“Quote Unquote”
April 8, 2016 § Leave a comment
“Go to the edge of the cliff and jump off. Build your wings on the way down.” — Ray Bradbury
“Either life entails courage, or it ceases to be life.” — E. M. Forster
“I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It’s when you know you’re licked before you begin, but you begin anyway and see it through no matter what.” — Harper Lee in To Kill a Mockingbird
What You Need to Tell Your Client About Court Appearance
April 6, 2016 § 2 Comments
Your client will be a whole lot more effective and confident if you will instill a few principles about appearing in court. Here are some I would recommend:
- Always be on time. Nothing says “I don’t respect this court and anything about it” more than failing to be on time. Being late is a good way to start off on the wrong foot, sort of like spotting your opponent 3-4 baskets at the beginning of a hoops game, or a touchdown in football, or 5 runs in baseball. If your client is the chronically-late type, suggest that he calendar the event for a half-hour earlier than actually scheduled. If parking is a problem at your courthouse, urge your client to build in an extra 15 minutes for parking.
- Dress for success. Business casual is fine. T-shirts with obscene messages, jeans with more holes than cloth, dirty and smelly clothes, and any attire that gives the impression that it was acquired from a dumpster will send an overly-negative message. I used to tell clients to avoid school logos and colors: if the judge went to a rival school, he or she may wonder whether there is some nose-thumbing at play; if he or she went to the same school, the judge may think there’s some brown-nosing going on.
- Speak up. The judge has to hear what the witness says if the judge is going to take it into account. Not every courtroom has state-of-the-art amplification.
- Don’t speak over anyone. This is a chronic problem that can result in an unintelligible record. Tell your client to wait until the question is completed before speaking. Never interrupt the judge.
- When you hear “Objection” or “Object,” stop speaking. Let the judge rule and follow the instructions of the court. Objections are one way you can protect your client, and if she persists in answering over objection, she may hurt her case.
- Answer the question asked; don’t volunteer. Most questions call for a simple “yes,” “no,” “I don’t know,” or a simple date, fact, number, or the like. Volunteering information is almost always unhelpful, and can be damaging. Example: “No, I have never been convicted of a felony … but … I have fourteen convictions for petty theft, shoplifting, and simple assault.” And remember, “I don’t know” is a perfectly legitimate answer; wading off into speculation will only make trouble.
- Be familiar with the 8.05. Know how the figures for income, expenses, debt, and assets were derived. Be able to explain and defend them. It’s never impressive when a witness says something like “I don’t know where that $250 figure for entertainment came from; I guess my lawyer put that there.
- Attitude makes a difference. A beautiful butterfly receives more favorable treatment than a scorpion. An earnest witness who clearly is trying to be truthful and doing her best will receive more favorable consideration than a petty, spiteful, sarcastic, bitter, argumentative, evasive witness. It’s just human nature.
- Know your case. Help your client understand what is needed to prove his case, and the best ways to answer truthfully the key questions. Go over the major points that he will face on cross examination.
- Your judge has idiosyncracies. Everyone does, even judges. If you know from experience that the judge does not want people chewing gum in the courtroom, caution your client not to d it. If your judge hates cell phones going off, warn the client to turn his off. And so on.
The Probate Lawyer’s Fiduciary Duty
April 5, 2016 § Leave a comment
What exactly is the duty owed to beneficiaries by a lawyer who represents the executor of an estate? Is there a fiduciary relationship?
In the MSSC case Gibson v. Williams, Williams & Montgomery and Montgomery, decided March 10, 2016, the court raised that question in the context of a legal malpractice claim.
Bobby Gibson had sued the lawyer and law firm over administration of his deceased wife’s estate, claiming wrongful conduct. The defendants filed a motion for summary judgment, which the Special Chancellor granted, and Bobby appealed.
On appeal, the MSSC reversed. One of the arguments defendants had raised in the summary judgment was that they owed Bobby no fiduciary duty, and hence he could not sue them for violation of a duty they did not have. Justice Dickinson addressed the point in the court’s opinion:
¶50. It is axiomatic that “a fiduciary duty must exist before a breach of the duty can occur.”[Fn 43] Attorney-client relationships give rise to fiduciary duties as evidenced by this Court’s recognition of legal-malpractice claims based on fiduciary obligations. [Fn 44] And as discussed earlier, we hold that a genuine issue of material fact remains on the issue of whether such a relationship existed between Montgomery and Bobby.
[Fn 43] Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So. 3d 474, 485 (Miss. 2010) (citing Black’s Law Dictionary 564 (5th ed. 1979)).
[Fn 44] See Crist v. Loyacono, 65 So. 3d 837, 842 (Miss. 2011).
¶51. But the absence of an attorney-client relationship does not foreclose the possibility of the existence of a fiduciary relationship. In Mississippi, “[a] fiduciary relationship may arise in a legal, moral, domestic, or personal context, where there appears ‘on the one side an overmastering influence or, on the other, weakness, dependence, or trust, justifiably reposed.’” [Fn 45] So fiduciaries’ duties may arise as a matter of law from certain specified relationships such as attorney and client; or they may be created by the facts and circumstances of a particular relationship, taking into account the above factors.
[Fn 45] Id. (citing Milner v. Bertasi, 530 So. 2d 168, 170 (Miss. 1988); Matter of Estate of Haney, 516 So. 2d 1359 (Miss. 1987)) (emphasis added).
¶52. In Baker Donelson, we recognized that, for decades, this Court has held that fiduciary relationships can arise in a variety of contexts, and that relationships between attorneys and third parties can give rise to a fiduciary relationship—and the requisite fiduciary duties—despite the absence of an actual “attorney-client” relationship. [Fn 46] Accordingly, the general rule in Mississippi is that, under certain facts and circumstances, attorneys can acquire fiduciary obligations to third parties who are not their clients where no attorney-client relationship is present. [Fn 47] Fiduciary relationships often turn on questions of fact related to exertion of influence, whether a party trusted and relied on another party, and whether the reliance was justified.
[Fn 46] Baker Donelson, 42 So. 3d 474, 485 (Miss. 2010).
[Fn 47] Id. 23
¶53. In other words, while it is true that we have never held—and we do not hold today—that attorneys for estates always owe fiduciary duties to every estate beneficiary, we see no reason to carve out a rule of special protection for estate attorneys, exempting them from any beneficiary claim of a fiduciary relationship. An attorney for the estate may, under certain circumstances, owe fiduciary duties to a beneficiary of the estate based on the same considerations relevant to determine fiduciary duties to all third parties. The existence of these fiduciary relationships are questions to be determined in the trial court, and here, we believe sufficient evidence exists in the record for a factfinder to conclude that Montgomery owed Bobby fiduciary duties, even without a finding of an attorney-client relationship.
¶54. And, should the trial court find that Montgomery assumed fiduciary duties to Bobby, we also find that—viewing the facts and allegations in the light most favorable to Bobby—Montgomery allegedly induced Bobby into signing a petition without first informing him of the consequences. This, in effect, caused Bobby to waive his statutory rights to contest and renounce Debbie’s will. Montgomery approached Bobby under circumstances which, if not enough to create an attorney-client relationship, could support an inference of dependence and trust, as Montgomery purported to have Bobby’s interests in mind and to exercise control over Debbie’s estate. There is evidence in the record to support Bobby’s claim that Montgomery coerced or compelled him to deduct $50,000 of life-insurance proceeds to fund a bequest in Debbie’s will. These acts, if true—and assuming a fiduciary relationship is found to have existed—would constitute a breach of that fiduciary duty. So genuine issues of material fact remain regarding Bobby’s fiduciary-duty claims.
¶55. To be clear, we do not address today the duties of attorneys who represent executors and administrators of estates. Montgomery claims he was the attorney for the estate and not for the executor of the estate. In thirty filings with the trial court, Montgomery was either listed as or signed as the “attorney for the Estate.” Indeed, we are unable to locate a single filing in which Montgomery identifies himself as, or claims to be, an attorney for the executor. Additionally, Montgomery is identified as attorney for the estate within the trial transcript and the appellee’s brief. And finally we note that, within the first five minutes at oral argument, Montgomery’s own counsel unequivocally stated that nothing in the record indicates anything other than that Montgomery and his law firm acted as attorneys for the Estate.
So the answer to the question, then, is “quite possibly.” It’s something to bear in mind as you go about the business of handling an estate. I recommend you read the entire opinion, especially the recitation of facts.
April 4, 2016 § Leave a comment
I am globetrotting for the next little while. Posts are stockpiled and will be automatically published; however, I will not likely get to approve comments. So if you have a comment sitting there out of view, be patient. I will get to it when I do.
Ciao.
Bell Save the Date
March 30, 2016 § Leave a comment
Dean Deborah Bell’s annual Family Law CLE is a must if you expect to be current in your domestic law practice.
This year’s dates and locations:
- July 8, 2016 — Oxford
- July 22, 2016 — Gulf Coast
- August 5, 2016 — Jackson
An Agreement to Agree is not an Agreement
March 29, 2016 § Leave a comment
Ken and Lauren Moreland agreed in their irreconcilable divorce to the following provisions:
Kenneth Moreland shall pay one-half (1/2) of all expenses of the minor child for up to two (2) extracurricular activities and the reasonable age appropriate activities of the minor child which the parties agree are reasonable and necessary for the minor child.
…
The parties shall be responsible for one-half (1/2) of all preschool and/or private school tuition and expenses for the minor child attending preschool and/or private school, until graduation, including but not limited to registration fees, school uniforms, school supplies, lunches and any other expenses due to the school or as a result of the minor child attending school if the parties agree to enroll [the child] in a private preschool or school. [Emphasis added]
In Moreland v. Spears, handed down March 1, 2016, the COA held (at ¶11) that the italicized language required the agreement of both parties before Ken became obligated under the divorce contract to pay any part of those expenses. Since Ken never agreed, he was not bound to pay.
The very purpose of a contract is to create an agreement that is enforceable in a court of law. It’s a basic principle of contract law that a mere agreement to agree is no contract. See, e.g., Intrepid, Inc. v. Bennett, 176 So.3d 775 (Miss. 2015).
I have seen many PSA’s with similar provisions, and I always ask from the bench whether the party understands that there is no obligation if the other party does not agree. Most of the time the cheery, optimistic answer is that no problem is expected, and that, surely, the other party will “do the right thing.” To that, I always warn that if (s)he does not, no court can make him or her do the right thing under the terms of this agreement. Occasionally, the party will ask to go back to the drawing board. That’s the wiser course.
If you’re going to include Moreland-like language in a PSA, be sure to advise your client of the pitfalls. Better still: put it in writing and have your client acknowledge receipt by signing it.
Easter Monday
March 28, 2016 § 6 Comments
…
God is not in this place; the rock is rolled away
and He has gone down into the neighborhoods
to suffer with the powerless, the criminals, the poor,
to bring them peace, justice, loaves, fishes.
He is not hidden in a cloud of incense or jumble of words;
God is what God does, not what we think of Him,
not what we say about Him, nor what we believe about Him,
God acts, and His acts are what and where He is.
We have thought too much on God,
the inscrutable ways and mysteries of Him,
probed His meaning so unknowable;
sought Him, everywhere but where He is.
Like visitors to the bottom of the sea
lurching in the oppressive dark current,
we see not what we gaze upon,
turning our eyes upward to the light.
Look not up, but here: God is with us, right beside us;
where we are bombed, terrified, starved, gassed;
loved, hurt, sick, strong, worried, happy, poor, sad,
comfortable, ignorant, old, young, feeble, He is here.
We have thought like thought could know Him,
yet when a shadow falls, it is only a shadow,
not the awakening or the apocalypse;
enlightenment eludes us like the brush of a butterfly wing.
God showers grace and mercy on us in a bouquet of love;
that is what God does, and that is how we will know Him,
here, right beside us, among us, feeling what we feel,
holding our hand if we will only let Him.
HB 571 Died in Committee; Other Bills Not Dead
March 24, 2016 § Leave a comment
According to the Mississippi Legislature’s Bill Status site, HB 571, which we discussed here previously, died in committee on March 22, 2016. The measure would have allowed enhanced-permit handgun-carriers to bear arms anywhere in a courthouse except the courtrooms, judges’ chambers, and judicial staff offices. Here is the link to the legislature’s status report.
Here are the other bills that may be of interest to chancery practitioners still alive as of March 22:
HB 519 MS Unborn Child Protection from Dismemberment Abortion Act; create.
03/22 (S) Title Suff Do Pass As Amended
Mims HB 553
* Human trafficking; increase penalty and authorize center for violence prevention.
03/22 (S) Title Suff Do Pass As Amended
HB 767 Trespassers; codify duty of care to.
03/22 (S) Title Suff Do Pass As Amended
HB 772 Youth court; authorize counsel to represent indigent parent.
03/22 (S) Title Suff Do Pass
HB 786
* “Mississippi Church Protection Act”; create.
03/17 (S) Title Suff Do Pass As Amended
HB1240 Termination of Parental Rights.
03/17 (S) Title Suff Do Pass As Amended
HB1375 Alcoholics and drug addicts; DMH shall try to arrange for supportive services upon discharge from treatment facility.
03/22 (S) Title Suff Do Pass As Amended
HB1413
* Child abuse; provide that a trafficked child is an abused child.
03/17 (S) Title Suff Do Pass
HB1523
* The “Protecting Freedom of Conscience from Government Discrimination Act”; create.
03/22 (S) Title Suff Do Pass
HB1529 Appeal bond requirements; revise.
03/22 (S) Title Suff Do Pass As Amended
HB1635 Appropriation; Supreme Court, Court of Appeals and trial judges services.
03/21 (S) Title Suff Do Pass As Amended
SB2179
* Mississippi Department of Child Protection Services; establish.
03/22 (H) Title Suff Do Pass As Amended
SB2211
* Trust law; make technical corrections.
03/22 (H) Title Suff Do Pass
SB2344
* Writs of garnishment; limit liability of garnishee if garnishee is a financial institution.
03/22 (H) Title Suff Do Pass As Amended
SB2418 Divorce; domestic violence as additional ground for.
03/22 (H) Title Suff Do Pass As Amended
SB2483
* Articles of incorporation; revise.
03/15 (H) Title Suff Do Pass As Amended
SB2493
* Supporting and Strengthening Families Act; create.
03/22 (H) Title Suff Do Pass As Amended
SB2660 Senior status judges; revise service qualification.
03/22 (H) Title Suff Do Pass
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