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A MISSISSIPPI ATTORNEY v. MISSISSIPPI STATE BAR

JUNE 05, 1985

A MISSISSIPPI ATTORNEY
v.
MISSISSIPPI STATE BAR



BEFORE ROY NOBLE LEE, HAWKINS and SULLIVAN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

A Mississippi attorney appeals from a decision of the Complaints Committee of the Mississippi State Bar adjudging that he is in violation of DR5-101(a) in that he was guilty of a conflict of interest in connection with his law practice. The Complaints Committee ordered that a public reprimand be administered against the attorney.

The appellant has assigned three (3) errors in the proceedings below, but, in view of the conclusion we have reached, it is necessary only to address the following assignment:

 PROCEDURAL DUE PROCESS RIGHTS OF THE APPELLANT WERE PREJUDICIALLY VIOLATED BY THE COMPLAINTS

 COMMITTEE WHEN THEY ORDERED A PUBLIC REPRIMAND OF APPELLANT BASED ON CHARGES SUBSTANTIALLY DIFFERENT FROM THOSE INVESTIGATED, WITHOUT PROVIDING THE ATTORNEY WITH THE RIGHTS REQUIRED BY SECTION 73-3-321 AND SECTION 73-3-329, AND AS REQUIRED BY SECTION 73-3-319(b) OF MISSISSIPPI CODE OF 1972, AS AMENDED.

 On August 29, 1983, J. B. Bates, Memphis, Tennessee, filed a letter complaint against appellant to the effect that appellant had exerted undue influence and violated his fiduciary duty to O. S. Bates, aunt of J. B. Bates.

 Appellant represented O. S. Bates, an aged woman above ninety (90) years of age, for approximately thirty (30) years. Also, he was her close friend and advisor. She went to the office of appellant for the purpose of executing her last will and testament and indicated that she desired to leave everything to him. Appellant refused that request and advised her that, if she really wanted to make that provision in a will, she would have to see another lawyer. Ms. Bates declined to contact another attorney, since she had always used and relied upon appellant. She then made two bequests to charity and bequeathed the rest and residue of her property to her nephew, J. B. Bates.

 Apparently, Ms. Bates was concerned that J. B. Bates might get all of her money before she died and, although she was living in the home of J. B. Bates and Jessica Bates, his wife, in Memphis, Tennessee, there is substantial evidence that he was mistreating her and attempting to obtain control of her money. Therefore, she entered into an agreement with appellant whereby she loaned his law firm the sum of fifteen thousand dollars ($15,000), payable on or before ten (10) years, with interest at the rate of eight percent (8%) per annum. Ms. Bates had confidence in appellant, and in taking such action, she was preserving some assets which J. B. Bates could not obtain. Appellant had need for the money, since his law firm had incurred a recent debt.

 About the first of April, 1979, Ms. Bates telephoned appellant in Mississippi to come to Memphis where she lived, that she needed to talk with him. Further, she requested that he bring an envelope with him. Appellant complied with her request, went to Memphis and talked with her. During the conversation, she asked for the envelope he had brought, went into another room and returned with the $15,000 note, which she had placed in the envelope and gave it to him. Written on the back of the note was, "This is paid at my death," and it was signed by O. S. Bates. She subsequently died on May 19,

 1979.

 Ms. Bates had appointed appellant as executor of her last will, he qualified as such executor, paid the bequests to the charities, and filed a petition for final discharge. The petition for discharge was joined in and sworn to by J. B. Bates, who was paid as residuary devisee and legatee the sum of nine thousand eight hundred fifteen dollars twenty-eight cents ($9,815.28). It was recited that "James Brooks Bates, Jr. now joins in this petition for the discharge of the executor and by so joining in this petition he waives time, place and notice of hearing and any other rights he may have at law and equity so that this estate might be concluded and he states to the court that he is satisfied with the administration of the estate . . . ."

 Upon receiving the complaint letter from J. B. Bates, a copy of the complaint was forwarded to appellant, who was given the opportunity to file an answer and who voluntarily executed answers to interrogatories and sent them to the counsel for the Complaints Committee. The Complaints Committee referred the matter to the Complaints Committee counsel for an investigation and an investigatory hearing was held by him where testimony and evidence were submitted and a record made. Appellant appeared at the hearing and he and witnesses testified in his behalf. The investigatory hearing was held on the complaint that there was a breach of fiduciary capacity and breach of professional responsibility on the part of appellant.

 After the investigatory hearing, complaint counsel prepared an extensive report and submitted it to the Complaint Committee, as statute requires. His conclusion on the complaint investigated follows:

 It is Complaint Counsel's belief that O. S. Bates was fully aware of the use to which [the attorney] would put the $15,000. It is further Complaint Counsel's belief that at the time of the execution of the $15,000 check and the receipt of O. S. Bates of the promisory [sic] note from [the attorney] that O. S. Bates had no intentions of ever accepting the $15,000 back, unless J. B. Bates managed to secure all of her funds. That she had the utmost faith in [the attorney] to repay the note at any time she desired. The abuse by J. B. Bates precipitated the cancellation of the promisory [sic] ...


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