Mississippi Bar v. Logan, 96-BA-01077-SCT.

• Decision Date: 12 November 1998
• Docket Number: No. 96-BA-01077-SCT.,96-BA-01077-SCT.
• Citation: 726 So.2d 170
• Parties: The MISSISSIPPI BAR v. Floyd J. LOGAN.
• Court: Mississippi Supreme Court

726 So.2d 170

The MISSISSIPPI BAR v. Floyd J. LOGAN.

No. 96-BA-01077-SCT.

Supreme Court of Mississippi.

November 12, 1998.

Rehearing Denied January 14, 1999.

Michael B. Martz, Jackson, for Appellant.

James A. Becker, Jr., Jackson, Carter O. Bise, Gulfport, for Appellee.

EN BANC.

WALLER, Justice, for the Court:

INTRODUCTION

¶ 1. On October 12, 1995, The Mississippi Bar filed a formal complaint against Logan alleging that he had violated numerous rules of professional conduct. Trial was held before a Complaints Tribunal, which entered judgment dismissing the Bar's complaint. The Mississippi Bar now appeals to this Court.

I. THE COMPLAINT TRIBUNAL'S DECISION TO DISMISS THE CHARGES THE BAR FILED AGAINST MR. LOGAN WAS ARBITRARY AND CAPRICIOUS, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, MANIFESTLY WRONG AND IN ERROR AS A MATTER OF LAW.

II. THE COMPLAINT TRIBUNAL IMPROPERLY FAILED TO IMPOSE DISCIPLINE AGAINST MR. LOGAN FOR HIS MISCONDUCT.

STATEMENT OF THE FACTS

¶ 2. Joe Sam Owen ("Owen") and Wynn Clark ("Clark"), both attorneys, filed a complaint with the Mississippi Bar Association ("Bar") alleging that Logan had violated certain rules of professional conduct. After investigation of the informal complaint, the Bar filed a formal complaint against Logan alleging violations of Rules 3.3(a)(1), 3.5(a and b) and 8.4(a, d, and f) of the Mississippi Rules of Professional Conduct. The basis of the complaint filed by the Bar was that Logan had impermissible ex parte communication with Magistrate Jack Weldy ("Magistrate Weldy"), who at the time was a Magistrate for the Mississippi Supreme Court.¹

¶ 3. The allegations of Clark and Owen stem from the matter of George Williams, Executor, et al. v. Owen, et al., 613 So.2d 829 (Miss.1993). Logan represented George Williams and the estate, while Clark represented Owen.² The litigation arose over the question of how much of the life insurance proceeds of Charles Williams, deceased,³ should be applied to satisfy a Williams-Owen partnership note to the Hancock Bank. Charles Williams had purchased life insurance and named the bank as beneficiary. Charles Williams, who had individual notes with the bank as well as the partnership note with Owen, apparently took out the insurance without the knowledge of Owen and paid all premiums from his personal checking account. The trial court applied the proceeds to satisfy the partnership note.

¶ 4. This Court reversed and ordered Owen to contribute to the estate one-half of the partnership debt, which was $99,015.⁴ This Court found that Owen and Williams were equally liable for the debts and basic fairness required that each be required to pay one-half (½) of the debt. Id. at 835. Owen filed a petition for rehearing that was denied by mandate of this Court. However, neither the original decision nor the mandate denying the petition for rehearing addressed the issue of interest on the sums ordered contributed by Owen.⁵

¶ 5. Logan wrote a letter to the Supreme Court Clerk requesting that the interest run from the date of the lower court's judgment. The clerk's office instructed Logan to file a formal motion with the Court. Logan filed a motion styled, "Motion To Allow Interest on the Judgment," which was summarily denied by this Court. Subsequently, Logan mailed for filing to the clerk's office a motion to reconsider, or, in the alternative for clarification by written opinion. The clerk's office stamped this motion "received" and entered it into the court's tracking system, but returned the original to Logan with an explanation that court rules did not allow for such a filing.

¶ 6. Logan testified that he had never had this happen before and he was confused as to how the clerk's office could summarily deny his motion. He then contacted the clerk's office inquiring as to why his motion was returned by someone in the clerk's office. Failing to get a satisfactory explanation, he then called several lawyers who he felt might be able to help him or explain what actions he should take next. Failing there and still confused, he placed a telephone call to this Court and ended up talking with Magistrate Weldy.

¶ 7. Logan's telephone records reveal that the number he called on December 4, 1992, was a number in the legal office of the Mississippi Supreme Court. It is unclear whether he specifically called and asked for Magistrate Weldy or whether in response to his questions, he was placed in contact with Magistrate Weldy. It is clear that Logan and Magistrate Weldy knew each other well. He testified that his contact with Magistrate Weldy was purely an effort to seek procedural guidance concerning the motion that the clerk's office had refused to file, in his opinion wrongly, and which was sent back to him. Magistrate Weldy advised him to reduce his dilemma to writing and send it to him and he would check on the status of it. Neither Clark nor Owen were advised of this call, or any of the other five calls which were made, nor were they advised that Logan subsequently sent a letter to Magistrate Weldy.

¶ 8. The following time line sets forth the events which are relevant to issues before this Court.

08/19/92 Original decision of this Court is handed down

09/01/92 Petition for rehearing filed by Owen

09/25/92 Williams' answer served

09/30/92 Owen's motion for leave to file reply served

10/29/92 Petition for rehearing denied and opinion modified by this Court.

11/02/92 Logan requested interest pursuant to Rule 37

11/04/92 Owen's response to motion to allow interest

1/19/92 Supreme Court denies Logan's motion to allow interest

11/25/92 Logan writes letter to bank objecting to disbursement of funds and advising that he had filed motion for reconsideration with this Court on the issue of interest

11/25/92 Logan's motion to reconsider or in the alternative, for clarification by written opinion is served

12/01/92 Logan's motion to reconsider or in the alternative, for clarification is returned un-filed to him by the clerk's office

12/03/92 Letter from Owen to Supreme Court Clerk confirming that motion for reconsideration was not accepted but returned unfiled to Logan

12/04/92 Logan calls Magistrate Weldy

12/07/92 Logan sends letter to Magistrate Weldy & places phone call to him

12/09/92 Owen writes bank advising that there are no motions before this Court and the funds may be disbursed

12/16/92 Logan calls Magistrate Weldy

12/18/92 Logan writes letter to bank advising that matter of interest was not concluded and Supreme Court's decision was not final

12/22/92 Logan calls Magistrate Weldy

12/29/92 Logan writes second letter to the bank and advises them that issue of interest has not been finally decided by this Court

01/28/93 This Court, sua sponte, withdraws its opinion and mandate and issues a substitute opinion and mandate

02/02/93 Logan writes letter to bank pointing out that he was correct in asserting that the issue of interest was still before the Court

02/17/93 Logan files, in the lower court, a motion to determine interest due on the judgment

02/19/93 Logan, by letter, invites Judge Carr to personally contact Justice Dan Lee and have him clarify the meaning of the mandate

02/22/93 Judge Carr responds that personal contact with Justice Lee would be improper

03/08/93 Owen files petition for extraordinary relief with this Court

09/29/93 For first time, Logan, during his deposition, acknowledges ex parte contact with Weldy

¶ 9. The following is a list of Logan's activities and conduct which the Bar claims constitutes impermissible ex parte communication with a judicial official.

12/04/92 Logan contacts Judge Magistrate Weldy by telephone.

12/07/92 Logan, pursuant to request from Magistrate Weldy, sends letter to Magistrate Weldy.

12/07/92 Logan places 1 minute call to Magistrate Weldy.

12/16/92 Logan places two 1 minute calls to Magistrate Weldy.

12/22/92 Logan again calls Magistrate Weldy, who advises him that the Court had sufficient information before it to proceed.

¶ 10. Because the contents of the letter that Logan sent Magistrate Weldy are important as to whether he sought to influence a judicial official, the letter is reproduced below.

I (Logan) am writing this letter to you in an effort to resolve some confusion over the issue of interest on a sum which was awarded to my clients by the Mississippi Supreme Court in the above cause.

This case originally arose as a dispute over the application of certain life insurance on the life of Charles Williams. The case was tried before a chancellor without a jury, and he ruled that sum of $198,029.29 in insurance should be applied to partnership debt of Charles Williams and Joe Sam Owen. This ruling was made on July 25, 1988. We appealed this ruling to the Supreme Court of Mississippi on the basis that the Estate of Charles Williams was entitled to reimbursement by Joe Sam Owen of one-half of his life insurance proceeds applied to the partnership debt. On August 19, 1992, the Court ruled in our favor and awarded us $99,015.00 and reversed the trial court judgment and rendered judgment for us in that sum.

Joe Sam Owen filed a petition for rehearing, which was denied on October 29, 1992. At that time, I wrote a letter to the Clerk requesting that the mandate provide for interest on the $99,015.00 awarded to us by the Supreme Court which had erroneously been denied us by the trial court's opinion on July 25, 1988. I was instructed to file a motion to allow interest on the mandate, and did so on November 4, 1992. The Court denied my motion to allow interest on November 19, 1992. The apparent grounds were that under Rule 40, I could not file a motion to reconsider denial of a petition for rehearing. I was confused by this determination, and on November 25, 1992, I again filed a motion to reconsider the denial of my request for interest on the mandate. A copy of the motion to reconsider is attached for your information.

I would like to first emphasize that on page 16

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