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JULY 22, 1987





This motion in the nature of an interlocutory appeal presents sensitive questions regarding a lawyer's Fifth Amendment rights when he is the subject of a disciplinary proceeding brought by the Mississippi State Bar. The lawyer asserts that the questions he has been asked would, if truthfully answered, tend to incriminate him; that is, the questions would require that he disclose information that could be construed to suggest that he has been guilty of conduct proscribed by federal and state criminal codes. By reason of the irreversible nature of disclosure, we have brought the matter here before proceedings before the Complaint Tribunal have run their course.

 Having reviewed all of the questions in response to which the lawyer "took the Fifth," we hold that a handful are not privileged but most are. In substantial part, we vacate the order of the Complaint Tribunal.


 On January 31, 1986, the Mississippi State Bar ("MSB") filed with this Court a Formal Complaint against the Respondent, Attorney L, who has his law office in the state of Louisiana. Compare Brumfield v. Mississippi State Bar Ass'n., 497 So.2d 800 (Miss.1986). In that complaint MSB alleged that Attorney L has violated the provisions of Disciplinary Rules 1-102(A)(1, 4, 5 and 6) of the Code of Professional Responsibility which provide that a lawyer shall not violate a disciplinary rule; engage in conduct involving dishonesty, fraud, deceit or misrepresentation; engage in conduct that is prejudicial to the administration of justice; or engage in other conduct that adversely reflects on his fitness to practice law. MSB's Formal Complaint also alleged that Attorney L violated the provisions of DR7-101(A)(3) which provides that a lawyer shall not intentionally prejudice or damage his client during the course of the professional relationship.

 The basic factual allegations, *fn1 underlying the above conclusory allegations, are as follows: On or about March 31, 1985, E. W. E., hereinafter referred to as "Client" , a Mississippian, was injured in an automobile train accident. On April 6, 1985, Client executed Retainer-Power of Attorney which on its face employs Attorney L to represent Client in a personal injury claim for damages. MSB alleges that Client

 was heavily sedated via medication when she executed the Retainer-Power of Attorney and as a result was unaware of the nature or consequences of her actions.

 At sometime thereafter, still in April, 1985, Client attempted to discharge Attorney L as her attorney. Notwithstanding, Attorney L continued to act purportedly in Client's behalf and did thereafter negotiate a settlement with the responsible party's liability insurance carrier. The settlement amount was $10,000.00. Attorney L advised Client of said settlement negotiations by letter of May 2, 1985.

 By letter of May 9, 1985, Client again advised Attorney L that he had been discharged and instructed that Attorney L perform no further work on Client's behalf. Attorney L neglected these instructions, as well.

 On May 23, 1985, after receipt of Client's letter of May 9, 1985, Attorney L compounded his sins by forwarding to the liability insurance carrier's claims office a Final Release and Settlement of Claim executed by Attorney L on behalf of Client in his capacity as Client's "representative." In connection therewith, Attorney L accepted, endorsed and deposited into his trust account a check from the insurance company payable to Attorney L and Client in the amount of $10,000.00. He then drew upon his that account a check in the sum of $6,606.16 as Client's share of the settlement proceeds as per the original Retainer-Power of Attorney and contrary to Client's instructions in Client's April, 1985, and May 9, 1985, letters.


 On April 22, 1987, the duly constituted Complaint Tribunal entered an Order setting trial upon the merits of the instant Formal Complaint for Tuesday, June 16, 1987, in Jackson, Mississippi. On April 28, 1987, MSB filed a Notice of Deposition Upon Oral Examination, noticing the taking of Attorney L's deposition. At the appointed time and place, Attorney L, together with his attorney of record, appeared pursuant to the deposition notice. MSB's attorney began the deposition by asking Attorney L certain background questions, including Attorney L's name, address and occupation, and then proceeded for almost 100 transcribed pages to ask Attorney L a wide-ranging variety of questions almost all of which were directly or indirectly related to the allegations of the Formal Complaint. Rather than answering, Attorney L responded to each and every question propounded to him, including when asked his name, address, law school attended and other innocuous questions, that he asserted his constitutional

 privilege against self-incrimination.

 On May 20, 1987, MSB moved for entry of an order compelling Attorney L to answer all of the questions previously propounded to him and further for an assessment of MSB's reasonable expenses incurred in obtaining said order compelling discovery and the taking of a subsequent deposition.

 Following hearing thereon, the Presiding Judge for the Complaint Tribunal entered an order on June 3, 1987, directing that Attorney L present himself for the taking of a repeat deposition and imposing sanctions against Attorney L and his attorney of record for their nonmeritorious assertion of the Fifth Amendment.

 Attorney L has now applied to this Court for relief from the Complaint Tribunal's order. By reason of the nature of the issues tendered, we have have stayed all proceedings before the Complaint Tribunal.


 Superficially, this matter appears in the nature of an interlocutory appeal. But this is not an appeal at all, for bar disciplinary proceedings are original actions before this Court. Where, as here, MSB's general counsel files a bar disciplinary complaint against an attorney, that complaint is filed here. See Rule 8(a), Rules of discipline. Our order then constitutes a Complaint Tribunal and refers the matter to that Tribunal for hearing. Notwithstanding, we remain the ultimate authority for adjudication of the complaint and all matters incident thereto. See Rule 1(a), Rules of Discipline.

 This case presents an appeal in the sense that the Complaint Tribunal has entered an order which, unless modified or reversed, must be complied with, upon pain of a contempt citation. Compare Rule 9, Rules of Discipline, we consult but are not straight jacketed by - those considerations ordinarily governing our decision whether we would entertain an appeal prior to entry of final judgment in the court below.

 Rarely will we entertain an interlocutory appeal regarding a discovery matter. Today's case is one of those rare ones, for Attorney L raises a question of privilege. More specifically, he has been ordered to disclose information he argues is protected from disclosure by no less a source than the Fifth Amendment. In this and other contexts, once information claimed to be privileged is disclosed, reversal on subsequent appeal following a final judgment would afford the

 party a victory hollow indeed. Compare American Tobacco Co. v. Evans, ___ So.2d ___ (Miss.No.M-2341, dec. April ...

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