Mississippi Bar v. Lumumba, No. 2003-BA-02418-SCT.

• Decision Date: 17 March 2005
• Docket Number: No. 2003-BA-02418-SCT.
• Citation: 912 So.2d 871
• Parties: The MISSISSIPPI BAR v. Chokwe LUMUMBA.
• Court: Mississippi Supreme Court

912 So.2d 871

The MISSISSIPPI BAR v. Chokwe LUMUMBA.

No. 2003-BA-02418-SCT.

Supreme Court of Mississippi.

March 17, 2005.

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Adam Bradley Kilgore, Michael B. Martz, and Gwendolyn G. Combs, Jackson, attorneys for appellant.

Imhotep Alkebu-Ian, Adjoa Artis Aiyetoro, Jeffrey L. Edison, attorneys for appellee.

EN BANC.

SMITH, Chief Justice, for the Court.

¶ 1. This is an appeal by the Mississippi Bar of a Complaint Tribunal decision to impose a public reprimand upon Chokwe Lumumba, an attorney licensed to practice law in Mississippi.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 17, 2001, Lumumba appeared before Leake County Circuit Judge Marcus D. Gordon for a hearing on post-trial motions in a criminal case. During the course of the hearing, Lumumba made the following statement to Judge Gordon: "Look, Judge, if we've got to pay for justice around here, I will pay for justice. I've paid other judges to try to get justice, pay you, too, if that's what is necessary." Other statements were also made to Judge Gordon. Judge Gordon cited Lumumba for contempt, fined him $500, and ordered him to serve three days in the Leake County Jail.¹

¶ 3. Lumumba appealed the contempt citation to the Mississippi Court of Appeals, which affirmed the trial court on August 26, 2003. See Lumumba v. State, 868 So.2d 1018 (Miss.Ct.App.2003). In its decision, the Court of Appeals stated:

Lumumba's behavior was done in the presence of the court and intended to embarrass or prevent orderly administration of justice. Further, it was both disrespectful to the judge and disruptive to court proceedings. We cannot fathom any situation that would warrant such behavior. This Court finds that the statements made toward the judge about how he can better get along with lawyers in the future, about the judge's "henchmen," about being proud to be thrown out of the courtroom, and about paying the judge for justice were made to embarrass the court or impede the administration of justice. This Court finds that the statements go far beyond zealous representation of one's client, and makes a mockery of the court and its proceedings.

Id. at 1021. Lumumba spent 1 and ½ days in jail.

¶ 4. In October 2001, Jimmie Gates, a reporter for the Jackson Clarion-Ledger newspaper, interviewed Lumumba by phone concerning the contempt citation. During the interview, Lumumba told Gates that Judge Gordon "had the judicial temperament of a barbarian." Thereafter, on October 31, 2001, the Clarion-Ledger published an article which included the following:

Jackson lawyer Chokwe Lumumba is appealing a contempt charge, saying the judge who had him jailed has "the judicial temperament of a barbarian." Unapologetic for the comments that landed him in hot water, Lumumba said Tuesday, "The judge was wrong."

As a result of these events, the Mississippi Bar filed a formal complaint against Lumumba with this Court, which was heard by a Complaint Tribunal on April 22, 2003.

¶ 5. The Tribunal found Lumumba had violated Rules 3.5(c), 8.4(a), and 8.4(d) of the Mississippi Rules of Professional Conduct. The Tribunal determined a public reprimand was an appropriate punishment. The Mississippi Bar disagreed and appealed to this Court, claiming the Tribunal erred by failing to find that Lumumba violated Miss. R. Prof'l Conduct 8.2(a), and further claiming that a public reprimand was not the appropriate punishment for Lumumba's conduct. Instead, the Mississippi Bar wanted Lumumba suspended from the practice of law for an unspecified period of time. The Mississippi Bar stated that the length of suspension would be left up to this Court to determine. Lumumba cross-appealed, claiming his conduct did not violate the Mississippi Rules of Professional Conduct, and further claiming that he should not receive a public reprimand.

¶ 6. We allowed the Center for Constitutional Rights to file an amicus curiae brief, urging that Lumumba's conduct did not violate the Mississippi Rules of Professional Conduct, and that Lumumba's conduct is entitled to First Amendment protection.

ANALYSIS

¶ 7. This Court has exclusive jurisdiction over all matters pertaining to attorney discipline, and is "the ultimate judge of matter[s] arising under the Rules of Discipline for the Mississippi Bar." Miss. Bar v. Thompson 797 So.2d 197, 198 (Miss.2000), quoting Broome v. Miss. Bar, 603 So.2d 349, 354 (Miss.1992). Upon appeal this Court reviews the entire record and the conclusions of the Tribunal de novo. Rule 9.4 of the Rules of Discipline for the Mississippi Bar; Broome, 603 So.2d at 353 (citing Steighner v. Miss. State Bar, 548 So.2d 1294, 1297 (Miss.1989)). The Court may impose sanctions of either more or less severity than those imposed by the Complaint Tribunal, although deference may be given to the Tribunal's findings because of its opportunity to observe the demeanor and attitude of the witnesses. Id. (citing Miss. State Bar v. Strickland, 492 So.2d 567 (Miss.1986)). In order to be subject to discipline, an attorney must be shown by clear and convincing evidence to have violated a rule of professional conduct. Miss. Bar v. Pels, 708 So.2d 1372 (Miss.1998).

¶ 8. For clarity and order, the arguments presented are consolidated into the following three issues:

I. Did Lumumba violate Rules 3.5 and 8.4 of the Mississippi Rules of Professional Conduct?

II. Did Lumumba violate Rule 8.2 of the Mississippi Rules of Professional Conduct?

III. If Lumumba is found to have violated the Rules of Professional Conduct, what is the appropriate punishment?

I. Rules 3.5 and 8.4 of the Mississippi Rules of Professional Conduct.

¶ 9. We begin with an examination of the record to determine whether, by clear and convincing evidence, Lumumba violated Rules 3.5 and 8.4 as determined by the Tribunal.

Rule 3.5

¶ 10. Rule 3.5(c) states that "[a] lawyer shall not: . . . engage in conduct intended to disrupt a tribunal." The Tribunal unanimously found that Lumumba's statement to Judge Gordon about paying for justice violated this rule. The Tribunal also found that Lumumba's other comments to Judge Gordon did not violate Rule 3.5, but were "a close call."

¶ 11. The Bar says Lumumba's comments to Judge Gordon were abusive and went beyond advocacy, and that his conduct was belligerent and theatrical. The Bar directs us to the comment to Rule 3.5 which states:

The advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

Miss. R. Prof'l Conduct 3.5 cmt.

¶ 12. Lumumba asserts that the Bar did not prove a violation Rule 3.5(c) by clear and convincing evidence. He says he was merely trying to make a record for his client, and that Judge Gordon abruptly stopped him and ordered him from the courtroom. Lumumba further asserts that his contempt citation is no proof that he disrupted courtroom proceedings for purposes of bar discipline.

¶ 13. The amicus argues that Lumumba did not violate Rule 3.5(c), focusing on the intent requirement of the rule. Lumumba's intent, they claim, was not to disrupt the proceedings at all, but rather to engage the court and to make a record for his client. To substantiate this position, the amicus directs us to the following testimony provided by Lumumba to the Tribunal:

[W]hat I was saying to the Court is that no, just fining me is not going to stop me from raising the issues for my client.

And that's the way that I think that we're obligated to practice as lawyers. . . . [H]ere's a man that's getting ready to face life in prison . . . probably beyond his life expectancy.

So . . . on one hand, he's . . . telling me I've got to pay a fine. On the other hand, he's telling my client that he's got to spend life in prison. To me, it's more important for my client's interest to be represented, even if I've got to pay the fine. And so part of representing my client's interest is to make sure that the appropriate record was to be made.

We were in a situation [w]here not only was the judge denying our motion, but this was a judge . . . who was doing his best to close us down to get out of there, without . . . making a record. Even though at one point he relented, at the end, he was still doing the same thing.

[A]t this point . . . [w]e would have to appeal it, and we would have no further chance to make a record, unless it came back on postconviction [sic], which is something the Supreme Court has to allow you to do.

[E]ssentially what I was saying is that using the contempt power was not going to be sufficient to stop me from making a record . . . for my client.

[A] lot of times [gross miscarriages of justice] happen because records aren't made. . . . A lot of times that happened because people want to do the comfortable thing with the judge rather than sometimes challenge the judge when the judge is wrong.

[S]ometimes the judge doesn't understand what you're saying, sometimes he confuses what you're saying, sometimes he may be mad about something else and ignoring what you're saying. . . . And so what you do is make sure that you are heard.

Once you are heard, then . . . more times than not, judges will turn around and step back and say, well, you know, if you've got a reasonable position.

¶ 14. Thus, it is clear that Lumumba's entire defense to the claim that he violated Rule 3.5(c), is his belief that, in order to "make a record," he had to do what he had to do. We find no indication that Lumumba seriously...