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LEWIS MYERS AND A MISSISSIPPI ATTORNEY v. MISSISSIPPI STATE BAR

JULY 10, 1985

LEWIS MYERS AND A MISSISSIPPI ATTORNEY
v.
MISSISSIPPI STATE BAR



BEFORE ROY NOBLE LEE, HAWKINS AND SULLIVAN

SULLIVAN, JUSTICE, FOR THE COURT:

This appeal springs from the actions of a complaint tribunal of the Mississippi State Bar which entered an order imposing a two-year suspension from the practice of law on Lewis Myers, and a private reprimand upon another Mississippi Attorney. From these judgments, Myers appeals, asserting that the complaints tribunal erred in:

1. Overruling his numerous due process objections to the entire course of disciplinary proceedings;

 2. Finding that the bar had met its burden of clear and convincing proof;

 3. Finding that he violated any of the disciplinary rules cited by the tribunal; and

 4. Imposing any punishment of any type.

 The Mississippi Attorney joins in Myers' due process objections and also asserts that the complaint tribunal erred in:

 5. Holding him responsible for any of the violations in the complaint where he had no attorney/client relationship with Moawad; and

 6. Imposing a reprimand upon him for charges not specified in the formal complaint.

 The bar cross-appeals, assigning as error the trial court's failure to order the disbarment of both attorneys.

 Myers was licensed to practice law in Mississippi in 1972. From that time until April, 1976, Myers was director of litigation at North Mississippi Rural Legal Services in Oxford, Ms. He left Mississippi in April, 1976, and later moved to Chicago, Illinois, where he was admitted to that State's bar by reciprocity supported by the original license to practice law granted by the state of Mississippi. Myers is affiliated with several organizations and is an adjunct professor of law with DePaul University School of Law in Chicago.

 The Mississippi attorney was licensed to practice law in Mississippi in 1973. He was employed as the executive director of North Mississippi Rural Legal Services in Oxford, Mississippi. Myers was in a subordinate position in that organization to the Mississippi attorney.

 In November, 1975, Gary Moawad lived in North Mississippi. He was born and reared in Egypt. Moawad had consulted with the Mississippi attorney concerning immigration problems facing other members of Moawad's family. The Mississippi attorney arranged for the immigration of Moawad's family into the United States and thereafter became Moawad's personal friend and confidant.

 On November 13, 1975, Moawad killed his father in law and assaulted two other members of his wife's family. Moawad then went to Legal Services offices in Oxford, to confer with and obtain legal assistance from the Mississippi attorney. The Mississippi attorney was not present in the office at that time and, in his absence, Moawad conferred with Myers. Myers convinced Moawad to surrender to the police and assured him that he would serve as Moawad's attorney. Myers accompanied Moawad to the jail in Oxford, where he was first incarcerated.

 Myers agreed to represent Moawad on the charges and was primarily responsible as Moawad's chief trial counsel. He signed all pleadings and was present for all pre-trial motions, throughout the entire trial, and he made all significant

 tactical decisions. Assisting Myers in the defense team were John Jackson, a staff attorney at Legal Services, and Tom Morris, a Cleveland attorney. Leonard McClellan, not then licensed in Mississippi, also participated in the pre-trial and trial defense. Myers was the chief trial counsel in this team, although some of their decisions were collective.

 In December, 1975, Myers was offered employment in a highly publicized criminal trial in the northeastern United States. This trial was to begin in April, 1976, and was projected to last about six months. Myers, therefore, arranged for a leave of absence from Legal Services. He also discussed the matter with Moawad, who said that he wanted Myers to arrange for his trial to take place prior to the departure of Myers. Myers, therefore, filed a motion for speedy trial.

 As his trial date approached, Moawad expressed serious reservations about whether or not his case would be prejudiced by the fact that he was represented by black lawyers. In February, 1976, Moawad conversed with a white Mississippi attorney about representing him. This attorney was not employed at the time because no financial arrangements could be concluded.

 The charges against Moawad were consolidated and brought on for trial in March, 1976. Following a three-day trial, the jury returned a verdict at approximately 10:00 p.m. on the night of March 31, 1976. Moawad was found guilty on all three charges and received a life sentence for the murder conviction, a 20-year sentence on the aggravated assault conviction, and a 5-year sentence on the second aggravated assault conviction, with all sentences ordered to run consecutively. On March 31, 1976, judgments in each of these cases were entered.

 Immediately following the announcement of the jury verdict, Moawad discussed the case with Myers and his associates. The substance of this 10-minute conversation is the most hotly disputed factual issue in this case.

 1. Moawad: Myers and the Mississippi attorney said they would take care of me, that they would make a motion for another new trial. Of course I wanted an appeal. They said if the motion was denied, they would appeal it to the Mississippi Supreme Court.

 I did not tell Myers and the others that I did not want them to handle the case further or that I wanted a white lawyer. I did not tell them that I did not want them to

 proceed any further. I did not tell them that I had another attorney to handle my case.

 2. John Jackson: After the verdict, Moawad told us he did not want us to proceed with his case any further. He said that he had someone else. Myers told Moawad that he would make his files available to Moawad but that Moawad would have to be diligent because there were time limitations for an appeal. Moawad fired us as a team en masse.

 3. Tom Morris: Moawad told me he had conferred with a white lawyer about handling his appeal. I left after closing arguments and was not present for the appeal discussions.

 4. Lewis Myers: While the jury was out Moawad told me that if things went bad I had to go. I informed Moawad of his right to appeal, and that a motion for a new trial had to be filed. We were at the end of the court term and Moawad was aware of the time limits. He gave me the impression that he had somebody ready to come in. He was concerned that we not even put our names on anything else or have anything else to do with his case.

 I explained to Moawad what a motion for a new trial was. It was particularly with reference to the new trial that Moawad did not want us to do anything. I did not make a motion in a manner to allow successor counsel to take up the appeal in due course because I understood my dismissal was mandatory.

 5. Leonard McClellan: There was a 10-minute conversation after the verdict where Moawad congratulated Myers on the trial and regretted his inability to pay him. The appeal was discussed. Moawad was in the process of getting another lawyer to prosecute the appeal. I am not sure whether the firing took place on the night he was convicted or earlier, but it was definite by that night.

 6. The Mississippi Attorney: When the jury came back, I may have approached Moawad with a word of condolence. I recall leaving there with the distinct impression that he did not expect any of the attorneys who had handled that case to move any further on the case.

 Within two days after the verdict against Moawad was rendered, Myers left the state to prepare for the lengthy criminal trial in the northeast. He filed no motion for a new trial, or a notice of withdrawal of representation. Prior to his departure, Myers did not give any specific instructions to the staff at Legal Services as to the future of the Moawad

 case.

 At the time of Moawad's trial, the local circuit court rules did not cover withdrawal of counsel and no order authorizing Myers' withdrawal was ever entered in the proceedings.

 The March 1976 term of circuit court was concluded by the closing of the Minutes on April 1, 1976. On April 12, 1976, eleven days after the court had adjourned, a motion for a new trial in Moawad's case was filed. This motion bears the purported signature of Myers, but the uncontradicted proof was that Myers was not aware of the filing of this motion. The motion was prepared and filed by Leonard McClellan, who worked at Legal Services and had assisted in Moawad's trial. At the time of the filing, McClellan did not then possess a license to practice law in this state. McClellan had received an urgent message on behalf of Moawad that the attorney Moawad thought would prosecute his case had refused to go forward. McClellan, therefore, drafted the motion for a new trial and signed the name of Lewis Myers on the motion and caused it to be filed.

 On July 6, 1976, McClellan wrote Moawad advising him that a motion for a new trial had been filed, stating that the letter was written on behalf of Mr. Myers. Mr. Myers had no knowledge of this letter.

 On March 1, 1977, the Mississippi Attorney wrote Moawad that no hearing on the motion for a new trial had been held. On April 6, he wrote Moawad that the motion for a new trial had been denied and that an appeal was being prepared and that "we [Legal Services] are committed to doing all we can on your behalf" . For some unknown reason, the motion for a new trial which had been filed on April 12, 1976, was not heard until March 3, 1977, almost one year later. The motion was overruled as having been filed untimely.

 Approximately one year later, on April 15, 1977, Moawad filed a pauper's oath in lieu of an appeal bond.

 On July 27, 1977, the Mississippi Supreme Court upon hearing the state's motion to docket and dismiss the appeal, ordered the appeal dismissed.

 On October 23, 1978, Moawad filed a complaint with the Mississippi Bar against Myers and the Mississippi Attorney alleging that they failed to timely appeal his conviction. An investigatory hearing was held where Myers, Morris and the Mississippi Attorney appeared and gave testimony.

 Complaint counsel filed a report on March 6, 1979. The complaints committee, on April 5, 1979, considered the complaint filed against Myers and the Mississippi attorney and decided to issue a public reprimand for failure to file an appeal or properly withdraw as counsel.

 On April 10, 1979, the complaints committee informed Myers and the Mississippi Attorney by letter that it was their opinion that the attorneys failed to take the steps necessary to protect Moawad's right to an appeal. The committee letter stated that Moawad's attempt to discharge them did not relieve them of their responsibility of protecting his rights to an appeal, nor was there any indication that they had notified or sought approval from the court of their withdrawal.

 The letter further informed Myers and the Mississippi Attorney that the committee as a matter of policy afforded to an attorney to whom the committee determined to administer a public reprimand the option of requesting that the matter be referred to a complaint tribunal to conduct a hearing where an accused attorney would have an opportunity of confrontation and cross-examination. Both lawyers requested a hearing before the complaint tribunal.

 On April 23, 1979, the complaints committee informed complaints counsel that there was reasonable cause to believe that both attorneys were "guilty of such conduct which if proven would warrant suspension or permanent disbarment." The letter directed complaints counsel to file a formal complaint against Myers. On May 7, 1979, Myers and the Mississippi Attorney wrote the chairman of the complaints committee objecting to the finding and directive contained in the April 23rd letter and requested that the same be withdrawn. The committee responded that its referral to the tribunal was not in the nature of an appeal, nor did the committee have the power to restrict the sanctions which the tribunal by law could impose. These sanctions included the power to dismiss the complaint, to issue a reprimand either public or private, or to enter a judgment of suspension or disbarment.

 On May 22, 1979, a formal complaint was filed. Count 1 charged that Moawad lost his right to an appeal through the failure by Myers and the Mississippi Attorney to timely file a motion for a new trial and notice of appeal in violation of DR 1-102 (a)(5-6), conduct prejudicial to the administration of justice, conduct adversely reflecting on fitness to practice], DR 6-101 (a)(2-3), [inadequate preparation, neglect of legal matter entrusted], and a default of record under Miss. Code Ann. 73-3-53 (1972).

 Count 2 charged that Myers and the Mississippi Attorney took no action after Moawad "fired" them to receive permission to withdraw as counsel, in violation of DR 7-101 (a)(1-3), [failure to seek lawful objectives, carry out contract of employment, and prejudice and damage a client], DR 2-110 (a) (1-2), [failure to obtain required permission to withdraw from employment, failure to take steps to avoid foreseeable prejudice].

 Count 3 charged that if the tribunal finds that Moawad gave no such instructions, then Myers and the Mississippi Attorney are guilty of false swearing, deceit and misrepresentation under DR 1-102 (a)(3-4), and self-exoneration under DR 6-102 (a).

 On October 1, 1979, the Mississippi Attorney filed a separate answer denying any responsibility or involvement in representing Moawad in the criminal charges. He also alleged that the complaints committee failed to advise him that if he elected to have the matter referred to the complaint tribunal then the committee would make a finding under Miss. Code Ann. 73-3-319 (c), recommending suspension or disbarment, rather than under subsection (b), recommending reprimand. The Mississippi Attorney alleged that the policy violated due process.

 On October 8, 1979, Myers filed a separate answer generally denying the allegations and asserting non-compliance by the complaints committee with a 30-day period within which to file a formal complaint after receipt of complaint counsel's report, under Miss. Code Ann. 573-3-319. Myers denied that he filed the motion for a new trial but admits that he did not advise the court nor seek permission from the court to withdraw because he believed it was not necessary. Myers also asserted that the "policy" of accepting ...


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