Broome v. Mississippi Bar, 90-BA-1260

• Decision Date: 17 June 1992
• Docket Number: No. 90-BA-1260,90-BA-1260
• Parties: Robert H. BROOME v. MISSISSIPPI BAR.
• Court: Mississippi Supreme Court

Page 349

603 So.2d 349

Robert H. BROOME v. MISSISSIPPI BAR.

No. 90-BA-1260.

Supreme Court of Mississippi.

June 17, 1992.

Thomas J. Lowe, Jr., Jackson, for appellant.

Charles J. Mikhail, Jackson, for appellee.

En Banc.

PITTMAN, Justice, for the Court:

This appeal arises from a finding by the Mississippi Bar Complaint Tribunal that Robert H. Broome, an attorney practicing law in Batesville, Mississippi, should be suspended from the practice of law in Mississippi for 30 days due to unprofessional and unethical conduct. We find that the 30-day suspension imposed by the Bar is not excessive and affirm the punishment. However, we also find that Broome's conduct was not unethical; it was unprofessional. We add that it is this Court's intention that Broome be automatically reinstated to the practice of law in Mississippi at the end of his 30-day suspension and not be required to petition for reinstatement.

I.

On June 14, 1986, Wayne Luttrell and his brother, J.W. Luttrell, were in an automobile collision in Memphis, Tennessee, due to the negligence of the driver of a vehicle owned by Ophelia Harris who was insured by Government Employees Insurance Company (GEICO). Wayne Luttrell was injured in the collision. A few days after the collision, the Luttrell brothers retained Broome to represent them in a claim for damages against Ophelia Harris. Broome verbally agreed to represent Wayne Luttrell on a contingency basis. No percentage fee was agreed upon. On March 20, 1987, Broome wrote GEICO and demanded a settlement of $50,000.00. Sometime in April, 1987, GEICO corresponded with Broome and made an offer of settlement in the sum of $8,000.00. Broome communicated the offer to Wayne Luttrell. Wayne Luttrell rejected the offer.

On November 16, 1988, Ralph E. Chapman, an attorney practicing law in Clarksdale, Mississippi, corresponded with Broome and requested that Broome transfer Wayne Luttrell's file to Chapman's office. The file was transferred, but Chapman gained little information about the status of the case except for copies of some correspondence. Chapman wrote to GEICO on March 13, 1989, in order to settle the case for Wayne Luttrell. GEICO responded to Chapman on March 13, 1989, advising him that the statute of limitations had expired on the claim. GEICO also provided Chapman with a copy of a letter from GEICO to Broome dated January 6, 1988, advising Broome that the limitation period had expired and that all offers communicated to him were withdrawn. James B. Grenfell, an attorney practicing law in Jackson, Mississippi, corresponded with Broome on behalf of Wayne Luttrell requesting that Broome notify his errors and omissions carrier of a claim by Wayne Luttrell against Broome for his failure to file suit within the period provided under the applicable statute of limitation. Broome did not respond to Grenfell's letter.

On June 4, 1990, a Formal Complaint was filed with this Court by the Mississippi Bar against Broome alleging that he had demonstrated unprofessional and unethical conduct constituting cause for imposition of discipline. Chief Justice Roy Noble Lee of the Mississippi Supreme Court ordered that a Complaint Tribunal consisting of Edward A. Williamson, James Robertshaw, and Patricia Wise be designated to conduct a hearing. Williamson was designated to serve as the Presiding Judge of the Complaint Tribunal. Broome filed his Answer with this Court on June 29 denying that his conduct was unprofessional or unethical.

In May, 1982, several years prior to the filing of the complaint against Broome, the Mississippi Bar had privately reprimanded Broome for representing two different parties with conflicting interests.

In the September 20, 1990, hearing before the Complaint Tribunal on the complaint filed against Broome regarding his representation of Wayne Luttrell, Broome was the only witness to give testimony. Broome said that he had graduated from the University of Mississippi School of Law in January, 1968, was admitted to the Mississippi Bar, and had practiced law continuously since that time. Broome has conducted a general practice of law, devoting about five percent of his practice to personal injury cases. Most of his clientele reside in Mississippi. Broome admitted the facts of the Stipulations and Admissions, except he said he was "sure we--we discussed the percentage, but he says we didn't and I can't dispute him and I don't." Broome knew J.W. Luttrell because he had represented him in some criminal matters. Broome testified that he usually charges a 25% contingency in personal injury cases that are settled and a 33 1/3% contingency in personal injury cases that are tried. Broome added to the Stipulations and Admissions that he furnished the entire Wayne Luttrell file to Chapman. Broome testified that he thought he had communicated to Wayne Luttrell regarding GEICO's letter that the limitation period had expired. Broome also added to the Stipulations and Admissions that he did not notify his errors and omissions coverage carrier of the situation when Grenfell made such a request because he did not have coverage with any carrier. Broome was not sued by Wayne Luttrell through Grenfell.

Broome gave testimony that before he went to law school, he had worked in Memphis, Tennessee, as an insurance adjuster for approximately four years and knew that the statute of limitations for an action in Tennessee, such as Wayne Luttrell's claim, was one year. Because Wayne Luttrell was from Panola County, Broome made "an oversight" and failed to recognize "or remember that it was a one-year statute of limitation." Broome said that "it didn't register" because he does "so infrequent work in the state of Tennessee". Broome had no system in his office to keep up with deadlines for filing suits. Broome simply relied on his memory.

Broome denied that he was incompetent but admitted that he "let the statute of limitations run." Broome contended that he made a mistake but was not incompetent in handling Wayne Luttrell's case. Broome said that he felt he acted diligently and promptly in his representation of Wayne Luttrell because he compiled medical information and collected funds from Wayne Luttrell's insurance company. Broome admitted that his conduct was prejudicial to the administration of justice for Wayne Luttrell.

Upon questioning by the tribunal, Broome testified that the only thing he remembered about Wayne Luttrell's case was that it involved a collision in Memphis and that one of the Luttrell brothers got out of the vehicle after the collision and got into a fistfight with a passenger from the other vehicle. The parties who were involved in the physical altercation were arrested and taken to the police station. Broome also told the tribunal that he had performed some legal research into Wayne Luttrell's case and concluded that there was not any way to obtain jurisdiction over Ophelia Harris in Mississippi.

The tribunal found that Broome demonstrated unprofessional and unethical conduct and that he should be suspended from the practice of law in Mississippi for 30 days. James Robertshaw entered a concurrence with separate opinion that Broome had not acted unethically.

II.

Broome asserts that the punishment imposed by the Complaint Tribunal was excessive considering the infraction committed. He prays that his punishment be reduced to a public reprimand relying on this Court's ruling in Vining v. Mississippi State Bar Association, 508 So.2d 1047 (Miss.1987). In Vining, the attorney was charged with accepting employment and then neglecting his case. The proof established that Vining, although telling his client that he was handling matters, allowed the statute of limitations to run.

The Complaint Tribunal reviewed Vining's conduct and found that he should be suspended from the practice of law for 120 days. On appeal to this Court, Vining presented mitigating evidence to excuse his professional neglect. The following extenuating circumstances were alleged: (1) his personal health; (2) the health of a family member; and (3) a matter of personal distress. Finding that these factors were worthy of mercy, this Court stated that:

In relying upon his brief to this Court and his appearance at oral argument Mr. Vining has engaged in what is at best a risky business. We look with great disfavor on members of our profession who ignore the well established procedures within the Bar used for handling complaints. We look with even greater displeasure at a member of our profession who neglects his professional duties to those who have sought his help.

Mindful that justice untempered by mercy may be unduly harsh, we are inclined to mercy in this case. This is so not because we consider the 120 days suspension meted out by the Mississippi State Bar Complaint Tribunal to be overly punitive and severe. The punishment was in keeping with the misconduct. However, due to the existence and the very nature of the three extenuating circumstances presented to this Court by Mr. Vining we have determined that the suspension from the practice of law is not appropriate under these peculiar facts. The fates have not dealt kindly with Mr. Vining and we are not disposed to add further to his burdens.

Id. at 1049.

In keeping with the Vining decision, Broome asserts the following factors in mitigation of his conduct:

1. There was no deceit or intentional actions on the part of Broome; in other words, Broome's only offense was negligence;

2. Broome is liable for his negligence in a court of law if the client wishes redress;

3. Although Broome has had one private reprimand issued in 1982, his record is otherwise unblemished;

4. Tennessee's statute of limitations is very short; one year. Although this does not exempt an attorney from inquiring into the statute of limitations of another state, Broome's negligence is not the same as if he had neglected a three or six-year statute;

5. Under the current rules, a one-month...