Ethics | The Better Chancery Practice Blog

Boatwright is Dry-Docked

June 30, 2015 § 10 Comments

The legal travails of Toulman and Grace Boatwright have been chronicled here before.

To bring you up to date, this is the case in which: (1) a chancellor recused before ruling on a R59 motion; (2) the remaining chancellor refused to rule on the motion; (3) there was an appeal; (4) the COA reversed on the basis that the second chancellor should have ruled on the motion; (5) on remand the second chancellor recused, and a special chancellor took up the case and ruled on the R59 motion; (6) Toulman appealed again; (7) five (yes, 5) judges of the COA recused (if you’re counting, that’s seven recusals in this saga); and (8) the COA affirmed in Boatwright v. Boatwright, handed down June 23, 2015.

It seems a shame to draw the curtain closed on this epic, which arose in 2004, more than eleven years ago. (Of course, if cert is granted …)

Judges Carlton, Lee, and Irving would have granted a new trial, which would have kept this case going for perhaps an additional eleven years (optimistically speaking).

In case you’re trying to diagram this: McGehee wrote the prevailing opinion, in which Griffis, and Ishee joined; Carlton, Lee, and Irving dissented. Barnes, Roberts, Maxwell, Fair, and James did not participate. A 3-3 tie is an affirmance.

On the serious side, both the majority opinion, written by Special Judge McGehee, and the dissent, penned by Judge Carlton, address some weighty issues of judicial ethics arising out of the social relationships between attorneys and judges. This particular case came to grief when the chancellor accepted an invitation to go turkey hunting with one of the lawyers involved in the Boatwright litigation while the case was pending. Both opinions discuss the ethical considerations involved and their ramifications.

As with many ethical questions, there are not only murky areas, but different people in good faith can see things differently and draw different conclusions, as was the case here.

What is sometimes difficult to see is where to draw the line. In the Guardianship of McClinton case decided only last February by the COA, the court brushed aside attorney Michael Brown’s argument that the judge had an improper social relationship with another attorney in the case because the judge frequently had lunch with that attorney and they attended college football games together. For those of us here on the ground, it can be hard to draw distinctions so as to arrive at a firm idea of appropriate conduct.

The main thing is for us all to take to heart the serious ethical implications involved in the social interactions between lawyers and judges, and to be sensitive to them. It’s absolutely true that litigants, their families and friends, and passers-by are watching everything we do and drawing their own conclusions.

Playing with Dynamite

May 12, 2015 § 2 Comments

If a husband and wife came into your office and wanted you to represent them both in an ID divorce, what would you say? I think, and would hope, that the vast majority of us would decline on ethical grounds and offer to represent only one, not both.

How would it work, anyway, to represent both parties? You could put them in separate rooms and shuttle between. You could run to one room and advise the husband against agreeing to pay any alimony, and then run to another room and advise the wife to hold out until the husband agrees to alimony. Absurd? I’ll say.

Mississippi Rule of Professional Conduct (MRPC) 1.7 precludes representation of opposing parties in litigation unless certain conditions are met. Ethics Opinion number 80 of the Bar issued March 25, 1983, makes it clear that joint representation in an irreconcilable differences divorce is unethical:

The Committee is, therefore, of the opinion that the representation of both parties to a no-fault divorce violates the Rule 1.7, MRPC, and that it is, therefore, unethical for a lawyer to undertake such multiple representation.

How to handle it is set out in this language of the Opinion:

There is nothing wrong at all with one of the parties to a No-Fault Divorce being without an attorney, so long as that party, either H or W is properly informed by the spouse’s attorney that (1) that party is not represented by the spouse’s attorney, (2) the spouse’s attorney will not undertake to advise that party on any aspect of the case as to his or her rights, and (3) that party has a right to obtain an attorney to advise him or her and to review any of the agreements, pleadings or decrees which will be prepared. See Rule 4.3, MRPC.

A recent COA case involved dual representation and a challenged outcome. Leta Collins and Kenneth Collins were divorced from each other in 2011. They had filed a joint complaint for divorce on the sole ground of irreconcilable differences. The pleading stated that “The parties together have been represented by [Name of the Attorney], and was signed by that attorney as “Counsel for Leta D. Collins and Kenneth J. Collins.” In the PSA, which was approved by the court, Leta relinquished all interest in Kenneth’s financial assets and retirement.

More than a year later, Leta discovered that she had not known of more than $500,000 in financial assets that Kenneth had at the time of the divorce. She filed a R60 motion, but she did not allege that a fraud had been committed. The chancellor denied the motion, and Leta appealed.

In the case of Collins v. Collins, decided May 5, 2015, the COA affirmed. Judge Fair wrote this for the court:

¶24. Leta argues that the marital property was not equitably distributed because she and Kenneth were represented by the same attorney during the divorce. She alleges that her lack of independent advice and counsel led her to sign the unfair PSA.

¶25. The joint complaint for divorce states “[t]he parties together have been represented by M. Chadwick Smith,” and it was signed by Smith as “attorney for” both parties. Leta testified she and Kenneth believed they were represented by the same attorney. Leta argues this was a direct violation of Mississippi Rule of Professional Conduct 1.7(a), which prohibits representation of “a client if the representation of that client will be directly adverse to another client,” unless certain conditions are met.

¶26. The chancellor addressed this issue in her findings from the bench, stating that

when Mr. Chadwick Smith came in with his document, the final decree, I inquired of him who he represented because the divorce had the words that Ms. Collins’[s] counsel very ably draws to attention, that he represented both. And he stated, “I only prepared the paperwork, Judge. That’s what it says on there, ‘Prepared by.’” Only after the assurances of Mr. Chad Smith did I accept the parties’ divorce, and I signed the same on the 8th day of June 2011. Thus the allegations that Ms. Collins seeks to present that Mr. Collins committed a fraud on this court are fundamentally vested against Mr. Chad Smith.

¶27. Leta testified that she was the one who had actually prepared the PSA, based on her prior divorce papers, with some contributions from Kenneth. Kenneth likewise testified that Smith did not make any decisions for them. As the chancellor found, if Smith violated the Rules of Professional Conduct by engaging in dual representation, it was not a sufficient basis to modify the divorce decree. This issue is without merit.

What saved the attorney here apparently was that the parties had specifically waived financial disclosures, and it was Leta, and not the lawyer, who prepared the PSA. Both parties acknowledged that the lawyer gave them no advice at all. It did not help Leta’s cause, if you read the rest of the opinion, that it took her a year and some months to seek the court’s assistance.

A few thoughts:

Don’t let anything about the peculiar facts in this case mislead you into believing it’s ever okay to represent both parties in an ID divorce. It’s not. Ever. It’s unethical. And if it’s unethical, it can cost you professionally. Don’t do it. Ever.
Any lawyer who states on a joint complaint for divorce that he represents both parties is asking for trouble. That in and of itself is a statement admitting an ethical violation.
I must be getting old (and I admit I am), but I am seeing more and more of people with JD after their names taking the position that “I only drafted papers for the parties,” or “I simply typed and submitted what they gave me,” or “this is what the client insists on doing.” Whatever happened to lawyers (JD’s) as counselors at law? Have lawyers gone from being legal advisors and guides to being high-priced clerk-typists? What is the point of having a lawyer when anyone with a word-processing program and a laptop can produce pleadings and an agreement? What is the point of having a lawyer if it is not to obtain legal advice? This trend, particularly among young people with JD after their names troubles me greatly. Notice that I said “JD after their names” and not lawyers. Just because you have JD after your name does not make you a lawyer. What makes you a lawyer is representing, protecting, and looking after the legal interests of a client. If all you’re doing is being a paying customer’s stooge, or acting as their clerk-typist, all you are is a JD, not a lawyer.
In this case, the parties themselves acquiesced in this awkward arrangement, which created an excuse for it under MRPC. Had they not, I think Ms. Collins had a legitimate beef, and maybe a viable lawsuit against their joint lawyer. But although it gets the lawyer out of this particular bind, I don’t think that the parties’ acquiescence can excuse this ethical breach. The lawyer, not the parties. has the higher duty and is ethically bound.
If you ever draft a joint complaint, make doubly, triply sure that you make it clear which party you represent, and that you have not, and will not provide the unrepresented party with any legal advice, and that she has the right to have attorney advise him or her and to review any of the agreements, pleadings or decrees which will be prepared.
Better yet: never, ever, ever, ever file a joint complaint for divorce on the ground of irreconcilable differences.
And, for Pete’s sake, be an attorney and advise your client. That’s what you went to law school for.
Play fast and loose with the ethical rules and you are playing with dynamite.

The Honorable Profession

March 23, 2015 § 1 Comment

A piece on a law listserv recently talked about the popular perception of lawyers as dishonest, and contrasted it with Abraham Lincoln’s reputation as an honest lawyer and politician.

What caught my eye in the short essay was this quote from Mr. Lincoln:

There is a vague popular belief that lawyers are necessarily dishonest…the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief—resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.

I don’t know about his characterization as “vague.” These days, My impression is that the popular belief is more vivid than vague.

And who can blame folks, what with the several lawyer scandals that have made headlines. Thank goodness for the financiers, securities frauds, and members of congress who have bumped the legal profession off the unpopularity bulletin boards lately.

One thing that strikes me in Mr. Lincoln’s statement is that juxtaposition of the words “necessarily dishonest.” That usage is fraught with meaning. It conveys that, in order to do one’s job as a lawyer, it is necessary to be dishonest. Is that the popular conception? That’s what pop culture would suggest. There is, after all, a television series in which a law professor teaches students about how to skirt and violate the law and get away with it (that’s my impression; I haven’t bothered to watch any episodes). I guess I could go on and on, but you could also, so I’ll leave it at that.

I think the vast majority of lawyers strive mightily to be not only honest, but also honorable. You can not be one without the other.

Honesty and honor are two closely related concepts. In fact, their root words are the same:

“Honesty” derives from the Old French (h)oneste, which in turn derives from the Latin honestas. The Latin noun was formed from the adjective honestus, likely deriving from honos, “honor,” which is of uncertain etymology. The Roman linguist Varro suggested onus, “burden,” as the root of honos, as if honor weighs us down morally. In his encyclopedic work Etymologiae, likely composed in the seventh century of the Common Era, Isidore of Seville defined honestas as honor perpetuus, literally “perpetual honor,” and then more straightforwardly as honoris status, “the condition or state of honor.” Around 1930, the classical philologist T. G. Tucker suggested that the root of honos was *ghen-, to “make big, full,” but a definitive derivation remains elusive. The first definition of honestas given by the Oxford Latin Dictionary is “Title to respect, honourableness, honour,” followed by “Moral rectitude, integrity,” in which sense it was frequently opposed to utilitas, “expediency.” Cicero refers to a dissensio, or conflict, between the two, and Horace praises Lollius for preferring the honestum to the utile. Less frequently honestas was used in the sense of “Decency, seemliness,” one of the early secondary senses of “honesty” in English. [From In Character]

So, to get down to the root of it, the honest person is worthy of being honored, is perpetually bearing the burden and responsibility of being honest, morally right, with integrity, decency, and seemliness. The dishonest person is dishonorable, unencumbered by rectitude, lacking integrity, expedient, indecent, unseemly.

Of course, the concept of dishonesty has many shades. On one extreme is outright deceit. On the other is lack of candor and dissimulation. Every action between those two brackets is dishonest.

With honesty comes credibility. I can tell you as a fact-finder in court that evasiveness and dissembling take almost as heavy a toll on one’s credibility as out-and-out lying. A mere tinge of dishonesty can tarnish one’s honor. Even an appearance of impropriety can be fatal.

Thanks to Winky Glover

Trust Account Woes

March 19, 2015 § 2 Comments

The facts in Mississippi Bar v. Ogletree, handed down March 5, 2015, are straightforward:

¶3. . . . In January 2011, John Buckley hired Ogletree to represent him in a child-support modification matter. Ogletree requested a $1,000 retainer, from which he would charge $250 per hour. Buckley gave Ogletree a check for $400 as partial payment of the retainer. While Ogletree maintained three trust accounts at the time, he did not deposit Buckley’s $400 check into any of them. Rather, the check was deposited into Ogletree’s general operating account. Ogletree subsequently terminated his representation of Buckley. Ogletree wrote Buckley a check for $400 from one of his trust accounts to refund Buckley’s partial payment of the retainer. The check was returned for insufficient funds. Ogletree then delivered $440 in cash to Buckley.

Buckley’s wife, apparently unhappy with the caliber of representation, filed a bar complaint against Ogletree. The Bar, in its investigation, asked for Ogletree’s trust account information, which Ogletree could not produce. Instead, what records he had showed that he had a practice of commingling funds and using client funds to pay his personal expenses, and, worse, that his trust accounts were overdrawn from time to time.

The bar filed a Formal Complaint, and the Complaint Tribunal recommended a six-month suspension. Aggrieved, the Bar appealed, taking the position that a three-year suspension was warranted by the facts and precedent. The MSSC affirmed the Complaint Tribunal. Justice Coleman dissented, joined by Justice Randolph.

You can read the opinion for your own edification, but here are a few thoughts, especially for the young lawyers who haven’t given this much thought:

Mr. Ogletree got off relatively light, if you can call not being able to practice the profession by which you earn a living for six months “light.” The fact is, as Justice Coleman’s dissent points out, misconduct involving trust accounts is serious misconduct, and disbarment is not out of the question.
The purpose of a trust account is to hold the client’s money in trust until it is either withdrawn by agreement after having been earned by the lawyer, or is paid out according to the directions of the client. The client funds must be deposited in an account separate from the lawyer’s firm and personal accounts. The trust account should be in an entirely separate bank from the client’s firm and personal accounts.
Before you withdraw any funds from a trust account, you should have authorization of the client. If the withdrawal is for fees or expenses, you should spell out how that will be done in a written agreement with your client.
You must keep meticulous records of your trust account transactions, itemizing records of specific client deposits and withdrawals. Failure to keep adequate records of your trust account transactions is a violation in and of itself.
Mr. Ogletree testified that he usually moved money and made personal deposits from his own funds to balance the accounts. That won’t work. You can’t “borrow” money from your trust account, no matter how badly you’re strapped, and “replacing” the funds before the transgression is discovered does not undo the wrong.
Mr. Ogletree pled in his defense that his wife had been seriously ill, and that her illness had taken an emotional and physical toll on him. No doubt that swayed the majority of the Tribunal and the MSSC to pare down his punishment. Still, what effect would it have on your practice to close your doors for six months, much less three years?

When it comes to your trust account, don’t cut corners, keep accurate records, and never, ever succumb to the temptation to dip into it as a rescue fund.

Dealing with the Intruder

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.

From the Land of Broken Dreams

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.

A Higher Duty

February 4, 2015 § 5 Comments

Many lawyers get into the mindset that winning is the most important thing, and it shows up in their take-no-prisoners, no-holds-barred, Rambo-ish approach to litigation. Discovery is adversarial and contested, sanctions are threatened at the slightest slight, and aggressive motion practice is used like a jousting match of yore.

Those lawyers point to the duty in our professional rules to represent the client zealously, within the bounds of the law. The emphasis, though, is on zeal.

Consider, however, this scenario:

You are representing a young mother in a custody contest. Her former husband is trying to get custody of their 3-year-old son, who has had bruises on his legs, and who has nightmares and is a bedwetter. The father knows something is wrong, and as discovery proceeds it is apparent that he does not have enough solid information to make a case of change in circumstances and adverse effect. The court has not appointed a GAL because the allegations to this point do not warrant it. You, however, learn as the case goes on that your client had a live-in boyfriend who did, indeed, whip the child. The boyfriend is a convicted felon with a violent history, and your client is afraid of him. The other side knows nothing about this, and has not even asked anything in discovery that your client had to lie about to conceal the information. When you confront her with the new-found information, she admits it, but assures you that she made the boyfriend leave during the litigation, although he has made it clear that he will return when the case is over.

What do you do? On the one hand, if you voluntarily disclose the information without a specific discovery request for it, you will have violated your client’s confidentiality. And the Rambo in you has to acknowledge that it will surely send the case plummeting from its heights as a sure winner to the depths of loserdom. On the other hand, it certainly does not seem like it’s in the best interest of the child to be in the mother’s home with that violent boyfriend, and you know your chancellor well enough to know that if those facts came to light, she would not hesitate to protect the child.

The highest and most serious duty of a chancellor is to do what is in the best interest of a child. The best interest of the child is always the “polestar consideration” in every custody and child-affecting decision in chancery court. The rules of evidence do not trump that responsibility, nor do considerations of winning and losing, attorney-client privilege, or anything else.

As an officer of the court, you may not do anything that thwarts the court in its duty. You may not stifle the truth in such matters, or suppress evidence, or do anything that will result in compromising the safety of a child.

So how can you act and still maintain the confidentiality of your client? If I were the attorney, I would file a motion for appointment of a GAL. No details need to be pled. You could recite that the father’s suspicions should be investigated for the best interest of the child, and leave it at that. A competent GAL will ferret out the truth.

A chancellor told me recently of a case he had in which he overruled the father’s petition to modify custody. It was unquestionably a case in which the father was unfit, and the mother’s situation was better for the child. It was not a close case. Seven months later, however, the mother’s live-in, convicted-felon-boyfriend shot and killed the four-year-old son because he wet the bed. No one hid the information that the mother had someone like that living with her from the judge; it was a situation that developed after the case was concluded. Had it been part of the facts existing at the time of the modification, the judge could have taken other measures to protect the child, but only if someone made it known.

In my opinion, in cases involving the best interest of a child, you have a higher duty.

What it Means When You Sign a Pleading

November 13, 2014 § Leave a comment

We talked Monday about what can happen when one knowingly files a false pleading.

Aside from the fact that it’s patently unethical to do so, there is a specific requirement in the MRCP about a lawyer’s representations to the court via her pleadings. It’s in R11(a), which states in part:

Every pleading or motion of a party represented by an attorney shall be signed by at least one attorney of record … The signature of an attorney shall constitute a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay …

That’s pretty straightforward. You have to have read the pleading, and if you fail to do that, you are still responsible for its contents since you certified to the court that you are aware of what is in it. You have to do more than take your client’s word for it that there is good ground to support the claims, because you are certifying to the court that you have made sufficient inquiry to determine that it is, indeed, a meritorious claim. And you can never file an unmeritorious pleading just to hold things up while your client makes good his escape or otherwise arranges his affairs to his advantage.

If the court finds that you have not signed pleadings or signed them with intent to defeat the purpose of the rule, you are subject to the sanctions in R11(b), including discipline, reasonable expenses and attorney’s fees. The sanctions extend both to the client and to the lawyer.

Carelessness is no excuse. The rule requires that you put some thought and attention into the pleadings that you file.

A Case for Sanctions

November 10, 2014 § 3 Comments

Louis Pannagl had made a will in 2001. In April, 2011, he contacted Kellems, a lawyer, about changes he wanted to be made in his will. He sent Kellems handwritten notes with the changes, including a document that included the language, “The Will of April 23rd 2011 … has been destroyed and March 23, 1993 [sic].” It is undisputed that the notes were in Louis’s handwriting.

Louis died on June 8, 2011, and Louis’s widow, Donis, contacted one of Louis’s lawyers, who sent her the notes described above. Donis gave the notes to her son, David Lambert, Louis’s step-son, who read them and passed them on to Holmes, an attorney he had hired to open Louis’s estate. On August 19, 2011, a sworn petition was filed, with Louis’s will attached, alleging that the original had been lost and that the will had not been destroyed by Louis with intent to revoke it. The handwritten notes were not attached to the petition.

Both of Louis’s biological son, Curt, and daughter, Sammi, filed contests to probate of the will. It was not until around a year after the petition had been filed that they found out, in the course of discovery, about the handwritten notes revoking the prior will(s). Sammi filed for summary judgment and sanctions under MRCP 11 and the Litigation Accountability Act. The chancellor granted summary judgment, but declined to impose sanctions.

Sammi and Curt appealed the denial of sanctions.

In the case of Estate of Pannagl: Pannagl and Spence v. Lambert and Holmes, the COA on November 4, 2014, reversed. Since this case makes some important points about sanctionable behavior and the applicable law, I am quoting at length:

¶7. In this appeal, Curt contends that Lambert’s failure to include the document in this petition constituted fraud; thus, the chancellor erred in failing to award sanctions. Curt argues that Lambert, having read the handwritten document prior to filing his petition, knew the will had been destroyed with an intent to revoke it and, therefore, had no hope of success. According to Curt, the action was frivolous and constituted a fraud on the court because Lambert withheld the document and filed a sworn petition alleging that the original will was lost and not destroyed by Louis with the intent to revoke it.

¶8. Mississippi Rule of Civil Procedure 11(b) states, in pertinent part:

If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.

M.R.C.P. 11(b). The Litigation Accountability Act states, in pertinent part:

Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification . . . .

Miss. Code Ann. § 11-55-5(1) (Rev. 2012). The phrase “without substantial justification” is defined by the Act as a filing that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Miss. Code Ann. § 11-55-3(a) (Rev. 2012). “The term ‘frivolous’ as used in this section takes the same definition as it does under Rule 11: a claim or defense made ‘without hope of success.’” In re Spencer, 985 So. 2d at 338 (¶26) (quotations omitted). “A plaintiff’s belief alone will not garner a ‘hope of success’ where a claim has no basis in fact.” Foster v. Ross, 804 So. 2d 1018, 1024 (¶21) (Miss. 2002) (quotations omitted). Whether a party has any “hope of success” is an objective standard to be analyzed from the vantage point of a reasonable plaintiff at the time the complaint was filed. Tricon Metals & Servs. Inc. v. Topp, 537 So. 2d 1331, 1335 (Miss. 1989).

¶9. The chancellor found the following: (1) it was unclear whether the will had been revoked or if Louis merely contemplated doing so; (2) more information was required to determine Louis’s intent; (3) the handwritten document was insufficient to put a proponent of a will having minor children as beneficiaries on notice that it had been revoked; (4) the handwritten document was not subscribed, but merely signed at the top, and the various copies of the document contained different-color ink; and (5) tendering a copy of Louis’s will was not so egregious as to warrant the imposition of sanctions against Lambert and Holmes.

¶10. The Mississippi Supreme Court has found that a misrepresentation of pertinent facts to a chancellor, who entered an order based on the misrepresentations, was a violation of the Litigation Accountability Act and Rule 11 of the Mississippi Rules of Civil Procedure and warranted sanctions. In re Estate of Ladner, 909 So. 2d 1051, 1056 (¶17) (Miss. 2004). In that case, an executor and his attorney failed to inform the court of the testator’s brother’s claim to ownership of cattle located on the brother’s land prior to obtaining a court order to seize the cattle. Id. at 1055-56 (¶¶15-16). In addition, this Court has found that a verified creditor’s notice of claim, filed by the counsel of a creditor of potential heirs of a decedent’s estate and containing a misrepresentation of pertinent facts, was frivolous. In re Necaise, 126 So. 3d 49, 57 (¶30) (Miss. App. Ct. 2013). This Court found that the misrepresentation caused the estate to incur unnecessary attorney’s fees in having to respond to those filings and thus warranted sanctions under Rule 11 and the Litigation Accountability Act. Id.

¶11. In this case, Lambert failed to disclose the existence of the handwritten document when he filed his petition. A reasonable person in Lambert’s position, with Lambert’s knowledge, would have no hope of success in rebutting the presumption that Louis’s will had been lost and not destroyed. Lambert admitted that, when he filed his petition, he had received and read the documents attached to Carrigee’s letter, which included the handwritten document. This letter, with attachments, was later given to Holmes prior to filing this action. In that document, Louis listed a myriad of changes he wanted to make to his will. At the bottom of the first column of the two-column document, he wrote: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed.” The words “and March 23, 1993,” were written in a different-color ink on Kellems’s copy. The document was signed by Louis, and Donis testified that the document was in his handwriting. Lambert searched for a will, but could not find one. The file folder in Louis’s office entitled “will” was empty.

¶12. From this document, it is clear that Louis wanted to make changes to his will and that he intended to revoke all prior wills. Even though Louis signed this document at the top of the page, Donis testified that it was his handwriting. When taken in context, the statement that: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed,” effectively put Lambert and his attorney on notice that Louis destroyed his will with the intent to revoke it. This is evidenced by Lambert’s attempt to convert the proceedings to that of intestate succession. On the same day that the court ruled on a motion to compel Kellems to give his deposition, and prior to any other depositions being taken, Lambert filed a motion to amend his petition. He sought a declaration that Louis had died intestate and asked the court to appoint Donis the administrator. The handwritten document had not yet come to light, and judging from the timing of the motion’s filing, Holmes knew that once it did, there would be no hope of success in overcoming the presumption. In the hearing on the motion for summary judgment, Holmes admitted that he filed that motion because he did not think he could overcome the presumption that Louis’s will had been lost and not destroyed.

¶13. The chancellor did not consider the fact of nondisclosure to be important when making her decision about whether to award sanctions. But the fact remains that the nondisclosure was a misrepresentation, making the petition to probate the will frivolous in light of the evidence. The chancellor abused her discretion in not considering Lambert’s nondisclosure in determining the frivolity of the action. Curt incurred unnecessary expense in contesting the probate of this will, only to uncover a document that Lambert withheld for almost a year and a half and that would later serve as the basis for summary judgment.

¶14. Finding that the chancellor abused her discretion in deciding not to award sanctions pursuant to Rule 11 and the Litigation Accountability Act, we reverse and remand for a determination of attorney’s fees and costs.

So the shortcoming here was the failure to disclose the handwritten notes. Hindsight, which is always high-def, tells us that the better practice would have been to disclose the notes and leave it up to the chancellor, as finder of fact, to interpret them. By not disclosing the notes, Lambert and counsel gave the reasonable impression that they were trying to hide something to change a possible adverse outcome. That’s always a recipe for sanctions and even discipline.

A Few Random Thoughts About Pre-Nups

August 6, 2014 § 3 Comments

If you’ve practiced law for any length of time, you have been confronted with this scenario:

Mr. X, a client for whom you likely have done some agreeable work before, enters your office accompanied by a pleasant woman, Miss Y, who is introduced as his fiancée.

After the initial pleasantries, Mr. X informs you that the happy couple is being married tomorrow, and they need you to prepare an antenuptial agreement. It should not be any big problem, because they have agreed, after much discussion, to the terms upon the piece of notebook paper that Mr. X pulls out of his wallet and lays on your desk. If you will have it typed up, they will sign it and go forth to embark on an ensuing lifetime of marital bliss, they tell you while gazing lovingly into each other’s eyes (eyelashes batting furiously).

Now, let’s stop right there before you hand it to your secretary to type up. Let’s consider a few points:

Antenuptial agreements are enforceable, if they are fair in their execution and a full disclosure of assets and liabilities has been made. Smith v. Smith, 656 So.2d 1143 1147 (Miss. 1995). If the parties agree to language that a full disclosure has been made, that creates a presumption that it was done. See, Kitchens v. Estate of Kitchens, 850 So.2d 215, 217 (Miss. App. 2003). The presumption may, however, be overcome by proof of fraud, misconduct, or overreaching. Id. In a case I had recently, both parties testified that neither had the benefit of any financial disclosures of the other, and neither had any clue as to the financial situation of the other, effectively negating the language in their own agreement.
Just as in an irreconcilable differences divorce, you can not ethically represent both parties. You need to make it clear that you can only represent one, and my suggestion is that it be the one with whom you had a previous attorney-client relationship. In a case where you represented neither or both before, they will have to choose.
You need to confer separately with your client about the content of the agreement, and you need to inform the other party that (s)he should seek and obtain independent legal advice. This is critical. Laypeople do not understand the intricacies and nuances of marital property, alimony, and divorce, and the seemingly innocuous provisions they jotted down on that paper may have far-reaching and even drastic repercussions for either or both later in the context of a divorce or estate.
Whom you represent, and the fact that you have not provided legal advice to the the other party, and that the other party is aware of the need to consult with independent counsel, all need to be spelled out in the agreement you draft
And while I am on that point, fastidiously avoid saying or doing anything that can be construed as legal advice to the unrepresented party. I can guarantee that that will come back and bite you in your nether regions.
Seriously consider whether you even want to touch this with the virtual ten-foot pole. Can all the bases be covered in the brief twenty-four hour period? Who will be held responsible if it all blows up in your client’s face? Do you have time to do the investigation and consultation with your client necessary to protect him?

It’s for another post to talk about the ingredients of an effective, successful pre-nup. My advice is, unless you have a tried-and-proven form in which you have complete confidence based on its being upheld in other cases, you should not even attempt to do one. I also suggest that you never do a pre-nup at the eleventh hour, as was the case here.

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