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BERTHA FAYE THORNTON v. A. D. (DAN) BRELAND

DECEMBER 07, 1983

BERTHA FAYE THORNTON
v.
A. D. (DAN) BRELAND, JR., ET AL.



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

What is at issue here is not whether we are going to enforce vigorously the Disciplinary Rules in our Code of Professional Responsibility, but how and when. In our view it is ordinarily inappropriate for this Court, or any other court of this state for that matter, to restrain or enjoin in advance threatened or anticipated violations of our Disciplinary Rules.

 II.

 Let us be clear about several things. We have no doubt of our inherent and exclusive jurisdiction in bar disciplinary matters. See Levi v. Mississippi State Bar, 436 So.2d 781, 783 (Miss. 1983). We have full authority to do that which we have been asked to do. Nor do we have patience with the idea that petitioners have invoked the wrong "form of action" by seeking here a writ of prohibition instead of some remedy. We ought adjudicate matters presented to us according to the substance of the charge and the justice of the cause, not the label attached to the pleading. In any event, we have elasticized the ancient writ of prohibition so that it is more than sufficient unto this day. State v. Maples, 402 So.2d 350 (Miss. 1981).

 These things said, we are of the opinion we should in this case decline the exercise of the authority we undoubtedly possess. We therefore concur in the denial of the application for a writ of prohibition without prejudice to the merits of the issues tendered. We set forth briefly the reasons for our actions.

 III.

 Preliminarily, we are concerned with the adequacy of the hearing given Kitchens. We view this aspect of the case against the backdrop of the well-established proposition that in bar disciplinary matters the accused attorney has been rested with important due process rights. See, e.g., Netterville v. Mississippi State Bar, 397 So.2d 878, 883 (Miss. 1981). Due process demands reasonable advance notice and full opportunity to be heard.

 The present application has been presented to us on short notice and without an adequate record. In our view the complaints procedure authorized by law, Miss. Code Ann. 73-3-301 et seq. (Supp. 1983), make possible a far more adequate hearing than has been given Kitchens to date. This statutory complaints procedure has been ordained for the precise purpose of vindicating and protecting the public interests identified by Justice Bowling in his dissenting opinion. The employment of that procedure would, in our opinion, more effectively serve the competing legitimate interests here at stake than would the writ of prohibition sought this day.

 IV.

 Our principal concerns are the client and the office of the attorney as a hopefully fearless advocate for the client. In this case, if on the eve of trial we hold that attorney Kitchens may not proceed further, we inevitably punish the client as well as the offending attorney. That Kitchens may be in the process of violating Canon 9 is not a sin that ought be visited upon his client.

 Beyond that, we cannot support a procedure that would, absent the most egregious facts, sanction prior restraints upon the professional activities of attorneys. We predicate this conclusion upon a romantic view of the ideals of our adversary system as well as a realistic appraisal of the darker side of the lawyering process. That latter first.

 A.

 A lawsuit, civil or criminal, is often a small war. We may wish it weren't and hope that it may some day cease to be so. Still, we put our heads in the sands if we ignore this reality. The stakes are often high, and even when they aren't litigants are often guilty of (if not consumed by) the sin of ...


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