Candor Toward the Tribunal
June 10, 2014 § Leave a comment
I am aware of two cases lately — neither in my court — in which lawyers filed pleadings with the court that were false and misleading, and then pursued those pleadings in an effort to reduce them to judgment.
In both cases, the lawyers knew that the facts stated (and sworn to by the clients) were false.
Rule of Professional Conduct (RPC) 3.3 states:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
* * *
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
* * *
(c) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
The comment to the rule makes it clear that the lawyer will be held responsible for pleadings filed with the court, although he is not required to have personal knowledge of their accuracy when filed. MRCP 11, which requires the attorney to sign every pleading filed, states that:
“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.”
The requirement is so serious that any pleading that does not comply may be stricken as sham, and the action may proceed as if it had never been filed.
From the above, it should be obvious to even the greenest among us that there can be professional repercussions from playing fast and loose with this duty of candor.
Beyond the language of the rules, though, there is the lawyer’s relationship with the court to consider. Chancellors must rely on the honesty and good faith of lawyers who come before them in order to make correct decisions. When a lawyer stretches the truth, or conceals material facts, or presents information that is known to be untrue, that lawyer is inflicting grave injury on himself with the court. Once the judge has found an attorney to be untrustworthy, it may take years — if ever — for the lawyer to recover his lost standing with that judge. The penalties can include closer scrutiny, being required to prove and provide authority for even simple assertions, and skepticism toward the merit of that lawyer’s cases.
I have said before that your reputation with a judge is like a store of gold. If you spend it frugally and wisely, and only as truly needed, it will last you the length of your career. If you squander it, you may never gain it back.
Bound by the Record
June 5, 2014 § 4 Comments
It’s axiomatic that if you don’t introduce evidence to support a particular claim, your trial judge can not grant your client that relief.
It’s also axiomatic that, if you don’t make a record on a given point, you may not raise it for the first time on appeal.
Those two principles are what tripped up Donald Ainsworth in his attempt to reverse a chancellor’s ruling that based child support on all of his income, including annual bonuses and commissions from vehicle sales. Judge Carlton, writing for the COA in its opinion in Ainsworth v. Ainsworth, issued May 27, 2014, explained:
¶16. Donald argues the chancellor erred in determining his income for child support. Donald claims his yearly bonus and income from vehicle sale are not regular income for purposes of calculating child support. We first note Donald failed to raise the issue of his yearly bonus in his motion for reconsideration. It is well settled that an issue raised for the first time on appeal is barred from our review. See Ory v. Ory, 936 So. 2d 405, 409 (¶9) (Miss. Ct. App. 2006). Thus, we will only review Donald’s argument concerning income from vehicle sales.
¶17. The chancellor calculated Donald’s adjusted gross monthly income to be $4,562, which consisted of his salary, his bonus, and profits from vehicle sales. Following the statutory guidelines in Mississippi Code Annotated section 43-19-101(1) (Supp. 2013), the chancellor ordered Donald to pay $912.40, or twenty percent of $4,562, per month in child support. The chancellor noted that Donald admittedly failed to report income from any vehicle sales on his Rule 8.05 financial statement. The chancellor also noted Donald had failed to comply with her temporary order of December 2, 2010, which required Donald to report the sales of any vehicles to Melanie and to deposit the money from the sale of these vehicles into the registry of the court. During trial, Donald admitted that he made a small profit 3 from vehicle sales but purposefully did not report the sales of these vehicles, either to the chancery court or to the state or federal government for income-tax purposes. Donald also claimed he had no documentation by way of receipts or invoices for the sale of these vehicles. Donald testified he intended to continue selling vehicles and anticipated similar profits.
¶18. With respect to the chancellor’s finding, this Court cannot find the decision to include Donald’s profits from vehicle sales in her calculation of child support to be clearly erroneous. “The chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is the sole authority for determining the credibility of the witnesses.” Madden v. Rhodes, 626 So. 2d 608, 616 (Miss. 1993). Accordingly, we find this issue to be without merit.
The court also swatted aside: (1) Donald’s argument that the chancellor erroneously ordered him to pay a share of the children’s extracurricular activities; and (2) the court’s award of the tax exemptions to his ex-wife. Both arguments were rejected because he “failed to raise this issue in his motion for reconsideration.”
A few comments:
- A R59 motion is the vehicle you need to employ to bring to the chancellor’s attention matters on which you offered proof at trial, but were not addressed by the judge. Unless it is crystal clear from a reading of the trial transcript that you offered proof to support a given claim, you can not assume that the appellate court or the trial judge will view it that way. In this case, for instance, Donald may have thought that admitting his tax return into evidence was enough to preserve the tax exemption claim, but that evidence goes to many points in a contested divorce trial. File a R59 motion and specifically point to the proof in the record that supports your claim, and give the judge a chance to rule on it. That preserves the point for appeal.
- If you don’t offer any evidence at trial to support a claim, it won’t do you any good to file a R59 motion because the judge has to have evidence in the record to support her findings.
- If you don’t offer any evidence at trial to support a claim, you not only lose that point at trial, but you also are barred from raising it for the first time on appeal. I am constantly amazed at how many attorneys simply do not put on proof in support of their claims. A good example is the request that a child support payor maintain a life insurance policy. Usually the only evidence is a witness saying that she wants him to have a policy. There is no testimony about the cost, or whether the payor is insurable, or anything else that would influence me one way or the other.
- The only exception to the above is where there is newly discovered evidence that could not have been discovered in time to file a R59 motion. In that case, you need to file a R60(b)(3) motion.
I’ve mentioned here before that there is no “motion to reconsider” in our practice. That terminology is usually used to describe a R59 motion, but a R59 motion is actually for rehearing, or a new trial. Actually, though, there is such a thing as a motion to reconsider. Can you find it? [Hint: check out R60(c)].
A Rule 54(b) Dismissal With a Twist
June 3, 2014 § Leave a comment
We’ve talked here numerous times about the unappealability of a judgment that disposes than fewer than all of the issues pending before the court. If you type “54(b)” in that search box over there it will take you to the many posts on the subject.
The COA case of Newson v. Newson, handed down May 13, 2014, presents a scenario that just might apply in one of your cases, so you should take notice.
In May, 2011, the chancellor entered a judgment granting Lori Newson a divorce from her husband, Anthony, on the ground of adultery. On that day, Anthony’s attorney advised the court that his client had filed for bankruptcy, so the judge reserved ruling on alimony and equitable distribution until the status of the bankruptcy was clarified.
In March, 2012, the chancellor gave the parties the go-ahead to proceed. In August, 2012, the parties submitted a partial agreement, and the court made a partial ruling. The court stated that “the responsibility of the indebtedness of the respective parties, spousal support/alimony, attorney’s fees and/or costs owed by the parties would be reserved for a final hearing. Apparently there was another hearing, because in October, 2012, the court entered an order styled or referred to as a final order, granting Lori periodic alimony, and finding that Anthony was in arrears in the sum of more than $64,000 in alimony, for which he was in contempt. The judge left the record open for Lori’s attorney to present a statement of services rendered so that he could adjudicate attorney’s fees. Anthony filed a motion asking the court to reconsider (R59, I guess, since there is no such thing as a motion for reconsideration), which the court overruled. Anthony appealed.
The COA predictably ruled that, since the chancellor had left the record open without finally adjudicating the issue of attorney’s fees, and without certifying the case, the COA was without jurisdiction and dismissed the appeal.
Now, here’s the twist …
Quite often lawyers ask the court to combine into the final hearing the contempt issues that accrue during the pendency of a divorce. It’s not unusual for the court in such a situation to adjudicate finally all of the divorce issues — grounds, custody, child support, equitable distribution, alimony, attorney’s fees on the divorce — and then to treat the contempt issues. In addressing the contempt issues, the court many times will order that the contemnor do certain things to purge himself of contempt, and for the matter to be reviewed at a later date. Sometimes there is a second or even a third review hearing. In such a case, you are stuck with an unappealable divorce judgment until the trial judge finally adjudicates everything.
Unless …
- You file a R59 motion (within ten days of the original judgment) asking the court to add the “express determination that there is no just reason for delay,” per R 54(b), and directing entry of a final judgment on the issues of divorce, custody, equitable distribution, alimony, attorney’s fees on the divorce, leaving the contempt issues to take their own, separate course. Or …
- You could make a motion at the conclusion of your case that the issues be severed, and that the court make the R54(b) certification to be included in the final judgment.
Of course, you could ask the court not to combine the contempt issues in with the final divorce hearing in the first place, but most clients want the hourly billing and the courtroom time to end, so it’s usually more efficient from a time and law-weariness standpoint to get it all over with in one hearing.
This is one of those situations where you need to pay attention to where you are and how you got there. Once you realize you are faced with a judgment that may not be appealable for quite some time, you need to take steps to extricate your client from that bind.
Forbes v. St. Martin Reversed
May 27, 2014 § 10 Comments
Back in March, 2013, the COA reversed a chancellor’s ruling that granted summary judgment in favor of a Louisiana lawyer in a legal malpractice claim based primarily on a claim of breach of attorney-client fiduciary duties. The COA’s ruling in Forbes v. St. Martin was the subject of a post on this blog.
The MSSC, on May 22, 2014, reversed the COA’s ruling, reinstating and affirming the chancellor’s grant of summary judgment in the case.
If you do any contingent fee work, you should read this opinion. Also, Justice Lamar, for the majority, includes an interesting exposition on the principle that a lawyer’s violation of the Rules of Professional Conduct in and of itself does not necessarily give rise to a cause of action for malpractice against the lawyer.
In my 2013 post, I spelled out how fractured the COA was in its vote. Here’s what the MSSC’s looked like:
WALLER, C.J., KITCHENS AND KING, JJ., CONCUR. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR AND KING, JJ.; WALLER, C.J., JOINS IN PART. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND COLEMAN, JJ. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND CHANDLER, J. RANDOLPH, P.J., AND PIERCE, J., NOT PARTICIPATING.
So it was: Lamar, Waller, King and Kitchens for the majority; Dickinson, Chandler and Coleman in the minority; and Randolph and Pierce on the sidelines.
As I have said in both of these posts, there are many ethical and professionalism overtones in this case that you may find helpful, especially in the current trend in which others pore over lawyers’ work after the fact looking to discover anything actionable.
“Pay no Attention to That Man Behind the Curtain”: How Cases are Decided at the COA, Part One
May 14, 2014 § 5 Comments
Like the great and mighty Wizard of Oz, appellate judges wield immense power from on high, and their ways are shrouded in mystery.
COA Presiding Judge Kenny Griffis set out to de-mystify how the court goes about its business, and put the details in a paper he delivered to the judges’ meeting last Fall. I’ve gotten his permission to republish it here, for your benefit, verbatim. Due to the length, it will take several posts to get through.
Here’s Part One:
A Texas appellate judge once noted the perception “that appellate judges watch from on high the legal battle fought elow, and when the dust and smoke of battle clear they come down out of the hills and shoot the wounded.” Black v. State, 723 SW2d 674, 677, n.1 (Tex.Crim.App. 1986)(Opinion, P.J. dissenting). Lawyers hear this and laugh, nervously. Trial judges hear it and laugh out lud, some even shout “amen.”
More than one trial judge has told me that they do not understand how appellate courts decde cases. This article should help you understand how the Mississippi Court of Appeals decides a case and writes the opinion.
I. How a decision is made at the Court of Appeals
A. Background
The Court of Appeals was created in 1993 to address the heavy workload of the Supreme Court. The purpose of the Court is to reduce delays in the resolution of appeals.
The Court consists of ten judges elected from five designated Court of Appeals districts. The judges are elected from a district, but they exercise statewide authority. Judges serve eight year terms, and their elections are staggered. The Chief Judge is selected by the Chief Justice of the Mississippi Supreme Court and serves a four year term.
Of the current judges, five were initially elected, and five were initially appointed. The current judges have also served as: chancellors (2), circuit judge (1), county judge (1), municipal judge (2), justice court judge (1), prosecutor (3), and supreme court law clerk (2).
B. Jurisdiction
Every appeal is filed with the Mississippi Supreme Court. The Supreme Court then decides which cases to assign to the Court of Appeals. The Supreme Court may assign a caseto the Court of Appeals at any time. There is no limit on the time that a case may be assigned to the Court of Appeals.
The jurisdiction of the Court of Appeals is limited to cases that are “deflected” or assigned by the Supreme Court. The Court of Appeals is often considered an “error correction” court. The Supreme Court may not assign cases that involve: (1) the imposition of the death penalty; (2) utility rates; (3) annexations; (4) bond issues; (5) election contests; or (6) a statute held unconstitutional by the trial court.
Miss. Code Ann. §9-4-3(1). The Supreme Court must retain all cases involving attorney discipline, judicial performance, and certified questions from federal court.
MRP 16(d). The Supreme Court will also retain cases that involve: (1) a major question of first impression; (2) fundamental and urgent issues of broad public importance requiring prompt or ultimate determination by the Supreme Court; (3) substantial constitutional questions as to the validity of a statute, ordinance, court rule, or administrative rule or regulation; and (4) issues on which there is an inconsistency in the decisions of the Court of Appeals or the Supreme Court or conflict between the decisions of the two courts.
The Supreme Court has a process to decide which cases to assign to the Court of Appeals. The Supreme Court retains about one of every five cases that are eligible for assignment. The Supreme Court routinely assigns cases within certain clearly defined categories. For example, the Court of Appeals will be assigned all cases that involve workers’ compensation, domestic relations, post-conviction relief, and adminidtrative agency decisions.
THe decision to assign a case to the Court of Appeals is final. No motion to reconsider an assignment may be filed. Only the Supreme Court can change the assignment of a case, and this happens rarely. When it does, the assignment is changed because the case was assigned to the Court of Appeals in violation of section 9-4-3(1).
The decisions of the Court of Appeals are final. The Supreme Court may review the Court’s decisions only by writ of certiorari. MRAP 17. Certiorari may be granted upon the vote of at least four Supreme Court Justices. Miss. Code Ann. §9-4-3(2).
Next: The Decision Process from initial Assignment Through Oral Argument
Opinions: Everybody has One
April 10, 2014 § 1 Comment
I won’t repeat the old saying about opinions being like a particular part of the body, everybody has one. Or maybe I just did.
Lay opinion testimony seems to draw objections like flies to day-old watermelon, but the rule on lay witnesses offering their opinions is pretty straightforward. MRE 701 says:
If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of [testimony by experts].
That is all there is to it. Oh, and MRE 704 abolishes the old “ultimate issue” rule, which means that, if the lay person’s testimony meets the criteria of R701, it matters not at all whether it embraces an ultimate issue to be decided by the trier of fact.
So, if the witness is opining “rationally based” on his or her own perception, and it aids the fact-finder, and is not based on scientific or technical knowledge, it should come in.
Some examples:
- The detective opined that a particular document was not on a hard drive that he had examined. The court found it to be valid lay opinion because almost everybody nowadays has some knowledge of computer hard drives. Boone v. State, 811 So.2d 401 (Miss. 2001).
- Lay witnesses may offer their opinion whether someone had too much to drink or was intoxicated. Havard v. State, 800 So.2d 1193 (Miss. App. 2001).
- A lay witness may offer an opinion as to how fast, in mph, a person was driving, based on what he observed. Moore v. State, 816 So.2d 1022 (Miss. App. 2002).
- A licensed counselor could not offer lay opinion testimony about whether the wife was addicted to internet pornography because he did not have personal knowledge of the extent of her use of the internet. Bower v. Bower, 758 So.2d 405 (Miss. 2005).
Remember that if you try to offer lay opinion testimony and the judge sustains an objection to the offer, you must preserve the point by making an offer of proof. If you don’t, you can’t argue the point on appeal. See, Redhead v. Entergy Miss., Inc., 828 So.2d 801 (Miss. App. 2001).
Don’t assume that if your expert witness is excluded that you will be able to get that witness’s same testimony as lay opinion. As the Bower case above illustrates, the lay witness must have some perception of the event — some personal knowledge — and if he does not, his testimony would be inadmissible. Many experts have only theoretical knowledge upon which to base an opinion.
One mistake inexperienced lawyers make is to ask lay witnesses who actually saw or experienced an event their opinions about it. Most of the time it is far more powerful and effective to ask the witness to relate what she saw, felt, smelled, or heard. For example: “Can you tell me whether Johnny was dying?” is far less effective than to ask, “Tell us what you observed about his head when you arrived.” Answer: “His face was smashed up; his skull was cracked open so you could see his brains, he was covered with blood; blood was spattered on the wall behind his head, his eyes were rolled back, and he wasn’t breathing.”
Lay opinion testimony can be a useful tool in many trials, particularly in family law cases. Standing alone it may not carry the day for you, but it could be just the featherweight of advantage you need to tip the scales in a close case.
Four Rules up for Comment
April 8, 2014 § 7 Comments
The MSSC has four rules posted for public comment at this link. In a nutshell, they are, with their respective deadlines for comment:
- Appellate Mediation Pilot Program, deadline May 2, 2014. Would create a voluntary procedure to hold appeals in abeyance so that they can be mediated. This proposal arose out of the practice in other states, where the result has been a reduction in pending appeals and the time it takes to resolve them.
- Amendment to MRCP 16, deadline May 26, 2014. Would amend MRCP 16 to require that, once a trial date is set, deadlines for summary judgment motions, expert motions, propounding and completion of discovery, and other procedural matters would automatically be in place. The provision that the parties or the judge may call for a pretrial conference remains unchanged.
- Amendment to MRE 105, deadline April 28, 2014. Would amend the rule to put the responsibility on the court to ensure that there is a jury instruction as to the proper scope of evidence whenever the court admits evidence for a limited purpose. The requirement may be waived by the party affected.
- Amendment to MRCP 3(c), deadline May 2, 2014. Would change the procedure for filing in forma pauperis to conform to statutes.
All of our rules of court directly affect your everyday practice of law. This is your opportunity to have a voice in those rules. You do not have to be a senior partner in a high profile law firm for your opinion to count.
Some Ancient Publication Guidance that is Still Good Law
March 31, 2014 § 1 Comment
Process by publication bedevils attorneys perhaps more frequently and thoroughly than any other aspect of the law. It’s a subject we’ve touched on in numerous previous posts.
Before the advent of the MRCP, lawyers consulted the venerable Griffith on Mississippi Chancery Practice (1925), and Bunkley and Morse’s Amis, Divorce and Separation in Mississippi (1957), for guidance.
So what do those ancient treatises have to tell us about modern-day publication process? Here’s what the MSSC had to say about it in Caldwell v. Caldwell, 533 So.2d 413, 415-417 (Miss. 1988):
[MRCP 4(c)(4)(A)] is substantially the same as the formerly followed statute Miss.Code Ann. § 13-3-19 (Supp.1972). Therefore, the former judicial decisions and treatises interpreting what constitutes diligent search and inquiry to ascertain addresses of non-residents of Mississippi may be relied upon to analyze the instant case.
Among this jurisdiction’s oldest equity treatises is Griffith, Mississippi Chancery Practice, Bobbs-Merrill Company, Inc. (1925) analyzing Mississippi’s requirements for summons by publication. Its applicability to this point of law is still apropos and is as follows:
§ 236 Requirements of publication statutes must be strictly observed.-It is the uniform and unbroken course of decision in this state that where notice by publication is resorted to, as a basis for the jurisdiction of the court, in lieu of personal summons all the requirements of the statute as to such notice must be strictly complied with, and it being a jurisdictional matter it cannot be cured by a recital in the decree as against a direct proceeding attaching it; … and it is not enough merely to give the residence of defendant, it must give his postoffice address, if known, and if not known it must be stated that it is not *416 known after diligent inquiry. An affidavit to support process by publication must strictly comply with the statute and if it omit averment of diligent inquiry it is insufficient. The affidavit for publication when made by an agent must cover the knowledge of the principal as well as of the affiant, as for instance, if an attorney makes the oath for his client the oath should show whether the knowledge or information is that of the attorney or the client, and an oath to a bill upon which a publication to non-residents was predicated which recited that “the matters and things stated in the bill on his own knowledge are true and those stated on information he believes to be true” will not support the publication.
Mississippi Chancery Practice at 225-227. See also, Amis, Divorce and Separation in Mississippi, § 244 (1935); Bunkley and Morse’s Amis, Divorce and Separation in Mississippi, § 15.01(3) (1957). Bunkley’s work states also:
It seldom happens that the published notice is defective, but the usual trouble is that the averments of the affidavit, or sworn bill [i.e., pleadding], are insufficient to authorize any publication to be made at all. This arises out of a misconception of the purpose of the statute, or else a misunderstanding of its provisions. Publication for a non-resident, or absent defendant, is not a mere formal or perfunctory matter; but the purpose is to give the defendant actual as well as constructive notice of the suit and an opportunity to make defense thereto, if it be reasonably possible to do so. Due process of the law requires notice and an opportunity to be heard, and this applies to residents and non-residents alike when sued in the courts of this state. …
If he cannot be found in this state, and any fact in regard to his whereabouts and/or post office and street address be unknown to the complainant, then he or she must make an honest and diligent effort, or inquiry, to ascertain the same, so that when publication is made the clerk may send him a copy of the notice. Good faith to the court, as well as the statute, requires this to be done before any affidavit for publication is made. And if, at any stage of the proceedings, it should appear that such duty was not performed, and that the affidavit was not made in good faith after diligent inquiry under the facts of the particular case, the process should be quashed by the court, of its own motion, as a fraud on its jurisdiction; for courts sit to protect the rights of defendants as well as to enforce those of complainants.
Divorce and Separation in Mississippi at 283.
Judicial interpretations have given rise to these treatises by such cases as Ponder v. Martin, 119 Miss. 156, 80 So. 388 (1919); Diggs v. Ingersoll, 28 So. 825 (1900). In Mercantile Acceptance Corp. v. Hedgepeth, 147 Miss. 717, 112 So. 872 (1927), this Court stated regarding the requisite oath, as follows:
We are of opinion that the changes made in the statute with reference to the oath required to bring in by publication a nonresident defendant, are material changes; that they are vital and that they were intended to answer a wholesome purpose and will have the effect of doing so. If the complainant makes the oath that the post office address of the defendant is unknown to him, he ought to be required, as the statute does require, to go further and make oath that he has made diligent inquiry to ascertain his post office address; and if the oath is made by the complainant’s attorney that the post office address of the defendant is unknown, he ought to be required, as the statute does require, to state that he had made diligent inquiry to ascertain his post office address, that he believes it is unknown to the complainant, and that the latter has made diligent inquiry to ascertain the same.
Mercantile Acceptance Corp., 112 So. at 874.
Remember that the affidavit must be filed before any publication is undertaken, and it must include the required information. Publication before filing of the affidavit is a nullity. Process by publication that does not meet every technical requirement of the rule is a nullity that deprives the trial court of jurisdiction, unless the defendant enters a voluntary appearance.
The Limits of Limited Scope Representation
March 26, 2014 § Leave a comment
The traditional default setting for representation of a client in a legal proceeding is that, once you enter an appearance, you are in the case until the judge lets you out.
There was a change in the Mississippi Rules of Profesional Conduct (MRPC) 1.2(c), which now provides that: “A lawyer may limit the objectives or scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.” The comment to the rule provides some helpful insight [Note that the comment in the West version of the rules is more detailed and to the point than the one posted online at the MSSC web site. I don’t know what causes the discrepancy].
With MRPC 1.2 in mind, then, how do you go about accomplishing limited scope representation in chancery court? There are no guidelines that I know of, and there is no Mississippi case law on point to my knowldge, so I am offering my opinion as to how you should handle limited-scope representation so that your obligation to the court and the client is, indeed limited:
- First, and most importantly, have your client sign a contract or representation agreement that specifically spells out exactly what you are agreeing to do, where your representation begins and ends, and includes the acknowledgment by the client that he or she had been fully informed about it and agrees that it is reasonable under the circumstances. The written agreement is critical, because you don’t want it to have to come down to a credibility contest between you and your client; you might just get caught in that default setting mentioned above.
- If the scope of representation involves filing pleadings, include in your filing some language informing the court of the limited scope, and include in the request for relief a prayer to be released from further representation after an order or judgment is entered. And, just to be certain, have your client sign off on the pleading. Then make sure your order or judgment specifies that you are released, and a better practice is to have your client sign off on it.
- If the scope of representation involves personally appearing before the court for a limited purpose (e.g., solely to obtain a continuance for the client), before you appear in court file an entry of appearance with the clerk spelling out your limited representation. Then make sure the resulting order lets you out. Just because you have an agreement with your client that does not mean you do no have continuing responsibility to the court.
- Remember, if the court does not let you out of the case by a specific order doing so, you are in it until the court does let you out.
- Limited scope representation does not work in probate matters. Once you enter an appearance in most districts you are in it until the judge approves a replacement.
Unless and until you inject into the record that your scope of representation is limited, the court should assume that it is not.
The enforceability of a limited scope representation agreement is contingent upon the resonableness in the circumstances of limiting representation and the client’s informed consent. I think this means that a chancellor may, at any time that you try to invoke such an agreement, inquire into both prongs. My intuition is that most chancellors will enforce the limitation of representation where the client does not object. But where the client objects, and where there is no written agreement, you are in a case-by-case situation.
I have said before that I wish the bar would give lawyers more guidance about the practicalities and the ethics of limited scope representation. Even sample agreements that have worked in other jurisdictions would be helpful. Those kinds of things would be a benefit not only to lawyers, but also to clients with limited funds who could pay a lawyer to do some work in the case without shouldering the full burden of attorney’s fees, rather than going pro se all the way. Win-win.
No Appeal from an “Interim” Judgment
March 25, 2014 § Leave a comment
Frank Lewis is a name you might recall from a previous post. I posted about his case in a post entitled Guardian or Conservator?, back in 2011. Mr. Lewis was the indoividual for whom an adult guardianship was established in chancery court, and the COA reversed for failure to comply in all respects with the statute vis a vis joinder of relatives. The case was remanded for further proceedings to cure the defects and then to determine the need for a guardianship.
Mr. Lewis died, however, during the pendency of the appeal, which was not taken into account by the COA opinion, although a suggestion of death had been filed. His death, however, did not end the family- controversy-riddled matter.
The executor of Lewis’s estate filed a petition with the trial court to recover all of the attorney’s fees that had been paid out by the guardianship, totalling some $15,000, since the guardianship had been reversed on appeal. The attorneys against whom the petition was filed responded with a counterclaim under the Litigation Accountability Act (LAA) asking for attorney’s fees incurred in defending the executor’s action.
The chancellor ruled that the guardianship had, indeed, been necessary to tend to Mr. Lewis’s business. All parties then agreed that the court’s ruling rendered the executor’s claim for recovery of attorney’s fees moot.
That left the LAA counterclaim. The chancellor deferred a decision on the LAA to determine whether the executor’s action had been frivolous, and to consider proof of the actual damages incurred in defending it. He set the hearing for a future date.
The executor asked for an interlocutory appeal, and the court granted a recess to allow the parties to discuss it, without any result of record.
Several days later, the chancellor entered a two-page judgment entitled “Interim Judgment,” adjudicating the necessity of the guardianship and ruling the executor’s claims moot, but not adjudicating the LAA counterclaim. On the face of the Interim Judgment, the words “THIS IS A FINAL JUDGMENT” had been stricken through in ink [Note: The court in that district requires the stricken language to appear on the face of all final judgments].
The executor (referred to by the COA as “Junior”) appealed. In the case of Estate of Frank Lewis: Lewis v. Harvey and Logan, handed down March 18, 2014, the COA found that it lacked jurisdiction on familiar grounds. Judge Maxwell wrote for the court:
¶13. We employ a de novo standard in reviewing jurisdictional issues. R.A.S. v. S.S., 66 So. 3d 1257, 1259 (¶10) (Miss. Ct. App. 2011) (citing Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008)). Although not raised by either party, we must examine the finality of a judgment on our own initiative. Id. (citing M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)).
¶14. “As a general rule, only final judgments are appealable.” Maurer v. Boyd, 111 So. 3d 690, 693 (¶11) (Miss. Ct. App. 2013). See also Miss. Code Ann. § 9-3-9 (Rev. 2002); Miss. Code Ann. § 11-51-3 (Rev. 2012); M.R.A.P. 5. “A final, appealable judgment is one that ‘adjudicates the merits of the controversy [and] settles all issues as to all the parties’ and requires no further action by the trial court.” Maurer, 111 So. 3d at 693 (¶11) (quoting Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007)). “When all the issues in a case or claims against all the parties are not resolved in a judgment, no appeal of right can be taken.” Thompson v. True Temper Sports, Inc., 74 So. 3d 936, 938 (¶6) (Miss. Ct. App. 2011) (quoting Williams v. Bud Wilson’s Mobile Home Serv., 887 So. 2d 830, 832 (¶5) (Miss. Ct. App. 2004)).
¶15. It really cannot be argued that an order labeled “Interim Judgment” is a final, appealable judgment—particularly when the language “THIS IS A FINAL JUDGMENT” has been scratched out and initialed by the judge, and the judge has apparently not ruled on a pending issue. While there are exceptions to the final-judgment rule—including obtaining permission to pursue an interlocutory appeal under Mississippi Rule of Appellate Procedure 5 or appealing from a Mississippi Rule of Civil Procedure 54(b)-certified final judgment—none are applicable here. [Foontnote omitted]
¶16. Because there is no record evidence that the issue of attorneys’ fees incurred defending Junior’s allegedly frivolous petition was ever resolved, the “Interim Judgment” is not final and appealable. So we must dismiss for lack of jurisdiction.
Nothing really earth-shattering here. It’s just a different spin on a theme we’ve visited fairly frequently over the past couple of years: that a judgment disposing of fewer than all of the issues is not a final, appealable judgment.
Nobody asked me, but I’m going to offer my view that if the document had been styled merely “Judgment,” and the words “THIS IS A FINAL JUDGMENT” had not been stricken, the same result would apply. And that’s so even if the chancellor had given the green light for an interlocutory appeal. All of that is so because the order entered disposed of fewer than all of the pending issues, and the court did not make any specific findings as to why there was no just reason for delay in entry of a judgment, as required by R54(b). You might see it differently.
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