Netterville v. Mississippi State Bar

• Decision Date: 18 March 1981
• Docket Number: No. 62,62
• Citation: 397 So.2d 878
• Parties: R. L. NETTERVILLE v. MISSISSIPPI STATE BAR et al.
• Court: Mississippi Supreme Court

Page 878

397 So.2d 878

R. L. NETTERVILLE v. MISSISSIPPI STATE BAR et al.

No. 62.

Supreme Court of Mississippi.

March 18, 1981.

R. L. Netterville, Natchez, pro se.

Jimmy L. Miller, Jackson, for appellees.

Before SMITH, P. J., and SUGG and LEE, JJ.

SMITH, Presiding Justice, for the Court:

This is an appeal by a member of the Mississippi State Bar from a private reprimand ordered by the Mississippi State Bar through its Complaints Committee.

Mississippi State Bar, its officers, commissioners and its Complaints Committee are named as appellees. The opening statement in the brief filed on behalf of the appellees is as follows:

The proceedings were conducted under 1974 General Laws of Mississippi, Chapter 566, which has been codified as Sections 73-3-301 et seq., Mississippi Code of 1972, (1979) Supp., called hereafter Code. Sections 73-3-309, through 73-3-319, Code, specify how complaints shall be received and filed, investigations begun, hearings conducted, reports submitted by Complaint Counsel, and dispositions made by the Committee on Complaints, called hereafter the Committee. The procedures specified by those sections were followed except in those instances where a policy of the Committee was utilized in conjunction with the statutory scheme.

Appellant, an attorney actively engaged in the practice of law, representing a widow and four minor children, brought suit against Hutchinson Manufacturing, Inc., upon a products liability claim, wherein it was alleged that the defendant had designed, manufactured and marketed a defective grain auger which was hazardous and dangerous to its users and that the widow's husband and father of the minor children had been killed as the result of using the defective auger.

The owners of all of the stock in Hutchinson Manufacturing transferred all of its assets to Royal Industries, Inc., a California corporation, in exchange for stock in Royal Industries, Inc. It seems to have been the contention of Royal Industries, Inc., through its attorneys, although it appears to have operated a "Hutchinson" division, that liability, if any, lay exclusively with Hutchinson Manufacturing, Inc. and that Royal Industries, Inc. in nowise became responsible or liable to plaintiffs since the auger had been designed, manufactured and placed on the market prior to the acquisition of the assets of Hutchinson Manufacturing by Royal Industries, Inc. It is asserted that the latter would not produce or make available any of the records of Hutchinson Manufacturing. This position adopted by Royal Industries, Inc. was disclosed in discovery proceedings by Leon B. Mugler, formerly secretary-treasurer of Hutchinson Manufacturing, Inc. acting for Royal Industries, Inc. Appellant, who was plaintiff's attorney in the products liability suit, was unable to obtain information as to the nature and status of the merger with, or of the acquisition by, Royal Industries, Inc. of the former Hutchinson Manufacturing, Inc.

Appellant, as attorney for plaintiffs in the products liability suit, appears to have prevailed upon attorneys for Royal Industries, Inc. to provide him with the names and addresses of the stockholders of Hutchinson Manufacturing, Inc. This information was given to appellant over the telephone by Stuart Handy, an attorney for Royal Industries, Inc., and consisted of the names and addresses of one Leon B. Mugler and Gary N. Griffiths, together with their phone numbers.

On that same day, appellant telephoned Mugler at the number given, and asked to speak to him. Informed that Mr. Mugler was not in, petitioner asked to speak to Mr. Griffiths. The ensuing conversation with Mr. Griffiths gave rise to the complaint against appellant. A copy of the complaint is attached as Appendix A.

Appellant asserts that the purpose of the phone call was to obtain names, addresses and also the address of Dr. Carl Ruff, a former Hutchinson officer, in order to arrange a date for taking their depositions and so that they might be served with process, including a subpoena duces tecum requiring production of the records of Hutchinson Manufacturing, Inc. The transcription of the entire telephone conversation is attached as part of the complaint and is made a part of this opinion as Appendix B.

Following this incident, Royal Industries, Inc. attorney Charles Stoll, of California, filed the complaint against appellant.

Mississippi Code Annotated section 73-3-313 (Supp.1980) provides for an investigation of such complaints by complaint counsel. This section provides that an accused attorney shall be notified that he is under investigation, with a statement of the general nature of the charges and be furnished with a copy of the complaint "and any evidence supporting it." That section also states that complaints counsel shall "afford the accused attorney a hearing." Section 73-3-315(b) provides in part: "The accused attorney has no right to be present at any stage of the investigatory hearing, either in person or by counsel." He shall have an opportunity to make a statement, verbally or in writing, offering matter refuting or admitting the alleged misconduct. He may document the statement to include affidavits but "shall not have the right to present other testimony or evidence and shall have no right to confrontation." Section (c) of the same section states in part that: "(A) full evidentiary hearing on the merits is not contemplated."

Section 73-3-317 provides that complaint counsel "will cause the testimony of any witnesses at an investigatory hearing to be taken and transcribed and shall certify the same to the committee on complaints, along with his written findings." Apparently the reference to "any witnesses" does not refer to witnesses on behalf of the accused attorney as apparently (under Section 73-3-313) he has no right to present any.

Section 73-3-319(b) provides: If upon review of the record, complaint counsel's report and any written response by the accused attorney, the committee determines that "there is reasonable ground to believe" that the accused attorney has been guilty of unprofessional conduct evincing unfitness for the practice of law and is of the further opinion that a public or private reprimand will be sufficient punishment, it may provide for administering such a reprimand. This section concludes: "In any event, written notice of the delivery of such reprimand shall be given to the person filing the complaint, the clerk of the court, the executive director of the Mississippi State Bar, and to the judges of the circuit and chancery court districts of the accused attorney."

It will be observed that a reprimand may be ordered administered if the committee finds that "there is reasonable ground to believe" that the accused attorney has been guilty of unprofessional conduct or conduct evincing unfitness for the practice of law. This determination may be made by the committee although the accused attorney "has no right to be present at any stage of the investigatory hearing, either in person or by counsel," has no right to produce witnesses of his own at such hearing, no right to confront or cross-examine the accuser or any witnesses whose testimony complaint counsel may include in his report.

The proceedings were conducted and concluded, and the Committee issued the following findings:

The Complaints Committee has considered very carefully the above captioned complaint and all other relevant materials available to it, including the report of Complaints Counsel.

Our investigation in this matter indicates that during the course of your investigation and preparation of the litigation in question, you contacted by telephone one of the prospective witnesses; that during the course of that conversation you discussed elements of the litigation with him and unknown to him recorded by tape or otherwise that conversation for your future use. Such action on your part clearly constitutes unprofessional conduct. See Penny v. Blush, 256 So.2d 590 (1978). (This citation should be 356 So.2d 590.) (Emphasis added.)

Pursuant to the above conclusions, the Committee ordered that a private reprimand be administered to appellant as provided by Section 73-3-319.

Feeling aggrieved at this action, appellant has appealed, assigning the following grounds for reversal:

(1) A complaint against an attorney is a criminal procedure and is penal in nature.

(2) There is no evidence in this record to support the fact that Netterville taped the conversation, and the committee misinterpreted the decision of this court in Penny v. Blush, 356 So.2d 590 (Miss.1978).

(3) Netterville was denied due process by the Mississippi State Bar.

(4) Sections 73-3-315 and 73-3-319 of the Mississippi Code of 1972, Annotated, authorizing a letter of reprimand of an accused attorney without the elements of due process of law, such as notice, hearing, to be tried before an impartial tribunal, confrontation, and cross-examination, denies the accused due process of law.

(5) Sections 73-3-315 and 73-3-319 of the Mississippi Code of 1972, Annotated, are unconstitutional and void. They deny substantive and procedural due process of law and violate the Constitutions of the United States of America and the State of Mississippi and are void.

Appellant's second contention (that there was no evidence in the record capable of supporting a finding that the telephone conversation was taped and that the committee misinterpreted Penny v. Blush, supra, will be considered first.

It is pointed out that the only reference in evidence as to how the telephone conversation between Netterville and Griffiths was taken down and transcribed appears in his own statement. It is suggested that it must have been obvious to Griffiths that the request for names and addresses necessarily carried with it an implication that the data supplied would be taken down in some manner to serve as an aide memoire. Appellant stated that he had no recollection as to how the...