The Mississippi Bar v. Attorney ST

• Decision Date: 17 June 1993
• Docket Number: No. 90-BA-0552,90-BA-0552
• Citation: 621 So.2d 229
• Parties: THE MISSISSIPPI BAR v. ATTORNEY ST.
• Court: Mississippi Supreme Court

Page 229

621 So.2d 229

THE MISSISSIPPI BAR v. ATTORNEY ST.

No. 90-BA-0552.

Supreme Court of Mississippi.

June 17, 1993.

Michael B. Martz, Charles J. Mikhail, Jackson, for appellant.

James F. Noble, III, Charles G. Copeland, Copeland Cook Taylor & Bush, Jackson, for appellee.

En Banc.

ON PETITION FOR REHEARING

McRAE, Justice, for the Court:

On petition for rehearing, the original opinions of the Court are withdrawn and this opinion substituted therefor.

In this appeal, we consider whether sanctions should be imposed against an attorney who vehemently denied to a potential witness with whom he was speaking on the telephone that he was taping the conversation, when, in fact, that conversation was being recorded. Finding that Attorney ST's actions, while the result of extenuating circumstances, violated Rule 4.1 of the Mississippi Rules of Professional Conduct, we reverse the decision of the Complaint Tribunal and admonish him with a private reprimand.

I.

On April 26, 1989, the Mississippi State Bar filed a Formal Complaint charging Attorney ST with violations of Mississippi Rule of Professional Conduct 8.4(c) ¹ and 8.4(d) and of the attorney's oath pursuant to Miss.Code Ann. Sec. 73-3-35 (1972) ² for surreptitiously taping two telephone conversations with an acting City Judge and one with the City Police Chief, and for telling the Chief he was not recording their conversation when, in fact, he was.

On July 12, 1989, ST filed his answer to the Formal Complaint, specifically denying the Bar's allegations that he violated Rule 8.4(c) and 8.4(d) and Sec. 73-3-35, and setting forth a separate defense that complete and absolute fidelity to the interests of a client is required and that the conversations were taped to protect the interests of ST's client and to ascertain and memorialize the truth.

On April 13, 1990, this cause was brought for hearing before a complaint tribunal, consisting of the Honorable Edward A. Williamson, the Honorable Irvin L. Martin, Jr., and the Honorable W. Allen Pepper, Jr. After hearing oral argument from opposing counsel and limited testimony from ST, the Tribunal determined that the taping of the three conversations did not constitute dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c). In this regard, the Tribunal stated that restricting the actions of an attorney in the position of ST with the proscriptions of Rule 8.4(c) puts the attorney on the "horns of a dilemma" by impeding his pursuit of the truth and the judicial process, and constitutes a dual standard between laymen and members of the bar.

Further, the Tribunal exonerated ST of the alleged violations of Rule 8.4(c) and (d), as well as Sec. 73-3-35, for his statement to the Chief that he was not taping their conversation. The Tribunal held that, otherwise, an attorney in the position of ST would have a distinct conflict of interest thrust upon him, requiring him to choose between his interests and those of his client. In addition to finding no violation of Rule 8.4(d), the Tribunal was of the opinion that if ST had failed to take the opportunity to preserve the truth in an attempt to exonerate his client, such failure itself could be construed as a violation of Rule 8.4(d), as conduct prejudicial to the administration of justice.

On April 25, 1990, the Tribunal entered a Judgment finding in favor of ST and dismissing the Formal Complaint. The Mississippi Bar appeals from this judgment of the Complaint Tribunal.

II.

This matter was presented to the Tribunal on stipulated facts. The entire record consists of a recitation of that stipulation, the arguments of counsel, a transcription of the recorded conversation with the Chief and the affidavit of ST. The stipulated facts, modified to conceal identities, are as follows:

ST is a resident of XYZ County, Mississippi, and was at all times hereinafter mentioned a member of the Bar subject to the disciplinary jurisdiction of the Supreme Court of Mississippi and its designated agencies.

On or about January 3, 1988, the City Police Chief (Chief) came to the home of ST's client (Client) and questioned him about a statement given to the police by one T.J. after which Client went to the Police Station.

On January 4, 1988, the regular city Judge recused himself from the case though he signed a Warrant for Client's arrest on January 3, 1988.

On January 14, 1988, Client hired ST to represent him in a simple assault charge in City Court. ST claims he was not advised until the day of trial that the case was to be tried on that day--January 19 and that he never consented to the regular judge's recusing himself or to the appointment of an acting judge to hear the case, inasmuch as the appointment was, according to ST, a violation of state law which requires city officials and not the sitting judge to appoint a substitute judge. ST also claims that the neighboring City Prosecutor, who prosecuted the case against Client in city court, did so without authority.

During a recess after the prosecution rested its case against Client, the Judge told ST in the restroom that the prosecution had a problem proving its case. The Judge took the case under consideration. Ten days later, Judge found Client guilty. ST first learned of the conviction from the press, not the court. ST then called the Judge who told him that Chief and other city officials were "after" his client. They found him guilty of simple assault for his own good, that he could have been found guilty of serious felony charges such as rape or aggravated assault, and that he should not appeal.

ST then called Chief to verify what Judge had just told him and was told by Chief that six more witnesses were lined up to come forward against Client if he appealed the conviction and remained on the Board of Aldermen.

On February 4, 1988, Client filed a civil rights suit against the City and various city officials in the U.S. District Court for injunctive relief.

During the course of ST's representation of Client in federal court, the Defendants filed a Motion for Summary Judgment, in response to which ST filed an Affidavit stating that he recorded the three telephone conversations he had with the Judge and Chief. These tapes were made without their knowledge or consent.

During one of those telephone conversations, ST was asked by Chief, "You ain't taping me, are you?" ST replied "No, No," when in fact he was recording the conversation. (emphasis added)

ST's motivation in so acting is undisputed. He felt that his client was the victim of a political persecution as reflected in the allegations contained in his federal complaint. Immediately prior to making the tape recordings complained of here, ST learned from the press that his client had been convicted. According to ST, his surprise was transformed into suspicion after learning of his client's conviction primarily because the Judge expressed to ST (after taking the matter under advisement) that the prosecution had not made its case against his client. By his affidavit, ST alleges, without contradiction, that the acting judge, in an earlier year, had been discharged as city prosecutor, causing the acting judge some financial difficulty attributable to the loss of health insurance. This caused ST to suspect a motive of revenge against his client, a member of the city council which had discharged the judge.

Believing that his client's rights were being abused, ST telephoned the judge, at which time, ST alleges, it became apparent that it would be absolutely necessary to record the conversation in order to prove the corruption and to prove his client's innocence. The same was true with the call to the Chief.

When the Chief confronted ST with the question as to whether their conversation was being recorded, ST testified that he knew he was about to hear the truth. He was sure that the Chief was preparing to make a statement which he would later deny. ST contends that he was faced with the choice of protecting his client's interest or risking potential violations of ethical practices. He further asserted in his brief that it was the Chief who "put [the client's] rights on the line by asking ST, 'You ain't taping me, are you?' " Embodied in his response of, "No. No.," was ST's decision to protect his client's rights.

III.

ST contends that his response to the Chief was proper and justified, and moreover, that rights are not real if they cannot be enforced. ST also submits that his misrepresentation to the Chief does not rise to the level of professional misconduct and does not require disciplinary action. The Mississippi Bar does not request or propose any particular disciplinary action, but asserts simply that it was error for the Tribunal to completely exonerate ST, to dismiss the Formal Complaint with prejudice, and to refrain from imposing any discipline at all. We, of course, review this matter de novo as to both liability and sanctions. Mississippi State Bar v. Blackmon, 600 So.2d 166, 171 (Miss.1992), quoting Foote v. Mississippi Bar Ass'n, 517 So.2d 561, 564 (Miss.1987); Culpepper v. Mississippi State Bar, 588 So.2d 413, 415 (Miss.1991); Mississippi State Bar v. Varnado, 557 So.2d 558, 559 (Miss.1990) ("[t]his Court has the non-delegable duty of ultimately satisfying itself as to the facts, and reaching such conclusions and making such judgments as it considers appropriate and just").

The Bar asserts that ST's surreptitious taping of the telephone conversations was, in and of itself, unethical. See National Life & Accident Insurance Co. v. Miller, 484 So.2d 329 (Miss.1985); Netterville v. Mississippi State Bar, 397 So.2d 878 (Miss.1981); J.C. Penney Co., Inc. v. Blush, 356 So.2d 590 (Miss.1978). However, in Attorney M v. Mississippi State Bar, 621 So.2d 220 (Miss.1992), we held that, under certain circumstances, an attorney may tape a conversation with a potential party opponent without his knowledge or consent. In that case, Attorney M taped a...