The opinion of the court was delivered by: Smith, Justice
DATE OF JUDGMENT: 06/30/97
COURT FROM WHICH APPEALED: COMPLAINT TRIBUNAL
NATURE OF THE CASE: CIVIL - BAR MATTERS
DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART
MOTION FOR REHEARING FILED:
¶1. This case comes to this Court regarding an alleged violation by Attorney AAA of MRPC 1.8(a), 1.8(e) concerning the advancement of certain medical and living expenses by the attorney to a client. Additionally, the issue of an attorney failing to supervise an employee and sharing fees with that employee is also before us for determination.
¶2. This Court recently by order of March 25, 1999, amended Rule 1.8(e). Applying the amendment to the case at bar, we hold that Attorney AAA did not violate Rule 1.8(a) or 1.8(e). However, we find that Attorney AAA failed to properly supervise his employee and shared fees with that employee in violation of Rules 5.3(a)(b) and (c) as well as Rule 5.4(a).
¶3. Attorney AAA was retained by Everlina Jones to represent her with regard to a claim that she had for personal injuries suffered as a result of an incident. Everlina Jones' claim was settled for $18,000 and disbursement was made by Attorney AAA.
¶4. Attorney AAA was paid an attorney's fee of $6,000 for his representation of Everlina Jones. Out of the $6,000 attorney fee, Attorney AAA paid Robert Leflore, a paralegal employed by the firm, $3,000. The payment was made on December 18,1992, as evidenced by check number 2071 drawn on the Attorney AAA's Cient's Trust Account. Attorney AAA signed the check.
¶5. On December 18, 1992, Attorney AAA reimbursed Leflore for medical expenses in the amount of $1,414.64. This amount reflected funds advanced on behalf of Everlina Jones by Leflore for payment of the following medical bills: $50 to Dr. Paul Jackson on November 11, 1992 and $158 to Dr. Richard Knutson on November 23, 1992. The amount also included payments of $300 and $906.64 for past due car payments.
¶6. On November 21, 1994, Everlina Jones filed an informal complaint with the Bar against Attorney AAA wherein she accused Attorney AAA of misconduct by failing to pay medical bills in a personal injury settlement he was supposed to pay per settlement agreement and failing to pay her the correct amount even if he had paid the bills.
¶7. On December 20, 1994, the Bar sent Attorney AAA a copy of the complaint filed against him by Everlina Jones. Attorney AAA did not initially answer the Bar's request that he respond to Jones' complaint. Consequently, on January 13, 1995, the Bar sent another letter to Attorney AAA demanding that he respond to Jones' complaint.
¶8. On January 23, 1995, Attorney AAA responded to the Bar's January 13, 1995 letter. On January 24, 1995, Attorney AAA sent in a more detailed response to the complaint filed against him. On February 6, 1995, Attorney AAA sent an additional letter to the Bar wherein he indicated he was in the process of accumulating additional information from the hospital that would put "the matter to rest once and for all." On February 27, 1995, the Committee on Professional Responsibility sent the Bar's General Counsel a letter directing him to conduct a preliminary inquiry to get updated information from Attorney AAA and to report back to the Committee with any information that was supplied by Attorney AAA.
¶9. On March 31,1995, the Bar sent a letter to Attorney AAA asking him for a status report. On April 13, 1995, Attorney AAA sent a letter to the Bar wherein he indicated that the matter had been resolved to the best of his knowledge.
¶10. On May 8, 1995, the Bar received a letter dated February 28, 1995 from Everlina Jones which advised the Bar that Jones was withdrawing the complaint she had filed against Thomas Attorney AAA effective March 1, 1995.
¶11. On May 15, 1995, the Bar's Committee on Professional Responsibility issued a directive to the Bar's General Counsel to conduct an investigation, hearing and report into allegations that Attorney AAA had engaged in conduct that was in violation of Rules 1.2, 1.3, 1.4, 1.15 and 8.4(a, c &d) of the Mississippi Rules of Professional Conduct.
¶12. After the original Formal Complaint was filed on July 31, 1995, the Bar caused to be issued and served on Attorney AAA a Subpoena Duces Tecum directing Attorney AAA to appear and produce certain documents on February 23, 1996, which was the same day trial of the original Formal Complaint was set. Approximately one week prior to February 23, 1996, Attorny AAA layers, contacted the Bar's General Counsel and expressed a desire for a continuance of the trial set for February 23, 1996. After various Discussions and by agreement between the counsels involved, the trial set for February 23, 1996, was continued, and Attorney AAA delivered to the Bar the documents requested in its Subpoena Duces Tecum.
¶13. Following the hearing on the complaint, the Tribunal found that Attorney AAA violated the provisions of Rule 1.8 (a), MRPC, which prohibits a lawyer from entering into a business transaction with a client or knowingly acquiring an ownership, possessory or pecuniary interest adverse to a client through the actions of Attorney AAA' paralegal, Leflore, who loaned Ms. Jones $300 on September 22, 1992, and who paid her past due bank notes on December 12, 1992, in the amount of $906.64 including late charges and the cost of the purchase of the money order.
¶14. In addition, the Tribunal found that Attorney AAA violated the provisions of Rule 1.8 (e), MRPC, which prohibits a lawyer from providing financial assistance to a client in connection to pending or contemplated litigation. Attorney AAA, through his paralegal Leflore, violated the provisions of this rule by loaning Jones $300, paying Dr. Jackson $50 and Dr. Knutson $158 and paying the Cleveland State Bank and GMAC $906.64.
¶15. The Tribunal further found that Attorney AAA violated the provisions of Rules 5.3 (a, b and c) MRPC, which provides with respect to a non-lawyer employed or retained by or associated with a lawyer that: (a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyers; and (c) a lawyer shall be responsible for the conduct of such a person it would be in violation of the rules of professional conduct if engaged in by the lawyer if the lawyer orders with the knowledge of the specific conduct or ratifies the conduct involved or the lawyer is a partner of the law firm in which the person is employed or has direct supervisory authority over the person that knows of the conduct at the time when its consequences can be avoided or mitigated but fails to take reasonable or medial action.
¶16. The actions associated with this violation are that Attorney AAA was Leflore's supervisor and either knew or should have known of the improper, unethical and unprofessional conduct engaged in by Leflore by his making a personal loan to Jones, paying medical bills on her behalf and paying past due car notes on her behalf.
¶17. Also, the Tribunal found that Attorney AAA violated the provisions of Rule 5.4 (a), MRPC, by sharing his attorney's fee with a non-lawyer.
¶18. Attorney AAA was suspended from the practice of law for a period of one year and was ordered to take and pass the bar examination as a condition of reinstatement. Feeling aggrieved Attorney AAA appeals raising the following issues:
"I. WHETHER THE CONSTITUTIONS OF THE UNITED STATES AND MISSISSIPPI, UNDER THEIR EQUAL PROTECTION COMPONENTS, FORBID ENFORCEMENT OF RULE 1.8(E), MRPC, AS IT IS NOW WRITTEN, WHERE THE RULE PERMITS SOME PAYMENTS BY THE LAWYER ON THE CLIENT'S BEHALF BUT FORBIDS OTHERS. "II. WHETHER THE TRIBUNAL ERRED AS A MATTER OF LAW IN FINDING A VIOLATION OF RULE 1.8 (A), MRPC, WHERE THE LAWYER ENGAGED IN NO BUSINESS TRANSACTIONS WITH THE CLIENT. "III. WHETHER THE TRIBUNAL PRESENTED CLEAR AND CONVINCING EVIDENCE SUPPORTING ITS VIEW THAT THE LAWYER FAILED TO PROVIDE ADEQUATE SUPERVISION OF AN EMPLOYEE SOLELY BECAUSE THE LAWYER IS A PRACTICING MINISTER, AS WELL AS A PRACTICING LAWYER. "IV. WHETHER THE TRIBUNAL'S FINDING THAT THE LAWYER HAD IMPROPERLY SHARED LEGAL FEES WITH AN EMPLOYEE WAS BASED ON CLEAR AND CONVINCING EVIDENCE WHERE THE LAWYER AND EMPLOYEE AGREED THAT THE SUM PAID DID NOT REPRESENT A "CONTINGENT" AMOUNT, BUT RATHER PAYMENT OF AMOUNTS DUE THE EMPLOYEE, AND WHERE THERE WAS NO EVIDENCE OF AN EXPRESS OR TACIT AGREEMENT FOR PERCENTAGE OR CONTINGENT FEES. "V. WHETHER THE SANCTION IMPOSED, A ONE YEAR ...