Allison v. State, 1529
| Decision Date | 17 August 1983 |
| Docket Number | No. 1529,1529 |
| Parties | Lenzie ALLISON a/k/a Lindsey Allison, Appellant, v. STATE of Mississippi, Appellee. Misc. |
| Court | Mississippi Supreme Court |
Cullen C. Taylor, Brandon, for appellant.
En Banc.
The world is much with today's lawyer. His overhead is ever soaring. Litigation is becoming increasingly complex. These developments juxtaposed against the need to provide adequately for one's self and one's family have placed his traditional role in a great tension. Uncooperative and unattractive clients are viewed by some as no more than necessary evils. The romance has gone out of the practice of law.
Still, there are obligations a lawyer may not shirk no matter how inconvenient he may find them. As much as ever, today's lawyer shoulders dual and sometimes conflicting responsibilities of fidelity and service to his clients and to the court. Lawyers differ on the ever present controversy which of these has priority over the other. One thing is certain: both outrank the lawyer's personal whim or convenience.
Cullen C. Taylor, attorney at law, of Brandon, Mississippi, perfected an appeal on behalf of Lenzie Allison. 1 Mr. Taylor entered his appearance in this Court for all purposes. He then proceeded to do nothing. Without filing a motion for leave to withdraw, a by your leave or whatever, Mr. Taylor has defaulted in his obligations under Rule 40. He is in contempt of this Court.
II.
In May of 1982 Lenzie Allison was put to trial in the Circuit Court of Rankin County, Mississippi, on a charge of manslaughter. Prior thereto Taylor had been engaged to serve as defense counsel. Taylor did in fact represent Allison at his trial which resulted in a manslaughter conviction on May 20, 1982. Allison was given a 20 year sentence.
Thereafter, Taylor, acting as counsel for Allison, took the necessary steps to perfect an appeal to this Court. By virtue thereof, Taylor assumed the duty under Rule 40 to prosecute the appeal. We emphasize that this was not merely a duty to his client, Allison, but equally and independently a duty Taylor owed to this Court.
From the papers Taylor has filed with this Court we accept as true Taylor's version of what happened thereafter. 2 Taylor advised Allison that he was perfecting the appeal in order to assure that this right was not lost to Allison. Before he would actually prosecute the appeal, however, an acceptable fee arrangement would have to be made.
In due course, Taylor advised Allison that his fee for handling the appeal would be $3,000. Allison did not respond. On November 18, 1982, Taylor wrote Allison and advised him that the transcript had been prepared. 3 He reiterated that his fee would be $3,000. He told Allison that, if he wished to employ another lawyer, he (Taylor) would be happy to turn over his file to the new attorney. Taylor emphasized to Allison that he needed to act immediately.
Again, on December 1, 1982, Taylor wrote to Allison emphasizing that it was imperative that Allison employ someone to prosecute the appeal. 4
It may be fairly said that Taylor discharged his duties to his client, Lenzie Allison. Without charge and because the time was short, he perfected the appeal. He arranged for the preparation of the transcript and the trial record. He advised Allison what his fee would be for handling the appeal and assured Allison that he was free to select other counsel if he so desired. Taylor has wholly defaulted, however, in his obligations to this Court.
Our Rule 40 was originally adopted on October 21, 1968. It was amended on July 28, 1975 and has been in its present form since that time. Without equivocation, it requires that an attorney who perfects an appeal shall continue to prosecute the appeal unless permitted by the Court to withdraw from the case. 5 The rule then provides that:
"If an attorney desires to withdraw from a case, he may file a motion giving his reasons for desiring to withdraw and requesting approval of this Court."
Taylor was certainly within his prerogatives in advising Allison that an acceptable fee arrangement would have to be reached regarding the appeal. When it became apparent that no such agreement was possible, Rule 40 made clear to Taylor what he ought to do. Had he filed a motion for leave to withdraw setting forth the facts and circumstances Taylor now presents to us, the Court most likely would have allowed withdrawal. 6
We reiterate that the appeal was perfected on or about May 28, 1982. One year later, Taylor had done nothing further. On June 1, 1983, this Court entered the following order: 7
"Cullen C. Taylor, Esq. is hereby ordered within thirty days of the date hereof to show cause, if any he can, why he should not be held in contempt of Court for failure to prosecute the appeal of Lenzie Allison, a/k/a Lindsey Allison to its final disposition or seek relief from this Court from his obligation so to do, and to that end, the said Cullen C. Taylor shall, within thirty days of this date, make such written response as may be appropriate under the circumstances."
Taylor filed his response on June 30, 1983. 8 What is remarkable about this response is that it contains no acknowledgment whatsoever of Taylor's obligations under Rule 40. No excuse whatsoever is offered why Taylor failed to file a Motion for Leave to Withdraw. Taylor does explain that Allison would not pay the $3,000 fee quoted. What Taylor fails to acknowledge, however, is that it is for the Court to determine whether this is a valid reason for allowing him to drop the case. This is not a decision Taylor was entitled to make unilaterally.
Taylor has failed to discharge his obligations to this Court under Rule 40. He has specifically and willfully failed to file an Assignment of Errors and Brief within the time required by the rules of this Court. He has failed to offer any excuse, acceptable or otherwise, for such failure. We hold that Cullen C. Taylor, attorney at law, of Brandon, Mississippi, is in contempt of this Court.
Under the circumstances of this case, the Court assesses a fine of $100.00. Taylor is ordered and directed within ten days of this date to pay such sum of $100.00 to the clerk of this Court.
III.
Several points bear emphasis.
First, nothing said here should deter attorneys from doing what Taylor did back in May of 1982. Because the time was short, he acted properly in taking the necessary steps to perfect Allison's appeal to this Court. Nothing said here should give any attorney grounds for believing that, if he takes these procedural steps on behalf of his client, he will then be trapped into handling the entire appeal without fee. When good cause exists for allowing an attorney to withdraw from representation of a client before this Court, upon proper motion, such withdrawal will be allowed. 9 To be sure, in many circumstances the failure of the client to pay a reasonable fee may be a good and valid reason for withdrawal. 10
Second, when an individual accepts a license to practice law and becomes a member of the bar of this state and of this Court, he assumes many obligations. At least two of these have priority over his certainly legitimate prerogative to charge a legitimate fee for his services. 11 Along with his fellow members of the bar, each lawyer assumes a duty to assume that every person in substantial need of legal service receives that service without regard to ability to pay. 12 Beyond that, each lawyer, in conjunction with his fellow members of the bar, assumes an obligation as an officer of the Court to assure that, before this Court makes the life shattering decisions tendered to it, it has the benefit of competent advocacy on behalf of both sides.
What we say here is a simple reiteration of the values and traditions of the legal profession. These premises are articulated in the ethical considerations underlying the canons in the Code of Professional Responsibility by which all lawyers are bound. There is no doubt that parts of that code relegate to third and fourth priority a consideration of the economics of the practice of law. This is merely a part of the quid pro quo the lawyer must be prepared to give when he...
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