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Crosby v. The Mississippi Bar

Supreme Court of Mississippi, En Banc

June 21, 2018

MICHAEL W. CROSBY
v.
THE MISSISSIPPI BAR

          DATE OF JUDGMENT: 11/21/2016

          COMPLAINT TRIBUNAL HONORABLE JACQUELINE MASK JUDGE

          TRIAL COURT ATTORNEYS: JAMES RUSSELL CLARK MICHAEL W. CROSBY (PRO SE)

          ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY (PRO SE)

          ATTORNEYS FOR APPELLEE: JAMES RUSSELL CLARK ADAM BRADLEY KILGORE

          RANDOLPH, PRESIDING JUSTICE

         ¶1. Michael W. Crosby appeals the Complaint Tribunal's opinion and final judgment finding him in violation of Rules 1.3, 1.16, 8.1(b), and 8.4(a) and (d) of the Mississippi Rules of Professional Conduct, and issuing a public reprimand, based on his failure to file an appeal brief on his client's behalf, and for his failure to respond to the client's bar complaint. The Court finds that the Mississippi Bar proved by clear and convincing evidence that Crosby violated each Rule. Further, the Court finds that the tribunal's opinion is accurate and contains all material facts. The Complaint Tribunal's opinion and final judgment is affirmed.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Michael Crosby was retained by Travis Cardell Brown to represent him in a criminal trial arising from the shooting of three University of Southern Mississippi football players. Brown was convicted, and Crosby filed a notice of appeal on August 31, 2012. The trial transcript was filed on April 3, 2013, [1] and the appeal brief was to be filed by July 16, 2013.

         ¶3. Crosby requested additional time to file the appeal brief on July 16, 2013; August 21, 2013; September 10, 2013; September 16, 2013; and September 23, 2013. The first request for an extension of time cited Crosby's caseload and the voluminous record in Brown's case as the basis for needing additional time. The second and third requests for an extension of time cited Crosby's caseload. Crosby testified that, at the time he filed his third request for an extension of time, a dispute had arisen with Brown regarding the trial's venue, and whether Crosby could include this issue in the appeal brief. Crosby did not move for a change of venue from Forrest County for Brown's trial. Crosby testified that this was a strategic decision he made based on his years of experience questioning potential jurors in voir dire.

         ¶4. After Brown was convicted, Brown told Crosby that he should have moved for a change of venue. Crosby testified that this venue dispute created a conflict with Brown, in which Crosby would have had to include an ineffective-assistance-of-counsel claim in the appeal brief regarding his own representation of Brown at trial. Crosby testified that the venue issue prevented Crosby from being able to file the brief, although the appeal brief was "really close" to completion at the time the third request for additional time was filed.

         ¶5. Crosby's fourth request for an extension of time was filed on September 16, citing Crosby's caseload, and that the brief was not yet complete. Crosby's last request for an extension of time, filed on September 23, cited his own health issues. Crosby testified that he could have filed a completed appeal brief at this time, and that he had Brown's permission to do so. However, Crosby testified that Brown had changed his mind regarding the venue issue on numerous occasions, which ultimately prevented Crosby from filing the brief.

         ¶6. On October 4, this Court issued a Show Cause Notice, as Brown's appeal brief still had not been filed. Crosby was given fourteen days to file the appeal brief. Crosby testified that he had obtained Brown's permission to file the appeal brief. On October 18 at 4:55 p.m., Crosby electronically filed a Notice of Compliance with Show Cause Notice and Notice of Mailing.[2] Crosby testified that he physically placed the appeal brief in the mail. After the brief was placed in the mail, Crosby was informed that Brown was getting another attorney to represent him. Crosby retrieved the brief from the mail, but did not inform the Court that Brown had obtained a different attorney, or that the Notice of Mailing was incorrect.[3]Crosby took no action on Brown's case for another six days, and Brown's appeal was dismissed for failure to file an appeal brief on October 24, 2013.

         ¶7. After the appeal was dismissed, Crosby testified that he offered to file a petition for post-conviction relief (PCR) for Brown to pursue an out-of-time appeal, and Brown gave Crosby consent to do so. In a letter dated August 26, 2014, Crosby mailed the PCR and affidavit to Brown for his signature. Brown told Crosby that he did not receive the documents, and Crosby sent it two more times: once on October 10, 2014, and again on November 6, 2014. On December 3, 2014, Brown sent Crosby a letter stating that, although he felt Crosby was an "excellent attorney, " Brown no longer wanted Crosby to represent him or to file the PCR. Crosby never filed anything with the Court to show that he no longer represented Brown. Brown later attempted to have his appeal reinstated through another attorney, but the Court of Appeals issued an order denying Brown's motion on February 10, 2015.

         ¶8. Crosby testified that, at the end of June 2015, a representative of the Mississippi Bar forwarded him a letter that Brown had written to the Bar's Consumer Assistance Program. Brown's letter stated the following:

My name is Travis Brown [and] I was supposedly represented by Michael Crosby out of Gulfport MS. We went to trial [and] lost so Mr. Crosby was supposed to file an appeal, but I lost my direct appeal because Mr. Crosby never filed the brief which is clearly inaffective [sic] assistance of councel [sic]. I can never get in touch with him [and] his office is always giving me the run around. [I'm] not doubting that Mr. Crosby is a good attorney but I feel like he has a lot going on in his life personally [that's] affecting his work as an attorney, so this is why I am filing the complaint with the Mississippi Bar [and] ask that this matter be looked into. Further more [sic] I have hired new counsel [and] no longer wish for Mr. Crosby to be my attorney.

         The Mississippi Bar representative informed Crosby that a bar complaint form would be sent to Brown along with instructions for its filing. On July 10, 2015, Brown filed an informal bar complaint against Crosby for failing to file his appeal brief. Brown's complaint contained the following allegation: "Michael Crosby has been inaffective [sic] as my counsel. We went to trial [and] lost [and] he never filed an appeal brief on my half [sic]. Therefore my appeal was dismissed."

         ¶9. The Bar forwarded Brown's complaint to Crosby on July 10, 2015, and demanded that his response be filed on or before July 27, 2015. Crosby acknowledged that he had received the bar complaint and requested additional time to respond in an email to the Bar, which was granted with an extension to August 4. However, Crosby did not file a response to Brown's bar complaint. On August 25, 2015, the Bar sent Crosby a second demand letter requesting that he respond to Brown's complaint by September 1, 2015. Crosby did not submit a response by the date demanded.

         ¶10. On December 4, 2015, Crosby emailed James Clark, Deputy General Counsel for the Mississippi Bar, and informed Clark that he needed additional time to respond to Brown's complaint due to his current caseload. However, Crosby's testimony did not reflect that his caseload prevented him from submitting a response. Instead, Crosby testified that he deliberately chose not to submit a response to Brown's bar complaint because he believed his response would have included a personal issue that occurred in 2009 that he did not want shared with Brown. Further, Crosby testified that he believed that he was not required under the Rules of Professional Conduct to submit a response and instead believed that he would be given an opportunity to participate in an investigation into the conduct that gave rise to the bar complaint. Crosby never filed a response to Brown's bar complaint.[4]

         ¶11. The Bar filed its formal complaint against Crosby on December 21, 2015, based on (1) Crosby's failure to file an appeal brief on Brown's behalf, and (2) Crosby's failure or refusal to respond to the Bar complaint filed by Brown. The Bar alleged that Crosby had violated the following Mississippi Rules of Professional Conduct:

Rule 1.2(a), which provides that a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued;
Rule 1.3, which provides that a lawyer shall act with reasonable diligence and promptness in representing a client;
Rule 1.4(a), which provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information;
Rule 1.16 (d), which provides that upon termination of representation, a lawyer shall take reasonable steps to ...

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