A TICKLISH SUBJECT
June 12, 2012 § 2 Comments
How do you keep track of the deadlines and scheduled matters that are ticking away among your client files?
Most grizzled veterans know that the answer lies in a reliable “tickler” systam — some call it a “diary” system — that will call your attention to those matters.
When I practiced, the secretaries would create a card for every case file. I would examine the file and note a date on the front cover, like “7-12-12,” and return it to the secretary. She would then note the date on the file card and deposit the card in an index-card box that contained monthly tabs with numbered sub-tabs 1-31 between them. That file card would go in the July 2012 tab, between the 7-11-12 cards and the 7-13-12 cards. The file itself was then filed in its proper, alphabetical place. Each morning, the secretary would extract the cards for that day, pull the corresponding files and place them on my desk. I would then examine the files and do the work that needed to be done to keep those files current, like prepare pleadings, write letters, schedule an event, or respond to discovery. Before I returned the file to the secretary I would notate it with a later tickler date, and the secretary would process it back into the file system as described above. Sometimes a tickler date was only to make me look at the file to check its status. In any event, no file went into the system without a current tickler date unless it was finally closed. Once a month the secratary was responsible to go through the tickler cards to ensure that no card was misfiled, or that a card had been overlooked. This was the system for handling files only. There were two separate, redundant calendaring systems for court appearances, appointments, and important deadlines.
That’s a rudimentary tickler and calendaring system, and I am sure that many attorneys out there have more elaborate or more effective systems or ways of doing things.
Not all lawyers are effective at organization. New lawyers are understandably helter-skelter as they discover the intricate pitfalls of practice that await the naive. Even veterans, however, who become complacent and careless, can fall into a snare.
The point is, if you are a young lawyer starting out, you have got to get yourself organized so that you do not miss deadlines and court appointments, or fail to do it at your peril. It’s not so hard when you first open your law office and have only three files leading to litigation among a dozen or so other miscellaneous matters that don’t require scheduling. As your practice grows, however, you have got to systematize or face the wrath of a judge or a client.
And if you are a more experienced lawyer who finds yourself chronically late or a no-show, or who misses deadlines, or who can’t keep track of your probate practice, you’d better come up with a way to do it. Or else.
There are law practice managament software programs available that can do the task for you in a more streamlined way than the 19th-century system described above. Here’s a link to an article that describes some of them.
When it comes to managing your time, workload and deadlines, don’t just sit there; do something. The success or failure of your career depends on it.
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.
A FEW THOUGHTS ON A LEGACY OF PROFESSIONALISM
May 15, 2012 § 3 Comments
Attorney Thomas Henry Freeland, III, of Oxford, died last Saturday. His daughter Lee’s brief, but touching, obit is posted on son Tom’s blog. You can read it here.
Mr. Freeland’s friends knew him as Hal. I did not know him, but from what I read about him he was one of those lawyers who set high standards for himself and demanded the same from those who worked with him. The respect he earned is clear in the comments on Tom’s blog.
One of those comments, by attorney Danny Lampley of Tupelo, brought me up short, and I hope he and Tom will forgive me for copying a part of it so you can read it here:
Small things I would overlook as an ignorant clerk were revealed to be important. I recall Hal crossing out incorrect phrasing in an acknowledgment and telling me the correct words to use; and he took the time to tell me why those words were better and explained how doing it one way would have an effect different from doing it the other way. I learned that just because everybody says “the law” is thus and such and “the cases say so” does not mean that is really “the law” nor is it necessarily what the cases said. I learned you gotta read ‘em and you have to understand what it is exactly that they say. I learned to always independently research an issue and to never assume that a rule is today what you thought it was yesterday. I learned how to be a lawyer; I only wish I could more often put it into actual practice.
Mr. Lampley learned how to be a lawyer from one who took professionalism seriously and who understood the care, devotion and attention that the law demands. Beyond learning the craft of lawyering, though, he learned the meaning of professionalism. And — this is important — there is a distiction between ethics and professionalism. Ethics requires that you practice in a way that conforms to both the letter and the spirit of rules of conduct. Professionalism is the style in which you approach and carry out those ethical requirements. Professionalism demands more than mere observance of the standards, Or, as Justice Mike Randoph told a gathering of chancery judges a few months ago: “The rules are the basic minimum. We expect much more than that.”
If you are a young lawyer, I encourage you to seek out a battle-scarred old warhorse who would be willing to be your mentor. If you are as fortunate as attorney Lampley, you will learn that mastery of the legal profession lies not in discovering the shortcuts, but rather in learning to love the hard work, devotion, attention to detail, study, creativity and long hours that it takes to achieve excellence.
Mr. Freeland left his family his own personal legacy, including two children who are, themselves, members of our profession. But far more than that, as those blog comments reveal, he left the legal profession richer by inculcating professionalism in those whom he mentored. I hope that someone will be able to write that about all of us when our days reach their end.
DEAN ROSENBLATT RESPONDS
May 1, 2012 § 3 Comments
I posted here on April 12, 2012, about what, to me, was the startling discovery that Evidence is no longer a required course at either MCLaw or Ole Miss Law. The post prompted quite a response. Ole Miss Dean Richard Gershon submitted a brief reply here.
On April 24, 2012, I received this response from MCLaw Dean Jim Rosenblatt …
Judge Primeaux (Your Honor)
I appreciate the opportunity to provide follow-up information regarding your blog posting regarding the teaching of Evidence courses in Mississippi’s law schools.
At Mississippi College School of Law (MC Law), we share your commitment to prepare our students for the courtroom. We take the view that if a law student is confident in the courtroom, that student confidence will carry over to non-courtroom aspects of a legal practice.
I took some time to review the records of our MC Law graduates from May 2008 through May 2012. For this most recent 5-year period, 819 of our 833 graduates took Evidence (98.3% of our graduates). We offer 4 sections of Evidence each year to afford all our students an opportunity to fit this important course into their schedule.
During this period Evidence was not generally a required course in our catalog, but was a required prerequisite course in order to take Trial Practice—one of our most popular elective courses which we offer 8-9 times a year with a class size of 12-16 students. Each student in our Trial Practice course is required to demonstrate throughout the course an understanding of the elements of a trial and the evidentiary principles involved. At the end of the course each student serves as counsel for a full trial as a capstone experience. A thorough knowledge of evidence is essential to be successful in this course. In addition to our tenured faculty members who teach Evidence, we are fortunate to have Presiding Justice Jess Dickinson from the Mississippi Supreme Court and Judge Kenny Griffis from the Mississippi Court of Appeals who teach Evidence at MC Law (Justice Dickinson was voted by our students as Adjunct Professor of the Year, so he must be doing all right with his Evidence teaching).
Many of these law students go on to compete in one of the 26 regional and national trial or appellate moot court competitions in which our law school participates. In addition we offer school-based competitions in the trial arena such as our Opening Argument Competition (1L), Closing Argument Competition (1L), and Top Gun Competition (upper level) for our future litigators. The Mississippi bench and bar are tremendously supportive of these competitions and assist as coaches, advisers, practice round judges, or competition judges. I am grateful to you and your fellow members of the bench for your involvement in legal education.
Some years ago (before my time), our Faculty made the policy decision to mandate curriculum only for the first year. The exception to this policy was requiring Appellate Advocacy (taught in the fall semester of the second year), Professional Responsibility/Ethics (a course required by the standards of the American Bar Association), and a writing requirement course or seminar. Constitutional Law was formerly a required course in the first-year curriculum and kept that status when it was moved to the upper level.
Recently, we instituted a “Guided Curriculum” for our students who have a grade point average of less than a 2.5 at the end of the first year. Evidence is one of the five courses that these students are required to take in their upper level curriculum.
There is an additional factor that motivates our students to take Evidence in such large measure–the subject is tested on the bar examination. Evidence is routinely tested on the Multistate Bar Exam (MBE) and the Multistate Essay Exam (MEE) and is potentially testable on the Mississippi Essay Exam. This fact is not lost on our students, which is another reason for the robust enrollment rate for our Evidence courses.
I am confident that our policies, curricular offerings, and programs emphasize the importance of Evidence as a subject and that our students emerge from their legal education with a theoretical and practical understanding of this subject so crucial to the practice of law. I appreciate the opportunity you have afforded me to respond and thank you for allowing discussions such as this on your blog.
Please also allow me to share with you a resource that may be of benefit to you and your blog readers. We have created the Judicial Data Project–a data base on our Law Library web site at http://judicial.mc.edu/ that is available free of charge to members of the legal community or to the public. One can watch videos of oral arguments at our appellate courts, view briefs filed in the cases, and search the statistical data base using a whole host of parameters. For example, one could type in the name of a trial judge and see how many cases of that judge went up on appeal. One can also search by type of case, party name, attorney name, date, jurisdiction, and many other data items either singularly or by using a combination of these parameters to narrow a search. I would appreciate you examining this web site and sharing with your readers information about the Judicial Data Project and how it can be used by judges and practitioners.
I hope you are finding your copies of the Mississippi Rules Annotated to be of use to you on the bench. We are pleased to furnish complimentary copies to Mississippi judges.
I am grateful for your judicial service on behalf of the citizens of Mississippi. Warm regards.
Jim Rosenblatt
Dean and Professor of Law, Mississippi College School of Law (MC Law)
“Let Justice Roll”
DISMISSED FOR LACK OF EVIDENCE
April 12, 2012 § 12 Comments
Evidence is no longer a required course of study at either of the law schools in Mississippi.
That may be old news to you, but I heard of it for the first time only last week. You can click on either or both law school links over there on the right and check for yourself. You’ll have to do a lot of digging to find the info; I recommend you go straight to the school catalogs in .pdf format.
I am sure the academicians have a good reason for this development. I’m guessing – I haven’t “interviewed” any deans or anyone else – that it has something to do with the bar exam, and not law school itself, being what they consider the real certification of skills.
Still, when I think of subjects at the core of being a lawyer, evidence certainly ranks right up there in the top few. A good grasp of the law of evidence requires one to bring to bear the very analytical legal skills that distinguish the legal profession from other fields of endeavor.
Moreover, the law of evidence informs much of what a lawyer does in the everyday practice of law, regardless whether that lawyer ever personally sets foot in the court room. A lawyer’s advice about the drafting of a contract is shaped by the distinct possibility that it may have to be in evidence at trial some day. Advice to clients about how to make a proper paper trail and document activities is based on evidentiary considerations. When a client asks advice about what his or her liability might be if sued, the lawyer has to evaluate the evidence, taking into account what may or may not be admissible in evidence.
As I see it, law school has three primary functions: (1) to teach the law; (2) to teach how to find the law when one is not sure what the applicable law might be; (3) and to analyze the problem like a lawyer so as to bring (1) and (2) to bear.
Of the many areas of study that might be required, I nominate evidence as one that may be unparalleled in its ability to teach law students how to think like a lawyer. Now, I am not an academician. I am a mere trial court judge toiling away in an obscure corner of Mississippi, so my opinion, I am sure, carries little weight on this subject. But based on 33 years of practicing law and 5 years on the bench, I have to say from a purely nuts-and-bolts standpoint that a solid grasp of evidence would be in my top 3 of essential subjects to have if you expect to succeed as a lawyer (FYI, I nominate contracts, civil procedure and evidence).
And yet, by making evidence an elective, the subject has been assigned the same academic weight as other elective courses, which include Venture Capital, Law and Literature, and Legislation at MC; and Gaming Law, Bioethics, and Legal History of Slavery at OM. Not to say that any of those courses are not worthy of being included in a proper curriculum, but are they as essential to the core function of a lawyer as is Evidence?
It seems that the function of law schools has shifted from my era, when we were admitted to practice by diploma privilege after completing a rigorous, mostly required curriculum, to the current, when completion of law school is merely the gateway to admission to the bar exam, and it is up to the students to select (with a few exceptions) what he or she prefers to study.
In 1980, or thereabouts, Mississippi abolished “reading for the bar,” under which an aspiring lawyer would study the law on his or her own under the tutelage and supervision of a lawyer in good standing. After the prescribed period of study, with a certificate of the tutorial lawyer in hand, one applied to take the bar exam. Wisely, under that system, the experienced lawyer directed his tutee’s attention to the things that mattered, which included a hefty dose of Wigmore.
Now one must pay a law school – handsomely – for the same experience, sans the same dose of practicality.
I shiver at the thought of lawyers setting foot in my court room who have no grasp of the nuances of the best evidence rule, parol evidence, hearsay, or even how to get a document into evidence. I shiver for myself and for their poor clients. Some point out that the MRE is so much easier to understand and apply than the old mix of statutes and case law. True. But having a set of rules and understanding them enough to use them properly and effectively are entirely different things. Rules only take you so far. There are cases interpreting those rules that one must learn about. And the rules are neither crystal clear nor do they address everything one needs to know. Cite me a rule, for example, on what objection applies in any given situation. Or tell me how MRE 803(3) pertaining to wills applies in a will contest? Or when does past recollection recorded apply instead of refreshed recollection, and vice versa? Some elucidation is required for even the most astute student.
But, you say, prospective lawyers still have to pass evidence on the bar exam. Yes, but I would be more comfortable knowing that the student who was certified by the law school as being ready to take the bar exam had actually studied and passed evidence courses rather than merely mastered enough of an outline to pass the bar exam.
In the UK there is a two-tiered system: solicitors, who sit in their offices, advise clients, draft wills and other papers, do property work; and barristers, who are certified to have the skills to do litigation.
Maybe we could adopt a similar dichotomy here. I propose that our two-tiered system would be divided along the lines of who has not studied evidence and who has. Those who have not, we could call “shopkeepers” or “legal retailers.” And those who have studied evidence we would call “Lawyers.”
CONTEMPT OF CLERK
March 27, 2012 § 12 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.
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 HIGH PRICE OF A LITIGATION MISFIRE
March 19, 2012 § Leave a comment
Litigation Misfire. (noun): 1. Litigation that fails to ignite at the proper point 2. A case that blows up in one’s face. 3. Any case in which none or few of the positive points your client told you about her case ever materializes at trial.
We’ve all had our misfires. No need to catalog them here. Some misfires happen despite your best efforts and most professional approach to the case. Others are the direct result of a lawyer’s failure to do his homework. When the misfire falls in the latter category, it can dearly cost your client, or you, or both of you. The cost of a misfire can be a daunting thing.
In the COA case of McKnight v. Jenkins, decided March 13, 2012, the tab came to $23,969.17. Here is what Judge Lee’s opinion said, beginning at ¶ 14:
“The chancellor ordered Holly to pay $19,956.67 in Walter’s attorneys’ fees and $4,012.50 in GAL fees. The chancellor found Walter’s attorneys’ fees had been incurred for his defense of the abuse and contempt allegations. The chancellor found sanctions would be appropriate due to Holly’s unsubstantiated slander of the chancellor who had previously been involved in the case; however, the chancellor did not attribute a specific amount of his award as sanctions. In regard to the contempt action, “[a] chancellor is justified in awarding attorney’s fees that are incurred in pursuing a contempt motion.” Elliott v. Rogers, 775 So. 2d 1285, 1290 (¶25) (Miss. Ct. App. 2000). In regard to Walter’s defense of the abuse allegations, the chancellor relied upon Mississippi Code Annotated section 93-5-23 (Supp. 2011), which requires a party alleging child abuse to pay court costs and reasonable attorneys’ fees incurred by the defending party if the allegations are found to be without merit. The chancellor found, pursuant to McKee v. McKee, 418 So. 2d 764 (Miss. 1982), the attorneys’ fees incurred by Walter were reasonable and necessary. We can find no abuse of discretion by the chancellor in awarding Walter attorneys’ fees.
¶15. In regard to the GAL fees, the chancellor determined Holly’s unfounded abuse allegations were the reason he appointed a GAL; thus, the chancellor contended Holly should be responsible for the GAL’s fees. Section 93-5-23 also requires the party alleging child abuse to pay court costs in addition to attorneys’ fees. GAL fees have been considered court costs. Foster v. Foster, 788 So. 2d 779, 782 (¶8) (Miss. Ct. App. 2000). Thus, it was proper for the chancellor to order Holly to pay the GAL fees.”
You can add to the ouch factor in this case the fact that Holly was unemployed at the time she was assessed these fees and costs. It matters not what her ability to pay is when the fees are assessed for contempt.
It goes without saying, or should, that you need to investigate the claims that your client brings to you, no matter how tempting that cash retainer looks. MRCP 11(a) specifically says that when the attorney signs the pleading as required:
The signature of an attorney constitutes 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.
Those words are there for a reason. They impose an important and serious duty on you as an officer of the court not to burden the courts, opposing parties and counsel with frivolous or unfounded matters, to limit your pleadings only to those that genuinely state a cause of action, and to do your homework before you ever set the wheels of the courts in motion.
The payback for not complying with MRCP 11(a) is set out in MRCP 11(b). It’s interesting reading, and I won’t spoil the surprise for you by repeating it here, but you really should read it for yourself and not hear it for the first time from the bench. On March 15, 2012, the Mississippi Supreme Court upheld 11(b) sanctions in a case out of Rankin County, In Re Guardianship of B.A.D., which reversed and remanded on other grounds. You should read that case for its exposition of what it is like to face the wrath of a chancellor.
Don’t overlook Rule 2.1 of the Rules of Professional conduct, which requires you to act as an advisor to your client. As I have said here many times, you are not a mere clerk-typist for your client. Nor are you merely your client’s robotic alter ego. You are an independent professional whose highest duty is to advise. As a wise man once said, “About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.”
MCA § 93-5-23 states “If, after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in response to such allegations.” The chancellor in McKnight could possibly have relied on that section, since he found the allegations to have been without foundation. I have taken the position that all of the elements of the statute have to be present in order to require the imposition of sanctions; i.e., there must be an investigation by DHS or final disposition by a youth court or family court, with a finding that the charges are without foundation. I refused to impose the statutory sanctions in a case where DHS found that the charges could not be substantiated because, by the time they investigated, the bruises on the child were too faded to make a clear finding. The fact that there were bruises convinced me that the charges were not “without foundation” within the meaning of the law, and DHS did not say they were without foundation. To me, sanctions should be carefully limited to appropriate cases so as to avoid a chilling effect on family members, neighbors, doctors, school officials and others who are in a position to report and perhaps put a stop to child abuse.
The Litigation Accountability Act, MCA 11-55-1, et seq. is something else to watch out for. It provides a cause of action against an attorney or party for meritless action, claim or defense, or for unwarranted delay or for “unnecessary proceedings.”
A caveat … the fact that I personally set a high threshhold for sanctions should not lead you to relax your standards. Professionalism demands it. And as a practical matter, your judge may see sanctions differently. I once saw a judge pop a lawyer, not her client, with a $1,500 sanction for failure to answer interrogatories after being ordered to do so. And I myself even assessed more than $20,000 in a case that had been tried by my predecessor, and which was reversed and remanded on a finding of no jurisdiction; the case law is clear that to pursue a case where there is no jurisdiction after you were put on notice is sanctionable, even where the chancellor allowed you to proceed to final judgment.
In my opinion, all sanctions should be judiciously weighed and never lightly imposed. Some lawyers seem to add requests for sanctions to almost every pleading they file, although those requests are, wisely, seldom presented for adjudication. Seems to me that the old saw, “what goes around comes around,” has particularly apt application to this subject.
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