Mississippi Bar v. Thompson, No. 2007-BA-00556-SCT.

• Decision Date: 19 June 2008
• Docket Number: No. 2007-BA-00556-SCT.
• Parties: The MISSISSIPPI BAR v. Gail P. THOMPSON.
• Court: Mississippi Supreme Court

5 So.3d 330

The MISSISSIPPI BAR v. Gail P. THOMPSON.

No. 2007-BA-00556-SCT.

Supreme Court of Mississippi.

June 19, 2008.

James R. Clark, Gwendolyn G. Combs, Jackson, attorneys for appellant.

Leonard McClellan, Jackson, attorney for appellee.

EN BANC.

WALLER, Presiding Justice, for the Court.

¶ 1. The Mississippi Bar appeals from a complaint tribunal's order imposing a one-year, retroactive suspension on Gail Thompson¹ for violating Rules 1.15, 5.3, and 8.4(a), (d), of the Mississippi Rules of Professional Conduct. We affirm the complaint tribunal's order with regard to its finding that Thompson violated Rules 1.15, 5.3, and 8.4(a), (d), but reverse its finding that Thompson did not violate Rule 5.5(b). Furthermore, we reverse the one-year, retroactive suspension and remand this case for consideration of the proper sanction(s) in light of the nine Liebling factors that must be examined in attorney discipline matters. Liebling v. The Mississippi Bar, 929 So.2d 911 (Miss.2006).

FACTS AND PROCEDURAL HISTORY

¶ 2. Gail Thompson employed Robert Tubwell, a former inmate at the Mississippi State Penitentiary at Parchman,² as a paralegal at the Thompson Law Firm in Tunica County. Thompson hired Tubwell based, in part, on his reputation as a successful writ writer while at Parchman, and his potential ability to generate business for Thompson's firm.

¶ 3. Mario McGaughy, an inmate serving a life sentence without the possibility of parole, met Tubwell while the two were at Parchman. When McGaughy learned that Tubwell was working as a paralegal, he wrote Tubwell at Thompson's law office. McGaughy sought to hire a lawyer to file his petition for post-conviction relief. A series of communications then ensued between Tubwell and McGaughy, McGaughy's mother, and McGaughy's stepfather.

¶ 4. On February 1, 2002, Tubwell wrote McGaughy on Thompson Law Firm letterhead.³ The letter stated that Tubwell had consulted with Thompson and that she had agreed to work with him on McGaughy's case. Tubwell stated that everything would be reviewed by an attorney and quoted McGaughy a fee of $500 for the preliminary work. He also requested that McGaughy send future correspondence to his Southaven apartment address,⁴ and provided McGaughy his personal home and cellular phone numbers.

¶ 5. It is somewhat unclear whether the $500 payment was made, and if so, to whom such payment was directed. McGaughy stated that his father paid $550 via money order, but could not confirm whether the payment was made to the Thompson Law Firm or to Tubwell himself. Tubwell acknowledged that he received fifty dollars for travel-related expenses, but claimed that he never received the $500 money order.⁵ Thompson also denied ever receiving anything from McGaughy. Regardless, the complaint tribunal found implicitly that the $500 payment was made.⁶

¶ 6. On March 18, 2002, Tubwell again wrote McGaughy on Thompson Law Firm letterhead. Tubwell advised McGaughy that he had a strong case and that there was a seventy-percent chance that this Court would reverse and grant a new trial.

¶ 7. Tubwell eventually obtained McGaughy's court records and mailed McGaughy his files, along with a pro se petition for post-conviction relief.⁷ Per Tubwell's instructions, McGaughy signed and had notarized the necessary documentation without realizing that he was filing pro se. This Court ultimately denied McGaughy's pro se petition for post-conviction relief.

¶ 8. Thereafter, Tubwell informed McGaughy that the next step would be to file a writ of habeas corpus in federal court. Tubwell later wrote McGaughy to inform him that he had begun work on filing the habeas corpus petition. But a petition for habeas corpus was never filed on McGaughy's behalf.

¶ 9. On November 18, 2004, McGaughy, on the belief that he had hired Thompson's law firm to represent him on his application for post-conviction relief and his federal habeas corpus petition, filed an informal complaint against Thompson with the Mississippi Bar. In its Amended Formal Complaint, the Bar alleged that Thompson violated Rules 1.2(a), 1.15, 1.3, 1.6(a), 5.3, 5.5, and 8.4(a),(d), of the Mississippi Rules of Professional Conduct.

¶ 10. A hearing was held on March 14, 2006, in which Thompson testified that she was unaware of Tubwell's correspondence with McGaughy, and claimed that he had taken advantage of her. Thompson stated that she trusted Tubwell and had instructed him that any cases he was working on had to come through her office. Yet she admitted that additional safeguards should have been implemented.

¶ 11. In addition to the McGaughy matter, the Bar inquired about Thompson's handling of client files after she moved her law office from Oxford to Tunica in 2000, and when she closed her Tunica practice in 2003. When Thompson moved her practice from Oxford to Tunica in 2000, she left some client files in a storage facility in Oxford. She admitted that those files had been lost. In 2003, Thompson closed her Tunica office after being suspended from the practice of law for a period of eighteen months.⁸ After closing the Tunica office, Thompson kept two file drawers of client files in a storage unit in Tunica. She testified that those file drawers were later moved to the home/office of Oxford attorney Alvin Chambliss. She explained that those file drawers remain locked because she lost the keys.

¶ 12. After hearing testimony and arguments, the complaint tribunal issued its opinion on March 16, 2007. The tribunal found that Thompson had not violated Rules 1.2(a), 1.3, 1.6(a), or 5.5 of the Rules of Professional Conduct. However, the complaint tribunal determined that Thompson had violated Rules 1.15, 5.3, and 8.4(a), (d). As a result, Thompson was suspended from the practice of law for a period of one year, effective from March 14, 2006.⁹ Thompson was further ordered to pay costs and expenses incurred by the Bar in the amount of $24.53.

¶ 13. Aggrieved by the complaint tribunal's ruling, the Bar appeals to this Court.

STANDARD OF REVIEW

¶ 14. When reviewing matters pertaining to attorney discipline, this Court "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. Miss. State Bar Ass'n., 517 So.2d 561, 564 (Miss.1987). However, the Court may grant deference to the tribunal "due to its exclusive opportunity to observe the demeanor and attitude of witnesses, including the attorney, which is vital in weighing evidence." The Miss. Bar v. Logan, 726 So.2d 170, 175 (Miss.1998) (quoting Parrish v. The Miss. Bar, 691 So.2d 904, 906 (Miss.1996)). The Bar bears the burden of proving by clear and convincing evidence that Thompson violated the rules of professional conduct. Logan, 726 So.2d at 175.

DISCUSSION

I. Whether Thompson failed to safeguard client property and/or improperly disclosed confidential client information.

A. Rule 1.15: Safekeeping Property.

¶ 15. The complaint tribunal found that Thompson failed to adequately safeguard client property by losing or misplacing client files.

¶ 16. Rule 1.15 requires lawyers to hold the property of others with the care required of a professional fiduciary. M.R.P.C. 1.15, cmt. The loss of client files constitutes a violation of Rule 1.15. In re Craig, 344 S.C. 646, 648-51, 545 S.E.2d 823 (2001); In re Evans, 175 Ariz. 404, 406, 857 P.2d 1258 (1993).

¶ 17. Thompson admitted to losing client files that she had placed in an Oxford storage unit. Although Thompson said that she returned important documents to clients "most times," she could not say that she had done so every time.

¶ 18. We find that Thompson violated Rule 1.15.

B. Rule 1.6: Confidentiality of Information.

¶ 19. The complaint tribunal found that Thompson did not violate Rule 1.6 because there was no proof that she divulged any confidential client information. With certain exceptions, Rule 1.6 generally prohibits the disclosure of information relating to the representation of a client, absent the client's informed consent. M.R.P.C. 1.6.

¶ 20. While Thompson admitted to losing the client files in Oxford, there is no evidence that any of those files were divulged. Likewise, there is no evidence that any of the client files from her Tunica office were disclosed.

¶ 21. We find that there is insufficient evidence to show that Thompson violated Rule 1.6.

II. Whether an attorney-client relationship existed between Thompson and McGaughy.

¶ 22. The complaint tribunal found that Thompson had not violated Rules 1.2(a) or 1.3 because no attorney-client relationship existed between Thompson and McGaughy. The Bar contends that Tubwell, acting as an agent for Thompson, communicated Thompson's consent to act as McGaughy's lawyer, and that Thompson should have known of McGaughy's reliance.

¶ 23. Rule 1.2(a) provides that a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are pursued. M.R.P.C. 1.2(a). Rule 1.3 requires a lawyer to act with reasonable diligence and promptness in representing a client. M.R.C.P. 1.3. For either rule to be implicated, an attorney-client relationship must exist.

¶ 24. The existence of an attorney-client relationship depends upon the circumstances and may be a question of fact. M.R.P.C., SCOPE. The Restatement (Third) of the Law Governing Lawyers, Section 14, (2000), states, in pertinent part, that:

A relationship of client and lawyer arises when:

(1) a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; and either

(a) the lawyer manifests to the person consent to do so; or

(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services....

Restatement (Third) of the Law Governing Lawyers § 14 (2000)....