 1987).

Private reprimand may be issued to attorney for insurance company on basis of attorney’s civil trespass consisting of entry into burned remains of building, through unlocked door, without notice to or permission from insured lessee of building, and without identifying himself to insured lessee as insurer’s representative, provided that wording of reprimand must adequately describe nature of offense and inform members of bench of nature of attorney’s unprofessional conduct and must also reiterate confidentiality of private reprimand under §73-3-343 and penalties for violation of confidence. An Attorney v. Mississippi State Bar Asso., 481 So. 2d 297, 1985 Miss. LEXIS 2420 (Miss. 1985).

RESEARCH REFERENCES

ALR.

Failure to communicate with client as basis for disciplinary action against attorney. 80 A.L.R.3d 1240.

Extent and determination of attorney’s right or privilege against self-incrimination in disbarment or other disciplinary proceedings – post-Spevack cases. 30 A.L.R.4th 243.

Attorney’s misrepresentation to court of his state of health or other personal matter in seeking trial delay as ground for disciplinary action. 61 A.L.R.4th 1216.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in matters involving formation or dissolution of business organization as ground for disciplinary action-modern cases. 63 A.L.R.4th 656.

Bringing of frivolous civil claim or action as ground for discipline of attorney. 85 A.L.R.4th 544.

Soliciting client to commit illegal or immoral act as ground for discipline of attorney. 85 A.L.R.4th 567.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law §§ 29 et seq.

CJS.

7A C.J.S., Attorney and Client §§ 233 et seq.

Law Reviews.

1981 Mississippi Supreme Court Review: Administrative Law. 52 Miss. L. J. 377.

1991 Mississippi Supreme Court Review: Misconduct of attorneys and judges. 61 Miss. L. J. 686.

§ 73-3-321. Filing and prosecution of formal complaints; requirements of complaint and other pleadings; service.

  1. All formal complaints shall be filed in the court and shall be prosecuted in the name of the Mississippi Bar. The formal complaint and other pleadings shall comply with the following requirements:
    1. The formal complaint shall be filed with the clerk of the court within thirty (30) days of the receipt by complaint counsel of the written notice from the committee on complaints directing him to file said complaint.
    2. The complaint shall set forth with fair and reasonable certainty the particulars of the offense of which the accused attorney is charged.
    3. All matters of defense or abatement asserted by the accused attorney shall be filed within twenty (20) days after a copy of the complaint is served upon the accused attorney. Provided that upon application to the clerk the accused attorney may be granted such additional time as the circumstances warrant.
    4. The complaint shall be personally served upon the accused attorney by the Executive Director of the Mississippi Bar or by the complaint counsel unless the accused attorney shall waive the same by execution and delivery to the clerk of receipt and waiver of personal service.
  2. The procedure for suspending an attorney from the practice of law for being out of compliance with an order for support, as defined in Section 93-11-153, and the procedure for reinstating an attorney to practice law after suspension for being out of compliance, and the payment of any fees for reinstating an attorney to practice law after suspension for being out of compliance, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this article, the provisions of Section 93-11-157 or 93-11-163, as the case be, shall control.

HISTORY: Laws, 1974, ch. 566, § 10; reenacted, Laws, 1983, ch. 302, § 35; Laws, 1991, ch. 526, § 38; reenacted, Laws, 1992, ch. 515, § 38; Laws, 1996, ch. 507, § 23, eff from and after July 1, 1996.

Cross References —

Notice and hearing required in cases where committee on complaints decides reprimand is sufficient sanction, see §73-3-319.

Suspension of state issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Complaint tribunal – powers and duties see Rules of Discipline for the Mississippi State Bar, Rule 8.

JUDICIAL DECISIONS

1. In general.

A default judgment may be granted in an attorney disciplinary proceeding where a formal complaint has been received, a waiver of service of process and an entry of appearance have been filed, no answer or any other responsive pleading has been filed, and a motion for default judgment has been received. Barfield v. Mississippi State Bar Asso., 547 So. 2d 46, 1989 Miss. LEXIS 329 (Miss. 1989).

§ 73-3-323. Complaint tribunal; designation; per diem, mileage and necessary expenses.

Within five (5) days after the formal complaint is filed with the clerk of the court by complaint counsel, the chief justice shall designate a complaint tribunal to conduct a hearing on the formal complaint and to determine the matter; provided, however, the complaint tribunal so designated by the chief justice shall not be composed of members from the same supreme court district as that within which the accused attorney resides. The chief justice shall designate one (1) member of the complaint tribunal to be the presiding judge thereof. Any member of the complaint tribunal who is not an elected judge or chancellor shall be entitled to a per diem as authorized by Section 25-3-69 for each day’s service in attending hearings or necessary business of the tribunal and shall receive reimbursement for necessary expenses and mileage as is authorized by Section 25-3-41. Said per diem and expense reimbursement, subject to funds being appropriated therefor, shall be paid from any available funds appropriated to the Supreme Court.

HISTORY: Laws, 1974, ch. 566, § 11; reenacted, Laws, 1983, ch. 302, § 36; reenacted, Laws, 1991, ch. 526, § 39; reenacted, Laws, 1992, ch. 515, § 39; Laws, 1993, ch. 444, § 1, eff from and after July 1, 1993.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Complaint tribunal – powers and duties see Rules of Discipline for the Mississippi State Bar, Rule 8.

JUDICIAL DECISIONS

1. In general.

An attorney disciplinary proceeding would be remanded to a complaint tribunal pursuant to §73-3-323, where the attorney’s motion to remand, that there was other evidence not introduced at his contempt trial, which should have been made part of the record in the disciplinary proceeding. Mississippi State Bar v. Mississippi Attorney, 437 So. 2d 1227, 1983 Miss. LEXIS 2929 (Miss. 1983).

§ 73-3-325. Complaint tribunal; hearing; notice; rules.

Within forty-five (45) days after the designation by the chief justice of the complaint tribunal to hear and determine the formal complaint, the complaint tribunal shall conduct a hearing of the matter at such place and within such hours as determined by the tribunal; provided, however, such hearing shall be held and conducted within the county in which the accused attorney resides and provided further that for good cause shown the complaint tribunal may grant a reasonable continuance or continuances of said hearing. Written notice of the date, time and place of said hearing shall be mailed by the clerk of the court at the direction of the presiding judge of the complaint tribunal to the accused attorney by registered mail, return receipt requested, no less than ten (10) days prior to the commencement of said hearing.

All hearings by a complaint tribunal shall be a full evidentiary hearing, conducted on an adversary basis. The rules of evidence and procedure applicable to and followed by the chancery courts of Mississippi shall apply to such hearings. A duly qualified court reporter shall be in attendance and shall make a full and complete transcript of the proceedings. The hearing by the complaint tribunal shall be closed, unless the accused attorney shall request a public hearing; and the complaint tribunal shall have the right and duty to impose such reasonable restrictions as it may deem necessary or appropriate to insure an orderly expeditious and impartial proceeding.

HISTORY: Laws, 1974, ch. 566, § 12; reenacted, Laws, 1983, ch. 302, § 37; reenacted, Laws, 1991, ch. 526, § 40; reenacted, Laws, 1992, ch. 515, § 40, eff from and after July 1, 1992.

Cross References —

Notice and hearing required in cases where committee on complaints decides reprimand is sufficient sanction, see §73-3-319.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Complaint tribunal – powers and duties see Rules of Discipline for the Mississippi State Bar, Rule 8.

JUDICIAL DECISIONS

1. In general.

2.-5. [Reserved for future use.]

6. Under former §73-3-147.

1. In general.

The Rules of Discipline of the Mississippi State Bar prohibit an attorney for a person lodging a complaint with the Mississippi State Bar from taking part in the Bar’s disciplinary hearings or proceedings except to be present, confer with, and advise the complainant who serves as a witness in such proceedings. In re Attorney A, 565 So. 2d 1139, 1990 Miss. LEXIS 446 (Miss. 1990).

Time limitations in §§73-3-319,73-3-325 are directory rather than jurisdictional and 17-day delay in filing of formal complaint does not justify dismissal of complaint; nor are accused attorneys prejudiced by more protracted delay in holding tribunal hearing when in some instances delays have been requested by attorneys and in one instance delay is due to material case pending before Supreme Court. Myers v. Mississippi State Bar, 480 So. 2d 1080, 1985 Miss. LEXIS 2144 (Miss. 1985), cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3335 (U.S. 1986).

Any harm resulting from deprivation of right of accused attorney to confront and cross-examine accuser at investigatory hearing is subsequently eliminated when complaints tribunal allows confrontation and cross-examination at full evidentiary hearing. Myers v. Mississippi State Bar, 480 So. 2d 1080, 1985 Miss. LEXIS 2144 (Miss. 1985), cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3335 (U.S. 1986).

2.-5. [Reserved for future use.]

6. Under former § 73-3-147.

Statutes, regulating the bar and providing for procedure against members for misconduct, are generally regarded as prescribing a preferential method of procedure, which the court may, and in most cases ought, as a matter of discretion, to require to be followed but which is not exclusive; such statutes are not restrictive of the inherent powers which reside in courts to inquire into the conduct of their own officers, and to discipline them for misconduct. In re Higgins, 194 Miss. 838, 13 So. 2d 829, 1943 Miss. LEXIS 110 (Miss. 1943).

The fact that there was not a quorum of the bar commissioners present at meeting when disbarment proceedings were directed to be instituted against erring attorney did not invalidate such proceedings, since, apart from, and independent of, the statutes regulating the bar and the conduct of its members, the superior courts of this state have inherent power derived from their constitutional establishment to discipline members of the bar for misconduct. In re Higgins, 194 Miss. 838, 13 So. 2d 829, 1943 Miss. LEXIS 110 (Miss. 1943).

Judgment of disbarment affirmed where all the charges preferred, when considered together and in the light of their rational relationship as a whole, were sufficient and were supported by the preponderance of the credible evidence, notwithstanding that some of the charges, if standing alone, would not be sufficient to sustain an order of disbarment. In re Higgins, 194 Miss. 838, 13 So. 2d 829, 1943 Miss. LEXIS 110 (Miss. 1943).

RESEARCH REFERENCES

ALR.

Effect of acquittal or dismissal in criminal prosecution as barring disciplinary action against attorney. 76 A.L.R.3d 1028.

Restricting access to records of disciplinary proceedings against attorneys. 83 A.L.R.3d 749.

Discovery or inspection of state bar records of complaints against or investigations of attorneys. 83 A.L.R.3d 777.

Attorneys at law: delay in prosecution of disciplinary proceeding as defense or mitigating circumstance. 93 A.L.R.3d 1057.

Admissibility of lie detector test results, or of offer or refusal to take test, in attorney disciplinary proceeding. 79 A.L.R.4th 576.

Appointment of counsel for attorney facing disciplinary charges. 86 A.L.R.4th 1071.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law §§ 29 et seq., 101 et seq.

2 Am. Jur. Pl & Pr Forms (Rev), Attorneys at Law, Forms 287, 288.

CJS.

7A C.J.S., Attorney and Client §§ 99-103.

§ 73-3-327. Complaint tribunal; written opinion; judgment.

  1. At the conclusion of the hearing the complaint tribunal, upon the majority vote of the members of such tribunal, shall render a written opinion incorporating a finding of fact and a judgment thereon. The judgment of the complaint tribunal may provide the following:
    1. Exonerate the accused attorney and dismiss the complaint.
    2. Reprimand and admonish the attorney, as provided in Section 73-3-319(b) of this article.
    3. Suspend the attorney from the practice of law for any period of time.
    4. Permanently disbar the attorney.
  2. In cases in which the Clerk of the Supreme Court has received notice from the division that the attorney is out of compliance with an order for support, as defined in Section 93-11-153, the Supreme Court shall suspend the attorney from the practice of law until such time as the attorney may be reinstated to practice law because of the attorney’s compliance with the requirements of Section 93-11-157 or 93-11-163, as the case may be.

HISTORY: Laws, 1974, ch. 566, § 13; reenacted, Laws, 1983, ch. 302, § 38; reenacted, Laws, 1991, ch. 526, § 41; reenacted, Laws, 1992, ch. 515, § 41; Laws, 1996, ch. 507, § 24, eff from and after July 1, 1996.

Cross References —

Suspension of state issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Complaint tribunal – powers and duties see Rules of Discipline for the Mississippi State Bar, Rule 8.

JUDICIAL DECISIONS

1. In general.

2. Conduct warranting disbarment.

3. Conduct warranting suspension.

4. Conduct warranting private reprimand.

5.-10. [Reserved for future use.]

11. Under former §73-3-53.

1. In general.

Factors generally considered for imposition of sanctions for attorney misconduct are (1) the nature of the misconduct, (2) the need to deter similar misconduct, (3) preservation of the dignity and reputation of the profession, (4) protection of the public and (5) sanctions imposed in similar cases. Steighner v. Mississippi State Bar, 548 So. 2d 1294, 1989 Miss. LEXIS 396 (Miss. 1989).

The Supreme Court may discipline an attorney for conduct which occurs outside the attorney-client relationship. Steighner v. Mississippi State Bar, 548 So. 2d 1294, 1989 Miss. LEXIS 396 (Miss. 1989).

A default judgment may be granted in an attorney disciplinary proceeding where a formal complaint has been received, a waiver of service of process and an entry of appearance have been filed, no answer or any other responsive pleading has been filed, and a motion for default judgment has been received. Barfield v. Mississippi State Bar Asso., 547 So. 2d 46, 1989 Miss. LEXIS 329 (Miss. 1989).

There is no standard as to what punishment for particular misconduct ought to be and cases are considered on a case-by-case basis. Goeldner v. Mississippi State Bar Asso., 525 So. 2d 403, 1988 Miss. LEXIS 241 (Miss. 1988).

By suspending attorney from practice of law on basis of attorney’s failure to adequately administer legal services program which, as entity, undertook to represent criminal defendant, when attorney has been charged with representing defendant and in failing to perfect appeal or give notice of withdrawal, complaint tribunal has impermissibly deprived attorney of right to hearing and to defend on specific charge alleged in complaint. Myers v. Mississippi State Bar, 480 So. 2d 1080, 1985 Miss. LEXIS 2144 (Miss. 1985), cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3335 (U.S. 1986).

Complaints committee may recommend that attorney who refuses public reprimand offered by committee and exercises right to de novo hearing before complaints tribunal be suspended or disbarred. Myers v. Mississippi State Bar, 480 So. 2d 1080, 1985 Miss. LEXIS 2144 (Miss. 1985), cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3335 (U.S. 1986).

2. Conduct warranting disbarment.

An attorney’s conduct warranted disbarment where he neglected cases, failed to reasonably inform clients of the status of their cases, failed to return client property and render an accounting of client funds, and misrepresented services provided in exchange for quoted fees, and he had previously received 2 private reprimands and two informal admonitions but continued to exhibit a tendency to deal with his clients in a manner which left them uninformed, frustrated, and justifiably dissatisfied with the lack of representation and the attorney-client relationship in general. Stegall v. The Mississippi Bar, 618 So. 2d 1291, 1993 Miss. LEXIS 217 (Miss. 1993).

An attorney’s conviction of the crime of falsifying a loan closing statement submitted to the United States Department of Housing and Urban Development in violation of 18 USCS § 1012 warranted automatic disbarment. The Mississippi Bar v. McHann, 618 So. 2d 702, 1993 Miss. LEXIS 101 (Miss. 1993).

An attorney’s conversion of clients’ funds from his trust account warranted permanent disbarment, even though no previous complaint had been made against him to the State Bar, and he admitted his wrongdoing and expressed remorse to the tribunal, since dishonest conduct by an attorney with his or her own client goes to the very core of a lawyer’s fitness to practice law. Reid v. Mississippi State Bar, 586 So. 2d 786, 1991 Miss. LEXIS 592 (Miss. 1991).

An attorney’s conduct violated §73-3-35 and certain disciplinary rules of the Code of Professional Responsibility for the Bar, warranting disbarment, where the attorney deposited large contingencies into his personal checking accounts without informing his employer of his receipt of the funds, he used the funds for payment of personal obligations, he showed a lack of remorse, and he consistently maintained that he had committed no wrongdoing or ethical violations until being confronted with ironclad proof, at which time he changed his testimony from that given at the investigatory hearing and previous bar proceedings. Tucker v. Mississippi State Bar, 577 So. 2d 844, 1991 Miss. LEXIS 187 (Miss. 1991).

An attorney’s conduct warranted disbarment where he misrepresented his law school credentials and admission to another state’s bar in applying for employment with a law firm. Barfield v. Mississippi State Bar Asso., 547 So. 2d 46, 1989 Miss. LEXIS 329 (Miss. 1989).

The conclusion of the Complaint Tribunal that an attorney convicted of nine counts of deceiving and conspiring to defraud the United States government should be suspended from the practice of law pursuant to §73-3-327 would be vacated and the penalty of disbarment imposed pursuant to the authority of §73-3-329, without regard to the automatic disbarment provisions of §73-3-41 and former §73-3-53, where the charges of which the attorney had been convicted involved moral turpitude. Mississippi State Bar v. Phillips, 385 So. 2d 943, 1980 Miss. LEXIS 1937, 1980 Miss. LEXIS 1991 (Miss. 1980).

3. Conduct warranting suspension.

A one-year suspension from the practice of law was warranted where the attorney knowingly and intentionally lied to his clients over a 2-year period regarding the status of their case, since his conduct was not mere negligence but involved intentional misrepresentation to cover his negligence. Underwood v. Mississippi Bar, 618 So. 2d 64, 1993 Miss. LEXIS 41 (Miss. 1993).

Attorney who discontinues representation of client who attorney has undertaken to represent in court of record before attorney has been properly relieved by court, pursuant to motion filed by attorney with court with proper notice to client, may be suspended from practice of law. Myers v. Mississippi State Bar, 480 So. 2d 1080, 1985 Miss. LEXIS 2144 (Miss. 1985), cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3335 (U.S. 1986).

4. Conduct warranting private reprimand.

An attorney’s advice to an adverse party in a civil action arising from an automobile accident, that she did not need to worry about the matter and that she did not need to do anything about it, violated the prohibition against giving advice to an unrepresented person other than advice to secure counsel, and warranted a private reprimand. Attorney Q v. Mississippi State Bar, 587 So. 2d 228, 1991 Miss. LEXIS 652 (Miss. 1991), cert. denied, 502 U.S. 1098, 112 S. Ct. 1179, 117 L. Ed. 2d 423, 1992 U.S. LEXIS 888 (U.S. 1992).

An attorney’s conduct in misrepresenting facts to a client, and misleading and being untruthful to a client, warranted a private reprimand, even though the attorney had been “candid, humble, forthcoming, and freely admitted his conduct,” the client had not been prejudiced by the attorney’s conduct, and the attorney had no record of prior misconduct, since the attorney’s conduct reflected poorly upon attorneys and the legal profession. Mississippi State Bar v. Attorney D., 579 So. 2d 559, 1991 Miss. LEXIS 252 (Miss. 1991).

5.-10. [Reserved for future use.]

11. Under former § 73-3-53.

Miss Code §73-3-301, et seq., rather than Miss Code §73-3-41 and former §73-3-53, were applicable in an application for reinstatement to the Mississippi State Bar following disbarment on the ground of conviction of federal felonies involving moral turpitude; accordingly, petitioner would be reinstated where the state bar admitted all the averments and facts of the petition, which set out that no claims had been made, or were contemplated, for restitution of money, that he had conducted himself in a manner beyond criticism, that he had been able to obtain employment and had supplied the needs of his family, that he had continued to be active in community and civic activities and had been a good citizen during the period of his disbarment, and that if he was reinstated, he would be a valuable member of the Mississippi State Bar in the future and would conduct himself in such way as to be a credit to the state bar and to the State of Mississippi. Phillips v. Mississippi State Bar, 427 So. 2d 1380, 1983 Miss. LEXIS 2508 (Miss. 1983).

The conclusion of the Complaint Tribunal that an attorney convicted of nine counts of deceiving and conspiring to defraud the United States government should be suspended from the practice of law pursuant to §73-3-327 would be vacated and the penalty of disbarment imposed pursuant to the authority of §73-3-329, without regard to the automatic disbarment provisions of §73-3-41 and former §73-3-53, where the charges of which the attorney had been convicted involved moral turpitude. Mississippi State Bar v. Phillips, 385 So. 2d 943, 1980 Miss. LEXIS 1937, 1980 Miss. LEXIS 1991 (Miss. 1980).

Evidence disclosing attorney stirred up litigation and purchased papers coming into employee’s hands and wrongfully withheld from employer held to warrant disbarment. In re Latham, 162 Miss. 233, 139 So. 457, 1932 Miss. LEXIS 136 (Miss. 1932).

Supreme Court has inherent and original jurisdiction to take cognizance of disbarment proceedings against attorney filed in first instance in supreme court. In re Steen, 160 Miss. 874, 134 So. 67, 1931 Miss. LEXIS 176 (Miss. 1931).

Supreme court should retain jurisdiction of disbarment proceedings instituted therein against attorney, though jurisdiction is concurrent with that of circuit and chancery courts. In re Steen, 160 Miss. 874, 134 So. 67, 1931 Miss. LEXIS 176 (Miss. 1931).

“Misbehavior” refers only to misbehavior demonstrating attorney’s unfitness attending particular relationship; attorney’s contract to obtain appointment of another to public office was not of itself sufficient to warrant disbarment. Ex parte Redmond, 156 Miss. 439, 125 So. 833, 1930 Miss. LEXIS 164 (Miss. 1930).

Court may prescribe procedure in disbarment proceedings. Ex parte Cashin, 128 Miss. 224, 90 So. 850, 1922 Miss. LEXIS 109 (Miss. 1922).

This section [Code 1942, § 8675] does not preclude the circuit court from acting on the merits of a petition by a disbarred attorney for reinstatement, and it may restore such attorney to his privileges. Ex parte Redmond, 120 Miss. 536, 82 So. 513, 1919 Miss. LEXIS 118 (Miss. 1919).

RESEARCH REFERENCES

Am. Jur.

1A Am. Jur. Pl & Pr Forms (Rev), Administrative Law, Form 341.2 (complaint, petition, or declaration – by license holder – against administrative agency – to enjoin further proceedings to suspend or revoke license – attempt to suspend or revoke license on grounds not listed in statute authorizing suspension or revocation of license).

2 Am. Jur. Pl & Pr Forms (Rev), Attorneys at Law, Forms 329-331.

Practice References.

L. Ray Patterson, Lawyer’s Law: Procedural, Malpractice & Disciplinary Issues (Matthew Bender).

§ 73-3-329. Complaint tribunal; appeal from judgment; record on appeal; scope of review; rules of practice.

  1. The entire record of the proceeding of the complaint tribunal shall be filed with the clerk of the court within thirty (30) days after the conclusion of the hearing or within such additional time as the clerk, on motion therefor, may allow.
  2. If no appeal from the judgment of the complaint tribunal is perfected within thirty (30) days from the date of said judgment, the judgment of the complaint tribunal shall be final.
  3. Either the attorney or the Mississippi Bar shall have the right to an appeal to the court, which appeal shall be perfected within thirty (30) days of the date of the judgment of the complaint tribunal by the aggrieved party filing a notice of appeal with the clerk of the court.
  4. The record on appeal shall consist of the formal complaint, all other pleadings, the transcript of the testimony and the written opinion and judgment of the complaint tribunal.
  5. On appeal, the court may review all of the evidence and the law and the findings and conclusions of the complaint tribunal and it may make such findings and conclusions and render such order as it may find to be appropriate based upon the whole record.
  6. The rules of practice and procedure for the filing of briefs and oral arguments governing appeals from the chancery or circuit courts of Mississippi shall apply to and govern appeals from the judgment of the complaint tribunals; provided, however, whenever possible, the court shall advance and expedite the cause on its docket.
  7. Actions taken by the Supreme Court in suspending an attorney from the practice of law when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of the suspension of an attorney from the practice of law that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.

HISTORY: Laws, 1974, ch. 566, § 14; reenacted, Laws, 1983, ch. 302, § 39; Laws, 1991, ch. 526, § 42; reenacted, Laws, 1992, ch. 515, § 42; Laws, 1996, ch. 507, § 25, eff from and after July 1, 1996.

Cross References —

Applicability of provisions of this section to appeal from reprimand, see §73-3-319.

Suspension of state-issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Appeals from complaint tribunal, see Rules of Discipline for the Mississippi State Bar, Rule 9.

JUDICIAL DECISIONS

1. In general.

2.-5. [Reserved for future use.]

6. Under former §73-3-155.

1. In general.

An appeal by the Mississippi State Bar to enhance an attorney’s punishment for his violation of disciplinary rules did not violate the attorney’s constitutional right against double jeopardy. Mississippi State Bar v. Blackmon, 600 So. 2d 166, 1992 Miss. LEXIS 154 (Miss. 1992).

The Supreme Court has the independent authority to reassess the punishment meted out by the Complaint Tribunal and to increase or decrease the punishment as it deems proper; there is no standard as to what punishment for particular misconduct ought to be, and cases are considered on a case by case basis. Mississippi State Bar v. Attorney D., 579 So. 2d 559, 1991 Miss. LEXIS 252 (Miss. 1991).

In an attorney disciplinary proceeding, the state supreme court is the supreme trier of fact, and as a matter of law, is not bound by any findings of fact made by the complaint tribunal. However, the state supreme court is not prohibited from giving to findings of fact made by such complaints tribunal such merit as in its judgment they may deserve. The state supreme court has independent authority to reassess the punishment imposed in the disciplinary proceedings and modify the punishment as it deems proper. Goeldner v. Mississippi State Bar Asso., 525 So. 2d 403, 1988 Miss. LEXIS 241 (Miss. 1988).

While the Supreme Court gives deference to the findings of the Complaint Tribunal, the court has the nondelegable duty of ultimately finding the facts in attorney disciplinary proceedings, and making such conclusion and order from those findings as the court deems must be reached. Mississippi State Bar Asso. v. Strickland, 492 So. 2d 567, 1986 Miss. LEXIS 2509 (Miss. 1986).

Supreme Court remains free to re-evaluate sentence imposed by complaint tribunal regardless of whether matter is brought before court on appeal from public reprimand under §73-3-329, as amended, or on appeal from suspension and private reprimand under pre-amendment “policy”. Myers v. Mississippi State Bar, 480 So. 2d 1080, 1985 Miss. LEXIS 2144 (Miss. 1985), cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3335 (U.S. 1986).

In reviewing disciplinary proceedings against an attorney, the Supreme Court, in the exercise of its sound discretion, is by no means prohibited from giving to findings of fact made by the Complaint Tribunal such weight as in its judgment they may deserve; nevertheless, pursuant to §73-3-329(5), it is the court’s non-delegable duty and responsibility to make its own findings of fact in such cases. Levi v. Mississippi State Bar, 436 So. 2d 781, 1983 Miss. LEXIS 2728 (Miss. 1983).

The conclusion of the Complaint Tribunal that an attorney convicted of nine counts of deceiving and conspiring to defraud the United States government should be suspended from the practice of law pursuant to §73-3-327 would be vacated and the penalty of disbarment imposed pursuant to the authority of §73-3-329, without regard to the automatic disbarment provisions of §73-3-41 and former §73-3-53, where the charges of which the attorney had been convicted involved moral turpitude. Mississippi State Bar v. Phillips, 385 So. 2d 943, 1980 Miss. LEXIS 1937, 1980 Miss. LEXIS 1991 (Miss. 1980).

2.-5. [Reserved for future use.]

6. Under former § 73-3-155.

In a proceeding for the reinstatement of a disbarred attorney, the supreme court is the final judge of the facts, and the judgment to be rendered, and the rule that a judgment of the lower court will not be reversed on a question of fact unless it affirmatively appears upon the face of the record that the cause was decided contrary to the evidence is inapplicable. Mississippi State Bar Asso. v. Wade, 250 Miss. 625, 167 So. 2d 648, 1964 Miss. LEXIS 483 (Miss. 1964).

The supreme court on appeal from disbarment, will review all questions of law and fact. In re Petition for Disbarment of Denman, 224 Miss. 92, 79 So. 2d 536, 1955 Miss. LEXIS 464 (Miss. 1955).

In a disbarment proceeding the supreme court is the final judge of the facts and of the judgment to be rendered thereon and the proof of guilt must be clear and convincing. Petition for Disbarment of Quinn, 223 Miss. 660, 78 So. 2d 883, 1955 Miss. LEXIS 420 (Miss. 1955).

The supreme court can review the findings of fact made by the chancellor or circuit judge and the court is not bound by such findings on conflicting evidence. Petition for Poole, 222 Miss. 678, 76 So. 2d 850, 1955 Miss. LEXIS 652 (Miss. 1955).

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attorneys at Law, Forms 311 et seq.

CJS.

7A C.J.S., Attorney and Client §§ 109, 110, 112-115.

§ 73-3-331. Complaint tribunal; effect of judgment of suspension or disbarment; appeal as supersedeas.

Upon a final judgment of suspension or disbarment by a complaint tribunal, the convicted attorney shall not be privileged to practice law within this state unless and until he is restored the privilege of practice as hereinafter provided. Appeal from a judgment by the complaint tribunal shall operate as a supersedeas. An appeal from a judgment of the Supreme Court suspending an attorney from the practice of law when required by Section 93-11-157 or 93-11-163 may operate as a supersedeas only as may be allowed under Section 93-11-157 or 93-11-163, as the case may be.

HISTORY: Laws, 1974, ch. 566, § 15; reenacted, Laws, 1983, ch. 302, § 40; reenacted, Laws, 1991, ch. 526, § 43; reenacted, Laws, 1992, ch. 515, § 43; Laws, 1996, ch. 507, § 26, eff from and after July 1, 1996.

Cross References —

Suspension of state issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Complaint tribunal – powers and duties, see Rules of Discipline for the Mississippi State Bar, Rule 8.

Appeals from complaint tribunal, see Rules of Discipline for the Mississippi State Bar, Rule 9.

RESEARCH REFERENCES

ALR.

Disbarment or suspension of attorney in one state as affecting right to continue practice in another state. 81 A.L.R.3d 1281.

Validity and construction of procedures to temporarily suspend attorney from practice, or place attorney on inactive status, pending investigation of, and action upon, disciplinary charges. 80 A.L.R.4th 136.

Am. Jur.

31 Am. Jur. Trials 633, Defending Lawyers in Disciplinary Proceedings.

44 Am. Jur. Proof of Facts 2d 377, Legal Malpractice in Domestic Relations.

Practice References.

L. Ray Patterson, Lawyer’s Law: Procedural, Malpractice & Disciplinary Issues (Matthew Bender).

§ 73-3-333. Resignation by accused attorney during course of disciplinary proceedings; procedure; effect; section provides exclusive method.

At any stage of the disciplinary proceedings an accused attorney who is the subject of investigation may submit his resignation and agree to the entry by the court of a consent order of suspension or dismissal by submitting to the Board of Commissioners an affidavit stating that he desires to resign from the bar and to surrender his privilege to practice law, and that:

His resignation is freely and voluntarily rendered; he is not being subjected to coercion or duress; and he is fully aware of the implications of submitting his resignation.

He is aware that there is pending an investigation into allegations that he has been guilty of unprofessional conduct, the nature of which he shall specifically set forth.

He acknowledges that the material facts upon which the complaint is based are true.

He submits his resignation because he knows that if charges were predicated on the misconduct under investigation, he could not defend himself successfully against them.

Notwithstanding the provisions of Section 73-3-315(e) to the contrary, upon receipt of said affidavit, the investigation or disciplinary procedure shall terminate, and the Board of Commissioners will present to the court an agreed order to be entered by the court either suspending or disbarring said attorney by consent, as the particular circumstances of the matter may require in the discretion of the Board of Commissioners. Said order shall be a public record, and certified copies thereof shall be mailed to the judges of the circuit and chancery court districts within which the attorney resides.

Once a complaint has been filed against an attorney, this shall be the exclusive method for resignation pending the investigation and determination of said complaint, and no other resignation procedure will be permitted or recognized by the bar.

HISTORY: Laws, 1974, ch. 566, § 16; reenacted, Laws, 1983, ch. 302, § 41; Laws, 1991, ch. 526, § 44; reenacted, Laws, 1992, ch. 515, § 44, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Irrevocable resignations, see Rules of Discipline for the Mississippi State Bar, Rule 10.

Effect of resignation, see Rules of Discipline for the Mississippi State Bar, Rule 11.

RESEARCH REFERENCES

ALR.

Propriety of attorney’s resignation from bar in light of pending or potential disciplinary action. 54 A.L.R.4th 264.

§ 73-3-335. Modification or termination of suspension.

Any time after the entry of a final judgment of suspension and after the expiration of at least one-fourth (1/4) of the period of the ordered suspension, the convicted attorney may file a petition in the court to modify or terminate said suspension; provided, however, any petition to modify or terminate subsequent to the initial petition shall not be filed within six (6) months from the date of the adverse determination of any prior petition. A filing fee of Two Hundred Fifty Dollars ($250.00) to defray the expense of investigating the matter shall be paid the Mississippi Bar upon the filing of each petition to modify or terminate. A copy of said petition shall be served upon the Mississippi Bar, and it shall be under a duty to investigate the matter, respond to the petition and appear at the hearing. Modification or termination of suspension shall be granted only upon a showing of good cause and exceptional circumstances.

The procedure for reinstating an attorney to practice law after suspension for being out of compliance with an order of support, as defined in Section 93-11-153, and the payment of any fees for reinstating an attorney to practice law after suspension for being out of compliance, shall be governed by Section 93-11-157 or 93-11-163, as the case may be.

HISTORY: Laws, 1974, ch. 566, § 17; reenacted, Laws, 1983, ch. 302, § 42; Laws, 1991, ch. 526, § 45; reenacted, Laws, 1992, ch. 515, § 45; Laws, 1996, ch. 507, § 27, eff from and after July 1, 1996.

Cross References —

Suspension of state issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

A final judgment suspending an attorney may not be modified since the Mississippi Rules of Discipline supersede §73-3-335 and Rule 12.4 provides that a “suspended attorney shall not file a petition for reinstatement until the expiration of the period of suspension.” Mississippi State Bar v. Young, 523 So. 2d 323, 1988 Miss. LEXIS 96 (Miss. 1988).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. Trials 633, Defending Lawyers in Disciplinary Proceedings.

44 Am. Jur. Proof of Facts 2d 377, Legal Malpractice in Domestic Relations.

§ 73-3-337. Reinstatement.

Upon the termination of the period of suspension, the convicted attorney may be reinstated by the court, pursuant to a petition filed with the court and a copy thereof served upon the Mississippi Bar. A filing fee of Two Hundred Fifty Dollars ($250.00) to defray the expense of investigating the matter shall be paid the Mississippi Bar upon the filing of such petition. The Mississippi Bar shall investigate the matter and report all relevant facts for the consideration of the court.

Any time after the expiration of three (3) years from and after the date of the final judgment of disbarment, the convicted attorney may petition the court for reinstatement. The petition shall be in writing and verified by the petitioner, and it shall set forth the full name, age, residence and mailing address of the petitioner, the offense or misconduct for which he was disbarred, a concise statement of the facts claimed to justify restoration and that he has made full amends and restitution to all persons, firms or legal entities, naming them, who may have suffered pecuniary loss by reason of the misconduct or offense for which he was disbarred. A copy of said petition shall be served on the Mississippi Bar, and a filing fee of Five Hundred Dollars ($500.00) to defray the expense of investigating the matter shall be paid the Mississippi Bar upon the filing of each petition. Any petition for reinstatement subsequent to the initial petition shall not be filed by the convicted attorney within one (1) year from the date of the adverse determination of any prior petition.

The court shall examine the petition and, if satisfied that it states sufficient grounds, shall set the same for hearing and shall cause the clerk of the court to serve each person named in the petition with a copy thereof by sending the same to them by registered mail. If the court deems it necessary or proper to so do, it may cause an investigation to be made by complaint counsel.

If the court is satisfied that all material allegations of the petition for reinstatement are true and that the ends of justice will be served, the court may reinstate the convicted attorney and enter judgment accordingly; provided, however, no judgment of reinstatement shall be entered by default or on an ex parte basis, and in all cases the court shall hear the Mississippi Bar and may hear any party named in the petition.

The procedure for reinstating an attorney to practice law after suspension for being out of compliance with an order of support, as defined in Section 93-11-153, and the payment of any fees for reinstating an attorney to practice law after suspension for being out of compliance, shall be governed by Section 93-11-157 or 93-11-163, as the case may be.

HISTORY: Laws, 1974, ch. 566, § 18; reenacted, Laws, 1983, ch. 302, § 43; Laws, 1991, ch. 526, § 46; reenacted, Laws, 1992, ch. 515, § 46; Laws, 1996, ch. 507, § 28, eff from and after July 1, 1996.

Cross References —

Suspension of state issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Rules regarding reinstatement, see Rules of Discipline for the Mississippi State Bar, Rule 12.

JUDICIAL DECISIONS

1. In general.

2.-5. [Reserved for future use.]

6. Under former §73-3-153.

1. In general.

A suspended attorney was entitled to reinstatement where he had been suspended for a period of 19 months, which was 7 months more than the original 12 months suspension ordered, and he presented evidence in support of his reinstatement, including his payment of restitution to the injured parties, his employment subsequent to the suspension, and letters concerning his moral fitness. In re Reinstatement of Underwood, 649 So. 2d 825, 1995 Miss. LEXIS 36 (Miss. 1995).

An attorney who was disbarred after being convicted of perjury would be reinstated, in spite of the State Bar’s argument that the attorney did not possess the requisite moral character because he was “convicted of committing perjury” and his “moral character when he committed those crimes was determined to be not good,” where the attorney met his burden of proving that he had “rehabilitated himself and re-established the requisite moral character sufficient to entitle him to reinstatement”; the Bar’s argument focused on the attorney’s character at the time the offense was committed when it should have focused on his character since the time the offense was committed, since the conduct upon which the original suspension proceedings were based may not furnish grounds for denial of reinstatement. In re Nixon, 618 So. 2d 1283, 1993 Miss. LEXIS 215 (Miss. 1993).

Although the Rules of Discipline for the Mississippi Bar provide for reinstatement through petition, an order of automatic reinstatement is within the scope of the Supreme Court’s exclusive and inherent jurisdiction of attorney discipline matters. Broome v. Mississippi Bar, 603 So. 2d 349, 1992 Miss. LEXIS 385 (Miss. 1992).

An attorney who was suspended from the practice of law following a felony conviction in the federal courts and who was disbarred 3 years later at the conclusion of his appeal of the federal conviction, was not denied equal protection or due process rights on the ground that he would be required to wait 3 years longer before reinstatement than an attorney who chose not to appeal a conviction. All disbarred attorneys are treated equally; the disparity of time arises when an attorney resists the disbarment pending his or her appellate procedures. Had the attorney accepted the disbarment following his conviction, no delay in entering a final order of disbarment would have resulted, and therefore there was no unequal treatment or denial of due process. Additionally, the attorney’s disbarment was not retroactive to the date of his suspension since the attorney’s initiative delayed the entry of the final order; retroactivity cannot be applied when the attorney seeks a stay of the final order. Mississippi State Bar v. Nixon, 562 So. 2d 1288, 1990 Miss. LEXIS 264 (Miss. 1990).

When a suspended attorney petitions for reinstatement, the State Bar is allowed a reasonable time for response, but the Bar also has a responsibility to proceed with diligence and dispatch and detail. If there be substantial reasons (unrelated to the conduct for which the suspension was originally imposed) why the suspended attorney should not be reinstated, it is incumbent upon the Bar to advise the Supreme Court of those facts with specificity so that the Court might determine whether a proper balancing of the relevant interests requires appointment of a master for an evidentiary hearing on the reinstatement request. Haimes v. Mississippi State Bar, 551 So. 2d 910, 1989 Miss. LEXIS 462 (Miss. 1989).

A suspended attorney petitioning for reinstatement has the burden of proving his or her case, but the case that he or she must prove is not the same or as great as that demanded of one who has been disbarred. Implicit in the judgment of suspension, stopping short of disbarment, is that the attorney’s character has not been shown so deficient that proof of general moral and professional rehabilitation be required. Haimes v. Mississippi State Bar, 551 So. 2d 910, 1989 Miss. LEXIS 462 (Miss. 1989).

Mere completion of service of a period of sentence does not automatically entitle a suspended attorney to reinstatement. Haimes v. Mississippi State Bar, 551 So. 2d 910, 1989 Miss. LEXIS 462 (Miss. 1989).

The burden of proving rehabilitation and re-establishment of requisite moral character is upon the attorney seeking the reinstatement. Mississippi State Bar v. Gautier, 538 So. 2d 772, 1989 Miss. LEXIS 47 (Miss. 1989).

Testimony of 11 witnesses in support of reinstatement of attorney who was disbarred after pleading guilty to drug charges, when combined with letters written on his behalf and an amicus curiae brief, signed by 46 local attorneys, all expressing belief that attorney had rehabilitated himself, constituted sufficient proof of his reformed character to merit reinstatement. Williams v. Mississippi State Bar Asso., 492 So. 2d 578, 1986 Miss. LEXIS 2538 (Miss. 1986).

If disbarred attorney’s failure to participate in organized religion had been determinative of the denial of his petition for reinstatement, then his constitutional rights would have been violated. Williams v. Mississippi State Bar Asso., 492 So. 2d 578, 1986 Miss. LEXIS 2538 (Miss. 1986).

A petition for reinstatement to the Bar that was brought less than three years from the date of disbarment was premature, under §73-3-339, since §73-3-337, which controlled on the date of petitioner’s disbarment, was no different in its effect from the current rule providing that an attorney may petition for reinstatement at any time after the expiration of three years from the date of final judgment of disbarment, rather than the date of the initial order suspending petitioner from the practice of law. McIntosh v. Mississippi State Bar, 449 So. 2d 1203, 1984 Miss. LEXIS 1715 (Miss. 1984).

2.-5. [Reserved for future use.]

6. Under former § 73-3-153.

Where petitioner for reinstatement to practice law failed to produce creditable testimony sufficient to establish his repentance and rehabilitation, chancellor erred in authorizing his reinstatement to the practice of law, and the decree of the chancery court would be reversed and the former decree of a chancery court of another county disbarring petitioner from the practice of law would be affirmed and continued in full force. Mississippi State Bar Asso. v. Wade, 250 Miss. 625, 167 So. 2d 648, 1964 Miss. LEXIS 483 (Miss. 1964).

Reinstatement to practice law should be granted only where there has been a reformation of character of the disbarred attorney. Mississippi State Bar Asso. v. Wade, 250 Miss. 625, 167 So. 2d 648, 1964 Miss. LEXIS 483 (Miss. 1964).

Attorney, after being disbarred, may rehabilitate himself and reestablish his moral character so as to entitle him to reinstatement. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

Fact that disbarred attorney seeking reinstatement refused to go into matter involved in disbarment trial held not indication of insufficient repentance, where to do so would require admission that he committed criminal offense. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

Requirements for reinstatement of disbarred attorney are same as for original admission to bar, except that court may require greater degree of proof. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

In determining whether disbarred attorney, seeking reinstatement, possesses good moral character, court may consider conduct prior to disbarment. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

Main question on application by disbarred attorney for reinstatement is whether he possesses necessary character to guarantee faithful discharge of duties as lawyer and assistance in administration of justice. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

In determining moral character of disbarred attorney seeking reinstatement, opinion of public, when settled and deliberate, is highest evidence thereof. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

In determining moral character of disbarred attorney seeking reinstatement, estimate of witnesses intimately acquainted with attorney is admissible. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

Evidence held to support finding that disbarred attorney had lived exemplary life, had rehabilitated himself since disbarment, and was worthy of being reinstated. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

Reinstatement of disbarred attorney is not surrender of power to discipline such attorney upon becoming false to his duties. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

RESEARCH REFERENCES

ALR.

Reinstatement of attorney after disbarment, suspension, or resignation. 70 A.L.R.2d 268.

Pardon as restoring public office or license or eligibility therefor. 58 A.L.R.3d 1191.

Restricting access to records of disciplinary proceedings against attorneys. 83 A.L.R.3d 749.

Discovery or inspection of state bar records of complaints against or investigations of attorneys. 83 A.L.R.3d 777.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law §§ 115 et seq.

2 Am. Jur. Pl & Pr Forms (Rev), Attorneys at Law, Forms 341 et seq.

CJS.

7A C.J.S., Attorney and Client §§ 123-130.

§ 73-3-339. Conviction or entry of plea of nolo contendere for certain offenses.

Whenever any attorney subject to the disciplinary jurisdiction of the court shall be convicted in any state court or in any federal court, or enter a plea of guilty or a plea of nolo contendere therein, of any felony other than manslaughter or any violation of the United States Internal Revenue Code, or of any offense involving fraud, dishonesty, misrepresentation, deceit, failure to account for money or property of a client, or of any offense involving moral turpitude, a certified copy of the judgment of conviction shall be presented to the court by the Board of Commissioners. Upon the presentation of such certified copy of judgment, the court shall forthwith strike the name of the attorney so convicted or who entered such a plea from the rolls of the Mississippi Bar and order his immediate suspension from practice, pending an appeal and final disposition of disciplinary proceedings. Such attorney will be reinstated immediately upon the reversal of his conviction for the offense that has resulted in his automatic suspension, but such reinstatement shall not terminate any disciplinary proceeding then pending against the attorney.

A certified copy of the final judgment of conviction of an attorney for any offense hereinabove specified shall be conclusive evidence of his guilt of that offense in any disciplinary proceeding instituted against him and based on said conviction.

Upon the conviction of an attorney, or the entry by him of a plea of nolo contendere, for the above offenses, excluding manslaughter or any violation of the United States Internal Revenue Code, the Board of Commissioners shall immediately direct complaint counsel to institute a disciplinary proceeding in which the sole issue to be determined will be the extent of the final discipline to be imposed; provided, however, a disciplinary proceeding so instituted shall not be brought to hearing until all appeals from such conviction have been concluded.

The judge of any court within this state in which an attorney has been convicted for any of the above enumerated offenses shall cause to be transmitted to the court and to the Board of Commissioners a certified copy of the judgment of conviction.

HISTORY: Laws, 1974, ch. 566, § 19; reenacted, Laws, 1983, ch. 302, § 44; Laws, 1991, ch. 526, § 47; reenacted, Laws, 1992, ch. 515, § 47, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Suspensions and disbarments based on other proceedings, see Rules of Discipline for the Mississippi State Bar, Rule 6.

Federal Aspects—

Internal Revenue Code, see 26 USCS §§ 1 et seq.

JUDICIAL DECISIONS

1. In general.

2.-5. [Reserved for future use.]

6. Under former §73-3-157.

1. In general.

Rule 6, Miss. R. Disc., providing for disbarment of an attorney upon the conviction of any felony, controlled over §73-3-339, which lists a violation of the United States Internal Revenue Code as an exception to the felony disbarment rule. The Mississippi Bar v. McGuire, 647 So. 2d 706, 1994 Miss. LEXIS 622 (Miss. 1994).

An attorney who was suspended from the practice of law following a felony conviction in the federal courts and who was disbarred 3 years later at the conclusion of his appeal of the federal conviction, was not denied equal protection or due process rights on the ground that he would be required to wait 3 years longer before reinstatement than an attorney who chose not to appeal a conviction. All disbarred attorneys are treated equally; the disparity of time arises when an attorney resists the disbarment pending his or her appellate procedures. Had the attorney accepted the disbarment following his conviction, no delay in entering a final order of disbarment would have resulted, and therefore there was no unequal treatment or denial of due process. Additionally, the attorney’s disbarment was not retroactive to the date of his suspension since the attorney’s initiative delayed the entry of the final order; retroactivity cannot be applied when the attorney seeks a stay of the final order. Mississippi State Bar v. Nixon, 562 So. 2d 1288, 1990 Miss. LEXIS 264 (Miss. 1990).

United States District Court judge’s license to practice law in Mississippi was suspended where the judge had been convicted of perjury in violation of § 1623, Title 18, United States Code, a felony. Mississippi State Bar v. Nixon, 494 So. 2d 1388, 1986 Miss. LEXIS 2674 (Miss. 1986).

Conviction of attorney in contempt proceeding before judge is not ground for automatic suspension of attorney, even though contempt may have arisen from attorney’s misrepresentation to court; however, state bar may proceed with disciplinary action against attorney in regular course. Mississippi State Bar v. Attorney A., 475 So. 2d 1164, 1985 Miss. LEXIS 2230 (Miss. 1985).

A petition for reinstatement to the Bar that was brought less than three years from the date of disbarment was premature, under §73-3-339, since §73-3-337, which controlled on the date of petitioner’s disbarment, was no different in its effect from the current rule providing that an attorney may petition for reinstatement at any time after the expiration of three years from the date of final judgment of disbarment, rather than the date of the initial order suspending petitioner from the practice of law. McIntosh v. Mississippi State Bar, 449 So. 2d 1203, 1984 Miss. LEXIS 1715 (Miss. 1984).

In disciplinary proceedings against an attorney who was convicted of a felony in federal court, the chancery court had no jurisdiction to restrain the State Bar from filing in the Supreme Court a certified copy of the attorney’s conviction, and the Supreme Court’s order invalidating the temporary injunction was valid in every respect, despite the attorney’s contentions that it was without adequate process and notice to him, and that this section is unconstitutional; the injunction against the State Bar amounted to a usurpation of the powers and duties vested exclusively in the Supreme Court, and the order striking the injunction did not cut off the attorney’s right to raise any defense, contention, or constitutional issue in the pending disciplinary action. Bramlett v. Burgin, 382 So. 2d 284, 1979 Miss. LEXIS 2341 (Miss. 1979).

2.-5. [Reserved for future use.]

6. Under former § 73-3-157.

Where the disbarment of an attorney consists merely in a sentence imposed upon him in criminal proceedings, the circuit and chancery courts are not deprived of jurisdiction to entertain and act upon disbarment proceedings against him, and they may, notwithstanding the judgment and sentence in the criminal case, exercise their inherent power in this area so as to place the results beyond the reach of executive clemency. In re Vance, 275 So. 2d 90, 1973 Miss. LEXIS 1344 (Miss. 1973).

RESEARCH REFERENCES

ALR.

Violation of securities regulations as ground of disciplinary action against attorney. 18 A.L.R.3d 1408.

Homicide or assault as ground for disciplinary measures against attorney. 21 A.L.R.3d 887.

Effect of acquittal or dismissal in criminal prosecution as barring disciplinary action against attorney. 76 A.L.R.3d 1028.

Disciplinary action against attorney prior to exhaustion of appellate review of conviction. 76 A.L.R.3d 1061.

Attorney’s conviction in foreign or federal jurisdiction as ground for disciplinary action. 98 A.L.R.3d 357.

Narcotics conviction as crime of moral turpitude justifying disbarment or other disciplinary action against attorney. 99 A.L.R.3d 288.

Am. Jur.

44 Am. Jur. Proof of Facts 2d 377, Legal Malpractice in Domestic Relations.

§ 73-3-341. Disbarment or suspension in another jurisdiction.

Whenever any attorney subject to the disciplinary jurisdiction of the court shall be disbarred or suspended from the practice of law in another jurisdiction, such disbarment or suspension shall be grounds for disciplinary action in this state, and certification of such disbarment or suspension by the appropriate authority of such jurisdiction to the Executive Director of the Mississippi Bar shall be conclusive evidence of his guilt of the offense or unprofessional conduct on which said disbarment or suspension was ordered, and it shall not be necessary to prove the grounds of such offense in the disciplinary proceeding in this state. The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on said attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.

HISTORY: Laws, 1974, ch. 566, § 20; reenacted, Laws, 1983, ch. 302, § 45; Laws, 1991, ch. 526, § 48; reenacted, Laws, 1992, ch. 515, § 48, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Discipline in another jurisdiction, see Rules of Discipline for the Mississippi State Bar, Rule 13.

JUDICIAL DECISIONS

1. In general.

Attorney’s license to practice law in state was suspended for one year based on finding of United States Court of Appeals for Fifth Circuit that attorney was guilty of conduct unbecoming member of bar and suspending him from practice there for period of one year, and on Mississippi Supreme Court’s independent survey of facts, where attorney had been convicted of mail fraud, fraud by wire, and aiding and abetting. Mississippi State Bar v. Young, 509 So. 2d 210, 1987 Miss. LEXIS 2600 (Miss. 1987).

RESEARCH REFERENCES

ALR.

Disbarment or suspension of attorney in one state as affecting right to continue practice in another state. 81 A.L.R.3d 1281.

Am. Jur.

31 Am. Jur. Trials 633, Defending Lawyers in Disciplinary Proceedings.

44 Am. Jur. Proof of Facts 2d 377, Legal Malpractice in Domestic Relations.

Practice References.

L. Ray Patterson, Lawyer’s Law: Procedural, Malpractice & Disciplinary Issues (Matthew Bender).

§ 73-3-343. Confidentiality of matters under investigation and proceedings; penalties.

All disciplinary agencies of the court, all court reporters, clerks, witnesses and parties are strictly enjoined to keep and maintain confidential all things concerning the matters under investigation and the proceedings thereon; provided, however, all proceedings before any complaint tribunal and in the court may be public if requested by the accused attorney. The complaint tribunal may, however, file with the supreme court an opinion or summary of the findings of fact and conclusions of law without disclosing the identity or residence of the accused, the complaining party or parties, witnesses, or any person, firm or corporation involved. Violation of this section or any part hereof shall be a misdemeanor punishable by a fine of not more than five hundred dollars ($500.00) or by imprisonment in the county jail for not more than thirty (30) days or by both.

HISTORY: Laws, 1974, ch. 566, § 21; reenacted, Laws, 1983, ch. 302, § 46; reenacted, Laws, 1991, ch. 526, § 49; reenacted, Laws, 1992, ch. 515, § 49, eff from and after July 1, 1992.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Confidentiality of disciplinary matters, see Rules of Discipline for the Mississippi State Bar, Rule 15.

JUDICIAL DECISIONS

1. In general.

Private reprimand may be issued to attorney for insurance company on basis of attorney’s civil trespass consisting of entry into burned remains of building, through unlocked door, without notice to or permission from insured lessee of building, and without identifying himself to insured lessee as insurer’s representative, provided that wording of reprimand must adequately describe nature of offense and inform members of bench of nature of attorney’s unprofessional conduct and must also reiterate confidentiality of private reprimand under §73-3-343 and penalties for violation of confidence. An Attorney v. Mississippi State Bar Asso., 481 So. 2d 297, 1985 Miss. LEXIS 2420 (Miss. 1985).

Under the common law as well as statute, any person filing a complaint in accordance with the disciplinary statutes and rules is accorded absolute privilege and no lawsuit predicated thereon may be instituted so long as the statements are made within the course and framework of the disciplinary process and are reasonably relevant to the complaint. And, unless it appears from the face of the pleading that the communication complained of exceeds the purpose of stating a complaint in the proper forum, it is absolutely privileged, and there can be no trial of the underlying motives of the defendant in instituting the complaint. This immunity shall extend to any cause of action, whatever the name, be it libel and slander, invasion of privacy, abuse of process or other. The immunity from suit accorded such privilege does not extend to one who thereafter maliciously publishes and causes said complaint or information contained therein to be circulated about the state to persons not authorized by the statute and regulations to receive same. Although immunity from being sued is accorded anyone, attorney or layman, who files a complaint with the State Bar, attorneys may nevertheless be disciplined by the Complaints Committee for maliciously filing groundless complaints without having at least an arguable justification for doing so. Netterville v. Lear Siegler, Inc., 397 So. 2d 1109, 1981 Miss. LEXIS 1997 (Miss. 1981).

RESEARCH REFERENCES

ALR.

Restricting access to records of disciplinary proceedings against attorneys. 83 A.L.R.3d 749.

Discovery or inspection of state bar records of complaints against or investigations of attorneys. 83 A.L.R.3d 777.

§ 73-3-345. Immunity from civil suit predicated on disciplinary proceedings.

All complaints filed pursuant hereto shall be absolutely privileged, and no lawsuit predicated thereon may be instituted, and each person, firm, association or legal entity filing such a complaint shall be immune from any civil suit predicated thereon. The board of commissioners, the committee on complaints, the executive director, the complaint counsel, the complaint tribunals, and their assistants, staff and employees shall be immune from civil suit for any conduct arising out of the performance of their official duties. Every person shall be immune from civil suit for all of his sworn or written statements made or given in the course of any investigation, investigatory hearing, formal hearing or review proceedings held and conducted under these disciplinary rules.

HISTORY: Laws, 1974, ch. 566, § 22; reenacted, Laws, 1983, ch. 302, § 47; reenacted, Laws, 1991, ch. 526, § 50; reenacted, Laws, 1992, ch. 515, § 50, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Immunity from civil suit–right to sue, see Rules of Discipline for the Mississippi State Bar, Rule 14.

JUDICIAL DECISIONS

1. In general.

Statutory grant of absolute immunity from suit for one who files bar complaint against attorney did not bar attorney’s counterclaim for malicious prosecution against complainant in civil suit that was filed by complainant against attorney after complainant’s bar complaint was dismissed. Roussel v. Robbins, 688 So. 2d 714, 1996 Miss. LEXIS 533 (Miss. 1996).

An attorney who has been exonerated of disciplinary charges is nonetheless not entitled to the award of attorney’s fees, travel and other out-of-pocket expenses incurred in his or her defense. Netterville v. Mississippi State Bar, 404 So. 2d 1026, 1981 Miss. LEXIS 2190 (Miss. 1981).

Under the common law as well as statute, any person filing a complaint in accordance with the disciplinary statutes and rules is accorded absolute privilege and no lawsuit predicated thereon may be instituted so long as the statements are made within the course and framework of the disciplinary process and are reasonably relevant to the complaint. And, unless it appears from the face of the pleading that the communication complained of exceeds the purpose of stating a complaint in the proper forum, it is absolutely privileged, and there can be no trial of the underlying motives of the defendant in instituting the complaint. This immunity shall extend to any cause of action, whatever the name, be it libel and slander, invasion of privacy, abuse of process or other. The immunity from suit accorded such privilege does not extend to one who thereafter maliciously publishes and causes said complaint or information contained therein to be circulated about the state to persons not authorized by the statute and regulations to receive same. Although immunity from being sued is accorded anyone, attorney or layman, who files a complaint with the State Bar, attorneys may nevertheless be disciplined by the Complaints Committee for maliciously filing groundless complaints without having at least an arguable justification for doing so. Netterville v. Lear Siegler, Inc., 397 So. 2d 1109, 1981 Miss. LEXIS 1997 (Miss. 1981).

RESEARCH REFERENCES

ALR.

Malicious prosecution or similar tort action predicated upon disciplinary proceedings against attorney. 52 A.L.R.2d 1217.

Libel and slander: privilege in connection with proceedings to disbar or discipline attorney. 77 A.L.R.2d 493.

Testimony before of communications to private professional society’s judicial commission, ethics committee, or the like, as privileged. 9 A.L.R.4th 807.

§ 73-3-347. Personal incapacity; meaning of term “personally incapable” to practice law.

For the purposes of Sections 73-3-347 through 73-3-365, the term “personally incapable‘ to practice law shall include: (a) suffering from mental or physical illness of such character as to render the person afflicted incapable of managing himself, his affairs or the affairs of others with the integrity and competence requisite for the proper practice of law; or (b) habitual use of alcoholic beverages or liquids of any alcoholic content, hallucinogens, sedatives, drugs, narcotics or other mentally or physically disabling substances of any character whatsoever to any extent which impairs or tends to impair the ability to conduct efficiently and properly the affairs undertaken for a client in the practice of law.

HISTORY: Laws, 1974, ch. 566, § 23(1); reenacted, Laws, 1983, ch. 302, § 48; reenacted, Laws, 1991, ch. 526, § 51; reenacted, Laws, 1992, ch. 515, § 51, eff from and after July 1, 1992.

Cross References —

Procedure for instituting and conducting proceedings under Sections73-3-347 through73-3-365, see §73-3-351.

Right of attorney to representation by counsel in proceedings under Sections73-3-347 through73-3-365, see §73-3-353.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Personal incapacity generally, see Rules of Discipline for the Mississippi State Bar, Part Two, Rules 17 through 25.

RESEARCH REFERENCES

ALR.

Validity and application of regulation requiring suspension or disbarment of attorney because of mental or emotional illness. 50 A.L.R.3d 1259.

Conduct of attorney in capacity of executor or administrator of decedent’s estate as ground for disciplinary action. 92 A.L.R.3d 655.

Attorney’s delay in handling decedent’s estate as ground for disciplinary action. 21 A.L.R.4th 75.

Mental or emotional disturbance as defense to or mitigation of charges against attorney in disciplinary proceeding. 26 A.L.R.4th 995.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in matters involving formation or dissolution of business organization as ground for disciplinary action – modern cases. 63 A.L.R.4th 656.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in matters involving real-estate transactions as ground for disciplinary action – modern cases. 65 A.L.R.4th 24.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in tax matters as ground for disciplinary action – modern cases. 66 A.L.R.4th 314.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in estate or probate matters as ground for disciplinary action – modern cases. 66 A.L.R.4th 342.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in family law matters as ground for disciplinary action – modern cases. 67 A.L.R.4th 415.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in personal injury or property damage actions as ground for disciplinary action – modern cases. 68 A.L.R.4th 694.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in criminal matters as ground for disciplinary action – modern cases. 69 A.L.R.4th 410.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in bankruptcy matters as ground for disciplinary action – modern cases. 70 A.L.R.4th 786.

Misconduct involving intoxication as ground for disciplinary action against attorney. 1 A.L.R.5th 874.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law §§ 98, 180, 267.

Practice References.

L. Ray Patterson, Lawyer’s Law: Procedural, Malpractice & Disciplinary Issues (Matthew Bender).

§ 73-3-349. Personal incapacity; suspension.

Whenever it has been determined that any attorney subject to the disciplinary jurisdiction of the court is personally incapable to practice law, he shall be suspended from the practice of law until reinstated by order of the court.

HISTORY: Laws, 1974, ch. 566, § 23(2); reenacted, Laws, 1983, ch. 302, § 49; reenacted, Laws, 1991, ch. 526, § 52; Laws, reenacted, 1992, ch. 515, § 52, eff from and after July 1, 1992.

Cross References —

Meaning of term “personally incapable” to practice law, see §73-3-347.

Procedure for instituting and conducting proceedings under Sections73-3-347 through73-3-365, see §73-3-351.

Right of attorney to representation by counsel in proceedings under Sections73-3-347 through73-3-365, see §73-3-353.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Personal incapacity generally, see Rules of Discipline for the Mississippi State Bar, Part Two, Rules 17 through 25.

RESEARCH REFERENCES

ALR.

Mental or emotional disturbance as defense to or mitigation of charges against attorney in disciplinary proceeding. 26 A.L.R.4th 995.

Validity and construction of procedures to temporarily suspend attorney from practice, or place attorney on inactive status, pending investigation of, and action upon, disciplinary charges. 80 A.L.R.4th 136.

§ 73-3-351. Personal incapacity; proceedings; circumstances showing existence of condition.

Proceedings to determine whether an attorney is personally incapable to practice law shall be instituted and conducted in the same manner and upon the same procedure as disciplinary proceedings, except as otherwise set out in Sections 73-3-347 through 73-3-365. In addition to, and without exclusion of, any other circumstances, cause to believe that an attorney may be personally incapable to practice law shall exist whenever information is received that such member (a) has interposed successfully a defense of mental incompetence to secure abatement of, or to defeat an adverse determination in, a disciplinary proceeding brought against him in any tribunal in any jurisdiction, (b) has defended, upon like grounds, a suit brought against him in any tribunal in any jurisdiction, (c) has been judicially declared incompetent, or (d) has been legally committed to an institution for the treatment of mental illness.

HISTORY: Laws, 1974, ch. 566, § 23(3); reenacted, Laws, 1983, ch. 302, § 50; reenacted, Laws, 1991, ch. 526, § 53; reenacted, Laws, 1992, ch. 515, § 53, eff from and after July 1, 1992.

Cross References —

Meaning of term “personally incapable” to practice law, see §73-3-347.

Right of attorney to representation by counsel in proceedings under Sections73-3-347 through73-3-365, see §73-3-353.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Personal incapacity generally, see Rules of Discipline for the Mississippi State Bar, Part Two, Rules 17 through 25.

§ 73-3-353. Personal incapacity; representation by counsel; guardian.

In proceedings under Sections 73-3-347 through 73-3-365, the attorney shall be entitled to representation by counsel. An attorney who has been declared mentally incompetent, judicially, or who has been committed, judicially, to an institution for the treatment of the mentally ill shall be defended by his legally appointed guardian or guardian ad litem, if any; if a guardian or guardian ad litem has not been appointed, the chief justice, on certification by the board of commissioners, shall appoint a guardian ad litem. The same procedure shall apply to an attorney who has asserted his incompetence, or whose incompetence to defend becomes apparent during the proceedings. In all cases, counsel previously selected by the attorney will be appointed guardian ad litem, absent clear and compelling reasons to the contrary.

HISTORY: Laws, 1974, ch. 566, § 23(4); reenacted, Laws, 1983, ch. 302, § 51; reenacted, Laws, 1991, ch. 526, § 54; reenacted, Laws, 1992, ch. 515, § 54, eff from and after July 1, 1992.

Cross References —

Meaning of term “personally incapable” to practice law, see §73-3-347.

Procedure for instituting and conducting proceedings under Sections73-3-347 through73-3-365, see §73-3-351.

Service on attorney who has been committed or declared incompetent, see §73-3-355.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Personal incapacity generally, see Rules of Discipline for the Mississippi State Bar, Part Two, Rules 17 through 25.

RESEARCH REFERENCES

ALR.

Appointment of counsel for attorney facing disciplinary charges. 86 A.L.R.4th 1071.

§ 73-3-355. Personal incapacity; service on attorney who has been committed or declared incompetent.

Service of process or notice to an attorney who has been committed or declared incompetent shall be accomplished in the same manner as that for process of incompetents in proceedings in the chancery courts of Mississippi. After the appointment of a guardian ad litem, notices shall be served upon said guardian ad litem.

HISTORY: Laws, 1974, ch. 566, § 23(5); reenacted, Laws, 1983, ch. 302, § 52; reenacted, Laws, 1991, ch. 526, § 55; reenacted, Laws, 1992, ch. 515, § 55, eff from and after July 1, 1992.

Cross References —

Meaning of term “personally incapable” to practice law, see §73-3-347.

Procedure for instituting and conducting proceedings under Sections73-3-347 through73-3-365, see §73-3-351.

Right of attorney to representation by counsel in proceedings under Sections73-3-347 through73-3-365, see §73-3-353.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Personal incapacity generally, see Rules of Discipline for the Mississippi State Bar, Part Two, Rules 17 through 25.

§ 73-3-357. Personal incapacity; sufficiency, as evidence, of court order of incompetence or commitment.

A certified copy of the court order declaring an attorney mentally incompetent, or an order of commitment if he has been committed to an institution for the mentally incompetent, shall constitute sufficient evidence that said attorney is personally incapable to practice law, if such is not successfully rebutted.

HISTORY: Laws, 1974, ch. 566, § 23(6); reenacted, Laws, 1983, ch. 302, § 53; reenacted, Laws, 1991, ch. 526, § 56; reenacted, Laws, 1992, ch. 515, § 56, eff from and after July 1, 1992.

Cross References —

Meaning of term “personally incapable” to practice law, see §73-3-347.

Procedure for instituting and conducting proceedings under Sections73-3-347 through73-3-365, see §73-3-351.

Right of attorney to representation by counsel in proceedings under Sections73-3-347 through73-3-365, see §73-3-353.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Personal incapacity generally, see Rules of Discipline for the Mississippi State Bar, Part Two, Rules 17 through 25.

§ 73-3-359. Personal incapacity; mental examination and reports.

In any proceeding where mental incompetency is an issue, the attorney may be required to submit to a mental examination by one or more practicing psychiatrists selected by the board of commissioners or by the complaint tribunal after its designation. Reports of physicians regarding the mental condition of an attorney may be received as probative evidence, if the physicians are available for cross-examination.

HISTORY: Laws, 1974, ch 566, § 23(7); reenacted, Laws, 1983, ch. 302, § 54; reenacted, Laws, 1991, ch. 526, § 57; reenacted, Laws, 1992, ch. 515, § 57, eff from and after July 1, 1992.

Cross References —

Meaning of term “personally incapable” to practice law, see §73-3-347.

Procedure for instituting and conducting proceedings under Sections73-3-347 through73-3-365, see §73-3-351.

Right of attorney to representation by counsel in proceedings under Sections73-3-347 through73-3-365, see §73-3-353.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Personal incapacity generally, see Rules of Discipline for the Mississippi State Bar, Part Two, Rules 17 through 25.

RESEARCH REFERENCES

ALR.

Validity and construction of rule or order requiring attorney to submit to physical or mental examination to determine capacity to continue in practice of law. 52 A.L.R.3d 1326.

§ 73-3-361. Personal incapacity; judgment of suspension by complaint tribunal.

If, after a full hearing, the complaint tribunal finds the attorney personally incapable to practice law, the complaint tribunal shall enter a judgment formally suspending said attorney from the practice of law until the further order of the court.

HISTORY: Laws, 1974, ch. 566, § 23(8); reenacted, Laws, 1983, ch. 302, § 55; reenacted, Laws, 1991, ch. 526, § 58; reenacted, Laws, 1992, ch. 515, § 58, eff from and after July 1, 1992.

Cross References —

Meaning of term “personally incapable” to practice law, see §73-3-347.

Procedure for instituting and conducting proceedings under Sections73-3-347 through73-3-365, see §73-3-351.

Right of attorney to representation by counsel in proceedings under Sections73-3-347 through73-3-365, see §73-3-353.

Appeal from judgment of suspension, see §73-3-363.

Reinstatement procedures after suspension because of personal incapacity, see §73-3-365.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Personal incapacity generally, see Rules of Discipline for the Mississippi State Bar, Part Two, Rules 17 through 25.

§ 73-3-363. Personal incapacity; appeal procedures.

Procedures for the filing of the record and appeal from the judgment of the complaint tribunal shall be the same as the appeal procedures from a judgment of suspension or disbarment upon disciplinary grounds.

HISTORY: Laws, 174, ch. 566, § 23(9); reenacted, Laws, 1983, ch. 302, § 56; reenacted, Laws, 1991, ch. 526, § 59; reenacted, Laws, 1992, ch. 515, § 59, eff from and after July 1, 1992.

Cross References —

Meaning of term “personally incapable” to practice law, see §73-3-347.

Procedure for instituting and conducting proceedings under Sections73-3-347 through73-3-365, see §73-3-351.

Right of attorney to representation by counsel in proceedings under Sections73-3-347 through73-3-365, see §73-3-353.

Judgment of suspension by complaint tribunal, see §73-3-361.

Reinstatement procedures after suspension because of personal incapacity, see §73-3-365.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Personal incapacity generally, see Rules of Discipline for the Mississippi State Bar, Part Two, Rules 17 through 25.

§ 73-3-365. Personal incapacity; reinstatement procedures.

Procedures for reinstatement of an attorney suspended because of personal incapacity to practice law shall be, insofar as is applicable, the same as the procedure for reinstatement of an attorney following suspension upon disciplinary grounds. The petition for reinstatement shall be filed with the clerk of the court, and a copy of said petition shall be served upon the Mississippi Bar, and it shall be under a duty to investigate the matter, respond to the petition and appear at the hearing. The petitioner shall be required to supply such supporting proof of personal capacity as may be necessary and, in addition, the attorney may be required to submit to examinations by physicians or psychiatrists selected by the court. If the court is satisfied that the attorney has regained his capacity to practice law, the court may reinstate the petitioner to the practice of law and enter judgment accordingly; provided, however, no judgment of reinstatement shall be entered by default or on an ex parte basis, and in all cases the court shall hear the Mississippi Bar. A filing fee of One Hundred Fifty Dollars ($150.00) to defray the expense of investigating the matter shall be paid the Mississippi Bar upon the filing of each petition for reinstatement, and any petition for reinstatement subsequent to the initial petition shall not be filed within six (6) months from the date of an adverse determination of any prior petition.

HISTORY: Laws, 1974, ch. 566, § 23(10); reenacted, Laws, 1983, ch. 302, § 57; Laws, 1991, ch. 526, § 60; reenacted, Laws, 1992, ch. 515, § 60, eff from and after July 1, 1992.

Cross References —

Meaning of term “personally incapable” to practice law, see §73-3-347.

Procedure for instituting and conducting proceedings under Sections73-3-347 through73-3-365, see §73-3-351.

Right of attorney to representation by counsel in proceedings under Sections73-3-347 through73-3-365, see §73-3-353.

Judgment of suspension by complaint tribunal, see §73-3-361.

Appeal from judgment of suspension, see §73-3-363.

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Personal incapacity generally, see Rules of Discipline for the Mississippi State Bar, Part Two, Rules 17 through 25.

RESEARCH REFERENCES

ALR.

Reinstatement of attorney after disbarment, suspension, or resignation. 70 A.L.R.2d 268.

Pardon as restoring public office or license or eligibility therefor. 58 A.L.R.3d 1191.

§ 73-3-367. Disciplinary agencies; authority to incur expenses.

All disciplinary agencies of the court are hereby authorized to incur reasonable and necessary expenses in connection with the investigation and disposition of charges and complaints.

HISTORY: Laws, 1974, ch. 566, § 24; reenacted, Laws, 1983, ch. 302, § 58; reenacted, Laws, 1991, ch. 526, § 61; reenacted, Laws, 1992, ch. 515, § 61, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Costs and expenses, see Rules of Discipline for the Mississippi State Bar, Rule 27.

§ 73-3-369. Jurisdiction over nonresident attorneys; notice; service.

The acceptance by a nonresident attorney of the rights and privileges of the practice of law within this state, as evidenced by his practice of law in this state, shall be deemed equivalent to an appointment by such nonresident attorney of the Executive Director of the Mississippi Bar to be his true and lawful attorney, upon whom may be served all process summons or notice of any and all proceedings against him instituted pursuant to and conducted under these rules of disciplinary procedure; and the acceptance of such rights and privileges and the practice of law by any such nonresident attorney in this state shall be a signification of his agreement that any such process, summons or notice against him which is so served shall be of the same legal force and validity as if served on him personally.

Notice of the service of such process, summons or notice, together with a copy of any complaint or charge, shall be mailed forthwith by the executive director by United States certified mail or registered mail, return receipt requested, restricted for delivery to addressee only, and with postage prepaid, to such nonresident attorney at his last known address.

When such process, summons or notice is served as herein provided it shall be deemed sufficient to give the court, and its disciplinary agencies provided for herein jurisdiction over said nonresident attorney for the purpose of investigating and finally determining any complaint or charge touching upon the professional conduct or conduct evincing unfitness for the practice of law or the personal incapacity to practice law of any such nonresident attorney.

HISTORY: Laws, 1974, ch. 566, § 25; reenacted, Laws, 1983, ch. 302, § 59; Laws, 1991, ch. 526, § 62; reenacted, Laws, 1992, ch. 515, § 62, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Jurisdiction of non-resident attorneys, see Rules of Discipline for the Mississippi State Bar, Rule 16.

§ 73-3-371. Plea of nolo contendere; consent order of suspension or disbarment.

At any stage of the disciplinary proceedings, the board of commissioners may, in the exercise of its sole discretion, accept a plea of nolo contendere from the accused attorney and agree to the entry by the court of a consent order of suspension or disbarment of the accused attorney.

Notwithstanding the provisions of Section 73-3-315(e) to the contrary, upon the acceptance of a plea of nolo contendere the investigation or disciplinary procedure shall terminate, and the board of commissioners will present to the court an agreed order to be entered by the court either suspending or disbarring said attorney by consent, as the particular circumstances of the matter may require in the discretion of the board of commissioners. Said order shall be a public record, and certified copies thereof shall be mailed to the judges of the circuit and chancery court districts within which the attorney resides.

For the purpose of determining the discipline to be imposed on the accused attorney, the board of commissioners shall consider a plea of nolo contendere as tantamount to proof of guilt of the offense or unprofessional conduct or personal disability to practice law on which said disciplinary proceeding was grounded.

HISTORY: Laws, 1974, ch. 566, § 26; reenacted, Laws, 1983, ch. 302, § 60; reenacted, Laws, 1991, ch. 526, § 63; reenacted, Laws, 1992, ch. 515, § 63, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Pleas of nolo contendere, admissions and irrevocable resignations, see Rules of Discipline for the Mississippi State Bar, Rule 10.

§ 73-3-373. Recognition of inherent power of judicial branch of government.

This article shall not be construed to modify or restrict the inherent right of the courts of record of the State of Mississippi to supervise the bar as an incident to their power to admit attorneys to practice and to the fulfillment of their responsibility for the proper administration of justice, it being here declared that it is an inherent power of the judicial branch of government ultimately to determine the qualifications of those to be admitted to practice in its court, for assisting in its work, and to protect itself and the citizenry of this state in this respect from the unfit, those lacking in sufficient learning and those not possessing good moral character. Any disciplinary proceeding in which the Mississippi Bar is a complaining party shall be conducted in accordance with the remaining sections of this article.

HISTORY: Laws, 1974, ch. 566, § 27; reenacted, Laws, 1983, ch. 302, § 61; Laws, 1991, ch. 526, § 64; reenacted, Laws, 1992, ch. 515, § 64, eff from and after July 1, 1992.

Cross References —

Proceedings pertaining to the disciplining of an attorney, see Miss. R. Civ. P. 81.

Jurisdiction, see Rules of Discipline for the Mississippi State Bar, Rule 1.

JUDICIAL DECISIONS

1. In general.

Under this section, it is acknowledged that the state courts have the inherent power to supervise the bar as an incident to their power to admit attorneys to practice and recognized that the judicial branch of government has the inherent power to determine the qualifications of those to be admitted to the practice of law in the state. In re Mississippi State Bar, 361 So. 2d 503, 1978 Miss. LEXIS 2372 (Miss. 1978).

RESEARCH REFERENCES

ALR.

Power of court to order restitution to wronged client in disciplinary proceeding against attorney. 75 A.L.R.3d 307.

Advertising as ground for disciplining attorney. 30 A.L.R.4th 742.

Bringing of frivolous civil claim or action as ground for discipline of attorney. 85 A.L.R.4th 544.

Soliciting client to commit illegal or immoral act as ground for discipline of attorney. 85 A.L.R.4th 567.

Article 9. Repeal Provisions for Board of Bar Admissions.

§ 73-3-401. Repealed.

Repealed by Laws of 2006, ch. 471, § 16 effective from and after July 1, 2006.

[Laws, 1979, ch. 301, §§ 32, 33; ch. 357, § 6; Laws, 1983, ch 302, § 62; ch. 457, § 17; Laws, 1991, ch. 560, § 16; Laws, 1999, ch. 372, § 1; Laws, 2000, ch. 548, § 1; Laws, 2003, ch. 524, § 16, eff from and after July 1, 2003.]

Editor’s Notes —

Former §73-3-401 provided for the repeal of §§73-3-2 through73-3-59.

§ 73-3-403. Repealed.

Repealed by Laws, 2014, ch. 311, § 1, eff from and after July 1, 2014.

§73-3-403. [Laws, 1991, ch. 526, § 65; Laws, 1992, ch. 515, § 65; Laws, 1995, ch. 556, § 1; Laws, 2000, ch. 568, § 1; Laws, 2002, ch. 599, § 1; Laws, 2007, ch. 340, § 1, eff from and after July 1, 2007.]

Editor’s Notes —

Former §73-3-403 provided for the repeal of the Mississippi Bar and procedures related to the regulation of fees and disciplinary jurisdiction of attorneys, codified as Sections73-3-101 through73-3-145,73-3-171, and73-3-301 through73-3-373.

Chapter 4. Auctioneers

§ 73-4-1. Short title.

This chapter shall be known and may be cited as the “Mississippi Auctioneers License Act.”

HISTORY: Laws, 1995, ch. 405 § 1; reenacted without change, Laws, 2010, ch. 335, § 1; reenacted without change, Laws, 2013, ch. 415, § 1; reenacted without change, Laws, 2016, ch. 348, § 1, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

§ 73-4-3. Definitions.

For the purposes of this chapter, the following words and phrases shall have the meanings ascribed herein, unless the context otherwise requires:

“Auction” means a sale transaction conducted by means of oral or written exchanges between an auctioneer and the members of his audience, which exchanges consist of a series of invitations for offers for the purchase of goods made by the auctioneer and offers to purchase made by members of his audience and culminate in the acceptance by the auctioneer of the highest or most favorable offer made by a member of the participating audience.

“Auction firm” means any business establishment or other location owned by any entity where goods are sold or advertised to be sold at auction or on any recurring basis.

“Auctioneer” means an individual who is engaged in, or who by advertising or otherwise holds himself out as being available to engage in, the calling for, the recognition of, and the acceptance of, offers for the purchase of goods or real estate at an auction.

“Commission” means the Mississippi Auctioneer Commission.

“Goods” means any tangible personal property that can be lawfully offered for sale, real estate, property sold pursuant to any will or settlement of any estate, property sold pursuant to any legal foreclosure, automobiles or farm or other heavy equipment.

“Licensee” means any person licensed under this chapter, and, in the case of an auction firm, includes the person required to obtain a license for such auction firm.

“Organization” means a corporation, partnership, trust (specifically a business trust), firm, association, or any other form of business enterprise which is owned by two (2) or more individuals.

“Person” means an organization or an individual.

HISTORY: Laws, 1995, ch. 405 § 2; Laws, 2009, ch. 476, § 1; reenacted without change, Laws, 2010, ch. 335, § 2; reenacted without change, Laws, 2013, ch. 415, § 2; reenacted without change, Laws, 2016, ch. 348, § 2, eff from and after July 1, 2016.

Amendment Notes —

The 2009 amendment rewrote (b) and substituted “auction firm” for “auction gallery” twice in (f).

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

§ 73-4-5. License required to conduct auction, provide auction services, hold self out as or advertise services as auctioneer; exceptions.

  1. It is unlawful for any person, corporation, limited liability company, partnership or other entity to conduct an auction, provide an auction service, hold himself out as an auctioneer, or advertise his services as an auctioneer in the State of Mississippi without a license issued by the commission under this chapter.
  2. The provisions of this chapter shall not apply to the following transactions:
    1. A sale conducted by order of any United States court pursuant to Title 11 of the United States Code relating to bankruptcy;
    2. A sale conducted by an employee of the United States or the State of Mississippi or its political subdivisions in the course and scope of his employment;
    3. A sale conducted by a charitable or nonprofit organization if the auctioneer receives no compensation;
    4. A sale conducted by an individual of his own property if such individual is not engaged in the business of selling such property as an auctioneer on a recurring basis;
    5. A sale conducted by an individual acting as a receiver, trustee in bankruptcy, guardian, administrator or executor or any such person acting under order of court; by a real estate agent, broker or salesman, who auctions property that he has an exclusive listing agreement on, if done through a silent or written auction not done by public outcry or by a trustee acting under a trust agreement, deed of trust or will;
    6. A foreclosure sale of personal property conducted personally by the mortgagee or other secured party or an employee or agent of such mortgagee or other secured party acting in the course and scope of his employment if the employee or agent is not engaged otherwise in the auction business and if all property for sale in the auction is subject to a security agreement;
    7. A sale conducted by sealed bid;
    8. An auction conducted in a course of study, approved by the Secretary of State, for auctioneers and conducted only for student training purposes;
    9. An auction conducted by a posted stockyard or market agency as defined by the Federal Packers and Stockyard Act, 1921, as amended (7 USCS 181 et seq.);
    10. An auction of livestock conducted by a nonprofit livestock trade association chartered in this state if the auction involves only the sale of the trade association’s members’ livestock; or
    11. An auction conducted by a charitable or nonprofit organization chartered in this state if the auction involves only the property of the organization’s members and the auction is part of a fair that is organized under state, county or municipal authority.

HISTORY: Laws, 1995, ch. 405 § 3; Laws, 2009, ch. 476, § 2; reenacted without change, Laws, 2010, ch. 335, § 3; reenacted without change, Laws, 2013, ch. 415, § 3; reenacted without change Laws, 2016, ch. 348, § 3, eff from and after July 1, 2016.

Amendment Notes —

The 2009 amendment added (1); and designated the previously existing provisions as (2).

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

Federal Aspects—

Federal Packers and Stockyard Act of 1921, see 7 USCS §§ 181 et seq.

Title 11 of the United States Code, see 11 USCS §§ 1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Individuals appointed by the Chancery Court to sell real estate or personal property items pursuant to a court order are not required to obtain an auctioneer’s license. Buffington, July 31, 1997, A.G. Op. #97-0434.

§ 73-4-7. Mississippi Auctioneer Commission; creation; powers and duties generally; qualifications, terms, and compensation of members.

  1. The Mississippi Auctioneer Commission is created, and it shall have the authority to make such rules and regulations as are reasonable and necessary for the orderly regulation of the auctioneering profession and the protection of the public, which rules and regulations are not inconsistent with the Mississippi Constitution of 1890 and state laws. The commission shall have the following powers:
    1. The power to set reasonable license fees, to collect and hold such fees and to disburse such fees in any manner not inconsistent with this chapter.
    2. The power to make such rules and regulations as will promote the orderly functioning of the auction profession and ensure the protection of the public.
    3. The power to hire and retain such staff and support personnel as are necessary to conduct business and assure compliance with this chapter.
    4. The power to conduct investigations, hold hearings, subpoena witnesses, make findings of fact and otherwise enforce the disciplinary provisions contained in this chapter.
  2. The Mississippi Auctioneer Commission shall consist of five (5) members, one (1) from each congressional district, who shall be appointed by the Governor. All appointees shall possess the following minimum qualifications:
    1. An appointee shall be a citizen of Mississippi.
    2. An appointee shall have been engaged as an auctioneer for a period of not less than five (5) years immediately preceding his appointment.
    3. An appointee shall be of good reputation, trustworthy and knowledgeable in the auction profession.

      An individual may not act as a member of the commission while holding another elected or appointed office in either the state or federal government or while owning a school or other facility to train individuals to be auctioneers.

  3. In order to assure continuity, the Governor shall appoint the initial members of the commission for the following terms:
    1. The member appointed from the First Congressional District shall serve a term of one (1) year;
    2. The member appointed from the Second Congressional District shall serve a term of two (2) years;
    3. The member appointed from the Third Congressional District shall serve a term of three (3) years;
    4. The member appointed from the Fourth Congressional District shall serve a term of four (4) years; and
    5. The member appointed from the Fifth Congressional District shall serve a term of five (5) years.

      Subsequent terms shall be for five (5) years, except for interim appointments to fill unexpired terms which shall be only for the unexpired term.

  4. Each member of the commission shall receive a per diem as provided by Section 25-3-69 per meeting and shall be reimbursed for ordinary and necessary expenses incurred in the performance of official duties as provided in Section 25-3-41.

HISTORY: Laws, 1995, ch. 405 § 4; reenacted without change, Laws, 2010, ch. 335, § 4; reenacted without change, Laws, 2013, ch. 415, § 4; reenacted without change, Laws, 2016, ch. 348, § 4, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

OPINIONS OF THE ATTORNEY GENERAL

Appointments to this board should be reviewed under the last five-district plan which was in effect. Canon, Jan. 16, 2003, A.G. Op. #03-0016.

§ 73-4-9. Meetings of commission generally; quorum; requirement of majority vote.

The commission shall meet each January at a time and place established by the chairman to conduct an election of officers and such other business as may be appropriate. The commission shall also meet upon the call of the chairman or upon the request of any two (2) members of the commission. The secretary shall provide reasonable notice of the time and place of each meeting to all members.

Three (3) members shall constitute a quorum for the purpose of transacting business. A majority vote of the commission shall be necessary to bind the commission.

HISTORY: Laws, 1995, ch. 405 § 5; reenacted without change, Laws, 2010, ch. 335, § 5; reenacted without change, Laws, 2013, ch. 415, § 5; reenacted without change, Laws, 2016, ch. 348, § 5, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

§ 73-4-11. Officers of commission; executive director.

  1. At the meeting to be held each January, the commission shall elect from its membership a chairman and a vice chairman. Each officer shall serve a term of one (1) year and shall not vacate office until a successor is elected.
  2. The chairman shall preside at all meetings of the commission.
  3. The vice chairman shall act as presiding officer in the absence of the chairman and shall perform such other duties as the chairman may direct.
  4. The commission shall appoint an executive director who shall not be a member of the commission.
  5. The executive director shall:
    1. Notify all members of meetings;
    2. Keep a record of all meetings of the commission, votes taken by the commission and other proceedings, transactions, communications, official acts and records of the commission; and
    3. Perform such other duties as the chairman directs.

HISTORY: Laws, 1995, ch. 405 § 6; reenacted without change, Laws, 2010, ch. 335, § 6; reenacted without change, Laws, 2013, ch. 415, § 6; reenacted without change, Laws, 2016, ch. 348, § 6, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

§ 73-4-13. Powers and duties of commission.

The commission is empowered to:

Administer and enforce the provisions of this chapter.

Promulgate such rules and regulations and prescribe such forms as are necessary for the administration and the effective and efficient enforcement of this chapter.

Issue, suspend and revoke licenses in accordance with this chapter.

Provide for the filing and approval of surety bonds as required by this chapter.

Investigate complaints concerning licensees or persons the commission has reason to believe should be licensees, specifically including complaints respecting failure to comply with this chapter or the rules and regulations promulgated as authorized by this chapter and to take appropriate action to address such complaints.

Commence actions, in the name of the State of Mississippi, in an appropriate circuit court in order to force compliance with this chapter or rules and regulations promulgated hereunder by restraining order or injunction.

Hold public hearings on any matters for which a hearing is required under this chapter and to have all powers granted by law for such hearings.

Adopt a seal and, through its secretary, certify copies.

Appoint an executive director and employ all necessary employees and consultants to administer and enforce this chapter.

HISTORY: Laws, 1995, ch. 405 § 7; reenacted without change, Laws, 2010, ch. 335, § 7; reenacted without change, Laws, 2013, ch. 415, § 7; reenacted without change, Laws, 2016, ch. 348, § 7, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

§ 73-4-15. Mississippi Auctioneer Licensure Fund.

All fees and other monies collected or received by the commission under this chapter shall be deposited into a special fund which is hereby created in the State Treasury, to be known as the “Mississippi Auctioneer Licensure Fund.” Unexpended amounts remaining in such special fund at the end of a fiscal year shall not lapse into the State General Fund, and any interest earned on amounts in such special funds shall be deposited to the credit of the special fund. All monies in the special fund shall be expended or used exclusively for the purposes of carrying out the provisions of this chapter. All records of such fees received by the commission and deposited in the special fund shall be available for inspection by the State Auditor. Monies from the special fund shall be used to support the commission, upon appropriation by the Legislature.

HISTORY: Laws, 1995, ch. 405 § 8; Laws, 2009, ch. 476, § 3; reenacted without change, Laws, 2010, ch. 335, § 8; reenacted without change, Laws, 2013, ch. 415, § 8; reenacted without change, Laws, 2016, ch. 348, § 8, eff from and after July 1, 2016.

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,‘ “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section §27-104-6, provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Amendment Notes —

The 2009 amendment inserted “and other monies collected or” following “All fees” in the first sentence and added the second-to-last sentence.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

§ 73-4-17. Classification of licenses; qualifications of applicants for licenses; examinations; examination fee; surety bond generally; additional requirements for auction firm license; issuance, term, and renewal of licenses; license fees; record keeping requirements.

There shall be two (2) classes of auctioneers’ licenses, which shall be auctioneer and auction firm. All applicants for a license under this chapter shall possess the following minimum qualifications:

Applicants shall have attained the age of eighteen (18) years by the issuance date of the license.

Applicants shall have obtained at a minimum a high school diploma or G.E.D. equivalent and shall be graduates of an auctioneering school approved by the commission.

Each applicant for a license under this chapter shall demonstrate to the commission that he is of good moral character and worthy of public trust through background information to be provided on his application form and two (2) letters of reference from persons not related to the applicant who have known the applicant at least three (3) years. The commission may require additional information or a personal interview with the applicant to determine if such applicant should be granted a license.

Each applicant for a license under this chapter shall take and successfully complete an examination as prescribed by the commission. The examination shall include questions on ethics, reading comprehension, writing, spelling, elementary arithmetic, elementary principals of land economics, general knowledge of bulk sales law, contracts of sale, agency, leases, brokerage, knowledge of various goods commonly sold at auction, ability to call bids, knowledge of sale preparation and proper sale advertising and sale summary, and knowledge of the provisions of this chapter and the commission’s rules and regulations. There shall be separate examinations for auctioneer and auction firm each based upon relevant subject matter appropriate to the license classification as set forth herein. Examinations shall be administered at least once a year and may be administered quarterly at the commission’s discretion provided there are at least twenty-five (25) examinees. The commission shall ensure that the various forms of the test remain secure.

In order to defray the cost of administration of the examinations, applicants for the examination shall pay fees as follows:

Auctioneer . . . . .$100.00.

Auctionfirm . . . . .$100.00.

Each applicant desiring to sit for the examination for any license required under this chapter shall be required to furnish to the commission at least thirty (30) days prior to the examination evidence of a surety bond in the following minimum amounts:

Auctioneer . . . . .$10,000.00.

Auction firm . . . . .$10,000.00.

In addition to the bond required herein, applicants for the auction firm license shall furnish the commission with all relevant information concerning the premises to be licensed, to include location, whether the premises are owned or leased, and an affidavit that the proposed use of the premises as an auction firm does not violate zoning or any other use restrictions. A separate license shall be required for each business location of the owner of multiple auction galleries.

Except as provided in Section 33-1-39, all licenses granted pursuant to this chapter shall be for a term of two (2) years and shall expire on the first day of March at the end of such two-year term. The biennial license fees shall be set from time to time by the commission with a maximum fee of Two Hundred Dollars ($200.00). License fees shall not be prorated for any portion of a year but shall be paid for the entire biennial period regardless of the date of the application. Individuals failing to submit license renewal fees on or before March 1 of the year for renewal shall be required to successfully pass the next administration of the examination in order to renew a license.

Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64, Mississippi Code of 1972.

A licensee shall keep such books, accounts and records as will enable the commission to determine whether such licensee is in compliance with the provisions of this chapter, and rules and regulations made pursuant thereto, and any other law, rule and regulation applicable to the conduct of such business. The commission and its employees or representatives shall have the right to enter and make inspections of any place where the auction business is carried on and inspect and copy any record pertaining to the auction business under this chapter. The commission may conduct or cause to be conducted an examination or audit of the books and records of any licensee at any time the commission deems proper, the cost of the examination or audit to be borne by the licensee. The refusal of access to the books and records shall be cause for the revocation of its license.

HISTORY: Laws, 1995, ch. 405 § 9; Laws, 1997, ch. 588, § 26; Laws, 2007, ch. 309, § 5; Laws, 2009, ch. 476, § 4; reenacted without change, Laws, 2010, ch. 335, § 9; reenacted without change, Laws, 2013, ch. 415, § 9; reenacted without change, Laws, 2016, ch. 348, § 9, eff from and after July 1, 2016.

Editor’s Notes —

Laws of 1997, ch. 588, § 150, effective July 1, 1997, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2007 amendment added “Except as provided in Section 33-1-39,” at the beginning of (h).

The 2009 amendment rewrote the first sentence of the introductory paragraph; substituted “firm” for “gallery” following “auction” throughout the section; deleted fees and examination costs for “Livestock-auctioneer” in (e)(iii) and (f)(iii); rewrote (h); and added (j).

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

Cross References —

Exemption from examination requirement for residents, see §73-4-21.

Exemption from examination requirement for nonresidents, see §73-4-23.

Requirements for holders of auction gallery licenses, see §73-4-27.

Bonds of applicants for licenses, see §73-4-29.

Form, terms, conditions and duration of bonds, see §73-4-31.

Procedure for recovery on bonds, see §73-4-33.

§ 73-4-19. Procedure for submission and processing of complaints against licensees; remedies for violations by licensees; judicial review of disciplinary actions.

  1. The commission may, upon its own motion or upon the complaint in writing of any person, provided the complaint and any evidence presented with it establishes a prima facie case, hold a hearing and investigate the actions of any auctioneer or auction firm, or any person who holds himself out as an auctioneer or auction firm.
  2. Any person desiring to make a complaint against a licensee shall submit a complaint to the commission in verified form as prescribed by the commission. Upon receipt of a properly verified complaint, the commission shall send a copy of the complaint to the affected licensee by certified mail, and the licensee shall make answer to the complaint in writing within twenty (20) days after receipt of the complaint. The licensee shall mail a copy of his response to the commission and the complainant. Upon receipt of the licensee’s response or lapse of twenty (20) days, the commission shall make investigation of the underlying allegations of the complaint, and upon a finding of probable cause that a violation of this chapter has occurred, the commission shall order a hearing for the licensee to appear and show cause why he should not be disciplined for a violation of this chapter.
    1. All hearings held pursuant to this chapter shall be held at the offices of the commission. The commission, for good cause shown, may order that a hearing be held in another location convenient to all parties.
    2. The commission shall give the complainant and the affected licensee twenty (20) days’ notice of any hearing upon a complaint. Such notice shall be by United States certified mail.
    3. Any party appearing before the commission may be accompanied by counsel.
    4. The commission or its executive director shall have the right to subpoena witnesses and documents as they deem necessary for the proper conduct of the hearing. The commission shall not entertain a motion for a continuance for failure of a witness to appear unless such witness shall have been duly subpoenaed.
      1. Before commencing a hearing, the chairman of the commission shall determine if all parties are present and ready to proceed. If the complainant fails to attend a hearing without good cause shown, the complaint shall be dismissed summarily and all fees and expenses of convening the hearing shall be assessed to, and paid by, the complainant. If any affected licensee fails to appear for a hearing without good cause shown, such licensee shall be presumed to have waived his right to appear and be heard.
      2. Upon the chairman’s determination that all parties are ready to proceed, the chairman shall call the hearing to order and the complainant and the licensee may give opening statements. At the request of any party, the chairman shall order the sequestration of nonparty witnesses. The complainant shall then present his complaint through sworn testimony and the production of physical evidence. The licensee, any counsel and any member of the commission may ask questions of witnesses.
      3. The licensee shall then present his case in rebuttal with equal right of cross-examination of the parties. At the completion of the evidence, all parties may give closing statements.
      4. At the conclusion of testimony and argument, the commission may go into closed session for deliberation.
      5. At the conclusion of deliberations, the commission may announce the commission’s decision in an open session, and shall notify the parties of its decision by mail within ten (10) days after the commission reaches its decision.
  3. Service of notice to the party shall be considered to have been given if the notice was personally served on the licensee, applicant or complainant or if the notice was sent by certified United States mail to the licensee, applicant or complainant to that party’s last known address of record with the board.
  4. No person whose license has been revoked hereunder may apply for a new license for a period of at least five (5) years. A person whose license has been denied, suspended or revoked may not apply in that person’s name or in any other manner within the period during which the order of denial, suspension or revocation is in effect, and no firm, partnership or corporation in which any person whose license has been denied, suspended or revoked has a substantial interest or exercises management responsibility or control may be licensed during the period. The procedure for the reissuance of a license that is for being out of compliance with an order for support, as defined in Section 93-11-153, shall be governed by Section 93-11-157 or 93-11-163, as the case may be.
  5. Any civil or monetary penalty, fine or other costs imposed by the commission under this chapter shall become due and payable within the time allowed by the commission for payment thereof. Failure of the licensee or party to pay all penalties or fines so assessed as ordered by the commission shall, unless an appeal is taken and perfected within the time and in the manner provided in this chapter, result in an automatic revocation of such licensee’s license. In addition, if any amounts assessed against a party by final order of the commission become otherwise uncollectible or payment is in default, and if all the right to appeal has passed, the order of the commission containing the amount of money assessed by the commission may be filed with the appropriate clerk of the court in the county in which the licensee or party is located. The order shall constitute a judgment and the filing of such final order shall have the full force and effect of a judgment duly docketed in the office of such clerk and may be enforced in the same manner and with the same effect as that provided by law in respect to executions issued against property upon judgments of a court of record.
  6. The commission may also assess and levy upon any licensee or applicant for licensure the costs incurred or expended by the commission in the investigation and prosecution of any licensure or disciplinary action, including, but not limited to, the cost of process service, court reports, expert witness, investigators and attorney fees.
  7. The commission may, upon its own motion, summarily suspend a license when the interest, health, safety or welfare of the public is at risk, such as in the event of a potential loss of consigned items or potential loss of funds. If the commission suspends summarily a license under the provisions of this subsection, a hearing must begin within twenty (20) days after such suspension begins, unless continued at the request of the licensee.
  8. Any person aggrieved by an action of the commission may file an appeal of such action in the Circuit Court of Hinds County. Any appeal must be accompanied by an attested copy of the record of the hearing before the commission. An appeal must, however, be filed with the Circuit Court of the First Judicial District of Hinds County, Mississippi, within thirty (30) days immediately following the date of the commission’s decision, unless the court, for good cause shown, extends the time. Appeals may be taken to the Mississippi Supreme Court as provided by law from any final judgment of the circuit court. If the board appeals from any judgment of the circuit court, no bond shall be required of it in order to perfect its appeal. Any actions taken by the commission in suspending a license when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.
  9. If any licensee is indicted in this or any other state for forgery, embezzlement, obtaining money under false pretenses, extortion, criminal conspiracy to defraud or other offense, and a certified copy of the indictment is filed with the commission or other proper evidence is given to it, the commission may, in its discretion, suspend the license issued to the licensee pending trial of the charges.
  10. If the revocation or suspension of a license issued to any member of a partnership, or to any officer of an association, corporation or organization to whom an auction license has been issued, the license issued to the partnership, association, corporation or organization shall be revoked by the commission unless, within a time fixed by the commission, the connection of the member of the partnership is severed and his interest in the partnership and his share in its activities brought to an end, or the officer of the association, corporation or organization is discharged and has no further participation in its activities.
  11. Nothing in this section shall be deemed as an exclusive remedy or prevent or proscribe any person’s right to petition a court of law or equity for redress of a grievance against a licensee or any other entity.

HISTORY: Laws, 1995, ch. 405 § 10; Laws, 1996, ch. 507, § 29; Laws, 2009, ch. 476, § 5; reenacted and amended, Laws, 2010, ch. 335, § 10; reenacted without change, Laws, 2013, ch. 415, § 10; reenacted and amended, Laws, 2016, ch. 348, § 10, eff from and after July 1, 2016.

Amendment Notes —

The 2009 amendment rewrote the section.

The 2010 amendment reenacted and amended the section and in (1), deleted “that” preceding “establishes” and made a stylistic change; in (4), substituted “Service of notice” for Service or notice”; in (9), deleted “to the applicant or licensee of a copy of the order of judgment of the board” following “commission’s decision” in the third sentence, and made a minor grammatical change; and in (10), substituted “for forgery” for “of forgery.”

The 2013 amendment reenacted the section without change.

The 2016 amendment, in (9), substituted “Circuit Court of the First Judicial District of Hinds County, Mississippi” for “Chancery Court of Hinds County” in the third sentence, and “circuit court” for “chancery court” in the fourth and fifth sentences.

Cross References —

Grounds for disciplinary proceedings against licensees, see §73-4-25.

Suspension of state issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

§ 73-4-21. Exemption from examination requirement for residents.

  1. Any person who has practiced the auctioneering profession in this state and has been a resident of the State of Mississippi for at least two (2) years before July 1, 1995, may apply for an auctioneer’s license hereunder without taking the examination as set forth in Section 73-4-17. The requirements for such an application are as follows:
    1. Submit an application as provided in this chapter.
    2. Submit an affidavit with the application that such applicant has been a practicing auctioneer and a resident of the State of Mississippi for at least two (2) years before July 1, 1995, and that such applicant has actually called bids in at least three (3) sales in the past one (1) year.
    3. Tender with the application the license fee set by the commission.
    4. Tender proof of financial responsibility in the form of a surety bond in the sum of Ten Thousand Dollars ($10,000.00).
  2. If, upon verification of the information contained in the application, the individual is found to be otherwise qualified, the commission shall issue the applicant a license without examination.

HISTORY: Laws, 1995, ch. 405, § 11; Repealed by Laws, 2009, ch. 476, § 12; reenacted without change, Laws, 2010, ch. 335, § 11; reenacted without change, Laws, 2013, ch. 415, § 11; reenacted without change, Laws, 2016, ch. 348, § 11, eff from and after July 1, 2016.

Editor’s Notes —

Section 73-4-21 was repealed by Laws of 2009, ch. 476, § 12, effective July 1, 2009. It was subsequently reenacted by Laws of 2010, ch. 335, § 11, effective from and after July 1, 2010, which had the effect of resurrecting the section.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

§ 73-4-23. Exemption from examination requirements for nonresidents.

Any auctioneer who is licensed in a state that (a) has requirements equal to the requirements of this chapter, (b) has requirements that have been approved by the commission, after a review of such state’s licensing law, and (c) has entered into a reciprocal licensing agreement with the State of Mississippi through such state’s regulatory authority over auctioneering, may apply for and be granted a license without examination. Applicants for a license through reciprocity shall furnish the commission by application the same information as that required of resident applicants. In addition to the biennial license fee, nonresidents shall pay to the commission a fee of Two Hundred Fifty Dollars ($250.00). A nonresident auctioneer shall furnish to the commission a surety bond, obligated to the State of Mississippi, in the amount of Ten Thousand Dollars ($10,000.00) prior to being issued a license. The bond shall be executed by the person seeking the license as principal and by a corporate surety, licensed to do business in this state, as surety. The bond shall otherwise be in accordance with the provisions of this chapter.

The issuance of a license by reciprocity to a military-trained applicant or military spouse shall be subject to the provisions of Section 73-50-1.

HISTORY: Laws, 1995, ch. 405 § 12; reenacted without change, Laws, 2010, ch. 335, § 12; Laws, 2013, ch. 350, § 7; reenacted and amended, Laws, 2013, ch. 415, § 12; reenacted without change, Laws, 2016, ch. 348, § 12, eff from and after July 1, 2016.

Joint Legislative Committee Note —

Section 7 of ch. 350, Laws of 2013, effective from and after July 1, 2013 (approved March 18, 2013), amended this section. Section 12 of ch. 415, Laws of 2013, effective July 1, 2013 (approved March 20, 2013), reenacted and amended this section. As set out above, this section reflects the language of both amendments, pursuant to Section 1-1-109, which gives the Joint Legislative Committee on Compilation, Revision and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision and Publication of Legislation ratified the integration of these amendments as consistent with the legislative intent at its August 1, 2013, meeting.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The first 2013 amendment (ch. 350) substituted “biennial” for “biannual” in the third sentence of the first paragraph; and added the last paragraph.

The second 2013 amendment (ch. 415) reenacted and amended the section by substituting “biennial” for “biannual” in the third sentence of the first paragraph.

The 2016 amendment reenacted the section without change.

Cross References —

Filing of bonds by applicants for licenses generally, see §73-4-29.

Form, terms, conditions and duration of bonds, see §73-4-31.

Procedure for recovery on bonds, see §73-4-33.

§ 73-4-25. Grounds for disciplinary proceedings against licensees; penalties.

  1. The commission may refuse to issue or renew a license, place a licensee on probation or administrative supervision, suspend or revoke any license, or may reprimand or take any other action in relation to a license, including the imposition of a fine not to exceed Five Thousand Dollars ($5,000.00) for each violation upon a licensee, or applicant for licensure, under this chapter for any of the following reasons:
    1. Knowingly filing or causing to be filed a false application.
    2. Failure to enter into a written contract with a seller or consignor prior to placing or permitting advertising for an auction sale to be placed.
    3. Failure by the licensee to give the seller or consignor a signed receipt for items received for sale at auction, either by item or lot number at the time the goods are received, unless the goods are to remain in the possession of the seller or consignor.
    4. Failure to give the seller or consignor a statement or lot description, selling price, purchaser’s identity and the net proceeds due to the seller or consignor.
    5. Failure to place funds received from an auction sale in an escrow or trust account, and failure to make timely settlement on escrowed funds. Absent a written agreement to the contrary, five (5) business days shall be deemed timely for settlement on personal property.
    6. Permitting an unlicensed auctioneer to call for bids in an auction sale.
    7. Having been convicted of or pled guilty to a felony in the courts of this state or any other state, territory or country. Conviction, as used in this paragraph, shall include a deferred conviction, deferred prosecution, deferred sentence, finding or verdict of guilt, an admission of guilt or a plea of nolo contendere.
    8. Any course of intentional, willful or wanton conduct by a licensee or such licensee’s employees which misleads or creates a false impression among the seller, buyer, bidders and the auctioneer in the advertising, conducting and closing of an auction sale.
    9. A continued and flagrant course of misrepresentation or making false promises, either by the licensee, an employee of the licensee, or by someone acting on behalf of and with the licensee’s consent.
    10. Any failure to account for or to pay over within a reasonable time funds belonging to another which have come into the licensee’s possession through an auction sale.
    11. Any false, misleading or untruthful advertising.
    12. Any act of conduct in connection with a sales transaction which demonstrates bad faith or dishonesty.
    13. Knowingly using false bidders, cappers or pullers, or knowingly making a material false statement or representation.
    14. Commingling the funds or property of a client with the licensee’s own or failing to maintain and deposit in a trust or escrow account in an insured bank or savings and loan association located in Mississippi funds received for another person through sale at auction.
    15. Failure to give full cooperation to the commission and/or its designees, agents or other representatives in the performance of official duties of the commission. Such failure to cooperate includes, but is not limited to:
      1. Failure to properly make any disclosures or to provide documents or information required by this chapter or by the commission;
      2. Not furnishing, in writing, a full and complete explanation covering the matter contained in a complaint filed with the commission;
      3. Failure, without good cause, to cooperate with any request by the board to appear before it;
      4. Not providing access, as directed by the commission, for its authorized agents or representatives seeking to perform reviews, audits or inspections at facilities or places utilized by the license holder in the auction business;
      5. Failure to provide information within the specified time allotted and as required by the board and/or its representatives or designees;
      6. Failure to cooperate with the board or its designees or representatives in the investigation of any alleged misconduct or willfully interfering with a board investigation.
    16. A demonstrated lack of financial responsibility.
    17. Having had a license for the practice of auctioneering or the auction business suspended or revoked in any jurisdiction, having voluntarily surrendered a license in any jurisdiction, having been placed on probation in any jurisdiction, having been placed under disciplinary order(s) or other restriction in any manner for auctioneering or the auction business (a certified copy of the order of suspension, revocation, probation or disciplinary action shall be prima facie evidence of such action).
    18. Any violation of this chapter or any violation of a rule or regulation duly adopted by the commission.
  2. In addition to the acts specified in subsection (1) of this section, the commission shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

HISTORY: Laws, 1995, ch. 405 § 13; Laws, 1996, ch. 507, § 30; Laws, 2009, ch. 476, § 6; reenacted and amended, Laws, 2010, ch. 335, § 13; reenacted without change, Laws, 2013, ch. 415, § 13; reenacted without change, Laws, 2016, ch. 348, § 13, eff from and after July 1, 2016.

Amendment Notes —

The 2009 amendment rewrote (1).

The 2010 amendment reenacted and amended the section and in (1)(n), inserted the last occurrence of “funds”; and made a minor grammatical change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

Cross References —

Conduct of disciplinary proceedings, see §73-4-19.

Standards governing performance of duties of auctioneers see §73-4-35.

Recordkeeping requirements, see §73-4-37.

Requirement of written contract for sale of goods, see §73-4-39.

Advertisement of auctions, see §73-4-41.

Requirement of license to act as auctioneer, see §73-4-43.

Penalties for violations of chapter, see §73-4-45.

Suspension of state-issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

§ 73-4-27. Qualifications for auction firm license; termination or suspension of license; additional requirements.

  1. No person or party who is not otherwise exempt from licensure under Section 73-34-5 shall sell, or offer to sell, goods or real estate at auction in this state or perform any act for which an auction firm license is required, unless the person or party holds a currently valid license issued by the commission.
  2. Any person who is not otherwise licensed under this chapter and who only provides auction services or holds himself out as providing auction services shall do so only with a valid auction firm license issued under this section.
  3. The commission may grant an auction firm license to an auction firm that is determined to be qualified by the commission. To be eligible for license, the auction firm shall:
    1. Comply with the requirements of Sections 73-4-17 and 73-4-29 and the rules and regulations of the commission; and
    2. Employ a firm manager as required under subsection (5) of this section.
  4. An application submitted under this section for an auction firm license shall list the names of all of the owners, directors, partners or members of the applicant, as applicable.
  5. An auction firm shall designate a firm manager. The firm manager shall have sufficient authority in the operation of the auction firm to ensure compliance with this chapter and rules and regulations of the commission. If the firm manager does not have a current license issued under this chapter, the firm manager must become licensed under this chapter before the commission may issue a license under this section to the auction firm.
  6. An auction firm license issued under this section immediately shall terminate if any of the following occur:
    1. The auction firm ceases to operate as a corporation.
    2. The auction firm changes ownership or there is any change in ownership.
    3. If the auction firm is a partnership, the firm changes the number of partners in the partnership or changes the partners comprising the partnership.
    4. The auction firm changes the firm manager.
    5. The auction firm changes the name under which the firm conducts business.
    6. The auction firm changes its permanent business location.
  7. If the applicant for a firm license maintains more than one (1) place of business within the state, the applicant shall apply for and obtain an additional firm license for each branch office.
  8. A firm license shall automatically be suspended if no licensed auctioneer is engaged in business therein. Such license may be reinstated by the commission for the unexpired term upon proof that a duly licensed auctioneer has been affiliated with the firm.
  9. Any person in this state who for a fee is in the business of managing auctions to the extent such person is responsible for the advertising, consignments, promotion and/or distribution of funds must hold a valid firm license.
  10. In addition to the other requirements contained elsewhere in this chapter, the holder of an auction firm license shall comply with the following:
    1. Enter into a written contract with a licensed auctioneer to call bids prior to the start of any auction sale. A copy of such contract shall be maintained on the premises and available for inspection by the commission.
    2. The firm license and the license of its manager shall be conspicuously posted at the firm location.
    3. Maintain complete records of each sale held at the licensed premises which shall include, but shall not be limited to, consignment receipts, bidder registrations, final settlements with consignors and any other documents relevant to the conduct of the sale. These records shall be maintained for a period of one (1) year from the date of the sale.
    4. Maintain a file on all current and past employees of the auction firm for the previous year. Such file should contain the employee’s name, last known address and social security number.
    5. Assume responsibility for all checks, drafts and other negotiable instruments tendered by buyers in payment for goods sold through the auction firm.
    6. Deposit all proceeds from auction sales into the licensee’s escrow account and make all disbursements from such escrow account.
    7. The licensee shall make all of his records pertaining to the auction firm available to a member or employee of the commission for inspection upon demand.

HISTORY: Laws, 1995, ch. 405 § 14; Laws, 2009, ch. 476, § 7; reenacted without change, Laws, 2010, ch. 335, § 14; reenacted and amended, Laws, 2013, ch. 415, § 14; reenacted without change, Laws, 2016, ch. 348, § 14, eff from and after July 1, 2016.

Amendment Notes —

The 2009 amendment rewrote the section.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted and amended the section by substituting “Employ” for “Employs” at the beginning of (3)(b).

The 2016 amendment reenacted the section without change.

Cross References —

Requirements for licenses generally, see §73-4-17.

Bonds, see §73-4-29.

§ 73-4-29. Filing of bonds by applicants for licenses; requirements for auctions of factory-built homes.

  1. Every person who applies for an auctioneer’s license, as a condition to the granting and the retention thereof, shall file or have on file with the commission, a bond in the amount of Ten Thousand Dollars ($10,000.00).
  2. Every person or persons who apply for an auction firm license, as a condition to the granting and the retention thereof, shall file or have on file with the commission, a bond in the amount of Ten Thousand Dollars ($10,000.00).
    1. Factory-built homes as defined by Section 75-49-3, because of the manner of their construction, assembly and use and that of their systems, components and appliances (including heating, plumbing and electrical systems), like other finished products having concealed vital parts, may present hazards to the health, life and safety of persons and to the safety of property unless properly inspected prior to sale and properly anchored and blocked at the homesite after the sale so as to provide reasonable safety and protection to their owners and users. In order to insure that these homes are properly anchored and blocked at the homesite in accordance with the rules, regulations and procedures promulgated by the State Commissioner of Insurance pursuant to his rule-making power contained in Section 75-49-5, auctions of these homes shall be restricted to factory-built housing dealers licensed pursuant to Section 75-49-9 and subject to the penalties of Section 75-49-19, except as otherwise provided in paragraph (b).
    2. An auctioneer licensed under this chapter may auction a factory-built home without obtaining a license pursuant to Section 75-49-9, if the auction is not for the sole purpose of disposing of factory-built homes and if the disposal of the factory-built home is incidental to, and a part of, an entire estate or liquidation auction. The number of such homes that may be auctioned pursuant to this paragraph is limited to three (3) being offered for sale in one (1) auction or event.

HISTORY: Laws, 1995, ch. 405 § 15; Laws, 2009, ch. 476, § 8; reenacted without change, Laws, 2010, ch. 335, § 15; reenacted without change, Laws, 2013, ch. 415, § 15; reenacted without change, Laws, 2016, ch. 348, § 15, eff from and after July 1, 2016.

Amendment Notes —

The 2009 amendment deleted former (3) which read: “Every person who applies for a livestock auctioneer’s license, as a condition to the granting and the retention thereof, shall file or have on file with the commission, a bond in the amount of Ten Thousand Dollars ($10,000.00)”; and redesignated former (4) as present (3).

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

Cross References —

Form, terms, conditions and duration of bonds, see §73-4-31.

Procedure for recovery on bonds, see §73-4-33.

§ 73-4-31. Form, terms and conditions, and duration of bonds provided under chapter; liability on bonds; cancellation of bonds.

  1. The State of Mississippi shall be the obligee under any bond under this chapter.
  2. Such bond shall be:
    1. Executed by the person seeking the license as principal and by a corporate surety, licensed to do business in this state as a surety;
    2. In such form and containing such terms and conditions as the commission prescribes;
    3. Conditioned upon the faithful performance of all obligations of a licensee under this chapter and the rules and regulations promulgated hereunder, including the obligation to account for and pay over monies and proceeds to persons who are entitled to them; and
    4. Effective from the date of its filing with the commission, such bond shall not be affected by the expiration of the license period and shall continue in full force and effect until cancelled, provided that the total and aggregate liability of the surety on a bond shall be limited to the amount specified in the bond and the continuous nature of the bond shall in no way be construed as allowing the liability of the surety under a bond to accumulate for each successive license period during which the bond is in force.
    1. A licensee may not cancel a bond without the prior written approval of the commission and its approval of a substitute bond so as to provide continuous bonding of the licensee’s activities.
    2. The surety on a bond may cancel a bond filed under this chapter only after the expiration of ninety (90) days from the date the surety mails a notice of intent to cancel, by registered or certified mail, return receipt requested, to the commission and to the principal of the bond.
    3. Not later than thirty (30) days prior to the date upon which a bond cancellation becomes effective, the licensee shall give written notice to the commission that a new bond has been obtained so as to provide continuous coverage of the licensee’s activities.

HISTORY: Laws, 1995, ch. 405 § 16; reenacted without change, Laws, 2010, ch. 335, § 16; reenacted without change, Laws, 2013, ch. 415, § 16; reenacted without change, Laws, 2016, ch. 348, § 16, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

§ 73-4-33. Procedure for recovery on bonds; exclusivity of remedy.

  1. If any licensee fails, or is alleged to have failed, to meet the obligations under this chapter and the rules and regulations promulgated hereunder, the commission shall hold a hearing and determine whether there has been such a failure, determine those persons who are proven claimants under the bond and, if appropriate, distribute the bond proceeds to the proven claimants.
  2. Actions upon the bond and the right to payment under the bond shall extend solely to the commission, except that if the commission has not initiated action under the bond by scheduling and holding a hearing, by litigation or otherwise, within thirty (30) days of a written request to do so, any claimant may initiate an action in the Circuit Court of Hinds County, Mississippi, to require the commission to take action.
  3. If, after a hearing, the commission determines that proven claims exceed the amount of the bond proceeds, the proceeds shall be prorated among proven claimants in the ratio that the amount of their proven claim bears to the total amount of all proven claims.
  4. The determination of the commission as to the fact and the amount of liability under the bond and the amount distributed to the claimants under the bond shall be binding upon the principal and surety of the bond.
  5. All hearings held under this section shall be held in accordance with the laws of this state.
  6. The existence of the bond and the bond recovery procedure shall in no way affect or alter any other right or remedy which a person may have under applicable law.

HISTORY: Laws, 1995, ch. 405 § 17; reenacted without change, Laws, 2010, ch. 335, § 17; reenacted without change, Laws, 2013, ch. 415, § 17; reenacted without change, Laws, 2016, ch. 348, § 17, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

Cross References —

Standards governing performance of duties of auctioneers see §73-4-35.

§ 73-4-35. Standards governing performance of duties of auctioneers; accounting and payment of monies to owners or consignors of goods involved in auction.

  1. In performing the duties of an auctioneer, every auctioneer shall follow all reasonable requests of the owner or consignor of the goods being sold at the auction. Every auctioneer shall perform such auctioneer’s duties so that the highest or most favorable offer made by a member of the audience is accepted, and shall otherwise perform such duties in accordance with the highest standards of the auctioneering profession.
    1. Every licensee, within five (5) business days after the sale transaction, shall account to, or provide an accounting for, those persons who own or who are acting as consignor of goods which are the subject of an auction engaged in or conducted by such licensee or upon such licensee’s premises.
    2. Every licensee, within five (5) business days after a sale of goods and at closing of the sale, shall pay over, or provide for the paying over of, all monies and proceeds due to the owner or consignor of goods which was the subject of an auction engaged in or conducted by such licensee or upon such licensee’s premises.

HISTORY: Laws, 1995, ch. 405 § 18; reenacted without change, Laws, 2010, ch. 335, § 18; reenacted and amended, Laws, 2013, ch. 415, § 18; reenacted without change, Laws, 2016, ch. 348, § 18, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted and amended the section by substituting “due to the owner or consignor” for “due to owner or consignor” in (2)(b).

The 2016 amendment reenacted the section without change.

Cross References —

Grounds for disciplinary proceedings, see §73-4-25.

Penalties for violations, see §73-4-45.

§ 73-4-37. Recordkeeping requirements.

Each licensee shall keep and maintain in a safe place for a period of not less than two (2) years complete and correct records and accounts pertaining to such licensee’s licensed activity, including the name and address of the owner or consignor of all goods involved in such activities, a description of such goods, the terms and conditions of the acceptance of such goods and accounts of all monies received and paid out, whether on the licensee’s own behalf or as agent, as a result of such activities.

HISTORY: Laws, 1995, ch. 405 § 19; reenacted without change, Laws, 2010, ch. 335, § 19; reenacted without change, Laws, 2013, ch. 415, § 19; reenacted without change, Laws, 2016, ch. 348, § 19, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

Cross References —

Grounds for disciplinary proceedings, see §73-4-25.

Penalties for violations of chapter, see §73-4-45.

§ 73-4-39. Requirement of written contract for sale of goods; time period for retention of contract.

Except with respect to goods sold through an auction firm, no licensee shall sell goods at an auction until the auctioneer or auction firm involved has first entered into a written contract with the owner or consignor of such goods, which contract sets forth the terms and conditions upon which such auctioneer or auction firm accepts the goods for sale. A copy of every written contract shall be retained for a period of two (2) years from the date of the auction.

HISTORY: Laws, 1995, ch. 405 § 20; Laws, 2009, ch. 476, § 9; reenacted without change, Laws, 2010, ch. 335, § 20; reenacted without change, Laws, 2013, ch. 415, § 20; reenacted without change, Laws, 2016, ch. 348, § 20, eff from and after July 1, 2016.

Amendment Notes —

The 2009 amendment substituted “firm” for “gallery” following “auction” throughout the section.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

Cross References —

Grounds for disciplinary proceedings, see §73-4-25.

Penalties for violations of chapter, see §73-4-45.

§ 73-4-41. Advertisement of auctions.

All advertisements of auctions shall disclose:

The auctioneer’s name and the name of the auction firm involved; and

Whether the auction is to be absolute or with reserve; and

The auctioneer’s or auction firm’s auction license number.

HISTORY: Laws, 1995, ch. 405 § 21; Laws, 2009, ch. 476, § 10; reenacted without change, Laws, 2010, ch. 335, § 21; reenacted without change, Laws, 2013, ch. 415, § 21; reenacted without change, Laws, 2016, ch. 348, § 21, eff from and after July 1, 2016.

Amendment Notes —

The 2009 amendment substituted “firm” and “firm’s” for “gallery” and “gallery’s” in (a) and (c).

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

§ 73-4-43. Requirement of license; penalties for unlicensed conduct.

  1. An individual may not act as an auctioneer without first having obtained and having in effect the license required under this chapter.
  2. Any person, except a licensed auctioneer who shall have become exempt by reason of compliance with the applicable provisions of this chapter, may not operate an auction firm without having obtained and having in effect a license for such auction firm as required under this chapter.
  3. A person who violates the provisions of this section shall be fined, upon conviction, not more than One Thousand Dollars ($1,000.00).
  4. When the commission or its authorized designee determines that person or party not licensed under this chapter is engaged in or is believed to be engaged in activities for which a license is required under this chapter, the commission or its designee may issue an order requiring that person to desist immediately and refrain from such conduct or activities. The affected person or party may appeal the issuance of the cease and desist order by filing notice of appeal within seven (7) calendar days after service of the order. A hearing must be held within twenty (20) days after a notice of appeal has been timely filed. Service of the cease and desist order shall be considered to have been given if the notice or order was personally served on the person or party or if the order was mailed by certified United States mail to the person’s or party’s last known address available to the commission. A person or party who has been issued an order to cease and desist that has become final either through default or administrative proceeding before the commission may not engage in the activity or conduct which is the subject of the order. A cease and desist order issued by the commission shall be enforceable in the courts of competent jurisdiction in this state.
  5. Any person or party that practices, offers to practice, attempts to practice, or holds oneself out to practice as an auctioneer, auction firm, or any other licensee under this chapter without being licensed by the commission shall, in addition to any other penalty provided by law, pay a civil penalty to the commission in an amount not to exceed Five Thousand Dollars ($5,000.00) for each offense as determined by the commission. The civil penalty shall be paid within sixty (60) calendar days after the effective date of the order imposing the penalty. The order shall constitute a judgment and may be filed and execution had thereon in the same manner from any court of record.

HISTORY: Laws, 1995, ch. 405 § 22; Laws, 2009, ch. 476, § 11; reenacted without change, Laws, 2010, ch. 335, § 22; reenacted without change, Laws, 2013, ch. 415, § 22; reenacted without change, Laws, 2016, ch. 348, § 22, eff from and after July 1, 2016.

Amendment Notes —

The 2009 amendment substituted “firm” for “gallery” twice in (2); and added (4) and (5).

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

Cross References —

Grounds for disciplinary proceedings, see §73-4-25.

Penalties for violations of chapter, see §73-4-45.

§ 73-4-45. Penalties for violations of chapter.

Any person who violates any provision of this chapter for which a specific penalty is not provided, upon conviction, shall be fined not more than One Thousand Dollars ($1,000.00).

HISTORY: Laws, 1995, ch. 405 § 23; reenacted without change, Laws, 2010, ch. 335, § 23; reenacted without change, Laws, 2013, ch. 415, § 23; reenacted without change, Laws, 2016, ch. 348, § 23, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

Cross References —

Grounds for disciplinary proceedings, see §73-4-25.

§ 73-4-47. Proceedings for injunctions.

The commission may maintain an action in the name of the State of Mississippi to enjoin any person from engaging, without a license issued under this chapter or pursuant to an exemption defined in this chapter, in any activity for which a license is required under this chapter.

HISTORY: Laws, 1995, ch. 405 § 24; reenacted without change, Laws, 2010, ch. 335, § 24; reenacted without change, Laws, 2013, ch. 415, § 24; reenacted without change, Laws, 2016, ch. 348, § 24, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

Cross References —

Requirement of license and penalties for unlicensed conduct, see §73-4-43.

§ 73-4-49. Charging of violations of chapter.

In charging any person in an affidavit, information, or indictment with a violation of conducting, without a license or pursuant to an exemption of this chapter, any activity for which a license or an exemption therefor is required, it shall be sufficient to charge that the person did, upon a certain day and in certain county, engage in such activity and that such person did not have a license or exemption to do so. No further facts need to be averred concerning the matter.

HISTORY: Laws, 1995, ch. 405 § 25; reenacted without change, Laws, 2010, ch. 335, § 25; reenacted without change, Laws, 2013, ch. 415, § 25; reenacted without change, Laws, 2016, ch. 348, § 25, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

Cross References —

Penalties for violations of chapter, see §73-4-45.

§ 73-4-51. Appropriations.

All new programs authorized in this chapter are subject to the availability of funds specifically appropriated therefor by the Legislature.

HISTORY: Laws, 1995, ch. 405 § 26; reenacted without change, Laws, 2010, ch. 335, § 26; reenacted without change, Laws, 2013, ch. 415, § 26; reenacted without change, Laws, 2016, ch. 348, § 26, eff from and after July 1, 2016.

Amendment Notes —

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

§ 73-4-53. Repealed.

Repealed by Laws of 2016, ch. 348, § 27, effective July 1, 2016.

§73-4-53. Laws, 2009, ch. 476, § 13; reenacted and amended, Laws, 2010, ch. 335, § 27; Laws, 2013, ch. 415, § 27, eff from and after July 1, 2013.

Editor’s Notes —

Former §73-4-53 provided for the repeal of the Mississippi Auctioneers License Act, §§73-4-1 through73-4-51, effective July 1, 2016.

Chapter 5. Barbers

§ 73-5-1. Board of barber examiners [Repealed effective July 1, 2020].

The State Board of Barber Examiners is continued and reconstituted as follows: The Board of Barber Examiners shall consist of five (5) members, to be appointed by the Governor, with the advice and consent of the Senate, one (1) member to be appointed from each of the congressional districts as existing on January 1, 1991. Each member shall be a practical barber and a qualified elector of this state. He shall have been engaged in the practice of barbering in the State of Mississippi for at least five (5) years immediately before the time of his appointment and shall be a person of good moral character. From and after July 1, 1983, the appointments to the board shall be made in the manner hereinafter provided, and the present members of the State Board of Barber Examiners whose terms have not expired by July 1, 1983, shall continue to serve until their successors have been appointed and qualified. The Governor shall appoint, with the advice and consent of the Senate, five (5) members from the congressional districts as follows: The member from the First Congressional District shall be appointed for a term of two (2) years to commence on July 1, 1983; the member from the Second Congressional District shall be appointed for a term of four (4) years to commence on July 1, 1984; the member from the Third Congressional District shall be appointed for a term of two (2) years to commence on July 1, 1983; the member from the Fourth Congressional District shall be appointed for a term of four (4) years to commence on July 1, 1984; and the member from the Fifth Congressional District shall be appointed for a term of one (1) year to commence on July 1, 1983. The members of the board as constituted on July 1, 2002, whose terms have not expired shall serve the balance of their terms, after which time the membership of the board shall be appointed as follows: There shall be appointed one (1) member of the board from each of the four (4) Mississippi congressional districts as they currently exist, and one (1) from the state at large, and the Governor shall make appointments from the congressional district having the smallest number of board members until the membership includes one (1) member from each district as required. From and after July 1, 2002, no member of the board who is connected in any way with any barbering school shall participate in the administration of examinations of barber applicants. From and after July 1, 2004, no member of the board shall be connected in any way with any school in which barbering is taught.

All members of the board shall be appointed by the Governor, with the advice and consent of the Senate, for terms of four (4) years each from the expiration date of the previous term, until their successors have been appointed and qualified. No member of the board shall hold any elected office. Appointments made to fill a vacancy of a term shall be made by the Governor within sixty (60) days after the vacancy occurs.

The Governor may remove any one or more members of the board for just cause. Members appointed to fill vacancies caused by death, resignation or removal of any member or members shall serve only for the unexpired term of their predecessors. Any member who does not attend two (2) consecutive meetings of the board for reasons other than illness of the member shall be subject to removal by the Governor. The president of the board shall notify the Governor in writing when any such member has failed to attend two (2) consecutive regular meetings.

HISTORY: Codes, 1930, § 3863; 1942, § 8725; Laws, 1930, ch. 131; Laws, 1940, ch. 134; Laws, 1960, ch. 378, § 1; Laws, 1983, ch. 489, § 1; reenacted and amended, Laws, 1991, ch. 508, § 1; reenacted without change, Laws, 1997, ch. 511, § 1; reenacted and amended, Laws, 2002, ch. 558, § 1; reenacted without change, Laws, 2004, ch. 309, § 1; reenacted without change, Laws, 2008, ch. 303, § 1; reenacted without change, Laws, 2011, ch. 322, § 2, eff from and after July 1, 2011.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a publishing error in the Source line. The reference to “Laws 1983, ch. 481” was changed to “Laws, 1983, ch. 489.” The Joint Committee ratified the correction at its April 26, 2001, meeting.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted and rewrote the section.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

General powers and duties of governor, see §7-1-5.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application.

1. Validity.

Regulation of barbering profession is within state’s police power. Clark v. State, 169 Miss. 369, 152 So. 820, 1934 Miss. LEXIS 24 (Miss. 1934).

Legislature has power to create board to find facts and carry out general purpose of statute by reasonable rules and regulations. Clark v. State, 169 Miss. 369, 152 So. 820, 1934 Miss. LEXIS 24 (Miss. 1934).

2. Construction and application.

This section [Code 1942, § 8725] and other sections indicate that the board of barber examiners exercises a part of the sovereignty of the state, and that it is not a private body, with any independent control over its funds nor any private rights therein. Causey v. Phillips, 191 Miss. 891, 4 So. 2d 215, 1941 Miss. LEXIS 177 (Miss. 1941).

Members of the board of barber examiners are state officers, and their offices are state offices, and therefore, the state auditor had the right to maintain suit upon the bond of the secretary of the board for the alleged misapplication of funds of the board. Causey v. Phillips, 191 Miss. 891, 4 So. 2d 215, 1941 Miss. LEXIS 177 (Miss. 1941).

Supreme court will not give opinion advising barbers whether they can safely continue to practice barbering without complying with barbering statute. Baldwyn v. Board of Barber Examiners, 164 Miss. 744, 145 So. 240, 1933 Miss. LEXIS 234 (Miss. 1933).

If criminal proceedings have been commenced, or threatened to be commenced, by board of barber examiners against complainants, that fact should be specifically averred in bill to enjoin board from enforcing barbering statute. Baldwyn v. Board of Barber Examiners, 164 Miss. 744, 145 So. 240, 1933 Miss. LEXIS 234 (Miss. 1933).

Bill to enjoin board of barber examiners from enforcing barbering statute stated no cause of action. Baldwyn v. Board of Barber Examiners, 164 Miss. 744, 145 So. 240, 1933 Miss. LEXIS 234 (Miss. 1933).

RESEARCH REFERENCES

ALR.

Validity of statute establishing or authorizing minimum price schedules for barbers. 54 A.L.R.3d 916.

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 1, 2 et seq.

CJS.

53 C.J.S., Licenses § 58, 59.

§ 73-5-3. Officers and employees; compensation; common seal; records; quorum [Repealed effective July 1, 2020].

The board shall elect a president and secretary and shall adopt and use a common seal for the authentication of its records and orders. The secretary shall keep a record of all proceedings and acts of the board and an accurate account of all funds received and disbursed, which shall be considered as public records.

The secretary shall execute and file with the Secretary of State a bond in the sum of Ten Thousand Dollars ($10,000.00) conditioned according to law, the bond to be made in a surety company authorized to do business in this state and approved by the Governor. The premium for the bond shall be paid out of the funds in the board’s special fund in the State Treasury.

A majority of the board shall constitute a quorum, and it is authorized to perform the requirements of this chapter at any regular or special meeting called for that purpose.

Each member of the board shall receive per diem in accordance with Section 25-3-69 when actually attending to the work of the board or any of its committees, and shall be reimbursed for traveling expenses in accordance with Section 25-3-41 in carrying out the provisions of this chapter. The board shall employ an executive director with compensation to be established by the State Personnel Board, and the executive director shall devote his or her full time to oversee all day-to-day operations of the board. The board may employ four (4) inspectors, one (1) to be appointed from each of the four (4) congressional districts, to make periodic inspections of all barbershops throughout the state and one (1) chief inspector to be appointed from the state at large to supervise inspections and investigations statewide. The board shall employ the necessary personnel to carry out the provisions of this chapter, and maintain and pay the expenses of an office to be located in the City of Jackson. All per diem, salaries and expenses shall be paid exclusively from the funds in the board’s special fund, and salaries and expenses of personnel may be disbursed monthly.

The board shall require such of its employees as it may consider necessary to make bond and file same with the Secretary of State in such sums as it may consider necessary to protect the interests of the barbers of the State of Mississippi and require the faithful performance of their duties.

HISTORY: Codes, 1930, § 3864; 1942, § 8726; Laws, 1932, ch. 118; Laws, 1940, ch. 134; Laws, 1942, ch. 325; Laws, 1946, ch. 240; Laws, 1960, ch. 378, § 2; Laws, 1968, ch. 444, § 1; Laws, 1974, ch. 540, § 1; Laws, 1981, ch. 427, § 1; Laws, 1982, ch. 450, § 1; reenacted, Laws, 1983, ch. 489, § 2; Laws, 1990, ch. 521, § 1; reenacted, Laws, 1991, ch. 508, § 2; Laws, 1992, ch. 502, § 7; Laws, 1995, ch. 359, § 1; reenacted and amended, Laws, 1997, ch. 511, § 2; reenacted and amended, Laws, 2002, ch. 558, § 2; reenacted without change, Laws, 2004, ch. 309, § 2; reenacted without change, Laws, 2008, ch. 303, § 2; Laws, 2010, ch. 477, § 1; reenacted without change, Laws, 2011, ch. 322, § 3, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted and rewrote the section.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2010 amendment rewrote the third paragraph.

The 2011 amendment reenacted the section without change.

§ 73-5-5. Money received by board to be deposited in special fund; regulation of fund; audit; suspension of board members [Repealed effective July 1, 2020].

  1. All fees and any other monies received by the board shall be deposited in a special fund that is created in the State Treasury and shall be used for the implementation and administration of this chapter when appropriated by the Legislature for such purpose. The monies in the special fund shall be subject to all provisions of the state budget laws that are applicable to special fund agencies, and disbursements from the special fund shall be made by the State Treasurer only upon warrants issued by the State Fiscal Officer upon requisitions signed by the president of the board and countersigned by the secretary of the board. Any interest earned on this special fund shall be credited by the State Treasurer to the fund and shall not be paid into the State General Fund. Any unexpended monies remaining in the special fund at the end of a fiscal year shall not lapse into the State General Fund.
  2. The State Auditor shall audit the financial affairs of the board and the transactions involving the special fund at least once a year in the same manner as for other special fund agencies. In addition, the Governor, in his discretion, shall have the power from time to time to require an audit of the financial affairs of the board, the same to be made by the State Auditor upon request of the Governor. The Governor shall have the power to suspend any member of the board who shall be found short in any account until such time as it shall be definitely determined whether such shortage was the result of an act of dishonesty on the part of the member.

HISTORY: Codes, 1942, § 8727; Laws, 1932, ch. 118; Laws, 1938, ch. 176; Laws, 1983, ch. 489, § 3; reenacted, Laws, 1991, ch. 508, § 3; Laws, 1992, ch. 502, § 1; reenacted without change, Laws, 1997, ch. 511, § 3; reenacted without change, Laws, 2002, ch. 558, § 3; reenacted without change, Laws, 2004, ch. 309, § 3; reenacted without change, Laws, 2008, ch. 303, § 3; reenacted without change, Laws, 2011, ch. 322, § 4, eff from and after July 1, 2011.

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section §27-104-6, provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

State depositories generally, see §§27-105-1 et seq.

JUDICIAL DECISIONS

1. In general.

The board of barber examiners exercises part of the sovereignty of the state, and so is not a private body, with any independent control over its funds or with any private rights therein. Causey v. Phillips, 191 Miss. 891, 4 So. 2d 215, 1941 Miss. LEXIS 177 (Miss. 1941).

Members of the board of barber examiners are state officers, and their offices are state offices, and therefore the state auditor had the right to maintain suit upon the bond of the secretary of the board for the alleged misapplication of funds of the board. Causey v. Phillips, 191 Miss. 891, 4 So. 2d 215, 1941 Miss. LEXIS 177 (Miss. 1941).

In an action by the state auditor on the bond of the secretary of the board of barber examiners for misapplication of funds, it was immaterial whether the secretary was a member of the board, since in any event he would be either a public officer or employee. Causey v. Phillips, 191 Miss. 891, 4 So. 2d 215, 1941 Miss. LEXIS 177 (Miss. 1941).

§ 73-5-7. Rules; inspection; records [Repealed effective July 1, 2020].

  1. The Board of Barber Examiners shall have authority to make reasonable rules and regulations for the administration of the provisions of this chapter. Provided, however, that any and all rules and regulations relating to sanitation shall, before adoption by the board, have the written approval of the State Board of Health. The Board of Barber Examiners shall adopt regulations for the guidance of registered barbers in the operation of a shop and in the practice of barbering except, however, it shall be optional with the individual barber as to whether he or she uses a mug. Any member or designee of the Board of Barber Examiners shall have the authority to enter upon and inspect any barbershop or barber school at anytime during business hours. A copy of the rules and regulations of the State Board of Barber Examiners shall be furnished to the owner or manager of each shop and barber school affected by this chapter, and such copy shall be posted in a conspicuous place in such barbershop or barber school.
  2. The board shall have authority to establish rules and regulations governing schools of barbering in this state except those schools operated by a state institution of higher learning or by a public community or junior college. The board shall have further authority to establish curriculum for such regulated schools of barbering in this state.

    Each regulated school of barbering shall submit the following to the board before enrolling students:

    1. The address of proposed school, and the type and size of building in which the school is to be located;
    2. The names and addresses of owners and officers of such school, and the names, addresses and instructor license number of managers, supervisors and instructors of such school;
    3. A list of equipment and teaching aids; and
    4. A copy of the contract to be used between the school and the student.

      All regulated schools of barbering in the State of Mississippi shall be required to maintain a surety bond in the amount of Twenty-five Thousand Dollars ($25,000.00) to ensure that in the event a school ceases operation, that all unused tuition fees will be refunded to the students concerned. This bond shall remain in effect for the duration of the school’s operation.

  3. The Board of Barber Examiners shall adopt rules and regulations establishing a procedure for the processing and investigation of complaints filed with the board. The board shall keep records of all complaints, and such records shall indicate the action taken on the complaints.
  4. The Board of Barber Examiners shall keep a record of its proceedings relating to the issuance, refusal, suspension and revocation of certificates of registration. The record shall also contain the name, place of business and the residence of each registered barber, and the date and number of his certificate of registration. The record shall be open to public inspection at all reasonable times.

HISTORY: Codes, 1930, § 3865; 1942, § 8728; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1983, ch. 489, § 4; reenacted, Laws, 1991, ch. 508, § 4; reenacted and amended, Laws, 1997, ch. 511, § 4; Laws, 2000, ch. 357, § 1; reenacted without change, Laws, 2002, ch. 558, § 4; reenacted without change, Laws, 2004, ch. 309, § 4; reenacted without change, Laws, 2008, ch. 303, § 4; Laws, 2010, ch. 477, § 2; reenacted without change, Laws, 2011, ch. 322, § 5, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2010 amendment inserted “or designee” in the fourth sentence of (1).

The 2011 amendment reenacted the section without change.

Cross References —

General duties of state board of health, see §41-3-15.

Refusal and/or revocation of a certificate for violation of regulations prescribed as provided for in this section, see §73-5-25.

JUDICIAL DECISIONS

1. In general.

Statute delegating general power to prescribe barbers’ qualifications to board of examiners held not unconstitutional as vesting in board absolute discretion to grant or withhold licenses. Clark v. State, 169 Miss. 369, 152 So. 820, 1934 Miss. LEXIS 24 (Miss. 1934).

RESEARCH REFERENCES

ALR.

Validity of statute establishing or authorizing minimum price schedules for barbers. 54 A.L.R.3d 916.

§ 73-5-8. Qualifications for certificate of registration as barber instructor [Repealed effective July 1, 2020].

Any person is qualified to receive a certificate of registration as a barber instructor who:

Is eighteen (18) years of age or older;

Is of good moral and temperate habits;

Is able to read, write and speak English;

Possesses a high school education or its equivalent;

Has successfully completed not less than fifteen hundred (1500) hours at a barbering school approved by the State Board of Barber Examiners and holds a valid certificate of registration to practice barbering;

Has (i) not less than two (2) years of active experience as a registered barber and has successfully completed not less than six hundred (600) hours of barber instructor training at a school approved by the board, or (ii) less than two (2) years of active experience as a registered barber and has successfully completed not less than one thousand (1,000) hours of barber instructor training at a school approved by the board; and

Has passed a satisfactory examination conducted by the board to determine his fitness to practice as a barber instructor.

All persons who have received a certificate of registration as a barber instructor from the board before July 1, 2002, shall be considered to have met the requirements of this section, and all those certificates of registration shall be renewable as otherwise provided in this chapter.

The board will implement an active and inactive instructor license. In order to renew an active license, instructors holding an active license shall be required to submit proof of twelve (12) hours of continuing education each year to the Board of Barber Examiners. That education shall be acquired in classes or trade shows teaching materials that are approved by the board. Instructors holding an inactive license shall be required to submit proof of twelve (12) hours continuing education before upgrading to an active status.

HISTORY: Laws, 1985, ch. 341, § 1; reenacted, Laws, 1991, ch. 508, § 5; reenacted and amended, Laws, 1997, ch. 511, § 5; reenacted and amended, Laws, 2002, ch. 558, § 5; reenacted without change, Laws, 2004, ch. 309, § 5; Laws, 2005, ch. 423, § 1; reenacted without change, Laws, 2008, ch. 303, § 5; Laws, 2010, ch. 477, § 3; reenacted without change, Laws, 2011, ch. 322, § 6, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted and rewrote the section.

The 2004 amendment reenacted the section without change.

The 2005 amendment rewrote (f); made minor stylistic changes in (g); and deleted (h), which read “Has successfully completed not less than six hundred (600) hours of barber instructor training at a school approved by the board.”

The 2008 amendment reenacted the section without change.

The 2010 amendment substituted “eighteen (18)” for “twenty-one (21)” in (a).

The 2011 amendment reenacted the section without change.

Cross References —

Conduct of examinations of applicants for certificates of registration to practice as barber or barber instructor, see §73-5-17.

Provision that certificate of registration as registered barber or barber instructor shall be issued whenever the applicable provisions of this chapter have been complied with, see §73-5-19.

Requirement of notice and a hearing prior to revocation or suspension or refusal to revoke or suspend any certificate of registration as registered barber or barber instructor, see §73-5-27.

Provisions relative to fees, annual renewal of certificates, restoration of expired certificates, and issuance of duplicate certificates, see §§73-5-29 and73-5-37.

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of statute or ordinance regulating beauty shops or beauty culture schools. 56 A.L.R.2d 879.

Validity of statute establishing or authorizing minimum price schedules for barbers. 54 A.L.R.3d 916.

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S. Licenses §§ 58, 59.

§ 73-5-9. Requirement of registration [Repealed effective July 1, 2020].

  1. No person shall practice or attempt to practice barbering in the State of Mississippi without a certificate of registration as a registered barber issued pursuant to the provisions of this chapter.
  2. No person shall be a barber instructor in the State of Mississippi without a certificate of registration as a barber instructor issued pursuant to the provisions of this chapter.
  3. Any person or persons who violates any provision of this chapter shall be guilty of a misdemeanor, punishable upon conviction in a court of competent jurisdiction as follows:
    1. For the first offense, by a fine of not less than Twenty-five Dollars ($25.00) nor more than Five Hundred Dollars ($500.00);
    2. For the second offense, by a fine of not less than Five Hundred One Dollars ($501.00) nor more than One Thousand Dollars ($1,000.00);
    3. For the third and any later offense, by imprisonment for not less than five (5) days nor more than six (6) months in the county jail.

HISTORY: Codes, 1930, §§ 3848, 3850; 1942, § 8729; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1982, ch. 450, § 2; reenacted, Laws, 1983, ch. 489, § 5; Laws, 1985, ch. 341, § 2; reenacted, Laws, 1991, ch. 508, § 6; reenacted without change, Laws, 1997, ch. 511, § 6; reenacted without change, Laws, 2002, ch. 558, § 6; reenacted without change, Laws, 2004, ch. 309, § 6; reenacted without change, Laws, 2008, ch. 303, § 6; Laws, 2010, ch. 477, § 4; reenacted without change, Laws, 2011, ch. 322, § 7, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2010 amendment added (3).

The 2011 amendment reenacted the section without change.

Cross References —

Qualifications for certificate of registration as barber instructor, see §73-5-8.

Fees for certificates of registration, see §73-5-29.

Annual renewals of certificates of registration as barber instructor, see §73-5-37.

What constitutes practice of barbering, see §73-5-39.

Penalty for violation of the provisions of this section, see §73-5-43.

Barber’s eligibility to become licensed cosmetologist, see §73-7-13.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

ALR.

Validity of statute establishing or authorizing minimum price schedules for barbers. 54 A.L.R.3d 916.

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S., Licenses §§ 70-72.

§ 73-5-11. Qualifications for certificate of registration as registered barber; temporary permit [Repealed effective July 1, 2020].

  1. To be eligible for enrollment at a barbering school approved by the Board of Barber Examiners, a person shall have a high school education or its equivalent, and/or shall have satisfactorily passed the ability-to-benefit examinations approved by the U.S. Department of Education.
  2. Any person is qualified to receive a certificate of registration to practice barbering:
    1. Who is qualified under the provisions of this chapter;
    2. Who is of good moral character and temperate habits;
    3. Who has completed not less than fifteen hundred (1500) hours at a barbering school approved by the State Board of Barber Examiners; and
    4. Who has passed a satisfactory examination conducted by the board of examiners to determine his fitness to practice barbering.
  3. A temporary permit to practice barbering until the next examination is given may be issued to a student who has completed not less than fifteen hundred (1500) hours at a barbering school approved by the Board of Barber Examiners. In no event shall a person be allowed to practice barbering on a temporary permit beyond the date the next examination is given, except because of personal illness.

HISTORY: Codes, 1930, § 3852; 1942, § 8730; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1968, ch. 444, § 2; Laws, 1979, ch. 351; Laws, 1982, ch. 450, § 3; reenacted, Laws, 1983, ch. 489, § 6; reenacted, Laws, 1991, ch. 508, § 7; Laws, 1995, ch. 359, § 2; reenacted and amended, Laws, 1997, ch. 511, § 7; Laws, 1998, ch. 322, § 1; reenacted without change, Laws, 2002, ch. 558, § 7; reenacted without change, Laws, 2004, ch. 309, § 7; reenacted without change, Laws, 2008, ch. 303, § 7; reenacted without change, Laws, 2011, ch. 322, § 8, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Conduct of examinations of applicants for certificates of registration to practice as barber or barber instructor, see §73-5-17.

Grounds for revocation of certificate, see §73-5-25.

Fees for certificate of registration, see §73-5-29.

Annual renewal of certificate of registration as barber, see §73-5-37.

Barber’s eligibility to become licensed cosmetologist, see §73-7-13.

JUDICIAL DECISIONS

1. In general.

Statute requiring applicant for registration as barber to pass satisfactory examination conducted by board of examiners held not unconstitutional as leaving determination of barbers’ qualifications entirely to board’s arbitrary discretion. Clark v. State, 169 Miss. 369, 152 So. 820, 1934 Miss. LEXIS 24 (Miss. 1934).

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S., Licenses §§ 62, 63, 65, 66.

§ 73-5-12. Eligibility of cosmetologists to take barber examination [Repealed effective July 1, 2020].

Any cosmetologist who can read, write and speak English and has successfully completed not less than fifteen hundred (1500) hours in an accredited school of cosmetology, and holds a valid, current license, shall be eligible to take the barber examination to secure a certificate of registration as a barber upon successfully completing six hundred (600) hours in a barber school approved by the Board of Barber Examiners.

All fees for application, examination, registration and renewal thereof shall be the same as provided for in this chapter.

HISTORY: Laws, 1982, ch. 450, § 11; reenacted, Laws, 1983, ch. 489, § 7; reenacted, Laws, 1991, ch. 508, § 8; reenacted without change, Laws, 1997, ch. 511, § 8; reenacted without change, Laws, 2002, ch. 558, § 8; reenacted without change, Laws, 2004, ch. 309, § 8; Laws, 2005, ch. 423, § 2; reenacted without change, Laws, 2008, ch. 303, § 8; reenacted without change, Laws, 2011, ch. 322, § 9, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2005 amendment substituted “six hundred (600) hours” for “five hundred (500) hours” preceding “in a barber school” near the end of the first paragraph.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Fees for examination and issuance of certificate for the registered barber or registered barber instructor and renewal of certificates, see §73-5-29.

Certain barbers being eligible to take cosmetology examination, see §73-7-13.

§ 73-5-13. Repealed.

Repealed by Laws of 1982, ch. 450, § 12, eff from and after July 1, 1982.

[Codes, 1930, § 3853; 1942, § 8731; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1963, 1st Ex. Sess. ch. 26]

Editor’s Notes —

Former Section 73-5-13 pertained to apprentice qualifications.

§ 73-5-15. Application for examination [Repealed effective July 1, 2020].

Each applicant for an examination shall:

Make application to the Board of Barber Examiners on blank forms prepared and furnished by the board, such application to contain proof under the applicant’s oath for the particular qualifications of the applicant; and,

Furnish to the board, at the time of the filing of such application, two (2) five-inch (5/”) X three-inch (3/”) signed photographs of the applicant, one (1) to accompany the application, and one (1) to be returned to the applicant to be presented to the board when the applicant appears for examination; and,

Pay to the board the required fee.

Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64, Mississippi Code of 1972.

HISTORY: Codes, 1930, § 3854; 1942, § 8732; Laws, 1930, ch. 131; Laws, 1932, ch. 118; reenacted, Laws, 1983, ch. 489, § 8; reenacted, Laws, 1991, ch. 508, § 9; reenacted without change, Laws, 1997, ch. 511; Laws, 1997, ch. 588, § 27; reenacted without change, Laws, 2002, ch. 558, § 9; reenacted without change, Laws, 2004, ch. 309, § 9; reenacted without change, Laws, 2008, ch. 303, § 9; reenacted without change, Laws, 2011, ch. 322, § 10, eff from and after July 1, 2011.

Joint Legislative Committee Note —

Section 9 of ch. 511, Laws of 1997, reenacted this section without change, effective June 30, 1997. Section 27 of ch. 588, Laws of 1997, effective July 1, 1997, amended this section. As set out above, this section reflects the language of Section 27 of ch. 588, Laws of 1997, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Laws of 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Fee for taking examination, see §73-5-29.

Barber’s eligibility to become licensed cosmetologist, see §73-7-13.

RESEARCH REFERENCES

CJS.

53 C.J.S., Licenses §§ 70-72.

§ 73-5-17. Examinations [Repealed effective July 1, 2020].

The Board of Barber Examiners shall conduct examinations of applicants for certificates of registration to practice as registered barbers not less than three (3) times a year, which examination shall be had in some town or city selected by the examining board. Examinations of applicants for certificates of registration as barber instructors shall be conducted at a time and place selected by the examining board.

The examination of applicants for certificates of registration as registered barbers shall include both a practical demonstration and a written and oral test, and shall embrace the subjects usually practiced in a duly licensed shop of Mississippi under the direct and personal supervision of a registered barber. The examination of applicants for certificates of registration as barber instructors shall include such subjects as the board deems necessary to determine the applicant’s fitness to practice as a barber instructor.

HISTORY: Codes, 1930, § 3855; 1942, § 8733; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1982, ch. 450, § 4; reenacted, Laws, 1983, ch. 489, § 9; Laws, 1985, ch. 341, § 3; reenacted, Laws, 1991, ch. 508, § 10; Laws, 1995, ch. 359, § 3; reenacted without change, Laws, 1997, ch. 511, § 10; reenacted without change, Laws, 2002, ch. 558, § 10; reenacted without change, Laws, 2004, ch. 309, § 10; reenacted without change, Laws, 2008, ch. 303, § 10; reenacted without change, Laws, 2011, ch. 322, § 11, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Qualifications for certificate of registration as barber instructor, see §73-5-8.

Qualifications for certificate of registration as registered barber, see §73-5-11.

Fees for examination of applicants for certificates of registration, see §73-5-29.

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S., Licenses § 63.

§ 73-5-19. Issuance of certificate [Repealed effective July 1, 2020].

Whenever the applicable provisions of this chapter have been complied with, the Board of Barber Examiners shall issue a certificate of registration as a registered barber or barber instructor, as the case may be.

HISTORY: Codes, 1930, § 3856; 1942, § 8734; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1982, ch. 450, § 5; reenacted, Laws, 1983, ch. 489, § 10; Laws, 1985, ch. 341, § 4; reenacted, Laws, 1991, ch. 508, § 11; reenacted without change, Laws, 1997, ch. 511, § 11; reenacted without change, Laws, 2002, ch. 558, § 11; reenacted without change, Laws, 2004, ch. 309, § 11; reenacted without change, Laws, 2008, ch. 303, § 11; reenacted without change, Laws, 2011, ch. 322, § 12, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Qualifications for certificate of registration as barber instructor, see §73-5-8.

Grounds for refusal to issue certificate, see §73-5-25.

Fees for issuance of certificates of registration, see §73-5-29.

Annual renewals of certificates of registration as barber or barber instructor, see §73-5-37.

§ 73-5-21. Persons having practiced barbering in another state or country or in military service [Repealed effective July 1, 2020].

Any person possessed of the following qualifications shall, upon payment of the required fee, receive a certificate of registration as a registered barber:

Is at least eighteen (18) years old;

Is of good moral character and temperate habits; and

Either has a license or certificate of registration as a practicing barber in another state or country that has substantially the same requirements for licensing or registration of barbers as are contained in this chapter, or can prove by sworn affidavits that he has lawfully practiced as a barber in another state or country for at least five (5) years immediately before making application in this state, or can show to the satisfaction of the board that he had held a rating in a branch of the military service for two (2) or more years that required him to perform the duties of a barber. The issuance of a certificate of registration by reciprocity to a military-trained applicant or military spouse shall be subject to the provisions of Section 73-50-1.

In addition to the above, the board may require the applicant to successfully demonstrate sufficient knowledge of the Barber Law of the State of Mississippi, as well as sufficient practical skill by requiring the applicant to take a practical examination approved by the board.

HISTORY: Codes, 1930, § 3857; 1942, § 8735; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1982, ch. 450, § 6; reenacted, Laws, 1983, ch. 489, § 11; reenacted, Laws, 1991, ch. 508, § 12; reenacted without change, Laws, 1997, ch. 511, § 12; reenacted and amended, Laws, 2002, ch. 558, § 12; reenacted without change, Laws, 2004, ch. 309, § 12; reenacted without change, Laws, 2008, ch. 303, § 12; reenacted and amended, Laws, 2011, ch. 322, § 13; Laws, 2013, ch. 350, § 8, eff from and after July 1, 2013.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted and amended the section by adding the last paragraph.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted and amended the section by making a minor stylistic change.

The 2013 amendment added the last sentence in (c).

Cross References —

Fee for issuing certificate of registration to practicing barber from another state, see §73-5-29.

What constitutes practice of barbering, see §73-5-39.

§ 73-5-23. Display of certificate [Repealed effective July 1, 2020].

  1. Every holder of a certificate of registration as a registered barber shall display it in a conspicuous place adjacent to or near his or her work chair, and in plain view of the patrons of the shop in which he or she is engaged at work.
  2. It shall be the responsibility of all owners, managers, or persons in charge of a barbershop at the time of an inspection to ensure that all licenses are displayed at all times.
  3. Any owner or barber found in violation of this section shall be fined not less than Twenty-five Dollars ($25.00) nor more than Five Hundred Dollars ($500.00).

HISTORY: Codes, 1930, § 3858; 1942, § 8736; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1982, ch. 450, § 7; reenacted, Laws, 1983, ch. 489, § 12; reenacted, Laws, 1991, ch. 508, § 13; reenacted without change, Laws, 1997, ch. 511, § 13; reenacted without change, Laws, 2004, ch. 309, § 13; reenacted without change, Laws, 2008, ch. 303, § 13; Laws, 2010, ch. 477, § 5; reenacted without change, Laws, 2011, ch. 322, § 14, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2010 amendment added (2) and (3).

The 2011 amendment reenacted the section without change.

Cross References —

Penalty for failure to display certificate as required by this section, see §73-5-43.

§ 73-5-25. Refusal and revocation of certificate [Repealed effective July 1, 2020].

  1. The Board of Barber Examiners may refuse to issue, or may suspend definitely or indefinitely, or revoke any certificate of registration or license for any one (1) or a combination of the following causes:
    1. Conviction of a felony shown by a certified copy of the judgment of court in which such conviction is had, unless upon a full and unconditional pardon of such convict, and upon satisfactory showing that such convict will in the future conduct himself in a law-abiding way.
    2. Gross malpractice or gross incompetency.
    3. Continued practice by a person knowingly having an infectious or contagious disease.
    4. Advertising, practicing or attempting to practice under a trade name or name other than one’s own.
    5. Habitual drunkenness or habitual addiction to the use of morphine, cocaine or habit-forming drug, or any other illegal controlled substances.
    6. Immoral or unprofessional conduct.
    7. Violation of regulations that may be prescribed as provided for in Sections 73-5-7 through 73-5-43.
  2. In addition to the causes specified in subsection (1) of this section, the board shall be authorized to suspend the certificate of registration of any person for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a certificate for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a certificate suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a certificate suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

HISTORY: Codes, 1930, § 3859; 1942, § 8737; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1983, ch. 489, § 13; reenacted, Laws, 1991, ch. 508, § 14; Laws, 1996, ch. 507, § 31; reenacted without change, Laws, 1997, ch. 511, § 14; reenacted without change, Laws, 2002, ch. 558, § 13; reenacted without change, Laws, 2004, ch. 309, § 14; Laws, 2005, ch. 423, § 3; reenacted without change, Laws, 2008, ch. 303, § 14; Laws, 2010, ch. 477, § 6; reenacted without change, Laws, 2011, ch. 322, § 15, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2005 amendment inserted “or license” following “certificate of registration” in the introductory language of (1).

The 2008 amendment reenacted the section without change.

The 2010 amendment added “or any other illegal controlled substances” to the end of (1)(e); and substituted “Sections 73-5-7 through 73-5-43” for “Section 73-5-7 and the commission of any of the offenses set forth in Section 73-5-43.

The 2011 amendment reenacted the section without change.

Cross References —

Suspension of state-issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists § 12.

1A Am. Jur. Pl & Pr Forms (Rev), Administrative Law, Form 341.2 (complaint, petition, or declaration – by license holder – against administrative agency – to enjoin further proceedings to suspend or revoke license – attempt to suspend or revoke license on grounds not listed in statute authorizing suspension or revocation of license).

5 Am. Jur. Pl & Pr Forms (Rev), Barbers and Cosmetologists, Forms 1 et seq. (licensing and regulation).

CJS.

53 C.J.S., Licenses §§ 82 et seq.

§ 73-5-27. Hearings [Repealed effective July 1, 2020].

The Board of Barber Examiners may neither refuse to suspend or revoke, nor revoke or suspend any certificate of registration as a registered barber or barber instructor, for any of the causes enumerated in this chapter, unless the holder of such certificate has been given at least twenty (20) days’ notice, in writing by registered mail, signed by the President and Secretary of the Board of Barber Examiners, setting forth the charges against such holder of such certificate and naming the time and place for a hearing upon the charge or charges, and a public hearing thereof by the Board of Barber Examiners. The person shall return a written response within ten (10) business days acknowledging receipt of the letter and confirmation of attendance at the board hearing no later than the close of business of the tenth day.

Upon the hearing of any such charge or charges the board may issue all subpoenas for all necessary witnesses for and against the accused, and require their attendance upon such hearing, may administer oaths, and may procure by process the production of all necessary books and papers, bearing or touching upon such charges against the accused.

HISTORY: Codes, 1930, § 3860; 1942, § 8738; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1982, ch. 450, § 8; reenacted, Laws, 1983, ch. 489, § 14; Laws, 1985, ch. 341, § 5; reenacted, Laws, 1991, ch. 508, § 15; reenacted without change, Laws, 1997, ch. 511, § 15; reenacted without change, Laws, 2002, ch. 558, § 14; reenacted without change, Laws, 2004, ch. 309, § 15; reenacted without change, Laws, 2008, ch. 303, § 15; Laws, 2010, ch. 477, § 7; reenacted without change, Laws, 2011, ch. 322, § 16, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2010 amendment added the last sentence in the first paragraph; and made a minor stylistic change.

The 2011 amendment reenacted the section without change.

Cross References —

Qualifications for certificate of registration as barber instructor, see §73-5-8.

Grounds for refusal to issue or suspension or revocation of certificate of registration or license, see §73-5-25.

RESEARCH REFERENCES

CJS.

53 C.J.S., Licenses §§ 82 et seq.

§ 73-5-29. Fees [Repealed effective July 1, 2020].

The fee for taking an examination as a registered barber shall be in the sum of not more than Fifty-five Dollars ($55.00), and the further sum of not more than Forty-five Dollars ($45.00) shall be required for the issuance of a certificate for the registered barber. The fee for taking an examination as a registered barber instructor shall be in the sum of not more than Fifty-five Dollars ($55.00), and the further sum of not more than Fifty Dollars ($50.00) shall be required for the issuance of a certificate of registration for the registered barber instructor. A fee of not more than One Hundred Fifty Dollars ($150.00) shall be required for the issuance of a certificate of registration to a practicing barber of another state as authorized by Section 73-5-21. Likewise, an annual renewal fee payable on the anniversary date of the issuance of each certificate of registration as a registered barber of not more than Forty-five Dollars ($45.00) shall be charged for the issuance of the renewal of the certificate; an annual renewal fee payable on the anniversary date of the issuance of each certificate of registration as a registered barber instructor of not more than Fifty Dollars ($50.00) shall be charged for the issuance of the renewal of the certificate; however, the renewal fee for a registered barber and barber instructor who is sixty-five (65) years of age or older shall be not more than Thirty Dollars ($30.00). No renewal fee shall be charged for registered barbers and barber instructors who are at least seventy-two (72) years of age. A fee of Ten Dollars ($10.00) for each year or any portion thereof in addition to payment of all unpaid renewal fees in arrears and the regular renewal fee shall be required for the restoration of expired certificates of registration issued pursuant to this chapter. Additionally, in order to restore any certificate of registration issued under this chapter that has been expired for a period of five (5) years or longer, the holder thereof must retake and pass the appropriate examination. A penalty of Ten Dollars ($10.00) in addition to payment of all unpaid renewal fees in arrears and the regular renewal fee shall be required for the restoration of certificates that have expired for a period of thirty (30) to sixty (60) days. A penalty of Twenty-five Dollars ($25.00) in addition to payment of all unpaid renewal fees in arrears and the regular renewal fee shall be required for the restoration of certificates that have been expired for a period greater than sixty (60) days.

The board may adopt and spread upon its minutes the rules and regulations for the issuance of a duplicate certificate for which a fee of not more than Ten Dollars ($10.00) may be charged. However, each duplicate certificate issued shall have stamped across its face the word “duplicate” and shall bear the number of the original certificate in lieu of which it is issued.

HISTORY: Codes, 1930, § 3861; 1942, § 8739; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1960, ch. 378, § 3; Laws, 1968, ch. 444, § 3; Laws, 1974, ch. 540, § 2; Laws, 1981, ch. 427, § 2; Laws, 1982, ch. 450, § 9; Laws, 1983, ch. 489, § 15; Laws, 1985, ch. 341, § 6; Laws, 1990, ch. 521, § 2; reenacted, Laws, 1991, ch. 508, § 16; Laws, 1995, ch. 359, § 4; reenacted and amended, Laws, 1997, ch. 511, § 16; Laws, 1998, ch. 322, § 2; reenacted and amended, Laws, 2002, ch. 558, § 15; reenacted without change, Laws, 2004, ch. 309, § 16; reenacted without change, Laws, 2008, ch. 303, § 16; Laws, 2010, ch. 477, § 8; reenacted without change, Laws, 2011, ch. 322, § 17, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted and rewrote the section.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2010 amendment substituted “Forty-five Dollars ($45.00)” for “Thirty-five Dollars ($35.00)” and “Fifty Dollars ($50.00)” for “Forty dollars ($40.00)” in the first, second and fourth sentences; inserted “and barber instructor” in the fourth sentence; and added the fifth sentence.

The 2011 amendment reenacted the section without change.

Cross References —

Qualifications for certificate of registration as barber instructor, see §73-5-8.

Additional fee for licensing of nonresident, see §73-5-31.

Fee for issuance of license for barbershops, see §73-5-33.

Fees for issuance and renewal of license for barber schools, see §73-5-35.

Barber’s eligibility to become licensed cosmetologist, see §73-7-13.

JUDICIAL DECISIONS

1. In general.

Registration fee, prescribed by law regulating practice of barbering, held not occupation tax required to be equal and in proportion to property taxes. Clark v. State, 169 Miss. 369, 152 So. 820, 1934 Miss. LEXIS 24 (Miss. 1934).

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

§ 73-5-31. Licensing of nonresidents; additional fee [Repealed effective July 1, 2020].

The board is hereby authorized to receive applications for and give examinations to persons who have not become legal residents of the State of Mississippi when such applicants comply with the laws and regulations of said board and are authorized to issue a certificate or license, as the case may be, as fully as if said applicant was a resident of the State of Mississippi. However, the board is authorized to charge a sum of not more than Twenty Dollars ($20.00) in addition to the other fees charged a resident applicant to cover the necessary expenses in making any investigation or obtaining information concerning said applicant. Upon the successful compliance with the laws of this state, such nonresident may be issued a certificate or license as a resident.

HISTORY: Codes, 1942, § 8739.3; Laws, 1960, ch. 378, § 4; Laws, 1981, ch. 427, § 3; reenacted, Laws, 1983, ch. 489, § 16; reenacted, Laws, 1991, ch. 508, § 17; reenacted without change, Laws, 1997, ch. 511, § 17; reenacted without change, Laws, 2002, ch. 558, § 16; reenacted without change, Laws, 2004, ch. 309, § 17; reenacted without change, Laws, 2008, ch. 303, § 17; reenacted without change, Laws, 2011, ch. 322, § 18, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

§ 73-5-33. Issuance of licenses for barber shops; fees; enforcement of licensing requirements; notification of board of locations of licensees [Repealed effective July 1, 2020].

  1. The board shall issue a license for each barbershop in operation in the State of Mississippi, and the board shall prescribe the rules and regulations and circulate the information necessary to obtain a license for the barbershop. A fee of not more than Fifteen Dollars ($15.00) for each chair manned by a registered barber located in the shop shall be required for the issuance of the license, and the same fee shall be required for a renewal of the license to the shop, the renewal due on the anniversary date of each year. A fee of not more than Twenty-five Dollars ($25.00) in addition to the regular renewal fee shall be required for restoration of any license that has expired for more than thirty (30) days. Any barbershop license having passed the second year anniversary date, in delinquency, shall be required to have a new shop inspection and shall hereafter pay an initial fee of not more than Forty-five Dollars ($45.00) in addition to all other fees required for restoration.
  2. All barbershop owners shall be responsible for employing only licensed barbers in the shop. Any barbershop owner found by the Board of Barber Examiners to employ an unlicensed barber or barbers shall be fined Five Hundred Dollars ($500.00) payable into the State General Fund, and shall be subject to closure until those violations are corrected. For any later violation, the fine shall be One Thousand Dollars ($1,000.00). Any barbershop operating within the State of Mississippi without a license after July 1, 1968, shall be subjected to closing by a proper order of a court of competent jurisdiction upon a proper showing that it has failed to comply with the terms of this chapter.
  3. The board may assess against any barbershop owner found to employ an unlicensed barber or barbers any of the following costs that are expended by the board in the conduct of a proceeding for violation of subsection (2): court filing fees, court costs and the cost of serving process. Any monies collected by the board under this subsection (3) shall be deposited into the special fund operating account of the board.
  4. All new barbershops or change of ownership or location of barbershops shall hereafter pay an initial fee of not more than Twenty-five Dollars ($25.00) in addition to all other fees required before beginning business. The fee shall not be transferable upon change of ownership or location.
  5. All licensees shall notify the State Board of Barber Examiners of the location of the barbershop at which they are employed.

HISTORY: Codes, 1942, § 8739.5; Laws, 1960, ch. 378, § 5; Laws, 1968, ch. 444, § 4; Laws, 1974, ch. 540, § 3; Laws, 1981, ch. 427, § 4; Laws, 1983, ch. 489, § 17; Laws, 1990, ch. 521, § 3; reenacted, Laws, 1991, ch. 508, § 18; Laws, 1995, ch. 359, § 5; reenacted and amended, Laws, 1997, ch. 511, § 18; reenacted and amended, Laws, 2002, ch. 558, § 17; reenacted without change, Laws, 2004, ch. 309, § 18; reenacted without change, Laws, 2008, ch. 303, § 18; Laws, 2010, ch. 477, § 9; reenacted without change, Laws, 2011, ch. 322, § 19, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted and amended the section by substituting “Fifteen Dollars ($15.00)” for “Ten Dollars ($10.00)” in (1) and “July 1, 1968” for “the effective date of this chapter” in (2); and by making minor stylistic changes throughout the section.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2010 amendment added the third sentence; and substituted “Five Hundred Dollars ($500.00)” for “One-Hundred Fifty Dollars ($150.00)” in the second sentence.

The 2011 amendment reenacted the section without change.

§ 73-5-35. Barber school licenses; fees [Repealed effective July 1, 2020].

All barber schools operated in this state shall pay an annual license fee of One Hundred Dollars ($100.00) and the same fee shall be required for renewal of the license to each such school on July 1 of each year. A fee of not more than Twenty-five Dollars ($25.00) shall be required for restoration of an expired license that has been expired for a period of at least thirty (30) days of the renewal date.

The license to operate those schools shall be issued by the Board of Barber Examiners after approval by the board. This license shall not be transferable for any cause and must be renewed annually.

All barber schools operated in this state shall be under the direct supervision of a registered barber instructor at all times.

HISTORY: Codes, 1942, § 8739.9; Laws, 1968, ch. 444, § 5; Laws, 1983, ch. 489, § 18; Laws, 1985, ch. 341, § 7; Laws, 1990, ch. 521, § 4; reenacted, Laws, 1991, ch. 508, § 19; reenacted without change, Laws, 1997, ch. 511, § 19; reenacted and amended, Laws, 2002, ch. 558, § 18; reenacted without change, Laws, 2004, ch. 309, § 19; reenacted without change, Laws, 2008, ch. 303, § 19; reenacted without change, Laws, 2011, ch. 322, § 20, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted and amended the section by substituting “One Hundred Dollars ($100.00)” for “Seventy-five Dollars ($75.00)” in the first paragraph; and by making minor stylistic changes throughout the section.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Qualifications for certificate of registration as barber instructor, see §73-5-8.

§ 73-5-37. Annual renewals [Repealed effective July 1, 2020].

Except as provided in Section 33-1-39, every registered barber and barber instructor who continues in active practice or service shall annually on or before the anniversary date of the issuance of his certificate of registration renew the certificate by paying the required fee and meeting all applicable requirements of the State Board of Health. Every certificate of registration which has not been renewed within thirty (30) days of its anniversary date shall expire. A registered barber or barber instructor whose certificate of registration has expired may have his certificate restored immediately upon payment of the renewal fee plus the required restoration fee.

HISTORY: Codes, 1942, § 8740; Laws, 1932, ch. 118; Laws, 1982, ch. 450, § 10; reenacted, Laws, 1983, ch. 489, § 19; Laws, 1985, ch. 341, § 8; reenacted, Laws, 1991, ch. 508, § 20; reenacted without change, Laws, 1997, ch. 511, § 20; reenacted without change, Laws, 2002, ch. 558, § 19; reenacted without change, Laws, 2004, ch. 309, § 20; Laws, 2007, ch. 309, § 6; reenacted without change, Laws, 2008, ch. 303, § 20; reenacted without change, Laws, 2011, ch. 322, § 21, eff from and after July 1, 2011.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in the last sentence. Deleted the “s” at the end of the word “instructors” so that “A registered barber or barber instructors whose certificate” reads as “A registered barber or barber instructor whose certificate.” The Joint Committee ratified the correction at its August 5, 2008 meeting.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2007 amendment added “Except as provided in Section 33-1-39,” at the beginning of the section.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Qualifications for certificate of registration as barber instructor, see §73-5-8.

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S., Licenses §§ 80, 82, 84-86, 88, 91.

§ 73-5-39. What constitutes practice of barbering [Repealed effective July 1, 2020].

Any one (1) or any combination of the following practices (when done upon the upper part of the human body for cosmetic purposes and not for the treatment of diseases, or physical or mental ailment, and when done for payment either directly or indirectly, or without payment, for the public generally) constitutes the practice of barbering:

Shaving, trimming the beard or cutting the hair by use of any electric instruments, razors or shears;

Giving facial or scalp massages or treatments with oils, creams, lotions or other preparations, either by hand or mechanical devices;

Singeing, shampooing, coloring or dyeing of the hair or beard, or any chemical services as pertains to hair perms, hair color or straightening;

Applying cosmetic preparations, antiseptics, powders, clays or lotions to scalp, face, neck or upper part of the body.

HISTORY: Codes, 1930, § 3849; 1942, § 8741; Laws, 1930, ch. 131; Laws, 1932, ch. 118; reenacted, Laws, 1983, ch. 489, § 20; reenacted, Laws, 1991, ch. 508, § 21; reenacted and amended, Laws, 1997, ch. 511, § 21; reenacted without change, Laws, 2002, ch. 558, § 20; reenacted without change, Laws, 2004, ch. 309, § 21; reenacted without change, Laws, 2008, ch. 303, § 21; Laws, 2010, ch. 477, § 10; reenacted without change, Laws, 2011, ch. 322, § 22, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2010 amendment inserted “by use of any electric instruments, razors or shears” in the second paragraph.

The 2011 amendment reenacted the section without change.

Cross References —

Cosmetologists generally, see §§73-7-1 et seq.

RESEARCH REFERENCES

ALR.

Liability of barber, beauty shop or specialist, barber college, or school of beauty culture, for injury to patron. 14 A.L.R.2d 860.

Applicability of res ipsa loquitur doctrine in action for injury to patron of beauty salon. 93 A.L.R.3d 897.

Liability of cosmetology school for injury to patron. 81 A.L.R.4th 444.

Products liability: hair straighteners and relaxants. 84 A.L.R.4th 1090.

Products liability: Recovery for injury or death resulting from intentional inhalation of product’s fumes or vapors to produce intoxicating or similar effect. 50 A.L.R.5th 275.

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 1, 2 et seq.

§ 73-5-41. Exemptions [Repealed effective July 1, 2020].

The following persons are exempt from the provisions of this chapter, wholly in the proper discharge of their professional duties, to wit:

Persons authorized by the law of Mississippi to practice medicine and surgery.

Commissioned medical or surgical officers of the United States Army, Navy or Marine hospital service.

Registered nurses.

Cosmetologists, and nothing in this chapter shall affect the jurisdiction of the State Board of Cosmetology.

The provision of this section shall not be construed to authorize any of the persons exempted to shave, trim the beard, or cut the hair of any person, or perform any other act that constitutes barbering, for cosmetic purposes, with the exception of persons licensed by the State Board of Cosmetology.

HISTORY: Codes, 1930, § 3851; 1942, § 8742; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1938, ch. 176; reenacted, Laws, 1983, ch. 489, § 21; reenacted, Laws, 1991, ch. 508, § 22; reenacted and amended, Laws, 1997, ch. 511, § 22; reenacted without change, Laws, 2002, ch. 558, § 21; reenacted without change, Laws, 2004, ch. 309, § 22; reenacted without change, Laws, 2008, ch. 303, § 22; reenacted without change, Laws, 2011, ch. 322, § 23, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

What constitutes practice of barbering, see §73-5-39.

Powers of the State Board of Cosmetology, see §73-7-7.

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of statute or ordinance regulating beauty shop or beauty culture schools. 56 A.L.R.2d 879.

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

§ 73-5-43. Certain acts prohibited [Repealed effective July 1, 2020].

Each of the following constitutes a misdemeanor, punishable in any court of competent jurisdiction, upon conviction thereof, by a fine of not less than Twenty-five Dollars ($25.00) nor more than One Thousand Dollars ($1,000.00):

The violation of any of the provisions of Sections 73-5-9, 73-5-33 and 73-5-23; or

Any acts or threats of violence against any members or employees of the board; or

Obtaining or attempting to obtain a certificate of registration for money other than the required fee, or any other thing of value, or by fraudulent misrepresentation; or

Practicing or attempting to practice by fraudulent misrepresentations; or

The willful failure to display a certificate of registration as required by Section 73-5-23; or

The use of any room or place for barbering which is also used for residential or business purpose (except for the sale of hair tonics, lotions, creams, cutlery, toilet articles, cigars, tobacco and such commodities as are used or sold in a barbershop) unless a substantial partition of ceiling height separates the portion used for the residence or business purpose from that in which such practice of barbering is carried on.

HISTORY: Codes, 1930, § 3862; 1942, § 8744; Laws, 1930, ch. 131; Laws, 1932, ch. 118; Laws, 1983, ch. 489, § 22; reenacted, Laws, 1991, ch. 508, § 23; reenacted without change, Laws, 1997, ch. 511, § 23; reenacted without change, Laws, 2002, ch. 558, § 22; reenacted without change, Laws, 2004, ch. 309, § 23; reenacted without change, Laws, 2008, ch. 303, § 23; Laws, 2010, ch. 477, § 11; reenacted without change, Laws, 2011, ch. 322, § 24, eff from and after July 1, 2011.

Editor’s Notes —

See §73-5-45 for the date for repeal of this section.

Amendment Notes —

The 2002 amendment reenacted the section without change.

The 2004 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2010 amendment substituted “One Thousand Dollars ($1,000.00)” for “Two Hundred Dollars ($200.00), to wit” in the first paragraph; added references to Sections 73-5-33 and 73-5-23 in the second paragraph; and added the third paragraph.

The 2011 amendment reenacted the section without change.

Cross References —

Refusal and/or revocation of a certificate for offenses set forth in this section, see §73-5-25.

Injunctions to restrain unlawful practice of profession, see §73-51-1.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

ALR.

Validity of statute establishing or authorizing minimum price schedules for barbers. 54 A.L.R.3d 916.

§ 73-5-45. Repeal of Sections 73-5-1 through 73-5-43.

Sections 73-5-1 through 73-5-43, Mississippi Code of 1972, which create the State Board of Barber Examiners and prescribe its duties and powers, shall stand repealed as of July 1, 2020.

HISTORY: Laws, 1979, ch. 301, § 21; Laws, 1979, ch. 357, § 7; Laws, 1983, ch. 489, § 23; Laws, 1991, ch. 508 § 24; Laws, 1997, ch. 511, § 24; reenacted and amended, Laws, 2002, ch. 558, § 23; Laws, 2004, ch. 309, § 24; Laws, 2008, ch. 303, § 24; Laws, 2011, ch. 322, § 1; Laws, 2016, ch. 308, § 1, eff from and after July 1, 2016.

Amendment Notes —

The 2002 amendment extended the date of the repealer for Sections 73-5-1 through 73-5-43 from “July 1, 2002” until “July 1, 2004.”

The 2004 amendment extended the date of the repealer for Sections 73-5-1 through 73-5-43 from “July 1, 2004” until “July 1, 2008.”

The 2008 amendment extended the date of the repealer for §§73-5-1 through73-5-43 by substituting “July 1, 2011” for “July 1, 2008.”

The 2011 amendment extended the date of the repealer provision from “July 1, 2011” to “July 1, 2016.”

The 2016 amemdment extended the date of the repealer for §§73-5-1 through73-5-43 by substituting “July 1, 2020” for “July 1, 2016.”

Chapter 6. Chiropractors

§ 73-6-1. Practice of chiropractic; definitions; qualifications; limitations on practice; standard of care; animal chiropractic treatment [Repealed effective July 1, 2021].

  1. The practice of chiropractic involves the analysis of any interference with normal nerve transmission and expression, and the procedure preparatory to and complementary to the correction thereof, by adjustment and/or manipulation of the articulations of the vertebral column and for the restoration and maintenance of health without the use of drugs or surgery.
  2. The chiropractic adjustment and/or manipulation of the articulations of the human body may include manual adjustments and/or manipulations and adjustments and/or manipulations by means of electrical and/or mechanical manual devices. Chiropractors licensed under this chapter may also use in conjunction with adjustments and/or manipulations of the spinal structures electrical therapeutic modalities which induce heat or electrical current beneath the skin, including therapeutic ultrasound, galvanism, diathermy and electromuscular stimulation and other procedures taught by a chiropractic college approved by the Council on Chiropractic Education, its successor or an equivalent accrediting agency.
  3. Chiropractors licensed under this chapter may utilize those electric therapeutic modalities described in subsection (2) of this section only after the chiropractor has completed a course of study containing a minimum of one hundred twenty (120) hours of instruction in the proper utilization of those procedures in accordance with the guidelines set forth by the Council on Chiropractic Education, its successor or an equivalent accrediting agency, and is qualified and so certified in that proper utilization.
  4. Chiropractors shall not prescribe or administer medicine to patients, perform surgery, practice obstetrics or osteopathy. Chiropractors shall be authorized to recommend, dispense or sell vitamins or food supplements.
  5. Chiropractors shall not use venipuncture, capillary puncture, acupuncture or any other technique which is invasive of the human body either by penetrating the skin or through any of the orifices of the body or through the use of colonics.
  6. A person professing to practice chiropractic for compensation must bring to the exercise of that person’s profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had. If a chiropractor performs upon a patient any act authorized to be performed under this chapter but which act also constitutes a standard procedure of the practice of medicine including, but not limited to, the use of modalities such as those described in subsection (2) of this section and x-rays, under similar circumstances, the chiropractor shall be held to the same standard of care as would licensed doctors of medicine who are qualified to and who actually perform those acts under similar conditions and like circumstances.
  7. Chiropractors licensed under this chapter are authorized to refer patients to licensed physical therapists for treatment.
  8. Doctors of chiropractic medicine may respond on a referral basis and under the direct and immediate supervision of a Mississippi licensed veterinarian to calls for animals requiring their professional services provided the chiropractor has a current license from the State Board of Chiropractic Examiners and the chiropractor has completed a Mississippi Board of Veterinary Medicine approved animal chiropractic course.

HISTORY: Laws, 1973, ch. 501, § 1; reenacted, Laws, 1983, ch. 448, § 1; Laws, 1989, ch. 387, § 1; reenacted, Laws, 1991, ch. 350, § 1; reenacted and amended, Laws, 1997, ch. 428, § 1; Laws, 1997, ch. 581, § 3; reenacted without change, Laws, 2001, ch. 409, § 1; Laws, 2003, ch. 400, § 1; reenacted without change, Laws, 2006, ch. 515, § 1; reenacted and amended, Laws, 2011, ch. 323, § 1, eff from and after June 30, 2011.

Joint Legislative Committee Note —

Section 1 of ch. 428, Laws of 1997, reenacted and amended this section, effective June 30, 1997. Section 3 of ch. 581, Laws of 1997, effective July 1, 1997, also amended this section. As set out above, this section reflects the language of Section 3 of ch. 581, Laws of 1997, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2003 amendment added (8), which authorizes chiropractors to provide animal chiropractic treatment under certain conditions.

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted and amended the section in (2), by substituting “electrical and/or mechanical manual devices” for “electrical and mechanical devices” in the first sentence, and adding the language beginning “and other procedures taught by a chiropractric college approved by the “Council on Chiropractic Education” at the end of the last sentence; and substituted “or an equivalent accrediting agency” for “or its successor” in end of (3).

Cross References —

Evaluation and review of professional health services providers, see §§41-63-1 et seq.

Mississippi Veterinary practice law generally, see §§73-39-51 et seq.

Insured’s right to reimbursement for services within lawful scope of practice of licensed chiropractor, see §83-41-215.

JUDICIAL DECISIONS

1. In general.

The field of chiropractory is one within which expert opinions may generally be given. Mississippi Farm Bureau Mut. Ins. Co. v. Garrett, 487 So. 2d 1320, 1986 Miss. LEXIS 2448 (Miss. 1986).

Use of microwave diathermy, electrical muscle stimulators and ultra sound equipment by chiropractor constituted practice of medicine without a license; nor was use of such modalities protected under chiropractic licensing statute where it made no express provision therefor and where it seemed likely that the legislature, had it intended to allow the use of such hazardous modalities by chiropractors, would have provided for substantially the same safeguards that underlie the use of X-ray machines by chiropractors; the recommending or prescribing of vitamins by a chiropractor also constituted the unlicensed practice of medicine where, by definition, the use of drugs was prohibited to chiropractors and where vitamins, which are a medicine, fell within the statutory definition of the term “drugs.” Norville v. Mississippi State Medical Asso., 364 So. 2d 1084, 1978 Miss. LEXIS 2232 (Miss. 1978).

RESEARCH REFERENCES

ALR.

Limitation on right of chiropractors and osteopathic physicians to participate in public medical welfare programs. 8 A.L.R.4th 1056.

Scope of practice of chiropractic. 16 A.L.R.4th 58.

Liability of chiropractors and other drugless practitioners for medical malpractice. 77 A.L.R.4th 273.

§ 73-6-3. State board of chiropractic examiners; creation; members; terms; qualifications; removal [Repealed effective July 1, 2021].

There is hereby created a State Board of Chiropractic Examiners. This board shall consist of six (6) members; one (1) of whom shall be the executive officer of the State Board of Health, or his designee, and one (1) from each congressional district as presently constituted, to be appointed by the Governor with the advice and consent of the Senate. Each member except the executive officer of the State Board of Health shall be a qualified elector of the State of Mississippi having been continuously engaged in the practice of chiropractic in Mississippi for at least five (5) years prior to appointment. No member shall be a stockholder in or member of the faculty or board of trustees of any school of chiropractic. Each member appointed to the board shall serve for five (5) years and until his successor is appointed and qualified; except the terms of the initial members appointed by the Governor shall expire one (1) each for five (5) years or until their successors are appointed and qualified. The members of the board as constituted on January 1, 2011, whose terms have not expired shall serve the balance of their terms, after which time the membership of the board shall be appointed as follows: There shall be appointed one (1) member of the board from each of the four (4) Mississippi congressional districts as they currently exist, and one (1) from the state at large, and the Governor shall make appointments from the congressional district having the smallest number of board members until the membership includes one (1) member from each district as required. Vacancies on the board, except for the Executive Officer of the State Board of Health, or his designee, shall be filled by appointment of the Governor only for unexpired terms. Any member who shall not attend two (2) consecutive meetings of the board shall be subject to removal by the Governor. The chairman of the board shall notify the Governor in writing when any such member has failed to attend two (2) consecutive regular meetings.

HISTORY: Laws, 1973, ch. 501, § 2; reenacted and amended, Laws, 1983, ch. 448, § 2; Laws, 1985, ch. 473, § 1; reenacted, Laws, 1991, ch. 350, § 2; reenacted without change, Laws, 1997, ch. 428, § 2; reenacted without change, Laws, 2001, ch. 409, § 2; Laws, 2003, ch. 346, § 1; reenacted without change, Laws, 2006, ch. 515, § 2; reenacted and amended, Laws, 2011, ch. 323, § 2, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2003 amendment inserted the sixth sentence beginning “The members of the board as constituted on January 1, 2003”; and made minor stylistic changes.

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted and amended the section by substituting “January 1, 2011, whose terms have not expired” for “January 1, 2003, whose terms have not expired” in the sixth sentence of the paragraph.

Cross References —

State Board of Health generally, see §41-3-1 et seq.

JUDICIAL DECISIONS

1. In general.

The statutory requirement that no member of the board of chiropractic examiners can be a stockholder in or member of the faculty or board of trustees of any school of chiropractic was not violated by a member who was listed in the bulletin of a chiropractic college as a member of its board of trustees and a visiting lecturer where, inter alia, he declined the invitation to serve, he never attended any meetings of the board and did not participate as a member of the faculty or deliver any lectures to classes; the introduction in evidence of an opinion by the attorney general which was rendered after the filing of this action, although contrary to statute, was harmless error. State ex rel. Smith v. Morgan, 361 So. 2d 338, 1978 Miss. LEXIS 2359 (Miss. 1978).

§ 73-6-5. Officers of board; meetings; enactment of rules and regulations; authority of board to establish education requirements; annual fee for certification of certain chiropractic assistants; provision of certain services by chiropractic assistants authorized under certain circumstances [Repealed effective July 1, 2021].

  1. The State Board of Chiropractic Examiners shall select by election from its membership a chairman and vice chairman who shall hold their respective offices for a period of one (1) year. A majority of the members of the board may select an executive secretary; and may hire such other employees, including an attorney, needed to implement the provisions of this chapter. The board shall hold regular meetings for examination beginning on the second week of January and July of each year; and may hold additional meetings at such times and places as it deems necessary, but not to exceed twelve (12) times during its initial calendar year and at least four (4) times during any subsequent calendar year but may hold meetings at such times and places as it deems necessary. The July meeting shall be held in the Jackson Metropolitan area. A majority of the board shall constitute a quorum, and the concurrence of a majority of the members of the board shall be required to grant or revoke a license. The board shall make such rules and regulations as is necessary to carry out the provisions of this chapter; however, the board shall not adopt any rule or regulation or impose any requirement regarding the licensing of chiropractors that conflicts with the prohibitions in Section 73-49-3. A copy of these rules and regulations as well as all changes thereto shall, upon passage, be sent to all practitioners licensed under this chapter.
  2. The State Board of Chiropractic Examiners shall be authorized to certify to the State Department of Health those chiropractic assistants who are exempt from registration under Section 41-58-3(7)(d) as having completed continuing education requirements and charge a fee of not more than Fifty Dollars ($50.00) annually to each individual whom the board certifies, as required under Section 41-58-5(4)(f). The board shall be authorized to establish educational qualifications and continuing education requirements for chiropractic assistants that participate in direct patient care. This section does not prohibit a chiropractic assistant from rendering ancillary services or procedures used in chiropractic practice, other than the adjustments or manipulative techniques, if those services are rendered under the supervision and control of a licensed chiropractor as long as the chiropractic assistant has successfully completed a training program recognized by the board. “Supervision and control” may not be construed as requiring the personal presence of the supervising and controlling chiropractor at the place where those services are rendered, unless physical presence is necessary to provide patient care of the same quality as provided by the chiropractor. This section does not prohibit a chiropractor from delegating to a chiropractic assistant certain activities relating to patient care and treatment when those activities are under supervision or direct order of the chiropractor. The chiropractor delegating those activities to an employee, to a program graduate, or to a participant in an approved training program is legally liable for those activities performed by such a chiropractic assistant and that chiropractic assistant is considered to be the chiropractor’s agent. The board shall charge a fee not to exceed Fifty Dollars ($50.00) annually for this certification and annual renewal. Likewise, a late fee of One Hundred Dollars ($100.00) shall be charged on all chiropractic assistants and chiropractic radiological technologists not renewing on or before July 1 of each year. Chiropractic radiological technologists are not exempt from these continuing education requirements.

HISTORY: Laws, 1973, ch. 501, § 3; reenacted, Laws, 1983, ch. 448, § 3; reenacted, Laws, 1991, ch. 350, § 3; reenacted and amended, Laws, 1997, ch. 428, § 3; Laws, 2000, ch. 367, § 2; reenacted without change, Laws, 2001, ch. 409, § 3; Laws, 2001, ch. 549, § 21; reenacted without change, Laws, 2006, ch. 515, § 3; reenacted and amended, Laws, 2011, ch. 323, § 3; Laws, 2015, ch. 461, § 2, eff from and after July 1, 2015.

Joint Legislative Committee Note —

Section 3 of ch. 409, Laws of 2001, effective from and after July 1, 2001, amended this section. Section 21 of ch. 549, Laws of 2001, effective from and after July 2, 2001, also amended this section. As set out above, this section reflects the language of Section 21 of ch. 549, Laws of 2001, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in the next-to-last sentence of (2). The words “assistance” and “technologist” were changed to “assistants” and “technologists,” respectively, so that “...shall be charged on all chiropractic assistance and chiropractic radiological technologist...” reads as “...shall be charged on all chiropractic assistants and chiropractic radiological technologists...”. The Joint Committee ratified the correction at its August 5, 2008 meeting.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted and amended the section by rewriting the third and fourth sentences of (1) and adding the third through sixth sentences in (2).

The 2015 amendment, in (1) added, “however, the board shall not adopt any rule or regulation or impose any requirement regarding the licensing of chiropractors that conflicts with the prohibitions in Section 73-49-3” at the end of the next-to-last sentence; and substituted “under this chapter” for “hereunder” at the end of the last sentence.

Cross References —

Board to establish practice requirements to protect public from transmission of Hepatitis B and HIV from health care providers, see §41-34-3.

Requirement that Board establish procedures and requirements for licensees and applicants for license to disclose his or her status as carrier of Hepatitis B or HIV, see §41-34-5.

§ 73-6-7. Bond of executive secretary; state board of chiropractic examiners fund [Repealed effective July 1, 2021].

Before entering upon the discharge of the duties of his office, the Executive Secretary of the State Board of Chiropractic Examiners shall present a bond, approved by the board, to the state in the sum of Ten Thousand Dollars ($10,000.00), conditioned upon the faithful discharge of the duties of his office. The premium for such bond shall be paid from the funds paid into the State Treasury by the secretary of the board. Such bond, with the approval of the board and oath of office endorsed thereon, shall be deposited with the Secretary of State.

Each month, monies received by the secretary of the board shall be paid by him into the State Treasury and deposited in a fund to be known as the “State Board of Chiropractic Examiners Fund” for the use of the board in carrying out the provisions of this chapter. The board shall receive no appropriation from any state funds for its support, except from the special fund deposited into the State Treasury by the board.

HISTORY: Laws, 1973, ch. 501, § 4; reenacted, Laws, 1983, ch. 448, § 4; reenacted, Laws, 1991, ch. 350, § 4; reenacted without change, Laws, 1997, ch. 428, § 4; reenacted without change, Laws, 2001, ch. 409, § 4; reenacted without change, Laws, 2006, ch. 515, § 4; reenacted without change, Laws, 2011, ch. 323, § 4, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2001 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

§ 73-6-9. Compensation and expenses of board members and executive secretary [Repealed effective July 1, 2021].

Each member of the State Board of Chiropractic Examiners shall receive the per diem authorized under Section 25-3-69, for each day actually discharging his official duties, and shall receive reimbursement for mileage and necessary expense incurred, as provided in Section 25-3-41. The executive secretary shall receive an annual salary to be fixed by the board in addition to reimbursements for necessary expenses incurred in the discharge of his official duties.

The expenses of the board in carrying out the provisions of this chapter shall be paid upon requisitions signed by the chairman and secretary of the board and warrants signed by the State Auditor from the fund in the State Treasury for the use of the board. Said expenses shall not exceed the amount paid into the State Treasury under the provisions of this chapter.

HISTORY: Laws, 1973, ch. 501, § 5; reenacted and amended, Laws, 1983, ch. 448, § 5; reenacted, Laws, 1991, ch. 350, § 5; reenacted without change, Laws, 1997, ch. 428, § 5; reenacted without change, Laws, 2001, ch. 409, § 5; reenacted without change, Laws, 2006, ch. 515, § 5; reenacted without change, Laws, 2011, ch. 323, § 5, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section §27-104-6, provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Amendment Notes —

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

§ 73-6-11. Seal; records; reports [Repealed effective July 1, 2021].

The State Board of Chiropractic Examiners shall adopt an official seal and shall keep a record of its proceedings, persons licensed as chiropractors, and a record of licenses which have been revoked or suspended. The board shall keep on file all examination papers for a period of at least ninety (90) days after each examination. A transcript of an entry in such records, certified by the secretary under the seal of the board, shall be evidence of the facts therein stated. The board shall annually, on or before January 1, make a report to the Governor and Legislature of all its official acts during the preceding year, its receipts and disbursements, and a full and complete report of the conditions of chiropractic in this state.

HISTORY: Laws, 1973, ch. 501, § 6; reenacted, Laws, 1983, ch. 448, § 6; reenacted, Laws, 1991, ch. 350, § 6; reenacted without change, Laws, 1997, ch. 428, § 6; reenacted without change, Laws, 2001, ch. 409, § 6; reenacted without change, Laws, 2006, ch. 515, § 6; reenacted without change, Laws, 2011, ch. 323, § 6, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

§ 73-6-13. Qualifications of applicants for license; examination [Repealed effective July 1, 2021].

  1. Any adult of good moral character who has (a) graduated from a school or college of chiropractic recognized by the State Board of Chiropractic Examiners, preceded by the successful completion of at least two (2) academic years at an accredited institution of higher learning, or accredited junior college, and (b) successfully completed parts 1, 2, 3 and 4 and the physical modality section of the examination prepared by the National Board of Chiropractic Examiners, shall be entitled to take the examination for a license to practice chiropractic in Mississippi. The State Board of Chiropractic Examiners shall keep on file a list of schools or colleges of chiropractic which are so recognized. No chiropractic school shall be approved unless it is recognized and approved by the Council on Chiropractic Education, its successor or an equivalent accrediting agency, offers an accredited course of study of not less than four (4) academic years of at least nine (9) months in length, and requires its graduates to receive not less than forty (40) clock hours of instruction in the operation of x-ray machinery and not less than forty (40) clock hours of instruction in x-ray interpretation and diagnosis.
  2. Except as otherwise provided in this section, the State Board of Health shall prescribe rules and regulations for the operation and use of x-ray machines.
  3. The examination to practice chiropractic used by the board shall consist of testing on the statutes and the rules and regulations regarding the practice of chiropractic in the State of Mississippi.
  4. Reciprocity privileges for a chiropractor from another state shall be granted at the board’s option on an individual basis and by a majority vote of the State Board of Chiropractic Examiners to an adult of good moral character who (a) is currently an active competent practitioner for at least eight (8) years and holds an active chiropractic license in another state with no disciplinary proceeding or unresolved complaint pending anywhere at the time a license is to be issued by this state, (b) demonstrates having obtained licensure as a chiropractor in another state under the same education requirements which were equivalent to the education requirements in this state to obtain a chiropractic license at the time the applicant obtained the license in the other state, (c) satisfactorily passes the examination administered by the State Board of Chiropractic Examiners, and (d) meets the requirements of Section 73-6-1(3) pertaining to therapeutic modalities. The issuance of a license by reciprocity to a military-trained applicant or military spouse shall be subject to the provisions of Section 73-50-1.

HISTORY: Laws, 1973, ch. 501, § 7; Laws, 1978, ch. 468, §§ 1, 2; reenacted and amended, Laws, 1983, ch. 448, § 7; Laws, 1991, ch. 350, § 7; reenacted and amended, Laws, 1997, ch. 428, § 7; Laws, 2002, ch. 439, § 1; reenacted and amended, Laws, 2006, ch. 515, § 7; reenacted and amended, Laws, 2011, ch. 323, § 7; Laws, 2013, ch. 350, § 9, eff from and after July 1, 2013.

Editor’s Notes —

Laws of 1978, ch. 468, § 2, provides as follows:

“SECTION 2. The provisions of this act shall not apply to any chiropractor licensed prior to July 1, 1978.”

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2002 amendment deleted “citizen of the United States” following “adult” in the first sentences of (1) and (4); and added the second paragraphs of (1) and (4).

The 2006 amendment reenacted and amended the section by inserting “or its successor” following “Council of Chiropractic Education” near the beginning of the last sentence in the first paragraph of (1).

The 2011 amendment reenacted and amended the section by substituting “or an equivalent accrediting agency” for “or its successor” in the second sentence of (1); and deleted former second paragraph of (1) which read as follows: “Any person who applies to take the examination for a chiropractic license who is not a citizen of the United States must include with the application to the board a signed affidavit stating that the person intends to meet the qualifications and apply for United States citizenship at the earliest date that he or she becomes eligible for citizenship”; and deleted “and the Spec examination prepared by the National Board of Chiropractic Examiners” preceding “and (d) meets the requirements of” near the end of (4), deleted former second paragraph of (4) which read: “Any person who applies for a chiropractic license by reciprocity who is not a citizen of the United States must include with the application to the board a signed affidavit stating that the person intends to meet the qualifications and apply for United States citizenship at the earliest date that he or she becomes eligible for citizenship” and made minor stylistic changes.

The 2013 amendment added the last sentence of (4).

Cross References —

Board to establish practice requirements to protect public from transmission of Hepatitis B and HIV from health care providers, see §41-34-3.

Requirement that Board establish procedures and requirements for licensees and applicants for license to disclose his or her status as carrier of Hepatitis B or HIV, see §41-34-5.

JUDICIAL DECISIONS

1. In general.

The field of chiropractory is one within which expert opinions may generally be given. Mississippi Farm Bureau Mut. Ins. Co. v. Garrett, 487 So. 2d 1320, 1986 Miss. LEXIS 2448 (Miss. 1986).

Use of microwave diathermy, electrical muscle stimulators and ultra sound equipment by chiropractor constituted practice of medicine without a license; nor was use of such modalities protected under chiropractic licensing statute where it made no express provision therefor and where it seemed likely that the legislature, had it intended to allow the use of such hazardous modalities by chiropractors, would have provided for substantially the same safeguards that underlie the use of X-ray machines by chiropractors; the recommending or prescribing of vitamins by a chiropractor also constituted the unlicensed practice of medicine where, by definition, the use of drugs was prohibited to chiropractors and where vitamins, which are a medicine, fell within the statutory definition of the term “drugs.” Norville v. Mississippi State Medical Asso., 364 So. 2d 1084, 1978 Miss. LEXIS 2232 (Miss. 1978).

RESEARCH REFERENCES

Am. Jur.

45 Am. Jur. Proof of Facts 2d 137, Qualification of Chiropractor as Expert Witness.

§ 73-6-14. Board authorized to establish preceptorship and extern program for graduating chiropractic students; issuance of temporary licenses for nonresident chiropractors traveling with entities; issuance of emergency licenses for nonresident chiropractors to practice in place of resident licensee [Repealed effective July 1, 2021].

  1. The State Board of Chiropractic Examiners is hereby authorized to establish a preceptorship and extern program whereby chiropractic students enrolled in their last year at a board-approved chiropractic college accredited by the Council on Chiropractic Education, its successor or an equivalent accrediting agency, and recent chiropractic graduates of such schools may be issued a limited license to practice chiropractic in the State of Mississippi under the direct on-premises supervision of a sponsoring licensed chiropractor, and in the case of chiropractic students, also under the general supervision of the student’s school. The State Board of Chiropractic Examiners shall prohibit the use of more than one (1) such limited license student or graduate to one (1) sponsor licensed to practice chiropractic. The State Board of Chiropractic Examiners is empowered to establish rules and regulations for the implementation of this subsection (1), including, but not limited to, providing academic, professional and character requirements for eligible participants, defining the permitted scope of practice of the limited licensee, and prescribing fees for participation.
  2. The State Board of Chiropractic Examiners is hereby authorized to establish a Travel to Treat temporary license whereby nonresident chiropractors traveling with nonresident entities, including, but not limited to sports teams, will be able to practice chiropractic on members of their entities while in the State of Mississippi. The board is empowered to establish rules and regulations for the implementation of this subsection (2), including, but not limited to, providing professional requirements for eligible participants, defining the permitted scope of practice of the traveling chiropractors, and prescribing fees for participation.
  3. The State Board of Chiropractic Examiners is hereby authorized to establish an emergency license to nonresident chiropractors to practice in the place of a chiropractor licensed in the State of Mississippi. Such emergency license shall remain in force for a period not to exceed ninety (90) days, unless extended for an additional period of ninety (90) days by the board or until the licensed resident chiropractor is able to resume his practice. The board is empowered to establish rules and regulations for the implementation of this subsection (3), including, but not limited to, providing professional requirements for eligible participants, defining the scope of practice for emergency licensees, and prescribing fees for participation.

HISTORY: Laws, 2003, ch. 344, § 1; Laws, 2011, ch. 323, § 8, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Section 8 of Chapter 323, Laws of 2011, enacted a new Section 73-6-14. The section already exists, however, and the direction to codify Section 8 of Chapter 323 was an error. At the direction of the Co-Counsel for the Joint Legislative Committee on Compilation, Revision and Publication of Legislation, Section 8 of Chapter 323 is being treated as an amendment to the existing Section 73-6-14 as consistent with legislative intent.

Amendment Notes —

The 2011 amendment inserted “its successor or an equivalent accrediting agency” in the first sentence of (1).

§ 73-6-15. Application; reexamination; issuance of license [Repealed effective July 1, 2021].

Every applicant shall file with the secretary of the board an application, verified by oath, setting forth the facts which entitle the applicant to examination under the provisions of this chapter. The State Board of Chiropractic Examiners shall hold at least two (2) examinations each year. In case of failing to pass such examination, the applicant, after the expiration of six (6) months and within two (2) years, shall have the privilege of taking a second examination by the board with the payment of an additional fee equal to that charged the State Board of Chiropractors by the National Board of Chiropractic Examiners. An applicant who fails the examination twice shall not be permitted to retake the examination until completion of further course of study to be outlined by the board and payment of the fee for further examination. Every applicant who passed the examination and otherwise complies with the provisions of this chapter shall receive from the board, under its seal, a certificate of licensure which entitles him to practice chiropractic in this state; however, such certificate does not in any way qualify a chiropractor to make application to practice on the medical staff of any hospital licensed by the State Department of Health. Nothing in this chapter may prevent a chiropractor from making application to any hospital for chiropractic staff privileges or as an allied health provider as outlined under the Minimum Standards for the Operation of Hospitals. Such certificate shall be duly registered in a record book which shall be properly kept by the secretary of the board and which shall be open to public inspection. A duly certified copy of said record shall be competent evidence in all courts of this state to establish licensure.

Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64, Mississippi Code of 1972.

HISTORY: Laws, 1973, ch. 501, § 8; reenacted and amended, Laws, 1983, ch. 448, § 8; Laws, 1988, ch. 409; Laws, 1991, ch. 350, § 8; reenacted and amended, Laws, 1997, ch. 428, § 8; Laws, 1997, ch. 588, § 28; reenacted without change, Laws, 2001, ch. 409, § 8; reenacted without change, Laws, 2006, ch. 515, § 8; reenacted without change, Laws, 2011, ch. 323, § 9, eff from and after June 30, 2011.

Joint Legislative Committee Note —

Section 8 of ch. 428, Laws of 1997, reenacted and amended this section, effective June 30, 1997. Section 28 of ch. 588, Laws of 1997, effective July 1, 1997, also amended this section. As set out above, this section reflects the language of Section 28 of ch. 588, Law of 1997, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision, and Publication corrected a typographical error in Section 28 of ch. 588, Laws of 1997. In the sixth sentence of the first paragraph, the word “provided” was changed to “provider.” The Joint Committee ratified the correction at the May 8, 1997 meeting of the Committee.

Editor’s Notes —

Laws of 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Evaluation and review of professional health services providers, see §§41-63-1 et seq.

Fees for application, examination and issuance of certificates, see §73-6-17.

Grounds for refusal to issue or cancellation, revocation or suspension of license, see §73-6-19.

RESEARCH REFERENCES

Am. Jur.

45 Am. Jur. Proof of Facts 2d 137, Qualification of Chiropractor as Expert Witness.

§ 73-6-17. Fees for application, examination and issuance of certificates; biennial registration requirements [Repealed effective July 1, 2021].

The State Board of Chiropractic Examiners shall charge the following fees for application, examination and issuance of certificates: application, One Hundred Dollars ($100.00); examination and issuance of certificate, Two Hundred Dollars ($200.00) for all applicants; provided, however, that resident and nonresident applicants shall have first successfully completed parts 1, 2, 3 and 4 and the physical modality section of the examination prepared by the National Board of Chiropractic Examiners.

Except as provided in Section 33-1-39, every registered chiropractor in order to continue the practice of chiropractic shall pay annually to the secretary of the board a registration renewal fee of not more than Three Hundred Dollars ($300.00) and, in addition to such renewal fee, shall be required to file with the secretary of the board a certificate, certified by a state chiropractic board and state chiropractic association, verifying his attendance at a course of study approved by the board consisting of not less than twelve (12) hours of instruction in the latest developments in the practice of chiropractic of which at least three (3) hours shall be instruction in the subject of risk management. Provided, that any chiropractor who has reached the age of seventy-five (75) years and is not participating in an active practice shall not be required to pay said renewal fee or submit the twelve (12) hours of continuing education. Any chiropractor who has received a certificate of licensure in this state under the provisions of Section 73-6-13(4) shall be in good standing in the state of his original licensure in order to renew his certificate in this state, and the board shall refuse to renew the certificate of any such chiropractor whose license has been suspended or revoked for cause in the state of his original licensure. In case of failure to pay the renewal fee, the board may revoke such certificate after giving sixty (60) days’ notice to the holder who, within such period, may renew such certificate upon payment of the delinquent fee with a special processing charge of not more than Three Hundred Dollars ($300.00). Lack of participation in active practice for a period of less than two (2) years, except when a doctor is in active military duty, shall not deprive the holder of the right to renew such certificate, without examination, upon the payment of all lapsed fees and proof of required continuing education hours.

HISTORY: Laws, 1973, ch. 501, § 9; Laws, 1976, ch. 340; reenacted and amended, Laws, 1983, ch. 448, § 9; Laws, 1990, ch. 505, § 1; Laws, 1991, ch. 350, § 9; reenacted and amended, Laws, 1997, ch. 428, § 9; Laws, 2000, ch. 367, § 1; reenacted without change, Laws, 2001, ch. 409, § 9; reenacted without change, Laws, 2006, ch. 515, § 9; Laws, 2007, ch. 309, § 7; reenacted and amended, Laws, 2011, ch. 323, § 10, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2006 amendment reenacted the section without change.

The 2007 amendment added “Except as provided in Section 33-1-39,” at the beginning of the second paragraph.

The 2011 amendment reenacted and amended the section in the second paragraph by substituting “chiropractic board and state chiropractic association” for “board and state association” in the first sentence, and substituted “73-6-13(4)” for “73-6-21” in the third sentence.

Cross References —

Fee charged applicant who is exempt from examination requirement, see §73-6-27.

§ 73-6-18. Record keeping standards for chiropractors and chiropractic assistants [Repealed effective July 1, 2021].

These standards apply to all licensed chiropractors and chiropractic assistants. These standards also apply to those consultations and examinations advertised as a reduced fee or free (no charge) service:

The chiropractor shall maintain records for patients which accurately, legibly and completely reflect the evaluation and treatment of the patient.

All patient records shall include patient history, symptomatology, examination, diagnosis, prognosis and treatment. If abbreviations or symbols are used in daily record keeping, a key must be provided.

In the event that the board takes disciplinary action against a chiropractor for any reason, these minimum record keeping standards will apply. It is understood that these procedures are the accepted standard(s) and anything less than this shall be considered unprofessional conduct in the practice of chiropractic.

HISTORY: Laws, 1999, ch. 406, § 1; Laws, 2001, ch. 409, § 10; reenacted without change, Laws, 2011, ch. 323, § 11, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2011 amendment reenacted the section without change.

Cross References —

Failure of chiropractor to follow record keeping requirements prescribed in this section constitutes unprofessional conduct, see §73-6-19.

§ 73-6-19. Grounds upon which license may be refused, cancelled, revoked, or suspended; proceedings; disciplinary action; monetary penalty in lieu of revocation, suspension or cancellation [Repealed effective July 1, 2021; paragraph (1)(q) repealed effective July 1, 2020].

  1. The board shall refuse to grant a certificate of licensure to any applicant or may cancel, revoke or suspend the certificate upon the finding of any of the following facts regarding the applicant or licensed practitioner:
    1. Failure to comply with the rules and regulations adopted by the State Board of Chiropractic Examiners;
    2. Violation of any of the provisions of this chapter or any of the rules and regulations of the State Board of Health pursuant to this chapter with regard to the operation and use of x-rays;
    3. Fraud or deceit in obtaining a license;
    4. Addiction to the use of alcohol, narcotic drugs, or anything which would seriously interfere with the competent performance of his professional duties;
    5. Conviction by a court of competent jurisdiction of a felony, other than manslaughter or any violation of the United States Internal Revenue Code;
    6. Unprofessional and unethical conduct;
    7. Contraction of a contagious disease which may be carried for a prolonged period;
    8. Failure to report to the Mississippi Department of Human Services or the county attorney any case wherein there are reasonable grounds to believe that a child or vulnerable adult has been abused by its parent or person responsible for such person’s welfare;
    9. Advising a patient to use drugs, prescribing or providing drugs for a patient, or advising a patient not to use a drug prescribed by a licensed physician or dentist;
    10. Professional incompetency in the practice of chiropractic;
    11. Having disciplinary action taken by his peers within any professional chiropractic association or society;
    12. Offering to accept or accepting payment for services rendered by assignment from any third-party payor after offering to accept or accepting whatever the third-party payor covers as payment in full, if the effect of the offering or acceptance is to eliminate or give the impression of eliminating the need for payment by an insured of any required deductions applicable in the policy of the insured;
    13. Associating his practice with any chiropractor who does not hold a valid chiropractic license in Mississippi, or teach chiropractic manipulation to nonqualified persons under Section 73-6-13;
    14. Failure to make payment on chiropractic student loans;
    15. Failure to follow record keeping requirements prescribed in Section 73-6-18;
    16. If the practitioner is certified to provide animal chiropractic treatment, failure to follow guidelines approved by the Mississippi Board of Veterinary Medicine; or
    17. Violation(s) of the provisions of Sections 41-121-1 through 41-121-9 relating to deceptive advertisement by health care practitioners. This paragraph shall stand repealed on July 1, 2020.
  2. Any holder of such certificate or any applicant therefor against whom is preferred any of the designated charges shall be furnished a copy of the complaint and shall receive a formal hearing in Jackson, Mississippi, before the board, at which time he may be represented by counsel and examine witnesses. The board is authorized to administer oaths as may be necessary for the proper conduct of any such hearing. In addition, the board is authorized and empowered to issue subpoenas for the attendance of witnesses and the production of books and papers. The process issued by the board shall extend to all parts of the state. Where in any proceeding before the board any witness shall fail or refuse to attend upon subpoena issued by the board, shall refuse to testify, or shall refuse to produce any books and papers, the production of which is called for by the subpoena, the attendance of such witness and the giving of his testimony and the production of the books and papers shall be enforced by any court of competent jurisdiction of this state in the manner provided for the enforcement of attendance and testimony of witnesses in civil cases in the courts of this state.
  3. In addition to any other investigators the board employs, the board shall appoint one or more licensed chiropractors to act for the board in investigating the conduct relating to the competency of a chiropractor, whenever disciplinary action is being considered for professional incompetence and unprofessional conduct.
  4. Whenever the board finds any person unqualified to practice chiropractic because of any of the grounds set forth in subsection (1) of this section, after a hearing has been conducted as prescribed by this section, the board may enter an order imposing one or more of the following:
    1. Deny his application for a license or other authorization to practice chiropractic;
    2. Administer a public or private reprimand;
    3. Suspend, limit or restrict his license or other authorization to practice chiropractic for up to five (5) years;
    4. Revoke or cancel his license or other authorization to practice chiropractic;
    5. Require him to submit to care, counseling or treatment by physicians or chiropractors designated by the board, as a condition for initial, continued or renewal of licensure or other authorization to practice chiropractic;
    6. Require him to participate in a program of education prescribed by the board; or
    7. Require him to practice under the direction of a chiropractor designated by the board for a specified period of time.
  5. Any person whose application for a license or whose license to practice chiropractic has been cancelled, revoked or suspended by the board within thirty (30) days from the date of such final decision shall have the right of a de novo appeal to the circuit court of his county of residence or the Circuit Court of the First Judicial District of Hinds County, Mississippi. If there is an appeal, such appeal may, in the discretion of and on motion to the circuit court, act as a supersedeas. The circuit court shall dispose of the appeal and enter its decision promptly. The hearing on the appeal may, in the discretion of the circuit judge, be tried in vacation. Either party shall have the right of appeal to the Supreme Court as provided by law from any decision of the circuit court.
  6. In a proceeding conducted under this section by the board for the revocation, suspension or cancellation of a license to practice chiropractic, after a hearing has been conducted as prescribed by this section, the board shall have the power and authority for the grounds stated in subsection (1) of this section, with the exception of paragraph (c) thereof, to assess and levy upon any person licensed to practice chiropractic in the state a monetary penalty in lieu of such revocation, suspension or cancellation, as follows:
    1. For the first violation, a monetary penalty of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00) for each violation.
    2. For the second and each subsequent violation, a monetary penalty of not less than One Thousand Dollars ($1,000.00) nor more than Two Thousand Five Hundred Dollars ($2,500.00) for each violation.

      The power and authority of the board to assess and levy such monetary penalties under this section shall not be affected or diminished by any other proceeding, civil or criminal, concerning the same violation or violations. A licensee shall have the right of appeal from the assessment and levy of a monetary penalty as provided in this section to the circuit court under the same conditions as a right of appeal is provided for in this section for appeals from an adverse ruling, or order, or decision of the board. Any monetary penalty assessed and levied under this section shall not take effect until after the time for appeal has expired, and an appeal of the assessment and levy of such a monetary penalty shall act as a supersedeas.

  7. In addition to the grounds specified in subsection (1) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. Actions taken by the board in suspending a license when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

HISTORY: Laws, 1973, ch. 501, § 10; reenacted and amended, Laws, 1983, ch. 448, § 10; Laws, 1988, ch. 361; Laws, 1991, ch. 350, § 10; Laws, 1996, ch. 507, § 32; reenacted and amended, Laws, 1997, ch. 428, § 10; Laws, 1999, ch. 406, § 2; reenacted without change, Laws, 2001, ch. 409, § 11; Laws, 2003, ch. 400, § 2; reenacted without change, Laws, 2006, ch. 515, § 10; reenacted and amended, Laws, 2011, ch. 323, § 12; Laws, 2012, ch. 409, § 14; Laws, 2016, ch. 419, § 7, eff from and after July 1, 2016.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in (1)(e). The word “Internal” has been inserted so that “United States Revenue Code” now reads “United States Internal Revenue Code.” The Joint Committee ratified the correction at its August 5, 2008 meeting.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2003 amendment made a minor stylistic change in (1)(n) and (1)(o); and added (1)(p).

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted and amended the section in (1)(h), by inserting “or vulnerable adult” preceding “has been abused by its parent or person responsible for such” and substituted “person’s” for “child’s” thereafter.

The 2012 amendment added (1)(q); and made minor stylistic changes.

The 2016 amendment extended the repealer for paragraph (1)(q) by substituting “July 1, 2020” for “July 1, 2016” at the end of (1)(q).

Cross References —

Board to establish practice requirements to protect public from transmission of Hepatitis B and HIV from health care providers, see §41-34-3.

Requirement that Board establish procedures and requirements for licensees and applicants for license to disclose his or her status as carrier of Hepatitis B or HIV, see §41-34-5.

Evaluation and review of professional health services providers, see §§41-63-1 et seq.

Minimum record-keeping standards for chiropractors and chiropractic assistants, see §73-6-18.

Mississippi Veterinary practice law generally, see §§73-39-51 et seq.

Suspension of state-issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

JUDICIAL DECISIONS

1. De novo review.

2. Assessment of costs of investigation.

1. De novo review.

Chiropractor’s appeal from the Mississippi State Board of Chiropractic Examiners’ (Board) decision was not reviewed de novo, despite Miss. Code Ann. §73-6-19(5), because (1) the first proceeding was before the Board, and (2) there could be no de novo appeal absent a prior appeal. Barlow v. Miss. State Bd. of Chiropractic Examiners, 233 So.3d 223, 2017 Miss. LEXIS 209 (Miss. 2017).

2. Assessment of costs of investigation.

Mississippi State Board of Chiropractic Examiners (Board) had no authority to assess the costs of an investigation against a chiropractor because the statute allowing the Board to assess monetary penalties did not explicitly allow the Board to assess the costs of an investigation to a party disciplined. Barlow v. Miss. State Bd. of Chiropractic Examiners, 233 So.3d 223, 2017 Miss. LEXIS 209 (Miss. 2017).

RESEARCH REFERENCES

Am. Jur.

1A Am. Jur. Pl & Pr Forms (Rev), Administrative Law, Form 341.2 (complaint, petition, or declaration – by license holder – against administrative agency – to enjoin further proceedings to suspend or revoke license – attempt to suspend or revoke license on grounds not listed in statute authorizing suspension or revocation of license).

§ 73-6-21. Repealed.

Repealed by Laws of 1991, ch. 350, § 17, eff from and after July 1, 1991.

[Laws, 1973, ch. 501, § 11; reenacted and amended, Laws, 1983, ch. 448, § 11]

Editor’s Notes —

Former §73-6-21 related to reciprocity privileges.

§ 73-6-23. No additional rights conferred upon certificate holders [Repealed effective July 1, 2021].

Nothing in this chapter shall be construed as conferring upon the holder of such certificate the right to practice medicine and surgery as a physician or osteopathic physician as defined by statute, to engage in the practice of physical therapy as defined by statute, to advise or prescribe the use of drugs by his patients, or to advise a patient not to use a drug prescribed by a licensed physician or dentist.

HISTORY: Laws, 1973, ch. 501, § 12; reenacted, Laws, 1983, ch. 448, § 12; reenacted, Laws, 1991, ch. 350, § 11; reenacted without change, Laws, 1997, ch. 428, § 11; reenacted without change, Laws, 2001, ch. 409, § 12; reenacted without change, Laws, 2006, ch. 515, § 11; reenacted without change, Laws, 2011, ch. 323, § 13, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Practice of medicine defined, see §73-25-33.

§ 73-6-25. Prohibited conduct [Repealed effective July 1, 2021].

  1. The members of the chiropractic profession, licensed or unlicensed, are hereby prohibited from:
    1. Making use of any public statement of a character tending to mislead the public in regard to the health services of the chiropractic profession or of an individual chiropractor, or use of any other professional designation other than the term “chiropractor,” “doctor of chiropractic,” “D.C.” or “chiropractic physician”; however, the use of the title “chiropractic physician” authorized in this paragraph (a) shall not be construed as conferring upon the holder of a license to practice chiropractic any right or responsibility given to a “physician” by any other Mississippi statute, unless the statute specifically confers the right or responsibility on a “chiropractor” or a “chiropractic physician”;
    2. Offering discounts or inducements to prospective patients by means of coupons or otherwise to perform professional services during any period of time for a lesser or more attractive price without providing a disclaimer to the public indicating the usual price for other services;
    3. Advertising or promising to guarantee any professional service or to perform any operation painlessly;
    4. Violating any of the provisions of this chapter or any of the rules and regulations of the State Board of Health pursuant to this chapter with regard to the operation and use of x-rays.
  2. Nothing herein shall be construed to prohibit a licensed practitioner of chiropractic from allowing or causing his name, address and telephone number to be inserted in the classified section of a telephone directory under a classification denoting the practitioner’s profession. Nothing herein shall be construed to prohibit a licensed practitioner from mailing letters to his clients, but such letters shall otherwise be subject to the provisions of this section.

HISTORY: Laws, 1973, ch. 501, § 13; reenacted and amended, Laws, 1983, ch. 448, § 13; Laws, 1989, ch. 387, § 2; reenacted, Laws, 1991, ch. 350, § 12; reenacted and amended, Laws, 1997, ch. 428, § 12; reenacted without change, Laws, 2001, ch. 409, § 13; Laws, 2004, ch. 467, § 1; reenacted without change, Laws, 2006, ch. 515, § 12; reenacted and amended, Laws, 2011, ch. 323, § 14, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2004 amendment rewrote (1)(a); inserted “however, the listing of licensed practitioners of chiropractic shall not be in the same section or classification that lists doctors of medicine (M.D.) or doctors of osteopathy (D.O.)” in (2); and made a minor stylistic change.

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted and amended the section by deleting “however, the listing of licensed practitioners of chiropractic shall not be in the same section or classification that lists doctors of medicine (M.D.) or doctors of osteopathy (D.O.)” from the end of the first sentence in (2).

Cross References —

Board to establish practice requirements to protect public from transmission of Hepatitis B and HIV from health care providers, see §41-34-3.

Requirement that Board establish procedures and requirements for licensees and applicants for license to disclose his or her status as carrier of Hepatitis B or HIV, see §41-34-5.

Penalties for failure to comply with the provisions of this chapter, see §73-6-29.

JUDICIAL DECISIONS

1. Relation to other laws.

2. Limitations on advertising.

1. Relation to other laws.

Patient’s Right to Informed Health Care Choices Act (Act), codified as Miss. Code Ann. §41-121-1 et seq., did not repeal Miss. Code Ann. §73-6-25(1)(a) by making a chiropractor tell patients of the chiropractor’s other certifications because the other certifications were not licenses the Act intended to reveal. Barlow v. Miss. State Bd. of Chiropractic Examiners, 233 So.3d 223, 2017 Miss. LEXIS 209 (Miss. 2017).

2. Limitations on advertising.

Chiropractor did not show statutes requiring the chiropractor to use only certain licensure designations in advertising did not violate the First Amendment because the evidence demonstrated that the chiropractor’s advertisements were actually misleading. Barlow v. Miss. State Bd. of Chiropractic Examiners, 233 So.3d 223, 2017 Miss. LEXIS 209 (Miss. 2017).

§ 73-6-26. Unlawful for persons to claim that they perform chiropractic services without a valid license to practice [Repealed effective July 1, 2021].

It shall be unlawful for any person, corporation or association to, in any manner, make claim, verbally, in writing, or by way of advertising, that they perform chiropractic adjustments/manipulation to the articulations of the human spine unless they hold a valid license to practice chiropractic (D.C.) in the State of Mississippi.

HISTORY: Laws, 2002, ch. 507, § 1; reenacted without change, Laws, 2011, ch. 323, § 15, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2011 amendment reenacted the section without change.

Cross References —

Penalties for failure to comply with the provisions of this chapter, see §73-6-29.

§ 73-6-27. Exemption from examination [Repealed effective July 1, 2021].

Any person who has graduated from a college approved by the International Chiropractors Association or American Chiropractic Association and who was engaged in the full-time practice of chiropractic in Mississippi prior to January 1, 1970, or was engaged in the full-time practice of chiropractic in Mississippi for a period of eight (8) years prior to April 16, 1973, shall be entitled to a license hereunder by making application to the State Board of Chiropractic Examiners without being required to take the examination of the State Board of Chiropractic Examiners, provided he applies for such license within ninety (90) days after the appointment of the initial board, submits reasonable evidence to the board establishing his eligibility for such exemption, and pays a Twenty-five-Dollar registration fee. All other persons practicing chiropractic within the State of Mississippi on April 16, 1973, shall be eligible to take the approved examination.

HISTORY: Laws, 1973, ch. 501, § 14; reenacted, Laws, 1983, ch. 448, § 14; reenacted, Laws, 1991, ch. 350, § 13; reenacted without change, Laws, 1997, ch. 428, § 13; reenacted without change, Laws, 2001, ch. 409, § 14; reenacted without change, Laws, 2006, ch. 515, § 13; reenacted without change, Laws, 2011, ch. 323, § 16, eff from and after June 30, 2011.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected typographical errors. The words “the date of passage of this chapter,” were changed to “April 16, 1973,” in the first sentence, and the words “at the time of passage of this chapter” were changed to “on April 16, 1973” in the second sentence. The Joint Committee ratified the correction at its May 16, 2002, meeting.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

§ 73-6-29. Offenses; injunctive relief [Repealed effective July 1, 2021].

Anyone failing to comply with the provisions of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than Five Hundred Dollars ($500.00) nor more than Two Thousand Five Hundred Dollars ($2,500.00), and/or by imprisonment in the county jail for not less than thirty (30) days nor more than one (1) year.

All subsequent offenses shall be separate and distinct offenses, and punishable in like manner.

The State Board of Chiropractic Examiners or the district attorney or county attorney of the county in which the defendant may reside or the Attorney General of Mississippi may institute legal action as provided by law against any person violating the provisions of this chapter, and the chancery court of the county in which any such violation occurred or in which any such person resides or practices shall have jurisdiction to grant injunctive relief against the continuation of any such violation.

HISTORY: Laws, 1973, ch. 501, § 15; reenacted, Laws, 1983, ch. 448, § 15; Laws, 1991, ch. 350, § 14; reenacted without change, Laws, 1997, ch. 428, § 14; reenacted without change, Laws, 2001, ch. 409, § 15; reenacted without change, Laws, 2006, ch. 515, § 14; reenacted without change, Laws, 2011, ch. 323, § 17, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

§ 73-6-31. Valid license required to engage in practice of chiropractic [Repealed effective July 1, 2021].

No person shall engage in the practice of chiropractic from and after January 1, 1974, unless he has a valid license issued pursuant to this chapter.

HISTORY: Laws, 1973, ch. 501, § 16; reenacted, Laws, 1983, ch. 448, § 16; reenacted, Laws, 1991, ch. 350, § 15; reenacted without change, Laws, 1997, ch. 428, § 15; reenacted without change, Laws, 2001, ch. 409, § 16; reenacted without change, Laws, 2006, ch. 515, § 15; reenacted without change, Laws, 2011, ch. 323, § 18, eff from and after June 30, 2011.

Editor’s Notes —

For the repeal date of this section, see §73-6-33.

Amendment Notes —

The 2006 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

Cross References —

Penalties for failure to comply with the provisions of this chapter, see §73-6-29.

§ 73-6-33. Repeal of Sections 73-6-1 through 73-6-31.

Sections 73-6-1 through 73-6-31, Mississippi Code of 1972, which create the State Board of Chiropractic Examiners and prescribe its duties and powers, shall stand repealed as of July 1, 2021.

HISTORY: Laws, 1979, ch. 301, § 22; Laws, 1979, ch. 357, § 8; Laws, 1983, ch. 448, § 17; Laws, 1991, ch. 350, § 16; reenacted and amended, Laws, 1997, ch. 428, § 16; reenacted and amended, Laws, 2001, ch. 409, § 16; Laws, 2006, ch. 515, § 16; reenacted and amended, Laws, 2011, ch. 323, § 19; Laws, 2016, ch. 316, § 1, eff from and after July 1, 2016.

Amendment Notes —

The 2006 amendment extended the date of the repealer for §§73-6-1 through73-6-31 from “July 1, 2006” until “July 1, 2011.”

The 2011 amendment reenacted and amended the section by extending the date of the repealer provision from “July 1, 2011” to “July 1, 2016.”

The 2016 amendment extended the date of the repealer for §§73-6-1 through73-6-31 by substituting “July 1, 2021” for “July 1, 2016.”

Cross References —

Mississippi Agency Review Law, see §5-9-13.

§ 73-6-34. Requirements, guidelines, and qualifications for chiropractor doing insurance claims reviews and/or independent examinations.

  1. “Claims review” and/or “independent examinations” are defined as services for third-party entities for the purpose of rendering a decision on chiropractic insurance claims.
  2. Nothing in this section shall prohibit an insurance company or its designees from taking adverse action based upon reviewing a claim if it is determined that the services rendered are not covered under the insurance plan’s schedule of benefits or the services are subject to the insurance plan’s exclusions and/or limitations. No determination adverse to a chiropractic patient or doctor of chiropractic shall be made on any question relating to the necessity or justification of any form of health care services without prior evaluation and concurrence in the adverse determination by a chiropractor licensed to practice in Mississippi and meeting the following criteria:
    1. Present proof of three hundred (300) classroom hours of study in insurance claim review by a course of study recognized by the Mississippi State Chiropractic Examining Board. Such proof is to be filed with the Executive Secretary of the Mississippi State Board of Chiropractic Examiners.
    2. Present proof to the Executive Secretary of the Mississippi State Board of Chiropractic Examiners ten (10) hours of continuing education each fiscal year in the instruction or developments in claims review, which must be approved by the Mississippi State Board of Chiropractic Examiners.
    3. Those chiropractors active in doing claims review five (5) years prior to the enactment of this law will be exempt from the three hundred (300) classroom hours educational requirements. Those chiropractors qualifying under subsection (c) of this section must show proof of one hundred (100) hours of study in claims reviews or related subjects, and meet all other requirements.
    4. The Mississippi State Board of Chiropractic Examiners shall issue a certificate to those chiropractors qualifying under this law, and may charge a fee of Twenty-five Dollars ($25.00) to each individual whom the board certifies.
    5. Any chiropractor not complying with this section will be subject to disciplinary action by the Mississippi State Board of Chiropractic Examiners.
  3. No chiropractor shall engage in chiropractic claims review or independent examinations on or after March 19, 1999, unless he has met all requirements in this section.

HISTORY: Laws, 1999, ch. 443, § 1; Laws, 2000, ch. 367, § 3; Laws, 2011, ch. 323, § 20, eff from and after June 30, 2011.

Amendment Notes —

The 2011 amendment inserted “classroom” following “three hundred (300)” in (2)(a) and (c).

Chapter 7. Cosmetologists

General Provisions

§ 73-7-1. State board of cosmetology; membership and appointment; salaries and expenses; notice of meetings [Repealed effective July 1, 2021].

There is hereby continued and reconstituted a State Board of Cosmetology, composed of five (5) members to be appointed by the Governor, with the advice and consent of the Senate, and whose term of office shall be four (4) years from the date of appointment except as otherwise provided herein. However, no more than two (2) members shall be appointed from each Supreme Court district.

There shall be a president of the board and such other officers as deemed necessary by the board elected by and from its membership, provided that the member elected as president shall have at least one (1) year of experience on the board. Any member appointed by the Governor and confirmed by the Senate for a term to begin on or after July 1, 1997, who was designated by the Governor to serve as president of the board, shall be fully qualified to serve on the board for a full term of office, but shall not serve as president of the board unless elected by the membership of the board as provided under this paragraph.

To be eligible for appointment as a member of the State Board of Cosmetology, the person applying shall have been a citizen of this state for a minimum of five (5) years immediately prior to appointment. Such person shall be at least thirty (30) years of age, possess a high school education or its equivalent, and shall have been a licensed cosmetologist with not less than ten (10) years’ active practice in cosmetology. No member of the board shall be connected in any way with any school wherein cosmetology is taught, nor shall any two (2) members of the board be graduates of the same school of cosmetology.

However, in the event of vacancy by death or resignation of any member of the board, the Governor shall, within thirty (30) days, appoint a person possessing all qualifications required to serve the remainder of the term. Any member who shall not attend two (2) consecutive meetings of the board for reasons other than illness of such member shall be subject to removal by the Governor. The president of the board shall notify the Governor in writing when any such member has failed to attend two (2) consecutive regular meetings.

The salaries of all paid employees of the board shall be paid out of funds in the board’s special fund in the State Treasury. Each member of the board, excepting the inspectors provided for herein, shall receive per diem as authorized by Section 25-3-69, and shall be reimbursed for such other expenses at the same rate and under the same conditions as other state employees as provided for in Section 25-3-41.

The board shall give reasonable public notice of all board meetings not less than ten (10) days prior to such meetings.

HISTORY: Codes, 1942, § 8915-01; Laws, 1948, ch. 367, § 1; Laws, 1960, ch. 384, § 1; Laws, 1964, ch. 450, § 1; Laws, 1970, ch. 405.5, § 1; Laws, 1974, ch. 362, § 1; Laws, 1978, ch. 506, § 1; Laws, 1981, ch. 531, § 1; Laws, 1983, ch. 487, § 1; reenacted, Laws, 1991, ch. 553, § 1; Laws, 1992, ch. 502, § 8; reenacted, Laws, 1993, ch. 596, § 2; reenacted, Laws, 1995, ch. 383, § 1; reenacted and amended, Laws, 1997, ch. 513, § 1; reenacted without change, Laws, 2005, ch. 492, § 1; reenacted without change, Laws, 2010, ch. 487, § 1; reenacted without change, Laws, 2011, ch. 525, § 1; reenacted without change, Laws, 2013, ch. 523, § 1, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

Cross References —

General powers and duties of governor, see §7-1-5.

State board of barber examiners, see §73-5-1.

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of statute or ordinance regulating beauty shops or beauty culture schools. 56 A.L.R.2d 879.

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 1, 2 et seq.

CJS.

53 C.J.S., Licenses § 58, 59.

§ 73-7-2. Definitions [Repealed effective July 1, 2021].

As used in this chapter, the following terms shall have the meanings ascribed herein unless the context otherwise requires:

“Board” means the State Board of Cosmetology.

“Cosmetology” means any one (1) or a combination of the following practices if they are performed on a person’s head, face, neck, shoulder, arms, hands, legs or feet for cosmetic purposes:

Cutting, clipping or trimming hair and hair pieces.

Styling, arranging, dressing, curling, waving, permanent waving, straightening, cleansing, bleaching, tinting, coloring or similarly treating hair and hair pieces.

Cleansing, stimulating, manipulating, beautifying or applying oils, antiseptics, clays, lotions or other preparations, either by hand or by mechanical or electrical apparatus.

Arching eyebrows, to include tweezing, waxing, threading or any other methods of epilation, or tinting eyebrows and eyelashes.

Removing superfluous hair by the use of depilation.

Manicuring and pedicuring.

“Cosmetologist” means a person who for compensation, whether direct or indirect, engages in the practice of cosmetology.

“Esthetics” means any one (1) or a combination of the following practices:

Massaging the face or neck of a person.

Arching eyebrows to include trimming, tweezing, waxing, threading or any other method of epilation or tinting eyebrows and eyelashes.

Tinting eyelashes or eyebrows.

Waxing, stimulating, cleaning or beautifying the face, neck, arms or legs of a person by any method with the aid of the hands or any mechanical or electrical apparatus, or by the use of a cosmetic preparation.

The term “esthetics” shall not include the diagnosis, treatment or therapy of any dermatological condition.

“Esthetician” means any person who, for compensation, either direct or indirect, engages in the practice of esthetics.

“Instructor” means a person licensed to teach cosmetology, or manicuring and pedicuring, or esthetics, or all of those, pursuant to this chapter, and shall include those persons engaged in the instruction of student instructors.

“Manicuring and pedicuring” means any one (1) or a combination of the following practices:

Cutting, trimming, polishing, coloring, tinting, cleansing or otherwise treating a person’s nails.

Applying artificial nails.

Massaging or cleaning a person’s hands, arms, legs or feet.

“Manicurist” means a person who for compensation, either direct or indirect, engages in the practice of manicuring and pedicuring.

“Master” means a person holding a cosmetology, manicuring and esthetics license who has completed the minimum course of continuing education prescribed by Section 73-7-14.

“Salon” means an establishment operated for the purpose of engaging in the practice of cosmetology, or manicuring and pedicuring, or esthetics, or wigology, or all of those.

“School” means an establishment, public or private, operated for the purpose of teaching cosmetology, or manicuring and pedicuring, or esthetics, or wigology, or all of those.

HISTORY: Laws, 1987, ch. 516, § 1; reenacted, Laws, 1991, ch. 553, § 2; reenacted, Laws, 1993, ch. 596, § 3; reenacted, Laws, 1995, ch. 383, § 2; reenacted without change, Laws, 1997, ch. 513, § 2; reenacted without change, Laws, 2005, ch. 492, § 2; reenacted without change, Laws, 2010, ch. 487, § 2; reenacted without change, Laws, 2011, ch. 525, § 2; Laws, 2013, ch. 523, § 2, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment added “and hair pieces” at the end of (b)(i) and (ii); inerted “to include tweezing, waxing, threading or any other methods of epilation” in (b)(iv); substituted “depilation” for “depilatories” in (b)(v); rewrote (d)(ii), which read “Trimming eyebrows”; in (f), deleted “or wigology” preceding “or all of those”; in (i), substituted “ ‘Master’ ” for “ ‘Master cosmetologist’ ” and inserted “manicuring and esthetics”; deleted former ( l ) and (m), which defined “Wigology” and “Wig specialist.”

Cross References —

Practice of barbering, see §§73-5-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

A person engaging in “cosmetology” or “wigology” activities, as those terms are defined in Section 73-7-2, is subject to the jurisdiction of the Mississippi State Board of Cosmetology with regard to those activities, even if the person is also engaged in “hair braiding” activities, Lunsford, July 8, 2005, A.G. Op. 05-0319.

RESEARCH REFERENCES

ALR.

Products liability: hair straighteners and relaxants. 84 A.L.R.4th 1090.

Am. Jur.

39 Am. Jur. Proof of Facts 2d 417, Negligent Treatment of Beauty Salon Patron.

§ 73-7-3. Employees; location of offices; compensation [Repealed effective July 1, 2021].

The board shall be authorized to employ such clerical and stenographic assistance, bookkeepers, investigators and other agents as they may deem necessary to carry out the provisions of this chapter, and to fix their tenure of employment and compensation therefor. The members of the board shall file a bond with the Secretary of State in the sum of not less than Five Thousand Dollars ($5,000.00) payable to the State of Mississippi for the faithful performance of their duties. The bond shall be made by a surety company authorized to do business in this state, the premium of the bond to be paid out of any money in the board’s special fund in the State Treasury.

The office of the board shall be located in the greater metropolitan area of the City of Jackson, Mississippi, and in the event office space cannot be obtained in any state-owned building, the board is authorized to rent suitable office space and to pay therefor out of funds in the board’s special fund. The board shall employ inspectors as needed, not to exceed seven (7), who shall be full-time employees and whose salaries and duties shall be fixed by the board.

The salaries of all paid employees of the board shall be paid out of the funds in the board’s special fund. The inspectors shall, in addition to their salaries, be reimbursed for such expenses as are allowed other state employees under the provisions of Section 25-3-41. In addition to the paying of office rent, the board is authorized to purchase necessary office furniture and equipment, stationery, books, certificates and any other equipment necessary for the proper administration of this chapter.

HISTORY: Codes, 1942, § 8915-02; Laws, 1948, ch. 367, § 2; Laws, 1952, ch. 322; Laws, 1960, ch. 384, § 2; Laws, 1964, ch. 450, § 2; Laws, 1970, ch. 405.5, § 2; Laws, 1974, ch. 363; reenacted, Laws, 1983, ch. 487, § 2; reenacted, Laws, 1991, ch. 553, § 3; Laws, 1992, ch. 502, § 9; reenacted, Laws, 1993, ch. 596, § 4; reenacted, Laws, 1995, ch. 383, § 3; reenacted and amended, Laws, 1997, ch. 513, § 3; Laws, 2000, ch. 485, § 1; reenacted without change, Laws, 2005, ch. 492, § 3; reenacted without change, Laws, 2010, ch. 487, § 3; reenacted without change, Laws, 2011, ch. 525, § 3; reenacted without change, Laws, 2013, ch. 523, § 3, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

§ 73-7-5. Money received by board to be deposited in special fund; regulation of fund; audit; suspension of board members [Repealed effective July 1, 2021].

  1. All fees and any other monies received by the board shall be deposited in a special fund that is created in the State Treasury and shall be used for the implementation and administration of this chapter when appropriated by the Legislature for such purpose. The monies in the special fund shall be subject to all provisions of the state budget laws that are applicable to special fund agencies, and shall be disbursed by the State Treasurer only upon warrants issued by the State Fiscal Officer upon requisitions signed by the president of the board or another board member designated by the president, and countersigned by the secretary of the board. Any interest earned on this special fund shall be credited by the State Treasurer to the fund and shall not be paid into the State General Fund. Any unexpended monies remaining in the special fund at the end of a fiscal year shall not lapse into the State General Fund.
  2. The State Auditor shall audit the financial affairs of the board and the transactions involving the special fund at least once a year in the same manner as for other special fund agencies. In addition, the Governor, in his discretion, shall have the power from time to time to require an audit of the financial affairs of the board, the same to be made by the State Auditor upon request of the Governor. The Governor shall have the power to suspend any member of the board who shall be found in default in any account until such time as it shall be determined whether such default was a result of an act of dishonesty on the part of the member, and in the event it is found that such default is an act of dishonesty, misfeasance or nonfeasance on the part of the member, such member shall be immediately removed by the Governor from office.

HISTORY: Codes, 1942, § 8915-03; Laws, 1948, ch. 367, § 3; Laws, 1964, ch. 450; Laws, 1983, ch. 487, § 3; reenacted, Laws, 1991, ch. 553, § 4; Laws, 1992, ch. 502, § 2; reenacted, Laws, 1993, ch. 596, § 5; reenacted, Laws, 1995, ch. 383, § 4; reenacted without change, Laws, 1997, ch. 513, § 4; reenacted without change, Laws, 2005, ch. 492, § 4; reenacted without change, Laws, 2010, ch. 487, § 4; reenacted without change, Laws, 2011, ch. 525, § 4; reenacted without change, Laws, 2013, ch. 523, § 4, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section §27-104-6, provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

Cross References —

State depositories generally, see §27-105-1 et seq.

§ 73-7-7. Powers of the board [Repealed effective July 1, 2021].

  1. The board shall have authority to make reasonable rules and regulations for the administration of the provisions of this chapter. The board shall set up a curriculum for operation of schools of cosmetology and the other professions it is charged to regulate in this state. The board shall receive and consider for adoption recommendations for rules and regulations, school curriculum, and related matters from the Mississippi Cosmetology Council, whose membership shall consist of, in addition to the board members, five (5) elected delegates from the Mississippi Cosmetology Association, five (5) elected delegates from the Mississippi Cosmetology School Association, five (5) elected delegates from the Mississippi Independent Beauticians Association, and five (5) elected delegates from the School Owners and Teachers Association. The board may revoke the license of any cosmetologist, esthetician, manicurist, instructor, school of cosmetology, or salon, or may refuse to issue a license to any cosmetologist, esthetician, manicurist, instructor, school of cosmetology, or salon that fails or refuses to comply with the provisions of this chapter and the rules and regulations of the board in carrying out the provisions of this chapter.
  2. The board shall have authority to prescribe reasonable rules and regulations governing sanitation of schools of cosmetology and beauty salons for the guidance of persons licensed under this chapter in the operation of schools of cosmetology, or a beauty salon, and in the practice of cosmetology, esthetics, manicuring and pedicuring, and wigology. However, any and all rules and regulations relating to sanitation shall, before adoption by the board, have the written approval of the State Board of Health. When the board has reason to believe that any of the provisions of this chapter or of the rules and regulations of the board have been violated, either upon receipt of a written complaint alleging such violations or upon the board’s own initiative, the board, or any of its authorized agents, shall investigate same and shall have authority to enter upon the premises of a school of cosmetology or salon at any time during the regular business hours of that school or salon to conduct the investigation. Such investigation may include, but not be limited to, conducting oral interviews with the complaining party, school or salon owner(s) and/or students of the school, and reviewing records of the school or salon pertinent to the complaint and related to an area subject to the authority of the board. Such investigation shall not include written interviews or surveys of school employees or students, and the privacy of patrons shall be respected by any person making such investigation.
  3. On or before July 1, 2001, the board shall adopt regulations to ensure that all fingernail service products used by licensed cosmetologists, manicurists and other licensees do not contain methyl methacrylate (MMA) as a monomer agent for cosmetic nail applications.
  4. If the board finds that a violation of the provisions of this chapter or the rules and regulations of the board has occurred, it may cause a hearing to be held as set forth in Section 73-7-27.

HISTORY: Codes, 1942, § 8915-04; Laws, 1948, ch. 367, § 4; Laws, 1964, ch. 450, § 4; Laws, 1978, ch. 506, § 2; Laws, 1982, ch. 448, § 1; reenacted, Laws, 1983, ch. 483, § 4; Laws, 1987, ch. 516, § 2; reenacted, Laws, 1991, ch. 553, § 5; reenacted, Laws, 1993, ch. 596, § 6; reenacted, Laws, 1995, ch. 383, § 5; reenacted and amended, Laws, 1997, ch. 513, § 5; Laws, 2000, ch. 485, § 2; reenacted without change, Laws, 2005, ch. 492, § 5; reenacted without change, Laws, 2010, ch. 487, § 5; reenacted without change, Laws, 2011, ch. 525, § 5; Laws, 2013, ch. 523, § 5, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment inserted the subsection (1) through (4) designations and in (1), substituted “Mississippi Cosmetology Association” for “Mississippi Hairdressers and Cosmetologists Association” in the third sentence, and twice deleted “wig specialist” preceding “instructor” in the last sentence.

Cross References —

State Board of Health generally, see §§41-3-1 et seq.

Investigation of complaints against licensees filed with board, see §73-7-27.

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of statute or ordinance regulating beauty shops or beauty culture schools. 56 A.L.R.2d 879.

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 1, 2 et seq.

CJS.

53 C.J.S., Licenses § 58, 59.

§ 73-7-9. Certificate of registration required [Repealed effective July 1, 2021].

No person required by this chapter to have a license shall conduct a beauty salon or school of cosmetology, or practice cosmetology, esthetics, manicuring and pedicuring, or practice as an instructor, unless such person has received a license or temporary permit therefor from the board. Students determined to have violated any of these rules or regulations prior to being licensed by the board shall be subject to the same discipline by the board as licensees. They may be disciplined and fined accordingly.

HISTORY: Codes, 1942, § 8915-05; Laws, 1948, ch. 367, § 5; Laws, 1964, ch. 450, § 5; reenacted, Laws, 1983, ch. 487, § 5; Laws, 1987, ch. 516, § 3; reenacted, Laws, 1991, ch. 553, § 6; reenacted, Laws, 1993, ch. 596, § 7; reenacted, Laws, 1995, ch. 383, § 6; reenacted and amended, Laws, 1997, ch. 513, § 6; reenacted without change, Laws, 2005, ch. 492, § 6; reenacted without change, Laws, 2010, ch. 487, § 6; reenacted without change, Laws, 2011, ch. 525, § 6; Laws, 2013, ch. 523, § 6, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment deleted “or wigology” following “manicuring and pedicuring” in the first sentence.

Cross References —

Licensing of cosmetology instructors, see §73-7-15.

Licensing of schools, see §73-7-16.

License expiration and renewal, see §73-7-19.

Revocation, suspension or refusal of licenses or certificates of registration, see §73-7-27.

Fees, see §73-7-29.

Penalties for violations, see §73-7-37.

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

39 Am. Jur. Proof of Facts 2d 417, Negligent Treatment of Beauty Salon Patron.

CJS.

53 C.J.S., Licenses §§ 70-72.

§ 73-7-11. Display of license [Repealed effective July 1, 2021].

Each owner of a license issued by the board under the provisions of this chapter shall display the license in a conspicuous place in his or her principal office, place of business or employment, at all times.

Each practitioner and instructor license shall contain a head photograph of the license holder, the person’s name, and the type of license held by the person. The requirements of this section shall apply at the time of issuance of a new license or at the time of renewal of an existing license.

HISTORY: Codes, 1942, § 8915-06; Laws, 1948, ch. 367, § 6; reenacted without change, Laws, 1983, ch. 487, § 6; reenacted, Laws, 1991, ch. 553, § 7; reenacted, Laws, 1993, ch. 596, § 8; reenacted, Laws, 1995, ch. 383, § 7; reenacted without change, Laws, 1997, ch. 513, § 7; reenacted without change, Laws, 2005, ch. 492, § 7; reenacted without change, Laws, 2010, ch. 487, § 7; reenacted without change, Laws, 2011, ch. 525, § 7; Laws, 2013, ch. 523, § 7; reenacted without change, Laws, 2013, ch. 542, § 1; Laws, 2017, ch. 380, § 1, eff from and after July 1, 2017.

Joint Legislative Committee Note —

Section 7 of ch. 523, Laws of 2013, effective from and after July 1, 2013 (approved April 23, 2013), reenacted this section without change. Section 1 of ch. 542, Laws of 2013, effective from and after July 1, 2013 (approved April 25, 2013), amended this section. As set out above, this section reflects the language of Section 1 of ch. 542, Laws of 2013, which contains language that specifically provides that it supersedes §73-7-11 as reenacted by ch. 523, Laws of 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The first 2013 amendment (ch. 523), reenacted the section without change.

The second 2013 amendment (ch. 542), rewrote the first paragraph, which read “Each owner of registration issued by the state board, pursuant to the provisions of this chapter, shall display said certificate of registration in a conspicuous place in his or her principal office, place of business or employment, at all times” and added the second paragraph.

The 2017 amendment inserted “practitioner and instructor” near the beginning of the second paragraph.

Cross References —

Penalties for violation, see §73-7-37.

§ 73-7-12. Examinations [Repealed effective July 1, 2021].

  1. Effective January 1, 2020, the State Board of Cosmetology shall terminate its student testing contract with proper notice and shall conduct examinations for cosmetologists, estheticians, manicurists and instructors at such times and locations as determined by the board. The members of the board shall not personally administer or monitor the examinations, but the board shall contract for administrators of the examinations. A member of the board shall not receive any per diem compensation for any day that the member is present at the site where the examinations are being administered.
  2. This section shall stand repealed on July 1, 2021.

HISTORY: Laws, 1987, ch. 516, § 4; reenacted, Laws, 1991, ch. 553, § 8; reenacted, Laws, 1993, ch. 596, § 9; reenacted, Laws, 1995, ch. 383, § 8; reenacted without change, Laws, 1997, ch. 513, § 8; reenacted without change, Laws, 2005, ch. 492, § 8; reenacted without change, Laws, 2010, ch. 487, § 8; reenacted and amended, Laws, 2011, ch. 525, § 8; Laws, 2013, ch. 523, § 8, eff from and after July 1, 2013; Laws, 2019, ch. 413, § 1, eff from and after July 1, 2019.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

This section is included within the span of sections repealed by §73-7-63, effective July 1, 2021. Section 1 of Chapter 413, Laws of 2019, added a sunset provision to the section, effective July 1, 2021. The section is subject to both repealers.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted and amended the section by rewriting the first sentence, which read “the board shall hold examinations for cosmetologists, estheticians, manicurists, wig specialists and instructors at least twice a year and at such other times as the board may determine,” and adding the second sentence.

The 2013 amendment deleted “wig specialists” following “estheticians, manicurists” in the first sentence.

The 2019 amendment rewrote the section, which read: "The State Board of Cosmetology shall contract with a recognized testing service to conduct examinations for cosmetologists, estheticians, manicurists and instructors at such times and locations as determined by the contracted testing service. No member of the board shall be authorized to personally administer the examinations," and designated it (1); and added (2).

Cross References —

Admission requirements for examination, see §73-7-13.

Fees, see §73-7-29.

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S., Licenses § 63.

§ 73-7-13. Admission requirements for examination; temporary permits; issuance of licenses; requirements for barbers to be licensed in cosmetology [Repealed effective July 1, 2021].

  1. The board shall admit to examination for a cosmetology license any person who has made application to the board in proper form, has paid the required fee, and who (a) is at least seventeen (17) years of age, (b) can read, write and speak English, (c) has successfully completed no less than fifteen hundred (1500) hours over a period of no less than nine (9) months in a licensed school of cosmetology, and (d) has a high school education or its equivalent or has been successfully enrolled in a community college.
    1. The board may, in its discretion, issue to any student who has completed the prescribed hours in a licensed school and paid the required fee a temporary permit until such time as the next examination may be held, but such student shall be issued only one (1) temporary permit. Application for an examination and license shall be accompanied by two (2) passport photographs of the applicant. No temporary permit will be issued to an applicant from any other state to operate a beauty salon or school of cosmetology in this state unless in case of emergency.
    2. Applicants for the cosmetologist examination, after having satisfactorily passed the prescribed examination, shall be issued a cosmetology license which until June 30, 2001, shall be valid for one (1) year, and after July 1, 2001, shall be valid for two (2) years, and all those licenses shall be subject to renewal.
    3. Any barber who can read, write and speak English and has successfully completed no less than fifteen hundred (1500) hours in a licensed barber school, and who holds a current valid certificate of registration to practice barbering and who holds a current valid license, is eligible to take the cosmetology examination to secure a cosmetology license upon successfully completing five hundred (500) hours in a licensed school of cosmetology. All fees for application, examination, registration and renewal thereof shall be the same as provided for cosmetologists.
  2. Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64.
  3. Any licensed cosmetologist, esthetician, or manicurist who is registered but not actively practicing in the State of Mississippi at the time of making application for renewal, may apply for registration on the “inactive” list. Such “inactive” list shall be maintained by the board and shall set out the names and post office addresses of all persons registered but not actively practicing in this state, arranged alphabetically by name and also by the municipalities and states of their last-known professional or residential address. Only the cosmetologists, estheticians and manicurists registered on the appropriate list as actively practicing in the State of Mississippi shall be authorized to practice those professions. For the purpose of this section, any licensed cosmetologist, esthetician or manicurist who has actively practiced his or her profession for at least three (3) months of the immediately preceding license renewal period shall be considered inactive practice. No cosmetologist, esthetician, or manicurist shall be registered on the “inactive” list until the person has furnished a statement of intent to take such action to the board. Any licensed cosmetologist, esthetician, manicurist or wigologist registered on the “inactive” list shall not be eligible for registration on the active list until either of the following conditions have been satisfied:
    1. Written application shall be submitted to the State Board of Cosmetology stating the reasons for such inactivity and setting forth such other information as the board may require on an individual basis and completion of the number of clock hours of continuing education as approved by the board; or
    2. Evidence to the satisfaction of the board shall be submitted that they have actively practiced their profession in good standing in another state and have not been guilty of conduct that would warrant suspension or revocation as provided by applicable law; and
    3. Payment of the fee for processing such inactive license shall be paid biennially in accordance to board rules.

HISTORY: Codes, 1942, § 8915-07; Laws, 1948, ch. 367, § 7; Laws, 1960, ch. 384, § 3; Laws, 1964, ch. 450, § 6; Laws, 1982, ch. 448, § 2; reenacted, Laws, 1983, ch. 487, § 7; Laws, 1987, ch. 516, § 5; Laws, 1988, ch. 537, § 1; reenacted, Laws, 1991, ch. 553, § 9; Laws, 1993, ch. 596, § 10; reenacted, Laws, 1995, ch. 383, § 9; reenacted without change, Laws, 1997, ch. 513, § 9; Laws, 1997, ch. 588, § 29; Laws, 2000, ch. 485, § 3; reenacted without change, Laws, 2005, ch. 492, § 9; reenacted without change, Laws, 2010, ch. 487, § 9; reenacted without change, Laws, 2011, ch. 525, § 9; Laws, 2013, ch. 523, § 9; Laws, 2015, ch. 345, § 1; Laws, 2017, ch. 380, § 2, eff from and after July 1, 2017.

Joint Legislative Committee Note —

Section 9 of ch. 513, Laws of 1997, reenacted this section without change, effective June 30, 1997. Section 29 of ch. 588, Laws of 1997, effective July 1, 1997, amended this section. As set out above, this section reflects the language of Section 29 of ch. 588, Laws of 1997, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Laws of 1997, ch. 588, § 150, effective July 1, 1997, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment in (1), inserted the subdivision (a) through (b) designations and in (a), substituted “in a licensed school and paid the required fee” for “in an accredited school in Mississippi” in the first sentence and substituted “passport” for “recent head” in the second sentence; in (3), deleted “or wigologist” following “manicurist” in the first sentence, substituted “and manicurists registered” for “manicurist or wigologist shall be registered” in the third sentence, substituted “esthetician or manicurist” for “esthetician, manicurist or wigologist” in the fourth and fifth sentences; and added “shall be paid biennially in accordance to board rules” to the end of (3)(c).

The 2015 amendment added “or has been successfully enrolled in a community college” to the end of (1).

The 2017 amendment, in (1), substituted “a licensed school of cosmetology” for “an accredited school of cosmetology” near the end of the introductory paragraph and near the end of the first sentence of (c), and substituted “a licensed barber school” for “an accredited barber school” near the beginning of (c).

Cross References —

Certain cosmetologists being eligible to take barber examination, see §73-5-12.

Master cosmetologist license, see §73-7-14.

Licensing of salons, see §73-7-17.

Licensing of estheticians, see §73-7-18.

Expiration of application for examination, see §73-7-19.

Licensing of manicurists, see §73-7-21.

Revocation, suspension or refusal of licenses or certificates of registration, see §73-7-27.

Fees, see §73-7-29.

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of statute or ordinance regulating beauty shops, or beauty culture schools. 56 A.L.R.2d 879.

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

39 Am. Jur. Proof of Facts 2d 417, Negligent Treatment of Beauty Salon Patron.

CJS.

53 C.J.S., Licenses §§ 62, 63, 65, 66, 70-72.

§ 73-7-14. Master cosmetologist, manicurist or esthetician license; continuing education requirements for license renewal [Repealed effective July 1, 2021].

  1. Any person who holds a current, valid cosmetology, manicuring or esthetics license may be licensed as a master cosmetologist, manicurist or esthetician if he or she has been a licensed cosmetologist, manicurist or esthetician in this state for a period of not less than twelve (12) months, and has completed a minimum course of sixteen (16) hours’ study in continuing education approved by the board within the licensing period preceding initial application for the license, and has paid the original license fee. Master cosmetologist, manicurist or esthetician licenses shall be renewable upon completion of a minimum course of eight (8) hours’ study in continuing education approved by the board within a licensing period and payment of the required renewal fee. This is an optional license and persons who do not wish to complete the continuing education requirement may obtain a cosmetology license when renewing their license.
  2. Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64, Mississippi Code of 1972.

HISTORY: Laws, 1987, ch. 516, § 6; reenacted, Laws, 1991, ch. 553, § 10; reenacted, Laws, 1993, ch. 596, § 11; reenacted, Laws, 1995, ch. 383, § 10; reenacted without change, Laws, 1997, ch. 513, § 10; Laws, 1997, ch. 588, § 30; reenacted without change, Laws, 2005, ch. 492, § 10; reenacted without change, Laws, 2010, ch. 487, § 10; reenacted without change, Laws, 2011, ch. 525, § 10; Laws, 2013, ch. 523, § 10, eff from and after July 1, 2013.

Joint Legislative Committee Note —

Section 10 of ch. 513, Laws of 1997, reenacted this section without change, effective June 30, 1997. Section 30 of ch. 588, Laws of 1997, effective July 1, 1997, amended this section. As set out above, this section reflects the language of Section 30 of ch. 588, Laws of 1997, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Laws of 1993, ch. 596, § 11, reenacted two code sections, §73-7-14 and §73-7-15.

Laws of 1997, ch. 588, § 150, effective July 1, 1997, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment in (1), inserted “manicuring or esthetics” following “valid cosmetology”, “manicurist or esthetician” following “cosmetologist” in the first sentence, inserted “manicurist or esthetician” after “Master cosmetologist” in the second sentence; and designated former undesignated paragraphs as (1) and (2).

Cross References —

Revocation, suspension or refusal of licenses or certificates of registration, see §73-7-27.

Fees, see §73-7-29.

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S., Licenses §§ 50, 52 et seq.

§ 73-7-15. Licensing of instructors [Repealed effective July 1, 2021].

  1. The board shall admit to examination for a cosmetology instructor’s license any person who has made application to the board in proper form, has paid the required fee, and who:
    1. Is not less than twenty-one (21) years of age;
    2. Can read, write and speak English;
    3. Is a graduate of a licensed cosmetology school;
    4. Has a high school education or its equivalent;
    5. Has successfully completed one thousand (1,000) hours of instructor training in a licensed school of cosmetology;
    6. Has successfully completed six (6) semester hours in college courses approved by the board;
    7. Holds a current, valid Mississippi cosmetology license; and
    8. Has at least one (1) year active practical experience as a cosmetologist or, as an alternative to such experience, has successfully completed one thousand (1,000) hours of instructor training in a licensed school of cosmetology.
  2. The board shall admit to examination for an esthetics instructor’s license any person who has made application to the board in proper form, has paid the required fee, and who:
    1. Is not less than twenty-one (21) years of age;
    2. Can read, write and speak English;
    3. Has a high school education or its equivalent;
    4. Has successfully completed one thousand (1,000) hours of instructor training in a licensed school in which the practice of esthetics is taught;
    5. Has successfully completed six (6) semester hours in college courses approved by the board;
    6. Holds a current, valid Mississippi esthetician’s license; and
    7. Has had one (1) year of active practical experience as an esthetician or, as an alternative to such experience, has successfully completed one thousand (1,000) hours of instructor training in a licensed school in which the practice of esthetics is taught.
  3. The board shall admit to examination for a manicurist instructor’s license any person who has made application to the board in proper form, has paid the required fee, and who:
    1. Is not less than twenty-one (21) years of age;
    2. Can read, write and speak English;
    3. Has a high school education or its equivalent;
    4. Has successfully completed one thousand (1,000) hours of instructor training in a licensed school in which the practice of manicuring is taught;
    5. Has successfully completed six (6) semester hours in college courses approved by the board;
    6. Holds a current, valid Mississippi manicurist’s license; and
    7. Has had one (1) year of active practical experience as a manicurist or, as an alternative to such experience, has successfully completed one thousand (1,000) hours of instructor training in a licensed school in which the practice of manicuring is taught.
  4. Applicants shall satisfactorily pass the examination prescribed by the board for licensing instructors prior to the issuance of the licenses provided for in this section. However, the board may, in its discretion, issue a temporary instructor’s permit until such time as the next examination may be held, but such applicant shall be issued only one (1) temporary permit. All applications for an instructor’s examination shall be accompanied by two (2) recent head photographs of the applicant.
  5. All instructors licensed pursuant to this section shall biennially obtain twenty-four (24) clock hours of continuing education in teacher training instruction in cosmetology or esthetics or manicuring, as the case may be, as approved by the board. Any instructor who fails to obtain the continuing education required by this subsection shall not be allowed to instruct nor enroll students under his or her license until such education requirement has been met. The board may issue an inactive instructor’s license to such instructors, and an inactive license may be converted into an active license after proof satisfactory to the board of completion of at least twenty-four (24) clock hours of approved continuing education required for teacher training instruction.
  6. Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64.

HISTORY: Codes, 1942, § 8915-08; Laws, 1948, ch. 367, § 8; Laws, 1960, ch. 384, § 4; Laws, 1964, ch. 450, § 7; Laws, 1979, ch. 444, § 1; Laws, 1982, ch. 448, § 2; Laws, 1983, ch. 487, § 8; Laws, 1987, ch. 516, § 7; reenacted, Laws, 1991, ch. 553, § 11; reenacted, Laws, 1993, ch. 596, § 11; reenacted, Laws, 1995, ch. 383, § 11; reenacted and amended, Laws, 1997, ch. 513, § 11; Laws, 1997, ch. 588, § 31; Laws, 2000, ch. 485, § 4; reenacted without change, Laws, 2005, ch. 492, § 11; reenacted without change, Laws, 2010, ch. 487, § 11; reenacted without change, Laws, 2011, ch. 525, § 11; Laws, 2013, ch. 523, § 11; Laws, 2017, ch. 380, § 3, eff from and after July 1, 2017.

Joint Legislative Committee Note —

Section 11 of ch. 513, Laws of 1997, reenacted and amended this section, effective June 30, 1997. Section 31 of ch. 588, Laws of 1997, effective July 1, 1997, also amended this section. As set out above, this section reflects the language of Section 31 of ch. 588, Laws of 1997, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Laws of 1993, ch. 596, § 11, reenacted two code sections, §73-7-14 and §73-7-15.

Laws of 1997, ch. 588, § 150, effective July 1, 1997, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment deleted “licensed” preceding “cosmetologist or, as an alternative” in (1)(h).

The 2017 amendment substituted “a licensed” for “an accredited” everywhere it appears; in (1), substituted “one thousand (1,000) hours” for “seven hundred fifty (750) hours” in (e), “six (6) semester hours” for “twelve (12) semester hours” in (f), and in (h), “one (1) year” for “two years” and “one thousand (1,000) hours” for “two thousand (2,000) hours”; in (2), substituted “one thousand (1,000) hours” for “six hundred (600) hours” in (d), “six (6) semester hours” for “twelve (12) semester hours” in (e), and “one (1) year” for “two (2) years” in (g); and in (3), substituted “one thousand (1,000) hours” for “six hundred (600) hours” in (d), “six (6) semester hours” for “twelve (12) semester hours” in (e), and “one (1) year” for “two (2) years” in (g).

Cross References —

Licensing of schools, see §73-7-16.

Renewal of license, see §73-7-19.

Revocation, suspension or refusal of licenses or certificates of registration, see §73-7-27.

Fees, see §73-7-29.

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S., Licenses §§ 62, 63, 65, 66, 70-72.

§ 73-7-16. Licensing of schools [Repealed effective July 1, 2021].

  1. All schools of cosmetology or school owners shall have a school license and shall pay to the board the required license fee biennially therefor. A grace period of sixty (60) days will be given in which to renew the license, and upon the expiration of the grace period of sixty (60) days, any applicant for the renewal of a school license will be required to pay a delinquent fee in addition to the renewal fee. The board is hereby authorized and empowered to promulgate necessary and reasonable rules and regulations for the issuance and renewal of school licenses. However, the board shall not refuse to issue or renew a school’s license because of the number of schools already in that area of the state, and any rule promulgated by the board for that purpose shall be null and void.
  2. Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64.
  3. The board shall require all schools of cosmetology to only admit students who have not less than a Tenth-Grade education or a high school diploma or its equivalency.

HISTORY: Laws, 1987, ch. 516, § 8; reenacted, Laws, 1991, ch. 553, § 12; reenacted, Laws, 1993, ch. 596, § 12; reenacted, Laws, 1995, ch. 383, § 12; reenacted without change, Laws, 1997, ch. 513, § 12; Laws, 1997, ch. 588, § 32; reenacted without change, Laws, 2005, ch. 492, § 12; reenacted without change, Laws, 2010, ch. 487, § 12; Laws, 2010, ch. 507, § 2; Laws, 2011, ch. 371, § 1; reenacted and amended, Laws, 2011, ch. 525, § 12; Laws, 2013, ch. 523, § 12; Laws, 2017, ch. 380, § 4, eff from and after July 1, 2017.

Joint Legislative Committee Note —

Section 12 of ch. 513, Laws of 1997, reenacted this section without change, effective June 30, 1997. Section 32 of ch. 588, Laws of 1997, effective July 1, 1997, amended this section. As set out above, this section reflects the language of Section 32 of ch. 588, Laws of 1997, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Section 2 of ch. 507, Laws of 2010, effective July 1, 2010 (approved April 13, 2010), amended this section. Section 12 of ch. 487, Laws of 2010, effective July 1, 2010 (approved April 7, 2010), also amended this section. As set out above, this section reflects the language of Section 2 of ch. 507, Laws of 2010, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Section 1 of ch. 371, Laws of 2011, effective from and after July 1, 2011 (approved March 11, 2011), amended this section. Section 12 of ch. 525, Laws of 2011, effective from and after July 1, 2011 (approved April 26, 2011), also amended this section. As set out above, this section reflects the language of Section 12 of ch. 525, Laws of 2011, which contains language that specifically provides that it supersedes §73-7-16 as amended by Laws of 2011, ch. 371.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Laws of 1993, ch. 596, § 12, reenacted two code sections, §73-7-16 and §73-7-17.

Laws of 1997, ch. 588, § 150, effective July 1, 1997, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2005 amendment reenacted the section without change.

The first 2010 amendment by (ch. 487) reenacted the section without change.

The second 2010 amendment by (ch. 507) added the last paragraph.

The first 2011 amendment (ch. 371), added the last paragraph.

The second 2011 amendment (ch. 525), added the last two paragraphs.

The 2013 amendment inserted subsection designations (1) through (3), substituted “biennially” for “annually” preceding “therefor” at the end of the first sentence in (1); deleted “Mississippi Code of 1972” from the end of (2); and rewrote (3).

The 2017 amendment rewrote (3), which read: “The board shall require all schools of cosmetology to only admit students who met minimum competencies on an acceptable aptitude test unless enrolled in a high school cosmetology program.”

Cross References —

Licensing of instructors, see §73-7-15.

Revocation, suspension or refusal of licenses or certificates of registration, see §73-7-27.

Fees, see §73-7-29.

Penalties for violations, see §73-7-37.

RESEARCH REFERENCES

ALR.

Liability of cosmetology school for injury to patron. 81 A.L.R.4th 444.

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S., Licenses §§ 50, 52 et seq.

§ 73-7-17. Licensing of salons [Repealed effective July 1, 2021].

  1. All salon owners shall have a salon license and shall pay to the board the required license fee therefor and pay the required renewal fee for renewal thereof. A grace period of sixty (60) days will be given in which to renew the license, and upon the expiration of the grace period of sixty (60) days any applicant for the renewal of a salon license will be required to pay a delinquent fee in addition to the renewal fee. A salon license that has been expired for over one (1) year is nonrenewable and requires a new application. Prior to the initial issuance of such license, the board shall inspect the premises to determine if same qualifies with the law, upon payment by the applicant of the required inspection fee.
  2. Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64, Mississippi Code of 1972.

HISTORY: Codes, 1942, § 8915-09; Laws, 1948, ch. 367, § 9; Laws, 1960, ch. 384, § 5; Laws, 1964, ch. 450, § 8; Laws, 1979, ch. 444, § 2; reenacted, Laws, 1983, ch. 487, § 9; Laws, 1987, ch. 516, § 9; reenacted, Laws, 1991, ch. 553, § 13; reenacted, Laws, 1993, ch. 596, § 12; reenacted, Laws, 1995, ch. 383, § 13; reenacted without change, Laws, 1997, ch. 513, § 13; Laws, 1997, ch. 588, § 33; reenacted without change, Laws, 2005, ch. 492, § 13; reenacted without change, Laws, 2010, ch. 487, § 13; reenacted without change, Laws, 2011, ch. 525, § 13; Laws, 2013, ch. 523, § 13, eff from and after July 1, 2013.

Joint Legislative Committee Note —

Section 13 of ch. 513, Laws of 1997, reenacted this section without change, effective June 30, 1997. Section 33 of ch. 588, Laws of 1997, effective July 1, 1997, also amended this section. As set out above, this section reflects the language of Section 33 of ch. 588, Laws of 1997, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Laws of 1993, ch. 596, § 12, reenacted two code sections, §73-7-16 and §73-7-17.

Laws of 1997, ch. 588, § 150, effective July 1, 1997, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment inserted the subsection (1) and (2) designations and added the third sentence in (1).

Cross References —

Revocation, suspension or refusal of licenses or certificates of registration, see §73-7-27.

Fees, see §73-7-29.

Limitations on location of professional practice, see §73-7-35.

Penalties for violations, see §73-7-37.

§ 73-7-18. Licensing of estheticians [Repealed effective July 1, 2021].

  1. The board shall admit to examination for an esthetician’s license any person who has made application to the board in proper form, has paid the required fee, and who:
    1. Is not less than seventeen (17) years of age;
    2. Can read, write and speak English;
    3. Has a high school education or its equivalent; and
    4. Has successfully completed a course of training in esthetics of not less than six hundred (600) hours in an accredited school in which the practice of esthetics is taught, including not less than one hundred (100) hours of theory and five hundred (500) hours of skill practice.

      Any licensed esthetician wishing to acquire a cosmetology license may apply the six hundred (600) hours of esthetics training toward the requirements for a cosmetology license.

  2. Every person who has completed not less than three hundred fifty (350) hours of training in esthetics approved by the board in this or any other state prior to July 1, 1987, shall be registered with the board within a period not exceeding six (6) months after July 1, 1987, and shall be granted an esthetician’s license by the board if such person presents satisfactory evidence to the board that he or she has fulfilled all the requirements to be admitted to examination except the training hours requirement.
  3. Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64, Mississippi Code of 1972.

HISTORY: Laws, 1987, ch. 516, § 10; reenacted, Laws, 1991, ch. 553, § 14; Laws, 1993, ch. 596, § 13; reenacted, Laws, 1995, ch. 383, § 14; reenacted without change, Laws, 1997, ch. 513, § 14; Laws, 1997, ch. 588, § 34; reenacted without change, Laws, 2005, ch. 492, § 14; reenacted without change, Laws, 2010, ch. 487, § 14; reenacted without change, Laws, 2011, ch. 525, § 14; reenacted without change, Laws, 2013, ch. 523, § 14, eff from and after July 1, 2013.

Joint Legislative Committee Note —

Section 14 of ch. 513, Laws of 1997, reenacted this section without change, effective June 30, 1997. Section 34 of ch. 588, Laws of 1997, effective July 1, 1997, also amended this section. As set out above, this section reflects the language of Section 34 of ch. 588, Laws of 1997, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

Cross References —

Renewal of license, see §73-7-19.

Licensing of manicurists, see §73-7-21.

Revocation, suspension or refusal of licenses or certificates of registration, see §73-7-27.

Fees, see §73-7-29.

Penalties for violations, see §73-7-37.

§ 73-7-19. Renewal of license; fees [Repealed effective July 1, 2021].

  1. Except as provided in Section 33-1-39, all licenses shall be renewed biennially under the fee schedule in Section 73-7-29. Applications for renewal of licenses for cosmetologists, estheticians, manicurists and instructors must be accompanied by the required renewal fee. A grace period of sixty (60) days will be given in which to renew the license; and upon the expiration of the grace period of sixty (60) days, any applicant for the renewal of a license will be required to pay the required renewal fee and a delinquent fee in addition to the renewal fee. The fees may be paid by either personal or certified check, cash or money order, under such safeguards, rules and regulations as the board may prescribe. Checks returned to the board because of insufficient funds shall result in nonrenewal of the license, which will require the penalty fee for insufficient fund checks plus all other amounts due for renewal of the license before the license may be renewed. After one (1) year has passed from the expiration date of the license, a delinquent fee must be paid for each year up to three (3) years, after which the required examination must be taken. All applications for examination required by this chapter shall expire ninety (90) days from the date thereof.
  2. Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64.

HISTORY: Codes, 1942, § 8915-10; Laws, 1948, ch. 367, § 10; Laws, 1964, ch. 450, § 9; Laws, 1979, ch. 444, § 3; Laws, 1982, chs. 330, 448, § 4; Laws, 1983, ch. 487, § 10; Laws, 1987, ch. 516, § 11; reenacted, Laws, 1991, ch. 553, § 15; reenacted, Laws, 1993, ch. 596, § 14; reenacted, Laws, 1995, ch. 383, § 15; reenacted without change, Laws, 1997, ch. 513, § 15; Laws, 1997, ch. 588, § 35; Laws, 2000, ch. 485, § 5; reenacted without change, Laws, 2005, ch. 492, § 15; Laws, 2007, ch. 309, § 8; reenacted without change, Laws, 2010, ch. 487, § 15; reenacted without change, Laws, 2011, ch. 525, § 15; Laws, 2013, ch. 523, § 15, eff from and after July 1, 2013.

Joint Legislative Committee Note —

Section 15 of ch. 513, Laws of 1997, reenacted this section without change, effective June 30, 1997. Section 35 of ch. 588, Laws of 1997, effective July 1, 1997, amended this section. As set out above, this section reflects the language of Section 35 of ch. 588, Laws of 1997, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Laws of 1997, ch. 588, § 150, effective July 1, 1997, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2007 amendment added “Except as provided in Section 33-1-39,” at the beginning of the first paragraph.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment redesignated former undesignated paragraphs (1) and (2) and deleted “wig specialists” preceding “and instructors” in the second sentence of (1).

Cross References —

Cosmetologists eligible to take barber examination, see §73-5-12.

Master cosmetologist license, see §73-7-14.

Licensing of estheticians, see §73-7-18.

Licensing of manicurists, see §73-7-21.

Revocation, suspension or refusal of licenses or certificates of registration, see §73-7-27.

Fees, see §73-7-29.

Penalties for violations, see §73-7-37.

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S., Licenses §§ 80, 82, 84-86, 88, 91.

§ 73-7-21. Licensing of manicurists; requirements for manicurist to obtain cosmetology license [Repealed effective July 1, 2021].

  1. The board shall admit to examination for a manicurist’s license any person who has made application to the board in proper form, has paid the required fee, and who:
    1. Is at least seventeen (17) years of age;
    2. Can read, write and speak English;
    3. Has successfully completed no less than three hundred fifty (350) hours of practice and related theory in manicuring and pedicuring over a period of no less than nine (9) weeks in an accredited school of cosmetology in this or any other state; and
    4. Has a high school education or its equivalent.
  2. Licensed manicurists desiring to pursue additional hours to be eligible for a license as a cosmetologist may be credited with the three hundred fifty (350) hours acquired in studying and training to be a manicurist which may be applied to the number of hours required for a cosmetology license examination.
  3. The board shall adopt regulations governing the use of electric nail files for the purpose of filing false or natural nails.
  4. Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64.

HISTORY: Codes, 1942, § 8915-11; Laws, 1948, ch. 367, § 11; Laws, 1964, ch. 450, § 10; reenacted without change, Laws, 1983, ch. 487, § 11; Laws, 1987, ch. 516, § 12; reenacted, Laws, 1991, ch. 553, § 16; Laws, 1993, ch. 596, § 15; reenacted, Laws, 1995, ch. 383, § 16; reenacted and amended, Laws, 1997, ch. 513, § 16; Laws, 1997, ch. 588, § 36; Laws, 2000, ch. 485, § 6; reenacted without change, Laws, 2005, ch. 492, § 16; reenacted and amended, Laws, 2010, ch. 487, § 16; reenacted without change, Laws, 2011, ch. 525, § 16; Laws, 2013, ch. 523, § 16, eff from and after July 1, 2013.

Joint Legislative Committee Note —

Section 16 of ch. 513, Laws of 1997, effective June 30, 1997, reenacted and amended this section. Section 36 of ch. 588, Laws of 1997, effective July 1, 1997, also amended this section. As set out above, this section reflects the language of both amendments pursuant to Section 1-1-109 which gives the Joint Legislative Committee on Compilation, Revision, and Publication authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision, and Publication ratified the integration of these amendments as consistent with the legislative intent at the May 8, 1997, meeting of the Committee.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Laws of 1997, ch. 588, § 150, effective July 1, 1997, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted and amended the section by making a minor stylistic change.

The 2013 amendment redesignated former undesignated paragraphs as (1) through (4); substituted “electric nail files” for “power drills” and “nails” for “fingernails” in (3).

Cross References —

Renewal of license, see §73-7-19.

Revocation, suspension or refusal of licenses or certificates of registration, see §73-7-27.

Fees, see §73-7-29.

Penalties for violations, see §73-7-37.

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S., Licenses §§ 62, 63, 65, 66, 70-72.

§ 73-7-23. Reciprocity provisions [Repealed effective July 1, 2021].

  1. The board may, upon application, issue a license by reciprocity to any cosmetologist, esthetician or manicurist over the age of seventeen (17) years from any other state who has satisfactorily completed the required number of accredited hours in that state, provided the state board from which the applicant comes issues to cosmetologists, estheticians or manicurists, as the case may be, from the State of Mississippi a license under the same conditions. Applications must be accompanied by (a) proof satisfactory to the board that the required hours have been completed, and (b) the required reciprocity fee, which shall be paid to the board.
  2. An instructor from any other state may be qualified for a Mississippi instructor’s license upon presenting a valid instructor’s license and proof of a high school education or its equivalent, provided that the instructor (a) is not less than twenty-one (21) years of age, (b) has completed training equivalent to the State of Mississippi’s training as provided in Section 73-7-15 or has three (3) years or more of experience as a licensed instructor prior to application, (c) can read, write and speak English, (d) has completed twelve (12) semester hours in college courses approved by the board, and (e) has completed a minimum of five (5) continuing education hours in Mississippi board laws, rules and regulations. Such application must be accompanied by two (2) recent passport photographs of the applicant. Applicants shall pay the required license fee.
  3. An applicant for a Mississippi instructor’s license by reciprocity who has not completed the college courses requirement at the time of application may apply for a one-time temporary teaching permit, which shall be valid for six (6) months and shall be nonrenewable. Such application must be accompanied by proof of enrollment in college course(s), required permit fee, two (2) recent passport photographs of the applicant and other documentation as required for application for a Mississippi instructor’s license by reciprocity. Upon proof of completion of college courses and payment of the required license fee, a Mississippi instructor’s license shall be issued.
  4. The issuance of a license by reciprocity to a military-trained applicant or military spouse shall be subject to the provisions of Section 73-50-1.

HISTORY: Codes, 1942, § 8915-12; Laws, 1948, ch. 367, § 12; Laws, 1960, ch. 384, § 6; Laws, 1964, ch. 450, § 11; Laws, 1979, ch. 444, § 4; Laws, 1982, ch. 448, § 5; reenacted, Laws, 1983, ch. 487, § 12; Laws, 1986, ch. 344; Laws, 1987, ch. 516, § 13; reenacted, Laws, 1991, ch. 553, § 17; reenacted, Laws, 1993, ch. 596, § 16; reenacted, 1995, ch. 383, § 17; reenacted and amended, Laws, 1997, ch. 513, § 17; reenacted without change, Laws, 2005, ch. 492, § 17; reenacted without change, Laws, 2010, ch. 487, § 17; reenacted without change, Laws, 2011, ch. 525, § 17; Laws, 2013, ch. 350, § 10; Laws, 2013, ch. 523, § 17, eff from and after July 1, 2013.

Joint Legislative Committee Note —

Section 10 of ch. 350, Laws of 2013, effective from and after July 1, 2013 (approved March 18, 2013), amended this section. Section 17 of ch. 523, Laws of 2013, effective from and after July 1, 2013 (approved April 23, 2013), also amended this section. As set out above, this section reflects the language of Section 17 of ch. 523, Laws of 2013, which contains language that specifically provides that it supersedes §73-7-23 as amended by ch. 350, Laws of 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The first 2013 amendment (ch. 350), added the last paragraph.

The second 2013 amendment (ch. 523), deleted “or wigologists” twice in (1), following “manicurists” in the first sentence; in (2), substituted “a Mississippi instructor’s liencse” for “instructor’s examination,” added (a) and (e) and redesignated remaining phrases accordingly, and substituted “completed training equivalent to the State of Mississippi’s training as provided in Section 73-7-15 or has”; added (3); and made minor stylistic changes.

Cross References —

Examination and licensing of instructors, see §73-7-15.

Revocation, suspension or refusal of licenses or certificates of registration, see §73-7-27.

Fees, see §73-7-29.

§ 73-7-25. Demonstrator’s permit [Repealed effective July 1, 2021].

Every demonstrator in the field of cosmetology shall, before making demonstrations in a salon or school, apply for and obtain a permit from the board. For such permit, which shall be for one (1) year, the required fee shall be paid to the board. This section shall be construed to apply to demonstrators in salons and schools.

HISTORY: Codes, 1942, § 8915-13; Laws, 1948, ch. 367, § 13; Laws, 1964, ch. 450, § 12; Laws, 1979, ch. 444, § 5; Laws, 1982, ch. 448, § 6; reenacted, Laws, 1983, ch. 487, § 13; Laws, 1987, ch. 516, § 14; reenacted, Laws, 1991, ch. 553, § 18; reenacted, Laws, 1993, ch. 596, § 17; reenacted, Laws, 1995, ch. 383, § 18; reenacted and amended, Laws, 1997, ch. 513, § 18; reenacted without change, Laws, 2005, ch. 492, § 18; reenacted without change, Laws, 2010, ch. 487, § 18; reenacted without change, Laws, 2011, ch. 525, § 18; reenacted without change, Laws, 2013, ch. 523, § 18, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

Cross References —

Fees, see §73-7-29.

Penalties for violations, see §73-7-37.

RESEARCH REFERENCES

ALR.

Liability of cosmetology school for injury to patron. 81 A.L.R.4th 444.

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

CJS.

53 C.J.S., Licenses §§ 70-72.

§ 73-7-27. Filing, investigation and disposition of complaints against licensees; revocation, suspension or refusal of licenses or certificates of registration; notice and hearing; rendition of written decision; appeal from from decision of board; imposition of fines by board [Repealed effective July 1, 2021].

  1. Any complaint may be filed with the board by a member or agent of the board or by any person charging any licensee of the board with the commission of any of the offenses enumerated in subsection (2) of this section. Such complaint shall be in writing, signed by the accuser or accusers, and verified under oath, and such complaints shall be investigated as set forth in Section 73-7-7. If, after the investigation, the board through its administrative review agents determines that there is not substantial justification to believe that the accused licensee has committed any of the offenses enumerated, it may dismiss the complaint or may prepare a formal complaint proceeding against the licensee as hereinafter provided. When used with reference to any complaint filed against a licensee herein, the term “not substantial justification” means a complaint that is frivolous, groundless in fact or law, or vexatious, as determined by unanimous vote of the board. In the event of a dismissal, the person filing the accusation and the accused licensee shall be given written notice of the board’s determination. If the board determines there is reasonable cause to believe the accused has committed any of those offenses, the secretary of the board shall give written notice of such determination to the accused licensee and set a day for a hearing as provided in subsection (3) of this section.
  2. The board shall have the power to revoke, suspend or refuse to issue or renew any license or certificate provided for in this chapter, and to fine, place on probation and/or otherwise discipline a student or licensee or holder of a certificate, upon proof that such person: (a) has not complied with or has violated any of the rules and regulations promulgated by the board; (b) has not complied with or has violated any of the sections of this chapter; (c) has committed fraud or dishonest conduct in the taking of the examination herein provided for; (d) has been convicted of a felony; (e) has committed grossly unprofessional or dishonest conduct; (f) is addicted to the excessive use of intoxicating liquors or to the use of drugs to such an extent as to render him or her unfit to practice in any of the practices or occupations set forth in this chapter; (g) has advertised by means of knowingly false or deceptive statements; or (h) has failed to display the license or certificate issued to him or her as provided for in this chapter; or (i) has been convicted of violating any of the provisions of this chapter. A conviction of violating any of the provisions of this chapter shall be grounds for automatic suspension of the license or certificate of such person.
  3. The board shall not revoke, suspend or refuse to issue or renew any license or certificate, or fine, place on probation or otherwise discipline any person in a disciplinary matter except after a hearing of which the applicant or licensee or holder of the certificate affected shall be given at least twenty (20) days’ notice in writing, specifying the reason or reasons for denying the applicant a license or certificate of registration, or in the case of any other disciplinary action, the offense or offenses of which the licensee or holder of a certificate of registration is charged. Such notice may be served by mailing a copy thereof by United States first-class certified mail, postage prepaid, to the last-known residence or business address of such applicant, licensee or holder of a certificate. The hearing on such charges shall be at such time and place as the board may prescribe.
  4. At such hearings, all witnesses shall be sworn by a member of the board, and stenographic notes of the proceedings shall be taken. Any party to the proceedings desiring it shall be furnished with a copy of such stenographic notes upon payment to the board of such fees as it shall prescribe, not exceeding, however, the actual costs of transcription.
  5. The board is hereby authorized and empowered to issue subpoenas for the attendance of witnesses and the production of books and papers. The process issued by the board shall extend to all parts of the state and such process shall be served by any person designated by the board for such service. The person serving such process shall receive such compensation as may be allowed by the board, not to exceed the fee prescribed by law for similar services. All witnesses who shall be subpoenaed, and who shall appear in any proceedings before the board, shall receive the same fees and mileage as allowed by law.
  6. Where in any proceeding before the board any witness shall fail or refuse to attend upon subpoena issued by the board, shall refuse to testify, or shall refuse to produce any books and papers, the production of which is called for by the subpoena, the attendance of such witness and the giving of his testimony and the production of the books and papers shall be enforced by any court of competent jurisdiction of this state, in the same manner as are enforced for the attendance and testimony of witnesses in civil cases in the courts of this state.
  7. The board shall conduct the hearing in an orderly and continuous manner, granting continuances only when the ends of justice may be served. The board shall, within sixty (60) days after conclusion of the hearing, reduce its decision to writing and forward an attested true copy thereof to the last-known residence or business address of such applicant, licensee or holder of a certificate, by way of United States first-class certified mail, postage prepaid. Such applicant, licensee, holder of a certificate, or person aggrieved shall have the right of appeal from an adverse ruling, or order, or decision of the board to the Chancery Court of the First Judicial District of Hinds County, Mississippi, upon forwarding notice of appeal to the board within thirty (30) days after the decision of the board is mailed in the manner here contemplated. An appeal will not be allowed in the event notice of appeal, together with the appeal bond hereinafter required, shall not have been forwarded to the board within the thirty-day period. Appeal shall be to the Chancery Court of the First Judicial District of Hinds County, Mississippi. The appeal shall thereupon be heard in due course by the court which shall review the record and make its determination thereon.
  8. The appellant shall, together with the notice of appeal, forward to and post with the board a satisfactory bond in the amount of Five Hundred Dollars ($500.00) for the payment of any costs which may be adjudged against him.
  9. In the event of an appeal, the court shall dispose of the appeal and enter its decision promptly. The hearing on the appeal may, in the discretion of the chancellor, be tried in vacation. If there is an appeal, such appeal may, in the discretion of and on motion to the chancery court, act as a supersedeas. However, any fine imposed by the board under the provisions of this chapter shall not take effect until after the time for appeal has expired, and an appeal of the imposition of such a fine shall act as a supersedeas.
  10. Any fine imposed by the board upon a licensee or holder of a certificate shall be in accordance with the following schedule:
    1. For the first violation, a fine of not less than Fifty Dollars ($50.00) nor more than One Hundred Dollars ($100.00) for each violation.
    2. For the second and each subsequent violation, a fine of not less than One Hundred Dollars ($100.00) nor more than Four Hundred Dollars ($400.00) for each violation.

      The power and authority of the board to impose such fines under this section shall not be affected or diminished by any other proceeding, civil or criminal, concerning the same violation or violations.

  11. In addition to the reasons specified in subsection (2) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. Actions taken by the board in suspending a license when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

HISTORY: Codes, 1942, § 8915-14; Laws, 1948, ch. 367, § 14; Laws, 1964, ch. 450, § 13; reenacted without change, Laws, 1983, ch. 487, § 14; Laws, 1991, ch. 553, § 19; reenacted, Laws, 1993, ch. 596, § 18; reenacted, Laws, 1995, ch. 383, § 19; Laws, 1996, ch. 507, § 33; reenacted and amended, Laws, 1997, ch. 513, § 19; reenacted without change, Laws, 2005, ch. 492, § 19; reenacted without change, Laws, 2010, ch. 487, § 19; reenacted and amended, Laws, 2011, ch. 525, § 19; Laws, 2013, ch. 523, § 19, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted and amended the section by substituting “in the same manner as are enforced for the attendance” for “in manner as are enforced the attendance” in the last sentence in (6).

The 2013 amendment in (7), inserted “of the First Judicial District of Hinds County, Mississippi” following “to the Chancery Court” in the third sentence; in the fifth sentence, deleted “chancery court of the county and judicial district of the residence of the appellant, or to the” following “Appeal shall be to the” and deleted “at the election of the appellant” from the end of the sentence; and deleted former next-to-last sentence in (7), which read “The notice of appeal shall elect venue unless the appellant be a nonresident of the State of Mississippi in which event the board shall certify all documents and evidence directly to the Chancery Court of the First Judicial District of Hinds County for further proceedings.”

Cross References —

Witness fees generally, see §25-7-47.

Conduct of hearings regarding violations of chapter or rules and regulations discovered during investigations, see §73-7-7.

Fees, see §73-7-29.

Penalties for violations, see §73-7-37.

Suspension of State-issued licenses, permits or registrations for noncompliance with child support order, see §§93-11-151 through93-11-163.

JUDICIAL DECISIONS

1. In general.

Suspension of license to operate school of cosmetology obtained by misrepresentations, upheld. Geiger v. Mississippi State Board of Cosmetology, 246 Miss. 542, 151 So. 2d 189, 1963 Miss. LEXIS 477 (Miss. 1963).

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 11 et seq.

1A Am. Jur. Pl & Pr Forms (Rev), Administrative Law, Form 341.2 (complaint, petition, or declaration – by license holder – against administrative agency – to enjoin further proceedings to suspend or revoke license – attempt to suspend or revoke license on grounds not listed in statute authorizing suspension or revocation of license).

5 Am. Jur. Pl & Pr Forms (Rev), Barbers and Cosmetologists, Forms 1 et seq. (licensing and regulation).

5 Am. Jur. Pl & Pr Forms (Rev), Barbers and Cosmetologists, Form 4.

CJS.

53 C.J.S., Licenses §§ 82 et seq.

§ 73-7-29. Fees [Repealed effective July 1, 2021].

The State Board of Cosmetology shall assess fees in the following amounts and for the following purposes:

Initial license/renewal for cosmetologist, manicurist, esthetician, or wig specialist. . . . .$ 50.00

Instructor initial license/renewal. . . . .80.00

Master cosmetologist license/renewal. . . . .70.00

Delinquent renewal penalty — cosmetologist, manicurist, esthetician, wig specialist and instructor. . . . .50.00

There shall be no renewal fee for any licensee seventy (70) years of age or older.

Salon application and initial inspection. . . . .85.00

Salon reinspection. . . . .35.00

Salon change of ownership or location, or both. . . . .85.00

Salon renewal. . . . .60.00

Salon delinquent renewal penalty. . . . .50.00

Application and initial inspection for a new school. . . . .300.00

New school reinspection. . . . .100.00

School change of ownership. . . . .300.00

School relocation. . . . .150.00

School renewal. . . . .75.00

School delinquent renewal penalty. . . . .100.00

Duplicate license. . . . .10.00

Penalty for insufficient fund checks. . . . .20.00

Affidavit processing. . . . .15.00

The State Board of Cosmetology may charge additional fees for services which the board deems appropriate to carry out its intent and purpose. These additional fees shall not exceed the cost of rendering the service.

The board is fully authorized to make refunds of any deposits received by the board for services which are not rendered. Refunds will automatically be made on overpayment of fees. Refunds will be made on under payments by written requests from applicants. If no request for refund is made within sixty (60) days, the fees will be forfeited.

HISTORY: Codes, 1942, § 8915-15; Laws, 1948, ch. 367, § 15; Laws, 1960, ch. 384, § 7; Laws, 1964, ch. 450, § 14; Laws, 1979, ch. 444, § 6; reenacted, Laws, 1983, ch. 487, § 15; Laws, 1987, ch. 516, § 15; Laws, 1990, ch. 346, § 1; reenacted, Laws, 1991, ch. 553, § 20; reenacted, Laws, 1993, ch. 596, § 19; reenacted, Laws, 1995, ch. 383, § 20; reenacted and amended, Laws, 1997, ch. 513, § 20; Laws, 2000, ch. 485, § 7; reenacted without change, Laws, 2005, ch. 492, § 20; reenacted without change, Laws, 2010, ch. 487, § 20; reenacted and amended, Laws, 2011, ch. 525, § 20; reenacted without change, Laws, 2013, ch. 523, § 20, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted and rewrote the section.

The 2013 amendment reenacted the section without change.

Cross References —

Delinquency fee in addition to an annual renewal fee, see §73-7-19.

OPINIONS OF THE ATTORNEY GENERAL

Fees paid to the board for a license application or renewal where the license has not been issued may not be refunded. Luckett, Dec. 19, 1997, A.G. Op. #97-0785.

§ 73-7-31. Exceptions to applicability of chapter [Repealed effective July 1, 2021].

Nothing in this chapter shall apply to:

Hairdressing, manicuring or facial treatments given in the home to members of family or friends for which no charge is made.

Persons whose practice is limited to the application of cosmetic products to another person in connection with the sale, or attempted sale, of such products at retail, without compensation from such other person other than the regular retail price of such merchandise.

Barbers, and nothing in this chapter shall affect the jurisdiction of the State Board of Barber Examiners.

Persons engaged in the practice of hair braiding as defined in Section 73-7-71 who have completed the self-test part of the brochure on infection control techniques prepared by the State Department of Health and who keep the brochure and completed self-test available at the location at which the person is engaged in hair braiding.

HISTORY: Codes, 1942, § 8915-16; Laws, 1948, ch. 367, § 16; Laws, 1964, ch. 450, § 15; Laws, 1972, ch. 460, § 1; reenacted, Laws, 1983, ch. 487, § 16; Laws, 1987, ch. 516, § 16; Laws, 1988, ch. 537, § 3; reenacted, Laws, 1991, ch. 553, § 21; reenacted, Laws, 1993, ch. 596, § 20; reenacted, Laws, 1995, ch. 383, § 21; reenacted without change, Laws, 1997, ch. 513, § 21; reenacted and amended, Laws, 2005, ch. 492, § 21; Laws, 2008, ch. 509, § 1; reenacted without change, Laws, 2010, ch. 487, § 21; reenacted without change, Laws, 2011, ch. 525, § 21; reenacted without change, Laws, 2013, ch. 523, § 21, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted and amended the section by adding (d).

The 2008 amendment deleted the former last sentence of (d), which read: “This paragraph (d) shall stand repealed on July 1, 2008.”

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

Cross References —

Establishment of procedures and requirements for licensees and applicants for license to disclose his or her status as carrier of Hepatitis B or HIV, see §41-34-5.

Barbering generally, see §§73-5-1 et seq.

Injunctions to restrain unlawful practice of profession, see §73-51-1.

RESEARCH REFERENCES

Am. Jur.

11 Am. Jur. 2d, Barbers and Cosmetologists §§ 1, 2 et seq.

§ 73-7-33. Sanitation rules and regulations [Repealed effective July 1, 2021].

In addition to the rules and regulations that may be prescribed and promulgated by the board under authority of this chapter, the following rules and regulations shall be observed:

Every establishment must be kept sanitary, including all utensils and equipment, must be well ventilated and properly lighted. Each salon must be provided with hot and cold running water. Electrical appliances must be properly installed and grounded.

Cosmetologists shall be allowed to wear any type of clothing or apparel while at work as long as such clothing or apparel is sanitary.

Cosmetologists shall be allowed to use any type of hair roller as long as they do so in a sanitary manner.

Persons with a communicable disease or parasitic infection that is medically recognized to be a direct threat of transmission by the type of contact that practitioners have with clients are not to be permitted to practice in an establishment until their condition is no longer communicable under those circumstances. No work shall be performed on any patron having a visible disease unless the patron shall produce a certificate from a practicing physician stating that the patron is free from infectious, contagious or communicable disease. A cosmetologist’s license does not authorize such person to treat or prescribe for an infectious, contagious or any other disease.

A home salon must have a solid wall to the ceiling with an outside entrance, or if a door exists between the salon and the remainder of the house, the door must be kept closed at all times while service is being rendered.

HISTORY: Codes, 1942, § 8915-17; Laws, 1948, ch. 367, § 17; Laws, 1964, ch. 450, § 16; Laws, 1979, ch. 425; reenacted, Laws, 1983, ch. 487, § 17; reenacted, Laws, 1991, ch. 553, § 22; reenacted, Laws, 1993, ch. 596, § 21; reenacted, Laws, 1995, ch. 383, § 22; reenacted and amended, Laws, 1997, ch. 513, § 22; reenacted without change, Laws, 2005, ch. 492, § 22; reenacted without change, Laws, 2010, ch. 487, § 22; reenacted without change, Laws, 2011, ch. 525, § 22; Laws, 2013, ch. 523, § 22, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment in the fifth paragraph, substituted the first sentence for “Anyone having an infectious or contagious disease shall not practice in any establishment. Salon owners will be held responsible for knowingly permitting one with such disease to practice in his or her salon” at the beginning.

Cross References —

Penalties for violations, see §73-7-37.

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of statute or ordinance regulating beauty shops or beauty culture schools. 56 A.L.R.2d 879.

Liability of cosmetology school for injury to patron. 81 A.L.R.4th 444.

§ 73-7-35. Limitations on location of professional practice [Repealed effective July 1, 2021].

  1. No person licensed pursuant to this chapter shall practice his or her profession except within the physical confines of a salon possessing and displaying a properly executed license issued pursuant to Section 73-7-17. However, this requirement shall not prevent a person from rendering his or her services to any person who may be confined to his or her home, a hospital, or other place as a result of illness, and cosmetologists shall be permitted to render their services to deceased persons away from their salons.
  2. No salon owner licensed pursuant to this chapter shall allow a cosmetologist, esthetician, or manicurist to practice his/her profession in the salon without possessing a valid license issued pursuant to this chapter.

HISTORY: Codes, 1942, § 8915-17.5; Laws, 1964, ch. 450, § 17; reenacted without change, Laws, 1983, ch. 487, § 18; Laws, 1987, ch. 516, § 17; Laws, 1988, ch. 537, § 2; reenacted, Laws, 1991, ch. 553, § 23; reenacted, Laws, 1993, ch. 596, § 22; reenacted, Laws, 1995, ch. 383, § 23; reenacted without change, Laws, 1997, ch. 513, § 23; reenacted without change, Laws, 2005, ch. 492, § 23; reenacted without change, Laws, 2010, ch. 487, § 23; reenacted without change, Laws, 2011, ch. 525, § 23; Laws, 2013, ch. 523, § 23, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment deleted “or wig specialist” following “or manicurist” in (2); and made a minor stylistic change.

Cross References —

Penalties for violations, see §73-7-37.

§ 73-7-37. Penalty for violations of chapter; proceedings for orders enjoining violations or enforcing compliance with chapter; violations of court orders [Repealed effective July 1, 2021].

  1. The violation of any of the provisions of this chapter, including the use of fraudulent statements to obtain any benefits or privileges under this chapter or practicing one (1) of these professions without a license, shall constitute a misdemeanor, punishable in any court of competent jurisdiction at the seat of government, and any person or firm convicted of the violation of any of the provisions of this chapter shall be fined not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00). The court shall not be authorized to suspend or suspend the execution of the fine required under this section.
  2. If any person, firm or corporation violates any of the provisions of this chapter, the secretary of the board, upon direction of a majority of the board and in the name of the board, acting through the Attorney General or an attorney employed by the board, shall apply in the Chancery Court of the First Judicial District of Hinds County, Mississippi, for an order enjoining such violation or for an order enforcing compliance with the provisions of this chapter. Upon the filing of a verified petition in the chancery court and after notice as provided under the Mississippi Rules of Civil Procedure, such court, if satisfied by the sworn petition, by affidavit or otherwise, that such person has violated any of the provisions of this chapter, may issue an injunction without notice or bond, enjoining such continued violation and such injunction shall remain in force and effect until a final hearing. If at such hearing it is established that such person has violated or is violating any of the provisions of this chapter, the court may enter a decree permanently enjoining such violation or enforcing compliance with this chapter. In addition, the court may enter a judgment against such person for attorney’s fees, court costs and the actual costs incurred by the board in investigating the actions of such person for which the board brought the suit for an injunction. In case of violation of any decree issued in compliance with this subsection, the court may punish the offender for contempt of court and the court shall proceed as in other cases.
  3. The proceedings in this section shall be in addition to and not in lieu of the other remedies and penalties provided in this chapter.

HISTORY: Codes, 1942, § 8915-18; Laws, 1948, ch. 367, § 18; Laws, 1964, ch. 450, § 18; reenacted without change, Laws, 1983, ch. 487, § 19; Laws, 1991, ch. 553, § 24; reenacted, Laws, 1993, ch. 596, § 23; reenacted, Laws, 1995, ch. 383, § 24; reenacted and amended, Laws, 1997, ch. 513, § 24; reenacted without change, Laws, 2005, ch. 492, § 24; reenacted without change, Laws, 2010, ch. 487, § 24; reenacted without change, Laws, 2011, ch. 525, § 24; Laws, 2013, ch. 523, § 24, eff from and after July 1, 2013.

Editor’s Notes —

For the repeal date of this section, see §73-7-63.

Amendment Notes —

The 2005 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2013 amendment inserted “at the seat of government” in (1); in (2), substituted “the Chancery Court of the First Judicial District of Hinds County, Mississippi” for “any chancery court of competent jurisdiction” in the first sentence, substituted “chancery” for “proper” and deleted “or any judge thereof” following “such court” in the second sentence.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

ALR.

Products liability: hair straighteners and relaxants. 84 A.L.R.4th 1090.

Wig Specialists and Wig Salons

§§ 73-7-51 through 73-7-61. Repealed.

Repealed by Laws of 2013, ch. 523, § 25, effective from and after July 1, 2013.

§73-7-51. [Codes, 1942, § 8915-21; Laws, 1972, ch. 460, § 2; reenacted, Laws, 1983, ch. 487, § 20; reenacted, Laws, 1991, ch. 553, § 25; reenacted, Laws, 1993, ch. 596, § 24; reenacted, Laws, 1995, ch. 383, § 25; reenacted without change, Laws, 1997, ch. 513, § 25; reenacted without change, Laws, 2005, ch. 492, § 25; reenacted without change, Laws, 2010, ch. 487, § 25; reenacted without change, Laws, 2011, ch. 525, § 25, eff from and after July 1, 2011.]

§73-7-53. [Codes, 1942, § 8915-22; Laws, 1972, ch. 460, § 3; Laws, 1982, ch. 448, § 7; reenacted, Laws, 1983, ch. 487, § 21; reenacted, Laws, 1991, ch. 553, § 26; reenacted, Laws, 1993, ch. 596, § 25; reenacted, Laws, 1995, ch. 383, § 26; reenacted without change, Laws, 1997, ch. 513, § 26; Laws, 2000, ch. 485, § 8; reenacted without change, Laws, 2005, ch. 492, § 26; reenact