Professor Bell Will be Interim Dean at Ole Miss Law

March 5, 2015 § 3 Comments

This message from the office of the Provost at Ole Miss arrived yesterday:

School of Law Announcement

Dean Richard Gershon has informed me that he has decided not to stand for quadrennial review and that his service as Dean of the School of Law will conclude on June 30, 2015. I have asked Professor Deborah Bell to assume the role of Interim Dean of the School of Law for the near future. Dean Gershon and Dean Bell will begin to work out the plans for transition immediately.

Please join me in thanking Dean Gershon for his dedicated service to the School of Law. We are pleased that Dean Gershon will remain with the University as one of our valued faculty colleagues.

Thank you,

Morris H. Stocks

Provost

Only yesterday I posted about the schedule for this year’s Bell Family Law Seminars.

I know Professor Bell will do a superlative job as interim, and I will keep my fingers crossed that, if she wants it, she will be offered the job as Dean of the School of Law. I can’t think of anyone more capable.

I only hope that this does not sidetrack her in her role as foremost authority on Mississippi family law. If it does, I hope she has a worthy successor.

Congratulations, Debbie.

Bell Seminar Save the Date

March 4, 2015 § 2 Comments

I’ve said here more times than I can count that if you are going to practice any family law in Mississippi, you must own and use a copy of Professor Deborah Bell’s definitive text on the subject, and you should rearrange your schedule to attend her annual seminar, which is by far the most complete and informative update available. Here is the info about the 2015 edition:

The 19th Annual Family Law CLE

Professor Deborah Bell, Seminar Leader

This year’s Family Law CLE will be presented
on the following dates and locations:

Jackson · Friday, July 17, 2015
Mississippi Sports Hall of Fame and Museum
1152 Lakeland Drive, Exit 98B off I-55

Oxford · Friday, July 24, 2015
Oxford Conference Center, 102 Ed Perry Blvd
Hwy 7N, Sisk Ave Exit

Gulf Coast · Friday, July 31, 2015
Imperial Palace, 850 Bayview Avenue, Biloxi

_______________

Save the dates for this annual 6 hour CLE
providing comprehensive overviews of the
last year’s family law developments.
Includes one hour of ethics credit.

Register online at
www.msfamilylaw.com

or send your registration fee ($225) to:

Family Law CLE
426 S Lamar Blvd, Suite 16 Oxford, MS 38673

Make check payable to:
Family Law CLE
fax: 662-234-9266

Carroll Chiles Moore, Conference Coordinator


email: msfamilylaw@nautiluspublishing.com
phone: 662-513-0159
REGISTER NOW, ONLINE! http://msfamilylaw.com/

 

A Recusal Circus

March 3, 2015 § 19 Comments

I posted here before about the confusion spawned in Boatwright v. Boatwright when the chancellor recused himself after entering a final judgment in 2009, but before ruling on the R59 motion.

The case landed in the lap of the other sitting chancellor in the district, who refused to rule on the R59 motion because he had no knowledge of the case. He opined that the better course of action would be for the lawyers to take an appeal. And that is what they did.

The COA ruled in 2011 that the second chancellor should have ordered a transcript and gained enough knowledge of the case to enable him to decide the R59 motion. The case was reversed and remanded with instructions.

Now, apparently, six years after the original judgment that birthed this controversy, the parties are back on appeal before the COA.

This time, though, five (5) of the COA judges have recused themselves. Since six are needed for a quorum, what exactly is to be done to allow the Boatwrights their (latest) day in court? Jane Tucker tells us on her blog.

I don’t recall a case in which six judges recused themselves. The order does not reveal reasons for the recusals.

It would definitely have entertainment value, however, if the remnant of the COA deciding the case were to remand the case again, only to have the chancellor recuse himself. There is a new chancellor now in that district, which opens the possibility that he could recuse himself, too. Or, he could hear the case, have it remanded yet again, and then recuse himself on remand. That’s probably too much to hope for. The law is seldom that entertaining.

Quo Vadis Gay Marriage in Mississippi?

March 2, 2015 § 3 Comments

The MSSC has the gay-marriage issue before it, as does the SCOTUS.

Last Thursday the Mississippi court issued an order calling for more briefing and indicating that it may well stay the Mississippi appeal until the SCOTUS can rule.

You can read the MSSC order in the case of Czekala-Chatham v. State of Miss. for yourself, with objecting opinions, but here is what the court wants briefed:

In light of Mississippi’s public policy of not allowing or recognizing a marriage between two persons of the same gender, what rational basis supports the interpretation or application of a law or constitutional provision so as to prohibit Mississippi courts from granting a divorce to a Mississippi resident who was lawfully married in another state to a person of the same gender?

So, what does this portend?

The only clear indication is in the three objections: Chandler clearly would uphold the Mississippi laws; King and Kitchens would not.

Oh, and the other pretty clear direction in this case is that it apparently will be sidetracked to let the feds decide the issue. Justice King decries that as a dereliction of duty.

It’s an interesting case. Stay tuned.

 

Scene in Mississippi

February 27, 2015 § 9 Comments

IMG_0827Where?

 

A Short Course in Family Law

February 26, 2015 § Leave a comment

Thanks to Randy Wallace …

Ask Randy, v1

Ask Randy, v2

 

No Change = No Modification

February 25, 2015 § Leave a comment

Nathan and Kathryn Robinson were married in January, 2004. At the time of the marriage, Kathryn was pregnant with the parties’ daughter, Bailey, who was born in July, 2004. During the pregnancy, Kathryn was diagnosed with Hodgkin’s lymphoma. Shortly thereafter, Nathan and Kathryn separated, and Kathryn moved in with her parents.

The couple were granted an irreconcilable differences divorce on May 3, 2005, and they agreed that Kathryn would have custody of Bailey.

Kathryn moved to her own place after the divorce. Over time, she developed neuropathy in her hands as a result of the chemotherapy she underwent for her lymphoma, which made it impossible for her to drive. She had to rely on her parents to help transport Bailey to and from school, which meant that the child often stayed overnight with her grandparents on school nights. She slept at Kathryn’s on weekends and during vacations.

In 2009, Nathan filed a modification action seeking custody of Bailey. He alleged that Kathryn’s health condition impaired her ability to care for Bailey, and that Kathryn had ceded her parental responsibility to her parents. Following a trial, the chancellor found that there had been no change in circumstances because Kathryn’s health condition existed at the time of the divorce, and that Kathryn had not abdicated her parental duties in favor of her parents. Nathan appealed.

In the case of Robinson v. Robinson, handed down February 10, 2015, the COA affirmed. The opinion by Judge Griffis agrees with the chancellor’s conclusion about the pre-existing condition, and recites the familiar rule that where the parties are aware of the condition at the time of the divorce, neither may try to use it later as a basis to modify. The court relied on the same principle to affirm the finding that Kathryn had not abandoned her role as a parent since both parties knew at the time of the divorce that she would have to have help from her parents with Bailey. The opinion distinguishes the case of McBride v. Cook, 858 So.2d 160 (Miss. App. 2003), in which the mother totally abdicated her parental role, which was unforeseen at the time of the original custody judgment.

As an attorney, you do not always know what all of the circumstances are that might affect a later proceeding. We don’t know from the COA case what the exact language was that effected the custody agreement in the divorce action. If you were Kathryn’s attorney at the time, wouldn’t it have made you look like a genius if you had spelled out specifically in the PSA what her health condition was at the time, and that she was going to have to rely on help from her parents, but that Nathan nonetheless agreed for her to have custody? What an airtight package that could have been.

I also wonder whether more emphasis on the neuropathy and its impact on continued custody, perhaps bolstered with some expert opinion testimony, might have tilted the result in Nathan’s direction. A good argument could be made that, although the Hodgkin’s was known at the time of the divorce, the complication of neuropathy was not, and it arguably has a direct detrimental effect on custody.

As the COA opinion pointed out, though, the record was clear that Kathryn had a pretty good track record of taking care of Bailey, even with her physical impairments, so the modification case was an uphill climb.

A Blog Voice Goes Silent

February 24, 2015 § 2 Comments

The blogosphere seems to be too young for its stars to begin winking out, but that is exactly what happened with the passing of Tom Freeland of Oxford, who died last Saturday at a young 59 years.

Tom first came to my attention as a reporting attorney on Jan Goodrich’s FOLO blog (now defunct). That blog bird-dogged various legal issues, and especially all of the litigation in which Dickie Scruggs was embroiled leading up to his spectacular criminal flame-out in 2007. Tom filled in important details for those following the cases, especially the criminal cases. Tom’s reporting was even referenced by the NYT in its reportage of the Scruggs affairs.

Tom began his own blog, NMissCommentor, in which he continued to share details of the Scruggs cases. He served up a large helping of entertaining general interest, as well. He posted about the Mississippi blues performers and blues culture, Mississippi music and musicians, and Mississippi writers. He talked about local food and recipes. There was political commentary, legal analysis, literary discussion, and general humor. His posts always drew a lively exchange of comments.

Tom was not only a blogger. He was a well-respected litigator and counselor who mentored many a young lawyer.

In sum, Tom was a civilized man and accomplished attorney who cared deeply about his home state and spoke through his blog to try to influence others.

The last time I saw Tom was last October the Friday before the Ole Miss – Alabama game. I had gotten an email from his wife, Joyce, inviting us to a soiree at their office off the Square in Oxford. Tom had hired a blues band to perform on the lawn in front of his law office, and the event was to honor former Gov. William Winter, who spoke to the assembled throng. There was a nice crowd. Many law students and recent law graduates were there. When Tom learned that we had in tow with us a couple who were Alabama fans, but were big Faulkner fans, too, Tom took time away from his other guests to take us on a tour of his office, which Faulkner frequented as a friend and client of Phil Stone, Tom’s dad’s law partner. Tom spun tales about Faulkner and Oxford, and had our bama friends in thrall. That was quintessential Tom, as I understand from his other friends who knew him far better than I did.

It’s hard to conceive that there will be no new, pithy posts on Tom’s blog to look forward to every week. I can’t imagine that there is another Mississippi blogger who could step into Tom’s shoes and offer a comparable range of insight into issues and things that matter to us in our state.

That’s a shame. There are niche legal blogs like this one, Philip Thomas’s, Jane Tucker’s, and Judge Griffis’s, and there is the acerbic and enigmatic Anderson. There are legal marketing blogs. But there is no one out there now with the breadth of Tom’s interests. He will be sorely missed. Sincere condolences to Joyce, their family, friends, colleagues, and staff.

Dealing with the Intruder

February 23, 2015 § 2 Comments

In an earlier, more genteel era, it was unheard of that one lawyer would talk with a party already represented by another lawyer without that lawyer’s permission. Okay, maybe not unheard of, but certainly not considered acceptable behavior.

Nowadays, though, I’m hearing lawyers telling me about receiving emails from other lawyers to the effect that “I’ve talked to your client and she’s firing you; I’m sending you the paperwork in a couple of days.” It’s a dog-eat-dog world out there, I guess.

Two situations I heard of lately:

First: Lawyer One is preparing for trial and receives a letter from Lawyer Two to stop whatever One is doing because Two is going to substitute in the case and take over for trial. What is One to do?

Second: Attorney One receives a letter from Attorney Two that the executor of the estate wants One out, and Two in. The letter includes allegations of impropriety committed by One, with veiled threats of action, and enclosed is an affidavit of the executor confirming the contents of the letter.

Before going any further, I need to add that in both cases the second attorney never did make that appearance. In the first case, Lawyer Two simply never followed through. In the second case, Attorney Two sent a brief email saying he had decided not to get into the case.

The underlying principle here is that once a lawyer enters an appearance in a case he is in it until the judge signs an order letting him out. Just because another lawyer claims to be poaching the client, or the client says “you are fired,” does not relieve the lawyer of his responsibility to the court. As the lawyer of record, you are in it until the judge lets you out.

In Scenario One above, the dilemma is that the lawyer is prepping for trial, and now is in a quandary as to whether to continue to invest time in the case or get out. An obvious first step is to contact the client immediately to get some clear directions. If the client clearly wants the attorney out, or if the client will not communicate, the lawyer should file a motion immediately with the court asking for directions, spelling out the communication from the other attorney. She should do it without delay, because judges tend to be loath to further postpone a case that has been riding the docket for a while, and getting the judge to vacate a rare trial date is an uphill climb. She should give notice of hearing to the attorney on the opposing side, of course, and also the interloping lawyer, as well as the client. In this scenario there is always the option to cut the client loose — represented or not — provided it results in no irreparable harm.

In Scenario Two, the problem is that the Uniform Chancery Court Rules require the fiduciary to be represented by a lawyer. Most chancellors hew strictly to the rule and will not allow the lawyer who has entered an appearance to get out unless and until there is a replacement. Still, I would file a motion as soon as possible, with notice to the fiduciary and the interloping lawyer, asking the court for directions.

In both scenarios, while motions are pending I would continue to do whatever needs to be done to protect the client’s interest, such as meeting deadlines for identification of experts, issuing subpoenas, and so on, knowing full well that I might not be compensated for it. You can’t assume that the judge will let you out, so you have to do what needs to be done.

The question remains whether it is ethical to confer with a person about a matter in which the person is already represented by a lawyer. MRPC 4.2 clearly prohibits a lawyer in a case from communicating with another represented party about the subject matter of the case without permission of that party’s lawyer. It says that “In representing a client, a lawyer shall not communicate about the subject matter of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so” [Emphasis added]. Here’s what Professors Jackson and Campbell have to say about it:

Rule 4.2 is sometimes misinterpreted as preventing a lawyer from having contact with any represented person. As noted, the rule only applies if the lawyer himself has a client in a matter. For example, sometimes a represented client will seek to discuss her case with a second disinterested lawyer (who has no other client in the matter), as in circumstances where the client is considering firing the existing counsel to hire the second lawyer. Such conferences can be socially useful, as these consultations can give the client a second opinion regarding her representation. Such consultations can also give the client an opportunity to determine whether the client is being adequately represented at reasonable rates.

It is not unprofessional for the second disinterested lawyer to discuss options with the represented client Rule 4.2 does not apply in such contexts. The second lawyer does not need permission of the client’s existing counsel in order to have such a consultation with the represented client. Some lawyers are hesitant to “look over another lawyer’s shoulder” or to speak ill of another lawyer’s work. Others may not want to interfere with another lawyer’s client relationships. Any reluctance the second lawyer may have discussing the work of client’s existing counsel may be based on professional courtesy or on other factors. However, again, Rule 4.2 is not implicated in these consultations. [Footnotes omitted]

J. Jackson and D. Campbell, Professional responsibility for Mississippi Lawyers, § 21-3 (2010).

If you find yourself in the position of the interlopers above, do everyone a favor and refrain from notifying pre-existing counsel that you are going to jump in until you are absolutely certain that you are going to do it. Just because a person visits with you and extracts some advice from you does not necessarily make that person a client for court purposes. If you quoted a fee and made it clear that you will not enter the case until you are paid the agreed sum, there is no need to act until it has been paid.

February 21, 2015 § 1 Comment

R.I.P. Attorney Tom Freeland of Oxford earlier today.

 

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