The Mississippi Bar v. Attorney HH

• Citation: 671 So.2d 1293
• Decision Date: 14 December 1995
• Docket Number: No. 93-BA-00609-SCT,93-BA-00609-SCT
• Parties: The MISSISSIPPI BAR v. ATTORNEY HH.
• Court: United States State Supreme Court of Mississippi

Page 1293

671 So.2d 1293

The MISSISSIPPI BAR v. ATTORNEY HH.

No. 93-BA-00609-SCT.

Supreme Court of Mississippi.

Dec. 14, 1995.

As Modified on Denial of Rehearing

March 21, 1996.

Appeal No. 92B630 from Judgment dated April 12, 1993, Ruling Judge, Complaint Tribunal.

Charles J. Mikhail, Pascagoula, Michael B. Martz, Jackson, for Appellant.

William Liston, Liston, Lancaster, Winona, for Appellee.

En Banc.

BANKS, Justice, for the Court:

In this case we deal with the troublesome issue of an attorney who feels compelled to lend an impecunious personal injury client sums necessary to personal maintenance pending resolution of the injury claim. We eschew the temptation to follow the direction of our sister state to the west, Louisiana, and enforce our standards as written by subjecting the offending lawyer to a private reprimand.

I.

On January 23, 1992, the Mississippi Bar Association filed a formal complaint against attorney HH alleging that he violated Mississippi Rules of Professional Conduct 1.5(a) and (c), 1.7(b), 1.8(e), 1.8(j), 7.3, 8.4(c) and 8.4(d). The complaint tribunal dismissed with prejudice the portion of the Bar's complaint dealing with Rules 1.5(a) and (c), 1.7(b), and 7.3. After a hearing pertaining to violations of the remaining Rules, the tribunal found that HH violated Rules 1.8(e) and (j) by guaranteeing loans for his client. Despite its findings, the tribunal decided not to discipline or sanction HH. Rather, in a written opinion, the Tribunal urged this Court to determine whether Rule 1.8(e) should be strictly enforced. The Bar appealed and raised the following issue for review by this Court:

Whether the Tribunal erred in failing to impose discipline on HH after finding that he violated Rule 1.8(e) and (j)?

HH raised the following issue on cross-appeal:

Whether Rule 1.8(e) and (j), insofar as said Rules prohibit advancements by a lawyer to his client of necessary and essential living and medical expenses during the course of litigation in order to maintain the viability of the client's claim are constitutionally impermissible for the reason that such prohibition denies the client meaningful access to the judicial process and the court system?

II.

On November 17, 1987, the client sustained substantial personal injuries when his motorcycle was struck by an automobile. Two days after the accident, a nurse told the client's girlfriend that she knew someone who might be able to assist her if she needed legal assistance. The nurse told the girlfriend that she should contact a certain private investigator. The girlfriend phoned the PI who eventually gave her the names of several law firms, including the law firm of HH. No mention was made as to who would pay the PI for his investigation. HH's law firm later paid for the PI's investigatory work.

The girlfriend later signed a contingency fee contract employing HH as the client's attorney and subsequently, after conversations with the client and his father, HH filed a suit on the client's behalf. He also gave the client's father ten to fifteen dollars on two occasions "so that the kid would have a magazine or if he needed cigarettes or something." Due to the substantial personal injuries that the client sustained, his left leg was amputated, he was hospitalized for twenty-six days, and his medical and hospital expenses soared.

Before the client was released from the hospital, HH arranged for him to return to a wheelchair-accessible house in Gulfport, rather than to the trailer he rented for $150 monthly. The PI assisted the girlfriend in setting up living quarters for the client by taking her to different stores to purchase things for the house. HH testified that after the arrangements were made, the client's family members expressed concern as to how the client would make the rental payments on the house. Thereafter, HH asked the girlfriend for a "budget, what you are going to need to keep your lights on and food in your refrigerator." HH subsequently guaranteed several loans, totaling $4,190.16, for the client to pay for a prosthesis, as well as other medical and personal living expenses. He also gave the girlfriend $600 to pay child support to the client's wife, whom he was in the process of divorcing at the time of his accident, and to purchase Christmas gifts for the girlfriend's children.

In September of 1988, HH settled the client's claim. At that time, the client repaid the loans and interest that HH had guaranteed for him at Hancock Bank. Nearly two years later, the client filed a complaint against HH with the Bar. In the complaint, the client expressed dissatisfaction that HH was receiving periodic payments from his check every month. At the hearing before the tribunal, the client testified that he also was upset that child support payments were taken from his monthly check. This caused friction between him and the girlfriend, whom he had since married. Additionally, the client testified that he was angry because he couldn't live off of the $400 a month receipts from the settlement. He went on to say, however, that he was no longer dissatisfied with the settlement because "well, I still can't live off of $400 a month, but I'm satisfied with the way it is because that's the only way I'll get my bill paid." He stated that he no longer had a complaint against HH.

III.

This Court has exclusive inherent jurisdiction over attorneys, and their licenses to practice law. Mississippi State Bar v. Attorney D, 579 So.2d 559, 561 (Miss.1991); Mississippi State Bar v. Nichols, 562 So.2d 1285, 1287 (Miss.1990); Mississippi State Bar v. Nixon, 494 So.2d 1388, 1389 (Miss.1986); Mississippi State Bar v. Phillips, 385 So.2d 943, 944 (Miss.1980). "Even though this Court convenes a Tribunal to make findings of fact and recommendations to this Court, this Court addresses the case de novo." Nichols, 562 So.2d at 1287; See Levi v. Mississippi State Bar, 436 So.2d 781, 782 (Miss.1983). This Court has the independent authority to reassess the punishment meted out by the tribunal and increase or decrease the punishment as it deems proper. Myers v. Mississippi State Bar; 480 So.2d 1080, 1094 (Miss.1985). There is no standard as to what punishment for particular misconduct ought to be. Goeldner v. Mississippi State Bar Ass'n, 525 So.2d 403, 407 (Miss.1988). Cases are considered on a case by case basis. Id.

a.

The Bar contends that the Tribunal erred in failing to discipline or sanction HH after finding that he had violated Rule 1.8(e) and (j). HH, however, argues that under Rule 8(b) and Rule 8.6, that imposing discipline was within the discretion of the Tribunal.

Rule 8(b) of the Rules of Discipline provides:

At the conclusion of the hearing, upon majority vote, the tribunal shall render a written opinion incorporating a finding of fact and a judgment which may: (i) Exonerate the accused attorney and dismiss the Formal Complaint; or (ii) Publicly or privately reprimand the attorney; or (iii) Suspend the attorney with or without probation for a fixed period of time and may specify conditions precedent to reinstatement; or (iv) Disbar the attorney.

Rule 8.6 of the Rules of Discipline states:

No discipline shall be imposed except upon clear and convincing evidence. After a final hearing on the merits, the opinion of the Tribunal may provide the following: (i) Exonerate the accused attorney and dismiss the Formal Complaint: (ii) Publicly or privately reprimand the attorney ... (iii) Suspend the attorney with or without probation for a fixed period of time, and may specify conditions precedent to reinstatement.... (iv) Disbar the attorney.

The use of the word "shall" means that the tribunal has no discretion in meting out discipline once the Bar establishes beyond clear and convincing evidence that an attorney has violated the Rules of Professional Conduct. See Miss. State Bar v. Attorney D, 579 So.2d 559, 561 (Miss.1991) (citing Rule 8(b) and holding that the tribunal does not have the authority to impose an informal admonition upon an attorney). It follows that HH's argument that the imposition of discipline upon him was within the discretion of the tribunal is without merit.

b.

The Bar contends that the advancement of personal living expenses by a lawyer to his client violates the Rules of Professional Conduct and should be prohibited. The Bar cites MRPC 1.8(e) and (j), as well as Kentucky Bar Association v. Mills, 808 S.W.2d 804 (Ky.1991), Shea v. Virginia State Bar, 236 Va. 442, 374 S.E.2d 63 (1988), In re Brown, 298 Or. 285, 692 P.2d 107 (1985), In re John Laverne Reaves, 272 S.C. 213, 250 S.E.2d 329 (1978), and In re a Member of the State Bar of Arizona Karl Nile Stewart, 121 Ariz. 243, 589 P.2d 886 (1979). The Bar also contends and the Tribunal found that HH violated Rule 1.8(e) and (j) which provide:

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and

(j) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case.

HH does not contend that he did not violate Rule 1.8(e) and (j). Rather, he contends that the Rule should not be interpreted so as to prohibit the advancement of necessary medical and living expenses to an indigent client. In the alternative, HH contends that should this Court find that the advancement of necessary medical and living expenses to indigent clients violates Rule 1.8(e) and (j), the Rule should be either rescinded or...