An Attorney Gets What He Deserves
September 12, 2013 § 3 Comments
I posted here before about the reprehensible conduct of attorney — that’s former attorney — Michael J. Brown, who was jailed for embezzling money — a lot of money — from a guardianship account. Now Brown has been sentenced to prison for his misdeeds. Here’s how the Clarion-Ledger reported it:
A former Flowood attorney has been sentenced to 40 years in prison for embezzling more than $1.2 million from the guardianship account of the grandson of the late civil rights leader Aaron Henry.
Michael J. Brown, 56, was convicted of two counts of embezzlement in Rankin County Circuit Court. He was sentenced to 40 years in prison, with 10 of those years suspended.
A Rankin County grand jury indicted Brown after Hinds County Chancery Judge Dewayne Thomas asked the district attorney’s office to look into the case. Last year, Thomas ordered Brown jailed for contempt for allegedly mishandling the $3 million inheritance of De Mon McClinton.
McClinton couldn’t be reached for comment Thursday.
Thomas said Brown used McClinton’s inheritance money as his own. “He misappropriated $1.2 million, and it looks like he embezzled at least $240,000,” Thomas said.
Thomas ordered Brown to repay the $1.2 million and to repay $398,000 in attorney fees he received from the account.
“There is no greater trust than that between a lawyer and his client,” said Michael Guest, district attorney for Madison and Rankin counties. “Brown was an officer of the court, whose sole purpose was to protect the interest of the minor child.”
Brown, who practiced law since 1994, has been disbarred. He testified he cashed some of the checks, but said the money was given to McClinton’s guardian or to benefit the then-minor. But Brown admitted he had no court order to take money out of the account. No money was supposed to be taken from the account other than $3,000 a month for the guardianship of McClinton at the time.
The McClinton case began on June 16, 2000, when a petition was filed in Chancery Court for Thomas McClinton Jr. of Jackson to become guardian of his son, then-16-year-old De Mon McClinton. De Mon McClinton had lived with his mother, Rebecca Henry, who was Aaron Henry’s daughter, in Clarksdale until her death. Once she died, more than $6 million was split between her two sons.
The guardianship case was closed in 2005, but in 2009 De Mon McClinton, then an adult, asked that the case be reopened.
No further comment necessary other than to point out as I have before that it is cases like this that have chancellors across the state being quite vigilant over accountings,
Settling for Something
September 3, 2013 § Leave a comment
We’ve discussed here the lawyer’s power to bind the client, as in a settlement announcement where the agreement was to dismiss the lawsuit with prejudice upon payment of a settlement sum. The specific case we focused on was Williams v. Homecoming Financial, a COA case handed down July 23, 2013.
In Williams, the disappointed plaintiffs felt that there was not enough money on the table, and sued to get out of the settlement agreement. The attorney countered that the terms of the settlement had been thoroughly discussed with and agreed to by the Williamses before the settlement was announced. They were unsuccessful in their quest to escape the agreement.
How and what you communicate with the client about settlement is critical. That’s because Mississipi Rule of Professional Conduct 1.2 specifies that there is only one decision in chancery court where the client retains absolute decisional autonomy, and that is whether to accept an offer of settlement. That means that your client calls the shots when it comes to how the case will settle.
An extreme case where the lawyer ran right over, around and through that autonomy is Culpepper v. Miss. Bar, 588 So.2d 413 (Miss. 1991), in which the attorney: (a) did not communicate the terms to the client before announcing it in open court; (b) failed to advise the court that his client thought the case was being settled on different terms; (c) did not disclose to the court that the settlement agreement was different from one his client had signed; (d) represented to the court that the parties had agreed to the terms of the agreed judgment, knowing that was not true.
Three clear duties arise from R 1.2:
- The duty to communicate any offer or demand to the client, no matter how unreasonable;
- The duty to confer with and avise the client about the pros and cons of settlement, and the strengths and weaknesses of both sides’ cases; and
- The duty to zeaalously represent the client to accomplish the client’s settlement goals, unless the lawyer feels that they are so unreasonable, frivolous, or otherwise unmeritorious that withdrawal is warranted.
The autonomy of the client can be varied by contract, but not eliminated. For instance, the lawyer-client contract can provide that the lawyer may settle the case within certain parameters. That would be ethical. But an agreement that vests in the lawyer sole, final decision-making authority would be unprofessional, because only the client can make that final decision. See, Jackson and Campbell, Professional Responsibility for Mississippi Lawyers, 2010, § 8.4 – 5, pp. 8-6 – 8-8.
The only exception to the rule is in MRPC 1.14, which addresses how to deal with impaired clients.
It’s true that a lawyer should not let the client dictate the strategy and tactics of representation. But the end of the litigation is always within the client’s discretion. You have the power to bind your client, but if you invade the client’s province to settle, you may face some unpleasant consequences.
Ethics and Social Media
August 19, 2013 § 3 Comments
Facebook, MySpace, and Twitter, along with other social media sites, nowadays find their way into evidence in family law cases. Add in the texting, sexting and emailing that seems to be rampant, and you have a rich source of salacious proof that can prove fault and unfitness from every conceivable angle.
Most attorneys, I am told, advise their clients early on to shut down their social media pages and clean up their smart phones.
Are there ethical implications to that advice?
Well, here’s an item from the August 7, 2013, online ABA Journal that might be of interest:
A Virginia lawyer who advised a plaintiff suing over the death of his wife to clean up his Facebook photos has agreed to a five-year suspension.
Matthew Murray was unavailable for comment on his suspension because he was volunteering with a group performing maintenance on the Appalachian Trail, relatives told the Daily Progress. The Legal Profession Blog notes the July 17 suspension order, published online on Aug. 2.
Murray’s client, Isaiah Lester, had sued Allied Concrete for the death of his wife caused when a cement truck crossed the center line and tipped over on the Lesters’ car.
Murray had instructed a paralegal to tell Lester to clean up his Facebook page after lawyers for Allied Concrete sought screen shots and other information, the Daily Progress says. Lester deleted 16 photos, including one in which he held a beer can and wore a T-shirt that said “I (heart) hot moms.” Defense lawyers recovered the photos before trial and jurors were told about the scrubbed photos.
As a sanction, a trial judge had ordered Murray and Lester to pay $722,000 to lawyers representing Allied Concrete for their legal fees. The judge had also slashed Lester’s $8.5 million jury award, but the Virginia Supreme Court reinstated the verdict, the Daily Progress reported in January.
The suspension order says Murray violated ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.
It seems to me that the transgression here was that the advice to purge the photos came after the discovery requests had been made.
Is it unethical to advise a client at that first interview, before any pleadings or discovery are filed, to take down questionable photos and posts from Facebook and MySpace? Is that destruction of evidence? It’s one thing to stop self-damaging conduct; it’s quite another to recreate and repair the past by doing away with, or even fixing, the incriminating items.
I don’t have an answer. I only have the question.
An earlier post on introduction of all forms of electronic evidence is here.
Thanks to attorney Marcus D. Evans.
LAWYERS AS WITNESSES
June 12, 2013 § 5 Comments
On two occasions this year I have seen lawyers take the witness stand and, with absolutley no objection from the other side — not even a quiver of objection — have proceeded to testify as to the merits of the matter at hand. In neither case was the testimony dispositive.
That flies in the face of my preconceived notion that lawyers who are representing a party in a case are not supposed to testify in that case, except as to attorney’s fees and, possibly purely procedural matters.
So I checked Jeffrey Jackson and Donald Campbell’s excellent Professional Responsibility for Mississippi Lawyers, MLI Press, 2010, and — voila! — here is what they say at § 25: 8, p. 25-10:
At trial, a lawyer is an advocate, and not a witness. A lawyer who is in the position of being a material witness would usually be disqualified from representation under [Mississippi Rules of Professional Conduct] Rule 3.7, which seeks to avoid jury confusion over the lawyer’s advocate and witness roles. If a lawyer acts as an advocate, she should not assert personal knowledge of facts at trial. Such assertions of personal knowledge are prohibited under [Mississippi Rules of Professional Conduct] Rule 3.4(e) except when the lawyer is otherwise properly testifying as a witness. [Footnote omitted]
The text alludes to juries, but I think it is applicable also to bench trials also where the lawyer takes the witness stand and acts as a material witness. The lawyer intends for the testimony to be taken as substantive and given probative weight, when the witness was — or should have been — disqualified from testifying in the first place.
The official Comment to Rule 3.7 says that, “A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.” The Comment adds that the opposing party has an objection whenever the combination of roles may prejudice that party’s rights in the litigation.
The provision in Rule 3.7 that lawyers who are material (the word “necessary” is used in the rule) witnesses are disqualified has the obvious purpose of prohibiting lawyers from avoiding the witness stand by taking cover behind the advocate’s role and its prohibition against testifying.
With the exception of attorney’s fees, I don’t think it’s a good idea for lawyers in a representative capacity to take the witness stand.
MUCH ADO ABOUT SOMETHING
March 18, 2013 § 2 Comments
Forbes v. St. Martin, et al., decided March 5, 2013, by the COA, is a tour de force on contingent fee contracts and their enforceability. If you do any contingent-fee work, this is a must-read for you. Actually, it’s a good opinion to read and examine as a case study in ethics.
The 41-page majority opinion was penned by Judge Griffis. The rest of the court went this way: “ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND THE IN RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY ROBERTS, J. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J. JAMES, J., NOT PARTICIPATING.”
James Forbes had suffered catastrophic injuries in a gas-station explosion in Biloxi. Through a series of events he came to be represented in his personal injury claim by St. Martin, a Louisiana lawyer. Rather than qualifying to proceed pro hac vice, St. Martin instead associated a Mississippi lawyer and kept a rather low profile in the case, advising Forbes and his wife in the background and letting Mississippi counsel, with whom he corresponded regularly, take the lead in the record of the litigation.
The PI case was settled eventually for $13.6 million, and St. Martin’s fees, which were to be divided with Mississippi counsel, were $4.6 million.
Forbes filed suit against St. Martin and the Mississippi lawyer, and their respective firms, seeking to void the contingent-fee contract. The complaint asserted claims for breach of fiduciary duty, professional negligence, fraud and misrepresentation, conversion, rescission, imposition of a constructive trust, quantum merit, attorney’s fees, and actual and punitive damages. The Mississippi lawyer and his firm were dismissed, and St. Martin’s malpractice carrier was added as a defendant.
Both Forbes and St. Martin filed motions for summary judgment, and the chancellor ruled in favor of St. Martin.
The COA reversed and remanded. The ruling is too involved to go into detail here, but the court ruled that Forbes had presented enough evidence that there did exist a genuine issue of material fact so that summary judgment should not have been granted. Some of the findings of the COA:
- St. Martin made over $100,000 in “cash advances” to the Forbes, which they spent on a Bahamian vacation, a Caribbean cruise, a car, a cell phone, and “other personal expenses,” in violation of Rule 1.8(e) of the Rules of Professional Coduct;
- Unauthorized practice of law by St. Martin in Mississippi;
- The first contingent-fee contract was made while Forbes was under influence of narcotics;
- The second contract may have been the product of misleading or even fraudulent advice;
- Portions of the contract pertaining to ability to settle without counsel and ability to terminate counsel were in violation of Mississippi’s professional conduct rules.
So St. Martin returns to trial in chancery unless he can convince the MSSC to take the case on cert. That could happen if the MSSC wants to clarify the law in this area. Or, the high court could let the case finish its run through the trial court and then entertain it later. With millions at stake, it’s inconceivable that a later appeal would not result no matter what the ultimate trial outcome.
An interesting aspect of this case is that it is in essence a malpractice claim based on breach of fiduciary duties, which is not the usual and customary avenue that plaintiffs pursue in these cases.
The question at the heart of this appeal is whether an out-of-state lawyer may enter into an agreement with a Mississippi lawyer for joint representation of Mississippi litigants in a way that the out-of-state lawyer may avoid coming within the restrictions of the Mississippi rules of professional conduct and the scrutiny of our courts. The answer of the COA is “no.”
A subsidiary question is raised in Judge Maxwell’s partially concurring opinion, which challenges the majority’s definition of the practice of law. Judge Maxwell would not define it as expansively as did the majority. In my opinion, if the supreme court decides this phase of the case merits a look, this will be the battleground issue.
DRINKING YOUR OWN TOXIC COCKTAIL
January 28, 2013 § Leave a comment
When you pursue litigation that you know is not meritorious, and you learn in discovery that you have no possible hope of prevailing, and you file an improper motion for recusal with false allegations against the court, you have concocted a toxic cocktail that, when consumed, will burn a deep hole in your pocketbook by way of sanctions. Need proof?
Consider the case of Sullivan and Stubbs v. Maddox, decided by the COA on January 22, 2013.
Sullivan, represented by his attorney, Stubbs (both collectively referred to as “Sullivan” in the COA opinion), filed suit in 2005 to confirm and quiet title to some property, based on a claim of adverse possession. His suit was prompted by the Maddoxes’ claim to the same property. When he initiated the suit, he obtained an injunction to keep the Maddoxes off of the property.
The suit apparently languished for years.
In April, 2011, the Maddoxes filed a motion for summary judgment taking the position that title to the property was vested in the United States, and that neither Sullivan nor Maddox had any claim to it by adverse possession because federal law prohibits adverse possession against the federal government.
Five days later Sullivan filed a motion asking the chancellor to recuse himself. The Maddoxes responded that the motion was untimely filed and was fatally defective for failure to include an affidavit setting forth the factual basis, both as set out in UCCR 1.11.
On May 3, 2011, the parties appeared before the court for a hearing on both motions, and the recusal motion was taken up first. Sullivan took the position that the chancellor should recuse because one of the Maddoxes’ attorneys had represented the judge’s court administrator’s husband in a criminal matter. The judge acknowledged the fact, as well as that Stubbs had represented the court administrator in a divorce action. He rejected both bases as causes to recuse, because neither would cause a reasonable person, knowing the pertinent facts, to doubt the court’s impartiality. The judge also found that the recusal motion failed to comply with UCCR 1.11 for the reasons assigned by the Maddoxes.
In the course of presenting the motion, Stubbs attempted to make a proffer alleging an unreported campaign contribution to the chancellor. The charge had not been included in the motion to recuse, and there was no affidavit to support it.
The court went on to hear the motion for summary judgment. In his ruling, the judge granted summary judgment in favor of the Maddoxes. He stated in his opinion that Stubbs had disclosed to the court that he had warned Sullivan before he filed the suit that it was a weak case, that there was no government survey or patent out of the US to support his claim, and that there was no color of title. The judge also found that the unsubstantiated accusation against him was made as a threat by counsel, and he set a hearing date for possible sanctions.
The Maddoxes filed a motion for sanctions under MRCP 11 and the Litigation Accountability Act. Based on all of the proceedings to that point, as well as the record made on the motion, the chancellor assessed sanctions against Sullivan and Stubbs jointly, in the amount of $42,922.91. As the COA opinion, by Judge Carlton, stated at ¶11:
In sanctioning Sullivan and Stubbs, the chancellor specifically found that the following actions demonstrated frivolous pleadings had been filed and frivolous arguments had been made for the purposes of harassment and delay, without substantial justification, and with disrespect for the integrity of the court: (1) Stubbs’s admission that before commencement of the action he had advised Sullivan of the weakness of his claim to confirm and quiet title; (2) Sullivan and Stubbs’s failure to abandon the claim after their expert witness testified in his deposition that the United States had issued no patent for the subject property; (3) Sullivan and Stubbs’s failure to make any effort to determine the validity of the claim before raising it; and (4) the filing of an improper motion for recusal and false allegations against the court. The chancellor held that these various actions constituted a willful violation of Rule 11 and the Litigation Accountability Act, as well as Rule 8.2(a) of the Rules of Professional Conduct (prohibiting a lawyer from making a statement that he knows to be false or making a statement with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge).
The COA affirmed the chancellor on all points.
The serious lesson to take from this case is that Rule 11 and the Litigation Accountability Act have bite. So do the Rules of Professional Conduct. MRCP 11 specifically states that an attorney’s signature on a pleading (and that includes not only initial complaints, but also all motions) “” … constitutes a certificate that … to the best of the attorney’s knowledge, information and belief there is good ground to support it, and it is not interposed for delay,” and goes on to provide for sanctions for its enforcement.
When in the course of a hearing you recklessly throw out unsubstantiated charges against the court, you are giving the judge no alterntive but to sanction you. To do otherwise the chancellor would be derelict in her duty to preserve the dignity and respect of the court, as provided in UCCR 1.01.
When you learn in the course of a lawsuit that it is not meritorious, and that there is no hope of prevailing, counsel your client to dismiss it. If your client will not cooperate, file a motion to withdraw, and do not put it off, because the judge can deny your motion if it would delay the trial, and you would then be at risk for sharing your client’s sanctions, if the court assesses them.
Don’t put yourself in a position where you have to drink that toxic cocktail that you yourself concocted.
APPROACHING ZERO TOLERANCE
October 2, 2012 § 7 Comments
If you have gotten the impression that many chancellors are tightening down on the handling of fiduciary matters, it’s not just your imagination or overactive paranoia glands. More and more chancellors across the state are approaching zero tolerance for sloppy handling of estates, guardianships and conservatorships.
There are several reasons for this. One, and perhaps paramount, is that it is the judge’s job. But here are several others:
- There is the case of attorney Michael J. Brown, of Hinds County, who helped fritter away hundreds of thousands of dollars of a ward’s account.
- There is the case of the lawyer in jail in Rankin County who has been unable to account for fiduciary funds, and who will begin serving federal and state sentences therefor as soon as Judge Grant releases him from his civil contempt sentence — which is contingent on his accounting.
- There is the case of another lawyer in Rankin County who refuses to account for fiduciary funds, and who is likewise cooling his heels in the county bastille until he complies.
- There is the case of the lawyer on the coast who committed suicide when the questions started floating about how fiduciary matters in his charge were handled, and the last I heard the missing funds are more than $1.2 million.
The genius of our fiduciary system in Mississippi is that it creates a three-tiered system of protection for the ward or beneficiaries. The fiduciary is bonded (in most cases) and is accountable to the court; the lawyer works with the fiduciary, providing advice, guidance and oversight to see that the law is followed; and the court authorizes actions, demands and approves accounts and inventories, and scrutinizes the actions of both the fiduciary and the ward. Whenever any one tier fails, it is up to the other two to catch and fix the failed part. When judges wink at incompetent legal work in fiduciary matters we are shirking our duty to innocent beneficiaries, creditors and people who are unable to protect their own interests.
It’s not the stuff of movies and detective novels that money is stolen from fiduciary accounts. I have seen it right here in our little backwater, and I am sure it is happening and has happened in yours (not meaning that you live in a backwater).
Fraud and mishandling of funds thrive in the sloppy handling of fiduciary matters. When you leave it up to the fiduciary to go about unaccounted for and unadvised and unsupervised, you are inviting trouble. And chancellors are becoming ever more vigilant and intolerant.
REASONABLENESS AND ATTORNEY’S FEES IN CONTEMPT
September 17, 2012 § 4 Comments
In the COA case of Bowen v. Bowen, decided September 11, 2012, the court reversed and remanded the chancellor’s award of $10,000 fees in a case where the judge found the defendant in contempt. It was not the award of fees that the COA questioned, but rather the amount and reasonableness.
As we have mentioned here before, inability to pay is not a threshhold issue to an award of attorney’s fees based on contempt. In a contempt case, attorney’s fees may be awarded where a party’s intentional conduct causes the opposing party to spend time and money needlessly.
Judge Ishee’s opinion in Bowen points out that the determination whether a fee is reasonable depends on consideration of Mississippi Rule of Professional Conduct 1.5(a) and the McKee factors. He said:
” … even in contempt actions, “[t]he reasonableness of attorney’s fees [is] controlled by the applicable [Rule] 1.5 factors and the McKee factors.” …
¶25. When awarding Patricia attorney’s fees, the chancery court stated:
‘Although [John] has attempted to purge himself of his contempt by bringing the child support and medical insurance payments current, . . . the [c]ourt is going to assess [John] with attorney’s fees incurred by [Patricia]. If not for [John’s] repeated, willful refusal to abide by the orders of this court, [Patricia] would not have incurred the attorney’s fees, which the court finds to be reasonable and [to] meet all of the McKee factors.
There is no indication the chancery court adequately considered the McKee factors when assessing the reasonableness of the attorney’s fees. There was no consideration regarding the parties financial abilities, the novelty and difficulty of the question at issue, or the assessment of the charges.
¶26. The case at hand appears to be a routine contempt action. While large awards for attorney’s fees may still be awarded in contempt actions, they are not typical for a routine contempt action. … Here, an award of $10,000 appears excessive for a routine contempt action in which only $135 in child support remains unpaid. Furthermore, upon a review of the fees incurred, some charges relate to matters outside of the contempt action, such as modification of child support. Because the attorney’s fees were awarded based on John’s ‘repeated, willful refusal to abide by the orders of [the chancery court],’ fees not related to the contempt action should not have been included in the award amount awarded.”
I’ve made the point here before that …
Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.
Most attorneys in my opinion do not devote much attention or care to making a record on attorney’s fees. That’s ironic, because you would think it would be a subject of sublime importance to the trial attorney.
Here’s a post about how to prove attorney’s fees in a divorce case. It’s more elaborate than the minimum required in a contempt, but it will give you an idea of what is involved in making a record that won’t spring a fatal leak.
WHEN YOU’RE ANGRY, STEP AWAY FROM YOUR WORD PROCESSOR, COUNT TO 10 SLOWLY, TAKE A DEEP BREATH AND EXHALE SLOWLY
May 23, 2012 § 4 Comments
Sometimes you get so boiling mad when you’re served with outrageous pleadings, or you get an exorbitant discovery dump, or opposing counsel is a jackass, or the judge rules against you and you know — just know it deep down in your aching heart that the ignorant so-and-so did not even look at the cases you gave him and had his mind made up and etc. — or the whole injustice and inequity of it all is so overwhelming, that you sit down at your computer and dash off a rabid response accusing that lawyer and/or the judge of all manner of immoral, unethical, unhealthy, unsavory and illegal misfeasance, malfeasance and faux pas.
Admit it. You’ve done it. Or at the very least dreamed about it. All of us have.
The thing is, most of us then hit the “delete” button, or tear up the paper and wait until reason returns, or smile at the mental imagery and shrug it off.
What happens, though, when you get carried away and don’t find a way to stop yourself from doing something over the top?
The latest example is in Berryman v. Lannom, decided by the COA on May 22, 2012. In that case, the chancellor ruled that the Berrymans had let the statute of limitations expire before filing their wrongful death claim, so she denied their claim to a portion of wrongful death proceeds that had been interpled in chancery court. Then she ruled that their version of the court proceedings offered pursuant to MRAP 10 — because the case was tried without a verbatim record — was not accurate, and accepted the other party’s version of the facts. To cap things off, the Lannoms’ attorneys presented the clerk with the court’s order the very day it was entered and got their interpled funds, all that was there.
Obviously perturbed at the way things had gone, the Berrymans appealed. Although the COA decision does not recite exactly what the appellants charged in their briefs, it does say this:
“¶9. The Berrymans argue the chancellor erred both by denying them any portion of the interpleaded funds and by denying their motion to stay disbursement of the funds to [the Lannoms] pending appeal. They also argue [the Lannom’s] attorneys violated the ten-day automatic stay of judgment by presenting the order of disbursement to the chancery clerk the same day as the hearing.
“¶10. The Berrymans further assert the attorneys’ actions violated ethical rules, meriting sanctions. We find this allegation to be wholly baseless and focus our opinion solely on whether a reversible procedural error was committed. The Berrymans also describe the chancellor’s decision to deny their motion to stay as “a perversion of the administration of justice” and request we appoint a new chancellor on remand because Chancellor Vicki Cobb abdicated her role as “officer of a court of law and equity.” Because this last argument—which has no support in the record—shows disrespect for the chancellor, we sua sponte strike this argument and its contemptuous language from the Berrymans’ brief. M.R.A.P. 28(k). We focus solely on whether the chancellor erroneously applied the law or was manifestly wrong. See McNeil, 753 So. 2d at 1063 (¶21).” [Emphasis added]
Contemptuous language, indeed. Charging a lawyer with ethical violations and a chancellor with abdication of her role as officer of a court of law and equity are serious allegations that you’d better be prepared to back up with evidence, and I mean strong evidence. It’s like pointing a gun at someone who you think is out to do you harm; you’d better be right, and you’d better be sure sure the gun is loaded, and you’d better be prepared to pull the trigger, or you will be the one who gets it. The courts do not consider charges like those to be trivial, and you should never toss them around without a firm basis in fact. If you do, you will be the one who comes off looking unethical and outside the bounds of law and equity. Why would you think that your clients would want their interests to be represented by someone that out of control?
MRAP 28(k) allows the appellate courts to strike any disrespectful language from briefs and even empowers the court to “take such further action as it may deem proper.”
MRCP 12 (f) permits the trial court on motion of any party or on the court’s own initiative, to strike any and all “immaterial, impertinent, or scandalous matter.”
MRCP 11(b) provides that the trial court can sanction an attorney for filing papers that include scandalous or indecent matter, or are filed for the purpose of harassment or delay. The sanctions include reasonable attorney’s fees.
UCCR 1.01 specifically states that “The dignity and respect of the court shall be preserved at all times.”
Rule of Professional Conduct (RPC) 3.5 prohibits a lawyer from engaging in conduct intended to disrupt a tribunal.
RPC 8.2 (a) says that “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge … “
The preamble to the RPC includes this language: “A lawyer should use the law’s procedures only for legitimate purposes, and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”
Lawyers make a living on controversy and conflict. But you are there to help your client find a way through it to a better place, not to make it worse. Don’t hit the print button until reason returns. And if you just can’t help yourself, print it and trash it. You owe it to yourself and your client.
AN OBJECT LESSON IN HOW NOT TO HANDLE A GUARDIANSHIP
March 26, 2012 § 6 Comments
I try not to comment on pending litigation, but the ongoing saga of attorney (for the moment) Michael J. Brown of Jackson bears mentioning here as an object lesson for all of you who handle guardianship — and any other fiduciary — matters.
To catch you up … Mr. Brown opened a guardianship for Demon McClinton, a child who had inherited $3 million from his mother, Rebecca Henry. Ms. Henry was the daughter of late Mississippi civil rights icon Aaron Henry. Attorney Brown never opened a guardianship account, depositing the funds instead in his trust account. To make a long, sordid story short, the funds were bled dry by unauthorized disbursements, extremely questionable “investments,” so-called “loans” — including “loans to himself — and outragous attorney’s fees. You can read a recap of the special master’s report here.
Brown’s misconduct drew the attention of Chancellor Dewayne Thomas. Brown at first claimed that the file, which he had checked out of the clerk’s office, had been destroyed when a pipe burst at his office. This proved to be a perjurious lie when the Special Master, acting pursuant to a search warrant, found the file in the attic of Brown’s home in a box marked “McClinton.”
At a show-cause hearing, Brown tried to assert that his schemes had been approved verbally by a preceding chancellor. Of course, Chancellor Thomas rejected that claim and ordered Brown to limit himself to to what was of record, which clearly established that none of Brown’s many transactions had been approved by any chancellor. Brown testified that there were no funds actually missing because he had accounted for every unauthorized expenditure, “loan,” “investment” and other impropriety. In other words, they aren’t missing because we know their whereabouts.
Chancellor Thomas has ordered the soon-to-be erstwhile lawyer jailed, subject to $250,000 bond, until he restores the missing funds. You can read more about Mr. Brown’s epic mishandling of this case on Philip Thomas’s blog, which includes links to other articles on the subject. An article that includes Judge Thomas’s order is here.
Several years ago I ordered a lawyer and guardian to show cause why they should not be sanctioned for mishandling guardianship funds to the tune of $45,000. The lawyer had handed the settlement check to the guardian, allowed the guardian to go by himself to open a restricted guardianship account, but the guardian deposited the funds instead in his own credit union account. No accountings were filed for several years, even after my predecessor, and then I, ordered that they be done. The lawyer at the hearing disclaimed any responsibility, shucking all the blame off on the guardian. I did not buy it. UCCR 6.01 and 6.02, and MCA § 93-7-253, along with practically all of the Rules of Professional Responsibility, persuade me to the contrary. The lawyer has a duty to the court to ensure that the fiduciary is faithful in carrying out his responsibilities.
Let me restate that: The lawyer has an ethical and professional duty to the court to ensure that the fiduciary is faithful in carrying out his responsibilities.
As the chancellor is the superior guardian of the ward, the lawyer is the arm and officer of the court, charged with the professional responsibility to act as the court’s agent to make sure that the fiduciary is acting solely in the best interest of and for benefit of the ward.
For the umpteenth time, I urge you to pull every fiduciary file you have right now and start poring through them to make sure that every detail is in order. There should be no discrepancies, no questionable transactions, no unapproved withdrawals. Your accountings should be annual, with proper vouchers. If Mr. Brown’s experience still does not shake you out of your lethargy, re-read this post about the hair-raising Matthews v. Williams case. If you’re not willing to strap on the high level of responsibility and vigilance required in fiduciary matters, defer the case to an attorney who will.
As Phillip Thomas so eloquently put it on his blog:
“Any lawyer who has ever walked past the chancery courthouse knows that Brown’s story is complete and total B.S. Chancellors are sticklers for the rules and they want guardianship funds locked up tight. The suggestion that any chancellor would verbally approve bogus sounding investments and loans is preposterous, as is every other detail of Brown’s story. It is beyond preposterous.” [Emphasis in italics added by me]
If you’re not the altruistic type, or you don’t buy into the idealistic concepts of professional responsibility, then look to your own self interest and tighten up your fiduciary practice. It could save you a load of money — and possibly your license to practice law.
The Better Chancery Practice Blog 