Stegall v. The Mississippi Bar, 91-BA-1224

• Decision Date: 20 May 1993
• Docket Number: No. 91-BA-1224,91-BA-1224
• Citation: 618 So.2d 1291
• Parties: Earl B. STEGALL v. THE MISSISSIPPI BAR.
• Court: Mississippi Supreme Court

Page 1291

618 So.2d 1291

Earl B. STEGALL v. THE MISSISSIPPI BAR.

No. 91-BA-1224.

Supreme Court of Mississippi.

May 20, 1993.

Robin Alfred-Midcalf, Whitfield Midcalf & Associates, Biloxi, for appellant.

Charles J. Mikhail, Jackson, for appellee.

En Banc.

SMITH, Justice, for the Court:

The Mississippi State Bar filed a Formal Complaint against attorney Earl B. Stegall alleging in separate counts that he failed to do any work on behalf of two (2) clients after accepting fees. The Complaint Tribunal found Stegall guilty as charged and imposed disbarment as a penalty. We affirm.

FACTS

Count 1

Roger Harveston (Roger) was an inmate at the South Mississippi Correctional Facility, serving a sentence of life in prison for murder. In late 1987, Earl B. Stegall, a practicing attorney since 1972, received a letter from Roger inquiring about the filing of a post-conviction relief motion in his case. The deadline for filing such a motion was August 20, 1989. Stegall promptly answered Roger informing him that the fee for representing him would be $5,000.

Some time later, Roger's parents spoke with Stegall in Natchez, Mississippi. Stegall could not recall the entire meeting, but according to his recollection, the Harvestons inquired whether they could pay the $5,000 fee in two payments. Stegall testified that his custom in such cases was to inform clients that he required $2,500 as a retainer and the other $2,500 "before he did the case." Stegall later explained to the Tribunal that his use of the term "retainer" meant the first $2,500 was nonrefundable, although he did not explain this to the Harvestons.

On April 3, 1989, Mr. and Mrs. Harveston went to Stegall's office in Gulfport, Mississippi. Stegall was not in, so the Harvestons paid his secretary $2,500 by check. They returned the following day and met with Stegall. Stegall gave the Harvestons his home phone number and they left with him the transcripts, briefs, and other papers from their son's trial.

From these contacts with Stegall, it was the understanding and expectation of Mr. and Mrs. Harveston and their son that the first $2,500 payment would be used to file the post-conviction relief motion with the balance due on the day the parties "walked into the courtroom." Mrs. Harveston testified that if the remaining $2,500 had to be paid prior to the motion being filed, that it would have been, since the Harvestons had borrowed over $5,000 and could have paid the full fee immediately.

As the August deadline approached, Mr. Harveston repeatedly attempted to reach Stegall by telephone, leaving at least five (5) messages. Roger Harveston also tried to contact Stegall, requesting status reports, and eventually a refund of the money and a return of his case materials, but no phone calls or messages were returned. Stegall testified that after one conversation in which he refused to return their money, he no longer responded to letters or phone messages from Mr. and Mrs. Harveston or Roger. Stegall insisted that he had already explained he was waiting for the remaining $2,500 to file the motion, and a refund was not part of the agreement. Stegall admitted that Roger's case materials were not returned until August of 1990, over one year after they were first requested. Stegall attributed this to an office error.

On August 8, 1989, Roger Harveston began to draft his own motion from memory and without the benefit of his case materials. The motion was filed pro se on August 15, 1989. Stegall never refunded the $2,500 to the Harvestons.

Count 2

Jerry Fairman was an inmate at the Mississippi Department of Corrections, Parchman, Mississippi, on a 1985 murder conviction. On January 17, 1989, Fairman related his case to Stegall and requested Stegall's assistance in filing a post-conviction relief motion.

On January 20, 1989, Stegall responded by stating his fee for filing such a motion was $5,000. Later that month Fairman wrote Stegall again, informing Stegall that his family would pay the quoted fee.

On March 23, 1989, Stegall wrote the following letter to Mr. John Fairman, brother of Jerry Fairman, which was the subject of the ensuing dispute between the parties:

March 23, 1989

John Fairman

3640 South Monaco Parkway

Denver, Colorado 80237

Dear Mr. Fairman:

As I have advised you previously, my fee for representing your brother would be $5,000. You will have to pay me one half of that as a retainer the other half prior to hearing. I will be filing a Motion for post-conviction Relief for your brother, and if that was not successful a Petition for Writ of Habeas Corpus in Federal Court. If I can provide additional information please advise me.

Sincerely,

s/Earl B. Stegall

Attorney at Law

On March 30, 1989, Jerry Fairman's mother, Mrs. Luberta Fairman, mailed Stegall the trial transcript and other case papers. By letter dated April 6, 1989, John Fairman advised Stegall that Stegall would receive the $2,500 "retainer" from Mrs. Fairman in a few days, and the other $2,500 "prior to hearing." Shortly thereafter, Mrs. Fairman called Stegall and was instructed to send $2,500 so that he could "get started" on her son's case. She sent a check for $2,500 which Stegall negotiated on April 7, 1989.

Beginning in August of 1989, Jerry Fairman, his mother and brother wrote to and telephoned Stegall requesting status reports. In November, Mrs. Fairman wrote Stegall and noted that it had been seven (7) months since he had been paid, but the family had received no information regarding the Fairman case. She requested a refund and a return of the transcript if no work was to be done.

In his defense, Stegall testified that he used the terminology that $2,500 was a "retainer" fee and $2,500 was payable "prior to hearing" in order to "not have a problem with the fact that it was a retainer that was nonrefundable in the event that they didn't pay the second half." However, Stegall could not say that he ever explained this to John Fairman. Stegall insisted there was no misunderstanding of the fee arrangement which required the full $5,000 be paid before filing any motion. However, he agreed that the hearing he referred to in his March 23 letter would never come about unless he filed a post-conviction motion first. He also conceded that he interpreted the fee agreement to mean that cases where the second payment of $2,500 was not made, he could keep the initial payment without doing any work on a case.

Stegall admitted to not responding to letters or phone calls because he believed he had sufficiently explained and the Fairmans understood the arrangement, but were unwilling to pay the $2,500 balance.

No motion for post-conviction relief was filed by Stegall on behalf of Jerry Fairman and no refund was made to the Fairman family.

The Tribunal found Stegall guilty by clear and convincing evidence of violating Rules 1.3, 1.4, 1.5(a & b), 1.15 and 8.4(a)(c) & (d) of the Mississippi Rules of Professional Conduct.

From the order of the Tribunal to disbar him, Stegall asserts the following issue for review by this Court:

I. THE PENALTY OF DISBARMENT IMPOSED BY THE TRIBUNAL WAS DISPROPORTIONATELY EXCESSIVE AND SEVERE IN COMPARISON WITH CASES INVOLVING MORE SERIOUS VIOLATIONS AND

RECEIVING LESS SEVERE PENALTIES.

LAW

Although review of the evidence by this Court is de novo, deference may be given to the findings of the Complaint Tribunal due to its exclusive opportunity to observe the demeanor and attitude of the witnesses, including the attorney, which is vital in weighing the evidence. Broome v. Mississippi Bar, 603 So.2d 349, 353 (Miss.1992); Mississippi State Bar v. Strickland, 492 So.2d 567, 571 (Miss.1986); Levi v. Mississippi State Bar, 436 So.2d 781, 782 (Miss.1983). Further, this Court is free to evaluate the punishment imposed and to enter any appropriate order that it sees fit. Vining v. Mississippi State Bar Ass'n, 508 So.2d 1047, 1048 (Miss.1987).

In its findings, the Tribunal stated that Stegall "under conditions which are very close to false pretenses" basically took $2,500 each from the Harvestons and the Fairmans and did nothing on the cases of Roger Harveston and Jerry Fairman, respectively. Stegall does not contest the fact that he violated the Rules of Professional Conduct as charged, but contends here only that the sanction of disbarment is disproportionately severe when compared to other disciplinary actions decided by this Court.

The nature of the misconduct in this case includes neglect of the cases entrusted to Stegall, failure to reasonably inform the clients of the status of their cases, failure to return client property and to render an accounting of client funds, and misrepresentation in the explanation of the services provided in exchange for the quoted fees. Stegall urges this Court to find that this misconduct was not of a nature justifying disbarment, but advocates a reprimand as more appropriate. Following a careful review of sanctions imposed in similar cases, we hold that Stegall's actions warrant disbarment.

This Court has disbarred attorneys who have committed a variety of offenses also involving acts of dishonesty, fraud, deceit, or misrepresentation. See Haimes v. Mississippi Bar, 601 So.2d 851 (Miss.1992) (Court affirmed Tribunal's disbarment of attorney for commingling client's funds with his own, following a prior, similar offense); Reid v. Mississippi State Bar, 586 So.2d 786 (Miss.1991) (Tribunal's order of disbarment for conversion of client trust funds affirmed); Mississippi State Bar Association v. Moyo, 525 So.2d 1289 (Miss.1988) (Court disbarred attorney and vacated Tribunal's order of public reprimand where attorney solicited case and converted client's funds); Foote v. Mississippi State Bar Association, 517 So.2d 561 (Miss.1987) (attorney disbarred for failure to carry out duties as closing attorney and improper handling of client's funds); Brumfield v. Mississippi State Bar, 497 So.2d 800 (Miss.1986) (Court vacated suspension imposed...