Goodsell v. The Mississippi Bar, 94-BA-00142-SCT

• Decision Date: 11 January 1996
• Docket Number: No. 94-BA-00142-SCT,94-BA-00142-SCT
• Citation: 667 So.2d 7
• Parties: Jesse B. GOODSELL a/k/a J.B. Goodsell v. The MISSISSIPPI BAR.
• Court: Mississippi Supreme Court

Page 7

667 So.2d 7

Jesse B. GOODSELL a/k/a J.B. Goodsell v. The MISSISSIPPI BAR.

No. 94-BA-00142-SCT.

Supreme Court of Mississippi.

Jan. 11, 1996.

Andrew J. Kilpatrick, Jr., Hickman Sumners Goza & Gore, Jackson, MS, for appellant.

J.B. Goodsell, Clinton, MS, pro se.

Michael B. Martz, Jackson, MS, for Appellee.

En Banc.

ON PETITION FOR REHEARING

SULLIVAN, Presiding Justice, for the Court:

The original opinions are withdrawn and these opinions are substituted therefor.

Kerry Prisock prepared a Motion for Temporary Restraining Order (hereinafter MTRO) on behalf of his client, Herschel L. Woodward, which, on September 4, 1992, Jesse B. Goodsell filed in the Chancery Court of Hinds County, Mississippi.

A temporary restraining order (hereinafter TRO) was granted by Chancellor Stuart Robinson on September 4, 1992. Shortly thereafter a Motion To Dissolve Temporary Restraining Order was filed urging among other things that the signature on the MTRO was not Woodward's as has been represented to the court by Goodsell. Woodward's signature on the MTRO had been notarized by Prisock who testified that he saw Woodward sign the document with his left hand. After a hearing on September 17, 1992, Chancellor Robinson entered an order dissolving the TRO. The chancellor also entered an order requiring Woodward to appear before a deputy chancellor clerk and sign his name fifteen times. On December 10, 1992, the Chancellor held a hearing on a Motion For Sanctions and Thomas L. Packer, Director of the Jackson Police Department Crime Laboratory, reviewed the documents that were submitted to him pursuant to court order which included the MTRO as well as the fifteen signatures.

Packer was accepted by the court as a handwriting expert. He testified that the signature on the MTRO was not the same as the signatures given to the deputy chancery clerk by Woodward. Goodsell cross-examined Packer on the authenticity of the signature on the MTRO.

Goodsell then offered Prisock on the authenticity of the signatures. Prisock stated that he witnessed Woodward sign his name with his left hand.

After the cross-examination of Prisock, Chancellor Robinson stated that he was going to subpoena Woodward to testify in the afternoon of the same day if he had to handcuff him and put him in shackles. Somehow the deputies could not find Woodward despite speculation that he was seen earlier at Goodsell's office. During the interim, Goodsell met in chambers with the chancellor and told him that he was the one who had signed the MTRO and not Woodward. When Goodsell was put on the witness stand by the court in the afternoon the following conversation transpired:

Q: [W]ould you tell me whether or not the signature [which] is said to be Herschel Woodward's is in fact his signature?

A: No, sir, it is not his signature.

Q: Will you tell me whose signature it is, or who wrote his name on there?

A: Your Honor, I'm not certain, but I believe it was me.

Q: Well, either it was or wasn't.

A: That morning Mr. Woodward and his father was [sic] in Kerry's [Prisock's] office down on Fortification Street. Mr. Woodward did indeed have a cast on his hand and was unable to write. We went over the Temporary Restraining Order with them. And I'm not certain who signed it. It was liable to have been me, and it probably was.

On December 11, 1992, Chancellor Robinson entered an order barring Goodsell and Prisock from the practice of law in Division 1 of the Fifth Chancery Court District indefinitely. Subsequently, Chancellor W.O. Dillard followed with a similar order for Division 2. On November 22, 1993, the Complaint Tribunal conducted a hearing at which Chancellor Robinson stated that he would not have had a problem with Goodsell signing the document if there was something wrong with Woodward which made him unable to sign and that this problem was presented to the court. At the Tribunal hearing, Goodsell unequivocally admitted that the signature on the MTRO was his. Goodsell said that he hedged on his answer on December 10, 1992, before Chancellor Robinson because he thought he should talk with an attorney before answering the question. Chancellor Robinson stated that he thought Goodsell should be publicly reprimanded, and after the Tribunal hearing both Chancellor Robinson and Chancellor Dillard reinstated Goodsell to practice before their courts.

The Tribunal found that Goodsell had violated Rules 3.3(a)(4), 3.3(d), 3.4(b), 4.1(a), (b), and 8.4(a), (c), and (d) of the Mississippi Rules of Professional Conduct and imposed a six month suspension for the practice of law of Jesse B. Goodsell.

Goodsell presents this Court with three issues on appeal.

The Bar filed a cross-appeal asking this Court to impose more stringent discipline.

I.

Does the record contain clear and convincing evidence that

Goodsell violated the rule cited above and, if

not, did the Tribunal err in imposing

discipline based upon those rules?

The Bar has the burden of proof to show by clear and convincing evidence that Goodsell violated the Rules. Terrell v. Mississippi Bar, 635 So.2d 1377, 1384 (Miss.1994).

Goodsell admits that he was less than candid about telling the lower court that he signed the MTRO, nevertheless, he contends that he did not violate any of the rules of professional conduct except, perhaps, Rule 8.4(d) by allowing "an unnecessary hearing to be conducted." "A lawyer shall not knowingly ... offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures." Miss.R.Prof.Conduct 3.3(a)(4). Goodsell misconstrues the thrust of the charges against him when he argues that there is not a scintilla of evidence to suggest that the assertions made in the MTRO were not true and correct. However, the hearing was held for one purpose only: to establish the validity of the signature, not to test the accuracy of the facts contained within the MTRO. At this hearing, who signed the MTRO became the material evidence, not the contents of the motion itself. Goodsell knew he had signed the motion from the outset. Goodsell claims that he took remedial action by telling Chancellor Robinson the truth. When Prisock did not tell the truth from the witness stand, Goodsell could have removed any shadow cast upon his veracity by admitting to the signature before the hearing ever took place, or before his client was subjected to producing fifteen signatures for verification. There is clear and convincing evidence that Goodsell is in violation of Rule 3.3(a)(4).

"In an ex parte proceeding, a lawyer shall inform the Tribunal of all material facts known to the lawyer which will enable the Tribunal to make an informed decision, whether or not the facts are adverse." Miss.R.Prof.Conduct 3.3(d). The Tribunal determined that Goodsell's failure to inform Chancellor Robinson of the nature of the signature was a "material fact." The chancellor testified that if he had known about the circumstances surrounding the MTRO, then the fact that Goodsell signed would not have made a difference. Simply because the chancellor may have granted the MTRO anyway does not necessarily make the fact immaterial. The import of what the chancellor testified was this: it is one thing to tell him up-front that the signature belonged to the attorney, but is quite another to never reveal that fact. From other testimony in the record it is apparent that Woodward was not even present in the room when Goodsell signed Woodward's name to the motion. That is also a material fact. There is clear and convincing evidence that Goodsell is in violation of Rule 3.3(d) as the Rule calls for admission even if the facts are not adverse.

"A lawyer shall not ... falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law." Miss.R.Prof.Conduct 3.4(b). Goodsell argues that "there is absolutely no evidence to suggest that documentary evidence was falsified by Goodsell." What Goodsell did do was place a witness, Prisock, on the stand to testify that someone other than Goodsell signed the motion for TRO. Goodsell knew that that was the testimony that would be offered by Prisock and, even if he did not he went so far as to rehabilitate Prisock after cross-examination of him by opposing counsel. All of this was an attempt to convince the chancellor that a falsehood was a fact. The person in the court room that had absolute knowledge that it was a falsehood was Jesse B. Goodsell. That action was a crystal clear violation of Rule 3.4(b).

In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

Miss.R.Prof.Conduct Rule 4.1(a) and (b). At the outset the Bar concedes that the Tribunal was in error to find Goodsell in violation of Rule 4.1(b) as there is absolutely no evidence that Goodsell's failure to disclose a material fact was necessary to avoid assisting a criminal or fraudulent act by a client. There is no allegation that Woodward did anything criminal or fraudulent. As to the Tribunal's finding of a violation of Rule 4.1(b), that finding is reversed and rendered in favor of Goodsell. The comment to Rule 4.1 states that "[w]hether a particular statement should be regarded as one of fact depend on the circumstances." The Comment further states that "[m]isrepresentations can also occur by failure to act." The signature became a material fact when opposing counsel filed the Motion To Dissolve The Temporary Restraining Order. Goodsell sat by and allowed fifteen exemplars to be taken from Woodward without ever notifying the court that this action was unnecessary because he himself signed the MTRO. Goodsell argues that he thought the true issue was the failure to...