Pickering v. Hood
Docket Number: | 2010-CA-00881-SCT Linked Case(s): 2010-CA-00881-SCT |
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Supreme Court: | Opinion Link Opinion Date: 08-02-2012 Opinion Author: Dickinson, P.J. Holding: DA-Reversed and remanded; CA-Affirmed. |
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Additional Case Information: |
Topic: Attorney General's power - Attorney's fees - Private counsel - Section 7-5-7 - Public funds - Attorney lien - Miss.Const. Art 4, Sec. 100 - Section 75-24-19(1)(b) - Contingent fee agreement Judge(s) Concurring: Waller, C.J., Carlson, P.J., Randolph, Lamar and Pierce, JJ. Judge(s) Concurring Separately: Pierce, J., Specially Concurs With Separate Written Opinion Joined by Dickinson, P.J., Randolph and Lamar, JJ. Concur in Part, Dissent in Part 1: King, J. Concur in Part, Dissent in Part Joined By 1: Kitchens and Chandler, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - OTHER |
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Trial Court: |
Date of Trial Judgment: 04-28-2010 Appealed from: Hinds County Chancery Court Judge: Denise Owens Disposition: Ruled the funds from litigation could be distributed directly to outside counsel. Case Number: G2004-1542 |
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Note: | Motion to Amend Mandate to Reflect Opinion of the Court filed by the State Auditor is granted. The prior opinions are withdrawn and these opinions are substituted therefor. |
Party Name: | Attorney Name: | Brief(s) Available: | ||
Appellant: | Stacey Pickering, In His Capacity as Auditor for the State of Mississippi |
SAMUEL E. L. ANDERSON
ARTHUR F. JERNIGAN, JR. |
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Appellee: | Jim Hood, Attorney General, ex rel State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: HAROLD EDWARD PIZZETTA, III GEOFFREY C. MORGAN JUSTIN L. MATHENY BRENT HAZZARD JAMES T. SOUTHWICK HARRY P. SUSMAN DAVID A. BARRETT |
Synopsis provided by: If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
Topic: | Attorney General's power - Attorney's fees - Private counsel - Section 7-5-7 - Public funds - Attorney lien - Miss.Const. Art 4, Sec. 100 - Section 75-24-19(1)(b) - Contingent fee agreement |
Summary of the Facts: | The Auditor’s unopposed Motion to Amend Mandate to Reflect Opinion of the Court is granted. These opinions are substituted for the prior opinions. A corporation settled a lawsuit by agreeing to pay the State of Mississippi $50 million, $10 million of which it disbursed directly to outside counsel retained by Attorney General Hood to pursue the litigation. The chancery court held that the payment was proper. The Auditor appeals, and the Attorney General cross-appeals. |
Summary of Opinion Analysis: | By enacting section 7-5-7, the Legislature limited to two, the sources from which the Attorney General may pay private attorneys he engages to pursue litigation on behalf of the State of Mississippi, in Mississippi courts. The Attorney General’s contingent fund does not include Microsoft’s checking account (the source of the $10 million), nor does it include the private attorney’s trust account to which Microsoft transferred the funds. Section 7-5-7's restrictions were in place when the Attorney General and outside counsel signed the contract. They cannot now claim they are not subject to it. The Attorney General argues that Microsoft’s direct payment of contingency fees and expenses was authorized by section 75-24-19(1)(b) of the Mississippi Consumer Protection Act, which allows the Attorney General to recover “investigative costs and a reasonable attorney’s fee.” But the statute says nothing about the method of payment, and the provisions of that statute come into play only “if the court finds from clear and convincing evidence, that a person knowingly and willfully used any unfair or deceptive trade practice, method or act prohibited by Section 75-24-5.” This case was settled with no trial and no such finding. And even if the MCPA did allow an award of attorney fees in this case, none was awarded. The settlement agreement specifically provided for Microsoft to pay $50 million to the State of Mississippi (although $10 million of that amount was to be distributed to a Texas law firm); and it further provided that “Microsoft played no part in negotiating the fees and expenses to be paid to plaintiff’s counsel . . . .” While the Attorney General does have authority to enter into contingency-fee agreements with outside counsel, those agreements – when made – are subject to Mississippi law and, in particular, section 7-5-7. Even if the Legislature had not carved out the statutory exception to the common-law attorney’s lien, Section 100 of the Mississippi Constitution does not permit the Legislature to forgive, or even diminish, liquidated obligations to the State; nor does it permit Microsoft – or any other defendant – to satisfy obligations owed to the State by remitting settlement payments to private lawyers. Because the parties did not comply with section 7-5-7, the chancellor is reversed and the matter remanded. |
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