Liebling v. The Mississippi Bar, 2004-BA-01565-SCT.

• Decision Date: 23 March 2006
• Docket Number: No. 2004-BA-01565-SCT.,2004-BA-01565-SCT.
• Citation: 929 So.2d 911
• Parties: Franklin B. LIEBLING v. THE MISSISSIPPI BAR.
• Court: Mississippi Supreme Court

929 So.2d 911

Franklin B. LIEBLING v. THE MISSISSIPPI BAR.

No. 2004-BA-01565-SCT.

Supreme Court of Mississippi.

March 23, 2006.

COPYRIGHT MATERIAL OMITTED

Victor Israel Fleitas, Tupelo, attorney for appellant.

Adam Bradley Kilgore, Jackson, attorney for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

STATEMENT OF THE CASE

¶ 1. This case stems from an Informal Bar Complaint filed by Cori Stewart ("Cori") against attorney Franklin Liebling ("Liebling"). After receiving and investigating Cori's Complaint, the Office of General Counsel for the Mississippi Bar ("Bar") scheduled an investigatory hearing. An investigatory hearing was held on January 28, 2003, and Liebling did not attend. The Office of General Counsel for the Bar found Liebling had violated Rules 8.1(b) and 8.4(a), (c), and (d) of the Mississippi Rules of Professional Conduct and that discipline should be imposed for these violations.¹

¶ 2. On May 12, 2003, the Mississippi Bar filed a Formal Complaint against Liebling. The filing of the Formal Complaint was pursuant to Liebling's request that a formal disciplinary proceeding be initiated against him to adjudicate the propriety of his alleged misconduct. This complaint alleged Liebling: 1) violated Rule 8.1(b) of the Mississippi Rules of Professional Conduct by failing to attend an investigatory hearing; and 2) violated Rule 8.4(a), (c), and (d) of the Mississippi Rules of Professional Conduct by "guaranteeing on three separate occasions that he would be able to effectuate the release of Cori by a certain date."

¶ 3. A trial was held before the Complaint Tribunal ("Tribunal") on June 29, 2004. With respect to Liebling's alleged violation of M.R.P.C. 8.1, the Tribunal granted Liebling's Motion for Directed Verdict. In granting this motion, the Tribunal cited Rule 5.7 of the Rules of Discipline for the Mississippi Bar, which states, "[t]he accused attorney may appear at any investigatory hearing conducted by complaint counsel." The Tribunal stated it did not condone Liebling's failure to appear at the investigatory hearing. However, it did not find that Liebling failed to respond to any request for information from the Committee on Professional Responsibility; and therefore, Liebling did not violate M.R.P.C. 8.1. With respect to Liebling's alleged violation of M.R.P.C. 8.4(a), (c) and (d), the Tribunal found Liebling's conduct violated M.R.P.C. 8.4(a) and (c). The Tribunal did not address M.R.P.C. 8.4(d) in its opinion and judgment.

¶ 4. The Tribunal also found Liebling had been the subject of prior Bar complaints, resulting in one Private Reprimand and one Informal Admonition. In Miss. State Bar v. A Miss. Attorney, 489 So.2d 1081 (Miss.1986), Liebling received a Private Reprimand for charging an excessive fee for the drafting of a will. Liebling received an Informal Admonition for violating M.R.P.C. 1.2(a), 1.3 and 1.4.² The Tribunal found Liebling's conduct constituted unprofessional and unethical conduct under M.R.P.C. 8.4(a) and (c), and issued Liebling a Public Reprimand.

¶ 5. Liebling timely filed his Notice of Appeal on August 6, 2004, and brings the following issues for appeal: 1) whether the Tribunal erred in failing to admit Exhibit D-2; 2) whether the Petitioner failed to establish a violation of Rule 8.4 by clear and convincing evidence; and 3) whether the Tribunal erred in imposing a public reprimand on Liebling.

STANDARD OF REVIEW

¶ 6. Under Mississippi Rule of Discipline 1(a), this Court has exclusive and inherent jurisdiction of matters pertaining to attorney discipline. This Court, when reviewing disciplinary matters, "reviews the evidence de novo, on a case-by-case basis, sitting as triers of fact, and no substantial evidence or manifest error rule shields the Tribunal from scrutiny." Foote v. Mississippi State Bar Ass'n, 517 So.2d 561, 564 (Miss.1987). See also Hoffman v. Miss. State Bar Ass'n, 508 So.2d 1120, 1124 (Miss.1987); Vining v. Miss. State Bar Ass'n, 508 So.2d 1047, 1049 (Miss. 1987); St. Bd. of Psychological Ex. v. Hosford, 508 So.2d 1049, 1054 n. 4 (Miss.1987). However, this Court may grant deference to the Tribunal "due to its exclusive opportunity to observe the witnesses, including the attorney, which is vital in weighing evidence." The Miss. Bar v. Logan, 726 So.2d 170, 175 (Miss.1999) (quoting Parrish v. The Miss. Bar, 691 So.2d 904, 906 (Miss.1996)).

STATEMENT OF THE FACTS

¶ 7. William Stewart ("Stewart"), Cori's father, testified in 1995, Cori entered prison to serve a sentence of twenty years after pleading guilty to six counts of possession and sale of marijuana.³ During his incarceration, Cori received information from another inmate that hiring Liebling as his attorney might help to get Cori's sentence reduced. Cori communicated this information to his father, and Stewart contacted Liebling in February, 1999.

¶ 8. Stewart testified that at their initial meeting, Liebling assured Stewart that Cori would not need a sentence reduction, but that Liebling could get Cori out early. Liebling stated that because Cori was a first time offender and that he was "misrepresented in court because he had an assigned lawyer," he would be able to get Cori out, if Stewart paid Liebling $5,000. Stewart was to pay a first time fee of $1,500 and pay the rest in installments. Stewart stated he paid $400 to $500 every two weeks. After Stewart made the initial $1,500 payment by check, Liebling requested he be paid only in cash. Stewart paid the remainder in cash.

¶ 9. Stewart testified after he hired Liebling and paid $1,500, he met with Liebling once every two weeks, sometimes once a week, and it was at these meetings that Liebling suggested the three dates on which Cori would be out of prison. Stewart testified Liebling said he could have Cori home by Father's Day of 1999. After Father's Day had passed, Stewart stated Liebling told him "he'd run into some trouble" getting Cori out and that he would have Cori home by Christmas of 1999.

¶ 10. By Christmas of 1999, Stewart had paid Liebling the full $5,000, but Cori was still in prison. Stewart testified after Christmas, Liebling requested an additional $500 in order to have Cori home by January 25, 2000, which was Cori's birthday. Stewart paid Liebling an additional $400, not being able to afford the last $100.

¶ 11. When Cori was not released by January 25, 2000, Stewart requested Cori's file and terminated representation by Liebling. Cori remained in prison until the summer of 2003. Stewart testified that Cori's sentence was reduced by one year due to good behavior.

¶ 12. Liebling testified he made no such assurances of dates on which Cori might be released, and separately submitted an affidavit swearing he did not make any representations that Cori could be released, or that he could even get Cori a reduction in his sentence. Liebling testified his only representation to Stewart was that he "would exert my best professional efforts on his behalf."

ANALYSIS

I. Whether the Complaint Tribunal erred in failing to admit Exhibit D-2

¶ 13. Exhibit D-2 contained three letters written by Cori to Liebling. Liebling sought to have these letters entered to support a recent fabrication theory. Cori had written these letters from prison. In these letters, Cori made no reference to getting out of prison by a certain date. The Tribunal ruled these letters were to be marked for identification purposes only.

¶ 14. The Bar objected to these letters being entered into evidence asserting these were being offered to prove a negative and also lacked relevancy. Liebling responded the letters were being offered to establish recent fabrication, to prove "our claim that the allegations made by these folks in 2002 are rebutted by the fact that letters in 2000 and 2001 make no mention of the fact that they had these complaints with respect to Mr. Liebling."

¶ 15. After the Bar registered its objections, counsel for Liebling was questioned extensively by the Tribunal regarding the admissibility of these documents. Even though the Bar made general, albeit incorrect, objections, the Tribunal ruled the letters to be inadmissible. The Tribunal's questions centered upon language found in 801(d)(1)(B) of the Mississippi Rules of Evidence.

¶ 16. M.R.E. 801(d)(1)(B) states: "[a] statement is not hearsay if: The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with his testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive. . . ."

¶ 17. In this matter, the declarant was Cori. Cori was neither present at the hearing, nor was he subpoenaed by either party. Stewart testified that Cori was out of prison and maintained a job and apartment. Cori was not available to be examined by either party regarding these letters. Accordingly, the Tribunal found the letters to be inadmissible. The Tribunal was correct in its finding, as these letters constitute hearsay, under M.R.E. 801(d)(1)(B). The Tribunal did not err in excluding these letters.

II. Whether the Petitioner failed to establish a violation of Rule 8.4 by clear and convincing evidence.

¶ 18. "The burden is on the Bar to show by clear and convincing evidence that an attorney's actions constitute professional misconduct." Attorney W.L. v. The Miss. Bar, 621 So.2d 235, 237 (Miss. 1993) (citations omitted). "Certainly, when it is performing its important duties, the Complaint Tribunal should employ the clear and convincing evidence standard." Levi v. Miss. State Bar, 436 So.2d 781, 784 (Miss.1983).

¶ 19. Liebling claims Cori is using the complaint process "as a mechanism to force Mr. Liebling to refund the fee he earned in this matter." Liebling further claims the allegation of promises of when Cori would be home was suspect because there was no mention of these alleged promises in the correspondence from Cori to Liebling, which was not...