Emil v. The Mississippi Bar, 94-BA-00749-SCT

Citation690 So.2d 301
Decision Date09 January 1997
Docket NumberNo. 94-BA-00749-SCT,94-BA-00749-SCT
PartiesGerald R. EMIL v. THE MISSISSIPPI BAR.
CourtUnited States State Supreme Court of Mississippi

William Liston, Liston & Lancaster, Winona; James Duke Cameron, Phoenix, AZ, Kendall Reeves, Davis & Emil, Gulfport, for Appellant.

Michael B. Martz, Jackson, for Appellee.

En Banc.

SULLIVAN, Presiding Justice, for the Court:

STATEMENT OF THE CASE

The Mississippi Bar through the office of its General Counsel brought this disciplinary The Bar Committee on Complaints considered the informal complaint and response, and on November 4, 1988, the chairman of the committee advised General Counsel in writing that the Committee had referred the informal complaint to General Counsel. General Counsel further investigated the complaint pursuant to the provisions of Rule 7.2 for possible violations of Rule 4.1, 4.2, 4.3, 4.4, 5.3, 7.2, 7.3, and 8.4 of the Mississippi Rules of Professional Conduct.

matter against Gerald R. Emil under the provisions of the Rules of Discipline for the Mississippi State Bar. The matter was initiated on or about April 13, 1988, when an informal complaint was filed with the Committee on Professional Responsibility of the Bar. The informal complaint was served on Emil on April 11, 1988, and on August 9, 1988, he filed his informal response pursuant to Rule 5.3 of the Rules of Discipline.

On April 21, 1992, General Counsel filed with the Complaints Committee and served upon Emil its investigatory report. On October 16, 1992, the Disciplinary Committee determined that there was probable cause to believe Emil was guilty of "such conduct that, if proven, would warrant the imposition of discipline." The Disciplinary Committee directed General Counsel to file a Formal Complaint against Emil in accordance with the provisions of Rule 8 of the Rules of Discipline. The Committee's determination was that Emil's conduct was in violation of Rules 5.3, 5.4, 7.3, and 8.4(a) and (b) of the Mississippi Rules of Professional Conduct. On November 13, 1992, General Counsel filed the Bar's formal complaint against Emil. This complaint consisted of seven separate and factually unrelated counts, primarily charging violations of either the Mississippi Code of Professional Responsibility or the Mississippi Rules of Professional Conduct. The gravamen of each of the counts of the formal complaint was that Emil violated the provisions that prohibit solicitation of employment. On December 31, 1992, Emil responded to the formal complaint by filing his motions to dismiss and his answer presenting Rule 12(b), Mississippi Rules of Civil Procedure, defenses.

After a period of discovery this matter came on for hearing before a Complaint Tribunal of this Court consisting of Honorable Larry Roberts, Circuit Judge; Honorable Patricia Wise, Chancery Judge; and James Robertshaw, Esq., on October 14-15, 1993, and on June 13-16, 1994.

The Tribunal denied Emil's motions to dismiss the claim for multiplicity of counts, for prejudicial delay, and for separate trials on each of the seven counts of the formal complaint. At the conclusion of the Bar's case-in-chief and after all evidence was in, the Tribunal denied Emil's motions for directed verdicts as to counts one, two, and five. At the conclusion of the evidentiary trial, the complaint tribunal directed the parties to file with the tribunal a proposed opinion and judgment. On June 28, 1994, the Bar filed its proposed opinion and judgment, in which it proposed to the Tribunal that the evidence supported only the following judgment as to punishment:

[a.] For Count One, Mr. Emil should receive a PRIVATE REPRIMAND.

[b.] For Count Two, Mr. Emil should receive a thirty (30) day SUSPENSION.

[c.] For Count Three, Mr. Emil should receive a thirty (30) day SUSPENSION consecutive to the suspension imposed in Count Two.

[d.] For Count Four, Mr. Emil should receive a PRIVATE REPRIMAND.

[e.] For Count Five, Mr. Emil should receive a thirty (30) day SUSPENSION consecutive to the suspensions imposed in Counts Two and Three hereof.

[f.] For Count Six, Mr. Emil should receive a ninety (90) day SUSPENSION consecutive to the suspensions imposed in Counts Two, Three, and Five hereof.

[g.] For Count Seven, Mr. Emil should receive a SUSPENSION of not less than one (1) year to run consecutive to the suspensions imposed in Counts Two, Three, Five, and Six hereof.

On July 19, 1994, the Tribunal rendered its written Opinion and Judgment in this 1. Count One ("Catchings Complaint"): That Emil circumvented DR2-103(A), Mississippi Code of Professional Responsibility, and violated DR1-102(A)(2), Mississippi Code of Professional Responsibility, in that acting through one Albert Fountain he expressly or by implication encouraged and/or directed Fountain to make contact with Ms. Catchings for the purpose of securing employment for Emil.

matter. It (1) denied Emil's motion for a directed verdict as to counts one, two, three, five, six and seven of the complaint; (2) granted Emil's motion for a directed verdict as to count four; and (3) found that there was clear and convincing evidence that Emil violated the following provisions of the applicable Mississippi Code of Professional Responsibility or the Mississippi Rules of Professional Conduct as to the following counts in the stated particulars:

2. Count Two ("Burgeois Complaint"): That Emil circumvented the provisions of DR2-103(A), Mississippi Code of Professional Responsibility, and violated the provisions of DR1-102(A)(2), Mississippi Code of Professional Responsibility, in that he directed Fountain to contact Mr. Burgeois at a time when Fountain was subject to the supervision and control of Emil and was at least following Emil's direct or implied instructions.

3. Count Three ("Buckley Complaint"): The Tribunal found that Fountain's contact with the Buckley family after an automobile accident in which William R. Buckley was injured was at the direction of Emil and that, therefore, Emil violated DR1-102(A)(2), Mississippi Code of Professional Responsibility, and DR2-103(A), Mississippi Code of Professional Responsibility.

4. Count Five ("Kaufman Complaint"): That Emil violated the provisions of Rule 8.4(a), Mississippi Rules of Professional Conduct, by attempting to violate the provisions of Rule 5.4(a), Mississippi Rules of Professional Conduct, in connection with Fountain's contact with Otis Kaufman, a Mississippi Highway Safety patrolman between March 5 and April 11, 1988, for the alleged purpose of getting Kaufman to refer potential personal injury cases arising from automobile accidents to Fountain because Fountain was subject to the control and supervision of the Respondent at the time of his contact with Kaufman, and Respondent failed to make reasonable efforts to insure that Fountain's conduct was compatible with Respondent's obligations as an attorney.

5. Count Six ("Rollison Complaint"): The Tribunal found that there was sufficient credible evidence offered at trial to meet the clear and convincing evidence burden of proof to show that Emil violated the provisions of Rule 8.4(a), Mississippi Rules of Professional Conduct, and attempted to violate the provisions of Rule 5.4(a), and 7.2(c), Mississippi Rules of Professional Conduct, by attempting to solicit Rollison to refer personal injury claims to him in return for which referral Rollison would be paid a percentage of the recovery.

6. Count Seven ("Denton/Dornan/Quave Complaint"): The Tribunal found that the Bar had shown by clear and convincing evidence that Emil obtained a wrongful death suit ("Moran Case") as a result of a promise to pay Fountain for referring the case to him; that Emil intended to share legal fees from the settlement with Fountain, a non-lawyer, in violation of the provisions of DR3-102, Mississippi Code of Professional Responsibility. And, that Emil engaged in conduct in connections with the Moran Case that was prejudicial to the administration of justice in that he engaged in conduct in connection with the case that adversely reflected on his fitness to practice law in violation of the provisions of DR1-102(A)(5) and (6), Mississippi Code of Professional Responsibility.

In addition to the specific findings set forth above, the Complaint Tribunal made the following general findings:

1. Emil demonstrated unprofessional and unethical conduct and conduct evincing unfitness for the practice of law which constituted cause for the imposition of discipline in connection with his violation of the charges made against him in counts one, two, three, five, six and seven.

2. That costs and expenses incurred in the investigation, which preceded the filing 3. That the counts charged in the complaint clearly demonstrated part of a common plan or scheme on Emil's behalf to unethically solicit employment as an attorney.

of the formal complaint in this matter, totaled $1, 586.38.

The Tribunal, after making findings of fact relative to mitigation and/or aggravation, found as follows in regards to punishment to be imposed:

1. That discipline should be imposed upon Emil for the violation of the disciplinary Rules set forth in counts one, two, three, five, six and seven of the formal complaints;

2. That the proper sanction to be imposed against Emil was disbarment.

On July 25, 1994, Emil filed his notice of appeal to this Court from the Opinion and Judgment of the Complaint Tribunal filed with this Court on July 19, 1994.

I. DID THE TRIBUNAL ERR IN DENYING EMIL'S PRE-TRIAL MOTIONS?

A. The motion to dismiss the complaint due to unconstitutional delay.

B. The motion to dismiss the complaint due to multiplicity.

C. The motion for separate trials on each unrelated count of the complaint.

II. DID THE TRIBUNAL ERR IN THEIR EVIDENTIARY RULINGS?

A. Allowing the Mississippi Bar to introduce the deposition of Gwendolyn Catchings over the objection of Emil.

B. Allowing the introduction of hearsay out-of-court statements of Albert Fountain for the purpose of proving...

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