Mississippi State Bar v. Blackmon

• Decision Date: 15 April 1992
• Docket Number: No. 89-BA-1161,89-BA-1161
• Citation: 600 So.2d 166
• Parties: MISSISSIPPI STATE BAR v. Edward BLACKMON, Jr
• Court: Mississippi Supreme Court

Page 166

600 So.2d 166

MISSISSIPPI STATE BAR v. Edward BLACKMON, Jr.

No. 89-BA-1161.

Supreme Court of Mississippi,

April 15, 1992.

Dissenting Opinion of Justice Banks May 13, 1992.

Michael B. Martz, Mississippi State Bar, Jackson, for appellant.

John L. Walker, Tomie T. Green, Walker & Walker, Jackson, for appellee.

En Banc.

ROY NOBLE LEE, Chief Justice, for the court:

Following an informal complaint and the initial investigation, the Committee on Complaints directed that a formal complaint be filed against Mr. Edward Blackmon, Jr., and the State Bar subsequently filed a Formal Complaint against him on November 5, 1986. The formal complaint alleged that Mr. Blackmon had violated certain disciplinary rules of the Code of Professional Responsibility, specifically DR1-102(A)(5, 6), DR2-106(A, B), DR7-102(A)(3, 4, 5, 6, 7), and Miss.Code Ann. Sec. 73-3-35 (1972) (as amended).

After this Court designated a Complaint Tribunal to conduct a hearing on the formal complaint, Mr. Blackmon filed an answer. He also moved that the proceedings be bifurcated so that the initial proceeding would decide solely the question of whether he had violated any disciplinary rules and a separate proceeding would determine the discipline to be imposed, should any violations be found. The Tribunal granted Mr. Blackmon's motion.

In summary, the Complaint Tribunal concluded that Mr. Blackmon had engaged in conduct prejudicial to the administration of justice; had knowingly failed to disclose that which he was required by law to reveal; had knowingly used false evidence or a false statement of facts; and had violated his oath as an attorney. There was no finding or inference by the Tribunal that Blackmon's failure to ascertain his clients bona fide residence was motivated by any malicious, willful, deceitful or fraudulent intent. The Tribunal further found Mr. Blackmon had not participated in the creation or preservation of false evidence, nor had he counseled or assisted his client in conduct known to be illegal or fraudulent, nor had he charged or collected an illegal or clearly excessive fee, nor had he engaged in any other conduct adversely affecting his fitness to practice law.

The parties agreed, however, to waive the holding of any further evidentiary hearings and further agreed to the submission of legal memoranda based upon the evidence already introduced with regard to the issue of discipline. Each party submitted memoranda and after considering the violations, the Complaint Tribunal entered an Opinion and Judgment on September 14, 1989, imposing a public reprimand on Mr. Blackmon for his professional misconduct.

The Bar filed an appeal. Mr. Blackmon filed his reservation of right to file a motion to dismiss appeal and notice of cross appeal, and submitted to the Court his willingness to accept the Opinion and Judgment of the Complaint Tribunal, as well as the punishment imposed, in order to bring to a conclusion the proceedings which had been pending against him by the Mississippi State Bar since April 23, 1986.

ISSUES ON APPEAL (as stated by Appellant)

I. Did the Complaint Tribunal err by finding that the Appellee, Edward Blackmon, Jr. had not charged and collected an excessive and unreasonable attorney's fee in violation of DR2-106(A and B) of the Code of Professional Responsibility in his representation of Johnny Earl Brown, a minor?

II. Did the Complaint Tribunal err when it did not impose discipline more severe than a public reprimand on the Appellee for his violations of the Code of Professional Responsibility?

ISSUES ON CROSS-APPEAL (as stated by Appellee)

A. Whether the appeal of the Tribunal's ruling by the Mississippi State Bar in order to enhance appellee's punishment violates plaintiff's Fifth and Fourteenth Amendment rights under the United States and State of Mississippi Constitutions?

B. Whether the Mississippi State Bar's refusal to recommend punishment to the Tribunal, estops the Mississippi State Bar from contesting on appeal the Tribunal's punishment and/or whether the Mississippi State Bar waived its right to appeal to enhance punishment?

C. Whether the Tribunal's opinion and judgment that appellee's conduct violated Rules of Discipline were arbitrary and capricious, unsupported by clear and convincing evidence and manifestly wrong?

D. Whether the Tribunal's imposition of a public reprimand as discipline upon appellee was arbitrary and capricious, excessive and manifestly wrong?

E. Whether the Tribunal's ruling concerning pre-trial discovery and evidentiary matters denied Mr. Blackmon's due process of law and fundamental fairness rights guaranteed under the United States and Mississippi Constitutions and the Mississippi Rules of Civil Procedure?

F. Whether the prosecution of Edward Blackmon through a disciplinary system which systematically excludes Black attorneys from the disciplinary process, except as respondents, violates Edward Blackmon's due process, equal protection and fundamental fairness rights guaranteed under the United States and the State of Mississippi Constitutions?

STATEMENT OF THE FACTS

Johnny Earl Brown, the sixteen year old son of Christine Williams and Naron Bouldlin, was struck by a truck hauling a trailer loaded with cotton and driven by Robert Riddell in Canton, Mississippi on October 13, 1984. As a result, Johnny Earl suffered severe injuries to his head and the left side of the body. He was confined to the University of Mississippi Medical Center from approximately October 13, 1984, until January 4, 1985, and again from March 12, 1985, until April 19, 1985.

Originally, Mrs. Williams retained George Nichols, an attorney from Canton, Mississippi, to represent her and her minor son, Johnny Earl Brown a/k/a Johnny Earl Pate. Thereafter, Mr. Nichols associated Mr. Blackmon as lead counsel along with his partner, Ferr Smith, of the firm Blackmon and Smith, also of Canton, Mississippi.

Mrs. Williams entered into a retainer/contingency fee contract with Blackmon and Smith. Under the contract, Mrs. Williams would compensate Blackmon and Smith at the rate of forty percent (40%) "of all monies received" by Mrs. Williams on behalf of Johnny Earl. According to Mr. Blackmon, the contract was based on his assessment that a suit would have to be filed because Attorney Nichols had been unsuccessful in any settlement negotiations. At the time Mrs. Williams entered into the contract with Mr. Blackmon and Mr. Smith, she and Johnny Earl were both residents of Madison County, Mississippi, living in a home in which Mrs. Williams had lived her entire life.

On behalf of Johnny Earl, by and through his mother, Mrs. Williams, Mr. Blackmon filed a complaint in the Circuit Court of Madison County, Mississippi, against Robert Riddle and Charles Riddle who were doing business as Paragon Gin Company. Mr. Blackmon conducted some investigation prior to filing the complaint, but, for the most part Mr. Blackmon and Mr. Smith maintained their customary procedure whereby Smith would communicate directly with the client and conduct investigations, and Mr. Blackmon would handle the litigation and any settlement negotiations.

Mrs. Williams testified that Mr. Smith and Mr. Blackmon asked her to move Johnny Earl to Jackson or to Hinds County, Mississippi, in order to protect the integrity of their case. There is evidence that on more than one occasion Mr. Smith discussed such a move with Mrs. Williams; however, Mrs. Williams testified that she told him and Mr. Blackmon that she could not afford to move. Neither Mrs. Williams nor Johnny Earl ever moved to Jackson or to Hinds County nor do either have relatives who live in Jackson or Hinds County.

The parties settled the case prior to the scheduled date of trial in a structured settlement. Consistent with his usual practice, defense counsel prepared the documents necessary to consummate the settlement, including a petition to appoint a guardian, a decree authorizing a guardianship, a petition for authority to settle a doubtful claim and an order authorizing settlement. Before these documents could be drafted, defense counsel needed certain information about Mrs. Williams and her son and requested that Mr. Blackmon and Mr. Smith provide this information. The information included an address for Johnny Earl and Mrs. Williams so that the guardianship would be filed in the appropriate county. In preparing the documents, defense counsel left certain information incomplete such as the amount of attorney's fees that were being requested to be awarded to Johnny Earl and the amount of the outstanding hospital and medical bills and what was actually going to be paid to compromise and pay these bills.

Defense counsel testified that he originally prepared the documents for the Chancery Court of Madison County, Mississippi, but redrafted the documents after he received information from Mr. Smith that Johnny Earl and Mrs. Williams were residents of Hinds County, Mississippi. Consequently, the guardianship was filed in the First Judicial District of Hinds County rather than in Madison County. Defense counsel then delivered the documents to Mr. Blackmon's office.

The address which Mr. Smith provided to defense counsel was initially given to Blackmon and Smith's secretary, Sandra McElroy. Mrs. McElroy testified that Mrs. Williams handed her a piece of paper or card with the address on it and said that the address was an address for her son regarding the case. According to Mrs. McElroy's testimony, at no time did Mrs. Williams indicate that the alleged address was both for Mrs. Williams and Johnny Earl. Nevertheless, she did indicate that Mrs. Williams said the address was for her son regarding the case. The address was allegedly in the vicinity of Jackson State University and was delivered to the office while Mr. Blackmon and Mr. Smith were at lunch. Mrs. McElroy testified that she gave the address to Mr. Smith, who subsequently showed the address to Mr. Blackmon....