THE BALDUCCI FILES
October 4, 2010 § 1 Comment
If you’re familiar with the story of Dickie Scruggs’ downfall, you know that the final, climactic act in his Greek tragedy began in the Calhoun City offices of Circuit Judge Henry Lackey, who met with Scruggs operative Tim Balducci and recorded Balducci’s offer to bribe him.
Patsy Brumfield of the Tupelo Daily Journal, has obtained copies of the FBI recordings and has posted them online here. There are four video and three audio recordings. Six are in Lackey’s office, and one is in Scruggs’ office after Balducci has been arrested and has agreed to cooperate with he FBI.
What is most remarkable about them is the prosaic, almost ho-hum nature of the conversations. The tone is business as usual, which is chilling, considering how far-flung were Scruggs’ conflicts with other lawyers similar to the one that led to the Lackey bribe attempt.
Another compelling feature of the recordings is how they show the banal nature of evil. It seldom manifests itself with the dramatic flair we see on tv and in the cinema. It is a handshake, a wink and a nod, an exchange of consideration.
Thanks to Tom Freeland at NMissCommentor for posting about this.
Tom also has a great post today about whether Curtis Wilkie’s upcoming book, FALL OF THE HOUSE OF ZEUS answers some questions about the handling of the Scruggs trial.
FULL FAITH AND CREDIT AND SAME-GENDER COUPLE ADOPTIONS
October 1, 2010 § 1 Comment
In order to adopt a child under Mississippi law, the adoptive parent(s) must be either an unmarried individual or a married couple with both partners joining. MCA § 93-17-3 specifically states that “Adoption by couples of the same gender is prohibited.”
What about the situation where a same-gender couple adopt a Mississippi child in a state where it is legal for them to do so, and they ask Mississippi to alter the birth certificate? Is Mississippi required to recognize the legality of that adoption and enforce their rights here?
In the case of Adar v. Smith, 597 F.2d 697 (5th Cir. 2010), a New York same-gender couple in a New York proceeding adopted a Louisiana child. They applied to Louisiana to change the child’s birth certificate to reflect the adoption. Louisiana objected and took the position that the New York judgment was not entitled to full faith and credit because it was repugnant to Louisiana public policy embodied in its laws that prohibited adoption by unmarried couples.
The U.S. Court of Appeals for the Fifth Circuit held that the full faith and credit clause of the U.S. Constitution requires states to recognize the valid judgments of other states, even where the judgment of the other state violates public policy in the state where it is sought to be enforced; there is no public policy exception.
Some may ask how this impacts Mississippi law that our state will not recognize same-gender marriages performed in other states. The distinction for now, until the courts address the question, is that marriage is a bureaucratic, administrative act, as opposed to a judgment entitled to full faith and credit.
THE PRE-ADOPTION CONFERENCE
September 30, 2010 § 1 Comment
In the 12th District, we have long had a practice of requiring the attorney to appear personally to confer with the judge in a pre-adoption conference without the adoptive parent(s) in uncontested adoptions.
Some out-of-district lawyers question why we deem this necessary.
Imagine getting your client and spouse to take a day off of work, perhaps take the other children out of school, to travel to the courthouse for the long-anticipated day. Spirits are high and festive. A new member of the family is about to be welcomed in. Or maybe not.
The judge calls you into chambers and points out that you have failed to obtain a statement from a physician, as required by the statute. Or your pleading is inadequate under the new jurisdiction statute.
So your clients’ happy day turns to ashes and you are embarassed.
With a pre-adoption conference, you get the chance to learn what you need to do to get your case in shape so that your clients’ happy occasion can truly be happy. When you file for an adoption that you know will be uncontested, call the court administrator and set up an appointment for a pre-adoption conference as soon as possible. When the judge gives you the green light, you can set it for final presentation to the court.
If you’re filing for adoption in another district, it would not hurt to ask the Chancellor for an appointment to look over your filing in advance of presenting it with your clients present.
HOW MUCH DO YOU KNOW ABOUT OTHER RELIGIONS?
September 29, 2010 § Leave a comment
An item on the national news yesterday piqued my interest.
The Pew Forum on Religion and Public Life has sponsored a quiz testing people’s awareness of and knowledge about other religions. You can take the quiz yourself here. It’s only 15 questions and has no political content. The questions are exclusively about the beliefs and practices of various religions. After you take the quiz, you can compare your results with others by religion, education, socio-economic group, etc.
What fascinates me about the results is how uninformed so many people are. The median score is only around 50%. In other words, most Americans are unaware of the majority religion in India, or what exactly is it that Catholics believe about the Eucharist that might be different from their own religion, or even whose writing sparked the Protestant Reformation.
Religion plays such an important role in American culture, and is even a crucial factor for many in making poiltical decisions and voting. You would think that people would make it their business to be better informed about other religions so they could make better decisions.
Understanding world religions is also critical to understanding the rest of the world. We make a serious error in thinking that people in Pakistan or Egypt or France or Argentina think and believe like we do when we have no idea what their belief systems are. No wonder there is so much misunderstanding and suspicion among the nations.
As a lawyer, you need to comprehend the forces that shape your clients’ lives and influence their thinking, and religion is one of the most powerful of those forces. The more you know about what is behind what your client is thinking and being guided by, the better you will be able to communicate and advise. And that’s what you’re there for, after all.
ONLY 3 MORE DAYS TO COMMENT ON MANDATORY PRO BONO
September 28, 2010 § Leave a comment
From the Mississippi Bar’s BAR BRIEFS …
October 1 Is Deadline to Submit Comments on Proposed Mandatory Pro Bono Rule
The Mississippi Supreme Court Rules Committee on the Legal Profession seeks comments on two proposed rule changes. The first proposed change would amend Rule 6.1 of the Mississippi Rules of Professional Conduct. As proposed the change would make pro bono service mandatory, and would increase the fee to be submitted in lieu of performance from $200 to $500. The second proposed rule change is to Rule 46 of the Mississippi Rules of Appellate Procedure. The proposed change would increase pro hac vice admissions fees from $200 to $500. These proposed rule changes may be found on the Supreme Court website at http://www.mssc.state.ms.us/rules/rulesforcomment/rulesforcomment.html . The deadline for filing comments is October 1, 2010. Comments are encouraged and should be filed with the Clerk of the Supreme Court, Gartin Justice Building, P. O. Box 249, Jackson, MS 39205-0249.
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I have read reports that only around 100 lawyers, out of 5,000 or so members of the Mississippi Bar have submitted comments. That’s pretty pathetic … and apathetic. This is a proposal that will impact your practice. At the risk of being boringly repetitious, I beg you to submit your comments. Just click on the link and fire away. You don’t even need to spend a postage stamp.
THE PARENT TRAP
September 28, 2010 § 5 Comments
We should all be familiar with the landmark case of Williams v. Williams, 843 So.2d 720 (Miss. 2003), in which the Mississippi Supreme Court held that it “refuse[s] to sanction the manifest injustice of forcing a man to support a child which science has proven not to be his.” In Williams, the father did not know until well after he was ordered to support the child that it was not his, and he had little contact with the child in the intervening years before he filed an action to terminate support. The Williams court, however, added this caveat:
“We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted a child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.” [Emphasis added]
Fast forward to 2009.
In the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), the Court of Appeals considered the appeal of Gregory Lee, Sr.
Mr. Lee had performed a home DNA test and discovered that there was a zero probability that one of the chilren he thought he had fathered was biologically his. Soon after the unfortunate discovery, Mr. and Mrs. Lee filed a joint Complaint for Divorce. Notwithstanding the DNA test results, the complaint alleged that the child was their indeed child, and their property settlement agreement provided for Mrs. Lee to have custody and for Mr. Lee to pay her support.
Two years after the divorce, Mr. Lee filed a petititon to modify and asked for DNA testing, which confirmed the home-test result that he was not the child’s father.
The Chancellor refused the modification, holding that Mr. Lee had voluntarily undertaken the duty to support the child with full knowledge that the child was not his, and under Williams, he could not be relieved of the support duty that he had assumed voluntarily.
On appeal, Mr. Lee argued that he had not been 100% convinced by the home test that he was not the father, and it was only when he got the court-ordered DNA test results that he knew conclusively for the first time of his non-paternity. He also pointed out that the home test was not legally binding, while the court-ordered test was.
The appellate court brushed aside the argument because Mr. Lee’s own inartfully drawn petition to modify stated that he knew as a result of the DNA test that he was not the father, and the only test that assertion in the petition could have referred to was the home test, since the court-ordered test was done after the petition was filed.
Having found that he did know at the time of the divorce that he was not the father, the court went on to distinguish Williams and to find it inapplicable because Mr. Lee knew when he undertook the obligation that he was not the father, he supported the child and exercised visitation with him. In Williams, the exact opposite of those facts existed.
The court also held that Mr. Lee had failed to prove a material change in circumstances that arose after the prior judgment that was sought to be modified. He knew the child was not his at the time, and that circumstance had not changed.
Bottom line is that Williams is an escape hatch for a dad who was led to believe that he fathered a child and only learned later that he did not. Williams, however, can not be used to relieve a support obligation in any case where the payor is related by blood to the child, or has adopted the child, or has otherwise voluntarily assumed the duty to support the child.
If you represent a father in an ID divorce, and he expresses any doubt as to whether a child is his, you should advise him of the ramifications of the Williams and Lee cases. If he wants to shrug it off and just “get it over with,” you should put your advice in writing and get him to sign off on a copy for your file.
YET MORE ON MANDATORY PRO BONO
September 27, 2010 § 3 Comments
The only thing I am hearing on mandatory pro bono (MPB) from lawyers in east Mississippi is stony silence. You would think that a measure with so many ramifications for lawyers, particularly small-town lawyers of which we have many, would provoke a major reaction.
Meanwhile, down the board, you will find an earlier post and some insightful comments from lawyers in other parts of the state on the subject, the latest from John Gillis in Water Valley, who makes some points that deserve your consideration.
Although I think Mr. Gillis and others make some valid and even persuasive points, I do disagree with their argument that MPB constitutes a form of involuntary servitude. In my opinion, that argument is is based on a business-model view of the legal profession, a view that is incomplete and incorrect. The law is a profession and not a business. Lawyers have a duty to the administration of justice.
The Preamble to the Rules of Professional Conduct states: “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” [Emphasis added] It goes on to say: “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession … A lawyer should be mindful of deficiencies in the administration of justice and the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore all lawyers should devote professional time and resources and use civil influence to ensure equal access to our system of justice for all who, because of economic or social barriers, cannot afford or secure adequate legal counsel.” [Emphasis added]
Mr. Gillis is perhaps too young to remember the days when all lawyers were subject to that infamous telephone call from the Circuit Judge to come defend an indigent prisoner. That practice persisted until counties began hiring public defenders to do the job. Back then I did not know a single attorney who refused the judge on the ground that the requirement was a form of Marxism (as Mr. Gillis characterizes it). Those of us who were fairly competent accepted the burden as an obligation of the profession, not always gladly I assure you, but always with the understanding that it was our professional responsibility.
I also do not understand the significance of the point that no other state has MPB. How does that matter?
As for the other arguments, I think they are sound and need to be considered. I am not sold on the idea of MPB, although I do lean toward it as a solution to a major problem facing the courts and the bar.
It does seem to me that two things are necessary before a final decision is made on MPB: First, much more study needs to be done; and second, many more lawyers’ voices’ need to be heard. The silence on the subject is baffling to me.
