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EVERETT SANDERS v. MISSISSIPPI STATE BAR ASSOCIATION

MARCH 13, 1985

EVERETT SANDERS
v.
MISSISSIPPI STATE BAR ASSOCIATION



BEFORE WALKER, P.J.; DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

Members of the bar are not well loved in our society. Lawyer insensitivity to ethical impropriety is one of the primary sources of this lack of public confidence in the Bar. The problem is exacerbated when ethical violations are committed by an attorney holding an important public office.

It is in this context that we consider the recommendation of the Committee on Complaints of the Mississippi State Bar that Everett Sanders, County Attorney for Claiborne County, Mississippi, be adjudged to have violated the Code of Professional Responsibility of the Mississippi State Bar DR 5-105[B] and Miss. Code Ann. 19-23-13 (Supp. 1984), for which a public reprimand has been recommended.

 The facts are undisputed. Sanders is the duly elected county attorney for Claiborne County. See Miss. Code Ann. 19-23-1 et seq. (1972). In addition to their public duties, persons holding the office of county attorney may also engage in a private law practice. Sanders has been so engaged in Port Gibson, Mississippi.

 The instant bar disciplinary proceeding arises out of the fact that in the course of his private law practice, Sanders undertook representation of three members of the Claiborne County Board of Education: Jimmy Smith, Roosevelt Yarbrough and Benny Knox. This representation related to proceedings against these three Board members seeking their removal from office. The primary basis of the petition for removal was conduct related to a window replacement project at Addison

 Junior High School. The school board was said to have paid $200,000.00 for this job, the reasonable value of which was between $40,000.00 and $60,000.00. The remaining $140,000.00 to $160,000.00 was alleged to have been a kickback paid to Smith, Knox and Yarbrough. In the course of this removal hearing the three school board members were asked a number of questions the answers to which may well have led to criminal investigation and prosecution. When those questions were posed, Sanders regularly advised his clients to invoke their Fifth Amendment privilege and decline to answer.

 The State Bar Complaints Committee charges that Sanders' representation of Smith, Knox and Yarbrough on a matter such as this at the time when Sanders occupied the office of County Attorney for Claiborne County constituted a violation of: (1) the Code of Professional Responsibility of the Mississippi State Bar DR 5-105[B](a rule against conflict of interest), and/or (2) Miss. Code Ann. 19-23-13 (Supp. 1984) (forbidding a county prosecuting attorney from defending criminal cases in his county).

 Miss. Code Ann. 19-23-13 (Supp. 1984) states:

 The county prosecuting attorney shall not represent or defend any person in any criminal prosecution in the name of the state, country or municipality of the county, nor shall he give any advice against the state, his county or in a criminal case against a municipality of his county, and shall not represent any person in any case against the state, his county, or any criminal case arising in a municipal court of his county. Nothing herein shall prohibit any county prosecuting attorney from defending any person in any criminal prosecution in any county not within the circuit court district of such county prosecuting attorney.

 [emphasis added]

 DR 5-105[B] of the Code of Professional Responsibility of the Mississippi State Bar states:

 A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by

 his representation of another client, except to the extent permitted under DR 5-105[C].

 In a nutshell, Sanders is being charged with accepting employment in a civil matter which he full-well knew involved issues and parties that would likely later become the subject of criminal proceedings, for the prosecution of which he would have substantial responsibility. Miss. Code Ann. 19-23-11 (Supp. 1984). By representing the accused school board members at the removal hearing, Sanders violated his obligation to the state and to his county to aid uncompromisingly in the prosecution of persons for unlawful conduct committed in Claiborne County. See DR 9-101(avoiding even the appearance of impropriety). Despite the fact that this removal hearing was technically a civil matter, it clearly dealt with a subject matter which may reasonably have been expected to lead to criminal proceedings. It would appear almost inevitable that in the course of such representation Sanders would become privy to client's secrets and confidences which would bear directly upon their ...


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