Mississippi State Bar v. Attorney-Respondent in Disciplinary Proceedings
| Decision Date | 31 January 1979 |
| Docket Number | No. 884,ATTORNEY-RESPONDENT,884 |
| Citation | 367 So.2d 179 |
| Parties | MISSISSIPPI STATE BAR v.1 IN DISCIPLINARY PROCEEDINGS. Misc. |
| Court | Mississippi Supreme Court |
Jimmy L. Miller, Jackson, for appellant.
No Name of attorney to be reported for the attorney-respondent.
ON MOTION TO QUASH SUMMONS AND SUBPOENA DUCES TECUM
En Banc.
WALKER, Justice, for the Court:
This is on motion to quash a summons and subpoena duces tecum. The summons and subpoena duces tecum were issued by the complaint counsel of the Mississippi State Bar pursuant to Mississippi Code Annotated section 73-3-307 (Supp.1978). This statute provides:
Each of the disciplinary agencies is hereby given such jurisdiction and lawful powers as are necessary to conduct a proper and speedy disposition of any complaint. The power to summons and examine witnesses under oath and to compel their attendance to take or cause to be taken the deposition of witnesses and to order the production of books, papers, records and other documentary evidence necessary or material to the investigation or complaint shall be coequal to the powers exercisable by the courts of record of this state. All summonses or subpoenas shall be issued by the clerk of the court, and it shall be the duty of any person so summoned to appear and testify as in the writ commanded and to produce the books, papers, records or other documentary evidence required. Summonses and subpoenas issued by the clerk of the court shall be delivered to the sheriff of the county where they are to be executed, and the sheriff shall serve such writs and notices, or cause them to be served, as he is required to do with respect to writs received by him from any other court of record.
Any defiance of any summons or subpoena so issued, or other extrajudicial conduct which shall inhibit, impede or disrupt any of the above disciplinary agencies in the performance of the duties and in the exercise of the powers herein given shall be treated as contempt of the court and punishable accordingly.
The summons and subpoena duces tecum required the respondent-attorney to appear at a hearing before the counsel for the committee on complaints, and to bring with him any written documents concerning his representation of the client who had filed the original complaint.
The attorney filed a motion to quash the summons and subpoena duces tecum. The motion was set for a hearing before a Justice of the Supreme Court. After hearing and careful consideration, we quash the summons and subpoena duces tecum.
A client filed a complaint against the attorney with the complaints committee of the Mississippi State Bar. The complaint which was properly signed and attested, pursuant to Mississippi Code Annotated section 73-3-309 (Supp.1978), stated:
That I went to (the attorney) for a divorce, and Bankrupcy (sic), and he told me to start the divorce off I had to pay $150.00 so I did. $75.00 for my divorce and $75.00 for the Bankrupcy (sic) he had been my attorney once before. So he had me to go to the Court room for a hearing on the eight (sic) of Oct. he didn't show up neither did my husband. He never recived (sic) a summons from (the attorney) at all, he write a receipt for the hundred and fifty dollars. My sister was with me as my witness. I even showed the receipt to my Rent man. . . . and I need my money back. I am living alone, i borrow (sic) the money from my Rent Man . . . to give him.
The committee on complaints referred the complaint to the complaint counsel for further investigation.
Subsequently, counsel sent a letter by registered mail to the attorney (and a copy to complainant) advising him of the complaint, the forthcoming investigation, and other information. The attorney then responded through his retained counsel by letter confirming complaint counsel's agreement to postpone the scheduled hearing, and waiving the attorney's right to the timing requirements of Mississippi Code Annotated section 73-3-317 (Supp.1978).
Subsequently, the attorney requested photocopies of all evidence against him including the receipt mentioned in the complaining client's affidavit pursuant to Mississippi Code Annotated section 73-3-313 (Supp.1978).
Complaint counsel requested the receipt from the complaining client. However, after several weeks he had received no response. He then filed a report with the complaints committee giving the status of the investigation. The attorney responded to this report urging that the complaint be dismissed since there was not reasonable ground to believe that he had been guilty of unprofessional conduct. Alternately, he argued the complaint did not state a cause of action, and that the complaint should be dismissed since the complaining client had not responded to requests for further information, particularly the receipt involved.
Approximately a month later, complaint counsel was notified that the committee had rereferred the matter back to him for further investigation. The referral ordered complaint counsel to determine the following information and to use the subpoena power to do so if necessary.
a. The existence of a receipt given by (the attorney to the client,) representing partial payment of fee;
b. Date of filing of divorce in (the client's Name) if one was filed;
c. How (the client) was notified to come to court;
d. Any correspondence between (the attorney) and (the client).
Complaint counsel notified the attorney of the rereferral and in the letter requested:
1. A response (by the attorney) to the complaint, attached as Exhibit 1 to Complaint Counsel's report on this matter.
2. A response by (the attorney) to the questions attached as Exhibit 2 to Complaint Counsel's report on this matter.
3. Copies of any and all receipts held by (the attorney) regarding funds received by him from (the client).
4. Copies of any and all pleadings, including divorce and bankruptcy, filed by (the attorney) on behalf of (the client).
5. A statement from (the attorney) regarding how (the client) was advised to appear in court at the divorce hearing.
The letter also stated:
If the above mentioned information is not provided within fifteen days of this letter, Complaint Counsel will issue process necessary to procure same.
(The attorney) responded, and in his letter stated:
Under Mississippi Code of 1972, § 73-3-313 (1977) Supplement), (the attorney) is entitled to a copy of the complaint And any evidence supporting it, as the initial step in any such proceedings and before any response is required of him.
Therefore, (the attorney) respectfully requests that he be forwarded copies of any and all receipts which (the client) claims (the attorney) may have signed and copies of any and all pleadings or other papers which (the client) contends (the attorney) to have signed or delivered to her. Upon receipt of these, (the attorney) will prepare and forward to you his response.
Subsequently, the summons and subpoena duces tecum, which are the subject of the motion to quash, issued.
Specifically, the issue presented on the facts is whether under our statutes the complaint counsel has the authority to have issued a summons and subpoena duces tecum to an accused attorney when the proceedings are in the investigatory stage and prior to the filing of a formal complaint by the complaints committee. We think not.
While Mississippi Code Annotated section 73-3-307 (Supp.1978) authorizes a general power to issue summons and subpoena duces tecum, it does not prescribe with any particularity when or under what circumstances the power arises. However, analysis of that statute in the light of the other statutes governing disciplinary proceedings indicate that the legislature did not contemplate forced cooperation by an attorney in the investigative stages. Rather the more practical interpretation of the statutory wording would appear to be that the legislative intent was merely to insure that the attorney would have notice and the opportunity to be heard, if he desired, during the investigative stage.
The applicable statutory procedures require that any complaints "shall be referred to the committee on complaints for preliminary investigation and such disposition or further action as may be appropriate." Miss.Code Ann. § 73-3-309 (Supp.1978). Another section, 73-3-311 providing for action to be taken upon receipt of complaint or charge requires that the committee:
(a) Cause the complaint or charge to be filed and docketed with the executive director of the Mississippi State Bar.
(b) Screen the complaint or charge for merit or the lack thereof, if such determination can be made from the allegations of the complaint and any accompanying documents; and
(c) Dismiss any frivolous or ill-grounded complaint or one obviously without merit; or
(d) Refer the complaint to complaint counsel for further investigation, hearing and report.
Once referred to complaint counsel, the counsel must:
. . . immediately investigate the complaint; and upon completion of his investigation, excluding the investigatory hearing, he shall inform the accused attorney that a complaint has been filed against him and that he is under investigation, advise the accused attorney of the general nature of the charges, furnish him a copy of the complaint and any evidence supporting it, afford the accused attorney a hearing, and advise the attorney of the time and place of such hearing. Communications and notices to the accused attorney shall be transmitted by registered or certified mail, return receipt requested, and marked "Deliver to Addressee Only." (Miss.Code Ann. § 73-3-313).
This statute rather than speaking in terms of mandatory appearance, says "afford the accused a hearing." Further the following statute, section 73-3-315 on "Rules Governing Investigatory Hearings" states in part:
(b) The accused attorney has no right to be present at any stage of the investigatory hearing, either in person or by counsel, except complaint counsel shall afford him an...
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