Mississippi Bar v. Turnage

919 So. 2d 36, 2005 Miss. LEXIS 839, 2005 WL 1499983
CourtMississippi Supreme Court
DecidedJune 16, 2005
Docket2004-BA-00324-SCT
StatusPublished
Cited by1 cases

This text of 919 So. 2d 36 (Mississippi Bar v. Turnage) 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
Mississippi Bar v. Turnage, 919 So. 2d 36, 2005 Miss. LEXIS 839, 2005 WL 1499983 (Mich. 2005).

Opinion

919 So.2d 36 (2005)

The MISSISSIPPI BAR
v.
Albert H. TURNAGE.

No. 2004-BA-00324-SCT.

Supreme Court of Mississippi.

June 16, 2005.

*38 Adam Bradley Kilgore, and Gwen Combs, Jackson, attorneys for appellant.

James C. Patton, Jr., Kosciusko, attorneys for appellee.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. The Mississippi Bar appeals a decision of the Complaint Tribunal imposing on attorney Albert H. Turnage a six-month suspension from the practice of law, of which four months were stayed on the condition that Turnage not violate any Rule of Professional Conduct during the effective six months. Turnage pled nolo contendere to charges brought against him by the Mississippi Bar for violation of Rule 5.3(b)[1], Rule 7.2(I)[2], Rule 7.3(a)[3], and Rule 8.4(a)[4] and (d)[5] of the Mississippi Rules of Professional Conduct, but challenged the Bar's charge of violation of Rule 5.3(c).[6] Following a hearing, the Tribunal consisting of Jannie M. Lewis, Gregory K. Davis and Constance Slaughter-Harvey found that Turnage violated each of the above rules, including 5.3(c). The Mississippi Bar argues that the two-month suspension imposed by the Tribunal was *39 "too lenient and insufficient to deter like and similar conduct from being committed by Mr. Turnage and other lawyers." The Bar does not recommend a specific period of suspension for Turnage, mentioning only a "lengthy suspension." Turnage argues that a suspension is not a reasonable sanction for a first offense of solicitation and that he should receive only a public reprimand. Because this was Turnage's first offense, and he promptly acknowledged his misconduct, took immediate remedial action, and pled nolo contendere to all but one charge,[7] we hold that he should be suspended from the practice of law in the state of Mississippi for four months, which shall begin on the date of this opinion.

FACTS

¶ 2. There is no dispute as to the facts of this case, and we adopt the following factual findings from the opinion of the Complaint Tribunal:

On a date in May 2002, Dennis Williams (hereinafter Mr. Williams) contacted Mr. Turnage in inquire about the possibility of Mr. Turnage hiring him to assist in finding Plaintiffs for insurance litigation that Mr. Turnage was advertising. Mr. Williams advised Mr. Turnage that other attorneys had utilized his services in the past. Mr. Turnage hired Mr. Williams, a former insurance salesman, and gave Mr. Williams a client package which contained a client intake form, a set of questionnaires and Mr. Turnage's retainer agreement. Mr. Williams contacted approximately one hundred (100) potential clients and successfully signed sixty-three (63) as clients. Mr. Williams made the decision that the potential clients were eligible to participate in the Life of Georgia litigation and had them to sign Mr. Turnage's retainer agreement. This took place over a period from sometime in May 2002 to June 14, 2002. On or about June 14, 2002, Mr. Williams returned the clients' packages that included the retainer agreements to Mr. Turnage.
After Mr. Turnage received the clients' packages from Mr. Williams, clients began to call him about the litigation. One client advised Mr. Turnage that he/she never signed the agreement and that his/her name had been forged. Mr. Turnage consulted with another member of the Bar regarding the clients signed by Mr. Williams. Upon being advised the procedure used to sign clients may have violated MRPC [Mississippi Rules of Professional Conduct], Mr. Turnage terminated his arrangement with Mr. Williams, on or about June 27, 2002, and did not pursue any of the sixty-three (63) cases signed-up by Mr. Williams. Mr. Turnage paid Mr. Williams $20.00 per hour, including mileage. A 1099 tax form for the year 2002 showed that Mr. Turnage paid Mr. Williams a total of $2,000.00 in compensation. This was the only occasion Mr. Turnage had used a non lawyer, independent contractor/investigator to contact potential clients. Mr. Turnage stated that he did not realize Mr. Williams could not have clients sign his retainer agreements, until he had a conversation with his attorney, James C. Patton, Jr., on or about June 27, 2002. Mr. Turnage has practiced law since 1991 and has held positions as Municipal Court and Justice Court Judges.

¶ 3. The briefs and record do not explain the nature of the insurance litigation for which Turnage was soliciting clients except that the insurance company was Life of *40 Georgia. The Insurance Questionnaire admitted into evidence contained questions generic to any insurance company, such as "[h]as the agent ever stolen your premiums?" and "[a]gent ever lied to you?" In addition, although he acknowledged advertising for other types of mass torts besides insurance, Turnage explained that the clients approached by Williams were not personal injury clients and had not sustained physical injuries. We make no distinction between solicitation for clients in insurance litigation and in other litigation.

ANALYSIS

¶ 4. This Court has exclusive jurisdiction over all matters pertaining to attorney discipline and is "the ultimate judge of matter[s] arising under the Rules of Discipline for the Mississippi Bar." Miss. Bar v. Thompson, 797 So.2d 197, 198 (Miss.2000). In order to be subject to discipline, an attorney must be shown by clear and convincing evidence to have violated a rule of professional conduct. Goodsell v. Miss. Bar, 667 So.2d 7, 9 (Miss. 1996). Upon appeal this Court reviews the entire record and the conclusions of the Tribunal de novo. R. Discipline Miss. Bar 9.4; Broome v. Miss. Bar, 603 So.2d 349, 353 (Miss.1992). The Court may impose sanctions of either more or less severity than those imposed by the Complaint Tribunal, although deference may be given to the Tribunal's findings because it has the opportunity to observe the demeanor and attitude of the witnesses. Broome, 603 So.2d at 353.

¶ 5. Rule 9(b) of the Rules of Discipline limits the sole question on appeal, with regard to the five violations to which a plea of nolo contendere is entered, to the nature and extent of discipline to be imposed. Miss. Bar v. Walls, 890 So.2d 875, 877 (Miss.2004). Turnage's appeal with regard to the Tribunal's finding of the violation of Rule 5.3(c) also challenges only the discipline imposed.

¶ 6. In measuring the appropriateness of attorney punishment for violation of the Rules of Professional Conduct, this Court weighs the following factors: (1) the nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the preservation of the dignity and reputation of the profession; (4) the protection of the public; (5) the sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer's mental state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence of aggravating or mitigating factors. Id.

1. Nature of the Misconduct Involved and the Duty Violated

¶ 7. This Court has previously stated that "[s]olicitation has never been recognized as beneficial to the profession or to the client. It has the potential for creating litigation, creating fraudulent claims, and turning our profession from one of service to one of profit. Solicitation can result in a diminished status for the lawyer and be harmful to the profession's reputation." Emil v. Miss. Bar, 690 So.2d 301, 327 (Miss.1997).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Universal Building Products
486 B.R. 650 (D. Delaware, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
919 So. 2d 36, 2005 Miss. LEXIS 839, 2005 WL 1499983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-bar-v-turnage-miss-2005.