February 26, 2015 § Leave a comment
February 25, 2015 § Leave a comment
Nathan and Kathryn Robinson were married in January, 2004. At the time of the marriage, Kathryn was pregnant with the parties’ daughter, Bailey, who was born in July, 2004. During the pregnancy, Kathryn was diagnosed with Hodgkin’s lymphoma. Shortly thereafter, Nathan and Kathryn separated, and Kathryn moved in with her parents.
The couple were granted an irreconcilable differences divorce on May 3, 2005, and they agreed that Kathryn would have custody of Bailey.
Kathryn moved to her own place after the divorce. Over time, she developed neuropathy in her hands as a result of the chemotherapy she underwent for her lymphoma, which made it impossible for her to drive. She had to rely on her parents to help transport Bailey to and from school, which meant that the child often stayed overnight with her grandparents on school nights. She slept at Kathryn’s on weekends and during vacations.
In 2009, Nathan filed a modification action seeking custody of Bailey. He alleged that Kathryn’s health condition impaired her ability to care for Bailey, and that Kathryn had ceded her parental responsibility to her parents. Following a trial, the chancellor found that there had been no change in circumstances because Kathryn’s health condition existed at the time of the divorce, and that Kathryn had not abdicated her parental duties in favor of her parents. Nathan appealed.
In the case of Robinson v. Robinson, handed down February 10, 2015, the COA affirmed. The opinion by Judge Griffis agrees with the chancellor’s conclusion about the pre-existing condition, and recites the familiar rule that where the parties are aware of the condition at the time of the divorce, neither may try to use it later as a basis to modify. The court relied on the same principle to affirm the finding that Kathryn had not abandoned her role as a parent since both parties knew at the time of the divorce that she would have to have help from her parents with Bailey. The opinion distinguishes the case of McBride v. Cook, 858 So.2d 160 (Miss. App. 2003), in which the mother totally abdicated her parental role, which was unforeseen at the time of the original custody judgment.
As an attorney, you do not always know what all of the circumstances are that might affect a later proceeding. We don’t know from the COA case what the exact language was that effected the custody agreement in the divorce action. If you were Kathryn’s attorney at the time, wouldn’t it have made you look like a genius if you had spelled out specifically in the PSA what her health condition was at the time, and that she was going to have to rely on help from her parents, but that Nathan nonetheless agreed for her to have custody? What an airtight package that could have been.
I also wonder whether more emphasis on the neuropathy and its impact on continued custody, perhaps bolstered with some expert opinion testimony, might have tilted the result in Nathan’s direction. A good argument could be made that, although the Hodgkin’s was known at the time of the divorce, the complication of neuropathy was not, and it arguably has a direct detrimental effect on custody.
As the COA opinion pointed out, though, the record was clear that Kathryn had a pretty good track record of taking care of Bailey, even with her physical impairments, so the modification case was an uphill climb.
February 24, 2015 § 2 Comments
The blogosphere seems to be too young for its stars to begin winking out, but that is exactly what happened with the passing of Tom Freeland of Oxford, who died last Saturday at a young 59 years.
Tom first came to my attention as a reporting attorney on Jan Goodrich’s FOLO blog (now defunct). That blog bird-dogged various legal issues, and especially all of the litigation in which Dickie Scruggs was embroiled leading up to his spectacular criminal flame-out in 2007. Tom filled in important details for those following the cases, especially the criminal cases. Tom’s reporting was even referenced by the NYT in its reportage of the Scruggs affairs.
Tom began his own blog, NMissCommentor, in which he continued to share details of the Scruggs cases. He served up a large helping of entertaining general interest, as well. He posted about the Mississippi blues performers and blues culture, Mississippi music and musicians, and Mississippi writers. He talked about local food and recipes. There was political commentary, legal analysis, literary discussion, and general humor. His posts always drew a lively exchange of comments.
Tom was not only a blogger. He was a well-respected litigator and counselor who mentored many a young lawyer.
In sum, Tom was a civilized man and accomplished attorney who cared deeply about his home state and spoke through his blog to try to influence others.
The last time I saw Tom was last October the Friday before the Ole Miss – Alabama game. I had gotten an email from his wife, Joyce, inviting us to a soiree at their office off the Square in Oxford. Tom had hired a blues band to perform on the lawn in front of his law office, and the event was to honor former Gov. William Winter, who spoke to the assembled throng. There was a nice crowd. Many law students and recent law graduates were there. When Tom learned that we had in tow with us a couple who were Alabama fans, but were big Faulkner fans, too, Tom took time away from his other guests to take us on a tour of his office, which Faulkner frequented as a friend and client of Phil Stone, Tom’s dad’s law partner. Tom spun tales about Faulkner and Oxford, and had our bama friends in thrall. That was quintessential Tom, as I understand from his other friends who knew him far better than I did.
It’s hard to conceive that there will be no new, pithy posts on Tom’s blog to look forward to every week. I can’t imagine that there is another Mississippi blogger who could step into Tom’s shoes and offer a comparable range of insight into issues and things that matter to us in our state.
That’s a shame. There are niche legal blogs like this one, Philip Thomas’s, Jane Tucker’s, and Judge Griffis’s, and there is the acerbic and enigmatic Anderson. There are legal marketing blogs. But there is no one out there now with the breadth of Tom’s interests. He will be sorely missed. Sincere condolences to Joyce, their family, friends, colleagues, and staff.
February 23, 2015 § 2 Comments
In an earlier, more genteel era, it was unheard of that one lawyer would talk with a party already represented by another lawyer without that lawyer’s permission. Okay, maybe not unheard of, but certainly not considered acceptable behavior.
Nowadays, though, I’m hearing lawyers telling me about receiving emails from other lawyers to the effect that “I’ve talked to your client and she’s firing you; I’m sending you the paperwork in a couple of days.” It’s a dog-eat-dog world out there, I guess.
Two situations I heard of lately:
First: Lawyer One is preparing for trial and receives a letter from Lawyer Two to stop whatever One is doing because Two is going to substitute in the case and take over for trial. What is One to do?
Second: Attorney One receives a letter from Attorney Two that the executor of the estate wants One out, and Two in. The letter includes allegations of impropriety committed by One, with veiled threats of action, and enclosed is an affidavit of the executor confirming the contents of the letter.
Before going any further, I need to add that in both cases the second attorney never did make that appearance. In the first case, Lawyer Two simply never followed through. In the second case, Attorney Two sent a brief email saying he had decided not to get into the case.
The underlying principle here is that once a lawyer enters an appearance in a case he is in it until the judge signs an order letting him out. Just because another lawyer claims to be poaching the client, or the client says “you are fired,” does not relieve the lawyer of his responsibility to the court. As the lawyer of record, you are in it until the judge lets you out.
In Scenario One above, the dilemma is that the lawyer is prepping for trial, and now is in a quandary as to whether to continue to invest time in the case or get out. An obvious first step is to contact the client immediately to get some clear directions. If the client clearly wants the attorney out, or if the client will not communicate, the lawyer should file a motion immediately with the court asking for directions, spelling out the communication from the other attorney. She should do it without delay, because judges tend to be loath to further postpone a case that has been riding the docket for a while, and getting the judge to vacate a rare trial date is an uphill climb. She should give notice of hearing to the attorney on the opposing side, of course, and also the interloping lawyer, as well as the client. In this scenario there is always the option to cut the client loose — represented or not — provided it results in no irreparable harm.
In Scenario Two, the problem is that the Uniform Chancery Court Rules require the fiduciary to be represented by a lawyer. Most chancellors hew strictly to the rule and will not allow the lawyer who has entered an appearance to get out unless and until there is a replacement. Still, I would file a motion as soon as possible, with notice to the fiduciary and the interloping lawyer, asking the court for directions.
In both scenarios, while motions are pending I would continue to do whatever needs to be done to protect the client’s interest, such as meeting deadlines for identification of experts, issuing subpoenas, and so on, knowing full well that I might not be compensated for it. You can’t assume that the judge will let you out, so you have to do what needs to be done.
The question remains whether it is ethical to confer with a person about a matter in which the person is already represented by a lawyer. MRPC 4.2 clearly prohibits a lawyer in a case from communicating with another represented party about the subject matter of the case without permission of that party’s lawyer. It says that “In representing a client, a lawyer shall not communicate about the subject matter of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so” [Emphasis added]. Here’s what Professors Jackson and Campbell have to say about it:
Rule 4.2 is sometimes misinterpreted as preventing a lawyer from having contact with any represented person. As noted, the rule only applies if the lawyer himself has a client in a matter. For example, sometimes a represented client will seek to discuss her case with a second disinterested lawyer (who has no other client in the matter), as in circumstances where the client is considering firing the existing counsel to hire the second lawyer. Such conferences can be socially useful, as these consultations can give the client a second opinion regarding her representation. Such consultations can also give the client an opportunity to determine whether the client is being adequately represented at reasonable rates.
It is not unprofessional for the second disinterested lawyer to discuss options with the represented client Rule 4.2 does not apply in such contexts. The second lawyer does not need permission of the client’s existing counsel in order to have such a consultation with the represented client. Some lawyers are hesitant to “look over another lawyer’s shoulder” or to speak ill of another lawyer’s work. Others may not want to interfere with another lawyer’s client relationships. Any reluctance the second lawyer may have discussing the work of client’s existing counsel may be based on professional courtesy or on other factors. However, again, Rule 4.2 is not implicated in these consultations. [Footnotes omitted]
J. Jackson and D. Campbell, Professional responsibility for Mississippi Lawyers, § 21-3 (2010).
If you find yourself in the position of the interlopers above, do everyone a favor and refrain from notifying pre-existing counsel that you are going to jump in until you are absolutely certain that you are going to do it. Just because a person visits with you and extracts some advice from you does not necessarily make that person a client for court purposes. If you quoted a fee and made it clear that you will not enter the case until you are paid the agreed sum, there is no need to act until it has been paid.
February 21, 2015 § 1 Comment
R.I.P. Attorney Tom Freeland of Oxford earlier today.
February 20, 2015 § Leave a comment
February 19, 2015 § 2 Comments
Reprise replays posts from the past that you might find useful today.
CONTEMPT OF CLERK
March 27, 2012 § 10 Comments
Not too long ago I pointed out to a young, out-of-district lawyer that the lawyer had failed to get the chancery clerk to mail a copy of the publication summons to the defendant’s last-known address and note the fact on the docket, and that I could not sign the judgment until that requirement had been met.
Later, in the clerk’s office, I was told to my chagrin that the lawyer had entered in a huff, tossed the process on the counter, and said “The judge said that y’all messed up and didn’t send the process to the defendant.” The unhappy barrister complained that about a wasted trip from [somewhere far away to the west], and demanded that the clerk send the process by certified mail immediately, and then left in a cloud of dust, no doubt headed back to the more rarified and privileged atmosphere from whence that poor soul had descended into what I am sure the lawyer considered to be our little backwater corner of legal hell.
Not to be too picky — or prickly — but I never told that lawyer that the clerk had messed up. Nor did I instruct counsel to have the process mailed by certified mail (which the poor clerk did anyway at her own expense … Rule 4 only requires regular mail). And I certainly did not suggest to the lawyer to blame it all on the clerks, or even that the clerks were to blame at all.
This unfortunate episode illustrates what that sage chancellor, Frank McKenzie of Laurel, aptly characterizes as “Contempt of clerk.” It’s conduct that I’ve described here before.
Let’s face it: the chancery clerk is in a unique position to make your job as a lawyer enjoyably easy at one extreme or excruciatingly painful at the other, with myriad shades of gray in between. You get to choose how you get treated by how you deal with the clerks.
In this particular case, when the lawyer filed the process, the lawyer should have made a simple request of the clerk to mail the process, and should have provided a copy for the clerk to do so, and should have asked the clerk (politely) to do it right then so that she could watch the entry being made on the docket. And should have done so politely.
Now, you may ask “Why should the lawyer take responsibility to do that when MRCP 4 clearly says that the clerk is the one who shall mail, etc.” Well, there are several considerations that come into play:
- You may look high and low in the rules, and you will find no penalty for the clerk failing to mail the publication; on the other hand, you and your client pay the price if you do not see that it is done.
- You, not the clerk, are responsible for the proper handling and processing of your case.
- As a practical matter, how are the clerks to know that this needs to be done in a given case unless you tell them? Chancery clerks are busy handling hundreds of transactions, many of which involve minute details, and you are merely one more customer among many, many. No matter how important you think that you and your case are, every other customer feels exactly the same way.
- The easier you make the clerk’s job, the more likely it is that it will be done to your satisfaction.
Part of making the clerk’s job easier is human relations. It doesn’t take much sense to realize that a pompous, arrogant, demanding jackass will experience a certain level of customer service, and a polite, cooperative, prepared professional will have an entirely different experience. Vinegar vs. honey.
In my opinion, there is never a reason to treat clerks in a demeaning or rude fashion. Ever. For one thing, they are in a demanding job and they are doing the best they can do. For another, they are an important arm of the courts, and they deserve the same respect from you as a professional that you show to all other court personnel.
The penalty for contempt of clerk can be drastic. Would you rather get a call the day after you mailed that complaint telling you that you had neglected to enclose a check for court costs, or would you rather find out six weeks later that your pleadings have been setting on a desk awaiting your check? I’m not saying that a clerk would be so unprofessional as to do something like that intentionally, but with scarce resources, clerks have to triage matters, and, human nature being what it is, butterflies draw more favorable attention than dung beetles.
February 18, 2015 § 1 Comment
I’ve posted here, here, here, here, and here about the unfortunate guardianship of Demon B. McClinton, who inherited more than $3 million dollars from his mother, who died in 1999. The guardianship was closed in 2006, but reopened later to investigate abuses in the case.
What the guardian ad litem discovered was that Demon’s guardian and others had pilfered the account to near-extinction. The attorney, Michael J. Brown, was jailed until he could either account for the missing millions, or until he could replace them. He ultimately could do neither.
Disenchanted with the chancellor’s ruling finding him in contempt, Mr. Brown appealed. You can read how the COA disposed of his appeal in In re: Guardianship of Demon B. McClinton: Michael J. Brown v. Thomas A. McClinton, decided by the COA February 3, 2015. To put it in blunt terms, his appeal was for naught.
You can read the COA’s opinion by Judge Roberts for yourself. The point I am intending to drive home here is that there are serious professional, financial, legal, and even criminal repercussions awaiting lawyers who ignore or flout their duties in fiduciary matters. Read the Uniform Chancery Court Rules, Part 6, for yourself. Or, simply consider what happened to Mr. Brown. His mishandling of this guardianship is a textbook example of how not to represent a fiduciary.
Oh, and lest you are chafing at the lawyer being saddled with the blame, check out what the court did to the guardian and his friends who benefited financially at the ward’s expense.
Sadly, however, as the opinion points out, there may be nothing that Mr. McClendon can recover from the malefactors. Whatever his dreams were for the comfortable estate that his mother left him will not be realized. There may be actions available against Mr. Brown’s malpractice carrier and the fiduciary’s bonding company. I don’t know that for a fact, but even if he pursues, those avenues, it’s doubtful that Mr. McClendon will ever recoup his losses.
Let’s not overlook the wreckage that Mr. Brown left in his wake. There is a legal practice destroyed and a reputation annihilated. The toll on his family, I am sure, has been devastating. All because he let a guardianship get out of control.
February 17, 2015 § Leave a comment
The children and widow shuffle into your office. The father and husband has passed on, and they want you to open his estate.
The only assets are a bank account in his sole name with a balance of $6,000, and stock certificates with a value of around $10,000. They’d like you to get the estate opened up so that they can divvy things up and get on with their lives.
Is an estate necessary to get them the money in the bank account and to transfer the stock?
Don’t forget that this property is most likely exempt so that an estate would not be necessary. You can read a prior post about that subject here. But even so, how can you get the funds into the hands of the family without probate?
MCA 81-5-63 provides that any “banking institution” in Mississippi may pay to the “successor” of the decedent any sum to the credit of the decedent up to $12,500, without any court order and free of any liability. The term “successor” includes: (1) the surviving spouse; or, (2) if no surviving spouse, the adult with whom the minor children are residing; or (3) if there is no surviving spouse or no minor children, then either parent of the decedent; or (4) if none of the above, then any adult sibling of the decedent.
MCA 91-7-322 allows any person indebted to a decedent, or having personal property of the decedent, or having negotiable instruments, including stock certificates, of the decedent, to deliver, transfer, or issue the item to the decedent’s successor (as defined above). There are several conditions attached to this code section. They must be incorporated into an affidavit presented to the holder that provides as follows:
- The value of the decedent’s entire estate, excluding liens and encumbrances, can not exceed $50,000; and
- At least 30 days have elapsed since the death of the decedent; and
- No application for appointment of an executor or administrator is pending, nor has one been appointed by a court; and
- The facts of the relationship to the decedent that establish the status of “successor.”
You should read these statutes carefully before advising your clients. The language above is merely a summary. Both statutes give the successor(s) power of disposition over the funds or assets.
These are tools you can use to avoid getting entangled in one of those estates that you can’t ever seem to wind up, and to which you devote many thankless and uncompensated hours. Only last week I commiserated with an attorney about one of those cases, and we agreed that it would be advantageous if lawyers had a crystal ball to divine the future of estates before taking them on. Alas, there is no such prophetical device. One has to rely on one’s own judgment without benefit of foresight.