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AN ATTORNEY v. MISSISSIPPI STATE BAR ASSOCIATION

NOVEMBER 27, 1985

AN ATTORNEY
v.
MISSISSIPPI STATE BAR ASSOCIATION



BEFORE PATTERSON, PRATHER AND ROBERTSON

PRATHER, JUSTICE, FOR THE COURT:

This is an appeal from a decision of the Mississippi State Bar Committee on Complaints wherein the appellant attorney was found guilty of civil trespass. The Complaint Committee held that such trespass violated the Code of Professional Responsibility for attorneys and that, for this violation, the attorney should be privately reprimanded. The attorney now appeals and assigns the following error:

(1) The finding of the Committee on Complaints that the appellant was guilty of civil trespass was not supported by clear and convincing evidence.

 (2) The finding of the Committee on Complaints that the appellant was guilty of unprofessional conduct or conduct evincing unfitness for the practice of law is not supported by clear and convincing evidence.

 (3) The Committee on Complaints erred as a matter of law in imposing a private reprimand on appellant.

 (4) The appellant was denied due process of law by the Complaints Committee.

 I.

 On January 27, 1979, between 12:00 midnight and 1:00 a.m., the Western Way Station Restaurant caught fire and was destroyed. The restaurant was operated by Merelene Wallace in a building owned by Stuart Abshier. The restaurant was insured by Employers Mutual Casualty Company.

 Several days after the fire, an attorney representing Employers Mutual engaged the services of an arson investigator from Texas to investigate the fire. The investigation was to determine the cause and the origin of the fire. The investigator was greeted at the airport by the attorney who took him immediately to the site of the fire. At no time did either of the men acquire permission from Mrs. Wallace to make an inspection of the restaurant premises.

 Once the two men arrived at the scene of the fire, the investigator began his examination. He first examined the exterior of the building, then he and the attorney examined the inside of the building. A question arose later as to how the two men entered the burned building. According to both men, they entered through the east door of the restaurant which they found standing ajar about two inches.

 After a complete examination of the circumstances surrounding the fire, including an examination under oath of Mrs. Wallace, the Wallace claim was denied by the insurance company on the grounds of arson, misrepresentation/concealment, and increase in hazard. As a result of the deposition taken of Mrs. Wallace in that investigation, Mrs. Wallace filed a complaint in July of 1979 against the attorney representing Employers Mutual. The complaint charged the attorney with harassing Mrs. Wallace during the attorney's deposition examination of her. That complaint was dismissed by the Committee on Complaints as being without merit.

 Subsequently, a lawsuit arose from the denial of Mrs. Wallace's claim. During that lawsuit Mrs. Wallace learned

 from the testimony of the Texas arson investigator that he and the attorney had entered the remains of the restaurant to conduct an investigation without first asking her permission. After that lawsuit, resulting in a jury verdict in favor of the insurance company, Mrs. Wallace filed another complaint against the attorney with the Mississippi State Bar Complaints Committee. The second complaint accused the attorney of criminal and/or civil trespass. An investigatory hearing was held and testimony was given by Mrs. Wallace, her husband Ivey Wallace, and the attorney.

 Mr. and Mrs. Wallace testified that the restaurant was locked prior to the attorney's entry and that only their son and Mr. Abshier had additional keys to the building. Both Mr. and Mrs. Wallace admitted, however, that neither of them had observed any signs of forced entry into the building.

 The attorney testified that he and the investigator entered the building through an open door. The sworn affidavit of the investigator corroborated the attorney's testimony regarding the open door. In addition, the attorney introduced sworn affidavits of three insurance defense attorneys, giving their respective interpretations of the standard New York policy provision which gives an insurance company the right to inspect the remains of any property damaged by fire. None of those affidavits addresses the ...


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