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Justice Kitchens thinks he and his colleagues have a duty to report bar misconduct.

Another Justice Court judge came before the Mississippi Supreme Court for misconduct.  This one had been previosuly sanctioned, and so this time out, gets a thirty day suspension for not following the law in a way that wasn’t just mistaken, ex parte contact with parties, and generally interfering with cases either not before him or otherwise not really in his charge.

That is not particularly newsworthy.

The interesting part is a dissent by Justice Kitchens (in which none of the other 7 sitting on the case join).  He concludes:

Duty to Report Attorney Misconduct

¶53. Finally, although I agree that Counts Two and Four provide a sufficient factual basis for sanctions against Judge Thompson, our ruling should not be limited to the judge. In both situations, members of the Mississippi Bar played active roles in the misconduct. Our Rules of Professional Conduct tell us that, “[i]t is professional misconduct for a lawyer to . . . knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” Miss. R. of Prof’l Conduct 8.4 (f). In addition,

A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Miss. R. of Prof’l Conduct 8.3(a). In the present case, Counts Two and Four involved lawyers’ asking a nonlawyer judge to engage in conduct that this Court has adjudicated sanctionable. Thus, as a matter of law, these lawyers seem to have violated Rule 8.4 (f), and as members of the Bar, we justices are duty-bound to report this apparent professional misconduct. Miss. R. of Prof’l Conduct 8.3. ¶54. Moreover, at least five members of the Mississippi Commission on Judicial Performance also are lawyers, and, it follows that they too are required to report lawyers’ misconduct. Miss. Const. art. 6, § 177A. While a report may have occurred, we are not informed whether the Bar has been notified of the Commission’s findings in the present case. In future judicial performance matters, where it is apparent that attorneys have actively participated in the alleged misconduct, the Commission should take steps to “inform the appropriate professional authority,” and also should notify this Court whether such report has been made.

This is a drum I have been beating for some time:  Why doesn’t the Supreme Court feel compelled to do something when there is misconduct evident in the record before them? This point was truly driven home in a couple of the cases that came out of the Judge DeLaughter – Ed Peters relationship, particularly that land case where Peters went to DeLaughter’s home to get an ex parte order stopping the enforcement of a judgment  (long-ago readers of www.folo.us will remember it.  I’ll pull up links if there is sufficient interest).

We know at least one of nine down there are thinking about this issue.

For the curious, here is the facts in Count One:

On or about December 1, 2008, a local attorney, Frank B. Liebling, went to the Lee County Justice Court office to file a complaint against a client who ha[d] stopped payment on a check issued to Liebling for attorney fees.

Liebling did not file the complaint and no action was pending before the court. Instead, Liebling took the proposed complaint and engaged in an ex parte conversation with Respondent. As a result of the meeting, Respondent signed an order nullifying the stop order on the check in question and ordered the bank to cash the check immediately.

The bank officers, being suspicious of the order, contacted the attorneys for the bank and the next day after a conference with the bank attorneys and Liebling, Respondent rescinded the nullification order due to improper process.

Here are the facts in Count Two:

Robert Gary Orozen, Jr. was arrested and charged with the felonies of forgery, possession of a counterfeit check and possession of false identification in October, 2008 in State of Mississippi vs. Robert Gary Orozen, Jr., Docket 571, Pages 253-254.

On or about October 28, 2008, Lee County Justice Court Judge Sadie Holland presided at the initial appearance and set bond at $250,000.00. On January 29, 2009, counsel for the defendant filed a Motion to Reduce Bond and for Preliminary Hearing. On April 7, 2009, Judge Holland denied the defendant’s request for bond reduction and a preliminary hearing was scheduled for May 27, 2009. That same date, counsel for defendant approached Respondent regarding the request for bond reduction.

The next day, April 8, 2009, Respondent reduced the defendant’s bond to $5,000.00 and he was released and transferred to the custody of another law enforcement agency.

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