Miss. Bar v. Thompson


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Docket Number: 2007-BA-00556-SCT

Supreme Court: Opinion Link
Opinion Date: 06-19-2008
Opinion Author: WALLER, P.J.
Holding: AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART

Additional Case Information: Topic: Bar discipline - Safeguarding client property - Miss.R.Prof.Cond. 1.15 - Confidentiality of information - Miss.R.Prof.Cond. 1.6 - Attorney-client relationship - Miss.R.Prof.Cond. 1.2(a) - Miss.R.Prof.Cond. 1.3 - Non-lawyer assistant - Miss.R.Prof.Cond. 5.3 - Miss.R.Prof.Cond. 5.5(b) - Conduct prejudicial to administration of justice - Miss.R.Prof.Cond. 8.4 - Sanctions
Judge(s) Concurring: SMITH, C.J., DIAZ, P.J., CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ.
Concur in Part, Dissent in Part 1: EASLEY, J. without separate written opinion.
Procedural History: Admin or Agency Judgment
Nature of the Case: CIVIL - BAR MATTERS

Trial Court: Date of Trial Judgment: 03-14-2006
Case Number: 2005-B-1936

  Party Name: Attorney Name:  
Appellant: THE MISSISSIPPI BAR




JAMES R. CLARK, GWENDOLYN G. COMBS



 

Appellee: GAIL P. THOMPSON LEONARD McCLELLAN  

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Topic: Bar discipline - Safeguarding client property - Miss.R.Prof.Cond. 1.15 - Confidentiality of information - Miss.R.Prof.Cond. 1.6 - Attorney-client relationship - Miss.R.Prof.Cond. 1.2(a) - Miss.R.Prof.Cond. 1.3 - Non-lawyer assistant - Miss.R.Prof.Cond. 5.3 - Miss.R.Prof.Cond. 5.5(b) - Conduct prejudicial to administration of justice - Miss.R.Prof.Cond. 8.4 - Sanctions

Summary of the Facts: The complaint tribunal of the Mississippi Bar found that attorney Gail Thompson had not violated Rules 1.2(a), 1.3, 1.6(a), or 5.5 of the Rules of Professional Conduct. However, the complaint tribunal determined that Thompson had violated Rules 1.15, 5.3, and 8.4(a), (d). As a result, Thompson was suspended from the practice of law for a period of one year and ordered to pay costs and expenses incurred by the Bar in the amount of $24.53. The Bar appeals.

Summary of Opinion Analysis: Issue 1: Safeguarding client property The complaint tribunal found that Thompson failed to adequately safeguard client property by losing or misplacing client files. The loss of client files constitutes a violation of Rule 1.15. Thompson admitted to losing client files that she had placed in an Oxford storage unit. Thus, she violated Rule 1.15. Issue 2: Confidentiality of information The complaint tribunal found that Thompson did not violate Rule 1.6 because there was no proof that she divulged any confidential client information. With certain exceptions, Rule 1.6 generally prohibits the disclosure of information relating to the representation of a client. While Thompson admitted to losing the client files in Oxford, there is no evidence that any of those files were divulged. Likewise, there is no evidence that any of the client files from her Tunica office were disclosed. Issue 3: Attorney-client relationship The complaint tribunal found that Thompson had not violated Rules 1.2(a) or 1.3 because no attorney-client relationship existed between Thompson and an inmate serving a life sentence. The Bar argues contends that a paralegal (former prisoner) hired by Thompson, acting as an agent for Thompson, communicated Thompson’s consent to act as the inmate’s lawyer and that Thompson should have known of the inmate’s reliance. For either Rule 1.2(a) or Rule 1.3 to be implicated, an attorney-client relationship must exist. A lawyer’s consent to represent a client need not be made by the lawyer himself. An agent for the lawyer may communicate consent, for example, a secretary or paralegal with express, implied, or apparent authority to act for the lawyer in undertaking a representation. Thompson hired the former prisoner to do legal research and draft briefs. He was told not to independently communicate with clients. Thus, he lacked express authority to communicate Thompson’s consent to represent a client. Thompson stated that the paralegal had not been given authority independently to communicate with clients and had been instructed not to sign any letters. She told him that any cases he worked on had to come through her office. Thompson included his name on the law firm letterhead, but identified him as a paralegal. Thus, there is insufficient evidence to support that Thompson, by her words, actions, or conduct, indicated that her paralegal had authority to communicate her consent to undertake the representation of a client. Also, no attorney-client relationship was established by Thompson’s failure to communicate her lack of consent to represent the inmate. Issue 4: Non-lawyer assistant The complaint tribunal found that Thompson had violated Rule 5.3 by failing to implement adequate safeguards to give reasonable assurance that the paralegal’s conduct complied with the professional obligations of a lawyer and that Thompson’s lack of supervision had permitted him to engage in the unauthorized practice of law. Thompson violated Rule 5.3 by failing to make sufficient efforts to supervise her paralegal’s work. This is especially true in light of his criminal past and Thompson’s awareness of the fact that he might have continued to work on cases from his earlier days as a writ writer. The tribunal determined that there was not enough evidence to show that Thompson knew or should have known that the paralegal was holding out himself or her firm as attorneys for the inmate. A lawyer’s failure to supervise a non-lawyer employee constitutes assistance in the unauthorized practice of law. Thompson’s failure to supervise and enforce necessary precautions allowed the paralegal’s actions to go unnoticed. Thus, Thompson violated Rule 5.5(b). Issue 5: Conduct prejudicial to administration of justice Whenever there is a violation of any other rule, there will always be a violation under Rule 8.4. Since Thompson violated Rules 1.15, 5.3, and 5.5(b), she violated Rule 8.4(a) as well. Issue 6: Sanctions In imposing a retroactive, one-year suspension, the complaint tribunal failed to examine the nine factors that are required to be considered in attorney disciplinary matters. Thompson’s conduct reflects a continuing pattern of neglect as to her professional responsibilities. Her neglect ultimately caused severe prejudice to the inmate. While Thompson acknowledged her wrongdoing and gave some indication that she has learned from her mistakes, the public maintains an interest in proper and prompt discipline. A one-year, retroactive suspension is insufficient. The case is remanded to the tribunal for consideration of the appropriate sanction(s) in light of the nine factors.


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