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MISSISSIPPI STATE BAR v. AN ATTORNEY: L

JUNE 28, 1989

MISSISSIPPI STATE BAR
v.
AN ATTORNEY: L



EN BANC

FOR THE COURT: BLASS, JUSTICE

On January 31, 1986, a formal complaint was filed against the respondent by the Mississippi State Bar. The Bar alleged that respondent had violated the provisions of DR 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 reflects adversely on his fitness to practice law. The formal complaint also alleged that the respondent violated the provisions of DR 7-101 (a)(3) which provides that a lawyer shall not intentionally prejudice or damage his client during the course of the professional relationship. The complaint also alleged violation of 73-3-35, M.C.A. (1985 Supp.), the

lawyer's oath.

 A hearing was held in October of 1987. At the close of the Bar's case in chief, the tribunal sustained respondent's motion for directed verdict on the issue of the client's capacity to contract on April 6, 1985, when she signed a contingency fee contract with the respondent. After the respondent presented his defense, the tribunal by a two-to-one vote, dismissed the complaint, finding the Bar Association had failed by clear and convincing evidence to prove the allegations contained in the complaint. From this dismissal, the Bar appeals.

 Finding that the Bar has failed to prove by clear and convincing evidence the facts necessary to support a judgment that the respondent has been guilty of misconduct as defined in the Complaint, the disciplinary rules and the statute mentioned above, we affirm the dismissal of the complaint. We do so with reluctance, because we are of the opinion that the story unfolded below is a sorry one and one which reflects no credit upon any of those involved.

 FACTS

 In the interest of anonymity, the names of the players in this drama have been changed. The major parties are: respondent, (A), a member of the Bar in Louisiana and Mississippi, with an office in Monroe, Louisiana; EWE, complainant, originally (A)'s client, who filed the complaint with the Bar through her new attorneys; (B) and (C), attorneys for EWE with offices in Jackson, Mississippi, who filed the complaints against (A) in both Louisiana and Mississippi; Joe, EWE's brother, who assisted her in her business affairs; and Rhonda, a friend of Joe's, and whose sister was (A)'s client in another case.

 On March 31, EWE was injured in a railroad crossing accident in Newton, Mississippi, while riding as a guest passenger in an automobile driven by her friend, Ruby. EWE was hospitalized in Meridian, Mississippi. On or about April 3, 1985, Rhonda telephoned her sister's lawyer (A) and told him that she knew of a lady who had been hurt in an accident and needed the services of a lawyer. (A) drove from Monroe to Newton, Mississippi, on Friday, April 5 and met Rhonda. Rhonda and (A) went to Meridian to see EWE. At this time, (A) had not had any contact with any member of EWE's family. Upon arriving at EWE's hospital room in Meridian, (A) was introduced to EWE, who was lying in the bed. Several of her relatives, including one of her brothers, Roy, was in the room. After the introductions were completed, (A) discussed his possible

 representation of EWE with her and her brother Roy. Both EWE and Roy referred (A) to one of EWE's other brothers, Joe, who was responsible for her business affairs. No contract of employment was signed during the initial hospital visit.

 (A) and Rhonda left the hospital and returned to Newton to locate Joe. They found him fishing at a lake near Lawrence, Mississippi. They discussed EWE's case with Joe and another brother, Doug.

 Later that night (A) and Joe travelled together to Meridian to see EWE. On the trip they discussed the details of the representation. After arriving at the hospital in Meridian (A), Joe, and Doug went to EWE's room where Joe recommended that his sister let (A) represent her. At that time, EWE signed an employment-retainer/power of attorney contract with (A). The contract was witnessed by Joe. This contract provided for a thirty-three and one-third percent (33-1/3%) fee from any recovery.

 Once (A) was employed by EWE, he initiated his investigation into the facts and circumstances surrounding the accident. On April 13, he returned to Newton and began his investigation into the accident. He was assisted in this investigation by Joe. On April 15, (A) wrote a letter to EWE telling her that he was working on her case and outlining the procedures involved in processing the lawsuit. Also on April 15, (A) wrote a letter to the agent for the railroad advising him of his representation.

 Meanwhile, the firm of (B) and (C) from Jackson, Mississippi entered the picture. (B) and (C) were notified by EWE's cousin, "Cockroach" , of the accident and EWE's possible need for a lawyer. (B) and (C) travelled to Newton, Mississippi, on April 15, where they, "Cockroach" , and Joe, went to the hospital to see EWE. During their visit EWE indicated that she had been in contact with another lawyer. Messrs. (B) and (C) testified that they immediately left the hospital, saying they could not talk to EWE while she was represented by another attorney. On April 17, 1985, two days later, however, (B) again went to Meridian to see EWE. While there he was given a letter prepared by Joe, addressed to (A), signed by EWE, dismissing (A) from EWE's case. (B) and EWE then executed an employment contract. (B) was asked to take the letter with him and mail it. Prior to mailing he read the letter and took it with him to Jackson, where he mailed it. No copy was ...


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