Forbes v. St. Martin Reversed

May 27, 2014 § 10 Comments

Back in March, 2013, the COA reversed a chancellor’s ruling that granted summary judgment in favor of a Louisiana lawyer in a legal malpractice claim based primarily on a claim of breach of attorney-client fiduciary duties. The COA’s ruling in Forbes v. St. Martin was the subject of a post on this blog.

The MSSC, on May 22, 2014, reversed the COA’s ruling, reinstating and affirming the chancellor’s grant of summary judgment in the case.

If you do any contingent fee work, you should read this opinion. Also, Justice Lamar, for the majority, includes an interesting exposition on the principle that a lawyer’s violation of the Rules of Professional Conduct in and of itself does not necessarily give rise to a cause of action for malpractice against the lawyer.

In my 2013 post, I spelled out how fractured the COA was in its vote. Here’s what the MSSC’s looked like:

WALLER, C.J., KITCHENS AND KING, JJ., CONCUR. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR AND KING, JJ.; WALLER, C.J., JOINS IN PART. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND COLEMAN, JJ. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND CHANDLER, J. RANDOLPH, P.J., AND PIERCE, J., NOT PARTICIPATING.

So it was: Lamar, Waller, King and Kitchens for the majority; Dickinson, Chandler and Coleman in the minority; and Randolph and Pierce on the sidelines.

As I have said in both of these posts, there are many ethical and professionalism overtones in this case that you may find helpful, especially in the current trend in which others pore over lawyers’ work after the fact looking to discover anything actionable.

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§ 10 Responses to Forbes v. St. Martin Reversed

  • Do you folks believe that the Mississippi Bar is pristine and well-behaved on soliciting cases, making illegal payments, and those sorts of things that make this case disgusting?

    My reaction to the COA opinion was that it used one major factor– that St. Martin contracted to do a Mississippi case under circumstances that I have trouble seeing as questionable (he responded to contact from the plaintiff’s wife, not by soliciting). They said that because he’d not been admitted pro hac at that point, it was illegal.

    That is crazy.

    Then there’s the question of the illegal payments. Pretending that those are some sort of out-of-state immorality that we don’t see here is laughable. I’m fine with a general rule that lawyers (in state, out of state) get stripped of fees if they make illegal payments. Won’t bother me, although prior cases don’t support that. But the COA based its decision voiding the contract on the fact that St. Martin made that contract to do a Mississippi case before he was “admitted” here. There’s no justification for that under these circumstances beyond just the-guild-protects-the-guild.

    • thusbloggedanderson says:

      And if that’s going to be the rule, let’s not make it retroactive!

    • Sam says:

      You might have missed it here, or maybe I have. Very good discussion though.

      I read the COA opinion to say that i’s not that he signed up clients before being admitted. The COA opinion repeatedly talks about the Louisiana lawyer signed up Mississippi clients, on a Mississippi claim, that could only be litigated in Mississippi courts, and then deliberately tried to avoid the Miss. Rules of Prof. Conduct. I read the COA opinion to say that under these circumstances, the Louisiana lawyer would be ok if he observed the Miss. Rules of Professional Conduct. He can’t avoid them by simply staying off the pleadings. He doesn’t even have to be admitted pro hac vice, but he can’t willfully violate our rules governing lawyers.

      Also, what’s up with the SCT opinion not even mentioning the statutes against champerty and maintenance. Are they no longer effective? Does the SCT strike them down or simply ignore them?

  • I have had out-of-state lawyers call me with cases that wanted association. Example: A Memphis firm had a secretary whose husband was electrocuted on a construction job in Oxford. They needed local counsel before filing suit. They already had a contingent fee agreement.

    Is something wrong with that? The COA opinion would have voided that contingent free agreement. And, really, the local counsel is legally in the same boat as St. Martin. It’s a void contract.

    Where do you draw the line between what St. Martin did– responded to a call from a plaintiff’s wife– and what the guy who associated me in the case I described? I don’t see a line other than trying to protect our local guild from the depredations of the guilds next door.

  • Lucy says:

    Philip Thomas has a different take at his Mississippi Legal Malpractice blog.

    http://www.mississippilegalmalpractice.com/

    • Larry says:

      And Tom Freeland had yet another.

      • Lucy says:

        Sorry, meant different from Tom’s take. Your Honor’s view appears to be similar to Philip’s view. There appear to be many aspects of these opinions that will continue to attract discussion amongst the bar.

      • Larry says:

        The most troubling aspect of this is how an out-of-state lawyer can reap the benefits of litigation in Mississippi and yet operate contrary to our RPC. That creates all kinds of unsavory possibilities. I thought that’s what our pro hac vice rules were designed to prevent or at least ameliorate.

  • The absolute unreality about contracting and out of state counsel reflected in the COA majority opinion was shocking to me– as Tim notes, the $100k payment was clearly wrong, but the notion that a lawyer signing up a case (while not even in Mississippi!) acts illegally when he has not been admitted pro hac (how and where would he have been admitted? There was no case in court!) and that the contract is therefore void (including, one should expect, payments to the local counsel who did the case? Although the local counsel was apparently not sued).

    So I’m glad it got fixed. And, apparently, every one agrees that, even were the contract ruled void, the lawyers could get quantum meruit. The opinion by Justice Lamar is a well thought out opinion that anyone practicing in MIssissippi should read.

  • Tim says:

    The Miss. Supreme Court straightened out the mess made by the COA. I do not agree with St. Martin’s advances to his client or his tactics to get Mr. And Mrs. Forbes to sign a contract with him, but the litigation was handled properly by local counsel and successfully for their client. In both Mr and Mrs. Forbes repeatedly testified they were satisfied with their outcome, the services and fees of their lawyers. Neither understood their claim against St. Martin and only knew that their current lawyer said they had a claim.

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