Mississippi Bar v. Land

Citation653 So.2d 899
Decision Date21 December 1994
Docket NumberNo. 93-BA-00806,93-BA-00806
PartiesThe MISSISSIPPI BAR v. John W. (Jack) LAND.
CourtUnited States State Supreme Court of Mississippi

Charles J. Mikhail, Pascagoula, Michael B. Martz, Jackson, for appellant.

J. Niles McNeel, McNeel & Ballard, Louisville, Frank D. Montague, Jr., Montague Pittman & Varnado, Hattiesburg, for appellee.

Rebecca Lee Wiggs, Watkins & Eager, Jackson, for amicus curiae.

En Banc.

SMITH, Justice, for the Court:

The Mississippi Bar charged attorney John W. (Jack) Land with violations of Rules 3.3, 3.4, and 8.4 of the Professional Rules of Conduct. The genesis of the charges was a civil action wherein Billy Ray Stevens, while driving past the home of Jim Guthrie in Petal, Mississippi was injured in his left eye by a foreign object that flew through the open window of his automobile. A lawn mower was supposedly being operated at that time. The plaintiff Stevens' case centered on a rock allegedly thrown from the lawn mower. Subsequent interviews by the Guthries' insurance representative, Rachel Cole of State Farm Insurance, revealed that the Guthries' son, David, age 11, and a friend both mowed the lawn before noon and shot a BB gun across the road later that same day.

Attorney Michael B. McMahan, representing Stevens, wrote Guthrie a letter requesting information about Guthrie's lawn mower in order to possibly file a suit against the lawn mower manufacturer. The ultimate suit filed by Stevens was against Guthrie for negligent operation of the lawn mower. Attorney Land was aware of the BB gun incident and accompanying photograph as investigated and determined to have occurred by Rachel Cole of State Farm. Land noted in his file that the gun did not relate to the civil action and further reminded himself that information concerning the gun was not to be produced via discovery for the plaintiff Stevens. Although Land filed for a protective order regarding production of some of the evidence, he proceeded to file responses to the plaintiff's interrogatories without seeking a determination by the court or protective order concerning the interrogatories in question.

Land's runner mistakenly left Land's file with McMahan, and McMahan went through it discovering the BB gun information and photo therein. Stephen's civil suit was amended to include Land and State Farm as defendants and alleged negligent use of the BB gun and tortious interference with the suit by concealing evidence and giving false discovery responses.

The primary conduct cited by the Bar against Land included making false statements of fact, failing to disclose material facts and generally dishonest conduct. Land denied all allegations of misconduct in his answer to the formal complaint. The Complaint Tribunal unanimously dismissed the Bar Complaint finding no misconduct by Land. Convinced that Land's conduct was violative of the professional conduct rules and warranted discipline, the Bar appealed to this Court and framed the issues for review as follows:

I. IS THE EVIDENCE CLEAR AND CONVINCING THAT JOHN W. (JACK) LAND VIOLATED THE RULES OF PROFESSIONAL CONDUCT IN QUESTION? (Rule 3.3(a)(1) & (a)(2), Rule 3.4(a), and Rule 8.4(c & d)).

II. IF SO, WHAT DISCIPLINE WOULD BE APPROPRIATE UNDER THE FACTS AND CIRCUMSTANCES OF THIS CASE AND APPLICABLE LAW?

Although review of the evidence by this Court is de novo, deference may be given to the findings of the Complaint Tribunal due to its exclusive opportunity to observe the demeanor and attitude of the witnesses However, we find that the tribunal incorrectly characterized this matter as a discovery dispute in its early stages, not warranting discipline against Land. The tribunal misapprehended the Rules of Professional Conduct in failing to note that Land's responding to certain interrogatories without revealing the BB gun incident constituted misconduct. Land clearly knew of its existence and relevancy as to causation of the injury in Stevens' lawsuit. This conduct certainly amounted to conduct involving dishonesty, deceit, misrepresentation, obstructing another party's access to evidence, conduct prejudicial to the administration of justice, and both failure to disclose a material fact and making a false statement of material fact to a tribunal.

including the attorney, which is vital in weighing the evidence. Broome v. Mississippi Bar, 603 So.3d 349, 353 (Miss.1992); Mississippi State Bar v. Strickland, 492 So.2d 567, 571 (Miss.1986); Levi v. Mississippi State Bar, 436 So.2d 781, 782 (Miss.1983).

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. Mississippi Bar, 621 So.2d 235, 237 (Miss.1993); Attorney Q. v. Mississippi State Bar, 587 So.2d 228, 232 (Miss.1991). The Bar met its burden against Land. We find that Land's actions and conduct constitute professional misconduct. We must reverse the tribunal as to its finding of no misconduct by Land.

STATEMENT OF THE FACTS
BACKGROUND EVENTS

On May 26, 1990, Billy Ray Stevens was driving through a residential area in Petal, Mississippi and drove past the home of Jim Guthrie. Stevens, in a deposition stated: "Whenever I went through there I heard a lawn mower and I looked over and I looked back ahead of me and then something hit me." Stevens testified he suffered an injury to his left eye. The report of Stevens' doctor supported that Stevens suffered "significant loss of vision" and that his chance for recovery of sight was "very minimal." Subsequent interviews by the Guthries' insurance representative, Rachel Cole, revealed the Guthries' son, David, age 11, and a friend both mowed the lawn and shot a BB gun across the road that same day; at one point they heard a car slow down. Later a man came to the Guthries' home and reported that someone had been shot in the eye. A chronology of relevant events, taken largely from Rachel Cole's investigation of this claim, appears as follows:

May 26, 1990--Hospital records indicate Billy Ray Stevens seen at the emergency room of Forrest General Hospital at approximately 1315 hours, or 1:15 p.m., following an incident in which he suffered an eye injury. Report indicates Stevens suffered significant loss of vision with minimal chance of recovery in his left eye.

March 12, 1991--R. Cole interviews Jim Guthrie's wife, Sherrye, and son, David, concerning the events leading to the claim of injury by Billy Ray Stevens.

May 26, 1990--According to Sherry Guthrie, she remained inside the Guthrie's residence while her son, David, went outside to mow the lawn. David began mowing and was joined by his neighbor/friend, Ashley McAlexander. Sherry Guthrie stated the boys mowed the yard "before lunch up until about 12 o'clock." The boys then came into the house, ate lunch, and then rested. They later went back outside to play. Later Sherrye discovered from Ashley McAlexander's father that the boys had been shooting a bb gun while they were playing. When questioned, David admitted to his mother it was possible they had shot a man with the bb gun.

David Guthrie, recalled that he, then age 11, and Ashley McAlexander mowed the lawn on May 26, 1990. Afterwards, the boys "got tired" and "went inside to get some water." They next went back outside to play at their clubhouse, found the bb gun and began shooting "across the road." David stated the boys at one point heard a car slow down, got scared, and hid both themselves and the gun. They went back inside and later a man in a white truck came to the Guthries' door and reported By letter dated July 17, 1990, Attorney Michael B. McMahan, representing Stevens, the plaintiff, wrote a letter to the defendant, Jim Guthrie, requesting information about Guthrie's lawn mower in order to investigate the possibility of a suit against the lawn mower manufacturer. McMahan also wrote to Guthrie's insurance company, State Farm, requesting an interview with Guthrie. McMahan informed State Farm he would like to just "lay everything out on the table," and to "freely exchange facts." Ultimately suit was filed against Guthrie on behalf of Stevens for $25,000 alleging negligent operation of the lawn mower, resulting in serious injury to Stevens' eye. On March 8, 1991, Attorney Jack Land informed McMahan that he had been employed to defend Guthrie in this cause.

that earlier that day someone had been shot in the eye nearby.

Correspondence between the two attorneys, McMahan and Land, concerning the case continued, with depositions scheduled and with McMahan continuing to request information about the lawn mower. The deposition of the plaintiff, Stevens, was taken by Land on April 3, 1991. In the deposition the only theory discussed of what hit Mr. Stevens in the eye was Mr. Stevens' belief that a rock had hit him as he drove past the Guthrie residence. Stevens recalled a lawn mower being operated in the Guthrie's yard at that time.

Stevens' attorney filed a motion for protective order on April 18, 1991, to have the depositions of additional plaintiff's witnesses postponed until depositions of defendant Guthrie and his son could be taken. The next day, Land filed a motion for protective order on behalf of Guthrie to preclude plaintiff from taking the deposition of or obtaining the claim file from Guthrie's insurance representative, Rachel Cole. Land asserted this file contained privileged information, not discoverable.

THE CONDUCT

Answers to plaintiff's interrogatories and responses to his requests for production were submitted by Land on behalf of Guthrie on April 15, 1991. Land stated Guthrie first submitted his answers to this discovery to Land, who typed and returned them, and instructed Guthrie to "call him immediately if any incorrect or inadequate replies existed." The following information was included therein:

REQUEST NO. 4: A copy of any statements taken, concerning the accident, by you or anyone acting on your behalf.

RESPONSE: Defendant...

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