Barrett v. Mississippi Bar

648 So. 2d 1154, 1995 Miss. LEXIS 27, 1995 WL 11994
CourtMississippi Supreme Court
DecidedJanuary 12, 1995
DocketNo. 92-US-00336
StatusPublished
Cited by5 cases

This text of 648 So. 2d 1154 (Barrett v. Mississippi Bar) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrett v. Mississippi Bar, 648 So. 2d 1154, 1995 Miss. LEXIS 27, 1995 WL 11994 (Mich. 1995).

Opinions

ON PETITION FOR REHEARING

BANKS, Justice,

for the Court:

The original opinions in this case are withdrawn and these opinions are substituted therefor.

Today the issues we resolve center around an attorney’s handling of a petition for the removal of disabilities pursuant to Miss.Code Ann. § 93-19-19 (1972). We conclude that attorney Richard Barrett did not err in filing the petition for the removal of disabilities in Scott County. Despite that, we find that Barrett violated his oath of office, as well as Mississippi Code of Professional Responsibility, Disciplinary Rules 1-102(A)(4, 5, and 6) by failing to inform the court that a guardianship existed in Rankin County. Consequently, we affirm the public reprimand ordered by the tribunal.

Conversely, even though we conclude that while Barrett engaged in unnecessary gamesmanship when he refused to move for a continuance, he should not incur a fine where the tribunal continued the matter, sua sponte, based on its assessment that Barrett was not physically able to proceed, despite the fact that Barrett was present and continuing to refuse to request a continuance, for the stated reason of preserving his “speedy trial” argument. We vacate the order assessing the fine.

I.

This appeal arises out of a disciplinary hearing in which the Complaint Tribunal of the Southern District of the Mississippi State Bar found that Richard Barrett violated DR’s 1-102(A)(3, 4, 5 and 6) of the Mississippi Code of Professional Responsibility and the Attorney’s Oath of Office. The complaint was filed in 1982. The merits of the case were not heard until 19.91. The initial proceedings in which the Committee on Complaints recommended a public reprimand came before this Court in Attorney K v. Mississippi State Bar Ass’n, 491 So.2d 220 (Miss.1986). There we found Barrett’s procedural rights to have been violated and remanded for further proceedings. After remand and a full hearing in May of 1991, the Tribunal imposed a public reprimand as the appropriate sanction. Barrett filed a motion for reconsideration. The motion was denied. Barrett appealed. The Bar cross appealed.

The basis of the Bar’s action against Barrett revolves around Barrett’s representation of the MacPherson family (Charles, the father, and Brenda, the daughter) in a removal of disabilities proceeding in the Chancery Court of Scott County. Shirley MacPherson, Charles’ former wife and Brenda’s mother, was killed in an automobile accident on January 18, 1978. Brenda, who was then fourteen-years old, was Shirley’s only surviving heir.

On July 17, 1978, Charles, represented by Barrett, filed a petition for general guardianship of the person and estate of Brenda wherein he asked to be appointed general guardian of said minor and to be authorized to pursue whatever actions at law or equity against various individuals or entities, who may be liable to Brenda. On the same day a decree appointing Charles as the guardian over his daughter’s person was entered. Charles also filed on that day a petition to sell Shirley’s residence for $15,000. The chancellor disapproved the sale because he was personally familiar with the value of the property involved. The chancellor ordered an appraiser’s opinion concerning the fair market value of the house. On July 21,1978, an amendment to petition for sale of real property was filed by Charles to sell Shirley’s property for $23,000. The appraisal placed the value of the house at $22,000. The petition was granted.

On August 17, 1978, Charles filed a petition to substitute guardian as plaintiff in an [1156]*1156action pending, for authority to settle an insurance suit for $10,000, to approve an attorney contract and fee of $5,000, to pay funds and to provide allowance to guardian for ward. The court granted the relief sought by Charles with the exception that only $500 was approved for Barrett’s attorney fees because he did not support his request with the production of sufficient documentation justifying a larger fee.

Charles’ father Bill was appointed guardian ad litem in March of 1978. The Court found on its own motion and for good cause shown, that Charles had absented himself from the jurisdiction of the court, had neglected, refused and failed to perform his duties and responsibilities as guardian and it was reasonable and proper for Charles to be removed as guardian.

Barrett later filed a petition for permission to withdraw as counsel for the minor and for payment of attorney fees. In his petition, Barrett alleged that despite diligent effort, he had not been able to locate his client. An ex parte hearing was held before the Chancery Court of Rankin County, Mississippi, resulting in the entry of a decree approving final accounting, removing Charles as guardian, removing Bill McPherson, Brenda’s grandfather, as guardian ad litem, appointing the chancery clerk as guardian, and approving withdrawal of counsel and granting leave to Barrett to become a party in the guardianship case for the purpose of protecting any attorney fees awarded him for the service he had provided the guardianship.

From August of 1979 until February 1982, the guardianship and estate cases remained dormant. In February 1982, Barrett asked Hinds County Chancellor Paul Alexander what the usual procedure would be with regard to the removal of disability of minority for a minor. Shortly thereafter, Barrett made the same inquiry with the Rankin County Chancellor, who wanted to know to which case he was making reference. Barrett informed the chancellor that the reference involved the case of Brenda Carol McPherson. The chancellor looked through Brenda’s file and found a draft of the petition to remove the disability of minority. The chancellor informed Barrett that he would require extensive proof of the minor’s ability to manage her own estate before he would consider removing her disability of minority.

Subsequently, it is alleged, the McPher-sons moved to Scott County. On March 3, 1982, Barrett filed a petition for general removal of disability of minority on behalf of Brenda in the Chancery Court of Scott County, Mississippi. Charles and Bill, Brenda’s father and grandfather, joined in the petition. The petition was heard on an ex parte basis before the special chancellor. According to the chancellor, the reason given for the removal of disabilities was Brenda wanted to enter into the restaurant business with Charles and Bill and needed to be able to sign contracts and enter into various business relationships on behalf of the restaurant enterprise. Although the question of financing the restaurant arose, neither Barrett nor his clients informed the chancellor that Brenda wanted to enter a business venture, and stood to gain access to approximately $20,000 in her guardianship estate.

The special chancellor granted the petition on March 3, 1982. Six days later Barrett filed a petition for closing estate, for dissolution of guardianship, for accounting and disbursal of funds to be filed by Brenda in the Chancery Court of Rankin County, Mississippi. The Rankin County Chancellor then contacted the special chancellor and informed him of the possibility of fraudulent procurement of a decree in Scott County Chancery Court removing the disability of the minor.

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Cite This Page — Counsel Stack

Bluebook (online)
648 So. 2d 1154, 1995 Miss. LEXIS 27, 1995 WL 11994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrett-v-mississippi-bar-miss-1995.