Mississippi Bar v. Robb, 93-BA-01051-SCT

CourtUnited States State Supreme Court of Mississippi
Citation684 So.2d 615
Docket NumberNo. 93-BA-01051-SCT,93-BA-01051-SCT
PartiesThe MISSISSIPPI BAR v. R. Charles ROBB.
Decision Date20 June 1996

Michael B. Martz, Jackson, for appellant.

R. Charles Robb, Jackson, pro se.

James P. Cothren, Cothren Law Firm, Jackson, for appellee.

En Banc.

MILLS, Justice, for the Court:

I.

INTRODUCTION

The Mississippi Bar filed a Formal complaint against R. Charles Robb, a Mississippi attorney, on August 19, 1992, alleging the violation of four provisions of the Mississippi Rules of Professional Conduct.

The Complaint Tribunal heard the case on April 8, 1993. It issued an opinion and judgment ruling against Robb on July 30, 1993.

The Mississippi Bar, disappointed with the Tribunal's ruling, filed a notice of appeal assigning the following issues:

1. Whether the public reprimand imposed by the Complaint Tribunal was a sufficient sanction given the attorney's deceitful misconduct.

2. Whether the Complaint Tribunal erred in failing to impose discipline after finding there was a violation of Rule 3.4, Mississippi Rules of Professional Conduct.

3. Whether the Complaint Tribunal erred in failing to find a violation of Rule 4.1, Mississippi Rules of Professional Conduct.

Robb cross-appealed the judgment against him assigning the following issues:

A. Are the Conclusions of Law drawn by the Tribunal in error as a matter of law with regard to Rule 3.4(c), Mississippi Rules of Professional Conduct?

B. Was the Tribunal correct in finding that Robb made no false statement of material fact or law to a third party (Rule 4.1(a), MRPC) and if so does such finding merge the alleged violation of Rule 8.4(c), Mississippi Rules of Professional Conduct into such a finding?

C. Are the Conclusions of Law drawn by the Tribunal in error as a matter of law with regard to Rule 4.4, Mississippi Rules of Professional Conduct?

D. Was actual or constructive notice to Prisock, Mr. Benefield's representative, sufficient weight to change the proof to less than "clear and convincing" that Robb violated Rule 8.4(c), Mississippi Rules of Professional Conduct or any of the Mississippi Rules of Professional Conduct?

E. Do the alleged violations of Rule 8.4(a) & (d), Mississippi Rules of Professional Conduct merge into the specific violations charged?

F. Whether there were resultant damages from actions or inactions of Robb or did the damages result from the intervening actions or inactions of Prisock?

G. Is the weight of the evidence sufficient to support Prisock's actions or inactions to establish by "clear and convincing evidence" that Robb violated any Mississippi Rules of Professional Conduct which caused Mr. Benefield any damage?

II.

FACTS

Keith Benefield and his wife, Lola "Cookie" Westbrook, were divorced in 1986 and he was ordered to pay her $1,300 per month for fifteen years as a part of their property settlement agreement. Benefield, who had moved to Alabama, became delinquent in his payments. Westbrook then hired attorney R. Charles Robb to represent her in collecting the arrearage. On May 3, 1990, Robb wrote Benefield a letter in an attempt to collect the alleged arrearage owed. Robb warned Benefield of the prospect of contempt and imprisonment and asked that he make contact with Robb to discuss the matter. Benefield contacted Robb once but they were unable to resolve the dispute. Benefield then retained Kerry Prisock of Jackson to represent him.

Robb filed a contempt action against Benefield and made several efforts to set the matter for hearing. Prisock was successful in having the matter continued on three occasions. Finally, the parties appeared before Hinds County Chancellor Patricia D. Wise on January 28, 1991. It appeared to Chancellor On February 28, 1991, Prisock advised Benefield that he had to be out of town on March 15 and would obtain a continuance of the March 15 hearing. Robb objected to any continuance, as his attempts to resolve this matter had already been thrice delayed.

Wise that the matter would be somewhat controversial and she decided not to hear it on her ex parte day. Chancellor Wise requested that the parties try to reach an agreement prior to the case being reset, else the court would have to decide the matter. The parties failed to reach an agreement and the case was reset for March 15, 1991.

On March 11, 1991, according to Benefield, Prisock's secretary advised Benefield that a continuance was granted and a new setting would be scheduled when Prisock returned from his trip. Prisock filed an untimely motion for continuance on the same date.

Prisock's motion for continuance was never called up for hearing; no order of continuance was entered. To his credit, Robb advised the court that a motion for continuance had been filed in the case by Prisock. The hearing proceeded on March 15, 1991. Due to lack of opposition, Robb was successful in obtaining a contempt order against Benefield on April 3, 1991. Neither the Clerk of the Chancery Court nor Robb provided Prisock or Benefield with a copy of the order. The proposed order was prepared by Robb and submitted to the chancellor on March 19, 1991. Robb did not send a copy of the proposed order to Prisock "for criticism as to form only" as required by Uniform Chancery Court Rule 5.04.

On April 5, 1991, Prisock notified Benefield that he had received a letter from Robb, dated April 5, 1991, requesting that Benefield appear in his office on a mutually agreeable date for document production and a deposition.

Prisock and Robb thereafter engaged in several telephone calls concerning the deposition and the possibility of settling the dispute. All discussions between the two attorneys, prior to the deposition date, concerned the amount of money Benefield was to pay his ex-wife. Prisock threatened to file a petition in bankruptcy for Benefield. Prisock was operating under the assumption that the parties would amicably resolve their differences and submit a proposed agreed order to the court. At no time did Robb inform Prisock that the court had already made a decision and that an order had already been entered. 1

From April until August 17, 1991, the day of the purported deposition in Robb's office, Prisock's understanding was that he was to bring his client, and his client's tax records and other documents, to Robb's office for the purpose of negotiating a settlement of the dispute.

Prisock asked Robb if Prisock needed to get a court reporter for the August 17 deposition. Robb made it clear to him that Prisock did not need to make any arrangements for a court reporter, but did not expressly say that he would get one.

When Benefield and Prisock arrived at Robb's office on August 17, 1991, no court reporter was present. Prisock asked about the absence of a court reporter. Robb responded that he would make the deposition informal and would use only a tape recorder. Robb asked to see the documents brought by Benefield and asked if it was agreeable for him to make copies of them after the deposition. While the parties were engaged in a brief conversation regarding Benefield's financial condition and situation, the telephone rang. Robb answered with the phrase, "We're not open today." Robb had previously arranged with the Hinds County Sheriff's Office to use this statement to them as a signal that Robb's quarry, Benefield, was in the office. Less than ten minutes later, two Hinds County deputy sheriffs arrived at Robb's office and arrested Benefield.

Prisock asked one of the deputies the basis for the arrest. The deputy showed him the contempt order which had been furnished by Robb. Prisock then turned to Robb at which time Mr. Robb handed him a copy of the order. Benefield inquired "What's going After the deputies left with Benefield, Prisock asked Robb, "Where do we go from here?" Robb said that the next step was for Benefield to pay $10,000 to purge himself of the contempt. Stunned by the events he had witnessed, Prisock did not argue with Robb.

on?" as he was being arrested and escorted from the lawyer's office. Prisock assured his client that he would follow him shortly.

Benefield was held at the Detention Center in Hinds County and then at the Penal Farm for eight days until he was able to purge himself of the contempt and obtain a release.

According to Prisock, had he known his client was going to be arrested, he would not have brought him to Robb's office. He had been led to believe that they were meeting in an effort to resolve the dispute out of court, without having any indication that the chancellor had already decided the matter. He stated that at no time over the four-month period preceding Benefield's arrest had Robb given him any indication that the matter had been decided by the chancellor.

On August 30, 1991, Benefield discharged Prisock and hired other counsel.

In September 1991, Robb proceeded to have Benefield's wages at Prudential Insurance garnished.

On September 30, 1991, Chancellor Wise granted a stay of a second motion for contempt filed by Robb and appointed Special Master Charles Brewer to hear the case and to make a recommendation.

On October 29, 1991, Brewer filed a report in which he recommended setting aside the original order obtained by Robb as a result of the hearing of March 15, 1991, and entered on April 3, 1991. In the report, Brewer found that Prisock had filed a motion for continuance, but that he never called it up for hearing, and that he and his secretary were under the impression that a continuance had been granted when it had not; that Robb had informed Prisock that he did not agree to a continuance; that Robb was not notified of a setting on the motion, and did not receive an order of continuance from the court; that consequently Robb proceeded with the hearing on March 15, though he did advise the court that Prisock had filed a motion but that no order was entered; that the Court granted a civil contempt order which was entered on April 3,...

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