“Quote Unquote”
July 6, 2018 § 5 Comments
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” — Justice Anthony Scalia, majority opinion in District of Columbia v. Heller.
“No freedman, Negro, or Mulatto shall carry or keep firearms or ammunition.” — Mississippi Black Code (1865)
“There’s no reason why on the street today a citizen should be carrying loaded weapons.” — Ronald Reagan, commenting on armed Black Panthers demonstrating in California
Limited Scope Representation and Disclosure of Services
July 3, 2018 § Leave a comment
Before limited-scope representation, I think it was pretty clear that a lawyer who prepared papers for a person to use in court had to show on the paperwork that he had prepared it.
Since limited-scope representation, the answer has been unclear. Until now.
The Mississippi Board of Bar Commissioners has addressed the question with an Ethics Opinion. The text of it is here:
ETHICS OPINION NO. 261
OF THE MISSISSIPPI BAR
RENDERED JUNE 21, 2018
The Ethics Committee has asked to respond to two questions:
Is it ethical for a lawyer to prepare documents for pro se litigants?
If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?
APPLICABLE RULES
Rules 1.2 and 8.4(c) of Professional Conduct are applicable to this opinion. The relevant portion of these Rules provide:
Rule 1.2 Scope of Representation
(c) A lawyer may limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
Comment
Services Limited in Objectives or Means. The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage.
A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.
Limited scope representation is an important means of providing access to justice for all persons regardless of financial resources. Lawyers are encouraged to offer limited services when appropriate, particularly when a client’s financial resources are insufficient to secure full scope of services. For example, lawyers may provide counsel and advice and may draft letters or pleadings. Lawyers may assist clients in preparation for litigation with or without appearing as counsel of record. Within litigation, lawyers may limit representation to attend a hearing on a discrete matter, such as a deposition or hearing, or to a specific issue in litigation.
Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1
And,
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
ANALYSIS
(1) Is it ethical for lawyers to limit the scope of their representation to discrete aspects of a matter?
Yes. The 2011 amendments to the comments to Rule 1.2, set out above, expressly provide that a lawyer may provide limited scope representation on behalf of a client. Such limits can involve merely drafting a document or advising a client on how to proceed in a matter without undertaking a full representation. This is commonly referred to as unbundled legal services. It is important for lawyers to remember two important aspects of this type of limited scope representation. First, is that the lawyer does represent the client to the extent of the limited scope representation, and the full panoply of ethical obligations (including the obligation of confidentiality under Rule 1.6) apply to the representation. Second, a lawyer’s ethical obligations under Rule 1.4 require that the lawyer ensure that the client fully understands what it means to limit the scope of representation to discrete aspects of the representation and the consequences of the limited representation. For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.
(2) If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?
No. The issue is whether a lawyer who has prepared a document to be filed with the court, but who does not enter a general appearance, must indicate on the document either the lawyer’s name or that the document was prepared by a lawyer. Some federal courts and some ethics opinions have found the lawyer’s failure to disclose his/her involvement to be misleading or dishonest to the court in violation of Rule 8.4(c).[1] The deception here is that the tribunal or opposing counsel could believe that the party has received no professional help at all, when in reality a lawyer has provided some assistance. As a result of this failure to disclose the client may receive more lenient treatment by a court who believes the party is proceeding pro se – unware of the limited representation provided.
While sensitive to these concerns, the Committee does not believe that a lawyer’s undisclosed limited representation is a deception as contemplated by Rule 8.4(c). A court presented with a lawyer-drafted document and a pro se litigant appearing to defend or argue that document, would be aware of the nature of a lawyer’s involvement. If not, the court can always inquire from the litigant whether a lawyer assisted in preparing the document. The unlikely event that a court will be misled into providing leniency to a pro se litigant under these circumstances does not outweigh the strong public policy set out in the Comment to Rule 1.2, encouraging lawyers to provide limited scope representation without having to enter an appearance. The Committee is concerned that lawyers will be dissuaded from providing limited representation if required to disclose their involvement.
There are two additional points to make about this opinion. The first is that a lawyer cannot utilize the limited scope representation to actively and substantially participate in a matter without disclosure. This opinion contemplates that the lawyer is performing discrete aspects of representation. On-going representation of a client without disclosure would be misleading and a violation of Rule 8.4(c). Second, this opinion is based solely on the Rules of Professional Conduct and a lawyer’s ethical obligation and does not address any questions of law.
Writing Tools that Every Lawyer Needs to Have
July 2, 2018 § 7 Comments
Judge Griffis had this post on his blog last month, and I think it’s a list that both lawyers and judges can benefit from.
16 books judges should own if they want to write well
Here is a link to an article from the National Judicial College. Yes, 16 books you need to own.
By Julie Oseid and Randall Tietjen
Three conventional dictionaries:
1. Merriam Webster’s Collegiate Dictionary (10th edition) [Now in its Eleventh Edition]
2. The Oxford English Dictionary (5th edition)
3. The American Heritage Dictionary (6th edition) [Could not find a link to the 6th, even on Amazon; this link is to the 5th]
One legal dictionary:
4. Black’s Law Dictionary (10th edition)
Two English usage books:
5. Modern English Usage by H.W. Fowler
6. Garner’s Modern English Usage
One legal usage book:
7. Garner’s Dictionary of Legal Usage
Three style guides:
8. The Chicago Manual of Style. Good advice on punctuation and style, plus handy information about copyright and fair use.
9. The Redbook: A Manual on Legal Style by Bryan Garner
10. Plain English for Lawyers by Richard Wydick
Beyond the reference books:
11. Elements of Style by Strunk & White. This book has likely been on your bookshelf since college, but it is well worth revisiting with some regularity.
12. On Writing Well by William Zinsser. This book will make you want to be a better writer.
13. On Writing by Stephen King. Yes, that Stephen King.
14. The Sense of Style by Steven Pinker
15. 30 Days to Better English by Norman Lewis. Good for improving your vocabulary.
16. Typography for Lawyers by Matthew Butterick. It explains how effective communication depends on document design, including how words look on a page.
My only pushback is three dictionaries. For most of us, one good one is all you need. And I think the OED is overkill; unless you’re serious about etymology and harbor a secret ambition to be an English scholar, or unless you just want to appear scholarly and impress academics, you’d do just fine with either of the more popular dictionaries.
Speaking of dictionaries, I read Word by Word: The Secret Life of Dictionaries, by Kory Stamper, a lexicographer with Webster who describes how words are selected to be included or excluded in a dictionary, as well as many other arcane facts about them (I know, I am a nerd). As she points out, Webster’s philosophy is to include words and usages as they come into the mainstream of the language (e.g., “waiting on” has become predominant in everyday language as a synonym for “awaiting” as well as “serving,” and either is proper usage) rather than the philosophy of American Heritage, which is to defend proper usage against all incursions (e.g., “waiting on” means serving, not awaiting, and it is improper to use the term in the latter sense).
I have to sympathize with Judge Griffis on at least one salient point: he sees a lot more of lawyers’ writing than I do. What comparatively little I see is sometimes unclear, rife with grammatical and usage errors, and downright unenjoyable to read, so that I just skip to the citations and read the cases.
No UCCJEA Affidavit? Is That a Problem?
June 27, 2018 § Leave a comment
One would think by now that every pleading seeking child custody would include a UCCJEA affidavit as required by MCA 93-27-209(1). Yet, every now and then an affidavit-less petition or counterclaim wends its way to court and before we commence the hearing there is a motion to dismiss for failure to comply with the statute.
That’s apparently what happened in the custody case between Elle Adams and John Leon Rice. After the chancellor ruled that Mississippi properly had jurisdiction and the case proceeded to its conclusion in which the court awarded custody to John, Elle appealed.
In Adams v. Rice, decided by the COA on June 12, 2018, Elle raised a number of issues, among them the claimed failure to file the UCCJEA affidavit. Judge Barnes penned the opinion for the unanimous court:
¶28. Elle also argues that certain “required disclosures” pertaining to jurisdiction were not filed; therefore, the chancellor should have dismissed the action. Mississippi Code Annotated section 93-27-209(1) (Rev. 2013) provides that, in child-custody proceedings, each party in its first pleading or in an attached affidavit must provide certain information under oath as to the child’s present address and other matters. Elle cites White v. White, 26 So. 3d 342 (Miss. 2010), a child-custody modification case, as support. In White, even though the petitioner failed to provide this information, the Mississippi Supreme Court found it was not fatal to jurisdiction for two reasons: the chancery court’s jurisdiction is set by the Mississippi Constitution and cannot be diminished by statute; and under the plain language of section 93-27-209(2), the court is not required to stay the proceedings. [Fn 12] Id. at 347 (¶13).
[Fn 12] The statute states: “If the information required by subsection (1) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.” Miss. Code Ann. § 93-27-209(2) (emphasis added).
¶29. John provided this information in his initial petition. In his petition to modify custody, he could not provide the information because, as he explained, he was unaware of where Elle and Aaron were residing at that time. Elle, in response, claimed that she did not reveal her address and other information in her initial answer or in this action due to the Alabama protection orders. Since any failure to provide this information is not fatal to jurisdiction, and it is within the discretion of the chancellor to go forward with the proceeding, this argument is without merit.
That word may in the statute means that it is discretionary with the judge. Most judges are pretty level-headed and can be trusted to do the rational thing. There are a few, though, who might give you a funny (not funny ha-ha) bounce that might be somewhat unpleasant. My suggestion is that you always include a UCCJEA affidavit in a pleading where there is a custody issue, even when your client can not provide all the required information. Just aver that after diligent inquiry he or she has been unable to discover the information.
The (Judicial) Immune System
June 26, 2018 § Leave a comment
Timothy Pryer, a state prisoner, filed a public records request. When he received a response he deemed inadequate, he filed suit against several individuals for damages per MCA § 25-61-15. One of the defendants was a circuit judge whose responses to his request Pryer considered to be insufficient.
In response, the judge filed a R12(b)(6) motion to dismiss either on the basis of judicial immunity or for statute of limitations. The chancellor granted the motion, and Pryer appealed.
The MSSC affirmed in Pryer v. Gardner, decided May 17, 2018. Since the case includes a lucid discussion of when and how judicial immunity applies, I thought I would excerpt it here. Justice Kitchens wrote for the unanimous court:
¶8. The doctrine of judicial immunity long has been recognized in Mississippi. Newsome v. Shoemake, 234 So. 3d 1215, 1223 (Miss. 2017). “[T]he best interests of the people and public order require that judges be immune from civil liability.” Loyacano v. Ellis, 571 So. 2d 237, 238 (Miss. 1990). It is the sound public policy of this state that judges are empowered to make decisions in the absence of fear that they will be held liable for their actions. Id. A person who believes a judge has acted contrary to or in excess of his or her authority may, however, file a complaint with the Mississippi Commission on Judicial Performance. Newsome, 234 So. 3d at 1225.
¶9. In Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978), the United States Supreme Court held that “judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” In Loyacano, this Court recognized that, in the prior case of DeWitt v. Thompson, 192 Miss. 615, 7 So. 2d 529, 532 (1942), the Court seemingly left for another day the question of whether judicial immunity applies to malicious or corrupt acts. But Loyacano ultimately held that “[t]he doctrine of judicial immunity is fully recognized in Mississippi.” Loyacano, 571 So. 2d at 238. In Newsome, the Court held that, notwithstanding the plaintiff’s allegation that a judge was corrupt in his handling of a conservatorship, the judge was immune from civil liability. Newsome, 234 So. 3d at 1225. So judicial immunity in Mississippi extends even to acts of malice or corruption. The reason is that it is “a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself.” Id.(quoting Stump, 435 U.S. at 355-56, 98 S. Ct. 1099). Further:
It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision- making but to intimidation. Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967).
¶10. Judicial immunity does not extend to acts taken in the clear absence of jurisdiction. Weill v. Bailey, 227 So. 3d 931, 936 (Miss. 2017). However, judicial acts in excess of jurisdiction are subject to judicial immunity. Newsome, 234 So. 3d at 1223. In Newsome, the Court provided the following explanation of this distinction:
In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.
Newsome, 234 So. 3d at 1224 (quoting Stump, 435 U.S. at 357 n.7, 98 S. Ct. 1099 (citing Bradley v. Fisher, 80 U.S. 335, 352, 20 L. Ed. 646 (1871)). We have said that “[i]n order to determine the existence of judicial immunity one must look to whether at the time [the judge] took the challenged action he had jurisdiction over the subject matter before him.” Loyacano, 571 So. 2d at 238 (quoting Stump, 435 U.S. at 356, 98 S. Ct. 1099).
Modification and Ability to Pay Attorney’s Fees
June 25, 2018 § 1 Comment
Adam and Karen Lewis were divorced in 2002, ending a 13-year marriage. Their PSA, incorporated into the judgment, provided that Adam would pay Karen $15,000 a month in permanent, periodic alimony.
In 2015, Adam filed a petition to terminate alimony because Karen was in a de facto marriage. Following a trial, the chancellor dismissed his case under MRCP 41(b) for failure to meet his burden of proof. The chancellor also awarded Karen one-half of her attorney’s fees, or $13,935.50, for being required to defend herself in the case. The proof in the record was that Karen had substantial assets. Adam appealed.
In Lewis v. Lewis, handed down March 20, 2018, the COA affirmed the dismissal, but reversed and rendered on the award of attorney’s fees. Judge Wilson wrote for the majority in this 6-4 case:
¶31. As discussed above, the chancellor found that Karen “is of a financial standing in the court system that is not often seen and is capable of providing some of her own defense costs,” so she denied Karen’s request for attorney’s fees in part. However, the chancellor awarded Karen half of her fees ($13,935.50) because she found that Karen was “entitled to receive compensation for the requirement that she come in and defend herself.” Adam argues that this award was an abuse of discretion and should be reversed and rendered, and we are compelled to agree.
¶32. Adam’s complaint to terminate alimony was not frivolous or subject to sanctions under the Litigation Accountability Act or Rule 11, nor was he found to be in contempt of court. Therefore, the only possible basis for an award was Karen’s own inability to pay the fees. Karen is not entitled to an award of attorney’s fees just because Adam “is more capable of paying her attorney’s fees.” Rhodes v. Rhodes, 52 So. 3d 430, 449 (¶79) (Miss. Ct. App. 2011). Rather, Karen must “show that she is unable to pay [her fees]” as “a prerequisite to an award of attorney’s fees.” Id.; accord, e.g., Watson v. Watson, 724 So. 2d 350, 357 (¶30) (Miss. 1998) (holding that a chancellor may not award attorney’s fees to a spouse who “is
financially able to pay for her own attorney’s fees”).
¶33. Karen failed to show that she is unable to pay her attorney’s fees. Karen continues to receive alimony of $15,000 per month from Adam, and she has substantial assets. At the time of trial, Karen already had paid more than half of the fees that she requested, and she only testified vaguely that she thought her mother “might have helped” her make one payment because “that particular month” she could not pay the entire bill. It is clear that Karen is financially able to pay her own attorney’s fees. Therefore, we hold that the chancellor abused her discretion by ordering Adam to pay Karen’s attorney for her.
This is a pretty predictable outcome. The law is fairly clear as it applies in this case.
Only thing is, anyone who has done much domestic work will recognize the leverage that this gives to an ex-spouse who can vindictively take the other ex back to court repeatedly, carefully avoiding frivolous and vexatious actions, the result being that the ex is wiped out financially. I have seen it in custody cases, where there are repeated charges of material change and adverse effect. So long as there is an arguable basis in fact, no judge is going to deny a parent access to the courts to determine the best interest of children.
So I get the logic behind the rule. It just seems like it opens the door for some abuse.
An earlier post discussing the court’s ruling on the termination of alimony issue is at this link.
Reprise: Lawyers’ Prayers
June 22, 2018 § 4 Comments
TWO PRAYERS FOR LAWYERS
September 16, 2011 § 3 Comments
Practicing law can be a treacherous proposition, what with its snares and traps awaiting your every misstep. Sometimes the stress can be overwhelming, and the isolation you feel — that no one can understand the magnitude of the pressure cooker you’re in — makes it worse. Lawyers who have grown past cynicism to reach a deeper place come to know that you have to search somewhere outside yourself for strength and endurance. Here are two prayers for harried lawyers.
This prayer of the remarkable Thomas Merton, author and Trappist Monk, is reassuring and comforting for those who have to brave swamps full of dragons and unexpected perils every day.
My Lord God, I have no idea where I am going.
I do not see the road ahead of me.
I cannot know for certain where it will end.
Nor do I really know myself, and the fact that I think I am following your will does not mean that I am actually doing so.
But I believe that the desire to please you does in fact please you.
And I hope I have that desire in all that I am doing.
I hope that I will never do anything apart from that desire.
And I know that if I do this you will lead me by the right road, though I may know nothing about it.
Therefore I will trust you always though I may seem to be lost and in the shadow of death.
I will not fear, for you are ever with me, and you will never leave me to face my perils alone.
This next prayer comes from Alan Lomax’s The Land Where the Blues Began. He recorded it at a black Baptist state convention in Clarksdale in 1942. The sentiment, especially with its reference to a “war coat,” could not be more appropriate for the litigation gladiator.
You know I can’t help from loving You.
Because You loved me myself,
Long before I knew what love is.
And when my time have come
I’ve got the king’s crown in coming glory.
And when I come down to the river,
Help me to pull off my war coat and enter.
I’ll enter in the name of the Lord,
Make my enemies out a liar,
Make us able to bear our burdens.
Refreshing Recollection
June 20, 2018 § Leave a comment
It happens sometimes that the witness simply can not recall something that you need to have in the record. Before you give up and move on to something else, consider MRE 612, which is entitled, “Writing Used to Refresh a Witness’s Memory.”
Actually, the title is a misnomer, because under MRE 612(a) you can use a “writing, recording, or object” to refresh the witness’s memory.
Here are the steps:
- Establish that the witness is unable to recall something;
- Counsel is unable to jog the witness’s memory through questioning. The court may allow leading questions;
- Counsel shows the writing, recording, or object to the witness and asks whether looking at it will help refresh her memory. If yes, she is allowed to read or look over it silently;
- If the witness after looking at it can then say she now recalls the matter independent of the writing, recording, or object, she may then testify to that independent recollection;
- If the witness can not recall the matter after that procedure, counsel may lay a foundation for admitting the writing’s, recording’s, or object’s contents under MRE 803(5), past recollection recorded exception to the hearsay rule (that’s for another day).
What is an “object?” The advisory committee note mentions a photograph as an example. But there is no requirement in the rule that the object have content or substance, as would a photograph, a map, or a hand-drawn sketch. In law school our evidence professor said that a pencil or a comb could be used, so long as they would help refresh the witness’s memory.
When I practiced, I liked to do step 3 a little differently. I would ask the witness whether there was something that would help jog his memory. Most times the answer was something like, “Yes, if I could look over the inventory I made,” or something to that effect, I would then hand the witness what he identified.
Remember that under the MRE the writing, recording, or object used in R612 need not meet the requirements of past recollection recorded unless and until the witness has no independent recollection after looking at it and must use it to testify (e.g., “I don’t remember well enough to testify without referring back to this list …”).
