The Mississippi Bar v. Albert H. Turnage
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-BA-00324-SCT
THE MISSISSIPPI BAR
v.
ALBERT H. TURNAGE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
01/27/2004
HON. JANNIE M. LEWIS
COMPLAINT TRIBUNAL
ADAM BRADLEY KILGORE
GWEN COMBS
JAMES C. PATTON, JR.
CIVIL - BAR MATTERS
SUSPENSION AND COSTS - 06/16/2005
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 “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
1
Rule 5.3(b) provides that “a lawyer having direct supervisory authority over the
nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible
with the professional obligations of the lawyer.”
2
Rule 7.2(I) provides that “[t]he lawyer shall not give anything of value to a person
for recommending the lawyer’s services . . . .”
3
Rule 7.3(a) provides “[a] [l]awyer shall not by in-person or live telephone contact
solicit professional employment from a prospective client with whom the lawyer has no
family, close personal, or prior professional relationship when a significant motive of the
lawyer’s doing so is the lawyer’s pecuniary gain.
4
Rule 8.4(a) provides “[i]t is professional misconduct for a lawyer to: (a) violate or
attempt to violate the rules of professional conduct, knowingly assist or induce another to
do so, or do so through the acts of another.”
5
Rule 8.4(d) provides “[i]t is professional misconduct for a lawyer to : (d) engage in
conduct that is prejudicial to the administration of justice.”
6
Rule 5.3(c) provides that “a lawyer shall be responsible for conduct of such a
person that would be a violation of the rules of professional conduct if engaged in by a
lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the
conduct involved; or (2) the lawyer is a partner in the law firm in which the person is
employed, or has direct supervisory authority over the person, and knows of the conduct at
a time when its consequences can be avoided or mitigated but fails to take reasonable
remedial action.
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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
7
At the hearing before the Tribunal, Turnage in essence abandoned his contention
that his immediate remedial action negated his misconduct.
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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
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
4
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© 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).
Notwithstanding this clear statement of potential harm, this Court found that
5
Emil’s multiple acts of solicitation, without more, would warrant only a public
reprimand.8
These concerns should apply equally to prohibit paying others to locate
prospective clients, recommend a lawyer’s services, and obtain those prospective
clients’ signatures on professional service agreements.
¶8.
Here, the Mississippi Bar disputes the Tribunal’s characterization of Turnage’s
solicitation of approximately 100 potential clients as a “single incident.”
Both
the Bar
and the Tribunal emphasize the large number of potential clients contacted by
inappropriate means in this case, and the Bar argues that e ach contact should be judged
as a single violation.
Turnage argues that Williams contacted the potential clients over
a six-week period for the purpose of advancing litigation against Life of Georgia, thus
implying only one lawsuit. We hold that under the facts of the present case, it is not
necessary to determine a specific number of incidents, violations, or potential law
suits.
¶9.
In Emil, this Court found that Emil solicited a number of clients through a
private investigator between 1984 and 1988 and that he also shared fees with nonlawyers.
Id. at 305, 316-317, 327, 328.
These solicitations involved multiple cases.
We found “that for the solicitation of business the appropriate punishment for Mr. Emil
is a public reprimand. We also find that Mr. Emil was guilty of soliciting business and
8
Writing for the majority in Emil, Presiding Justice Sullivan wisely noted the
dilemma caused by case law allowing lawyers to advertise for clients while at the same time
continuing to hold that solicitation is a violation of the Rules of Professional Conduct,
stating that “ [t]he Bar’s official position on solicitation is difficult in light of the Bar’s
position on advertising.” 690 So.2d at 327.
6
sharing legal fees.
For this violation we order [indefinite] suspension of Mr. Emil’s
license to practice law.” Id. at 328.
The implication clearly was that more than one
solicitation would still warrant only a public reprimand, but no specific guidance was
given regarding “how many is too many.”
Although Turnage’s violation of the rule
against solicitation involved 100 potential clients, the infractions occurred over a very
short period of time, and more importantly, Turnage took immediate action to
acknowledge the error of his ways and to rectify the problem.
There was no proof
presented to the Tribunal of any harm to any of the many people who were solicited.
2. Need to Deter Similar Conduct
¶10.
That solicitation has the potential for creating litigation, creating fraudulent
claims, and turning our profession from one of service to one of profit, is perhaps more
evident today than when Emil was decided.
The purpose of attorney discipline is not
only to punish the wrongdoer, but also to deter other members of the Bar from engaging
in similar misconduct.
As this Court said in Emil, solicitation is a serious ethical
violation that invokes needless litigation and has the potential for
overreaching, which
can result in overcharging those who are unable to make an informed decision.
“The
need to deter similar misconduct among the bar at large is very strong.” Id. at 327. The
arguably lenient disposition in the present case should not be construed to mean that
this Court approves or encourages similar misconduct.
gain.
Turnage received no pecuniary
Indeed, he lost 63 potential clients, lost the $2,000 paid to Williams, and upon
imposition of the four- month suspension today, he will have further pecuniary loss.
3. Preservation of the Dignity and Reputation of the Profession
7
¶11.
Turnage argues that the dignity and reputation of the profession has not been
harmed because there is no finding that he committed any fraud, dishonesty, or neglect
of clients’ cases.
However, among many persons in our society today there is a low
regard for lawyers and the legal profession.
Consequently, in disciplinary proceedings
there is a strong need to rectify abuses in order to preserve the dignity and reputation
of the profession. “The Preamble to the Rules of Professional Conduct points out that
where members of the Bar neglect the responsibilities of self-governance, by being less
than diligent in weeding out abuses within the profession, both the independence of the
profession and the public interest which it serves are jeopardized.”
Rogers v. Miss.
Bar, 731 So.2d 1158, 1172 (Miss. 1999).
4. Protection of the Public
¶12.
“One of our duties, as a self-governing profession, is to protect the public
interest.”
Id.
“The public needs protection from lawyers who find it appropriate to
solicit business at any time or place.” Emil, 690 So.2d at 327. Turnage argues that a
public reprimand will adequately protect the public since this was his first offense.
He
chose not to contest the charges against him and took appropriate remedial action, by
terminating his relationship with Williams and the solicited clients,
rectify any harm his actions caused.
in an effort to
However, this Court still has a duty to discipline
offending lawyers, “not to punish the guilty attorney, but to protect the public, the
administration of justice, to maintain appropriate professional standards, and to deter
similar conduct.” Broome, 603 So. 2d at 353.
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5. Sanctions Imposed in Similar Cases
¶13.
There are few Mississippi cases dealing with attorneys who violate the rule
against solicitation. In Miss. State Bar Ass’n. v. Moyo, 525 So.2d 1289, 1298 (Miss.
1988), this Court disbarred a lawyer for numerous violations, including personal
solicitation, charging and securing an unconscionable fee, failure to keep records of
disbursements of client’s money, conversion of a client’s money, attempting to obtain
unsecured loan from client’s money, and failure to counsel client’s guardian as to duties
regarding client’s money.
These violations occurred in the course of one lawsuit.
When discussing the charge of solicitation, this Court held “[f]or this violation alone,
in a first offense, Moyo should receive a public reprimand.” Id.
A more recent and
insightful case is Emil, discussed above. As in Moyo, the Court in Emil held that the
appropriate punishment for solicitation was a public reprimand.
However, since Emil
was also guilty of sharing fees with a non-lawyer, this Court ordered the indefinite
suspension of Emil’s license until he passed all sections of the Mississippi Bar
Examination. Emil, 690 So.2d at 327.
¶14.
Turnage argues that the present case is different from Emil because “all of the
victims in the alleged acts [of Emil] were ‘persons suffering from the shock of loss or
serious injury to love one[s] . . . . They were vulnerable.’” Id. at 327 (quoting that
complaint tribunal’s opinion). According to Turnage, the potential clients approached
by Williams were not personal injury clients and thus the nature of misconduct was not
as great as in Emil. We reject this rationale. Additionally, the Court in Emil suspended
the offending attorney because he committed more than one violation:
9
solicitation of
clients and sharing fees with a non-lawyer.
In the present case, Turnage pled nolo
contendere to both solicitation and paying another person to recommend Turnage’s
services.
Thus, Turnage’s argument against following the punishment in Emil is
misplaced.
¶15.
The Bar argues that Turnage should be suspended for more than the two months
imposed by the Tribunal, because such a short suspension is inadequate to deter similar
misconduct by Turnage and other attorneys. In support of this argument, the Bar cites
several cases from other jurisdictions as examples.
to other states,
Although it is unnecessary to look
when the issue of appropriate punishment for solicitation and related
violations has been addressed by this Court in Moyo and Emil, we nevertheless review
the cases from other jurisdictions cited by the Bar involving violation of the prohibition
against compensating others for recommending an attorney’s services.
¶16.
In the case of In re Kennedy, 493 S.E.2d 705 (Ga. 1997), the Georgia Supreme
Court affirmed Kennedy’s eight-month suspension for paying individual non-lawyers
a fee for recommending his services. Kennedy is dissimilar to the present case in that
Kennedy admitted guilt only after being caught in an official state and media
investigation, whereas Turnage took immediate steps to end and remedy his violations.
Next, the Bar cites Cincinnati Bar Ass’n v. Haas, 699 N.E.2d 919 (Ohio 1998). In
Haas, the Ohio Supreme Court suspended Haas for one year for entering into an
agreement with an insurance company salesman to refer personal injury cases in
exchange for a portion of the fee earned.
This conduct occurred for six years.
The
present case differs from Haas, however, in that Williams was paid an hourly rate for
10
his time, not a percentage of the recovery. Finally, the Bar cites Cincinnati Bar Ass’n
v. Rinderknecht, 679 N.E.2d 669 (Ohio 1997). In Rinderknecht, the Ohio Supreme
Court suspended the offending attorney indefinitely for organizing a program in
conjunction with a business consultant and a doctor to call recent accident victims and
secure legal as well as medical business.
Rinderknecht and his associates not only
hired persons to call accident victims at home, but also hired persons to monitor police
radio scanners.
The employees listening to police radio scanners often arrived at the
scene of an accident before police and other emergency personnel.
The present case
differs from Rinderknecht obviously in the sophistication of the misconduct and the
personal injury nature of the cases.
6. The Lawyer’s Mental State
¶17.
Turnage testified that he graduated from the University of Mississippi School
of Law,
has been licensed to practice law in Mississippi since September, 1991, and
that he had served as a county attorney, Jefferson Davis County Justice Court Judge, and
Monticello’s municipal judge.
Turnage testified that he did not know that employing
Williams to solicit cases was a violation of the Mississippi Rules of Professional
Conduct.
In testimony before the Tribunal, Turnage admitted that he knew it was
unethical to solicit cases, but said he did not know using Williams to solicit cases was
also an ethical violation.
Turnage undertook remedial action as soon as he learned that
his conduct was unethical, and he was cooperative throughout the investigation.
7. The Actual or Potential Injury Resulting From the Misconduct
11
¶18.
The Complaint Tribunal found that there was no evidence of any actual or
potential injury to the persons contacted by Williams or those who signed contracts to
become clients of Turnage, and noted his immediate remedial actions.
The Bar,
however, argued generally that there was harm to the clients’ expectations and to the
public’s confidence in the legal system.
No specific evidence or testimony was
presented on this factor.
8. The Existence of Aggravating or Mitigating Factors
¶19.
To his credit, Turnage immediately terminated representation of the solicited
clients and his employment of Williams when he became aware of the potential
violations of the Mississippi Rules of Professional Conduct. His testimony to this fact
is undisputed.
Turnage also had no pecuniary gain from his ethical violations. Turnage
has shown remorse by his mitigating actions and nolo contendere plea.
in the investigation.
He cooperated
The Bar argues that the harm suffered by Turnage’s clients and
those he contacted cannot by “undone” by Turnage’s subsequent actions. However, this
Court looks favorably on attorneys who acknowledge their ethical violations and who
voluntarily take remedial action to lessen any harm caused or potential harm created.
See L.S. v. Miss. Bar, 649 So.2d 810, 813, 815 (Miss. 1994).
CONCLUSION
¶20.
After thorough review of the record and considering all of the criteria used by
this Court in determining appropriate discipline, we hold that Albert H. Turnage shall
be suspended from the practice of law for four months for violations of Rules 5.3(b)
and (c), 7.2(I), 7.3(a), and 8.4(a) and (d). There was no evidence of actual harm caused
12
by Turnage’s actions, and he took appropriate remedial actions when he became aware
of his violations. While this Court has previously stated that a public reprimand is the
appropriate punishment for the first time offense of solicitation, in this case a
suspension is warranted since Turnage also paid a person to solicit cases for him.
¶21.
ALBERT H. TURNAGE IS SUSPENDED FROM THE PRACTICE OF
LAW IN THE STATE OF MISSISSIPPI FOR FOUR MONTHS FROM AND
AFTER THE DATE OF THIS OPINION AND SHALL PAY THE COSTS OF THIS
DISCIPLINARY PROCEEDING.
SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH,
JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART
WITHOUT SEPARATE WRITTEN OPINION.
GRAVES, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
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