Goeldner v. Miss. Bar
| Docket Number: | 2003-BA-00336-SCT Linked Case(s): 2003-BA-00336-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 07-01-2004 Opinion Author: Graves, J. Holding: SUSPENDED |
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| Additional Case Information: |
Topic: Bar discipline - Ineffective assistance of counsel - Default judgment - Suspension Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., and Dickinson, J. Non Participating Judge(s): Diaz and Carlson, JJ. Dissenting Author : Easley, J. Concurs in Result Only: Randolph, J. Nature of the Case: CIVIL - BAR MATTERS |
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| Trial Court: |
Date of Trial Judgment: 01-08-2003 Appealed from: COMPLAINT TRIBUNAL Disposition: Found that Goeldner should be suspended for 90 days (with sixty days suspended if the fee at issue were submitted to the Fee Dispute Resolution Committee of the Bar), and ordered that he pay $380.99 to cover the costs of the Bar. Case Number: 2002B1156 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Christian T. Goeldner |
MARY LYNN WILLIAMS DAMARE’
GERALD W. CHATHAM |
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| Appellee: | The Mississippi Bar | ADAM B. KILGORE |
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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. |
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| Topic: | Bar discipline - Ineffective assistance of counsel - Default judgment - Suspension |
| Summary of the Facts: | Christian Goeldner was served by a complaint alleging that he had charged a client unreasonable fees in violation of Mississippi Rule of Professional Conduct 1.5. A default judgment was issued against Goeldner after neither he nor his attorney appeared before a Complaint Tribunal of the Mississippi Bar. The Tribunal found that Goeldner should be suspended from the practice of law for 90 days and ordered that he pay $380.99 to cover the costs of the Bar. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Goeldner argues that he be granted a rehearing because he had ineffective assistance of counsel, i.e., the attorney he retained failed to file notice of appearance and a continuance. Since bar disciplinary matters are quasi-criminal, Goeldner argues that he has a claim for ineffective assistance of counsel. No state recognizes such a right. While a bar disciplinary proceeding is quasi-criminal in nature, it is not sufficiently criminal in nature to trigger the protection of Strickland v. Washington. Issue 2: Default judgment There are three factors which are considered before setting aside a default judgment: whether there is good cause to set aside the default; whether there is a colorable defense on the merits of the claim; and, the nature and extent of prejudice which may be suffered by the proponent of the default judgment if the default is set aside. Goeldner argues that he has a colorable defense: it is impossible to determine if the fees he charged the client were excessive without further evidence and that the fee was actually reduced. Simply because the fee was reduced does not determine if the fee were actually reasonable. By the very terms of the form contract Goeldner entered into with the client, Goeldner’s charges were per se unreasonable. He contracted to bill no more than 50% of his hourly fee for the services of a law clerk, but instead he billed the same as if he had done the work himself. Goeldner cannot defend the billing, since by the very terms of the contract it was unreasonable. Therefore, the default judgment entered by the special tribunal stands. Issue 3: Suspension Goeldner argues that his ultimate reduction of the fee should be considered as mitigating evidence. In Goeldner v. Miss. State Bar Ass’n, 525 So.2d 403 (Miss. 1988), Goeldner was found to have created a new and wholly fictitious billing file that totaled the same amount he would have made if he were allowed to charge $100 an hour. His conduct constituted a fraudulent misrepresentation to the court and to the client. He was disbarred for two years. In light of the aggravating circumstance of a previous disbarment for a fraud upon the court, the 90-day suspension is not an excessive punishment. |
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