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MOTION TO STRIKE - Motion To Stay (PKH)
 

MOTION TO STRIKE - Motion To Stay (PKH)

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    MOTION TO STRIKE - Motion To Stay (PKH) MOTION TO STRIKE - Motion To Stay (PKH) Document Transcript

    • RESERVED FOR IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT – JACKSON DIVISIONVOGEL DENISE NEWSOME PLAINTIFFV. CIVIL ACTION NO. 3:12-cv-00342PAGE KRUGER & HOLLAND P.A., ET AL. DEFENDANTS PLAINTIFF’S MOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION)
    • IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT – JACKSON DIVISIONVOGEL DENISE NEWSOME PLAINTIFFV. CIVIL ACTION NO. 3:12-cv-00342PAGE KRUGER & HOLLAND P.A., ET AL. DEFENDANTS PLAINTIFF’S MOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION)1 COMES NOW Plaintiff Vogel Denise Newsome (“Newsome” and/or “Plaintiff”) WITHOUT waiving herOBJECTIONS to Judge Tom S. Lee presiding over this matter in that a CONFLICT-OF-INTEREST exist whichrequires RECUSAL as well as Newsome’s OBJECTIONS to Magistrate assignment in this matter and files this, herMOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS(Doc. No. 9) and MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ONDEFENDANTS’ MOTION TO DISMISS (Doc. No. 10); Motion for Rule 11 Sanctions of and Against Defendants; andMotion for Default Judgment (Jury Trial Demanded in this Action) (“MTS-MTSTAY&MFR11SDefault”) in thepreservation of her rights and pursuant to Federal Rules of Civil Procedure (“FRCP”) Rule 12(F) governing mattersregarding motion to strike; FRCP Rule 12(G) governing matters regarding consolidation of defenses and objections;FRCP Rule 11 governing sanctions and/or signing of pleadings, motions, and other documents; FRCP Rule 55governing default judgments; and the Fourteenth and Seventh Amendment to the Constitution. In support of thisinstant MTS-MTSTAY&MFR11SDEFAULT, Newsome attaches her Affidavit at EXHIBIT “1” – incorporatedherein by reference as if set forth in full herein. Said Affidavit contains PERTINENT and RELEVANT informationthat Newsome believes will aid this Court and provide it with an UNDERSTANDING as to what is really takingplace behind the scenes in FURTHERANCE of the Conspiracies addressed in Newsome’s Complaint filed in thislawsuit. In further support thereof Newsome states: 1. This instant MTS-MTSTAY&MFR11SDEFAULT is submitted in good faith and is not submitted for purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United States. 1 NOTE: Boldface, caps, small-caps, italics, highlights and underline represents “emphasis” added. Page 1 of 39
    • 2. Newsome attaches her supporting Affidavit at EXHIBIT “1” which is incorporated herein by reference as if set forth in full.3. That a CONFLICT-OF-INTEREST presently exists with the assignment of this lawsuit to Judge Tom S. Lee. The record evidence CLEARLY supports that Newsome has timely, properly and adequately NOTIFIED this Court of the Conflict-Of-Interest regarding Judge Tom S. Lee. See Doc. No. 2 – “Motion Conflict-Of-Interest Information. . .” As a direct and proximate result of this Court to comply with the MANDATORY requirements of statutes and laws governing said matters, Newsome has been irreparably injured/harmed and deprived rights – i.e. equal protection of the laws, privileges and immunities, and due process of laws guaranteed under the United States Constitution and other governing laws. As a direct and proximate result of this Court’s unlawful/illegal practices and failure to comply with the MANDATORY requirements of 28 U.S.C.A. § 455 and any and all applicable statutes/laws governing said matters, Newsome has been irreparably injured/harmed and deprived rights – i.e. equal protection of the laws, privileges and immunities, and due process of laws guaranteed under the United States Constitution and other governing laws. See EXHIBITS “2” – FRCP Rule 26 and “3” - 28 U.S.C.A. § 455 respectively attached hereto and incorporated by reference as if set forth in full herein. Phillips v. Joint Legislative Committee on Performance and Expenditure Review Of The State of Mississippi, et al., 637 F.2d 1014 (5th Cir. 1981) - [3] Under statute requiring a judge to disqualify himself in any proceeding in which his impartiality might be reasonably questioned, judge need not accept all the allegations by moving party as true and, in fact, no motion at all is required; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to his attention. 28 U.S.C.A. § 455. . . . [3] Congress rewrote the second statute, section 455, in 1974. Subsection (b) of that section lists a number of specific situations in which a judge must recuse himself. . .Subsection (a), a more general provision, requires that Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455, unlike section 144, does not stipulate a formal procedure by which it must be raised. Like section 144, however, it may be raised by motion. Davis, 517 F.2d at 1051. Substantively, the two statutes are quite similar, if not identical.[FN6] FN6. To the extent that there is a difference, section 455 imposes the stricter standard: a movant under section 144 must allege facts to convince a reasonable person that bias exists, Parrish, 524 F.2d at 100, while under the broader language of section 455, he must show only that a reasonable person “would harbor doubts about the judges impartiality”, Potashnick v. Port City Constr. Co., 5 Cir. 1980, 609 F.2d 1101, 1111 (emphasis added), cert. denied, - - U.S. --, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). See Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 243-50 (1978). See also Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745-50 (1973). On the other hand, section 455, unlike section 144, does not require the judge to accept all allegations by a moving party as true. Indeed, the section requires no motion at all; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to his attention. See Fredonia Broadcasting Corp. v. RCA Corp., 5 Cir. 1978, 569 F.2d 251, 254-57, cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1979). Section 144, by contrast, requires allegation by affidavit within a stringent time limit and allows a party only one such affidavit in any case. If a party could bind a judge by his factual allegations in a section 455 motion, free from the formal requirements and more demanding standard of proof of section 144, the result would be a virtual open season for recusal. See 46 U.Chi.L.Rev. at 250. [4] The alleged bias of a judge must be personal as distinguished from judicial in nature in order to require recusal. 28 U.S.C.A. §§ 144, 455. - - See EXHIBIT “4” – Phillips matter attached hereto and incorporated by reference as if set forth in full herein. Clearly the INTEGRITY of this Court has been compromised and the appearance of IMPROPRIETY is inevitable through Judge Tom Stewart Lee’s acts and projects an appearance that this Lawsuit can be Page 2 of 39
    • won through criminal acts – i.e. through bribes, blackmail, extortion, intimidation, threats, etc. - byDefendants and their counsel. Therefore, Judge Lee’s acts CLEARLY VIOLATE the Mississippi Code ofJudicial Conduct. See EXHIBIT “5” – Code of Judicial Conduct (Mississippi) attached hereto andincorporated by reference as if set forth in full herein. 28 USC § 455 - Disqualification of justice, judge, or magistrate judge (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding. (c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. . . . See EXHIBIT “3” - 28 USC § 455 attached hereto and incorporated by reference as if set forth in full herein.MANDATORY DISQUALIFICATION is required when “ONE” of the grounds specificallyenumerated in statute applies – i.e. for instance, as in this instant lawsuit, grounds for Judge TomStewart Lee’s disqualification is required pursuant to 28 USC § 455 and/or the applicable statutes/lawsgoverning said matters: Renteria v. Schellpeper, 936 F.Supp. 691 (1996) - [6] If one of grounds specifically enumerated in statute applies, disqualification of judge is mandatory whether or not reasonable person would question judges impartiality. 28 U.S.C.A. § 455(b). . . . [6] . . .If one of the provisions of section 455(b) applies then disqualification is mandatory whether or not a reasonable person would question the judges impartiality. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 859 n. 8, 108 S.Ct. 2194, 2202 n. 8, 100 L.Ed.2d 855 (1988).CLEARLY Judge Tom S. Lee is adamant and it appears is refusing to RECUSE himself as required bystatutes/laws governing said matters. Therefore, it appears that the proper INVESTIGATION(S) as with Page 3 of 39
    • other CORRUPT Judge(s) as G. Thomas Porteous, may be necessary in having Judge Lee removed from lawsuits involving Newsome. Furthermore, involving matters of PUBLIC Interest in which Judge Lee is associated may have to be resolved through IMPEACHMENT proceedings. Clearly it is obvious that Judge Tom Stewart Lee is placing his JUDICIAL FATE in the “banking” on and/or “placing all of his eggs” in the basket/relationship of Baker Donelson Bearman Caldwell & Berkowitz. Newsome have already initiated further legal and proper CONGRESSIONAL actions involving Judge Tom Stewart Lee. Even if the United States Congress may be dragging its feet and/or attempting to OBSTRUCT such matters, ALL that is required of Newsome is to PROVE by facts, evidence and legal conclusions that proper legal recourse for redress has been met. See pleading filed at Doc. No. 2 of this instant Lawsuit – See EXHIBIT “6” – Docket Sheet for this action attached hereto. Newsome’s burden has been met and this Court has been timely, properly and adequately notified of same. It matters NOT that there are attempts by law firms such as Baker Donelson Bearman Caldwell & Berkowitz and members of such CONSPIRACIES that may be members of the United States of America Congress, Supreme Court of the United States of America, etc. OBSTRUCTING the ADMINISTRATION of JUSTICE, Newsome need only PROVE and SHOW through EVIDENCE that she has initiated legal actions and has done so. Legal actions which clearly appears may require additional measures permissible under the statutes/laws governing matters when the United States of America’s Congress, etc. FAILS to act to protect the INTEREST of the PEOPLE and/or PUBLIC-AT-LARGE!4. In accordance with the statutes/laws governing said matters, Newsome has timely, properly and adequately PRESERVED said issues such as the CONFLICT-OF-INTEREST and other issues raised in her Motions to Strike the Defendants’ pleadings filed in this lawsuit. See for instance EXHIBIT “7” – “Waiver Of Loss Of Right To Disqualify Judge By Participation In Proceedings . . .” attached hereto and incorporated by reference as if set forth in full herein.5. That Newsome further OBJECTS to the assignment of a Magistrate to this Lawsuit in that she has timely, properly and adequately NOTIFIED this Court in writing as to her OBJECTIONS. Furthermore, said OBJECTION is in accordance with Rules governing said matters as well as in accordance to Rule 73 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636 and any and all applicable statutes/laws governing said matters. Furthermore, Newsome states in support thereof: Rule 73 Federal Rules of Civil Procedure: (a) Trial by Consent. When authorized under 28 U.S.C. §636(c), a magistrate judge may, if all parties consent, conduct a civil action or proceeding, including a jury or nonjury trial. A record must be made in accordance with 28 U.S.C. §636(c)(5). (b) Consent Procedure: (1) In General. When a magistrate judge has been designated to conduct civil actions or proceedings, the clerk must give the parties written notice of their opportunity to consent under 28 U.S.C. §636(c). To signify their consent, the parties must jointly or separately file a statement consenting to the referral. A district judge or magistrate judge may be informed of a partys response to the clerks notice only if all parties have consented to the referral. (2) Reminding the Parties About Consenting. A district judge, magistrate judge, or other court official may remind the parties of the magistrate judges availability, but must also advise them that they are free to withhold consent without adverse substantive consequences. (3) Vacating a Referral. On its own for good cause—or when a party shows extraordinary circumstances—the district judge may vacate a referral to a magistrate judge under this rule. See EXHIBIT “8” – Rule 73 of the Federal Rules of Civil Procedure attached hereto and incorporated by reference as if set forth in full herein. In fact, this Court has the REQUIRED Form AO 085 that was to be distributed to parties NOTIFYING of Magistrate Assignment (if any) – See EXHIBIT “9” – Form AO 085 which has been marked DECLINED attached hereto and incorporated by reference as if set forth in full herein. Nevertheless, this Court failed to comply with the statutes/laws governing said matters. As a direct and proximate result of this Court to comply with the MANDATORY requirements of said Rule 73 and any and all applicable statutes/laws governing said matters, Newsome Page 4 of 39
    • has been irreparably injured/harmed and deprived rights – i.e. equal protection of the laws, privileges and immunities, and due process of laws guaranteed under the United States Constitution and other governing laws.6. Newsome hereby timely, properly and adequately OBJECTS to this Court’s FAILURE and Defendants and their Counsel’s FAILURE to provide this Court and Newsome with the REQUIRED information and/or documentation advising of “CONFLICT-OF-INTEREST” in accordance with the Mississippi Rules of Professional Conduct (“MRPC”). See EXHIBIT “10” – MRPC attached hereto and incorporated by reference as if set forth in full herein. Newsome on or about July 18, 2012, has in good-faith requested that Named Defendants and their Counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) provide her with this MANDATORY information. Clearly the SHAM/BOGUS/FRIVOLOUS Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss (“Motion to Stay”) and Memorandum In Support Of Motion To Stay All Proceedings Pending A Ruling On Defendants’ Motion To Dismiss (“Memorandum in Support”) of this instant Lawsuit by Named Defendants’ counsel are attempts to EVADE and/or AVOID having to provide the names of additional members of the CONSPIRACIES and CRIMINAL/CIVIL wrongs leveled against Newsome who may also be rightful DEFENDANTS to this lawsuit (i.e. which the required preservations have been made in the COMPLAINT by including “DOES 1 – 100 in their official and individual capacities” should further identities become known during the litigation of this Lawsuit).7. UNDISPUTED is the fact that Page Kruger & Holland, P.A. is a “PRIVATE” company/corporation. Therefore, subject to the provisions of 42 U.S.C. § 1981 and any and all other statutes/laws governing said matters. Plummer vs. Chicago Journeyman Plumbers Local Union No. 130, U.A., 452 F.Supp. 1127 (1978) - . . . plaintiffs action under section pertaining to equal rights under the law would stand. . . [19] Plaintiffs alleging discrimination in employment could have proceeded by first bringing action under civil rights section pertaining to equal rights under the law to avoid any statute of limitations problems. . .or plaintiffs could also have proceeded with separate and independent action under equal rights under the law section . . . [25] Section of Civil Rights Act pertaining to equal rights under the law provides federal remedy against discrimination in PRIVATE employment on the basis of race, whereby claimant may be entitled to legal and equitable relief, irrespective of whether claimant has pursued Title VII administrative remedies. . . . [19] Plaintiffs correctly state that the Supreme Court suggested in Johnson v. Railway Express Agency, supra, 421 U.S. at 465, 95 S.Ct. 1716, that plaintiffs file their section 1981 suit to avoid the tolling of the statute of limitations while the EEOC processes their Title VII charges. Nonetheless, this suggestion does not support the procedure that plaintiffs followed. They filed their Title VII suit, while three plaintiffs were still processing their charges through the EEOC, in order to file in conjunction with their section 1981 action. They then filed two amended complaints after these plaintiffs received right to sue notices. The Court in Johnson v. Railway Express Agency, supra at 466, 95 S.Ct. 1716, stated that section 1981 and Title VII are separate and independent remedies for discrimination. Plaintiffs could have proceeded by first bringing a section 1981 action to avoid any statute of limitations problem. They could then have petitioned the court for a stay of the section 1981 action until the Title VII efforts at conciliation and voluntary compliance had been completed. Id. at 465, 95 S.Ct. 1716. At that point, they could have filed a supplemental pleading pursuant to Fed.R.Civ.P. 15(d), adding the Title VII claim. Plaintiffs could also have proceeded with the separate and independent section 1981 action. They could then have filed their Title VII action after jurisdictional prerequisites had been fulfilled and could have sought consolidation pursuant to Fed.R.Civ.P. 42(a). Plaintiffs procedure of filing their Title VII claims before jurisdictional prerequisites had been completed certainly did not provide an orderly procedure. Their continued updating with respect to the satisfaction of Title VII jurisdictional prerequisites resulted in two amendments to the complaint and five rounds of complex briefing. – See EXHIBIT “11” – Plummer matter attached hereto and incorporated by reference as if set forth in full herein.8. UNDISPUTED is the fact that Defendants’ Motion to Dismiss and supporting Memorandum Brief in this lawsuit is premised on claims brought under 42 U.S.C. § 1983 against “STATE” and/or “Government” employers/officials/employees. UNISPUTED is the fact that Newsome’s instant lawsuit Page 5 of 39
    • is a premised on 42 U.S.C. § 1981 – Equal Rights Under The Law which allows for one to “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .” Therefore, NOT even with a MAGNIFYING GLASS will a JURY and Court find any such § 1983 claims as asserted by the Defendants in this lawsuit.9. UNDISPUTED is the fact that as with Defendants’ Motion to Dismiss and supporting Memorandum Brief in this lawsuit their recent filings requesting Staying of action also appears to have been taken from their Counsel’s FORMS Pleading Manual and or that of its CONSPIRING outside Law Firms with an interest in this lawsuit (EMPHASIS added). Furthermore, the frivolous allegations asserted by Defendants and their Counsel clearly are IRRELEVANT and: (i) an insufficient defense to the Complaint filed by Newsome; (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, embarrassment, sham/frivolousness, commit fraud upon this Court, and other reasons known to Defendants and their Counsel.10. Named Defendants’ filing of Motion to Stay and Memorandum In Support it appears are FRIVOLOUS efforts to keep Newsome out of their “TREASURE CHEST” and efforts to deprive her of “INITIAL DISCLOSURE” information MANDATORILY required to be released to Newsome pursuant to Rule 26 of the Federal Rules of Civil Procedure. Moreover, FRIVOLOUS attempts by Named Defendants and their counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) to UNLAWFULLY/ILLGALLY withhold the release of Insurance information MANDATORILY required to be released pursuant to Rule 26 (a)(1)(A)(iv) of the FRCP. See EXHIBIT “2” – FRCP Rule 26 attached hereto and incorporated by reference as if set forth in full herein. Furthermore, according to information contained in Defendant Page Kruger & Holland’s Corporate Annual Reports filed with the State of Mississippi – Secretary of State it provides information regarding “Stocks Shares Authorized, Issued & Outstanding” which reflects, for instance, from approximately August 2006 through January 2012 the issuance of THEIR Stock Shares from approximately 7,400 to 9,000. See EXHIBIT “66” – Page Kruger & Holland Corporate Annual Reports attached hereto and incorporated by reference as if set forth in full herein. http://www.slideshare.net/VogelDenise/page-kruger-holland-phelps-dunbar-clients The Fifth Circuit Court of Appeal in Hall vs. Aetna Casualty and Surety Company, 617 F.2d 1108 (5th Cir. 1980) finding: Fact that defendant insurer furnished a version of its policy including special endorsements referring to an exclusion allegedly applicable to plaintiffs claim did not put plaintiff on notice of the exclusion since insurers duty was to produce entire contract on pretrial discovery and although it did so the subject special endorsement by itself was incomprehensible in that it was not reference to any particular coverage. See EXHIBIT “12” – Hall matter attached hereto and incorporated by reference as if set forth in full herein. Other Court Courts finding: Page 6 of 39
    • Excelsior College v. Frye, 233 F.R.D. 583 (2006) - Holdings: The District Court, Papas, United States Magistrate Judge, held that: (1) discovery rule mandating disclosure of insurance information merely requires the disclosure of an insurance policy or other agreement that gives rise to an insurers obligation to indemnify or hold its insured harmless for a judgment . . . [1] A plain reading of discovery rule governing mandatory disclosure of insurance information indicates it is clearly designed for parties to produce documentation of any insurance policies that give rise to an insurers obligation to indemnify or hold its insured harmless for a judgment. See EXHIBIT “12” – Excelsior College matter attached hereto and incorporated by reference as if set forth in full herein. Woldum v. Roverud Construction, Inc., 43 F.R.D. 420 (1968) - On defendants objections to interrogatories asking whether defendant carried liability insurance at time of accident, name and address of insurer, name of insured, and amount of coverage, on grounds that they were an attempt to inquire into privileged matters, and were incompetent, irrelevant and immaterial. The District Court, McManus, Chief Judge, held that permitting discovery of existence and amount of insurance coverage would better further word and spirit of federal discovery rules than to deny it. Objections overruled. [1] Interrogatories asking whether defendant carried liability insurance at time of accident, the name and address of insurer, the name of insured, and amount of coverage were not improper on grounds that they were an attempt to inquire into privileged matters, and were incompetent, irrelevant and immaterial. Fed.Rules Civ.Proc. Rule 1, 28 U.S.C.A. [2] Overriding purpose of federal discovery rules is to promote full disclosure of all facts to aid in fair, prompt and inexpensive disposition of lawsuits. Fed.Rules Civ.Proc. Rule 1, 28 U.S.C.A. [3] Permitting discovery of existence and amount of insurance coverage would better further word and spirit of federal discovery rules than to deny it. Fed.Rules Civ.Proc. Rule 1, 28 U.S.C.A. [1] In this action damages are sought for . . . injuries allegedly suffered by plaintiff . . . by an employee of defendant. The interrogatories in question ask whether defendant carried liability insurance at the time of the accident, the name and address of the insurer, the name of the insured, and the amount of coverage. Defendant objects on the grounds that said interrogatories are ‘an attempt to inquire into privileged matters, not proper interrogatories, incompetent, irrelevant and immaterial.’ [2] [3] . . . It is this courts view that the better rule is that taken by courts allowing discovery. E. g., Slomberg v. Pennabaker, 42 F.R.D. 8 (M.D.Pa.1967); Cook v. Welty, 253 F.Supp. 875 (D.D.C.1966); Ash v. Farwell, 37 F.R.D. 553 (D.Kan.1965); 41 A.L.R.2d 968 and Supplement Service. The overriding purpose of the federal discovery rules is to promote full disclosure of all facts to aid in the fair, prompt and inexpensive disposition of lawsuits. Rule 1, F.R.Civ.P., requires that the federal rules ‘be construed to secure the just, speedy, and inexpensive determination of every action.’ It would seem that permitting discovery of the existence and amount of coverage better furthers the word and spirit of the rules than to deny it. It is therefore ordered Defendants Objections to Interrogatories, filed December 29, 1967, are overruled. See EXHIBIT “13” – Woldum matter attached hereto and incorporated herein by reference as if set forth in full herein. 11. For this Court to grant Defendants’ Motion to Dismiss, Newsome would be prejudiced and deprived equal protection of the laws, equal immunities and privileges and due process of laws. Rights secured/guaranteed under the United States Constitution and other governing laws.A. JURISDICTIONAL/STATUTE OF LIMITATIONS: Page 7 of 39
    • Walton v. Utility Products, Inc., 424 F.Supp. 1145 (D.C.Miss. 1976 ) - (n.1) Since statute guaranteeing equal rights under the law contains no statute of limitations, period of limitations applicable to action under statute is determined by reference to most analogous statute of limitations in force in state in which cause of action arises. 42 U.S.C.A. § 1981.2 See EXHIBIT “14” - Walton v. Utility Products, Inc. attached hereto and incorporated herein by reference as if set forth in full herein. This citation is not new to the Defendants in this lawsuit in that it is addressed at Footnote (“Fn.”) 6 at page 7 of the Complaint. Along with other case law provided in: Heath v. D. H. Baldwin Co., 447 F.Supp. 495 (N.D.Miss.Greenville.Div., 1977) - General six-year statute of limitations in Mississippi was applicable to suit by . . .employee against employer . . . claiming racial discrimination. Code Miss. 1972, § 15-1-49; 42 U.S.C.A. § 1981. Howard v. Sun Oil Co., 294 F.Supp. 24 (S.D.Miss.Hattiesburg.Div.,1967) - Ordinarily, suit in tort for damages brought more than six years after commission of tort is barred by Mississippi six-year statute of limitations. Code Miss.1942, § 722. See Fn.6 at page 7 of Complaint filed in this instant lawsuit. Moreover, EXHIBITS “15” – Heath and “16” – Howard respectively attached hereto and incorporated by reference as if set forth in full herein. Newsome having highlighted information that is PERTINENT and RELEVANT in that it goes to the relief of SANCTIONS that Newsome seeks of and against Defendants and/or their Counsel – i.e. supports what facts, evidence and legal conclusions were available at the time of their preparation of the Motion to Stay [Doc. No. 9] and supporting Memorandum Brief [Doc. No. 10] submitted in this lawsuit. 12. Newsome believes this Court upon receipt of the Complaint in this lawsuit, may have reviewed the “CIVIL COVER SHEET” and statements provided under “JURISDICTION” of Complaint and determined arguments to be well-founded and proceeded to file Newsome’s lawsuit. Truvillion vs. Kings Daughters Hospital, 614 F.2d 520 (5th Cir. Miss. 1980) - . . .(4) claim against employer grounded on civil rights statute was governed by Mississippi six-year catchall statute of limitations rather than three-year statute of limitations governing unwritten contracts. . . . [6] Job discrimination suit filed under civil rights statute was governed by Mississippi six-year catchall statute of limitations, rather than three-year statute of limitations governing unwritten contracts. . . [6] . . ."(a) person suing under Section 1981 to enforce his right to be free of discrimination predicates his claim on the right to contract guaranteed in the statute. The 2 [1] The court rejects defendants contention that the three-year limitations period of Miss.Code Ann. § 15-1-29 (1972) barsplaintiffs section 1981 claim. Defendant correctly states that since section 1981 contains no statute of limitations, the applicable period oflimitations is determined by reference to the most analogous statute of limitations in force in the state in which the cause of action arises. Section15-1-29 pertains to actions founded on implied contracts. . . . (n. 2) Under law of Mississippi, general six-year period of limitations rather than three-year period of limitations whichapplies to action founded on implied contracts and action to recover back pay governs employment discrimination suit charging violation offederal statute guaranteeing equal rights under the law. 42 U.S.C.A. § 1981; Code Miss.1972, §§ 15-1-29, 15-1-49. (n. 3) Under law of Mississippi, three-year statute of limitations applicable to action seeking recovery of back wages acts aslimitation upon back pay liability of employer charged with racial discrimination but does not operate to bar entire back pay claim or claim fordeclaratory or injunctive relief. 42 U.S.C.A. § 1981; Code Miss.1972, § 15-1-29. (n. 4) Under law of Mississippi, employees claim against employer charging violation of federal statue guaranteeing equalrights, filed within six years of alleged racial discrimination, was not time barred. Code Miss.1972, § 15-1-49; 42 U.S.C.A. § 1981. [2] [3] [4] This court is of the opinion that the reasoning . . . is equally applicable to a section 1981 employment discriminationaction. As there is no Mississippi statute of limitations for civil rights actions, or a specific Mississippi statue of limitations for actions analogousto actions based on racial discrimination in employment, the general six-year period of limitations provided by Miss.Code Ann. § 15-1-49,rather than the three-year period provided by section 15-1-29, determines the time within which a section 1981 employment discrimination suitmust be filed. As noted previously, section 15-1-29 does act as a limitation upon an employers back pay liability, but it does not operate to barthe entire back pay claim, or a claim for declaratory or injunctive relief.FN1 Since plaintiff filed his section 1981 claim well within the six-yearperiod, defendants motion to dismiss this portion of the complaint must be denied. [5] The court also does not agree with defendants contention that Title VII relief is precluded because of plaintiffs failure to file thisaction within 90 days of receipt of the EEOC failure of conciliation notice. . . . Defendants motion to dismiss the Title VII aspects of plaintiffscomplaint is accordingly denied. Page 8 of 39
    • contractual nature of claim under Section 1981 dictates application. . . But the statutory right Ms. Truvillion asserts is not the right to enforce an unwritten contract as the district court assumed . . . Because Mississippi has no statute of limitations designed to cover actions seeking redress for the tort of employment discrimination, the States catch-all statute is applicable. [FN16] See Heath v. D.H. Baldwin Co., N.D. Miss. 1979, 447 F.Supp. 495, 504; Walton v. Utility Products, Inc., N.D. Miss. 1976, 424 F.Supp. 1145, 1147. The statute runs for six years, and does not bar Ms. Truvillions claim. FN16. The statute provides: All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after. See EXHIBIT “17” – Truvillion matter attached hereto and incorporated by reference as if set forth in full herein.13. The filing of this lawsuit should come as no surprise to Defendants Page Kruger & Holland, P.A. (“PKH”), Thomas Y. Page (“TPage”), Louis G. Baine III (“LBaine”), and Linda Thomas. (“LThomas”) [collectively known as “Named Defendants”] because the record evidence will support that as early as May 16, 2006, Named Defendants were timely, properly and adequately notified of Newsome’s intent to bring a lawsuit. See EXHIBIT “18” – Newsome’s May 16, 2006 Email to Named Defendants attached hereto and incorporated by reference as if set forth in full herein. Said email which states in part: In that I believe that I have been unlawfully terminated, I am requesting that PKH PRESERVE my employment records, any other documents, audio, etc. regarding my employment and reasons for termination. In that PKH was given an opportunity to provide me with written documentation as to their reasons for my termination, I will only conclude that any other reasons which may be offered AFTER the fact/termination will be PRETEXT in nature - provided in an effort to COVER- UP/SHIELD PKHs unlawful employment action taken against me. Said email was also provided with the Complaint in this lawsuit at Exhibit VI. It is an UNDISPUTED fact that Named Defendants ACKNOWLEDGE referenced statement as sufficient NOTIFICATION on Newsome’s intent to bring suit and/or legal action regarding her termination. The U.S. Supreme Court finding: Burnett v. New York Cent. R. Co., 85 S.Ct. 1050 (1965) - Statutes of limitations are designed primarily to assure fairness to defendants; they promote justice by preventing surprises through revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. Policy of repose, designed to protect defendants, is frequently outweighed where interests of justice require vindication of plaintiffs rights. Beach v. Ocwen Federal Bank, 118 S.Ct. 1408 (1998) - The object of a statute of limitation in keeping stale litigation out of the courts would be distorted if statute were applied to bar otherwise legitimate defense to timely lawsuit, for limitation statutes are aimed at lawsuits, not at consideration of particular issues in lawsuits. [EMPHASIS ADDED]. Named Defendants CANNOT say that evidence was lost and/or assert memories have faded, etc. because they were timely, properly and adequately requested to PRESERVE the record. Named Defendants and their counsel’s FRIVOLOUS assertion alleging § 1983 claims NOT provided in Newsome’s Complaint clearly supports their KNOWLEDGE that any attacks against Newsome’s claims as being TIME BARRED is (i) an insufficient defense to the Complaint filed by Newsome; (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, embarrassment, sham/frivolousness, commit fraud upon this Court, and other reasons known to Defendants and their Counsel. Furthermore, the record evidence will support that Named Defendants and their counsel have been WELL ENGAGED in CONTINUED and ONGOING conspiracies and criminal/civil wrongs leveled against Newsome since her unlawful/illegal termination of employment and TO DATE have NOT ceased from engaging in such unlawful/illegal practices. Page 9 of 39
    • 14. It is well-settled by the court(s) that claims and/or cause of action is the determining factor as to which statute-of-limitation is applicable: King v. Otasco, Inc., 861 F.2d 438 (5th Cir.Miss.,1988) - When suit alleges several distinct causes of action, even if they arise from single event, applicable limitations period must be determined by analyzing each cause of action separately, rather than by determining “essence” of plaintiffs claims considered as a whole. Plaintiffs cannot be allowed to obtain trials for intentional tort claims after statute of limitations has barred them merely by engaging in artful pleading; if however, claim can plausibly withstand motion to dismiss or for summary judgment, it cannot be treated as mere rewording of barred claim, and thus, instead of probing for essence of suit, district court should analyze each claim on its own merits. Alexander v. Taylor, 928 So.2d 992 (Miss.App.,2006) - What limitations statute or statutes apply is determined from an examination of the claims that are made. Shaw v. McCorkle, 537 F.2d 1289 (5th Cir.Miss.,1976) - In choosing applicable state statute of limitations to apply to action brought under civil rights statute, court must ground its decision on the basis of which statute will best effectuate the congressional policies underlying the civil rights statute. In this instant lawsuit Newsome brings the following Counts and claims, facts, evidence and legal conclusions to sustain them will support that Newsome’s claims are subject to the six-year statute of limitation and are not barred – while some of the Counts may be misnumbered, it has NO bearing on the claims, facts and legal conclusions provided by Newsome to support her Complaint. Moreover, misnumbering is a MINOR issue which can be corrected through an Amended Complaint should it be deemed necessary. The supporting statements of claims are set forth in PARAGRAPHS in the Complaint and are DISTINCTLY numbered as required by the Rules/Statutes governing said matters. The Counts being as follows: Count I - 42 USC § 1981: Equal Rights Under The Law Against Defendants; Count II - 42 USC § 1985: Conspiracy To Interfere With Civil Rights and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count III - 42 USC § 1986: Action For Neglect To Prevent and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count IV - Negligent Interference with Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count V - Discrimination in Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count II [Sic] – Retaliation and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count IIIII [Sic] - Breach Of Express Employment Agreement 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count VIII – Breach Of The Covenant Of Good Faith And Fair Dealing 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count IX – Negligent Infliction Of Emotional Distress and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count X – Fraud Against [sic] and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count XI – Negligent Interference With Employment – Malicious Conspiracy To Cause Discharge From Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count IVII – Violation of the Fourteenth Amendment of the U.S. Constitution – Due Process and 42 USC § 1981: Equal Rights Under The Law; and Count VII – Violation of the Fourteenth Amendment of the U.S. Constitution – Equal Protection and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s) I. MOTION TO STRIKE/ CONSOLIDATION OF DEFENSES Pendleton County v. Amy, 80 U.S. 297 (1871) - Defendants pleas which were inartistically framed and were argumentative and set up nothing which could not have been taken advantage of for what it was worth under the general issue might have been stricken from the record on motion. Brown v. Lamb, 112 Ohio App. 116, 171 N.E.2d 191 (1960) - (n.4) Motions to strike pleadings and papers from the files are ordinarily employed to strike pleadings for failure to comply with previous orders . . . or to test its form with respect to certification, and the office of such motions is not to inquire into the merits of the case. Page 10 of 39
    • (n.8) A pleading is “frivolous” when it is clearly insufficient on its face and does not controvert material points of the opposite pleading and is presumably interposed for mere purposes of delay or to embarrass the opponent. Sherrill v. Stewart, 21 So.2d 11 (Miss.,1945) - A “frivolous pleading” is one so clearly untenable or the insufficiency of which is so manifest upon bare inspection of pleading that court is able to determine its character without argument or research. McDowell v. Minor, 131 So. 278 (Miss.,1930) - Where pleading is manifestly sham and frivolous, motion to strike is available. Pursuant to Rule 12 (F) of the Federal Rules of Civil Procedure, Newsome through this MTS-MTSTAY&MFR11SDEFAULT moves this Court to strike the statements, contents and any supporting exhibits ofDefendants’ Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss and MemorandumIn Support Of Motion To Stay All Proceedings Pending A Ruling On Defendants’ Motion To Dismiss. Under saidRule it states: Rule 12(F) Motion to Strike. The Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading.Therefore, in an effort to provide specificity Newsome moves for the striking of contents/statements in Defendants’Motion to Stay and the supporting Memorandum In Support in that the asserted Rule 12 (b)(6) Motion to Dismiss andits Memorandum Brief are IRRELEVANT and IMMATERIAL to this instant lawsuit. In further support of thisinstant MTS-MTSTAY&MFR11SDEFAULT, Newsome moves this Court to strike the contents/statements for thefollowing reasons: A. MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS (“MOTION TO STAY”) The entire contents of “Motion to Stay” which include; however, is not limited to the Style and Headings ofsaid pleading in that it is: (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided forpurposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness,unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known toDefendants and their Counsel and the following: 15. Opening paragraph on Page 1 which begins with “COME NOW, Defendants, Page Kruger & Holland, P.A. (“PKH”), Thomas Y. Page, Louis G. Baine, III, and Linda Thomas” in that it is - (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to Defendants and their counsel (Phelps Dunbar LLP, W. Thomas Siler, Jr. and Jason T. Marsh Page 11 of 39
    • [hereinafter, “Phelps Dunbar,” “Siler” and/or “Marsh”)] hereinafter collectively known as “STRICKEN STATEMENT CLAUSE.”16. ¶1 on Page 1 which begins with, “Because Plaintiff filed her claims against Defendants six years after they accrued” and the referenced Footnote 1 in that they are - “STRICKEN STATEMENT CLAUSE.” Heath vs. D. H. Baldwin Company, 447 F.Supp. 495 (N.D. Miss. 1977) - . . . (4) Mississippi six- year statute of limitations was applicable to action under Civil Rights Act of 1870 . . . [5] General six-year statute of limitations in Mississippi was applicable to suit by laid off employee aganst employer and union claiming racial discrimination. Code Miss. 1972, § 15-1-49; 42 U.S.C.A. § 1981. . . . For the reasons set forth by Chief Judge Keady in Walton v. Utility Products, Inc., 424 F.Supp. 1145, 1147, (N.D. Miss. 1976) the court finds that the 6-year limitation period of Miss. Code Ann. s 15-1-49 (1972) is applicable and therefore Heaths s 1981 claim was timely filed. Defendants motion to dismiss the s 1981 claim is not well taken and will be denied. To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!17. ¶2 on Page 2 which begins with, “For the reasons fully set forth in corresponding Memorandum in Support” in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!18. ¶3 on Page 2 which begins with, “In further support of this Motion, Defendants submit the following exhibit” and the supporting “Exhibit ‘A’ – Email from Vogel Newsome” in that it is - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the fact that Named Defendants and their counsel resort to EXTRAJUDICIAL matters and rely upon an UNLAWFUL/ILLEGAL Order in another lawsuit in which the Magistrate Judge CLEARLY LACKED Jurisdiction to enter and CANNOT be upheld in that it appears from review of Docket Sheet in Newsome vs. Mitchell McNutt & Sams, at Doc. No. 2 that OBJECTION to Magistrate assignment was timely, properly and adequately made known to that court. See EXHIBIT “19” – Docket Sheet Mitchell McNutt & Sams matter attached hereto. UNDISPUTED is the fact that while Named Defendants and their counsel rely upon an ORDER which it appears from the record evidence may have been obtained through CRIMINAL acts – i.e. BRIBES, EXTORTION, COERCION, BLACKMAIL, SPECIAL FAVORS, etc. – and DELIBERATELY FAILS to make KNOWN Magistrate Judge F. Keith Ball’s EMPLOYMENT history with counsel in this lawsuit (Phelps Dunbar) as well as his TIES/ROOTS/CONNECTIONS with Phelps Dunbar’s CONSPIRING Law Firm (Baker Donelson Bearman Caldwell & Berkowitz). Moreover, the FACT of how Baker Donelson Bearman Caldwell & Berkowitz (“Baker Donelson”) relies upon “FRONTING FIRMS” as Phelps Dunbar - who SHARE clients (i.e. such as Entergy – see for instance Phelps Dunbar’s Client Listing at EXHIBIT “20” and the Docket Sheet in Newsome vs. Entergy at EXHIBIT “21” respectively attached hereto and incorporated by reference as if set forth in full herein) - to enter Lawsuits involving Newsome for purposes of SHIELDING an ILLEGAL ANIMUS and HIDING their IDENTITY and their and their clients’ INTERESTS from the PUBLIC/WORLD!19. On Page 2, paragraph which begins with, “WHEREFORE, PREMISES CONSIDERED, Defendants, Page Kruger & Holland, P.A.” in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND Page 12 of 39
    • MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED! 20. On Page 2, the remaining contents of the Motion to Dismiss in that it is - “STRICKEN STATEMENT CLAUSE.” 21. On Page 3, the Certificate of Service and the contents therein in that it is - “STRICKEN STATEMENT CLAUSE.” 22. “Exhibit A” in that it is - “STRICKEN STATEMENT CLAUSE.” See also ¶ 18 above of this instant pleading. Now that the statutes/laws governing said matters require the STRIKING of the entire contents, statements,exhibits, etc. as noted above, there remains NO legal/lawful pleading of record. Therefore, Newsome is entitled tothe relief (Rule 11 Sanctions and DEFAULT Judgment, etc.) sought herein. B. MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO STAY (“MEMORANDUM IN SUPPORT”) The Striking of entire contents in “Memorandum In Support” which include; however, is not limited to theStyle and Headings of said pleading in that it is: (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalousand provided for purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment,sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and otherreasons known to Named Defendants and their counsel (Phelps Dunbar LLP, W. Thomas Siler, Jr. and Jason T.Marsh [hereinafter, “Phelps Dunbar,” “Siler” and/or “Marsh”)] hereinafter collectively known as “STRICKENSTATEMENT CLAUSE.” In support thereof, Newsome states the following: 23. On the first unnumbered page, the opening paragraph which begins with, “COME NOW, Defendants, Page Kruger & Holland, P.A. (“PKH”)” in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED! 24. On first unnumbered page, “I. INTRODUCTION” and paragraph which begins with, “Because Plaintiff filed her claims against Defendants six years after they accrued” along with the referenced Footnote 1 and the contents therein which begins with, “In her Complaint, Plaintiff asserts a litany of federal constitutional claims” in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the fact that Newsome’s Complaint has been filed within six-years. UNDISPUTED is the fact that Named Defendants are PRIVATE actors. UNDISPUTED is the fact that Newsome’s Complaint is premised upon 42 U.S.C.A. § 1981 claims and NOT 42 U.S.C.A. § 1983 claims. Therefore, § 1981 implicitly creates an independent cause of action AGAINST PRIVATE actors because no other statute created such a remedy; moreover, the acts of Named Defendants are “CONTINUING” acts to date in which the statute of limitations CONTINUES to run and/or restarts with EACH overt act. Page 13 of 39
    • UNDISPUTED is the fact, that Newsome’s instant lawsuit has been filed within the six-year statute oflimitation governing said matters but also within the six-year statute of limitation period in that, asevidenced in this instant lawsuit, Named Defendants and their counsel CONTINUE to engage inconspiracies that affect Newsome’s “EQUAL Rights Under the Laws!” Therefore, with EACH overtact by Named Defendants, Newsome’s claims become subject to “TOLLING” doctrine requirements.This is PERTINENT and RELEVANT information KNOWN to Named Defendants and/or their counsel(Phelps Dunbar/Siler/Marsh). For instance, see one of PHELPS DUNBAR’S cases – Walker vs. Epps,550 F.3d 407 (5th Cir. Miss. 2008): Under Mississippi law, “continuing tort,” for which limitations period resets at each wrongful act, is one inflicted over period of time; it involves wrongful conduct that is repeated until desisted. See EXHIBIT “22” – Walker matter attached hereto and incorporated by reference.UNDISPUTED is the fact that PKH is involved in the Newsome vs. Spring Lake Apartment matter.Which as recent as July 2008 (i.e. approximately FOUR [4] years ago] Newsome had to have removedfrom that court and is a matter that Newsome is presently working on through the continued MASSIVEConspiracies leveled to obstruct said matter. Continued tort claims are timely, properly and adequatelyasserted in Newsome’s Complaint filed in this instant lawsuit: ¶5 Pg. 21 ¶(xii) Pg. 63 ¶214-216 Pg. 94 ¶278 Pg. 121 ¶(xii) Pg. 22 ¶165 Pg. 70 ¶217 Pg. 95 ¶1 Pg. 122 ¶105 Pg. 41 ¶170 Pg. 71 ¶l Pg. 96 ¶292 Pg. 127 ¶¶106, 107 Pg. 43 ¶175 Pg. 73 ¶ 233-235 Pg. 108 ¶296 Pg. 127 ¶110 Pg. 47 ¶176 Pg. 74 ¶237, 238 Pg. 109 ¶297 Pg. 130 ¶117 Pg. 48 ¶177 Pg. 75 ¶m Pg. 111 ¶298 Pg. 130 ¶119 Pg. 49 ¶(xii), (xvii) Pg. 77 ¶245 Pg. 112 ¶1 Pg. 131 ¶ (xii) Pg. 51 ¶188 Pg. 82 ¶253, 259 Pg. 114 ¶136 Pg. 60 ¶197 Pg. 85 ¶260 Pg. 115 ¶138-139 Pg. 61 ¶198-199 Pg. 87 ¶261 Pg. 116 ¶140 Pg. 62 ¶l Pg. 89 ¶l Pg. 117To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I NSUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; ANDMOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported byFACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!Furthermore, it is UNDISPUTED that Named Defendants’ Motion to Dismiss (i.e. in that it appears intheir TRICKERY in the use of the pen/computer, it appears that the relief sought may be that ofsummary judgment) and Motion to Stay are NOT supported by Affidavits because they have FULLKNOWLEDGE that their Motions have been submitted in bad faith and/or for purposes of delay,harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness,unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasonsknown to Named Defendants and their counsel. Myers v. Mississippi Office of Capital Post-Conviction Counsel, 720 F.Supp.2d 773 (S.D. Miss. Jackson 2010) - Section 1981 implicitly creates an independent cause of action against private actors because no other statute created such a remedy, but does not create any right of action against state actors separate from § 1983. 42 U.S.C.A. §§ 1981, 1983. Tramble v. Converters Ink Co., 43 F.Supp. 1350 (1972) - [2] Civil rights statute generally guaranteeing equal rights under the law applies to private job discrimination based on race and is not limited to acts under color of state law. 42 U.S.C.A. § 1981.Moreover, it appears that Named Defendants are eyeing cases outside this lawsuit involving Newsome;therefore, a reasonable mind/person may conclude that from the Newsome vs. Mitchell McNutt & Samsmatter [USDC Southern District of Mississippi/Jackson, 3:10-cv-704], filed approximately SIX-YEARSfrom the date of her termination with Mitchell McNutt & Sams (“MMS”) – i.e. termination date beingapproximately December 3, 2004, and Newsome’s lawsuit was received and filed by this Court on orabout December 3, 2010. As with the “MMS” matter, upon reviewing of pleading PRIOR to Page 14 of 39
    • DOCKETING and FILING, this Court was SATISFIED that the Complaint , as in this instant Lawsuit, was ALSO TIMELY filed, the FILING FEE PAID and therefore, DOCKETED the matter.25. On Page 2, continuance of paragraph from first unnumbered page which states, “this matter, as well as preserve important judicial resources” in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!26. On Page 2, “II. FACTUAL BACKGROUND” and paragraph which begins with, “Plaintiff began working for PKH as a temporary legal secretary” along with the referenced Footnotes 2, 3, and 4 as well as the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the NEXUS/CAUSAL Link between Newsome’s March 15, 2006, lawsuit (i.e. in Newsome vs. Spring Lake Apartments LLC, et al. - a protected activity which alleges discriminatory practices, etc.) and PKH’s May 15, 2006 termination (approximately two (2) months later) of Newsome’s employment based on being contacted and notified of her engagement in this lawsuit and/or other protected activities. See EXHIBIT “18” – Newsome’s May 16, 2006 Email attached hereto and incorporated herein by reference as if set forth in full herein. PKH’s termination of Newsome’s employment coming approximately three (3) days prior to hearing/proceedings on or about May 18, 2006, in Newsome vs. Spring Lake Apartments LLC, et al. [EMPHASIS added]. See EXHIBIT “23” – Motion Docket Sheet attached hereto and incorporated by reference. Note: Also provided at Exhibit VII of Complaint filed in this lawsuit. To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED! The prohibited retaliatory practices of PKH were KNOWN at the time Named Defendants counsel (Phelps Dunbar/Siler/Marsh) executed the Motion to Dismiss and supporting Memorandum Brief. For instance see one of PHELP DUNBAR’S cases - Callahan v. Bancorpsouth Ins. Services of Mississippi, Inc., 244 F.Supp.2d 678 (S.D. Miss. S.Div. 2002): [3] Title VII prohibits retaliation in either of two instances: ( 1) where the employee has opposed any unlawful employment practice; or (2) where the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e–3(a). – EXHIBIT “24” Callahan matter attached hereto and incorporated by reference as if set forth in full herein. UNDISPUTED is that Actions brought pursuant to 42 USC § 1981 are governed by the SAME standards applicable to claims raised under Title VII.27. On Page 2, paragraph which begins with, “Plaintiff’s employment with PKH ended on May 15, 2006” along with the referenced Footnotes 5 and 6 as well as the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the fact that this instant lawsuit premised on 42 USC § 1981 claims, etc. was filed within six years of the alleged violations and CONTINUING violations [EMPHASIS added] addressed in this lawsuit. Furthermore, UNDISPUTED is the fact that Newsome’s claims premised on 42 USC § 1981 fall under “all actions for which no other period of limitation is prescribed shall be commenced within six years;” therefore, the six-year statute of limitation under Mississippi’s CATCHALL statute is applicable pursuant to Mississippi Code Ann. § 15-1-49: Gates vs. Spinks, 771 F.2d 916 (5th Cir. S.D. Miss. 1985) - FN1. Although Mrs. Gates formally denominated her complaint as being brought pursuant to “Title 42, U.S.C., Section 1981, et seq.”, Page 15 of 39
    • the substance of the complaint states a cause of action only under section 1983. We therefore treat Mrs. Gates claim as one brought pursuant to § 1983. FN2. Section 15-1-49. Limitations applicable to actions not otherwise specifically provided for - All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after. . . . The six-year statute (section 15-1-49) is more general in the sense that it is a general residual statute that applies to a broad class of actions-tort, contract or statutory-not otherwise provided for. A reasonable person/mind may conclude that Named Defendants’ counsel’s KNOWLEDGE that Newsome’s Complaint premised on 42 USC § 1981 claims are subject to the six-year statute of limitations. Therefore, Named Defendants’ counsel has FRIVOLOUSLY attempted to assert 42 USC § 1983 claims – i.e. as evidenced in the “CLUMP” of trashed Opinions dumped on this Court - when no such § 1983 claims are made by Newsome through her Complaint filed in this lawsuit. To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!28. On Page 2, paragraph which begins with, “Because Plaintiff’s claims are time barred” along with the referenced Footnote 7 as well as the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!29. On Page 2, “III. ARGUMENT AND AUTHORITIES” and paragraph which begins with, “It has long been recognized that “[a] trial court has broad discretion” in that it is - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the fact that Named Defendants and their counsel are attempting to “put the cart before the horse.” As a matter of law, NO Responsive Pleading and/or Answer (in accordance to the statutes/laws governing said matters) have been made to Newsome’s Complaint. Therefore, there are NO facts, evidence, NOR legal conclusions to sustain a staying of this action for DISCOVERY purposes. Named Defendants and their counsel have not even gotten off of the home plate to assert first-base privileges and/or defenses regarding DISCOVERY matters. The Discovery process may begin AFTER the filing of a legal/lawful responsive pleading and/or Answer – which in this Lawsuit has NOT been filed. Moreover, the record evidence supports Newsome timely, properly, and adequately NOTIFIED Named Defendants’ through “Waiver of the Service of Summons and Page 16 of 39
    • NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS” that anyresponsive pleading and/or Answer which did NOT meet the pleading REQUIREMENTS would be metwith a MOTION TO STRIKE! See EXHIBITS “25,” “26,” “27,” and “28” respectively attached heretoand incorporated by reference as if set forth in full herein. Furthermore, the “Notice Of A Lawsuit AndRequest To Waive Service Of A Summons” served on EACH of the Named Defendants NOTIFIEDthem of the PUBLIC/SOCIAL Forums – i.e. such as www.slideshare.net/VogelDenise andhttps://secure.filesanywhere.com/fs/v.aspx?v=8a706b8f58666ebeac6b to be used for theposting/sharing of documents in this Lawsuit [EMPHASIS ADDED]. See EXHIBITS “29,” “30,”“31,” and “32” - “Notice of Lawsuit. . .” ONLY respectively, attached hereto and incorporated byreference as if set forth in full herein.UNDISPUTED is the fact, that it appears that Named Defendants counsel may have had a SNEAKPEEK at Newsome’s July 14, 2012 Motion to Strike posted at: http://www.slideshare.net/VogelDenise/071412-motion-to-strike-page-kruger-holland-matterand then MOVED swiftly TWO (2) days later in efforts of BLINDSIDING the Court and Newsomefiled their SHAM/FRIVOLOUS/BOGUS “Motion to Stay” and supporting “Memorandum in Support”PRIOR to its receipt of Newsome’s Motion to Strike Motion To Dismiss and Memorandum In SupportOf Motion To Dismiss; Motion for Rule 11 Sanctions of and Against Defendants; and Motion for DefaultJudgment (Jury Trial Demanded in this Action) in hopes of obtaining and UNLAWFUL/ILLEGALOrder Staying of this Lawsuit by Magistrate Judge Michael T. Parker who LACKS JURISDICTIONto act in that Newsome has timely, properly and adequately “IN WRITING” notified of herOBJECTIONS to Magistrate Referral as well as OBJECTION to Judge Tom S. Lee.Furthermore, that Named Defendants counsel AGAIN, it appears, resorting to their “Folder of FORMPleadings” and pulled out one addressing DISCOVERY matters – i.e. which IS NOT applicable to thisinstant lawsuit – in efforts of trying to OBSTRUCT the administration of justice and their having tofulfill their MANDATORY OBLIGATIONS to notify parties and/or this Court notifying parties to thisaction of any/all CONFLICTS-OF-INTERESTS pursuant to Mississippi Rules of Professional Conduct(See EXHIBIT “10” attached hereto and incorporated by reference as if set forth in full herein) andother statutes/laws governing said matters. Mississippi Comn on Judicial Performance v. Gibson, 883 So.2d 1155 (Miss.,2004) - “Moral turpitude,” in the context of judicial misconduct, includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.UNDISPUTED is the fact, that on or about July 14, 2012, Newsome posted in a PUBLIC/SOCIALForum at http://www.slideshare.net/VogelDenise/071412-motion-to-strike-page-kruger-holland-matter her pleadings entitled, PLAINTIFF’ S MOTION TO STRIKE MOTION TO DISMISS ANDMEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF ANDAGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THISACTION). See EXHIBIT “33” – ScreenShot of pleading reflecting “POSTING Date.” [EMPHASISADDED].UNDISPUTED is the fact, that on or about July 18, 2012, Newsome submitted Facsimile toNamed Defendants’ counsel entitled, “REQUEST FOR EXPLANATION FOR PHELPSDUNBAR’S/COUNSELS’ KNOWLEDGE OF CONFLICT OF INTEREST AND DELIBERATEFAILURE TO NOTIFY PARTY(S) OF SAME and GOOD FAITH DEMAND THAT PHELPSDUNBAR WITHDRAW PLEADINGS.” See EXHIBIT “34” – July 18, 2012 Facsimile attachedhereto and incorporated by reference as if set forth in full herein. At the time of this instant filing,Named Defendants’ counsel has FAILED to provide Newsome with information MANDATORILYrequired pursuant to Mississippi Rules of Professional Conduct and other statutes/laws governing saidmatters. Page 17 of 39
    • To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!30. On Page 3, continuance of paragraph from page 2 which states, “Petrus v. Bowen, 833 F.2d 581, 583” and the referenced “Exhibit ‘1’” and the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the fact that NO Responsive Pleading and/or Answer to Newsome’s Complaint, in accordance with the statutes/laws governing said matters, has been filed in this Lawsuit. Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED! UNDISPUTED is the fact that pursuant to Rule 26 of the Federal Rules of Civil Procedure – for instance Rule 26(a)(1)(A), it clearly states in part: RULE 26 - Duty to Disclose; General Provisions Governing Discovery (1) Initial Disclosure. (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party— who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. See EXHIBIT “2” – Rule 26 of FRCP attached hereto and incorporated by reference as if set forth in full herein. So now with have Named Defendants and their counsel attempting to OBSTRUCT justice in the release of MANDATORY “DISCLOSURE” information as well as their DELIBERATE failure to release such information because of KNOWLEDGE of the EXPOSURE of “Conflict-Of-Interest” that is inevitable and may further EXPOSE their CRIMINAL/CIVIL violations; moreover, ROLE in CONTINUING and ONGOING Conspiracies leveled against Newsome.31. On Page 3, paragraph which begins with, “A stay of discovery is warranted” and the “. . .” in that it is - “STRICKEN STATEMENT CLAUSE.” Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST Page 18 of 39
    • DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!32. On Page 3, paragraph which begins with, “Courts within the jurisdiction of the Fifth Circuit” in that it is - “STRICKEN STATEMENT CLAUSE.” Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!33. On page 4, continuance of paragraph from page 3 which states, “dispositive motion. The Magistrate Judge in that case, Honorable F. Keith Ball, granted the stay until the District Court Judge, Honorable Henry T. Wingate,” along with the referenced Footnotes 8 and 9 and the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED are the following facts that are PERTINENT and RELEVENT to understanding the ONGOING Conspiracies and BLATANT Criminal/Civil violations being carried out by Judges/Magistrate Judges of this Court and opposing counsel in Lawsuits involving Newsome that are matters of SOCIAL/PUBLIC/GLOBAL importance in that it supports the PATTERN-OF- PRACTICE as well as supports NOT only the appearance of IMPROPRIETY but actual IMPROPRIETY by Officers of this Court. A reasonable mind may conclude that this is a “CULTURE” of criminal/civil wrongs ENGRAINED and DEEPLY-ROOTED” in the United States of America’s CORRUPT Judicial System that involve matters that are RACIALLY motivated and matters of PUBLIC Policy/Interests. It is important to note that Named Defendants and their counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) DELIBERATELY and with CRIMINAL/CRIMINAL intent fail to advise Newsome of the following PERTINENT and RELEVANT facts: a) Honorable Henry T. Wingate was nominated by former President Ronald Reagan on or about September 11, 1985. See EXHIBIT “58” attached hereto and incorporated by reference as if set forth in full herein. b) Baker Donelson’s employee Howard Henry Baker, Jr. served as CHIEF OF STAFF to United States of America President Ronald Reagan. Served as Senior Majority Leader of the United States Senate. Is currently SENIOR Counsel at Baker Donelson. Descendant of Baker Donelson founder. Founder of Baker Donelson in WASHINGTON, D.C. and London. See EXHIBIT “59” attached hereto and incorporated by reference as if set forth in full herein. c) Honorable Henry T. Wingate confirmed the Honorable F. Keith Ball. See EXHIBIT “60” attached hereto and incorporated by reference as if set forth in full herein. Judge Wingate appointed the Magistrate Selection Panel responsible. See EXHIBIT “61” attached hereto and incorporated by reference as if set forth in full herein. DIRTY-HANDS DEALS: It appears from information found regarding the selection of Magistrate Ball that he may have been PRE-SELECTED. If so, it appears MORE qualified candidates may have been deprived EQUAL employment opportunities as a direct and proximate result of CRIMINAL/CIVIL violations by Judge Wingate, Phelps Dunbar and Baker Donelson to get another one of their judges on the bench for purposes of STACKING the Court. It appears the LEAKING of Magistrate Ball’s selection coming from a source NOT on the Magistrate Selection Panel. Last Monday I reported that Keith Ball has been selected as the new Magistrate Judge for the Southern District. I had heard the news the previous Friday from someone who was not on the Magistrate Selection Panel. Then last Wednesday I heard that one of the Southern District Judges was telling lawyers that no announcement had been made on the selection yet. Page 19 of 39
    • See EXHIBIT “62” attached hereto and incorporated by reference as if set forth in full herein. From Newsome’s research, she found that Judge Wingate is a BLACK-American (i.e. NOT African-American). However, one should NOT be deceived by the fact that Newsome is AFRICAN-American that Judge Wingate would not be engaged in the CRIMINAL practices and CONSPIRACIES, etc. leveled against Newsome. From information that has been found, clearly it appears that the United States District Court – Southern District of Mississippi (Jackson) JUDICIAL panel may be STACKED with CORRUPT/TAINTED/BRIBED, etc. Judges purchased by such firms as Phelps Dunbar, Baker Donelson, Page Kruger & Holland, and others that CONSPIRE with them. Furthermore, the mere fact that Judge Wingate is a BLACK-American does NOT insulate him from RECUSAL. Judge Wingate KNOWS and/or should of KNOWN of his DUTY to RECUSE himself; moreover, the role he is playing in the ONGOING Criminal/Civil violations and CONSPIRACIES leveled against Newsome. Clearly the unlawful/illegal attacks leveled against Newsome are RACIALLY motivated. In re Chevron U.S.A., Inc., 121 F.3d 163 (5th Cir. 1997) - Judge is not insulated from recusal, in racially charged case, merely because he or she is black. 28 U.S.C.A. § 455. It appears Judge Wingate may be known as what is called a “HOUSE NEGRO:” One who has NO sense of his heritage and roots and is ASHAMED to be associated with African Heritage or roots because of what has been depicted in the MEDIA teaching them to hate themselves (i.e. the color of their skin, hair, etc.) and to be ashamed of their looks: http://youtu.be/YtOslGWp13A They are HIGHLY employed by the United States of America Government to serve as HOUSE Negroes/GATEKEEPERS and/or to meet QUOTAS for DECEPTIVE purposes - i.e. to DECEIVE and HIDE from the PUBLIC/WORLD the United States of Americas WHITE Supremacist and RACIST Agenda. HIGHLY employed by Government Agencies to COVER-UP Discriminatory practices in the Government and PRIVATE Sector by WHITE Racist Employers/Supremacists. They are also used to COVER-UP the Corruption and Criminal/Civil wrongs of SYSTEMATIC Discriminatory Practices leveled against AFRICAN-Americans and People of Color that are seen as a THREAT because they are EDUCATED and are STRONG Civil Rights Activists fighting for the cause of their people and EXPOSING the United States of America’s CRIMINAL HERITAGE. http://www.slideshare.net/VogelDenise/criminals-in-our-past HOUSE Negroes/BLACK-Americans are usually individuals NOT qualified to perform jobs they are hired for and are merely put into their positions as “GATE KEEPERS” and a direct and proximate result of SPECIAL FAVORS - i.e. them having to COMPROMISE and DENY morals, values and beliefs. One who will do EVERYTHING possible to FIT IN and be ACCEPTED by White Society. They live in FEAR and have become VERY DEPENDENT on a WHITE-RUN Government DETERMINED to erase and change their IDENTITY and LOOKS. But NO matter how HARD he/she TRIES, they are STILL seen as "BLACK!" It is BLACK- Americans that a White Reporter is SCOFFING at and PRAISING the TERRORISTS Acts (i.e. RAPES, MURDERS, LYNCHING, etc.) of his White Supremacist Counterparts in this interview with "Muslim Civil Rights Activist Malcolm X" and that Malcolm X prophesied whose REIGN will come to an END! http://youtu.be/o7f5NTLgtEA Just keeping it real and laying down the FACTS! So one can see why Judge Wingate was selected and why his MASTERS LOVE him so!d) Honorable F. Keith Ball has employment history with Named Defendant’s counsel Phelps Dunbar. See EXHIBIT “63” attached hereto and incorporated by reference as if set forth in full herein. Furthermore, research yielding information regarding Magistrate Ball’s presiding over a COPYRIGHT case [EMPHASIS added] involving Baker Donelson. See EXHIBIT “64” – As recent as JUNE 2012, information regarding Baker Donelson serving as counsel in Copyright matter attached hereto and incorporated by reference as if set forth in full herein. Why is this information PERTINENT and RELEVANT, because as recent as February 3, 2012, it appears that Baker Donelson, their Client (United States of America President Barack Obama) and others with whom they conspire with in ONGOING Conspiracies leveled against Newsome, had a FRIVOLOUS Copyright Lawsuit brought against Newsome for purposes of CRIMINAL intent and to keep the PUBLIC/WORLD from seeing the role they have played in the pattern-of-practices leveled against Newsome Page 20 of 39
    • involving CONTACTING her employers and ORCHESTRATING the TERMINATION of her employment – as evidenced in this instant Lawsuit and the 05/16/06 Email through the use of: STALKING, HARASSMENT, THREATS, BRIBES, COERCION, BLACKMAIL, INTIMIDATION, OBSTRUCTION OF JUSTICE, etc. in attempts of silencing her and depriving her equal protection of the laws, equal immunities and privileges under the laws, due process of laws and other rights secured/guaranteed under the United States Constitution and other statutes/laws of the United States of America governing said matters – See EXHIBIT “65” – Docket Sheet in The Garretson Firm Resolution Group matter attached hereto and incorporated by reference as if set forth in full herein. This case was SEALED once Newsome went PUBLIC/GLOBAL in sharing this information. Acts taken to keep this information out of the PUBLIC/WORLD eyes as they STRUGGLE to get United States of America President Barack Obama RE-ELECTED! It appears United States of America President Barack Obama, Baker Donelson and those with whom they conspire going as far as contacting companies providing Newsome with PUBLIC/SOCIAL forum services (i.e. as the Internet) for purposes of sharing information that is of PUBLIC/GLOBAL interests. However, as Named Defendants, their counsel, and those with whom they CONSPIRE can see, they have failed and Newsome continues to exercise rights secured to her under the United States Constitution and other statutes/laws and release information regarding the CRIMINAL/CIVIL wrongs and CONSPIRACIES leveled against her: www.vogeldenisenewsome.net and www.slideshare.net/vogeldenise, etc. e) On or about July 18, 2012, Newsome timely, properly and adequately requested an explanation from Named Defendants counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) via Facsimile entitled, “REQUEST FOR EXPLANATION FOR PHELPS DUNBAR’S/COUNSELS’ KNOWLEDGE OF CONFLICT OF INTEREST AND DELIBERATE FAILURE TO NOTIFY PARTY(S) OF SAME and GOOD FAITH DEMAND THAT PHELPS DUNBAR WITHDRAW PLEADINGS.” See EXHIBIT “34” attached hereto and incorporated herein by reference. Newsome’s request being in compliance with the Mississippi Rules of Professional Conduct and other statutes/laws governing said matters. See EXHIBIT “10” attached hereto and incorporated by reference as if set forth in full herein. Mississippi Comn on Judicial Performance vs Agin, 17 So.3d 578 (Miss.,2009) - Judges conduct in failing to issue a timely ruling in case violated the code of judicial conduct canons that required a judge to uphold the integrity and independence of the judiciary, to respect and comply with the law and to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and to dispose of all judicial matters promptly, efficiently and fairly. Code of Jud.Conduct, Canons 1, 2A, 3B(8), 3C(1). See EXHIBIT “5” – Code of Judicial Conduct attached hereto and incorporated by reference as if set forth in full herein. Mississippi Comn on Judicial Performance vs Bustin, 2011 WL 4634995 (Miss., 2011) - “Moral turpitude,” in the context of judicial misconduct, includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute. Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!34. On Page 4, paragraph which begins with, “If Defendants’ motion to dismiss is granted, the need for discovery,” along with the referenced Footnote 10 and the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the FACT that Named Defendants and their counsel AGREE that Newsome’s 143-Page Complaint distinctly set forth VALID Claims! Furthermore, because there has been NO Page 21 of 39
    • legal/lawful Responsive Pleading and/or Answer filed to Newsome’s Complaint, as a matter of law, the averments/claims set forth in the Complaint filed in this Lawsuit are DEEMED “ADMITTED” as Named Defendants were timely, properly and adequately NOTIFIED of when served the Complaint along with “Waiver of the Service of Summons and NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS” - i.e. which CLEARLY stated in part: 6. If your answer is not sufficiently definite in nature to give reasonable notice of the allegations in the Complaint sought to be placed in issue, the Plaintiff’s averments may be treated as admitted (i.e. a corporate defendant’s denial of “each and every allegation” did not give “plain notice.”).3 7. A denial of knowledge or information requires that you not only lack first-hand knowledge of the necessary facts involved, but also that you lack information upon which you reasonably could form a personal belief concerning the truth of the Plaintiff’s allegations.4 8. Normally, you may NOT assert lack of knowledge or information if the necessary facts or data involved are within your knowledge or easily brought within your knowledge (i.e. An Answer denying information as to the truth or falsity of a matter necessarily within the knowledge of the party’s managing officers is a sham, and will be treated as an admission of allegation of the complaint.5) 9. An averment, that you are without knowledge or information sufficient to form a belief as to matters that are common knowledge or of which you can inform yourself with the slightest effort, will be treated as patently false and the effect and purpose will be taken as such to merely delay justice.6 See EXHIBITS “25,” “26,” “27,” and “28” respectively attached hereto and incorporated by reference as if set forth in full herein. Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED! 35. On Page 4, paragraph which begins with, “IV. CONCLUSION” and the following paragraph which begin with, “Based on the pending motion,” in that they are - “STRICKEN STATEMENT CLAUSE.” 36. On Page 5, remaining content of the pleading in that it is - “STRICKEN STATEMENT CLAUSE.” 37. On Page 6, the “CERTIFICATE OF SERVICE” and the contents therein in that it is - “STRICKEN STATEMENT CLAUSE.” Now that the statutes/laws governing said matters require the STRIKING of the entire contents, statements,exhibits, etc. as noted above, there remains NO legal/lawful pleading of record. Therefore, Newsome is entitled tothe relief (Rule 11 Sanctions and DEFAULT Judgment, etc.) sought herein. C. “MISSISSIPPI” CATCALL STATUTE – GOVERNS 42 USC § 1981 CLAIMS 3 Reference Purposes: Wright & Miller Federal Practice and Procedure Civil 3d § 1261. 4 Reference Purposes: Wright & Miller Federal Practice and Procedure Civil 3d § 1262. 5 For Reference Purposes: Wright & Miller Federal Practice and Procedure Civil 3d § 1262 and also, Harvey Aluminum (Inc.) v.NLRB, 335 F2d 749, 758 (9 th Cir. 1964). 6 For Reference Purposes: See Reed v. Turner, 2 F.R.D. 12; and Squire v. Levan, 32 F.Supp. 437. Page 22 of 39
    • 38. UNDISPUTED is the fact that Newsome’s Complaint is premised on claims brought pursuant to 42 U.S.C. § 1981 – Equal Rights Under The Law which allows for one to “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .” Therefore, subject to the provision of Mississippi’s “CATCHALL Statute” pursuant to Mississippi Code Ann. § 15-1-49: FN2. Section 15-1-49. Limitations applicable to actions not otherwise specifically provided for - All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after. . . . The six-year statute (section 15-1-49) is more general in the sense that it is a general residual statute that applies to a broad class of actions-tort, contract or statutory-not otherwise provided for. Gates vs. Spinks, 771 F.2d 916 (5th Cir. S.D. Miss. 1985) Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!39. 42 USC § 1981 claims encompasses race-based as well as retaliation claims. It is UNDISPUTED that § 1981 contains NO statute of limitations. The United States Supreme Court has found: CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951 (U.S. 2008) - Section 1981 encompasses retaliation claims. Retaliation claims cognizable under § 1981 include employment-related retaliation claims. 42 U.S.C.A. § 1981. Jackson v. Birmingham Bd. of Educ., 125 S.Ct. 1497 (U.S. 2005) - Retaliation against a person because that person has complained of . . . discrimination is a form of intentional . . . discrimination encompassed by Title IXs private cause of action; retaliation is, by definition, an intentional act, retaliation is a form of discrimination because the complainant is being subjected to differential treatment, and the discrimination is “on the basis of sex” because it is an intentional response to the nature of the complaint, namely, an allegation of sex discrimination. UNDISPUTED is the “DIFFERENTIAL” treatment Newsome was subjected to as a direct and proximate result of Named Defendants’ learning of her engagement in PROTECTED activities – i.e. Title VII actions, Lawsuits, being a witness and/or party in legal proceedings, etc. – as set forth in the May 16, 2006 Email Newsome submitted to Named Defendants’ memorializing the meeting which resulted in her TERMINATION. Furthermore, Named Defendants NOT DENYING that other employees similarly situated engaged in the same activities they noted were grounds for Newsome’s termination. Therefore, a reasonable person and/or mind may conclude that PKH’s termination of Newsome’s employment was discriminatory, retaliatory and the proffered reasons PRETEXT to shield/mask its criminal/civil wrongs leveled against Newsome. Moreover, Named Defendants’ role in the CONSPIRACIES leveled against Newsome.40. Named Defendants’ counsel ERRONEOUSLY asserts that because Newsome may mention Title VII in her Complaint, that she has to bring this lawsuit under Title VII – wherein she DOES NOT! As Named Defendants’ counsel grasp at straws in his dire and desperate FRIVOLOUS efforts to get his clients out of this lawsuit and the relief to which Newsome is entitled. The Fifth Circuit Court of Appeals is clear on such issues that involve Title VII claims as well as § 1981 claims being cognizable under the same rubric of analysis. Raggs v. Mississippi Power & Light Co., 278 F.3d 463 (5th Cir. Miss. 2002) - Court of Appeals considers claims of intentional discrimination, which include racial discrimination and retaliation claims based on Title VII and § 1981, under the same rubric of analysis. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.41. UNDISPUTED is the fact that Newsome’s employment with PKH was terminated as a direct and proximate result of her engagement in PROTECTED activity – i.e. for instance knowledge that Newsome had filed a lawsuit, was assisting and/or participating in lawsuit, investigations, attending hearings, etc. In fact, Named Defendants with KNOWLEDGE of Newsome’s engagement in protected Page 23 of 39
    • activities and an UPCOMING Court appearance approximately three (3) days before the date of her next Court appearance in a PROTECTED activity, terminated Newsome’s employment for purposes of providing opposing parties with an UNDUE/UNLAWFUL advantage in lawsuit. See EXHIBIT “23” – Motion Docket attached hereto and incorporated by reference as if set forth in full herein. Then when Newsome and her attorney had the matter moved to FEDERAL Court, PKH with KNOWLEDGE of the Conflict-Of-Interest that existed, elected to make a CONSCIOUS, DELIBERATE and WILLFUL decision to represent parties in said lawsuit – Newsome vs. Spring Lake Apartments: See EXHIBIT “35” – Spring Lake Apartments Docket Sheet which reflects and/or supports PKH’s representation of defendant(s) in said matter attached hereto and incorporated by reference as if set forth in full herein. For instance see the following PHELPS DUNBAR’s Client’s Case: Callahan v. Bancorpsouth Ins. Services of Mississippi, Inc., 244 F.Supp.2d 678 (S.D.Miss.S.Div.,2002) - Title VII prohibits retaliation in either of two instances: (1) where the employee has opposed any unlawful employment practice; or (2) where the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. See EXHIBIT “24” – Callahan matter (i.e. with Phelps Dunbar information highlighted) attached hereto and incorporated by reference. D. FRAUD ON THE COURT: Fraud On The Court: (1) In a judicial proceeding, a lawyers or partys misconduct so serious that it undermines or is intended to undermine the integrity of the proceeding. (Blacks Law Dictionary 8th Edition) Fraud: (1) A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. (2) A misrepresentation made recklessly without belief in its truth to induce another person to act. (3) A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment. Id.42. Named Defendants’ Motion to Stay and the supporting Memorandum In Support are pleadings which were provided with knowledge of their misrepresentations of the truth or concealment of material fact and for purposes of inducing this Court to act to its detriment – thus compromising this Court’s integrity and the appearance of impropriety would be obvious.43. Named Defendants’ Motion to Stay and the supporting Memorandum In Support are pleadings which were provided with knowledge of the CONFLICT-OF-INTEREST that exists and their DUTY to DISCLOSE pursuant to FRCP Rule 26, Mississippi Rules of Professional Conduct and other statutes/laws governing said matters – thus compromising this Court’s integrity and the appearance of impropriety CLEARLY obvious.44. Newsome believes that the record evidence will support “Named Defendants’” Motion to Stay and the supporting Memorandum In Support are misrepresentations made recklessly without belief in its truth to induce this Court and/or its Judge(s) to engage in the cover-up of unlawful/illegal – criminal/civil - and unethical practices to the DETRIMENT of their careers – i.e. perhaps winding up like either Judge G. Thomas Porteous (i.e. a Federal Judge IMPEACHED and found GUILTY for criminal behavior) and/or Judge Bobby DeLaughter (State Judge INDICTED and found GUILTY for his criminal behavior). See EXHIBITS “36” – Judge Porteous Information and “37” – Judge DeLaughter Information respectively attached hereto and incorporated by reference as if set forth in full herein.45. In this instant lawsuit, Named Defendants’ counsel has merely abused this Court’s Electronic Filing System by injecting Motion to Stay and supporting Memorandum In Support in an attempt to beat the filing of Newsome’s MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) asserting they were being filed on behalf of “Named Defendants” with KNOWLEDGE their pleadings were (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, fraud, Page 24 of 39
    • increasing costs of litigation, embarrassment, sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to Defendants and their counsel. The actions by Named Defendants counsel were carried out with fraudulent intent so serious that it undermines or was intended to undermine the integrity of this Court and these proceedings.46. Newsome believes that the facts, evidence and legal conclusions set forth in this instant filing will support that “Named Defendants’” Motion to Stay and supporting Memorandum In Support were provided with intent to deceive, for purposes of falsification, concealment and misrepresentation upon this Court. The U.S. Supreme Court finding: Knauer v. U.S., 66 S.Ct. 1304 (1946) - “Fraud” connotes perjury, falsification, concealment, and misrepresentation. Lord v. Goddard, 54 U.S. 198 (1851) - “Fraud” means an intention to deceive.47. While “Named Defendants” may be represented by counsel (Phelps Dunbar) they are BOUND and subject to any act which are committed by their counsel (Phelps Dunbar/Siler/Marsh). Defendants’ counsel has filed Appearances on their behalf. See EXHIBIT “38” – Phelps Dunbar Appearance Documents attached hereto. Great Atlantic & Pacific Tea Co. v. Majure, 168 So. 468 (Miss.,1936) - Attorney who acts for litigant is presumed to have authority to do all acts necessary to properly conduct litigation, and party denying such authority has burden to show absence thereof and is bound, as to opposite party, by any act which attorney does in regular course of practice, however improper, if done without fraud or collusion. McKiernan v. Patrick, 4 Howard 333 (Miss.,1840) - Where the authority of an attorney of record is disputed, he may be required to produce it. An "appearance" in an action involves some submission or presentation to the court by which a party shows his intention to submit himself or herself to the jurisdiction of the court. (Ex parte Phillips, 900 So. 2d 412 [2004]) Rains v. Gardner, 719 So.2d 768 (Miss.App.,1998) - The party claiming that a person has waived process and entered an appearance has the burden of proof on the question. E. DIRTY HANDS POLICY: United States Supreme Court Rulings: Bein v. Heath, 47 U.S. 228 (1848) - One who asks relief in chancery must have acted in good faith, since the equitable powers can never be exerted in behalf of one who has acted fraudulently, or who, by deceit or any unfair means, has gained an advantage. Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 65 S.Ct. 993 (1945) - An equity court may exercise wide range of discretion in refusing to aid litigant coming into court with unclean hands. Johnson v. Yellow Cab Transit Co., 64 S.Ct. 622 (1944) - The maxim that he who comes into equity must come with clean hands is not applied by way of punishment for an unclean litigant, but upon considerations that make for the advancement of right and justice. Milwaukee & M.R. Co. v. Soutter, 80 U.S. 517 (1871) - He that hath committed iniquity shall not have equity. Sample v. Barnes, 55 U.S. 70 (U.S.Miss.,1852) - Whoever would seek admission into a court of equity must come with clean hands and such a court will never interfere in opposition to conscience or good faith. Fifth Circuit Court of Appeals : Page 25 of 39
    • Flory v. U.S., 138 F.3d 157 (C.A.5.Miss.,1998) - He who comes into equity must come with clean hands. Cataphote Corp. v. Hudson, 422 F.2d 1290 (C.A.5.Miss.,1970) - Protection of trade secrets is an equitable doctrine; secrets obtained by wrongful means are not entitled to protection, and “unclean hands” doctrine may apply to deny the employer protection. New York Football Giants, Inc. v. Los Angeles Chargers Football Club, Inc., 291 F.2d 471 (C.A.5.Miss.,1961) - He who comes into equity must come with clean hands. Mississippi State Court: Bailey v. Bailey, 724 So.2d 335 (Miss.,1998) - “Clean hands doctrine” prevents complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in transaction at issue. Thigpen v. Kennedy, 238 So.2d 744 (Miss.,1970) - It is duty of the chancellor to apply “unclean hands” doctrine of its own motion when it becomes evident that the facts of case are such they call for application of the doctrine. Ellzey v. James, 970 So.2d 193 (Miss.App.,2007) - He who does fraud may not borrow the hands of the chancellor to draw equity from a source his own hands has polluted.48. Newsome believes that the facts, evidence and legal conclusions provided in the Complaint filed in this lawsuit and her subsequent filings will support that “Named Defendants” have DIRTY HANDS. Moreover, their counsel (Phelps Dunbar) also has a reputation for DIRTY HANDS and has KNOWINGLY and DELIBERATELY withheld information from this Court and Newsome required under statutes/laws governing “DUTY TO DISCLOSE.” Newsome is CONFIDENT that information is CRUCIAL in understanding the OVER 20 Years of criminal/civil wrongs they have leveled against her to deprive her equal protection of the laws, privileges and immunities and due process of laws; moreover, life, liberties and the pursuit of happiness secured under the United States Constitution and other statutes/laws governing said matters.49. Newsome believes that the facts, evidence and legal conclusions provided in the Complaint filed in this lawsuit and her subsequent filings will support that “Named Defendants” have a reputation of COHORTING and CONSPIRING with CORRUPT/TAINTED Officials/Judges – i.e. such as Judge Bobby DeLaughter who was INDICTED and pled “Guilty” to criminal activities [See Paragraph i) at Page 14 of Complaint and supporting Exhibit “VIII”] and IMPEACHED Judge G. Thomas Porteous [See Paragraph ii) at Page 14 of Complaint and supporting Exhibit “IX”] – for purposes of obtaining an undue advantage in legal actions. UNDISPUTED is the fact that a NEXUS/CONNECTION can be established with Baker Donelson and former United States of America President William “Bill” Clinton. For instance, Baker Donelson’s EMPLOYED a TOP/KEY LOBBYIST by the name of Linda Daschle - i.e. in what appears to be a REWARD for the role played in the PLANNING of the September 11, 2011 ATTACKS on the World Trade Center and other targets. Furthermore, what appears to be Baker Donelson REWARDING Linda Daschle with employment AFTER the Bill Clinton REIGN as a direct and proximate result of REWARDING her! As COUNSEL for United States of America President Barack Obama, they attempted to get Linda Daschle’s husband (Thomas Daschle) appointed to the position of Secretary for the United States Department of Health and Human Services See EXHIBIT “39” – Linda Daschle information attached hereto and incorporated by reference as if set forth in full herein. Now it appears “Named Defendants” and its counsel (Phelps Dunbar/Siler/Marsh) are attempting to use ANOTHER tainted and corrupt Judge – Tom S. Lee – to aid and abet in their CRIMINAL acts in FURTHERANCE of the CONSPIRACIES and criminal/civil wrongs leveled against Newsome. A NEXUS/CONNECTION between Phelps Dunbar and Baker Donelson Bearman Caldwell & Berkowitz (“Baker Donelson”) can be established. In support thereof, Newsome states: a) Both Phelps Dunbar and Baker Donelson have a PERSONAL, FINANCIAL and BUSINESS interest in the outcome of this lawsuit along with their Clients (i.e. which Page 26 of 39
    • include Entergy Louisiana/New Orleans (“Entergy”), LIBERTY MUTUAL INSURANCE Company, etc.) For instance, both Phelps Dunbar and Baker Donelson are legal Counsel for Entergy. See EXHIBITS “20” – Phelps Dunbar information from LexisNexis and “21” – Cover Page in Newsome vs. Entergy referencing Baker Donelson’s legal representation of Entergy respectively attached hereto and incorporated by reference as if set forth in full herein. In fact, there is EVIDENCE of how Phelps Dunbar and Baker Donelson TEAM UP and/or engage JOINTLY in legal actions on behalf of their clients – i.e. see for instance Hambrick vs. Bear Stearns Residential Mortgage Opinion at EXHIBIT “40” wherein Newsome has HIGHLIGHTED such JOINT Legal Ventures, attached hereto and incorporated by reference as if set forth in full herein. Well it appears Phelps Dunbar and Baker Donelson even SWAP attorneys – See EXHIBIT “41” – Phelps Dunbar & Baker Donelson Employee Transitions attached hereto and incorporated by reference as if set forth in full herein. b) It appears just as in the Newsome vs. Spring Lake matter, Baker Donelson may be attempting to use Phelps Dunbar as a FRONTING FIRM for purposes of SHIELDING/HIDING its involvement and interests. This information is pertinent and relevant in that Judge Tom S. Lee’s FAILURE to advise of such CONFLICT-OF- INTEREST in the Newsome vs. Spring Lake matter as well as his appearance as a PURCHASED/BRIBED Judge of Baker Donelson resulted in the TAINTING and COMPROMISING of that lawsuit that Newsome had to have it removed as a direct and proximate result of the CRIMINAL/CIVIL wrongs by Judge Tom S. Lee and members in the Clerk’s Office attempts to THROW that lawsuit. See Exhibit “XXIV” – “EMERGENCY COMPLAINT AND REQUEST FOR LEGISLATURE/CONGRESS INTERVENTION; ALSO REQUEST FOR INVESTIGATIONS, HEARINGS AND FINDINGS” of the Complaint filed in this lawsuit. Judge Tom Stewart Lee who was nominated by former President Ronald Reagan – i.e. at which time Howard Baker (grandson of FOUNDER of Baker Donelson) was United States Senate MAJORITY Leader and later becoming CHIEF OF STAFF to President Ronald Reagan. DISQUALIFICATION of Judge Tom Stewart Lee is therefore warranted for purposes of maintaining the appearance of impropriety and other violations none to this Court requiring disqualification(s). See EXHIBIT “42” – Disqualification Of Supreme Court Justices: The Certiorari Conundrum attached hereto and incorporated by reference as if set forth in full herein.The Fifth Circuit finding in U.S. v. Couch, 896 F.2d 78 (5th Cir. 1990) that: [4] Aetna thus instructs that the Due Process Clause “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” 475 U.S. at 825, 106 S.Ct. at 1587. Sometimes, of course, but not always. The inquiry commanded by section 455 and that commanded by the Due Process Clause are not the same. The Due Process Clause requires a judge to step aside when a reasonable judge would find it necessary to do so. Section 455 requires disqualification when others would have reasonable cause to question the judges impartiality. It is this additional, systemic concern for avoiding the appearance of impropriety that makes the section 455 standard for disqualification more demanding than that imposed by the Due Process Clause. At some point the two tests overlap. We conclude that it is this area of overlap that the Liljeberg court was referring to when it noted that the concern for public perceptions of judicial integrity has “constitutional dimensions.” 486 U.S. at 865 n. 12, 108 S.Ct. at 2205 n. 12, 100 L.Ed.2d at 875 n. 12. See Walberg v. Israel, 766 F.2d 1071 (7th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985).The United States Supreme Court finding in Liljeberg v. Health Services Acquisition Corp.,486 U.S. 847: [5] . . . We conclude that in determining whether a judgment should be vacated for a violation of § 455(a), it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the publics confidence in the judicial process. We must continuously bear in mind that “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (citation omitted). Page 27 of 39
    • c) There is record evidence to support that while Judge Tom Stewart Lee has RECUSED himself in matters involving Baker Donelson’s and its Clients’ interests – See EXHIBIT “43” – when it comes to matters involving Newsome, Judge Lee is ADAMANT and INSIST on violating the laws for purposes of protecting the interests of those with whom he have financial, personal and business interests. Furthermore, Judge Lee clearly appears on LISTING of Judges/Justices that Baker Donelson advertises on its website. For instance see DISQUALIFICATIONS warranted in that: Judge Tom Stewart Lee is a Member of the Mississippi Bar and has PERSONAL, FINANCIAL and BUSINESS interests of those involved in this lawsuit: EXHIBIT “44” – Judge Tom Stewart Lee Mississippi Bar Information attached hereto and incorporated by reference as if set forth in full herein. Also see Exhibit XVIII of Complaint supporting Baker Donelson’s holding of position(s) as President of the Mississippi Bar Association. Furthermore, PKH having attorneys who are Officers of the Mississippi Defense Lawyers with business ties and relationships to Baker Donelson and Phelps Dunbar. See Exhibit XIX of Complaint and EXHIBITS “40” and “41” of this instant pleading. DISQUALIFICATION is required pursuant to 28 USC § 144 and/or 455. See for instance EXHIBIT “45” - Judges Membership In Bar Association As Ground For Disqualification Under 28 USC § 455 [i.e. IMPORTANT TO NOTE that Baker Donelson’s advertisement of employees serving as:  United States Circuit Court of Appeals Judge  United States District Court Judges  United States Attorneys  Presidents of State and Local Bar Associations See EXHIBIT “46” attached hereto and incorporated by reference as if set forth in fill herein] and EXHIBIT “ 47” - Disqualification Of Judge Under 28 U.S.C.A. § 455(b)(4), Providing For Disqualification Where Judge Has Financial Or Other Interest In Proceeding attached hereto and incorporated by reference as if set forth in full herein. EXHIBIT “48” - Disqualification Of Judge Because Of Political Association Or Relation To Attorney In Case attached hereto and incorporated by reference as if set forth in full herein. DISQUALIFICATION because Judge Tom Stewart Lee’s IMPARTIALITY is validly and in good faith QUESTIONED – See EXHIBIT “49” - Construction and Application of 28 USCS § 455(a) Providing For Disqualification Of Justice, Judge, Magistrate, or Referee In Bankruptcy In Any Proceeding In Which His Impartiality Might Reasonably Be Questioned attached hereto and incorporated by reference as if set forth in full herein. Under the “EQUAL RIGHTS UNDER THE LAWS” as well as other statutes/laws of the United States of America governing said matters, Newsome is entitled to a “FAIR and IMPARTIAL Forum.” See EXHIBIT “50” - Safeguarding the Litigants Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to Improprieties Arising from Judicial Campaign Contributions from Lawyers attached hereto and incorporated by reference as if set forth in full herein. Newsome believes that DISQUALIFICATION of Judge Tom Stewart Lee is further warranted in that clearly he has a BIAS towards her as do Named Defendants, their counsel and those with whom they CONSPIRE. See EXHIBIT “51” - Disqualification Of Judge For Bias Against Counsel For Litigant attached hereto and incorporated by reference as if set forth in full herein. d) In fact, in the Newsome vs. Spring Lake matter in which PKH KNEW and/or should have known of the CONFLICT-OF-INTEREST with its involvement; nevertheless, PKH too remained ADAMANT and INSISTED on remaining in lawsuit as Legal Counsel for defendant(s) in that action. PKH employing the son (John Noblin) of the Clerk (J.T. Noblin) of this Court. See Exhibits “XII” and “XIII” of Complaint. Furthermore, Judge Tom Stewart Lee allowed such criminal/civil wrongs OVER Newsome’s Objections. Further supporting RECUSAL and DISQUALIFICATION of Judge Tom Stewart Lee to preside in this matter. See EXHIBIT “52” - Conduct or Bias of Law Clerk or Other Judicial Support Personnel as Warranting Recusal of Federal Judge or Magistrate attached hereto and incorporated by reference as if set forth in full herein.50. Through this instant MTS-MTSTAY&MFR11SDEFAULT, Newsome is requesting this Court to refuse to AID and ABET “Named Defendants,” their legal counsel (Siler and Marsh), and their law firm (Phelps Dunbar) and others engaging in furtherance of conspiracies leveled against Newsome that come before this Court with DIRTY/UNCLEAN HANDS! Page 28 of 39
    • 51. Newsome believes there is sufficient evidence in the Complaint and supporting Exhibits to sustain that “Named Defendants” have a PATTERN-OF-PRACTICE in engaging others to join conspiracies leveled against Newsome for purposes of subjecting her to criminal/civil wrongs – i.e. depriving her equal protection of the laws, equal privileges and immunities and due process of laws. Moreover, “Named Defendants” and those with whom they conspire have a PATTERN-OF-PRACTICE of coming before the Court(s) with DIRTY/UNCLEAN HANDS.52. In that “Named Defendants,” their counsel, Judge Tom Stewart Lee and those with whom they CONSPIRE have a well-established HISTORY and PATTERN-OF-BEHAVIOR in compromising the record and TAMPERING with documents, under the DIRTY HAND POLICY they come before this Court, through this instant lawsuit, to continue their criminal behavior. Having sufficient information and evidence before them, they made a WILLFUL and CONSCIOUS decision to come before this Court in furtherance of CONSPIRACIES and CRIMINAL INTENT to commit fraud upon this Court and to induce its Judge(s) to engage in the COVER-UP of criminal behavior in unlawful/illegal employment practices which not only adversely affected Newsome but the public-at-large. F. FEDERAL RULES OF CIVIL PROCEDURE – RULE 11 SANCTIONS: Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 569-570 (2006) – Under the “snapshot” rule, sanctions based on a frivolous pleading were proper because the lack of legal and evidentiary support for the pleading at the time it was filed. The . . .court found the claims lacked both legal and factual support and imposed more than $500,000 in sanctions against plaintiffs and their counsel, based on defendants’ reasonable expenses incurred in litigating against the claims. . . . This test focuses on the instant when the signature is placed on the document, and the state of mind of the signer at the time. The test ensures the Rule 11 liability is assessed only for violation existing at the moment of filing. The . . . court had clearly concluded that the pleadings were frivolous when filed. The fact that they continued to lack evidentiary support throughout the proceedings only underscored the violation. (n. 4) Both client and attorney have duty to conduct reasonable inquiry into facts or law before filing lawsuit; (n. 5) In lawsuit addressing ongoing dispute . . .court did not abuse its discretion in awarding Rule 11 sanctions against plaintiffs; rather than sanctioning them for legally frivolous nature of pleadings, it sanctioned them for . . .factually groundless allegations in their complaint; and (n. 7) Fifth Circuits “snapshot” rule/test ensures that Rule 11 liability is assessed only for a violation existing at moment of filing.53. This Court, upon the use of the U.S. Fifth Circuit Court of Appeals’ “SNAPSHOT Rule” on Named Defendants’ Motion to Stay and supporting Memorandum In Support may find the evidence supports that said pleadings are frivolous and a sham submitted with WILLFUL, MALICIOUS and WANTON acts to commit fraud upon this Court. Furthermore, that said pleadings clearly lacked legal standing and evidentiary support at the time they were filed. Furthermore, a reasonable person/mind may conclude that Named Defendants’ failure to return the “Waiver of the Service of Summons” and the attached “Notification Accompanying Waiver of Service of Summon” served on each of them was done with KNOWLEDGE and DELIBERATE intent to engage in criminal/civil violations before this Court. Therefore, supporting and sustaining the sanction relief Newsome seeks through this instant filing.54. Newsome believes that a reasonable mind may conclude that in using the “SNAPSHOT Rule” as well as the Named Defendants’ failure to return the “Waiver of the Service of Summons” and the attached “Notification Accompanying Waiver of Service of Summon” served on each of them, at the time of signing of Motion to Stay and Memorandum In Support, the state of mind of Named Defendants’ and their counsel (Phelps Dunbar/Siler/Marsh) was for purposes of fraud, deceit, misrepresentation, harassment, embarrassment, obstructing justice, delaying proceedings, increasing the costs of litigation, violating the Rules of the Court and Federal Rules of Civil Procedures and other reasons known to them. Page 29 of 39
    • 55. Newsome further believes that the record evidence (i.e. Complaint and Newsome’s subsequent filings) will support that “Named Defendants” have established a “PATTERN-OF-ABUSE” and “PATTERN- OF-ENGAGING-IN-CRIMINAL ACTS” to further support Rule 11 Sanctions as well as this Court’s reporting of said CRIMINAL acts to the appropriate agency/entity for prosecution, sanction and disbarment (if applicable).56. “Named Defendants” and any person they would have retained to represent them in this lawsuit have a duty to conduct reasonable inquiry into facts of law before filing pleadings.57. The record evidence will support that “Named Defendants” were timely, properly and adequately NOTIFIED that Newsome would seek Rule 11 sanctions and/or relief under the applicable laws. “Named Defendants” were notified through the “Waiver of the Service of Summons” and the attached “Notification Accompanying Waiver of Service of Summon” which accompanied it. For instance see EXHIBITS “25,” “26,” “27,” and “28” respectively attached hereto and incorporated by reference as if set forth in full herein. Furthermore, based on information received, Named Defendants and their counsel (Phelps Dunbar/Siler/Marsh) having KNOWLEDGE they were proceeding in violation of Rule 11 of the Federal Rules of Civil Procedure and, therefore, entitled to SANCTIONS for the Motion to Dismiss and supporting Memorandum Brief in that they are IRRELEVANT and are: (i) an insufficient defense to the Complaint filed by Newsome; (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, embarrassment, sham/frivolousness, commit fraud upon this Court, and other reasons known to Defendants and their Counsel. See for instance PHELPS DUNBAR’S case: Alexander vs. Easy Finance of New Albany, Inc., 2007 WL 295220 (N.D. Miss.) - The Court found that the . . . had acted in an unreasonable, vexatious and reckless manner. . . EXHIBIT “53” – Alexander matter attached hereto and incorporated by reference. In fact, Named Defendants counsel ACKNOWLEDGES his clients’ receipt of the Waiver of the Service of Summons and attached Notification Accompanying Waiver of Service of Summons and their KNOWLEDGE of Rule 11 SANCTIONS for the submittal of documents/pleadings considered “legally FRIVOLOUS and without FOUNDATION in law or fact. Advising Newsome as stated in part: In your letter, you demand that Defendants execute the Waiver of the Service of Summons and return the same to you, along with the Notification Accompanying Waiver of Service of Summons that you prepared in the instant matter. Please be advised that the documents you submitted for waiver of service of process were modified in form and, therefore, Defendants were not required to execute such documents. . . Finally, as stated in Defendants’ Motion to Dismiss, the Complaint you filed in this matter was legally frivolous and without foundation in law or fact. Specifically, all of your claims against Defendants are timed barred, due to the expiration of your respective statutes of limitation. Should you not voluntarily dismiss your lawsuit immediately, Defendants reserve the right to seek all fees and costs incurred in defense of this matter from you in accordance with Fed. R. Civ. P. 11. Please accept this correspondence as notification of our intent to seek such fees and costs, as required by Rule 11(c). See EXHIBIT “54” – July 11, 2012 Letter from Phelps Dunbar/Marsh attached hereto and incorporated by reference as if set forth in full herein. Furthermore, supporting that Named Defendants and their counsel (Phelps Dunbar/Siler/Marsh) were timely, properly and adequately NOTIFIED of the Rule 11 SANCTION consequences for submitting such FRIVOLOUS pleadings as their Motion to Dismiss and Memorandum in Support Of Motion to Dismiss.58. The record evidence will support that the “Notification Accompanying Waiver of Service of Summon” provided “Named Defendants” with the following information to aid and/or assist them in the preparation of their Answer and/or “Responsive Pleading: At ¶ 4 of Page 1 it states in part: “Be subject to the provisions of Federal Rules of Civil Procedure Rule 11. Your ‘failure to comply with Rule 11 may be attacked by a motion to strike.’ ‘An attorney who willfully violates Rule 11 is subject to possible disciplinary action.’” Your signing of pleadings constitute a certificate of the following: a. That the attorney (or party) has conducted a reasonable inquiry; b. That he or she is satisfied that the paper is well grounded in fact; Page 30 of 39
    • c. That the pleading has a basis in existing law or that the attorney (or party) has a good faith argument to amend or reverse existing law; and d. That the pleading is not imposed for any improper purpose, such as harassment, delay, or needless increase of his opponent’s costs of litigation. . . .If the pleading or other paper is signed in violation of this Rule, appropriate sanctions shall be imposed by the court on motion or on its own initiative. Sanctions may include an order to pay the other party the amount of reasonable expenses caused by the violation, including reasonable attorney’s fees. – Pp. 1-2.59. Newsome believes that the record evidence will support that Rule 11 liability is deemed appropriate at this time to deter and discourage “Named Defendants” and their counsel (Phelps Dunbar/Siler/Marsh) from coming before this Court with fraudulent intent, criminal intent and other willful, malicious and wanton unethical behavior known to them.60. Newsome believes that the record evidence will support that the 141-Page Complaint and the supporting 25 Exhibits attached thereto will support that “Named Defendants” and their counsel (Phelps Dunbar/Siler/Marsh) had enough facts, evidence and legal conclusion to support that their counsel knew and/or should have known that the Motion to Stay and supporting Memorandum In Support were frivolous and when he affixed his “electronic signature” to such sham/frivolous pleadings he knew and/or should have known he did so with the intent to commit fraud upon this Court and to cause needless and unwarranted delay, harassment and increase in costs of litigation and other reasons known to him and “Named Defendants.” Mercury Air Group, Inc. v. Mansour, 237 F.3d 542 (C.A.5. 2001) - Under Rule 11, an attorney must have made a reasonable inquiry into the facts and law of a case at the time which he or she affixes his or her signature on any papers to the court. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A. Walker v. City of Bogalusa, 168 F.3d 237 (C.A.5.1999) - A signatory violates Rule 11 if he fails to conduct a reasonable inquiry into the law and facts underlying his motion, or if he makes a motion to delay, harass or increase the costs of litigation. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A.61. Newsome believes that the record evidence will support that the 141-Page Complaint and the supporting 25 Exhibits attached thereto will support that “Named Defendants” had enough facts, evidence and legal conclusion to support that they knew and/or should have known that they were required to conduct reasonable inquiry in to the laws and/or legal basis of the Motion to Stay and the supporting Memorandum In Support filed by their counsel. Therefore, “Named Defendants” and their counsel have violated Rule 11.62. The nature and/or area of employment of “Named Defendants” is and/or has been the “LEGAL FIELD” – i.e. law firm, attorneys, executive for law firm (Manager/Human Resources Representative), etc.63. Newsome believes that a reasonable mind may conclude that had “Named Defendants” and/or their counsel conducted reasonable inquiry into the Motion to Stay and supporting Memorandum In Support, they would have found that there was NO legal basis or evidence to sustain such sham/frivolous pleadings. Moreover, that the arguments raised had already been ANSWERED and ADDRESSED in Newsome’s Complaint at Page 7 and Footnote 6 – i.e. for instance, she provides case law from Walton v. Utility Products, Inc., 424 F.Supp. 1145 (D.C.Miss. 1976 ); which clearly STRIPS and SLAMS-THE- DOOR-SHUT to sham/frivolous assertions (i.e. to Rule 12(b)(6) motions) made in Motion to Dismiss and the supporting Memorandum Briefs See EXHIBIT “14” – Walton v. Utility Products, Inc., 424 F.Supp. 1145 (D.C.Miss. 1976 ) attached hereto and incorporated by reference as if set forth in full herein. Thomas v. Capital Sec. Services, Inc., 812 F.2d 984 (5th Cir. Miss.1987 - BARBOUR) - Rule 11 is violated if attorney breaches duty to conduct reasonable inquiry into facts which support the document, if attorney fails to conduct reasonable inquiry into law such that document embodies existing legal principles or good-faith argument for extension, modification, or reversal of Page 31 of 39
    • existing law, or if motion is interposed for purposes of delay, harassment, or increasing costs of litigation, as each is an independent duty of signing attorney. Fed.Rules Civ.Proc.Rules 11, 11 note, 28 U.S.C.A. Southern Leasing Partners, Ltd. v. McMullan, 801 F.2d 783 (5th Cir.Miss. 1986 - BARBOUR) - District court did not abuse its discretion in imposing Rule 11 sanctions against plaintiff and its attorneys for failure to make reasonable inquiry; if counsel had made sufficient inquiry, it would have discovered that plaintiffs complaint was barred by res judicata; moreover, such failure could not be explained away by approaching limitations bar, as counsels delay of almost three months in investigating merits of case created the problem. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A. Marlin v. Moody Nat. Bank, N.A., 533 F.3d 374 (5th Cir. 2008) - “Snapshot rule” ensures that Rule 11 liability is assessed only for violation existing at moment of filing. II. MOTION FOR DEFAULT JUDGMENT Newsome moves this Court to enter a Default Judgment in this lawsuit of and Against “Named Defendants”– Page Kruger & Holland, P.A., Thomas Y. Page, Louis G. Baine III and Linda Thomas pursuant to FRCP Rule 55which state in part: FRCP Rule 55. Default; Default Judgment (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default. (b) Entering a Default Judgment. (1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk – on the plaintiff’s request, with an affidavit showing the amount due – must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the Court. In all other cases, the party must apply to the court for default judgment. A default judgment may be entered against a minor or incompetent person only if represented by general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of application at least 3 days before the hearing. The court may conduct hearings or make referrals – preserving any federal statutory right to a jury trial – when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.In further support thereof, Newsome states the following: 64. This instant Motion for Default Judgment (“MFDJ”) is submitted in good faith and is not submitted for purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United States. 65. This instant MFDF is submitted to protect the rights of Newsome and the relief she is entitled to as a direct and proximate result of Defendants FAILURE to file an Answer and/or Responsive pleading required under the statutes/laws governing said matters. Page 32 of 39
    • 66. All NOTIFICATION requirements have been met. “Named Defendants” were timely, properly and adequately notified that Default Judgment would be sought against them as early as about June 6, 2012, and received on or about June 8, 2012. Moreover, through the “Waiver of the Service of Summons” executed by “Named Defendants” which contained, “NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS,” they were advised of the following: You are further hereby NOTIFIED, that unless you serve and file a written responsive pleading within the specified time, the Plaintiff will take judgment against you by default (i.e. for instance, “Motion for Default Judgment”) for the relief demanded in the Complaint. See at Page 4 of EXHIBITS 25, 26, 27 and 28 respectively attached hereto and incorporated herein by reference. In an effort DECEIVE this Court and efforts of keeping this information out of the records, “Named Defendants” and their counsel (Phelps Dunbar/Siler/Marsh) RECREATED the “Waiver of the Service of Summons” to SHIELD/HIDE from this Court by removing information regarding the method of mailing information (i.e. CERTIFIED MAIL) and noted information stating, “NOTE: To save cost of litigation Plaintiff provided with "Notice of Lawsuit and Request for Waiver of Service of Summons" and "Waiver of Service of Summons" a document entitled, "Notification Accompanying Waiver of Service of Summons" which she believes contains pertinent information regarding ANSWERING of Complaint - a copy of which is attached to this "Waiver of Service of Summons" that was provided on the ORIGINAL “Waiver of the Service of Summons” and the attached “NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS.” Nevertheless, the record of this Court will support timely notification and evidence of what was received – See EXHIBITS 25, 26, 27, and 28 respectively attached hereto and incorporated by reference as if set forth in full herein.67. In support of this instant MFDJ, Newsome presents the following PRIMA FACIE CASE: (a) Newsome would be prejudiced by this Court’s denial of her Motion for Default Judgment. While Newsome is proceeding in this instant lawsuit pro se she is a PAYING LITIGANT and is NOT proceeding in this matter in forma pauperis and is governed by the rules and procedures of this Court and/or statutes/laws applicable to this action. Therefore, the attempts by Named Defendants’ counsel to assert this lawsuit is subject to the provisions of 42 USC § 1983 is WITHOUT merit, baseless and FRIVOLOUS. The record evidence supports that Newsome lost her job as a direct and proximate result of acts taken against her by “Named Defendants” and those conspiring with them to cause Newsome injury/harm. Said actions taken by “Named Defendants” and those conspiring against Newsome were to obtain an undue advantage over her in their expectation of the bringing of legal action and for means of financial devastation to prevent Newsome from successfully litigating this action. Newsome would be further prejudiced by denial of the relief sought in that she has already suffered irreparable injury/harm as a direct and proximate result of “Named Defendants’” culpable acts. Furthermore, should this Court deny Newsome’s Motion for Default Judgment, it would deprive her equal protection of the laws, equal privileges and immunities and due process of laws, etc. Rights secured/guaranteed under the Constitution, Civil Rights Act as well as other governing statutes/laws in such matters. (b) “Named Defendants” have no meritorious defense. “Named Defendants” made a conscious, willful and decision to file a FRIVOLOUS Responsive Pleading in this action under Rule 12(b)(6) of the Federal Rules of Civil Procedure which Newsome has timely, properly and adequately moved to have STRICKEN from the record – i.e. as a matter of law is to be GRANTED! (c) Not only did “Named Defendants’” culpable conduct lead to their default, said conduct led to Newsome being terminated from her place of employment – culpable acts done with intent to obtain an undue advantage in the bringing of this lawsuit against them. Furthermore the record evidence and that presented in this instant motion will support “Named Defendants’” culpable acts led to their default – a default which is as a direct and proximate result of “Named Defendants’” defiance and reckless disregard of the rules and procedures governing said matters. The record evidence supports that Newsome timely, properly and adequately notified “Named Defendants” of the consequences of failing to file a timely Answer and/or file a responsive pleading/motion in accordance to the statutes/laws governing said matters. To no avail. “Named Defendants” ignored said notifications provided them by Newsome through the “Notification Accompanying Waiver of Service of Summons” which was attached to the “Waiver of the Service of Summon” served on “Named Defendants.” In fact, Named Defendants’ and their counsel’s (Phelps Dunbar/Siler/Marsh) knowledge of said information and the Page 33 of 39
    • EXHIBITS TABLEEXHIBIT DESCRIPTION 1 Affidavit Of Vogel Denise Newsome in Support of Motion to Strike 2 FRCP Rule 26 3 28 USC § 455 4 Phillips v. Joint Legislative Committee on Performance and Expenditure Review Of The State of Mississippi 5 Code of Judicial Conduct (Mississippi) 6 Docket Sheet (Newsome vs Page Kruger & Holland) 7 Waiver or Loss of Right To Disqualify Judge (Civil Cases) 8 FRCP Rule 73 9 DECLINE NOTICE – Notice, Consent and Reference of a Civil Action to a Magistrate Judge 10 Mississippi Rules of Professional Conduct 11 Plummer vs Chicago Journeyman Plumbers’ Local Union No. 130 12 Hall vs Small Business Administration 13 Woldum v. Roverud Construction 14 Walton vs Utility Products Inc. 15 Heath vs D. H. Baldwin Company 16 Howard vs Sun Oil Company 17 Truvillion vs King’s Daughters Hospital 18 05/16/06 Email – VOGEL NEWSOME – PKH’s Termination of Employment 19 Docket Sheet (Mitchell McNutt & Sams) 20 Phelps Dunbar Client Listing 21 DOCKET SHEET – Vogel Denise Newsome vs Entergy New Orleans et al. 22 Walker vs Epps 23 Judge Barnett’s MOTION Calendar 24 Callahan vs Bancorpsouth Insurance Services of Mississippi 25 WAIVER OF THE SERVICE OF SUMMONS – Page Kruger & Holland P.A. 26 WAIVER OF THE SERVICE OF SUMMONS – Thomas Y. Page Page 37 of 39
    • EXHIBIT DESCRIPTION 27 WAIVER OF THE SERVICE OF SUMMONS – Louis G. Baine III 28 WAIVER OF THE SERVICE OF SUMMONS – Linda Thomas 29 NOTICE OF LAWSUIT – Page Kruger & Holland P.A. 30 NOTICE OF LAWSUIT – Thomas Y. Page 31 NOTICE OF LAWSUIT – Louis G. Baine III 32 NOTICE OF LAWSUIT – Linda Thomas 33 SLIDESHARE SCREENSHOT – 07/14/12 Motion To Strike 34 07/18/12 Facsimile To Phelps Dunbar/W Thomas Siler Jr/Jason T Marsh 35 Docket Sheet (Spring Lake Apartments) 36 Judge G Thomas Porteous Information 37 Judge Bobby DeLaughter Information 38 Notice of Appearance of Counsel 39 Linda Daschle Information 40 Hambrick vs Bear Stearns Residential Mortgage 41 Phelps Dunbar & Baker Donelson EMPLOYEES/EMPLOYMENT Ties 42 Disqualification Of Supreme Court Justices: The Certiorari Conundrum 43 RECUSAL ORDERS – Judge Tom Stewart Lee 44 MISSISSIPPI BAR ASSOCIATION INFORMATION – Judge Tom Stewart Lee 45 Judge’s Membership In Bar Association As Ground For Disqualification 28 USCS § 455 46 Baker Donelson GOVERNMENT Controlled/Run Positions 47 Disqualification of Judge Under 28 U.S.C.A. § 455(b)(4), Providing For Disqualification Where Judge Has Financial Or Other Interest In Proceeding 48 Disqualification of Judge Because of Political Association or Relation To Attorney In Case 49 Construction and Application of 28 USCS § 455(a) Providing for Disqualification of Justice, Judge, Magistrate, or Referee in Bankruptcy in ANY Proceeding in Which His Impartiality Might Reasonably Be Questioned 50 Safeguarding the Litigant’s Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to Improprieties Arising from Judicial Campaign Contributions From Lawyers 51 Disqualification of Judge For Bias Against Counsel For Litigant Page 38 of 39
    • EXHIBIT DESCRIPTION 52 Conduct or Bias of Law Clerk or Other Judicial Support Personnel As Warranting Recusal Of Federal Judge Or Magistrate 53 Alexander vs. Easy Finance of New Albany, Inc. 54 07/11/12 – Letter FROM Phelps Dunbar/Marsh to Vogel Denise Newsome 55 Judges Former Law Clerks/Judges Former Employment 56 Judges Knowledge of Evidentiary Facts 57 Judge As Material Witness In Proceeding 58 Judge Henry T. Wingate – Judgepedia Information 59 Howard Henry Baker Jr. – Wikipedia Information 60 Magistrate F. Keith Ball – Confirmed 61 MS Litigation Article – Judge Wingate Confirms Keith Ball 62 Judge Wingate Appoints Magistrate Selection Panel 63 Magistrate Keith Ball – Judgepeida Information 64 Magistrate Keith Ball - Baker Donelson Counsel In Copyright Matter 65 Docket Sheet – The Garretson Firm Resolution Group Inc. 66 Page Kruger & Holland (Stock Shares Authorized/Issued) Page 39 of 39
    • IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT – JACKSON DIVISIONVOGEL DENISE NEWSOME PLAINTIFFV. CIVIL ACTION NO. 3:12-cv-00342PAGE KRUGER & HOLLAND P.A., ET AL. DEFENDANTS VOGEL DENISE NEWSOME’S AFFIDAVIT IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) 1STATE OF OHIO ) ) SSCOUNTY OF HAMILTON )I, Vogel Denise Newsome (“Newsome”), being first duly sworn, deposes and states: 1. Newsome is the Plaintiff in the above-entitled action. 2. Newsome has personal knowledge as to the claims and facts set forth in the Motions and Memorandum Brief in which this Affidavit supports. Moreover, giving rise to the lawsuit filed in this action. 3. Newsome is competent to testify to the matters set forth in the Complaint and her subsequent pleadings filed. 4. The Motions and Memorandum Brief in which this Affidavit supports and this Affidavit is being filed in good faith and is NOT imposed for purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United States. 5. Newsome OBJECTS to the appointment of this matter to Judge Tom Stewart Lee and believes that he is to RECUSE and/or DISQUALIFY himself from this lawsuit for the reasons set forth in her previous pleadings and this instant filing to which this Affidavit supports. 6. Newsome OPPOSES and OBJECTS to this Court’s allowing parties to abuse this Court’s Electronic Filing System. 1 NOTE: Boldface, caps, small-caps, italics, highlights and underline represents “emphasis” added. EXHIBIT Page 1 of 5 “1”
    • 7. Newsome will be prejudiced by this Court’s allowing the sham and frivolous Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss (“Motion to Stay”) and Memorandum In Support Of Motion To Stay All Proceedings Pending A Ruling On Defendants’ Motion To Dismiss (“Memorandum In Support”) to remain a part of the record in that they have been filed in violation of the statutes/laws governing said matters.8. There are genuine issues of material fact which precludes the filing of Motion to Stay and the supporting Memorandum In Support; wherein resulting in the Motion to Strike and Motion for Default Judgment as well as other relief set forth in the Motions to which this Affidavit supports.9. All facts and/or claim set forth in the Complaint are to be deemed as TRUE and to date remain UNCONTESTED!10. On or about June 6, 2012, Newsome timely, properly and adequately notified “Named Defendants” – Page Kruger & Holland, Thomas Y. Page, Louis G. Baine III and Linda Thomas [hereinafter “Named Defendants”] – of the consequences (i.e. that she will file Motion to Strike and/or Motion for Default Judgment) should they fail to comply with the statutes and laws governing said matters.11. Newsome believes that based upon the facts, evidence and legal conclusions provided in the Complaint and her subsequent pleading, that a reasonable mind may conclude that Named Defendants and/or their Counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) did knowingly and willing submit Motion to Stay and Memorandum In Support with fraudulent intent – i.e. purposes of committing fraud upon this Court.12. Newsome believes that the record evidence will sustain that “Named Defendants” come before this Court with DIRTY HANDS! Moreover, may rely and encourage WILLFUL participants as their legal counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) to this action to come before this Court with DIRTY HANDS!!!13. Newsome believes that it is important for this Court to be fully aware as to what is going on in matters outside this lawsuit so that this Court can better understand the unlawful/illegal acts of Named Defendants and/or their Counsel. Moreover, see through their HIDDEN MOTIVES and AGENDAS!14. The allegations set forth in Motions to which this Affidavit supports can be supported by factual evidence in the record of “Named Defendants” as well as pleading in this lawsuit.15. There is sufficient facts, evidence and legal conclusions contained in the Complaint to sustain the 13 Counts (i.e. while misnumbered does NOT take away from the merits, facts, evidence and legal conclusions sustaining them): (1) Count I - 42 USC § 1981: Equal Rights Under The Law Against Defendants; (2) Count II - 42 USC § 1985: Conspiracy To Interfere With Civil Rights and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Page 2 of 5 USDC Southern District Mississippi (Jackson) CIVIL ACTION NO. 3:12-cv-00342
    • (3) Count III - 42 USC § 1986: Action For Neglect To Prevent and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (4) Count IV - Negligent Interference with Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (5) Count V - Discrimination in Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (6) Count II [Sic] – Retaliation and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (7) Count IIIII [Sic] - Breach Of Express Employment Agreement 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (8) Count VIII – Breach Of The Covenant Of Good Faith And Fair Dealing 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (9) Count IX – Negligent Infliction Of Emotional Distress and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (10) Count X – Fraud Against [sic] and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (11) Count XI – Negligent Interference With Employment – Malicious Conspiracy To Cause Discharge From Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (12) Count IVII – Violation of the Fourteenth Amendment of the U.S. Constitution – Due Process and 42 USC § 1981: Equal Rights Under The Law; and (13) Count VII – Violation of the Fourteenth Amendment of the U.S. Constitution – Equal Protection and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s) set forth. Furthermore, to sustain that this Court is to take “all the allegations in the complaint as TRUE even if doubtful in fact” - i.e. in a light more favorable to Newsome.16. Newsome believes that when this Court allows the UNLAWFUL/ILLEGAL practices as that in the submittal of Motion to Stay and supporting Memorandum In Support, it sends a message that such criminal and unethical practices are accepted – i.e. all you have to do is have BIG MONEY and be a BIG LAW FIRM with influences in HIGH PLACES.17. Newsome believes that Foreign Countries/Nations and Foreign Leaders are tired of the United States of America coming to them PREACHING to clean up their CORRUPTION, HUMAN RIGHTS VIOLATIONS, etc., yet and still the United States continue to engage in such unlawful/illegal practices itself – i.e. sending a message of HYPOCRISY and TWO-FACEDNESS. This instant lawsuit is a classic example of the BLATANT corruption, discrimination, employment Page 3 of 5 USDC Southern District Mississippi (Jackson) CIVIL ACTION NO. 3:12-cv-00342
    • violations, etc. that employers engage in because they feel they are above the laws of the United States and/or feel they do not have to comply.18. Newsome believes that there is sufficient evidence in the record of this Court to sustain that the law firm (Baker Donelson Bearman Caldwell & Berkowitz [“Baker Donelson”]) that provides United States President Barack Obama with legal counsel and advice, may also be playing a role in the CONSPIRACIES and criminal/civil wrongs leveled against her. Rather than take this matter into her own hands, Newsome has initiated the appropriate legal action in the United States Supreme Court under its “ORIGINAL JURISDICTION.”19. Newsome believes that AFTER going public in regards to Baker Donelson’s role in the criminal/civil acts leveled against her and the HIGH POWER positions they hold in the Government – i.e. which includes the United States White House – Baker Donelson went out and SCRUBBED information from their Internet website. Baker Donelson advertising holding key positions as: − Chief of Staff to the President of the United States − United States Secretary of State − United States Senate Majority Leader − Members of the United States Senate − Members of the United States House of Representatives − Director of the Office of Foreign Assets Control for United States − Department of Treasury − Director of the Administrative Office of the United States − Chief Counsel, Acting Director, and Acting Deputy Director of United States Citizenship & Immigration Services within the United States Department of Homeland Security − Majority and Minority Staff Director of the Senate Committee on Appropriations − Member of United States President’s Domestic Policy Council − Counselor to the Deputy Secretary for the United States Department of HHS − Chief of Staff of the Supreme Court of the United States − Administrative Assistant to the Chief Justice of the United States − Deputy under Secretary of International Trade for the United States Department of Commerce − Ambassador to Japan − Ambassador to Turkey − Ambassador to Saudi Arabia − Ambassador to the Sultanate of Oman − Governor of Tennessee − Governor of Mississippi − Deputy Governor and Chief of Staff for the Governor of Tennessee − Commissioner of Finance & Administration (Chief Operating Officer) - State of Tennessee − Special Counselor to the Governor of Virginia Page 4 of 5 USDC Southern District Mississippi (Jackson) CIVIL ACTION NO. 3:12-cv-00342
    • Rule 26. Duty to Disclose; General Provisions Governing Discovery | Fed... http://www.law.cornell.edu/rules/frcp/rule_26 RULE 26. DUTY TO DISCLOSE; GENERAL PROVISIONS GOVERNING DISCOVERY (a) REQUIRED DISCLOSURES. (1) Initial Disclosure. (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. EXHIBIT "2"1 of 1 7/25/2012 10:07 AM
    • 28 U.S.C.A. § 455 Page 1 Effective:[See Text Amendments]United States Code Annotated Currentness Title 28. Judiciary and Judicial Procedure (Refs & Annos) Part I. Organization of Courts (Refs & Annos) Chapter 21. General Provisions Applicable to Courts and Judges § 455. Disqualification of justice, judge, or magistrate judge(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding inwhich his impartiality might reasonably be questioned.(b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed eviden- tiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he pre- viously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; EXHIBIT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. "3"
    • 28 U.S.C.A. § 455 Page 2 (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the pro- ceeding; (iv) Is to the judges knowledge likely to be a material witness in the proceeding.(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable ef-fort to inform himself about the personal financial interests of his spouse and minor children residing in hishousehold.(d) For the purposes of this section the following words or phrases shall have the meaning indicated: (1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation; (2) the degree of relationship is calculated according to the civil law system; (3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian; (4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: (i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund; (ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial in- terest” in securities held by the organization; (iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest; (iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the pro- ceeding could substantially affect the value of the securities.(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any groundfor disqualification enumerated in subsection (b). Where the ground for disqualification arises only under sub-section (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for dis-qualification. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • 28 U.S.C.A. § 455 Page 3(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bank-ruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has beendevoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, thathe or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has afinancial interest in a party (other than an interest that could be substantially affected by the outcome), disquali-fication is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as thecase may be, divests himself or herself of the interest that provides the grounds for the disqualification.CREDIT(S)(June 25, 1948, c. 646, 62 Stat. 908; Dec. 5, 1974, Pub.L. 93-512, § 1, 88 Stat. 1609; Nov. 6, 1978, Pub.L.95-598, Title II, § 214(a), (b), 92 Stat. 2661; Nov. 19, 1988, Pub.L. 100-702, Title X, § 1007, 102 Stat. 4667;Dec. 1, 1990, Pub.L. 101-650, Title III, § 321, 104 Stat. 5117.)HISTORICAL AND STATUTORY NOTESRevision Notes and Legislative Reports1948 Acts. Based on Title 28, U.S.C., 1940 ed., § 24 (Mar. 3, 1911, c. 231, § 20, 36 Stat. 1090 [Derived fromR.S. § 601] ).Section 24 of Title 28, U.S.C., 1940 ed., applied only to district judges. The revised section is made applicableto all justices and judges of the United States.The phrase “in which he has a substantial interest” was substituted for “concerned in interest in any suit.”The provision of section 24 of Title 28, U.S.C., 1940 ed., as to giving notice of disqualification to the “seniorcircuit judge,” and words “and thereupon such proceedings shall be had as are provided in sections 17 and 18 ofthis title,” were omitted as unnecessary and covered by section 291 et seq. of this title relating to designation andassignment of judges. Such provision is not made by statute in case of disqualification or incapacity, for othercause. See sections 140, 143, and 144 of this title. If a judge or clerk of court is remiss in failing to notify thechief judge of the district or circuit, the judicial council of the circuit has ample power under section 332 of thistitle to apply a remedy.Relationship to a partys attorney is included in the revised section as a basis of disqualification in conformitywith the views of judges cognizant of the grave possibility of undesirable consequences resulting from a less in-clusive rule.Changes were made in phraseology. 80th Congress House Report No. 308.1974 Acts. House Report No. 93-1453, see 1974 U.S.Code Cong. and Adm.News, p. 6351. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • 28 U.S.C.A. § 455 Page 41978 Acts. Senate Report No. 95-989 and House Report No. 95-595, see 1978 U.S. Code Cong. and Adm.News, p. 5787.1988 Acts. House Report No. 100-889, see 1988 U.S.Code Cong. and Adm.News, p. 5982.Amendments1988 Amendments. Subsec. (f). Pub.L. 100-702 added subsec. (f).1978 Amendments. Pub.L. 95-598 struck out references to referees in bankruptcy in the section catchline and insubsecs. (a) and (e).1974 Amendments. Pub.L. 93-512 substituted “Disqualification of justice, judge, magistrate, or referee in bank-ruptcy” for “Interest of justice or judge” in section catchline, reorganized structure of provisions, and expandedapplicability to include magistrates and referees in bankruptcy and grounds for which disqualification may bebased, and added provisions relating to waiver of disqualification.Change of Name“United States magistrate judge” substituted for “United States magistrate” in text pursuant to section 321 ofPub.L. 101-650, set out as a note under 28 U.S.C.A. § 631.Effective and Applicability Provisions1978 Acts. Amendment by Pub.L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub.L. 95-598, set out asa note preceding section 101 of Title 11, Bankruptcy. For procedures relating to bankruptcy matters duringtransition period, see note preceding section 151 of this title.1974 Acts. Section 3 of Pub.L. 93-512 provided that: “This Act [amending this section] shall not apply to the tri-al of any proceeding commenced prior to the date of this Act [Dec. 5, 1974], nor to appellate review of any pro-ceeding which was fully submitted to the reviewing court prior to the date of this Act.”CROSS REFERENCES Application to other courts, see 28 USCA § 460. Arbitrators subject to disqualification rules under this section, see 28 USCA § 656. Bias or prejudice of judge, see 28 USCA § 144. Disqualification of trial judge to hear appeal, see 28 USCA § 47. United States Court of Veterans affairs, judges and proceedings of subject to this section, see 38 USCA § 7264. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • 28 U.S.C.A. § 455 Page 5LAW REVIEW COMMENTARIES Adjudicatory independence and the values of procedural due process. Martin H. Redish and Lawrence C. Marshall. 95 Yale L.J. 455 (1986). Adversary proceedings in bankruptcy. John Silas (“Si”) Hopkins, III, 39 Prac.Law. 55 (Sept.1993). Conflicts of interest in Bush v. Gore: Did some justices vote illegally? Richard K. Neumann, Jr., 16 Geo. J. Legal Ethics 375 (2003). Disqualification of Judges in California. J. Maloney. 16 U.S.F.L.Rev. 229 (1982). Disqualification of Supreme Court Justices: The certiorari conundrum. Steven Lubet, 80 Minn.L.Rev. 657 (1996). Divergence of standards of conduct and standards of review in corporate law. Melvin Aron Eisenberg, 62 Fordham L.Rev. 437 (1993). Expanding the reach of alternative dispute resolution in bankruptcy: The legal and practical bases for the use of mediation and the other forms of ADR. Ralph R. Mabey, Charles J. Tabb, and Ira S. Dizengoff, 46 S.C.L.Rev. 1259 (1995). Extrajudicial source doctrine and its implications for judicial disqualification. 48 Ark.L.Rev. 1059 (1995). Illegitimacy of the extrajudicial source requirement for judicial disqualification under 28 U.S.C. § 455(a). Note, 15 Cardozo L.Rev. 787 (1993). Impeach Brent Benjamin now!? Giving adequate attention to failings of judicial impartiality. Jeffrey W. Stempel, 47 San Diego L. Rev. 1 (February/March 2010). Informal methods of judicial discipline. Charles Gardner Geyh, 142 U.Pa.L.Rev. 243 (1993). Judicial bias and financial interest as grounds for disqualification of federal judges. Seth E. Bloom, 35 Case W.Res.L.Rev. 662 (1984-85). Liteky v. United States: Jeopardizing judicial integrity. 40 Loy.L.Rev. 995 (1995). On the danger of wearing two hats: Mistretta and Morrison revisited. Ronald J. Krotoszynski, Jr., 38 Wm. & Mary L.Rev. 417 (1997). Protecting the appearance of judicial impartiality in the face of law clerk employment negotiations. 62 Wash.L.Rev. 815 (1987). Questioning the impartiality of judges: Disqualifying federal district court judges under 28 U.S.C. § 455(a). Comment, 60 Temp.L.Q. 697 (1987). Safeguarding the litigants constitutional right to a fair and impartial forum: A due process approach to improprieties arising from judicial campaign contributions from lawyers. Note, 86 Mich.L.Rev. 382 (1987). © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • 28 U.S.C.A. § 455 Page 6 Should bias and interest lead to dissimilar results in judicial qualification practice? 27 Ariz.L.Rev. 171 (1985).LIBRARY REFERENCESAmerican Digest System Judges 39 to 56. Key Number System Topic No. 227.Corpus Juris Secundum CJS Bankruptcy § 34, Bias or Knowledge. CJS Bankruptcy § 35, Personal or Family Involvement. CJS Bankruptcy § 36, Involvement of Former Law Associate. CJS Bankruptcy § 37, Financial or Other Interest. CJS Constitutional Law § 1624, Right to Qualified and Competent Judge--Disqualification of Judge or Ma- gistrate. CJS Federal Civil Procedure § 888, Disqualification. CJS Federal Courts § 525, Effect of Transfer of Cause or Proceedings Therefor. CJS Federal Courts § 630, Application of Rules to Particular Errors. CJS Judges § 235, Consent. CJS Judges § 243, Federal Statutes. CJS Judges § 248, Business, Political, and Social Relations. CJS Judges § 257, Judge as Witness. CJS Judges § 266, Particular Statements or Expressions--Public Comment. CJS Judges § 319, Review. CJS Justices of the Peace § 50, Disqualification to Act. CJS Mandamus § 83, Judges--Recusal.RESEARCH REFERENCESALR Library52 ALR, Fed. 2nd Series 227, Jurisdiction of and Standing Before the United States Judicial Conference or ItsCommittee on Judicial Conduct and Disability.34 ALR, Fed. 2nd Series 589, Disqualification of Federal Judge Under 28 U.S.C.A. § 455(B)(3), Providing forDisqualification of Judges Who Formerly Served in Government.11 ALR, Fed. 2nd Series 435, Bankruptcy Rule 9011 Sanctions in Chapter 7 Bankruptcy Proceedings.5 ALR, Fed. 2nd Series 31, Bankruptcy Rule 9011 Sanctions in Chapter 11 Bankruptcy Proceedings. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 1637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) United States Court of Appeals, Fifth Circuit. Unit A Barbara PHILLIPS, Cornell Green Rice, Melvin Phillips, and Mississippi Council on Human Relations, a cor- poration, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. The JOINT LEGISLATIVE COMMITTEE ON PERFORMANCE AND EXPENDITURE REVIEW OF the STATE OF MISSISSIPPI et al., Defendants-Appellees. The MISSISSIPPI COUNCIL ON HUMAN RELATIONS, a corporation, Barbara Phillips, Melvin Phillips and Cornell Green Rice, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v.The BOARD OF TRUSTEES OF the INSTITUTION OF HIGHER EDUCATION a/k/a The State College Board et al., Defendants-Appellees. Barbara PHILLIPS, Melvin Phillips and Cornell Green Rice, individually and on behalf of a class, Plaintiffs- Appellants, v. The STATE OF MISSISSIPPI AGRICULTURAL AND INDUSTRIAL BOARD et al., Defendants-Appellees. Nos. 79-2131, 79-2940 and 79-3550. Feb. 23, 1981. Rehearing Denied April 27, 1981. Employment discrimination actions were brought against three state agencies. The United States DistrictCourt for the Southern District of Mississippi, William Harold Cox and Walter L. Nixon, Jr., JJ., denied motionsfor recusal, denied most motions for class certification, and entered judgment on the merits in favor of the de-fendants and plaintiffs appealed. The Court of Appeals, Wisdom, Circuit Judge, held that: (1) evidence of state-ments made by district judge in prior cases involving racial discrimination did not provide basis for recusal; (2)class certification was improperly denied; (3) racial discrimination on a class basis on the part of one employerwas established; and (4) racial discrimination was shown in a number of the individual cases. Affirmed in part and reversed and remanded in part. West Headnotes[1] Judges 227 51(4)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(4) k. Determination of Objections. Most Cited Cases If affidavit of recusal is timely and technically correct, its factual allegations must be taken as true; judgemust pass on legal sufficiency of the affidavit but may not pass on the truth of the matters alleged. 28 U.S.C.A. §144. EXHIBIT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. "4"
    • Page 2637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)[2] Judges 227 51(3)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(3) k. Sufficiency of Objection or Affidavit. Most Cited Cases Affidavit of recusal is legally sufficient if the facts are material and stated with particularity, the facts aresuch that they would convince a reasonable person that bias exists if they are true, and the facts show that the bi-as is personal as opposed to judicial in nature. 28 U.S.C.A. §§ 144, 455.[3] Judges 227 51(4)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(4) k. Determination of Objections. Most Cited Cases Under statute requiring a judge to disqualify himself in any proceeding in which his impartiality might bereasonably questioned, judge need not accept all the allegations by moving party as true and, in fact, no motionat all is required; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of howor by whom they are drawn to his attention. 28 U.S.C.A. § 455.[4] Judges 227 49(1)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(1) k. In General. Most Cited Cases The alleged bias of a judge must be personal as distinguished from judicial in nature in order to require re-cusal. 28 U.S.C.A. §§ 144, 455.[5] Judges 227 49(1)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(1) k. In General. Most Cited Cases Motion for disqualification ordinarily may not be predicated on the judges rulings in the instant case or inrelated cases nor on a demonstrated tendency to rule in any particular way nor on any particular judicial leaningor attitude derived from his experience on the bench. 28 U.S.C.A. §§ 144, 455.[6] Judges 227 49(1)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(1) k. In General. Most Cited Cases The fact that a judges remarks or behavior take place in the judicial context does not exclude them from © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 3637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)scrutiny and from requiring recusal if they reflect such pervasive bias and prejudice as would constitute biasagainst one of the parties. 28 U.S.C.A. §§ 144, 455.[7] Judges 227 49(2)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(2) k. Statements and Expressions of Opinion by Judge. Most Cited Cases Where most of the allegations of bias concerned the trial judges rulings or comments on the merits in previ-ous cases, where some of the older remarks reflecting racial reactions which were outmoded and improper werenot gratuitous insults and did not show overt hostility, and where all of the allegations concerned the judges fi-nal conclusions or immediate reactions on points of law or facts in the case before him, they did not require re-cusal. 28 U.S.C.A. §§ 144, 455.[8] Federal Courts 170B 819170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)4 Discretion of Lower Court 170Bk819 k. Change of Venue; Disqualifying Judge; Continuance. Most Cited CasesJudges 227 51(4)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(4) k. Determination of Objections. Most Cited Cases Recusal motion is committed to the sound discretion of the district judge and on appeal it will be asked onlywhether he has abused his discretion. 28 U.S.C.A. §§ 144, 455.[9] Federal Civil Procedure 170A 184.10170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represented 170Ak184 Employees 170Ak184.10 k. Discrimination and Civil Rights Actions in General. Most Cited Cases (Formerly 170Ak184) Where neither party could determine how many black applicants there were, let alone identify all of them,and where the class included future and deterred applicants who were necessarily unidentifiable, joinder was im-practicable even if the number was small. Fed.Rules Civ.Proc. Rule 23(a)(1), 28 U.S.C.A.[10] Federal Civil Procedure 170A 171 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 4637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings 170Ak171 k. In General; Certification in General. Most Cited Cases Requirement that the district court decide whether to certify a class in any case as soon as possible after thecommencement of the action is a command to the district court, not to the parties, and the court has an obliga-tion to make the determination on its own motion if necessary. Fed.Rules Civ.Proc. Rule 23(c)(1), 28 U.S.C.A.[11] Federal Civil Procedure 170A 164170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class; Typicality. Most Cited Cases Fact that plaintiffs had delayed in making motion to certify the case did not show that they would be inad-equate class representatives, especially where a good deal of the time had been consumed in litigating motionsfor change of venue and for recusal.[12] Federal Civil Procedure 170A 171170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings 170Ak171 k. In General; Certification in General. Most Cited Cases Even if attorney for plaintiffs would be disqualified from representing the class, it does not follow that theclass may not be certified; court may make certification contingent on replacement of counsel or on severance ofthe individual claim of the offending class representative.[13] Federal Civil Procedure 170A 164170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class; Typicality. Most Cited Cases Fact that one of the named plaintiffs was an attorney for the civil rights law firm representing the plaintiff,although she was not acting as an attorney in the case, did not preclude class representation on the theory thatshe was an inadequate representative because of a potential conflict with other class members where any attor-ney fees granted in the case would come directly from the defendants and not from any fund created for class re-lief. Civil Rights Act of 1964, § 706(k) as amended 42 U.S.C.A. § 2000e-5(k).[14] Federal Civil Procedure 170A 184.10170A Federal Civil Procedure © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 5637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represented 170Ak184 Employees 170Ak184.10 k. Discrimination and Civil Rights Actions in General. Most Cited Cases (Formerly 170Ak184) Where named plaintiffs did not seek to represent a class consisting exclusively of persons who had been de-terred from making applications because of the racial policies of the employer, but, rather, also sought to repres-ent unsuccessful applicants, the named plaintiffs could represent the persons who had been deterred from apply-ing.[15] Federal Courts 170B 858170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)5 Questions of Fact, Verdicts and Findings 170Bk855 Particular Actions and Proceedings, Verdicts and Findings 170Bk858 k. Civil Rights Cases. Most Cited Cases District courts finding of nondiscrimination is a determination of ultimate fact to which the clearly erro-neous standard does not apply.[16] Civil Rights 78 154578 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1545 k. Prima Facie Case. Most Cited Cases (Formerly 78k383, 78k44(1)) Evidence that general population of the state was 37.2% black, that total civilian work force was 29.8%black, that 31.6% of the persons registering at the state Employment Security Commission for professional jobswere black, that 27.8% of those registering for clerical or sales jobs were black, and that the percentage ofblacks at one employer was between 1.5% and 6.5% black made out a prima facie case of discrimination.[17] Civil Rights 78 114278 Civil Rights 78II Employment Practices 78k1142 k. Educational Requirements; Ability Tests. Most Cited Cases (Formerly 78k199.1, 78k199, 78k13.11)Civil Rights 78 1331(5)78 Civil Rights 78III Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k1331 Persons Aggrieved, and Standing in General © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 6637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) 78k1331(5) k. Employment Practices. Most Cited Cases (Formerly 78k199.1, 78k199, 78k13.11) Named plaintiffs who all had college degrees lacked constitutional standing to challenge legality of employ-ers educational requirements for a college degree for certain positions.[18] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence of disparity between number of blacks in the work force and the number of blacks hired by em-ployer, evidence of employers history of discrimination in not having hired a single black during its first threedecades of existence, and evidence that hiring procedures relied heavily on subjective judgments of executivesfrom personal interviews demonstrated discrimination against blacks.[19] Civil Rights 78 112178 Civil Rights 78II Employment Practices 78k1121 k. Hiring. Most Cited Cases (Formerly 78k142, 78k9.10) Whether subjectivity in hiring is necessary or not, subjective judgments are suspect as job qualificationswhen they are exercised by members of an all white executive or supervisory staff.[20] Civil Rights 78 156278 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1559 Relief 78k1562 k. Affirmative Action; Recruitment and Hiring. Most Cited Cases (Formerly 78k393, 78k46(4), 78k46) In view of past discrimination against blacks by state agency, court should direct the agency to set goals ofapproximately 20% black employment, separately for clerical and nonclerical positions, should require it to un-dertake an aggressive campaign of recruitment and advertising to procure sufficient qualified black applications,and should, until those goals were achieved, require that one-third of all persons hired within a predeterminedsix-month period for permanent clerical or nonclerical jobs be black.[21] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k43) © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 7637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Civil Rights 78 154578 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1545 k. Prima Facie Case. Most Cited Cases (Formerly 78k383, 78k44(1)) To raise a prima facie case of employment discrimination, plaintiff must show that he belongs to a racialminority, that he applied and was qualified for job which the employer was seeking applicants, that he was re-jected despite his qualifications, and that the position remained open after his rejection; burden then shifts to theemployer to show some legitimate, nondiscriminatory reason for the applicants rejection; plaintiff is then af-forded an opportunity to show that the employers stated reason is, in fact, a pretext.[22] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Employer bears the burden of showing a legitimate reason for rejection of minority applicant by a prepon-derance of the evidence.[23] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k44(1)) Evidence of employers belief that black applicant had taken another position did not rebut a prima facieshowing of employment discrimination where the employer claimed that an immediate decision to hire the ap-plicant had been made but the employer procrastinated for several weeks without making an offer and where theevidence showed that race was a consideration.[24] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k44(1)) Fact that black applicant had indicated that he left his previous position because it required excessive travelwas insufficient to rebut a prima facie case of discrimination against the black applicant on the theory that hehad expressed a reservation about job-related travel where the employer described the travel requirements to theapplicant but did not ask him if the travel requirements would be excessive. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 8637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)[25] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) In view of evidence that it was the routine practice of the employer to make no effort to further contact“walk-in” applicants, black walk-in applicant did not establish that denial of employment was due to racial dis-crimination.[26] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence established that black applicant was not qualified for any vacant position.[27] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence that, during the year following black applicants application, only one white applicant was hiredfor position for which the black applicant might have been qualified and that the white applicant was more qual-ified demonstrated that black applicant had not been discriminated against on the basis of race.[28] Civil Rights 78 112178 Civil Rights 78II Employment Practices 78k1121 k. Hiring. Most Cited Cases (Formerly 78k141, 78k9.10) “Vacancy” within the meaning of the McDonnell Douglas test need not exist on the precise day of the ap-plication; any vacancies within a reasonable time must be considered as well.[29] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 9637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) Evidence that white was hired as a secretary scarcely two months after black secretary applied and absenceof evidence that white was more qualified established that black was discriminated against because of her race.[30] Civil Rights 78 154578 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1545 k. Prima Facie Case. Most Cited Cases (Formerly 78k383, 78k44(1)) Establishment of liability on class claim of employment discrimination operates to establish a prima faciecase on behalf of each member of the class.[31] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence that, after employer obtained necessary federal funds for position which it intended to offer blackapplicant, it was informed that the black applicant had moved to another city to resume her law studies and thatit then abandoned its plans for the new job demonstrated that the failure to hire the black applicant was based ona belief that she was no longer interested in employment and not racial discrimination.[32] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k44(1)) Belief that black applicants were available for employment for only a short period of time based on the factthat they took other employment did not rebut prima facie case of racial discrimination.[33] Civil Rights 78 151178 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1511 k. Civil Actions in General. Most Cited Cases (Formerly 78k361, 78k38) Black applicant for a job is not required to either remain permanently unemployed or forfeit his cause of ac-tion for racial discrimination.*1017 Frank R. Parker, Nausead Stewart, Jackson, Miss., for plaintiffs-appellants Barbara Phillips et al. in No.79-2131. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 10637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Stewart & Parker, Nausead Stewart, Lawyers Committee for Civil Rights Under Law, Jackson, Miss., McTeer,Walls, Bailey & Buck, Charles Victor McTeer, Greenville, Miss., for plaintiffs-appellants Miss. Council on Hu-man Relations et al.Ross, Hardies, OKeefe, Babcock & Parsons, William Freivogel, Susan G. Lichtenfeld, Chicago, Ill., NauseadStewart, Lawyers Committee for Civil Rights Under Law, Jackson, Miss., for plaintiffs-appellants Barbara Phil-lips et al. in No. 79-3550.James M. Ward, Sp. Counsel, Starkville, Miss., Hubbard T. Saunders, IV, Sp. Asst. Atty. Gen., A. F. Summer,Atty. Gen., State of Miss., Dept. of Justice, Jackson, Miss., for defendants-appellees Joint Leg. Committee et al.Ed. Davis Noble, Jr., Asst. Atty. Gen., Bill Allain, Atty. Gen., Jackson, Miss., M. M. Roberts, Hattiesburg,Miss., for defendants-appellees Bd. of Trustees of Institution of Higher Ed. et al.Bill Allain, Atty. Gen., Hubbard T. Saunders, IV, Sp. Asst. Atty. Gen., Jackson, Miss., James M. Ward, Sp.Counsel, Starkville, Miss., for defendants-appellees State of Miss. Agricultural and Indus. Bd. et al.Appeals from the United States District Court for the Southern District of Mississippi.Before WISDOM, RUBIN and SAM D. JOHNSON, Circuit Judges.WISDOM, Circuit Judge: These appeals concern three allied lawsuits brought against Mississippi state agencies for employment dis-crimination. The named plaintiffs are the same in the three *1018 cases: Barbara Phillips, Melvin Phillips (notrelated), and Cornell Green Rice.[FN1] All are black. In each case the plaintiffs sought to represent a class ofblack job applicants. FN1. The Mississippi Council on Human Relations was an original party plaintiff in all three cases. It was dismissed for lack of a real interest in the outcome in the PEER and A&I cases. The defendant [FN2] in No. 79-2940 is the Joint Legislative Committee on Performance Evaluation and Ex-penditure Review (“PEER”), an arm of the Mississippi legislature with power to conduct performance evalu-ations, investigations, and critical examinations of all expenditures by any state agency. It is composed of fivemembers of each House. It employs a staff of about twenty research analysts and clerical workers. Its offices arein Jackson. FN2. In all three cases there are also individual defendants: the members of each defendant board or committee, certain staff executives, and other present and former state officers. The defendant in No. 79-2131 is the Mississippi Agricultural and Industrial Board (“A&I”), an agency cre-ated to promote industrial and agricultural development and tourism. Its members are the Governor, the Lieuten-ant Governor, the Speaker of the Mississippi House, four state legislators, three other state officials, and twenty-five public members appointed by the Governor. Among its functions are approval of industrial bond issues,study and recommendation of tax exemptions for Mississippi ports and harbors, and dissemination of tourist in-formation. The Board employs a staff of sixty to eighty persons at its main office in Jackson. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 11637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) The defendant in No. 79-3550 is the Board of Trustees of the Institutions of Higher Learning (commonlyknown as the College Board), the governing body for Mississippis state universities and colleges. Its membersare appointed by the Governor. The Board employs a staff of about eighteen financial analysts and clericalworkers in Jackson. This suit concerns the Boards employment practices with regard only to that staff and not tothe university system generally. All three suits were brought as class actions in the Northern District of Mississippi, alleging racial discrim-ination in the defendants employment practices in violation of Title VII of the Civil Rights Act of 1964 asamended. [FN3] The cases were transferred to the Southern District of Mississippi under 28 U.S.C. s 1404(a)(1976). Although the PEER and A&I cases were consolidated for some preliminary purposes, the three weretried separately.[FN4] In the PEER and A&I cases the plaintiffs moved for the district judges recusal. The mo-tions were denied, and this Court refused to issue a mandamus ordering recusal of the trial judge. In re Phillips,No. 76-4038 (5 Cir. Nov. 19, 1976). In the PEER and College Board cases, the court refused to certify the al-leged classes. In the A&I case the court certified a class of all past black unsuccessful job applicants, but refusedto broaden the class to include future black applicants or persons deterred from applying by A&Is alleged dis-criminatory practices or reputation. After full trials on the merits, the court granted judgments for the defendantson all claims. FN3. 42 U.S.C. ss 2000e to 2000e-17 (1976). The complaints also cited id. ss 1981, 1983. The plaintiffs appeal only on the Title VII judgments. FN4. The PEER and A&I cases were assigned to Hon. William Harold Cox. U.S. Magistrate John R. Countiss presided over the trials and most other proceedings in the cases. Judge Cox adopted Magistrate Countisss findings of fact and conclusions of law. The College Board case was assigned to and tried by Hon. Walter L. Nixon, Jr. On appeal, the plaintiffs contend (1) that the district judge erroneously refused to recuse himself in the A&Icase; [FN5] (2) that the court improperly refused to certify classes in the PEER and College Board cases; (3) thatthe court improperly narrowed the class certified in the A&I case; and (4) that the courts judgments on the mer-its are legally incorrect or clearly erroneous. We affirm the district courts decisions*1019 as to recusal and as tosome of the individual claims. We reverse, however, as to the remaining individual claims, as to the class certi-fication issues, and as to the merits of the class claim in the A&I case. FN5. As noted, the same judge refused recusal in the PEER case as well. The plaintiffs have chosen not to appeal that decision. I. RECUSAL Barbara Phillips, acting on behalf of her co-plaintiffs, filed an Affidavit of Personal Bias and Prejudice inthe A&I case, seeking the recusal of Judge William Harold Cox. Phillipss affidavit did not state any facts relat-ing to any bias against any of the particular plaintiffs or in favor of any of the particular defendants in the case.Rather, she attempted to show that Judge Cox is prejudiced against all blacks and that he is hostile to civil rightssuits. Some of her allegations are conclusory accusations, lacking in particularity. Others recite particular judi-cial rulings, quotations from written opinions, and alleged remarks from the bench, in five cases over JudgeCoxs nineteen-year judicial career. Phillips also recited statistics concerning the frequency with which thisCourt has affirmed or reversed Judge Coxs rulings in civil rights cases. [1][2] There are two statutes governing recusal of federal district judges. 28 U.S.C. ss 144, 455 (1976). Sec- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 12637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)tion 144 provides in part: Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. If an affidavit filed under section 144 is timely and technically correct, its factual allegations must be takenas true for purposes of recusal. The judge must pass on the legal sufficiency of the affidavit, but he may not passon the truth of the matters alleged. Berger v. United States, 1921, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Par-rish v. Board of Commissioners, 5 Cir. 1975, 524 F.2d 98, 100 (en banc), cert. denied, 425 U.S. 944, 96 S.Ct.1685, 48 L.Ed.2d 188 (1976); Davis v. Board of School Commissioners, 5 Cir. 1975, 517 F.2d 1044, 1051, cert.denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); United States v. Roca-Alvarez, 5 Cir. 1971, 451F.2d 843, 847-48. In Parrish, we stated that an affidavit is legally sufficient if it meets a three-part test: 1. The facts must be material and stated with particularity. 2. The facts must be such that, if true, they would convince a reasonable person that bias exists. 3. The facts must show the bias is personal, as opposed to judicial in nature. 524 F.2d at 100, quoting United States v. Thompson, 3 Cir. 1973, 483 F.2d 527, 528, cert. denied, 415 U.S.911, 94 S.Ct. 1456, 39 L.Ed.2d 496 (1974). [3] Congress rewrote the second statute, section 455, in 1974. Subsection (b) of that section lists a numberof specific situations in which a judge must recuse himself; none apply here. Subsection (a), a more general pro-vision, requires that Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455, unlike section 144, does not stipulate a formal procedure by which it must be raised. Like sec-tion 144, however, it may be raised by motion. Davis, 517 F.2d at 1051. Substantively, the two statutes are quitesimilar, if not identical.[FN6] FN6. To the extent that there is a difference, section 455 imposes the stricter standard: a movant under section 144 must allege facts to convince a reasonable person that bias exists, Parrish, 524 F.2d at 100, while under the broader language of section 455, he must show only that a reasonable person “would harbor doubts about the judges impartiality”, Potashnick v. Port City Constr. Co., 5 Cir. 1980, 609 F.2d 1101, 1111 (emphasis added), cert. denied, -- U.S. --, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). See Com- ment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 243-50 (1978). See also Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745-50 (1973). On the other hand, section 455, unlike section 144, does not require the judge to accept all allegations by a moving party as true. Indeed, the section requires no motion at all; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to his attention. See Fredonia Broadcasting Corp. v. RCA Corp., 5 Cir. 1978, 569 F.2d 251, 254-57, cert. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 13637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1979). Section 144, by contrast, requires allega- tion by affidavit within a stringent time limit and allows a party only one such affidavit in any case. If a party could bind a judge by his factual allegations in a section 455 motion, free from the formal re- quirements and more demanding standard of proof of section 144, the result would be a virtual open season for recusal. See 46 U.Chi.L.Rev. at 250. [4][5][6] *1020 Under either statute, the alleged bias must be “personal”, as distinguished from judicial, innature. Davis, 517 F.2d at 1052; Parrish, 524 F.2d at 100; Steering Committee v. Mead Corp., 5 Cir. 1980, 614F.2d 958, 964-65; United States v. Serrano, 5 Cir. 1979, 607 F.2d 1145, 1150, cert. denied, 445 U.S. 965, 100S.Ct. 1655, 64 L.Ed.2d 241 (1980); Whitehurst v. Wright, 5 Cir. 1979, 592 F.2d 834, 837-38; Heppele v. John-ston, 5 Cir. 1979, 590 F.2d 609, 613; United States v. Archbold-Newball, 5 Cir. 1977, 554 F.2d 665, 682, cert.denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1973). The point of the distinction is that the bias “muststem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judgelearned from his participation in the case”. United States v. Clark, 5 Cir. 1979, 605 F.2d 939, 942 (per curiam).Thus, a motion for disqualification ordinarily may not be predicated on the judges rulings in the instant case orin related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaningor attitude derived from his experience on the bench. United States v. Grinnell Corp., 1966, 384 U.S. 563, 583,86 S.Ct. 1698, 1710, 16 L.Ed.2d 778, 793; Berger, 255 U.S. at 31, 41 S.Ct. at 232; Steering Committee, 614F.2d at 964; Serrano, 607 F.2d at 1150; Clark, 605 F.2d at 942; United States v. Caicedo-Asprilla, 5 Cir. 1980,632 F.2d 1161, 1165. [FN7] FN7. The single fact that a judges remarks or behavior take place in a judicial context does not exclude them from scrutiny if they reflect “such pervasive bias and prejudice ... as would constitute bias against a party”. Davis, 517 F.2d at 1051; Whitehurst, 592 F.2d at 838. See also United States v. Ritter, 10 Cir. 1976, 540 F.2d 463 (per curiam), cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976). [7] Here, most of Phillipss allegations concern Judge Coxs rulings or comments on the merits in previouscases. Some of them are misleadingly quoted out of context. At times, especially in some of the older instances,his remarks reflected racial reactions not only outmoded but improper. These remarks were unseemly, and we donot condone them. Nevertheless, they are not enough to require recusal. The comments alleged are not gratuit-ous insults and do not show overt hostility or the like; in every instance they concern the district judges finalconclusions or immediate reactions on points of fact or law in the case before him. We would be reluctant, inany but an extreme case, to base a disqualification order on such allegations. It is a district judges duty to con-duct trials, weigh evidence, consider the law, exercise his discretion, and reach decisions in the cases on whichhe sits. If he understands that a seemingly harsh comment toward a party or an attorney, or a perceived tendencyto give severe sentences to some class of offenders, or an aggregate imbalance in victories for plaintiffs or de-fendants in a particular class of cases may subject him to a train of successful recusal motions in future cases, hemay consciously or subconsciously shape his judicial actions in ways unrelated to the merits of the cases beforehim. Whether his conclusions in every case are the same as those that we (or these plaintiffs) would havereached is immaterial. A judge is not a computing machine, and the judicial system is not constructed so thateach judge must reach the same result as all other judges in a given case. If a judges “error” amounts to incor-rect law or an abuse of discretion, appellate courts exist to correct it. Within that boundary, he not only may, butshould, exercise his independent judgment on the facts and on the law. Presumably, for this attribute, among*1021 others, he was appointed. See Serrano, 607 F.2d at 1150-51; United States v. Johnson, 4 Cir. 1976, 537F.2d 1170, 1175; Baskin v. Brown, 4 Cir. 1949, 174 F.2d 391, 394; B. Cardozo, The Nature of the Judicial Pro-cess 98-141 (1921); Davis, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 14637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Law 69, 73-74 (R. Pound, ed., 1964); Friendly, The Courts and Social Policy: Substance and Procedure, 33U.Miami L.Rev. 21 (1978); Advisory Committees Note, Fed.R.Evid. 201. We do not mean to hold that prejudice against a class, as opposed to a particular litigant, can never form thebasis for recusal. See Davis, 517 F.2d at 1051. Nor do we say that a clearly evinced policy of disregarding themerits in any class of cases can withstand a recusal motion. See United States v. Thompson, 3 Cir. 1973, 483F.2d 527, cert. denied, 415 U.S. 911, 94 S.Ct. 1456, 39 L.Ed.2d 496 (1974). See also United States v. Clements,5 Cir. 1981, 634 F.2d 183. But we caution against a district judge disqualifying himself on the basis of an allega-tion of a perceived history of rulings that a moving party dislikes. This case provides a good example of the res-ults that might follow. Phillipss affidavit contains nothing pertaining to the parties or subject matter of the A&Icase; it could be repeated, word for word, by literally any black civil rights plaintiff from now until Judge Coxsretirement. With only minor modifications, it could be used by any black party a black criminal defendant, say.This is a type of recusal for whole classes of cases, without the constitutional safeguards that protect a judgefrom removal from office save by impeachment. The Constitution does not contemplate that we dispense with ajudges service on such a grand scale on any but the most compelling showing. See Steering Committee, 614F.2d at 966; Archbold-Newball, 554 F.2d at 682; United States v. Partin, 5 Cir. 1977, 552 F.2d 621, 637 n.20,cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Congress has provided another remedy for ju-dicial intemperance. Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, Public Law96-458, s 3, 96th Congress, 94 Stat. 2035, 2036 (1980), amending 28 U.S.C. s 372. [8] We also do not suggest that Judge Cox was required not to recuse himself. Another judge, facing a simil-ar question, might well decide the other way. A recusal motion is committed to the sound discretion of the dis-trict judge, and on appeal we ask only whether he has abused his discretion. Davis, 517 F.2d at 1052; UnitedStates ex rel. Weinberger v. Equifax, Inc., 5 Cir. 1977, 557 F.2d 456, 463-64, cert. denied, 434 U.S. 1035, 98S.Ct. 768, 54 L.Ed.2d 782 (1978). We cannot say here that he has done so. II. CLASS CERTIFICATION The plaintiffs assert errors in all three cases concerning class certification. In the PEER case the districtcourt refused to certify a class of unsuccessful past black applicants, future black applicants, and persons de-terred from applying because of the Committees reputation or history as an employer given to race discrimina-tion. The court held that the purported class was not numerous enough under Fed.R.Civ.P. 23(a)(1). In the Col-lege Board case the court refused to certify a similar class on the ground that the plaintiffs did not show that theycould adequately represent the class, in light of their delay in moving for class certification. In both cases the de-fendants assert an alternative ground for the courts refusal: an alleged conflict of interest between the plaintiffscounsel and the purported class. The A&I case presents the issues differently. There the court certified a class ofactual black applicants but refused to include future applicants and deterred persons, citing problems of numer-osity, delay in moving, and lack of nexus between the named plaintiffs and the excluded persons. We find thatnone of the asserted reasons justify the courts decisions to refuse certification or to narrow the class certified.A. Numerosity The district court in the PEER case noted that the plaintiffs had met all the requisites *1022 for certificationof a class under Rule 23(b)(2), except the requirement of Rule 23(a)(1) that the class be so numerous that joinderof all members is impracticable. Since PEER did not record the race of its applicants, it is impossible to tell ex-actly how many black applicants there were. The plaintiffs nonetheless established at a certification hearing thatthere were at least 33 such applicants; there may have been many more.[FN8] © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 15637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) FN8. The defendants tentatively identified eleven unsuccessful black applicants, based on the recollec- tion of PEER executives or on the fact that some applicants graduated from predominantly black uni- versities or colleges. Nausead Stewart, an attorney for the plaintiffs, testified that she was personally ac- quainted with eight other applicants and knew them to be black. Finally, fourteen black applicants were identified by comparing PEERs applicant list with a voter registration list for the City of Jackson. The court accepted the figure 33. 3 Record at 73. There may have been many more. Any black applicant who attended an integrated college, who did not register to vote in Jackson, and who did not know Stewart would not have been identified as black. [9] The problem before the district court, and now before us, is not simply to say whether 33 class membersare enough or too few to satisfy Rule 23(a)(1). Ample case law can be cited to show that smaller classes havebeen certified and larger ones denied certification for lack of numerosity. See 3B J. Moore & J. Kennedy, Feder-al Practice P 23.05 (2d ed. 1980). Such number comparisons miss the point of the Rule. The proper focus is noton numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the classand all other relevant factors. Here, neither party can even count how many black applicants there are, let aloneidentify all of them. Moreover, the alleged class includes future and deterred applicants, necessarily unidentifi-able. In such a case the requirement of Rule 23(a)(1) is clearly met, for “joinder of unknown individuals is cer-tainly impracticable”. Jack v. American Linen Supply Co., 5 Cir. 1974, 498 F.2d 122 (per curiam); Jones v. Dia-mond, 5 Cir. 1975, 519 F.2d 1090, 1100; see B. Schlei & P. Grossman, Employment Discrimination Law1095-97 (1976). The same reasoning holds true in the A&I case, where the district court cited numerosity as a ground for ex-cluding future and deterred applicants from the class certified. Moreover, aside from the inherent impracticabil-ity of joinder of such parties, there is the fact that the court did certify a class of actual applicants. It is hard tosee how a class already numerous enough can become insufficiently numerous through the inclusion of an un-known number of additional members. See Hebert v. Monsanto Co., 5 Cir. 1978, 576 F.2d 77, 80, vacated onother grounds, 580 F.2d 178 (5 Cir. 1978).B. Delay [10] Rule 23(c)(1) commands the district court to decide whether to certify a class in any case “as soon aspracticable” after commencement of the action.[FN9] The district court invoked the principle of that rule in re-fusing to certify a class in the College Board case, finding that the plaintiffs had delayed too long in moving forclass certification. This lapse, it held, warranted denial of the motion because it cast doubt on the plaintiffs abil-ity to represent the class adequately. See East Texas Motor Freight v. Rodriguez, 1977, 431 U.S. 395, 404-05, 97S.Ct. 1891, 1897, 52 L.Ed.2d 453, 463. Similarly, the court cited delay as a reason for narrowing the class in theA&I case.[FN10] FN9. Rule 23(c)(1) is cast as a command to the district court, not the parties; hence, a district court has an obligation to make the determination on its own motion if necessary. Gore v. Turner, 5 Cir. 1977, 563 F.2d 159, 165; United States v. United States Steel Corp., 5 Cir. 1975, 520 F.2d 1043, 1052, cert. denied, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976); Garrett v. City of Hamtramck, 6 Cir. 1974, 503 F.2d 1236, 1243; Castro v. Beecher, 1 Cir. 1972, 459 F.2d 725, 731. FN10. This, of course, is inconsistent with the courts certification of the narrowed class in the A&I case. Since we conclude that delay would not justify a complete refusal to certify either the lesser or the greater class, we need not decide how best to resolve the inconsistency. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 16637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) [11] *1023 We think the court went too far in both cases. Neither East Texas Motor Freight nor any otherprecedent that we have found has held that delay in moving for certification is sufficient in itself to disqualify aparty as a class representative. The case would be different if the plaintiffs motion had been untimely under anapplicable local rule, but here there was no such rule.[FN11] Although the plaintiffs doubtless could have beenmore diligent in making their motion, in the circumstances of these cases we do not think their delay was so in-excusable as to render their representation inadequate. The record reflects that a good deal of the time was con-sumed in litigating the defendants motions in all three cases for a change of venue, the plaintiffs motions in twocases for recusal, and the plaintiffs attempt to obtain mandamus relief in this Court on the recusal issue. The restof the time was spent in extensive discovery, much of which was relevant to the class certification question. Ac-cordingly, we find that the district court was too draconian in refusing certification on this ground. FN11. S.D.Miss. Local Rule 18, requiring that plaintiffs move for class certification within 45 days of the filing of the last answer, had not been adopted at the time of trial.C. Conflict of Interest [12] The defendants in the PEER and College Board cases raise another ground for noncertification, one notrelied on by the district court.[FN12] This Court has adopted a per se rule under Canon 9 of the Code of Profes-sional Responsibility [FN13] that an attorney who is the partner or spouse of a named class representative is dis-qualified from acting as counsel for the class. Zylstra v. Safeway Stores, Inc., 5 Cir. 1978, 578 F.2d 102, follow-ing Kramer v. Scientific Control Corp., 3 Cir. 1976, 534 F.2d 1085, cert. denied, 429 U.S. 830, 97 S.Ct. 90, 50L.Ed.2d 94 (1976). In the PEER and College Board cases, counsel for the plaintiffs are the Lawyers Committeefor Civil Rights Under Law and two of its attorneys. Barbara Phillips, one of the three named plaintiffs in thetwo cases, is one of the attorneys for the Lawyers Committee (although she is not acting as an attorney in thesecases). Accordingly, the defendants argue, if the class were certified, the Lawyers Committee would be disqual-ified as counsel. For that reason, they say the plaintiffs are not adequate class representatives under Rule23(a)(4). [FN14] FN12. The district court has expressly rejected this contention in a related case. Mississippi Council on Human Relations v. Mississippi Dept. of Justice, Civil No. J76-118(R) (S.D.Miss.) (Opinion of June 18, 1980, on motion to disqualify counsel). FN13. “A lawyer should avoid even the appearance of professional impropriety.” FN14. The defendants attempted use of the Kramer-Zylstra rule requires something of a leap in logic. Kramer and Zylstra both involved motions to disqualify counsel. Each of the cases before us, by con- trast, involves a contention that a would-be class representative should not be allowed to serve. As the Kramer Court noted, the issues raised in the two contexts are “related, but not identical.... (One) relates to who may serve as class representative, while the (other) relates to who may serve as counsel.” 534 F.2d at 1088. Supposing that the Lawyers Committee is disqualified from representing the class under Zylstra, it does not necessarily follow that the class may not be certified. For example, the district court could make certification contingent on replacement of counsel or on severance of the individual claim of the offending class representative. We need not reach this problem, however, since we hold that the Lawyers Committee may properly represent the classes. [13] Although we agree wholeheartedly with the rule announced in Zylstra and Kramer, we hold that it doesnot apply here. Our holding in Zylstra is an exception to our general rejection of per se rules under Canon 9 in © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 17637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Woods v. Covington County Bank, 5 Cir. 1976, 537 F.2d 804. The Zylstra rule is directed at a particular ethicalproblem: the potential conflict that arises when a class representative stands (or appears to stand) to gain finan-cially from an award of attorneys fees made out of a class fund. Put simply, the cause for concern is that theclass representative may be too generous with the classs money in granting a fee to his own partner or spouse.*1024 See Zylstra, 578 F.2d at 104; Kramer, 534 F.2d at 1089-90, 1091; id. at 1093 (Rosenn, J., concurring).Here the problem does not arise. Any attorneys fee granted in these cases will come directly from the defend-ants under 42 U.S.C. s 2000e-5(k) (1976), and not from any fund created for class relief; hence, Ms. Phillipswould never have the opportunity for overgenerosity.D. Nexus [14] The district court in the A&I case concluded that it should exclude from the plaintiff class persons de-terred by A&Is policies from applying there because the named plaintiffs lack any “nexus” with deterred per-sons. The court reasoned that, since the named plaintiffs did apply to A&I, they have no standing to representpersons whose grievance is that they have been prevented from applying. This ground for narrowing the class is faulty as a matter of law. The argument would be sound if theseplaintiffs sought to represent a class consisting exclusively of deterred persons; in such a case the plaintiffswould lack standing to represent the putative class, in the same sense that a high school graduate lacks standingto bring a class action challenging a high school requirement. Payne v. Travenol Laboratories, Inc., 5 Cir. 1978,565 F.2d 895, 898-99, cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978); see East Texas MotorFreight v. Rodriguez, 1977, 431 U.S. 395, 403-04, 97 S.Ct. 1891, 1897, 52 L.Ed.2d 453, 461-63. Here, however,the plaintiffs are members of the class they seek to represent, and the only issue is the breadth of the definitionof that class. The requirement that the named plaintiffs claims be “typical” of the claims of the class,Fed.R.Civ.P. 23(a)(3), does not mean that all claims must be identical. Rather, a named plaintiff who has al-legedly suffered from the defendants racial discrimination may bring an “across the board” class action to rep-resent all persons who have suffered from the same discriminatory policies, whether or not all have experienceddiscrimination in the same way. Satterwhite v. City of Greenville, 5 Cir. 1978, 578 F.2d 987, 993-94 n.8 (enbanc), vacated on other grounds, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1979); Hebert v. Monsanto Co.,5 Cir. 1978, 576 F.2d 77, vacated on other grounds, 580 F.2d 178 (1978); Long v. Sapp, 5 Cir. 1974, 502 F.2d34; Johnson v. Georgia Highway Express, 5 Cir. 1969, 417 F.2d 1122. Hence, we have approved the practice ofallowing rejected applicants to represent classes including those deterred from applying. E. g., Jack v. AmericanLinen Supply Co., 5 Cir. 1974, 498 F.2d 122 (per curiam). Indeed, if this were not the case, most such personswould go without relief entirely, since it is unlikely that one of them would sue and qualify as a class represent-ative. Because the district court erred in refusing to certify any class in the PEER and College Board cases, we re-mand them for trial as to the class allegations. [FN15] The A&I case went to trial as a class action. It does notappear that the courts error in restricting the class scope could have affected the trial in any important way. Wetherefore reach the class merits in that case. FN15. Despite counsels statements to the contrary, it is apparent from the record that the court in each case conducted the trial solely as an action on the named plaintiffs individual claims, and that evidence pertaining to class allegations was excluded. PEER Transcript at 17-18; College Board Transcript at 21, 44, 49. We therefore decline to reach the class merits of these cases. III. THE MERITS: THE A&I CLASS ACTION © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 18637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) [15] In reviewing the merits of the case as to alleged class discrimination, we keep in mind that the districtcourts finding of nondiscrimination is a determination of ultimate fact to which the “clearly erroneous” standardof review does not apply. (We are bound, of course, by the district courts findings of subsidiary fact and judg-ments of credibility unless they are clearly erroneous.) Fed.R.Civ.P. 52(a); Williams v. Tallahassee Motors, Inc.,5 Cir. 1979, 607 F.2d 689, 690; East v. Romine, Inc., 5 Cir. 1975, 518 F.2d 332, 338-39; Causey v. Ford MotorCo., 5 Cir. 1975, 516 F.2d 416, 420-21. *1025 The record indicates that the A&I Board employed no blacks from its inception in 1942 through1972. In 1973 the first black was hired to form and head a new subunit, the Office of Minority Business Enter-prise (OMBE). According to a stipulated set of employee lists, the Board employed five blacks in December1974 (7.9 percent of the Boards total); eleven blacks in December 1975 (12.0 percent); fifteen blacks in Decem-ber 1976 (17.6 percent); and thirteen blacks in 1977 (12.5 percent). These figures are skewed, however, by theinclusion of the OMBE staff and short-term employees hired under the federal Comprehensive Employment andTraining Act (CETA).[FN16] Both programs derive most of their funds from federal sources. OMBE has its ownhiring procedure, separate from the rest of the Board.[FN17] Its staff has always been all or nearly all black. Therecord does not reflect how CETA employees are hired, but their positions are temporary. The CETA program issubject to closer federal scrutiny as to equal employment practices than is A&Is employment generally. Exclud-ing these persons, the figures are much lower: one black (1.5 percent) in 1974; one black (1.4 percent) in 1975;seven blacks (9.5 percent) in 1976; and six blacks (6.5 percent) in 1977. Even these statistics hide another keyfact: although roughly half of the Boards staff is professional, technical or managerial, A&I has never hired ablack permanent employee (outside of OMBE) for anything but a clerical position. FN16. Pub.L.No.93-203, 87 Stat. 839 (1973), later codified at 29 U.S.C. ss 801 to 999 (Supp. III 1979). FN17. There is much dispute between the parties as to whether OMBE is really “part of” A&I. The point is unimportant. Thomas Espy, the OMBE director, did all the hiring for OMBE (subject to the ap- proval of the executive director), while Harold Cross, administrative assistant to the executive director, hired the staff for all other parts of A&I (likewise subject to approval). Thus, whether or not OMBE is operationally part of A&I, we cannot consider it as all of a piece with the rest of the Board for purposes of evaluating the fairness of A&Is hiring procedures. Most of the real debate between the parties concerns the relevant labor market to which A&Is hiring statist-ics are to be compared.[FN18] Actual applicant flow, often the best measurement, is unavailable here becauseA&I does not identify its applicants by race. Other statistical measures are necessarily imperfect in differingways and varying degrees. The best the court can do is to accept what figures are available; allow for imperfec-tions, skewing factors, and margins of error; and then take the figures for what they are worth. Sometimes this ismuch, sometimes little. See United Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 340, 97S.Ct. 1843, 1856, 52 L.Ed.2d 396, 418; Williams, 607 F.2d at 693; Hester v. Southern Ry., 5 Cir. 1974, 497 F.2d1374, 1379-81. FN18. Besides the problem of which demographic measurement best suits the case, there is disagree- ment as to the proper geographical area. Here, perhaps, is where a purely numerical analysis fails most visibly. There is never any ascertainable demarcation line showing from where a particular employer can or cannot draw employees. Whether a potential employee will commute or relocate to take a job de- pends not only on his personal tastes, but also on the types of work he does, prevailing economic condi- tions, the features of the two communities concerned, and any number of other factors. Moreover, the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 19637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) problem is inevitably complicated by the effect of the employers own recruiting and hiring practices. See generally Hazelwood School District v. United States, 1977, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768. In this case, the parties dispute whether the proper area is the entire state or only the Jackson Standard Metropolitan Statistical Area. The relevant figures, however, are remarkably close for both areas in nearly all important measures. The only substantial difference is that blacks make up a higher fraction of applicants for white collar jobs (professional, technical, managerial, clerical, and sales) in the Jack- son area than in the state at large. [16] The general population of Mississippi was 37.2 percent black at the time of the 1970 census. Accordingto figures from the Mississippi Employment Security Commission, the total civilian work force was 29.8 percentblack in 1977. In February 1978, 31.6 percent of persons registering at that Commission for professional, tech-nical, or managerial employment were black; 27.8 *1026 percent of registrants for clerical or sales jobs wereblack. Although these statistics have their flaws, we think the disparity between them and the Boards hiring re-cord is sufficient to raise a prima facie case of class discrimination and to shift the burden to the Board to showthat the discrepancy results from other causes. Robinson v. Union Carbide Corp., 5 Cir. 1976, 538 F.2d 652,659-61, modified on other grounds, 544 F.2d 1258 (5 Cir. 1977), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54L.Ed.2d 78 (1977). [17] A&Is only substantial response is to point out that only 11.5 percent of all high school graduates in theMississippi work force were black (as of 1973, the latest year for which figures are in evidence).[FN19] This ismaterial, but, by itself, it is insufficient. Many of A&Is clerical positions do not require a high school diploma,according to the Boards own job descriptions. Moreover, almost all of the nonclerical positions require a collegedegree; blacks made up 18.1 percent of the Mississippi work force with degrees. Considered against the figurefor A&Is black nonclerical hiring zero, outside of OMBE that figure does much to deflate the rebuttal argument.[FN20] FN19. Actually, the defendants state that 14.9 percent of such graduates are black. Appellees Brief at 12. This is due to the Boards misreading of the M.E.S.C. table, Plaintiffs Exhibit 32 at table 6: what that table states is that 14.9 percent of Mississippi blacks in the labor force are high school graduates. The error becomes more serious with regard to college graduates: the Board reports that only 3.7 per- cent of Mississippi college graduates are black, but a little long division shows that the correct figure is 18.1 percent. FN20. Because the named plaintiffs all have college degrees, they lack constitutional standing to chal- lenge the legality of A&Is educational requirements under Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, and Scott v. City of Anniston, 5 Cir. 1979, 597 F.2d 897, cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980). See Payne v. Travenol Laboratories, Inc., 5 Cir. 1978, 565 F.2d 895, 898-99, cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978). Accordingly, that issue is not presented in these cases, either here or in the district court. [18][19] Even so, we might hesitate to find discrimination in this case on the basis of these statistics alone.Here, however, there are other indicators. The district court found that A&I has a clear history of discrimination,not having hired a single black during its first three decades of existence. Its hiring procedures rely heavily onthe subjective judgments of its executives from personal interviews, a procedure that can easily be used to mask © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 20637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)racially motivated hiring decisions.[FN21] Such facts can buttress statistical evidence by suggesting a qualitat-ive explanation for a quantitative result. FN21. To note this fact is not necessarily to find fault with A&Is procedure or job criteria. In fact, the Boards bulky set of job descriptions is about as detailed and specific as can reasonably be expected. Given the nature of A& Is work, some subjectivity in hiring is unavoidable, especially with regard to nonclerical positions. Whether necessary or not, however, subjective judgments are suspect as job qual- ifications when they are exercised by members of an all-white executive or supervisory staff. See Jen- kins v. Caddo-Bossier Assn for Retarded Children, 5 Cir. 1978, 570 F.2d 1227, 1229 (per curiam). [20] In light of these facts, as found by the district court and amply supported by the record, we concludethat the district court erred in its conclusion of nondiscrimination against the class. On remand, the district courtshould direct the Board to set goals of about twenty percent black employment outside OMBE, separately forclerical and nonclerical positions. A&I should undertake an aggressive campaign of recruitment and advertise-ment to procure sufficient qualified black applicants to make these goals feasible. Further, until these goals areachieved, one third of all persons hired within predetermined six-month periods for permanent clerical or non-clerical jobs outside OMBE shall be black. The district court shall take any other concurrent or later actions ne-cessary to eliminate the effects of past discrimination at A&I and to procure the rights of the plaintiff class andits members. See Morrow v. Crisler, 5 Cir. 1974, 491 F.2d 1053 (en banc), cert. denied, 419 U.S. 895, 95 S.Ct.173, 42 L.Ed.2d 139 (1979); *1027Franks v. Bowman Transportation Co., 5 Cir. 1974, 495 F.2d 398, 418-20,revd in part on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); NAACP v. Allen, 5 Cir.1974, 493 F.2d 614; Davis v. County of Los Angeles, 9 Cir. 1977, 566 F.2d 1334, 1342-44, vacated as moot,440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); United States v. City of Chicago, 7 Cir. 1977, 549 F.2d415, 436-37, cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1978); Boston Chapter, NAACP, Inc. v.Beecher, 1 Cir. 1974, 504 F.2d 1017, 1026-28, cert. denied, 421 U.S. 910, 96 S.Ct. 1561, 43 L.Ed.2d 775 (1975); United States v. Masonry Contractors Assn, 6 Cir. 1974, 497 F.2d 871, 877; Erie Human Relations Commis-sion v. Tullio, 3 Cir. 1974, 493 F.2d 371; Bridgeport Guardians, Inc. v. Members of Bridgeport Civil ServiceCommission, 2 Cir. 1973, 482 F.2d 1333, 1339-41, cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481(1975); Carter v. Gallagher, 8 Cir. 1971, 452 F.2d 315, 330-31 (en banc), cert. denied, 406 U.S. 950, 92 S.Ct.2045, 32 L.Ed.2d 338 (1972). IV. THE MERITS: THE INDIVIDUAL CLAIMS [21][22] The standard and order of proof in an individual claim under Title VII are by now familiar. Toraise a prima facie case, the plaintiff must show (1) that he belongs to a racial minority; (2) that he applied andwas qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he wasrejected; and (4) that, after his rejection, the position remained open. The burden then shifts to the employer toshow some legitimate, nondiscriminatory reason for the applicants rejection.[FN22] The plaintiff is then af-forded a fair opportunity to show that the employers stated reason is in fact a pretext. McDonnell Douglas Corp.v. Green, 1973, 422 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; Furnco Construction Co. v. Waters, 1978, 438U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957. This formula must not be applied mechanically, but flexibly, with aview toward the particular hiring procedures and factual situation presented. McDonnell Douglas, 411 U.S. at802, 93 S.Ct. at 1824; Peters v. Jefferson Chemical Co., 5 Cir. 1975, 516 F.2d 447, 450. On appellate review, weare bound by the district courts findings of credibility and of subsidiary fact unless they are clearly erroneous.The clear error standard, however, does not apply to the ultimate conclusion of discrimination or nondiscrimina-tion. Williams v. Tallahassee Motors, Inc., 5 Cir. 1979, 607 F.2d 689, 690; East v. Romine, Inc., 5 Cir. 1975,518 F.2d 332, 338-39; Causey v. Ford Motor Co., 5 Cir. 1975, 516 F.2d 416, 420-21. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 21637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) FN22. This Court has consistently held that the employer bears the burden of showing his legitimate reason by a preponderance of the evidence. Burdine v. Texas Department of Community Affairs, 5 Cir. 1979, 608 F.2d 563, 567; Turner v. Texas Instruments, Inc., 5 Cir. 1977, 555 F.2d 1251, 1255; Whiting v. Jackson State University, 5 Cir. 1980, 616 F.2d 116, 121; Jefferies v. Harris County Community Ac- tion Assn, 5 Cir. 1980, 625 F.2d 1025, 1030. The Supreme Court has granted certiorari on the question, however. Texas Department of Community Affairs v. Burdine, 447 U.S. 920, 100 S.Ct. 3009, 65 L.Ed.2d 1112 (1980). We, of course, adhere to the Fifth Circuit rule pending the Supreme Courts de- cision, but it is not a matter of importance; under our view of the cases, none of the nine individual claims present turn on the applicability or nonapplicability of the Burdine rule.A. The PEER Case [23] 1. Barbara Phillips. Barbara Phillips applied to the PEER Committee on July 12, 1974. She had inter-views with John Hamilton, the Director of the Committee staff, and John Turcotte, a staff auditor. Both mentestified that they were very favorably impressed with Phillipss credentials, her manner, and her knowledge ofPEERs functions.[FN23] At their request, she brought in a writing sample. The two men decided right away tohire Phillips, but they did not inform her of that. After the initial interview, Phillips was never told *1028 thatshe was under serious consideration.[FN24] Three weeks after their interview with her, Hamilton and Turcottesaw reports on television and in a newspaper that Ms. Phillips had filed EEOC complaints against PEER andother agencies and that she was acting as a consultant to the Mississippi Council on Human Relations.[FN25]The district court found that she would have been hired but for these news reports. Hence, it concluded, PEERestablished a legitimate reason for not hiring Phillips Hamiltons and Turcottes beliefs that she was already em-ployed. The court also held that Phillips had not shown that reason to be a pretext.[FN26] FN23. Transcript at 114, 188-89, 397-98. Usually we do not give transcript and record citations. We make an exception in this case for the convenience of this Court, should there be a petition for a rehear- ing en banc, and for the convenience of the Supreme Court, should there be an application for a writ of certiorari. FN24. Transcript at 128, 188, 345, 400. FN25. Transcript at 114-16, 128, 430-31. FN26. Record at 676-77. After carefully examining the record, we believe that this finding is clearly erroneous. The defendants the-ory fails because it cannot adequately explain why, if Hamilton and Turcotte were so impressed with Ms. Phil-lipss qualifications that they decided immediately to hire her, they procrastinated for several weeks. In fact, therecord shows that race was very much on their minds. Hamilton testified that hiring Phillips was “an importantdecision” because she would have been the first black employee at PEER. He and Turcotte were concernedabout the reaction of the white legislators on the Committee and the white staff to such a step, as well as Phil-lipss own reaction to the “alien world” of the white-dominated agency. The reason for the delay, both men testi-fied, was that they were mulling over the “significance” or “complexities” of hiring blacks at PEER.[FN27] Oneneed not question the good faith of Hamilton and Turcotte to conclude that the ultimate decision not to hire Ms.Phillips was as much due to her race as was the delay in offering her a position. Given their enthusiasm for herqualifications, it is hard to believe that they would not have at least inquired as to the possibility of hiring heraway from her “consulting” position but for their apprehensions about her race. [FN28] We do not mean to say © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 22637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)that Title VII always requires an employer to pursue black applicants even after they are hired elsewhere. Wehold only that, on the record in this case, we cannot avoid the conclusion that the reason offered was a conveni-ent way out of an uncomfortable decision in other words, a pretext. FN27. Transcript at 113, 118-19, 128-29, 144, 346-47, 362; see id. at 210, 262-63. FN28. Her position was, in fact, unpaid. Transcript at 224-25. [24] 2. Melvin Phillips. Melvin Phillips applied to PEER on August 30, 1974. John Turcotte interviewedhim. When he called back the next day he was told that there were no openings. The district court found thatTurcotte rejected Mr. Phillips because he had expressed a reservation during the interview about job-relatedtravel.[FN29] FN29. Record at 672. The court also noted that the next person hired, Susan Hymel, was better qualified than Phillips. This is immaterial, since Turcotte testified that the hiring of Hymel was not at all connec- ted with the rejection of Phillips. Transcript at 441. This finding is clearly erroneous. There is literally no evidence that Mr. Phillips said in his interview that hewas unwilling to travel. On the contrary: although Turcotte testified that he had told Phillips about the travel re-quirements of the job, he was certain that Phillips had not expressed any reservation about them.[FN30] FN30. Transcript at 463-64. Presumably, what the district court had in mind was Mr. Phillipss statement on his employment applicationthat he had left his last job because it required excessive travel.[FN31] Turcotte testified that it was this expres-sion of reluctance that had led to the decision not to hire Phillips.[FN32] If this was indeed the reason for the re-jection, it is insufficient as a matter of law to rebut Phillipss prima facie case. Turcottes reason was, at best, abare assumption about *1029 Phillipss intentions at the time of his application an assumption made all the moreunreasonable by Phillipss silence about the travel requirements Turcotte described to him and Turcottes failureto ask the obvious question. We have held that an unchecked assumption that an applicant would not accept ajob cannot be a legitimate reason for failing to offer the job, or at least to make inquiry about the assumption.Davis v. Jackson County Port Authority, 5 Cir. 1980, 611 F.2d 577. Here, in fact, Phillips testified that he hadnot said anything about travel because he was unemployed and needed the job to support his family. He latertook a job requiring travel. [FN33] FN31. Defendants Exhibit 2; see Transcript at 327. FN32. Transcript at 412, 415. FN33. Transcript at 331, 483. 3. Cornell Green Rice. On September 19, 1974, Cornell Rice visited PEERs offices to apply for a clerical orsecretarial job. She left a completed (although unsigned) application form with a receptionist, but she did notspeak with anyone else or set up an interview. She never called back or made any further effort to keep in con-tact with PEER. [25] The district court found that Rice did not make out a prima facie case because there were no vacanciesfor which she was qualified. This is probably incorrect.[FN34] Even so, it is clear from the record that the de- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 23637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)fendants showed a valid, nondiscriminatory reason for not hiring Rice. According to the uncontradicted testi-mony of Turcotte and Hamilton, it was routine practice at PEER to make no effort to make further contact with“walk-in” applicants those who do nothing more than leave or mail in a resume or application form. [FN35]Rices attempt to impeach this explanation by counterexample only reinforced it.[FN36] It is not for us to saywhether this procedure is sensible, or even fair; it is sufficient for our purposes that it is race-neutral and that ithas not been shown to be pretextual. Accordingly, we decline to disturb the district courts ruling on this claim. FN34. As we shall discuss later, a vacancy within the meaning of the McDonnell Douglas test does not mean only an opening existing at the precise date of application, but any opening during the time that the application remains active. The record shows that two white secretaries were hired within two months of Rices application. Record at 185-86. FN35. Transcript at 178-79, 454-55; see id. at 135. FN36. Transcript at 452-55.B. The College Board Case 1. Barbara Phillips. On July 9, 1974, Barbara Phillips went to the receptionists desk on the first floor of thebuilding in which the Boards offices are located. She took an application form home, filled it out, and mailed itin. Ten days later, Dr. E. E. Thrash, the Boards executive director, sent her a letter stating that there were no va-cancies for a person of Phillipss qualifications. [26] We find no clear error in the district courts finding that Ms. Phillips was not qualified for any vacantposition. The Board employs a staff of about 18 persons; most of its work concerns the financial problems ofMississippi higher education. Thrash testified that he rejected Phillips because there was nothing in her applica-tion to suggest that she had any experience or expertise in financial matters or in higher education.[FN37] Hereducation had been in history and in law, proficiency at which would not qualify her for any of the Boards pro-fessional positions.[FN38] Nor did she appear to be qualified for most clerical jobs, since she left blank thespace on her application for typing and shorthand skills.[FN39] She was qualified, Thrash testified, for the posi-tion of file clerk, but that job has not been open since before 1974. [FN40] We believe that this evidenceprovides adequate support for the district courts ruling. FN37. Transcript at 72, 76, 94; Plaintiffs Exhibit 13. FN38. Transcript at 72-74, 76, 94, 98. The Board handles none of its own legal work. Id. at 94-95. FN39. Plaintiffs Exhibit 13; Transcript at 72, 79. FN40. Transcript at 74, 79. *1030 2. Melvin Phillips. Melvin Phillips testified that he went to the College Board on September 6, 1974.A receptionist informed him that there were no application forms, but he had an informal interview with CharlesCoffman, an associate director. Coffman, Phillips said, told him that there were no openings then and that therewere no positions for persons with B.A. degrees. [FN41] FN41. Transcript at 213-15. The district court rejected Mr. Phillipss testimony and found that he had not applied to the Board. This was © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 24637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)error. This finding rests on a misreading of Coffmans testimony; indeed, the parties stipulated in the pretrial or-der that Phillips did apply.[FN42] FN42. Record at 735. Coffman did not testify that he never interviewed Mr. Phillips, but only that he did not recall doing so. He pointed out that he interviews many applicants and easily might not remem- ber one in particular. Transcript at 265-66. [27] Despite this discrepancy, we affirm the district courts ruling. Examination of the record reveals that,during the year following Mr. Phillipss application, only one white applicant was hired in a position that Phil-lips might have filled. That one, Ward Shaw, had a masters degree in economics and experience as a college in-structor. He was hired on a temporary basis to do a study of the feasibility of certain proposed program additionsat Alcorn State University, a job for which he was better qualified than Phillips. [FN43] Given this absence ofany relevant vacancies, we must agree that Phillips did not make out a prima facie case of racial discrimination. FN43. Plaintiffs Exhibit 4; Transcript at 77, 96-97. 3. Cornell Green Rice. Cornell Rice interviewed with Thrash on September 19, 1974. He told her that therewere no jobs open then and would be none in the foreseeable future. She left her resume and application. Shenever heard from the Board.[FN44] FN44. Transcript at 227-28. [28][29] The district court found that Rice was not hired because there were no vacancies when she applied.[FN45] This is clearly erroneous. The evidence shows that Bonnie Childers, a white, was hired as a secretaryscarcely two months after Rices application.[FN46] The defense made no attempt to show that Childers wasbetter qualified than Rice, and there is no indication of how long the vacancy she filled had existed.[FN47] Avacancy, within the meaning of the McDonnell Douglas test, need not exist on the precise day of application;any vacancies within a reasonable time must be considered as well. [FN48] McLean v. Phillips-Ramsey, Inc., 9Cir. 1980, 624 F.2d 70, 72 (per curiam); Neely v. City of Grenada, 1977, N.D.Miss., 438 F.Supp. 390, 409; seeEast v. Romine, Inc., 5 Cir. 1975, 518 F.2d 332, 338. Since no attempt was made to show a legitimate reason forhiring Childers instead of Rice, we hold that Rice is entitled to judgment. FN45. Record at 920. The court also adverted to testimony that Robert Harrison, a black member of the Board, had approached Rice about working at the Board and that Rice had said she was not interested. It is not clear how much the court relied on that fact, but any reliance would have been misplaced. The evidence shows that, when Harrison approached Rice, she was earning more than the Board would pay. At the time of her application, by contrast, she was unemployed. Transcript at 137-40, 227. FN46. Plaintiffs Exhibit 4. FN47. Childerss application is in the record, Record at 392, but it is not obvious that her credentials or experience exceed Rices. She was not mentioned at trial. Through an apparent clerical error, the depar- ture date for the person Childers replaced is plainly misreported. Record at 559, 569. FN48. There is at least one example on the record, occurring a few months before Rices application, of a white applicant being hired months after applying. Plaintiffs Exhibit 3 (Martha DAquino).C. The A & I Case © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 25637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) [30] The individual claims in the A & I case come to us in a different posture from those in the other twocases because of our holding that the plaintiffs proved that A & I is guilty of discrimination against the *1031plaintiff class.[FN49] The establishment of liability on the class claim operates to establish a prima facie case onbehalf of each member of the class. Once the individual plaintiff proves that he applied unsuccessfully, the bur-den shifts to the employer to establish that its failure to hire that individual was the result of legitimate nondis-criminatory reasons. International Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 357-62, 97S.Ct. 1843, 1865-68, 52 L.Ed.2d 396, 428-32; Franks v. Bowman Transportation Co., 1976, 424 U.S. 747,771-73 & n.32, 96 S.Ct. 1251, 96 S.Ct. 1267-68 & n.32, 47 L.Ed.2d 444, 466-67. FN49. We also note that in this case, unlike the other two, there is no claim for backpay or other money relief. The complaint is expressly limited to a cause of action for injunctive and declaratory relief, and neither party introduced any evidence as to the propriety or amount of backpay awards. [31] 1. Barbara Phillips. Barbara Phillips visited the A & I Board during July 1974. She testified that shewas interviewed by Harold Cross, administrative assistant to the director, but other evidence shows (and the dis-trict court found) that Phillips actually spoke with Robert Robinson, the executive director.[FN50] Robinsontestified that he was very impressed with Phillipss credentials and intelligence, but that he had no positions atthat time suitable for her. He offered to assist her in obtaining a job at another agency. At the same time,however, he described to her a new position that he wanted to create in the Industrial Department, for which hethought Phillips would be well suited. He took two telephone numbers for her and asked her to check back. Overthe next three weeks Robinson worked at arranging federal funds for the new position. When he succeeded, hecalled Phillipss telephone numbers to speak to her about the job. At one there was no answer; at the other, hewas told that Phillips had moved to Chicago to resume her law school studies at Northwestern University. Heabandoned his plans for the new job. [FN51] FN50. Record at 456; Transcript at 58, 145-46, 160-62. FN51. Transcript at 160-62, 164. The district court credited Robinsons testimony and found that the sole reason why Phillips was not hiredwas because Robinson believed she was no longer interested in employment in Jackson. There is abundant evid-ence to support this finding. In light of the facts, it is not clear that Phillips was rejected at all. Even if she was,we agree with the district court that Robinsons testimony adequately established a legitimate, nondiscriminatoryreason for the rejection.[FN52] FN52. This holding is not in conflict with Davis v. Jackson County Port Authority, 5 Cir. 1980, 611 F.2d 577, or our holding on Melvin Phillipss claim in the PEER case. In those cases the employers jumped to unwarranted conclusions while foregoing obvious opportunities to ask about them. The dif- ference here is simply a matter of reasonableness; there is a point at which Title VII does not require an employer otherwise acting in good faith to verify every possible logical assumption on which he might rely. We are influenced in this determination by Robinsons remarkable efforts to create a position for Phillips when he found none available. 2. Melvin Phillips. Melvin Phillips applied at the A & I Board on August 28, 1974. After filling out an ap-plication, he spoke briefly with Harold Cross. Cross said there were no jobs available in A & I, but referred himto Thomas Espy, head of OMBE. Espy also had no jobs. Phillips called Espy a few times, but he never heardfrom A & I again.[FN53] © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 26637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) FN53. Transcript at 72-80. [32][33] The district court held against Phillips because, it concluded, he was only available for employ-ment for a short period of time, and all white applicants hired during that period were better qualified than he.[FN54] We think that the court improperly constricted its scrutiny of the Boards hiring. Title VII does not re-quire a plaintiff to remain permanently unemployed or forfeit his cause of action for racial discrimination. Norcan the Board contend here, as it did in the case of Barbara Phillips, that *1032 Phillipss apparent departurefrom the job market was a legitimate reason for not hiring him, for there is no evidence that anyone at A & Iever learned that he had taken another job. According to A & Is own written procedures and Crosss testimony,applicants remain under active consideration for all openings within a year of the date of application.[FN55]During the year following Phillipss application, A & I hired seventeen non-clerical employees, fourteen ofwhom were white. Excluding OMBE and temporary CETA appointments, they hired four such persons, allwhite.[FN56] A & Is failure to show a legitimate business reason for hiring these persons instead of Phillips isfatal to its defense. FN54. Record at 458-59. FN55. Plaintiffs Exhibit 18; Transcript at 87-88, 150-51. FN56. Plaintiffs Exhibit 8. 3. Cornell Green Rice. Cornell Rice applied at A & I on September 18, 1974, and interviewed briefly withEspy. He said he would refer her application “upstairs” (i. e., to A & I). She later received a letter from Espy ad-vising her that there were no jobs available.[FN57] FN57. Plaintiffs Exhibit 1; Transcript at 23-27, 47-48. Rices case is similar to Melvin Phillipss. The district court ruled against Rice because it found that she hadbeen available for employment for only a few days, and there were no secretarial or clerical vacancies duringthat time. Again, though, there was no suggestion that Rices application was removed from consideration pre-maturely, for no one at A & I knew of her new job. During the year following her application, A & I hired nine-teen whites and six blacks in clerical jobs. If OMBE and CETA jobs are excluded, the figures are nine white,one black.[FN58] As with Melvin Phillips, the absence of any business justification for these hirings defeats theBoards rebuttal of the prima facie case established under Franks and Teamsters. FN58. Plaintiffs Exhibit 8. SUMMARY To summarize our disposition of these cases: We AFFIRM the judgment in the A & I case with regard to the issue of recusal. We REVERSE the district courts refusal to certify the alleged classes in the PEER and College Boardcases. Those cases are REMANDED for appropriate proceedings as to the administration of the class action andthe merits of the class allegations. We MODIFY the class certification order in the A & I case to include in thatclass future applicants and persons deterred from applying for jobs with A & I. We REVERSE the judgment in the A & I case that the plaintiffs did not establish discrimination against the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • Page 27637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)class. The case is REMANDED for appropriate relief consistent with this opinion. We REVERSE the courts judgments on the merits with respect to Barbara Phillipss individual claim in thePEER case; Melvin Phillipss individual claims in the PEER and A & I cases; and Cornell Rices individualclaims in the A & I and College Board cases. We REMAND the cases for appropriate relief. We AFFIRM thedistrict courts judgments as to the remaining individual claims. Although we have refused to overturn the district courts denial of the plaintiffs recusal motion, in light oflater developments and all of the circumstances presented in these cases, we suggest that any proceedings on re-mand should be heard before a judge other than the Hon. William Harold Cox. We do so without in any wayquestioning the integrity or impartiality of that Judge; we act solely in the interest of preserving the complete ap-pearance of impartiality. See Webbe v. McGhie Land Title Co., 10 Cir. 1977, 549 F.2d 1358, 1361; Eckles v.Sharman, 10 Cir. 1977, 548 F.2d 905, 911; United States v. Bray, 10 Cir. 1976, 546 F.2d 851, 860; United Statesv. Ritter, 10 Cir. 1976, 540 F.2d 459, 464-65, cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976).C.A.Miss., 1981.Phillips v. Joint Legislative Committee on Performance and Expenditure Review of State of Miss.637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
    • CODE OF JUDICIAL CONDUCT Adopted by the Mississippi Supreme Court April 4, 2002 Table of RulesPREAMBLETERMINOLOGYCANON 1 - A Judge Shall Uphold the Integrity and Independence of the Judiciary.CANON 2 - A Judge Shall Avoid Impropriety and the Appearance of Impropriety inAll Activities.CANON 3 - A Judge Shall Perform the Duties of Judicial Office Impartially andDiligently.CANON 4 - A Judge Shall So Conduct the Judge’s Extra-judicial Activities as toMinimize the Risk of Conflict with Judicial Obligations.CANON 5 - A Judge or Judicial Candidate Shall Refrain From InappropriatePolitical Activity.APPLICATION OF THE CODE OF JUDICIAL CONDUCT . CODE OF JUDICIAL CONDUCT Adopted by the Mississippi Supreme Court April 4, 2002 PREAMBLE Our legal system is based on the principle that an independent, fair and competentjudiciary will interpret and apply the laws that govern us. The role of the judiciary iscentral to American concepts of justice and the rule of law. Intrinsic to all sections of thisCode are the precepts that judges, individually and collectively, must respect and honorthe judicial office as a public trust and strive to enhance and maintain confidence in our EXHIBIT "5"
    • legal system. The judge is an arbiter of facts and law for the resolution of disputes and ahighly visible symbol of government under the rule of law. The Code of Judicial Conduct is intended to establish standards for ethical conductof judges. It consists of broad statements called Canons, specific rules set forth inSections under each Canon, a Terminology Section, an Application Section andCommentary. The text of the Canons and the Sections, including the Terminology andApplication Sections, is authoritative. The Commentary, by explanation and example,provides guidance with respect to the purpose and meaning of the Canons and Sections.The Commentary is not intended as a statement of additional rules. When the text uses"shall" or "shall not," it is intended to impose binding obligations the violation of whichcan result in disciplinary action. When "should" or "should not" is used, the text isintended as hortatory and as a statement of what is or is not appropriate conduct but not asa binding rule under which a judge may be disciplined. When "may" is used, it denotespermissible discretion or, depending on the context, it refers to action that is not coveredby specific proscriptions. The Canons and Sections are rules of reason. They should beapplied consistent with constitutional requirements, statutes, other court rules anddecisional law and in the context of all relevant circumstances. The Code is to beconstrued so as not to impinge on the essential independence of judges in making judicialdecisions. The Code is designed to provide guidance to judges and candidates for judicialoffice and to provide a structure for regulating conduct through disciplinary agencies. It isnot designed or intended as a basis for civil liability or criminal prosecution. Furthermore,the purpose of the Code would be subverted if the Code were invoked by lawyers formere tactical advantage in a proceeding. The text of the Canons and Sections is intended to govern conduct of judges and tobe binding upon them. It is not intended, however, that every transgression will result indisciplinary action. Whether disciplinary action is appropriate, and the degree ofdiscipline to be imposed, should be determined through a reasonable and reasonedapplication of the text and should depend on such factors as the seriousness of thetransgression, whether there is a pattern of improper activity and the effect of theimproper activity on others or on the judicial system. The Code of Judicial Conduct is not intended as an exhaustive guide for theconduct of judges. They should also be governed in their judicial and personal conduct bygeneral ethical standards. The Code is intended, however, to state basic standards whichshould govern the conduct of all judges and to provide guidance to assist judges inestablishing and maintaining high standards of judicial and personal conduct. TERMINOLOGY 2
    • "Appropriate authority" denotes the authority with responsibility for initiation ofdisciplinary process with respect to the violation to be reported. See Sections 3D(1) and3D(2). "Candidate." A candidate is a person seeking selection for judicial office byelection or appointment. Persons become candidates for judicial office as soon as theymake public announcements of candidacy, declare or file as candidates with the electionor appointment authority, or authorize solicitation or acceptance of contributions orsupport. The term "candidate" has the same meaning when applied to a judge seekingelection or appointment to non-judicial office. See Preamble and Canon 5. "Court personnel" does not include the lawyers in a proceeding before a judge. SeeSections 3B(7)(c) and 3B(9). "De minimis" denotes an insignificant interest that could not raise reasonablequestion as to a judges impartiality. See Sections 3E(1)(c) and 3E(1)(d). "Economic interest" denotes ownership of a more than de minimis legal orequitable interest, or a relationship as officer, director, advisor or other active participantin the affairs of a party, except that: (i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest; (ii) service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a judges spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization; (iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest; (iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge 3
    • could substantially affect the value of the securities. See Sections 3E(1)(c) and 3E(2). "Fiduciary" includes such relationships as executor, administrator, trustee, andguardian. See Sections 3E(3) and 4E. "Independent persons, committees or organizations" shall mean an individualperson or organization not required to report as affiliated with a campaign for judicialoffice. See Section 5F. "Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of thefact in question. A persons knowledge may be inferred from circumstances. See Sections3D, 3E(1), and 5A(3). "Law" denotes court rules as well as statutes, constitutional provisions anddecisional law. See Sections 2A, 3A, 3B(2), 3B(7), 4B, 4C, 4F, 4I, 5A(2), 5A(3), 5B(2),5C, 5D, and 5F. “Major donor”, for the purposes of Section 3E(2), shall be defined as follows: (a) If the donor is an individual, "donor" means that individual, the individuals spouse, or the individual’s or the individual’s spouse’s child, mother, father, grandmother, grandfather, grandchild, employee and employees spouse. (b) If the donor is an entity other than an individual, "donor” means the entity, its employees, officers, directors, shareholders, partners members, and contributors and the spouse of any of them. (c) A “major donor” is a donor who or which has, in the judges most recent election campaign, made a contribution to the judges campaign of (a) more than $2,000 if the judge is a justice of the Supreme Court or judge of the Court of Appeals, or (b) more than $1,000 if the judge is a judge of a court other than the Supreme Court or the Court of Appeals. (d) The term “contribution to the judges campaign" shall be the total of all contributions to a judges campaign and shall be deemed to include all contributions of every kind and type whatsoever, whether in the form of cash, goods, services, or other form of contribution, and whether donated directly to the judges campaign or donated to any other person or entity for the purpose of supporting the judges campaign and/or opposing the campaign of the judges opponent(s). The term "contribution to a 4
    • judge’s campaign" shall also be deemed to include any publication, advertisement or other release of information, or payment therefor, other than a bona fide news item published by existing news media, which contains favorable information about the judge or which contains unfavorable information about the judges opponent(s). "Member of the candidates family" denotes a spouse, child, grandchild, parent,grandparent, siblings, or other relative or person with whom the candidate maintains aclose familial relationship. See Section 5A(3)(a). "Member of the judges family" denotes a spouse, child, grandchild, parent,grandparent, siblings, or other relative or person with whom the judge maintains a closefamilial relationship. See Sections 4D, 4E and 4G. "Member of the judges family residing in the judges household" denotes anyrelative of a judge by blood or marriage, or a person treated by a judge as a member of thejudges family, who resides in the judges household. See Sections 3E(1) and 4D. "Nonpublic information" denotes information that, by law, is not available to thepublic. Nonpublic information may include but is not limited to: information that is sealedby statute or court order, impounded or communicated in camera; and information offeredin grand jury proceedings, presentencing reports, dependency cases or psychiatric reports.See Sections 3B(11) and 4D(4). "Part-time judge" denotes a judge who serves for an extended, fixed term, but isallowed to practice law or any other profession or occupation. The term does not apply tomagistrates, court commissioners, special masters or referees. "Political organization" denotes a political party or other group, the principalpurpose of which is to further the election or appointment of candidates to political office.See Sections 5A(1). "Public election." This term includes primary and general elections; it includespartisan elections and nonpartisan elections. See Section 5C. "Require." The rules prescribing that a judge "require" certain conduct of othersare, like all of the rules in this Code, rules of reason. The use of the term "require" in thatcontext means a judge is to exercise reasonable direction and control over the conduct ofthose persons subject to the judges direction and control. See Sections 3B(3), 3B(4),3B(5), 3B(6), 3B(9) and 3C(2). 5
    • "Special judge" denotes a judge, including a retired judge, other than one who isserving to fill the unexpired term of a regularly elected or appointed judge who hasvacated the office, who serves by appointment for a limited period or in a particularmatter due to the unwillingness or inability of a sitting judge to hear a case or attendcourt, or who is appointed on an emergency basis. "Third degree of relationship." The following persons are relatives within the thirddegree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister,child, grandchild, great-grandchild, nephew or niece. See Section 3E(1)(d). Commentary In defining “members of the candidate’s family” and “members of the judge’sfamily” siblings of the candidate and judge are included. The phrase “major donor” isalso included. Likewise, no reference is made to retention elections. In these respects,this section differs from the ABA Model Code of Judicial Conduct. The ABA Model Code defines “continuing part-time judge,” “periodic part-timejudge,” and “pro tempore part-time judge.” Also, in the Application Section, the ABAmodel refers to “retired judge subject to recall.” In the adaption of the model forMississippi application, these are reduced to “part-time judge,” and “special judge,”which covers non-standard positions subject to special treatment. See ApplicationSection. CANON 1 A Judge Shall Uphold the Integrity and Independence of the Judiciary An independent and honorable judiciary is indispensable to justice in oursociety. A judge should participate in establishing, maintaining, and enforcing highstandards of conduct, and shall personally observe those standards so that theintegrity and independence of the judiciary will be preserved. The provisions of thisCode should be construed and applied to further that objective. Commentary Deference to the judgments and rulings of courts depends upon public confidencein the integrity and independence of judges. The integrity and independence of judgesdepends in turn upon their acting without fear or favor. Although judges should beindependent, they must comply with the law, including the provisions of this Code. Publicconfidence in the impartiality of the judiciary is maintained by the adherence of each 6
    • judge to this responsibility. Conversely, violation of this Code diminishes publicconfidence in the judiciary and thereby does injury to the system of government underlaw. CANON 2 A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities A. A judge shall respect and comply with the law and shall act at all times ina manner that promotes public confidence in the integrity and impartiality of thejudiciary. Commentary Public confidence in the judiciary is eroded by irresponsible or improper conductby judges. A judge must avoid all impropriety and appearance of impropriety. A judgemust expect to be the subject of constant public scrutiny. A judge must therefore acceptrestrictions on the judges conduct that might be viewed as burdensome by the ordinarycitizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance ofimpropriety applies to both the professional and personal conduct of a judge. Because itis not practicable to list all prohibited acts, the proscription is necessarily cast in generalterms that extend to conduct by judges that is harmful although not specifically mentionedin the Code. Actual improprieties under this standard include violations of law, courtrules or other specific provisions of this Code. The test for appearance of impropriety iswhether, based on the conduct, the judge’s impartiality might be questioned by areasonable person knowing all the circumstances. See also Commentary under Section 2C. B. Judges shall not allow their family, social, or other relationships toinfluence the judges’ judicial conduct or judgment. Judges shall not lend theprestige of their offices to advance the private interests of the judges or others; norshall judges convey or permit others to convey the impression that they are in aspecial position to influence the judges. Judges shall not testify voluntarily ascharacter witnesses. 7
    • Commentary 8
    • Maintaining the prestige of judicial office is essential to a system of government inwhich the judiciary functions independently of the executive and legislative branches.Respect for the judicial office facilitates the orderly conduct of legitimate judicialfunctions. Judges should distinguish between proper and improper use of the prestige ofoffice in all of their activities. For example, it would be improper for judges to allude totheir judgeships to gain a personal advantage such as deferential treatment when stoppedby a police officer for a traffic offense. Similarly, judicial letterhead must not be used forconducting a judges personal business. A judge must avoid lending the prestige of judicial office for the advancement ofthe private interests of others. For example, a judge must not use the judges judicialposition to gain advantage in a civil suit involving a member of the judges family. Incontracts for publication of a judges writings, a judge should retain control over theadvertising to avoid exploitation of the judges office. Although a judge should be sensitive to possible abuse of the prestige of office, ajudge may, based on the judges personal knowledge, serve as a reference or provide aletter of recommendation. However, a judge must not initiate the communication ofinformation to a sentencing judge or a probation or corrections officer but may provideto such persons information for the record in response to a formal request. Judges may participate in the process of judicial selection by cooperating withappointing authorities and screening committees seeking names for consideration, and byresponding to official inquiries concerning a person being considered for a judgeship.See also Canon 5 regarding use of a judges name in political activities. A judge must not testify voluntarily as a character witness because to do so maylend the prestige of the judicial office in support of the party for whom the judge testifies.Moreover, when a judge testifies as a witness, a lawyer who regularly appears before thejudge may be placed in the awkward position of cross-examining the judge. A judge may,however, testify when properly summoned. Except in unusual circumstances where thedemands of justice require, a judge should discourage a party from requiring the judge totestify as a character witness. C. A judge shall not hold membership in any organization that practicesinvidious discrimination on the basis of race, gender, religion or national origin. Commentary Membership of a judge in an organization that practices invidious discriminationgives rise to perceptions that the judges impartiality is impaired. Section 2C refers to thecurrent practices of the organization. Whether an organization practices invidious 9
    • discrimination is often a complex question to which judges should be sensitive. Theanswer cannot be determined from a mere examination of an organizations currentmembership rolls but rather depends on how the organization selects members and otherrelevant factors, such as that the organization is dedicated to the preservation ofreligious, ethnic or cultural values of legitimate common interest to its members, or that itis in fact and effect an intimate, purely private organization whose membershiplimitations could not be constitutionally prohibited. Absent such factors, an organizationis generally said to discriminate invidiously if it arbitrarily excludes from membership onthe basis of race, religion, gender or national origin persons who would otherwise beadmitted to membership. See New York State Club Assn. v. City of New York, U.S., 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988); Board of Directors of Rotary International v.Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987); Roberts v.United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Although Section 2C relates only to membership in organizations that invidiouslydiscriminate on the basis of race, gender, religion or national origin, a judgesmembership in an organization that engages in any discriminatory membership practicesprohibited by the law of the jurisdiction also violates Canon 2 and Section 2A and givesthe appearance of impropriety. In addition, it would be a violation of Canon 2 andSection 2A for a judge to arrange a meeting at a club that the judge knows practicesinvidious discrimination on the basis of race, gender, religion or national origin in itsmembership or other policies, or for the judge to regularly use such a club. Moreover,public manifestation by a judge of the judges knowing approval of invidiousdiscrimination on any basis gives the appearance of impropriety under Canon 2 anddiminishes public confidence in the integrity and impartiality of the judiciary, in violationof Section 2A. When a person who is a judge on the date this Code becomes effective learns thatan organization to which the judge belongs engages in invidious discrimination thatwould preclude membership under Section 2C or under Canon 2 and Section 2A, thejudge is permitted, in lieu of resigning, to make immediate efforts to have theorganization discontinue its invidiously discriminatory practices, but is required tosuspend participation in any other activities of the organization. If the organization failsto discontinue its invidiously discriminatory practices as promptly as possible (and in allevents within a year of the judges first learning of the practices), the judge is required toresign immediately from the organization. CANON 3 A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently 10
    • A. Judicial Duties in General. The judicial duties of judges take precedenceover all their other activities. The judges’ judicial duties include all the duties oftheir office prescribed by law. In the performance of these duties, the followingstandards apply: B. Adjudicative Responsibilities. (1) A judge shall hear and decide all assigned matters within the judge’sjurisdiction except those in which disqualification is required. (2) A judge shall be faithful to the law and maintain professional competencein it. A judge shall not be swayed by partisan interests, public clamor, or fear ofcriticism. (3) A judge shall require order and decorum in proceedings before the judge. (4) Judges shall be patient, dignified, and courteous to litigants, jurors,witnesses, lawyers, and others with whom they deal in their official capacities, andshall require similar conduct of lawyers, and of their staffs, court officials, andothers subject to their direction and control. Commentary The duty to hear all proceedings fairly and with patience is not inconsistent withthe duty to dispose promptly of the business of the court. Courts can be efficient andbusiness like while being patient and deliberate. (5) A judge shall perform judicial duties without bias or prejudice. A judgeshall not, in the performance of judicial duties, by words or conduct manifest bias orprejudice, including but not limited to bias or prejudice based upon race, gender,religion, national origin, disability, age, sexual orientation or socioeconomic status,and shall not permit staff, court officials and others subject to the judges directionand control to do so. A judge shall refrain from speech, gestures or other conductthat could reasonably be perceived as sexual harassment and shall require the samestandard of conduct of others subject to the judge’s direction and control. Commentary A judge must perform judicial duties impartially and fairly. A judge who manifestsbias on any basis in a proceeding impairs the fairness of the proceeding and brings thejudiciary into disrepute. Facial expression and body language, in addition to oralcommunication, can give to parties or lawyers in the proceeding, jurors, the media and 11
    • others an appearance of judicial bias. A judge must be alert to avoid behavior that maybe perceived as prejudicial. (6) A judge shall require lawyers in proceedings before the judge to refrainfrom manifesting, by words or conduct, bias or prejudice based upon race, gender,religion, national origin, disability, age, sexual orientation or socioeconomic status,against parties, witnesses, counsel or others. This Section 3B(6) does not precludelegitimate advocacy when race, gender, religion, national origin, disability, age,sexual orientation or socioeconomic status, or other similar factors, are issues in theproceeding. (7) A judge shall accord to all who are legally interested in a proceeding, ortheir lawyers, the right to be heard according to law. A judge shall not initiate,permit, or consider ex parte communications, or consider other communicationsmade to the judge outside the presence of the parties concerning a pending orimpending proceeding except that: (a) where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized: provided: (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond. (b) Judges may obtain the advice of a disinterested expert on the law applicable to a proceeding before them if the judges give notice to the parties of the person consulted and the substance of the advice, and afford the parties reasonable opportunity to respond. (c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judges adjudicative responsibilities or with other judges. (d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge. 12
    • (e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so. Commentary The proscription against communications concerning a proceeding includescommunications from lawyers, law teachers, and other persons who are not participantsin the proceeding, except to the limited extent permitted. To the extent reasonablypossible, all parties or their lawyers shall be included in communications with a judge.Whenever presence of a party or notice to a party is required by Section 3B(7), it is thepartys lawyer, or if the party is unrepresented, the party, who is to be present or to whomnotice is to be given. An appropriate and often desirable procedure for a court to obtain the advice of adisinterested expert on legal issues is to invite the expert to file a brief amicus curiae. Certain ex parte communication is approved by Section 3B(7) to facilitatescheduling and other administrative purposes and to accommodate emergencies. Ingeneral, however, a judge must discourage ex parte communication and allow it only ifall the criteria stated in Section 3B(7) are clearly met. A judge must disclose to all partiesall ex parte communications described in Sections 3B(7)(a) and 3B(7)(b) regarding aproceeding pending or impending before the judge. A judge must not independentlyinvestigate facts in a case and must consider only the evidence presented. A judge may request a party to submit proposed findings of fact and conclusions oflaw, so long as the other parties are apprized of the request and are given an opportunityto respond to the proposed findings and conclusions. A judge must make reasonable efforts, including the provision of appropriatesupervision, to ensure that Section 3B(7) is not violated through law clerks or otherpersonnel on the judges staff. If communication between the trial judge and the appellate court with respect to aproceeding is permitted, a copy of any written communication or the substance of anyoral communication should be provided to all parties. (8) A judge shall dispose of all judicial matters promptly, efficiently andfairly. Commentary In disposing of matters promptly, efficiently and fairly, a judge must demonstratedue regard for the rights of the parties to be heard and to have issues resolved without 13
    • unnecessary cost or delay. Containing costs while preserving fundamental rights ofparties also protects the interests of witnesses and the general public. A judge shouldmonitor and supervise cases so as to reduce or eliminate dilatory practices, avoidabledelays and unnecessary costs. A judge should encourage and seek to facilitate settlement,but parties should not feel coerced into surrendering the right to have their controversyresolved by the courts. Prompt disposition of the courts business requires a judge to devote adequate timeto judicial duties, to be punctual in attending court and expeditious in determiningmatters under submission, and to insist that court officials, litigants and their lawyerscooperate with the judge to that end. (9) A judge shall not, while a proceeding is pending or impending in anycourt, make any public comment that might reasonably be expected to affect itsoutcome or impair its fairness or make any nonpublic comment that mightsubstantially interfere with a fair trial or hearing. The judge shall require similarabstention on the part of court personnel subject to the judges direction andcontrol. This Section does not prohibit judges from making public statements in thecourse of their official duties or from explaining for public information theprocedures of the court. This Section does not apply to proceedings in which thejudge is a litigant in a personal capacity. Commentary The requirement that judges abstain from public comment regarding a pending orimpending proceeding continues during any appellate process and until final disposition.This Section does not prohibit a judge from commenting on proceedings in which thejudge is a litigant in a personal capacity, but in cases such as a writ of mandamus wherethe judge is a litigant in an official capacity, the judge must not comment publicly. Theconduct of lawyers relating to trial publicity is governed by Rule 3.6 of the Rules ofProfessional Conduct. (10) A judge shall not commend or criticize jurors for their verdict other thanin a court order or opinion in a proceeding, but may express appreciation to jurorsfor their service to the judicial system and the community. Commentary Commending or criticizing jurors for their verdict may imply a judicialexpectation in future cases and may impair a jurors ability to be fair and impartial in asubsequent case. 14
    • (11) A judge shall not disclose or use, for any purpose unrelated to judicialduties, nonpublic information acquired in a judicial capacity. (12) Except as may be authorized by rule or order of the Supreme Court, ajudge should prohibit broadcasting, televising, recording, or taking photographs inthe courtroom and areas immediately adjacent thereto during sessions of court orrecesses between sessions, except that a judge may authorize: (a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration; (b) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings; (c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions: (i) the means of recording will not distract participants or impair the dignity of the proceedings; (ii) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction; (iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and (iv) the reproduction will be exhibited only for instructional purposes in educational institutions. Commentary The ABA Model Code does not address broadcasting, televising, recording orphotographing in the courtroom. This provision is taken from the Section 3A(7) of theprior Mississippi Code of Judicial Conduct. Section 3B(12) prohibits broadcasting, televising, recording, or takingphotographs in the courtroom and areas immediately adjacent thereto except asauthorized by rule or order of the Supreme Court. The Supreme Court has now adoptedthe Rules for Electronic and Photographic Coverage of Proceedings which providesdetailed guidance for such coverage. 15
    • [Commentary amended effective April 17, 2003.] C. Administrative Responsibilities. (1) A judge shall diligently discharge the judges administrativeresponsibilities without bias or prejudice and maintain professional competence injudicial administration, and shall cooperate with other judges and court officials inthe administration of court business. (2) A judge shall require staff, court officials and others subject to the judgesdirection and control to observe the standards of fidelity and diligence that apply tothe judge and to refrain from manifesting bias or prejudice in the performance oftheir official duties. (3) A judge with supervisory authority for the judicial performance of otherjudges shall take reasonable measures to assure the prompt disposition of mattersbefore them and the proper performance of their other judicial responsibilities. (4) A judge shall not make unnecessary appointments. A judge shall exercisethe power of appointment impartially and on the basis of merit. A judge shall avoidnepotism and favoritism. A judge shall not approve compensation of appointeesbeyond the fair value of services rendered. Commentary Appointees of a judge include assigned counsel, officials such as referees,commissioners, special masters, receivers and guardians and personnel such as clerks,secretaries and bailiffs. Consent by the parties to an appointment or an award ofcompensation does not relieve the judge of the obligation prescribed by Section 3C(4). (5) A judge shall not appoint a major donor to the judge’s election campaignto a position if the judge knows or learns by means of a timely motion that the majordonor has contributed to the judges election campaign unless (a) the position is substantially uncompensated; (b) the person has been selected in rotation from a list of qualified and available persons compiled without regard to their having made political contributions; or (c) the judge or another presiding or administrative judge affirmatively finds that no other person is willing, competent and able to accept the position. 16
    • D. Disciplinary Responsibilities. (1) A judge who receives information indicating a substantial likelihood thatanother judge has committed a violation of this Code should take appropriateaction. A judge having knowledge that another judge has committed a violation ofthis Code that raises a substantial question as to the other judges fitness for officeshall inform the appropriate authority. (2) A judge who receives information indicating a substantial likelihood that alawyer has committed a violation of the Rules of Professional Conduct should takeappropriate action. A judge having knowledge that a lawyer has committed aviolation of the Rules of Professional Conduct that raises a substantial question as tothe lawyers honesty, trustworthiness or fitness as a lawyer in other respects shallinform the appropriate authority. (3) Acts of a judge, in the discharge of disciplinary responsibilities, requiredor permitted by Sections 3D(1) and 3D(2) are part of a judges judicial duties andshall be absolutely privileged, and no civil action predicated thereon may beinstituted against the judge. Commentary Appropriate action may include direct communication with the judge or lawyerwho has committed the violation, other direct action if available, and reporting theviolation to the appropriate authority or other agency or body. E. Disqualification. (1) Judges should disqualify themselves in proceedings in which theirimpartiality might be questioned by a reasonable person knowing all thecircumstances or for other grounds provided in the Code of Judicial Conduct orotherwise as provided by law, including but not limited to instances where: Commentary Under this rule, a judge should disqualify himself or herself whenever the judgesimpartiality might be questioned by a reasonable person knowing all the circumstances,regardless whether any of the specific rules in Section 3E(1) apply. A judge should disclose on the record information that the judge believes theparties or their lawyers might consider relevant to the question of disqualification, even ifthe judge believes there is no real basis for disqualification. 17
    • By decisional law, the rule of necessity may override the rule of disqualification.For example, a judge might be required to participate in judicial review of a judicialsalary statute, or might be the only judge available in a matter requiring immediatejudicial action, such as a hearing on probable cause or a temporary restraining order. Inthe latter case, the judge must disclose on the record the basis for possibledisqualification and use reasonable efforts to transfer the matter to another judge as soonas practicable. For procedures concerning motions for recusal and review by the Supreme Courtof denial of motions for recusal as to trial court judges, see M.R.C.P. 16A, URCCC 1.15,Unif. Chanc. R. 1.11, and M.R.A.P. 48B. For procedures concerning motions for recusalof judges of the Court of Appeals or Supreme Court justices, see M.R.A.P. 27(a). (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; Commentary A lawyer in a government agency does not ordinarily have an association withother lawyers employed by that agency within the meaning of Section 3E(1)(b); judgesformerly employed by a government agency, however, should disqualify themselves in aproceeding if the judges’ impartiality might reasonably be questioned because of suchassociation. (c) the judge knows that the judge, individually or as a fiduciary, or the judges spouse or member of the judge’s family residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (d) the judge or the judges spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding; 18
    • (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) is to the judges knowledge likely to be a material witness in the proceeding; Commentary The fact that a lawyer in a proceeding is affiliated with a law firm with which arelative of the judge is affiliated does not of itself disqualify the judge. Under appropriatecircumstances, the fact that “the judge’s impartiality might be questioned by areasonable person knowing all the circumstances “ under Section 3E(1), or that therelative is known by the judge to have an interest in the law firm that could be"substantially affected by the outcome of the proceeding" under Section 3E(1)(d)(iii) mayrequire the judges disqualification. (2) Recusal of Judges from Lawsuits Involving Major Donors. A party mayfile a motion to recuse a judge based on the fact that an opposing party or counsel ofrecord for that party is a major donor to the election campaign of such judge. Suchmotions will be filed, considered and subject to appellate review as provided forother motions for recusal. Commentary Section 3E(2) recognizes that political donations may but do not necessarily raiseconcerns about a judge’s impartiality. The filing, consideration and appellate review ofmotions for recusal based on such donations are subject to rules governing all recusalmotions. For procedures concerning motions for recusal and review by the SupremeCourt of denial of motions for recusal as to trial court judges, see M.R.C.P. 16A, URCCC1.15, Unif. Chanc. R. 1.11, and M.R.A.P. 48B. For procedures concerning motions forrecusal of judges of the Court of Appeals or Supreme Court justices, see M.R.A.P. 27(a).This provision does not appear in the ABA Model Code of Judicial Conduct; however, seeSection 3E(1)(e) of the ABA model. F. Remittal of Disqualification. A judge who may be disqualified by theterms of Section 3E may disclose on the record the basis of the judges possibledisqualification and may ask the parties and their lawyers to consider, out of thepresence of the judge, whether to waive disqualification. If following disclosure ofany basis for disqualification other than personal bias or prejudice concerning aparty, the parties and lawyers, without participation by the judge, all agree that the 19
    • judge should not be disqualified, and the judge is then willing to participate, thejudge may participate in the proceeding. The agreement shall be incorporated inthe record of the proceeding. Commentary A remittal procedure provides the parties an opportunity to proceed without delayif they wish to waive the possible disqualification. To assure that consideration of thequestion of remittal is made independently of the judge, a judge must not solicit, seek orhear comment on the remittal or waiver of the possible disqualification unless the lawyersjointly propose remittal after consultation as provided in the rule. A party may actthrough counsel if counsel represents on the record that the party has been consulted andconsents. As a practical matter, a judge may wish to have all parties and their lawyerssign the remittal agreement. CANON 4 A Judge Shall So Conduct the Judges Extra-judicial Activities as to Minimize the Risk of Conflict with Judicial Obligations A. Extra-judicial Activities in General. A judge shall conduct all of the judgesextra-judicial activities so that they do not: (1) cast reasonable doubt on the judges capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties. Commentary Complete separation of a judge from extra-judicial activities is neither possiblenor wise; a judge should not become isolated from the community in which the judgelives. Expressions of bias or prejudice by a judge, even outside the judges judicialactivities, may cast reasonable doubt on the judges capacity to act impartially as a judge.Expressions which may do so include jokes or other remarks demeaning individuals onthe basis of their race, gender, religion, national origin, disability, age, sexual orientationor socioeconomic status. See Section 2C and accompanying Commentary. 20
    • B. Avocational Activities. A judge may speak, write, lecture, teach andparticipate in other extra-judicial activities concerning the law, the legal system, theadministration of justice and non-legal subjects, subject to the requirements of thisCode. Commentary As a judicial officer and person specially learned in the law, a judge is in a uniqueposition to contribute to the improvement of the law, the legal system, and theadministration of justice, including revision of substantive and procedural law andimprovement of criminal and juvenile justice. To the extent that time permits, a judge isencouraged to do so, either independently or through a bar association, judicialconference or other organization dedicated to the improvement of the law. Judges mayparticipate in efforts to promote the fair administration of justice, the independence of thejudiciary and the integrity of the legal profession and may express opposition to thepersecution of lawyers and judges in other countries because of their professionalactivities. In this and other Sections of Canon 4, the phrase "subject to the requirements ofthis Code" is used, notably in connection with a judges governmental, civic or charitableactivities. This phrase is included to remind judges that the use of permissive language invarious Sections of the Code does not relieve a judge from the other requirements of theCode that apply to the specific conduct. C. Governmental, Civic or Charitable Activities. (1) A judge shall not make an appearance before, or otherwise consult with,an executive or legislative body or official or a public hearing except on mattersconcerning the law, the legal system or the administration of justice or except whenacting pro se in a matter involving the judge or the judges interests. Commentary See Section 2B regarding the obligation to avoid improper influence. (2) A judge shall not accept appointment to a governmental committee orcommission or other governmental position that is concerned with issues of fact orpolicy on matters other than the improvement of the law, the legal system or theadministration of justice. A judge may, however, represent a country, state orlocality on ceremonial occasions or in connection with historical, educational orcultural activities. Commentary 21
    • Section 4C(2) prohibits a judge from accepting any governmental position exceptone relating to the improvement of the law, legal system or administration of justice asauthorized by Section 4C(3). The appropriateness of accepting extra-judicial assignmentsmust be assessed in light of the demands on judicial resources created by crowdeddockets and the need to protect the courts from involvement in extra-judicial matters thatmay prove to be controversial. Judges should not accept governmental appointments thatare likely to interfere with the effectiveness and independence of the judiciary. Section 4C(2) does not govern a judges service in a non-governmental position.See Section 4C(3) permitting service by a judge with organizations devoted to theimprovement of the law, the legal system or the administration of justice and witheducational, religious, charitable, fraternal or civic organizations not conducted forprofit. For example, service on the board of a public educational institution, unless itwere a law school, would be prohibited under Section 4C(2), but service on the board ofa public law school or any private educational institution would generally be permittedunder Section 4C(3). (3) A judge may serve as an officer, director, trustee or non-legal advisor ofan organization or governmental agency devoted to the improvement of the law, thelegal system or the administration of justice or of an educational, religious,charitable, fraternal or civic organization not conducted for profit, subject to thefollowing limitations and the other requirements of this Code. Commentary Section 4C(3) does not apply to a judges service in a governmental positionunconnected with the improvement of the law, the legal system or the administration ofjustice. See Section 4C(2). See Commentary to Section 4B regarding use of the phrase "subject to thefollowing limitations and the other requirements of this Code." As an example of themeaning of the phrase, a judge permitted by Section 4C(3) to serve on the board of afraternal institution may be prohibited from such service by Sections 2C or 4A if theinstitution practices invidious discrimination or if service on the board otherwise castsreasonable doubt on the judges capacity to act impartially as a judge. Service by a judge on behalf of a civic or charitable organization may be governedby other provisions of Canon 4 in addition to Section 4C. For example, a judge isprohibited by Section 4G from serving as a legal advisor to a civic or charitableorganization. 22
    • (a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization: (i) will be engaged in proceedings that would ordinarily come before the judge, or (ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member. Commentary The changing nature of some organizations and of their relationship to the lawmakes it necessary for a judge regularly to reexamine the activities of each organizationwith which the judge is affiliated to determine if it is proper for the judge to continue theaffiliation. For example, in many jurisdictions charitable hospitals are now morefrequently in court than in the past. Similarly, the boards of some legal aid organizationsnow make policy decisions that may have political significance or imply commitment tocauses that may come before the courts for adjudication. (b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise: (i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organizations funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority; (ii) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice; (iii) shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 4C(3)(b)(i), if the membership solicitation is essentially a fund-raising mechanism; 23
    • (iv) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation. Commentary A judge may solicit membership or endorse or encourage membership efforts foran organization devoted to the improvement of the law, the legal system or theadministration of justice or a nonprofit educational, religious, charitable, fraternal orcivic organization as long as the solicitation cannot reasonably be perceived as coerciveand is not essentially a fund-raising mechanism. Solicitation of funds for an organizationand solicitation of memberships similarly involve the danger that the person solicited willfeel obligated to respond favorably to the solicitor if the solicitor is in a position ofinfluence or control. A judge must not engage in direct, individual solicitation of funds ormemberships in person, in writing or by telephone except in the following cases: 1) ajudge may solicit for funds or memberships other judges over whom the judge does notexercise supervisory or appellate authority, 2) a judge may solicit other persons formembership in the organizations described above if neither those persons nor personswith whom they are affiliated are likely ever to appear before the court on which thejudge serves and 3) a judge who is an officer of such an organization may send a generalmembership solicitation mailing over the judges signature. Use of an organization letterhead for fund-raising or membership solicitation doesnot violate Section 4C(3)(b) provided the letterhead lists only the judges name and officeor other position in the organization, and, if comparable designations are listed for otherpersons, the judges judicial designation. In addition, a judge must also make reasonableefforts to ensure that the judges staff, court officials and others subject to the judgesdirection and control do not solicit funds on the judges behalf for any purpose,charitable or otherwise. A judge must not be a speaker or guest of honor at an organizations fund- raisingevent, but mere attendance at such an event is permissible if otherwise consistent withthis Code. D. Financial Activities. (1) Judges should refrain from financial and business dealings that tend toreflect adversely on their impartiality, interfere with the proper performance oftheir judicial duties, exploit their judicial positions, or involve them in frequenttransactions with lawyers or persons likely to come before the court on which thejudges serve. 24
    • (2) Judges should manage their investments and other financial interests tominimize the number of cases in which they are disqualified. As soon as a judge cando so without serious financial detriment, the judge should divest himself or herselfof investments and other financial interests that might require frequentdisqualification. (3) Neither judges nor members of their families residing in their householdsshould accept a gift, bequest, favor, or loan from anyone reflecting the expectationof judicial favor. (4) Non-public information acquired by a judge in the judge’s judicialcapacity should not be used or disclosed by the judge in financial dealings or for anyother purpose not related to the judge’s judicial duties. Commentary The prohibition of Section 4D(3), limiting gifts which judges and their familiesmay accept, does not prohibit gifts incident to public testimonials to the judges, bookssupplied by publishers on a complimentary basis for official use, and invitations to judgesand their spouses to attend bar-related functions or activities devoted to theimprovements of the law, the legal system or the administration of justice. Judges andtheir families residing in their households may accept ordinary social hospitality, gifts,bequests, favors and loans from relatives, wedding and engagement gifts, loans fromlending institutions in their regular course of business on the same terms generallyavailable to persons who are not judges, and scholarships and fellowships awarded onthe same terms applied to other applicants. Judges and members of their familiesresiding in their households may accept any other gifts, bequests, favors and loans only ifthe donor is not a party or likely to come before them, and the gifts are reported as maybe required by law. Gifts, bequests, favors and loans are to be reported as may berequired by the Ethics in Government statutes. See Miss. Code Ann. § 25-4-27. Section4D differs from the provisions of the ABA model and retains in large part the provisionsof the Mississippi Code of Judicial Conduct as it existed prior to the current revision.Although this section does not prohibit holding specific extra-judicial positions orengaging in other specific business activities, it does require that judges refrain frombusiness activities which might reflect adversely on their impartiality and that theymanage their business activities so as to minimize the need for recusal. Regardingrecusals and disqualification, see Section 3E. E. Fiduciary Activities. 25
    • (1) A judge shall not serve as executor, administrator or other personalrepresentative, trustee, guardian, attorney in fact or other fiduciary except for theestate, trust or person of a member of the judges family, and then only if suchservice will not interfere with the proper performance of judicial duties. (2) A judge shall not serve as a fiduciary if it is likely that the judge as afiduciary will be engaged in proceedings that would ordinarily come before thejudge, or if the estate, trust or ward becomes involved in adversary proceedings inthe court on which the judge serves or one under its appellate jurisdiction. (3) The same restrictions on financial activities that apply to a judgepersonally also apply to the judge while acting in a fiduciary capacity. Commentary The Time for Compliance provision of this Code (Application, Section E)postpones the time for compliance with certain provisions of this Section in some cases. The restrictions imposed by this Canon may conflict with the judges obligation asa fiduciary. For example, a judge should resign as trustee if detriment to the trust wouldresult from divestiture of holdings, the retention of which would place the judge inviolation of Section 4D(3). F. Service as Arbitrator or Mediator. A judge shall not act as an arbitratoror mediator or otherwise perform judicial functions in a private capacity unlessexpressly authorized by law. Commentary Section 4F does not prohibit a judge from participating in arbitration, mediationor settlement conferences performed as part of judicial duties. G. Practice of Law. (1) A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, 26
    • give legal advice to and draft or review documents for a member of the judges family. (2) A judge must also make reasonable efforts to ensure that the judges staff, court officials and others subject to the judges direction and control do not practice law in a representative capacity. Notwithstanding this prohibition, staff, court officials and others subject to the judge’s direction may act pro se, and those otherwise licensed to practice law may, without compensation, give legal advice to and draft or review documents for members of their families. Commentary This prohibition refers to the practice of law in a representative capacity and not in a pro se capacity. Judges may act for themselves in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies. However, in so doing, a judge must not abuse the prestige of office to advance the interests of the judge or the judges family. See Section 2(B). Certain officials and others are exempt pursuant to Section D of the Application Section of the Code of Judicial Conduct. The Code allows a judge to give legal advice to and draft legal documents for members of the judges family, so long as the judge receives no compensation. A judge must not, however, act as an advocate or negotiator for a member of the judges family in a legal matter. This provision does not imply any privilege to practice law to those judges, staff members, court officials or others subject to the judge’s control and direction who are not licensed to practice law. Amended May 31, 2007. H. Compensation, Reimbursement and Reporting. (1) Compensation and Reimbursement. A judge may receive compensationand reimbursement of expenses for the extra-judicial activities permitted by thisCode, if the source of such payments does not give the appearance of influencing thejudges performance of judicial duties or otherwise give the appearance ofimpropriety. 27
    • (a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity. (b) Expense reimbursement shall be limited to the actual cost of travel, food and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judges spouse or guest. Any payment in excess of such an amount is compensation. (2) Public Reports. A judge shall comply with those provisions of lawrequiring the reporting of economic interest to the Mississippi Ethics Commission. Commentary See Commentary to Section 4D(4) regarding reporting of gifts, bequests and loans. See also Miss. Code Ann. §§ 25-4-25 through 29 regarding the filing of statements ofeconomic interest with the Mississippi Ethics Commission. The ABA model suggests thatsince Canon 6 in the 1972 model code was drafted, reporting requirements in mostjurisdictions have become much more comprehensive, and that canons regulatingreporting of income should be tailored to the requirements of individual jurisdictions.Subsection 4H 2), therefore, simply requires compliance with the statutory provisions forreporting to the Ethics Commission. The Code does not prohibit a judge from accepting honoraria or speaking feesprovided that the compensation is reasonable and commensurate with the task performed.A judge should ensure, however, that no conflicts are created by the arrangement. Ajudge must not appear to trade on the judicial position for personal advantage. Norshould a judge spend significant time away from court duties to meet speaking or writingcommitments for compensation. In addition, the source of the payment must not raise anyquestion of undue influence or the judges ability or willingness to be impartial. I. Disclosure of a judges income, debts, investments or other assets isrequired only to the extent provided in this Canon and in Sections 3E and 3F, or asotherwise required by law. Commentary Section 3E requires judges to disqualify themselves in any proceedings in whichthey have economic interests. See "economic interest" as explained in the TerminologySection. Section 4D requires judges to refrain from engaging in business and fromfinancial activities that might interfere with the impartial performance of judicial duties;Section 4H requires judges to report compensation they received for activities outside 28
    • judicial office. Judges have the rights of any other citizens, including the right to privacyof the judges’ financial affairs, except to the extent that limitations established by law arerequired to safeguard the proper performance of the judges’ duties. CANON 5 A Judge or Judicial Candidate Shall Refrain From Inappropriate Political Activity A. All Judges and Candidates (1) Except as authorized in Sections 5B(2), 5C(1) and 5C(2), a judge or acandidate for election to judicial office shall not: (a) act as a leader or hold an office in a political organization; (b) make speeches for a political organization or candidate or publicly endorse a candidate for public office; (c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other political functions. Commentary A judge or candidate for judicial office retains the right to participate in thepolitical process as a voter. Where false information concerning a judicial candidate is made public, a judgeor another judicial candidate having knowledge of the facts is not prohibited by Section5A(1) from making the facts public. Section 5A(1)(a) does not prohibit a candidate for elective judicial office fromretaining during candidacy a public office such as county prosecutor, which is not "anoffice in a political organization." Section 5A(1)(b) does not prohibit judges or judicial candidate from privatelyexpressing their views on judicial candidates or other candidates for public office. A candidate does not publicly endorse another candidate for public office byhaving that candidates name on the same ticket. However, Sections 23-15-973 et seq., 29
    • Miss. Code Ann. (1972) impose restrictions on candidates and political organizations toassure the non-partisan quality of judicial elections for Supreme Court, Court of Appeals,Chancery Court, Circuit Court and County Court justices and judges. (2) A judge shall resign from judicial office upon becoming a candidate eitherin a party primary or in a general election for a non-judicial office, except that thejudge may continue to hold judicial office while being a candidate for election to orserving as a delegate in a state constitutional convention if the judge is otherwisepermitted by law to do so. (3) A candidate for a judicial office: (a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall encourage members of the candidates family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate; Commentary Although judicial candidates must encourage members of their families to adhereto the same standards of political conduct in support of the candidates that apply to thecandidates, family members are free to participate in other political activity. Familymembers are not prohibited by this subsection from serving on the candidates’ campaigncommittees and otherwise actively involving themselves in the campaigns. (b) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidates direction and control, from doing on the candidates behalf what the candidate is prohibited from doing under the Sections of this Canon; (c) except to the extent permitted by Section 5C(2), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon; (d) shall not: (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; 30
    • (ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or (iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent; Commentary Section 5A(3)(d)(i) prohibits a candidate for judicial office makingpledges or promises to decide cases in any particular way and statementscommitting the candidate with respect to cases, controversies or issues likelyto come before the court on which the candidate will serve if elected. Thissection does not prohibit or limit a candidate’s freedom to announce thecandidate’s current views on issues so long as the announcement does not bindthe candidate to maintain those views after election. See Republican Party ofMinn. v. White, 536 U.S. 765 (2002) (declaring unconstitutional restrictionsin the Minnesota Code of Judicial Conduct on the announcement of views onlegal and political issues.) The comparable offending language, referred toas the “announce clause”, formerly appeared in our Code of JudicialConduct, but was removed with the revision of the code on April 4, 2002.This Section does not prohibit an incumbent judge from making privatestatements to other judges or court personnel in the performance of judicialduties. Section 5A(3)(d)(ii) prohibits a candidate for judicial office makingstatements that appear to commit the candidate regarding cases, controversiesor issues likely to come before the court. As a corollary, a candidate shouldemphasize in any public statement the candidates duty to uphold the lawregardless of the candidate’s personal views. See also Section 3B(9), thegeneral rule on public comment by judges. Section 5A(3)(d) does not prohibita candidate from making pledges and promises respecting improvements incourt administration. Section 5A(3)(d) applies to any statement made in the process ofsecuring judicial office, such as statements to commissions charged withjudicial selection and tenure and legislative bodies confirming appointment.See also Rule 8.2 of the Mississippi Rules of Professional Conduct. Phrasessuch as “tough on crime,” “soft on crime,” “pro-business,” “anti-business,”“pro-life,” “pro-choice,” or in any similar characterizations suggestingpersonal views on issues which may come before the courts, when applied tothe candidate or an opponent, may be considered to be prohibited by Section 31
    • 5A(3)(d) only when used in a context which contain a pledge or promise to decide cases in a particular manner. [Commentary amended effective February 26, 2004.] (e) may respond to personal attacks or attacks on the candidates record as long as the response does not violate Section 5A(3)(d). B. Candidates Seeking Appointment to Judicial or Other Governmental Office. (1) Candidates for appointment to judicial office or judges seeking othergovernmental office shall not solicit or accept funds, personally or through a committeeor otherwise, to support their candidacies. (2) A candidate for appointment to judicial office or a judge seeking othergovernmental office shall not engage in any political activity to secure the appointmentexcept that: (a) such persons may: (i) communicate with the appointing authority, including any selection or nominating commission or other agency designated to screen candidates; (ii) seek support or endorsement for the appointment from organizations that regularly make recommendations for reappointment or appointment to the office, and from individuals to the extent requested or required by those specified in Section 5B(2)(a); and (iii) provide to those specified in Sections 5B(2)(a)(i) and 5B(2)(a)(ii) information as to the candidate’s qualifications for the office; (b) a non-judge candidate for appointment to judicial office may, in addition, unless otherwise prohibited by law: (i) retain an office in a political organization, (ii) attend political gatherings, and 32
    • (iii) continue to pay ordinary assessments and ordinary contributions to a political organization or candidate and purchase tickets for political party dinners or other political functions. Commentary Section 5B(2) provides a limited exception to the restrictions imposed by Sections5A(1) and 5D. Under Section 5B(2), candidates seeking reappointment to the same judicialoffice or appointment to another judicial office or other governmental office may apply forthe appointment and seek appropriate support. Although under Section 5B(2) non-judge candidates seeking appointment to judicialoffice are permitted during candidacy to retain office in a political organization, attendpolitical gatherings and pay ordinary dues and assessments, they remain subject to otherprovisions of this Code during candidacy. See Sections 5B(1), 5B(2)(a), 5E and ApplicationSection. C. Judges and Candidates Subject to Public Election. (1) Judges holding an office filled by public election between competingcandidates, or candidates for such office, may, only insofar as permitted by law, attendpolitical gatherings, speak to such gatherings in their own behalf while candidates forelection or re-election, identify themselves as members of political parties, andcontribute to political parties or organizations. Commentary Section 5C recognizes the distinction between appropriate political activities byjudges and candidates subject to non-partisan election and those subject to partisanelections. The language of Section 5C differs from that of corresponding provisions in theABA Model Code, Sections C(1)(a)(ii) and (iii), in recognition of Mississippi’s non-partisanelections for certain positions. Furthermore, Section 23-15-973 et seq., Miss. Code Ann.(1972) imposes restrictions on candidates and political organizations to assure the non-partisan quality of judicial elections for Supreme Court, Court of Appeals, Chancery Court,Circuit Court and County Court justices and judges. Section 5C(1) permits judges subjectto election at any time to be involved in limited political activity. Section 5D, applicablesolely to incumbent judges, would otherwise bar this activity. Section 5C(1)(b)(iv) of theABA Mode Code has not been incorporated. Attending or speaking at a political partygathering in the judge’s own behalf while a candidate does not constitute alignments oraffiliation with the party sponsoring the gathering. 33
    • (2) A candidate shall not personally solicit or accept campaign contributions orpersonally solicit publicly stated support. A candidate may, however, establishcommittees of responsible persons to conduct campaigns for the candidate throughmedia advertisements, brochures, mailings, candidate forums and other means notprohibited by law. Such committees may solicit and accept reasonable campaigncontributions, manage the expenditure of funds for the candidates campaign andobtain public statements of support for the candidacy. Such committees are notprohibited from soliciting and accepting reasonable campaign contributions and publicsupport from lawyers. A candidates committees shall not solicit or acceptcontributions and public support for the candidates campaign earlier than 60 daysbefore the qualifying deadline or later than 120 days after the last election in which thecandidate participates during the election year. A candidate shall not use or permit theuse of campaign contributions for the private benefit of the candidate or others. Commentary There is legitimate concern about a judges impartiality when parties whose interestsmay come before a judge, or the lawyers who represent such parties, are known to havemade contributions to the election campaigns of judicial candidates. Section 5C(2)recognizes that in many jurisdictions judicial candidates must raise funds to support theircandidacies for election to judicial office. It therefore permits a candidate, other than acandidate for appointment, to establish campaign committees to solicit and accept publicsupport and financial contributions. Though not prohibited, campaign contributions of whicha judge has knowledge, made by lawyers or others who appear before the judge, may, byvirtue of their size or source, raise questions about a judges impartiality and be cause fordisqualification as provided under Section 3E. Campaign committees established under Section 5C(2) should manage campaignfinances responsibly, avoiding deficits that might necessitate post-election fund-raising, tothe extent possible. Such committees must at all times comply with applicable statutoryprovisions governing their conduct. Section 5C(2) does not prohibit a candidate from initiating an evaluation by a judicialselection commission or bar association, or, subject to the requirements of this Code, fromresponding to a request for information from any organization. (3) Candidates shall instruct their campaign committees at the start of thecampaign not to accept campaign contributions for any election that exceed thoselimitations placed on contributions by individuals, political action committees andcorporations by law. 34
    • Commentary The ABA Model Code of Judicial Conduct is drafted for the insertion of specific limitson contributions for judicial campaigns. As adopted for Mississippi, this section simplymakes references to limits established by the Legislature by statutes which limit contributionsto $5,000 in appellate court races, to $2,500 in chancery, circuit or county court races, andgenerally limits corporate contributions to $1,000. See Miss. Code Ann. § 23-15-1021 (2000Supp.) (judicial races) and Miss. Code Ann. § 97-13-15 (1999 Supp.) (corporatecontributions.) (4) A candidate and the candidate’s committee shall timely comply with allprovisions of law requiring the disclosure and reporting of contributions, loans andextensions of credit. Commentary Section 5C(4) of the ABA Model Code of Judicial Conduct which makes specialprovision for reporting campaign contributions is replaced by the foregoing Section 5C(4)which requires compliance with all provisions of law. See Miss. Code Ann. §§ 23-15-805and 23-15-1023 (2000 Supp.) The ABA Model Code includes a Section 5C(5) which approves, under somecircumstances, a judicial candidate’s name being listed on election materials along with thenames of other candidates. This has not been incorporated in the revision of the Mississippicanons. D. Incumbent Judges. A judge shall not engage in any political activity except asauthorized under any other Section of this Code, on behalf of measures to improve thelaw, the legal system or the administration of justice, or as expressly authorized by law. Commentary Neither Section 5D nor any other section of the Code prohibits a judge in the exerciseof administrative functions from engaging in planning and other official activities withmembers of the executive and legislative branches of government. With respect to a judgesactivity on behalf of measures to improve the law, the legal system and the administrationof justice, see Commentary to Section 4B and Section 4C(1) and its Commentary. Sections 5A through 5D limit the participation of judges and candidates in politicalactivities. Section 5D expressly prohibits judges from engaging “in any political activity”not expressly authorized by the Code of Judicial Conduct or by law. These provisions do notprohibit voting in party primaries and general elections, which is not “political activity” asthe phrase is used in Canon 5. The statute governing non-partisan judicial elections, while 35
    • prohibiting candidates for judicial offices covered by the statute from campaigning orqualifying for the offices based on party affiliation, does not preclude the candidates fromvoting in party primaries. Miss. Code Ann. § 23-25-973 (Supp. 2000.) E. Applicability. Canon 5 generally applies to all incumbent judges and judicialcandidates. Successful candidates, whether or not incumbents, are subject to judicialdiscipline for their campaign conduct; unsuccessful candidates who are lawyers aresubject to lawyer discipline for their campaign conduct. Lawyers who are candidatesfor judicial office are subject to Rule 8.2(b) of the Mississippi Rules of ProfessionalConduct. However, the provisions of Canon 5F below shall not apply to elections forthe offices of justice court judge and municipal judge. F. Special Committee--Proceedings and Authority. In every year in which anelection is held for Supreme Court, Court of Appeals, chancery court, circuit court orcounty court judge in this state and at such other times as the Supreme Court maydeem appropriate, a Special Committee on Judicial Election Campaign Intervention("Special Committee") shall be created whose responsibility shall be to issue advisoryopinions and to deal expeditiously with allegations of ethical misconduct in campaignsfor judicial office. The committee shall consist of five (5) members. The Chief Justiceof the Supreme Court, the Governor, the Lieutenant Governor, the Speaker of theHouse of Representatives of the Mississippi Legislature and the chair of theCommission on Judicial Performance (Commission) shall each appoint one member.Those appointed by the Chief Justice, the Governor and the chair of the Commissionshall be attorneys licensed to practice in the state. No person shall be appointed toserve as a member of a Special Committee for the year in which such person is acandidate for judicial office. Should the Chief Justice expect to be a candidate forjudicial office during the year for which a Special Committee is to be appointed theChief Justice shall declare such expectation, and in such event, the appointment whichotherwise would have been made by the Chief Justice shall be made by the next seniorjustice of the Supreme Court not seeking judicial office in such year. Likewise, shouldthe Governor, Lieutenant Governor, Speaker of the House of Representatives or chairof the Commission expect to seek judicial office during such year, that official shalldeclare such expectation, and the appointment which otherwise would have been madeby such appointing authority shall be made, respectively: by the Lieutenant Governorif the Governor expects to seek such an office; by the President Pro Tem of the Senateif the Lieutenant Governor expects to seek such an office; by the Speaker Pro Tem ofthe House of Representatives if the Speaker expects to seek such an office; and by thevice-chair of the Commission if the chair expects to seek such an office. Any actiontaken by the Special Committee shall require a majority vote. Each Special Committeeshall be appointed no later March 1 in the year of their service, and it shall continuein existence for ninety (90) days following such judicial elections or for so longthereafter as is necessary to consider matters submitted to it within such time. TheCommission shall provide administrative support to the Special Committee. Should 36
    • any appointing authority fail to make an appointment, three members shall constitutea sufficient number to conduct the business of the Special Committee. The objective ofthe Special Committee shall be to alleviate unethical and unfair campaign practices injudicial elections, and to that end, the Special Committee shall have the followingauthority: (1) Within ten (10) days of the effective date of this rule or within the ten (10)days after formally announcing and/or officially qualifying for election or re-electionto any judicial office in this state, whichever is later, all candidates, includingincumbent judges, shall forward written notice of such candidacy, together with anappropriate mailing address and telephone number, to the Commission. Upon receiptof such notice, the Special Committee shall, through the Commission, cause to bedistributed to all such candidates by certified mail-return receipt requested copies ofthe following: Canon 5 of the Code of Judicial Conduct; summaries of any previousopinions issued by the Special Committee, Special Committees organized for priorelections, or the Supreme Court of Mississippi, which relate in any way to campaignconduct and practices; and a form acknowledgment, which each candidate shallpromptly return to the Commission and therein certify that the candidate has read andunderstands the materials forwarded and agrees to be bound by such standards duringthe course of the campaign. A failure to comply with this section shall constitute a perse violation of this Section authorizing the Committee to immediately publicize suchfailure to all candidates in such race and to all appropriate media outlets. In the eventof a question relating to conduct during a judicial campaign, judicial candidates, theircampaign organizations, and all independent persons, committees and organizations areencouraged to seek an opinion from the Special Committee before such conduct occurs. (2) Opinions as to the propriety of any act or conduct by a judicial candidate, acandidates campaign organization or an independent person, committee ororganization conducting activities which impact on the election and as to theconstruction or application of Canon 5 may be provided by the Special Committee uponrequest from any judicial candidate, campaign organization or an independent person,committee or organization. If the Special Committee finds the question of limitedsignificance, it may provide an informal opinion to the questioner. If, however, it findsthe questions of sufficient general interest and importance, it may render a formalopinion, in which event it shall cause the opinion to be published in complete orsynopsis form. Furthermore, the Special Committee may issue formal opinions on itsown motion under such circumstances, as it finds appropriate. The Special Committeemay decline to issue an opinion when a majority of the Special Committee membersdetermine that it would be inadvisable to respond to the request and to have soconfirmed in writing their reasoning to the person who requested the opinion. Allformal opinions of the Special Committee shall be filed with the Supreme Court andshall be a matter of public record except for the names of the persons involved, whichshall be excised. Both formal and informal opinions shall be advisory only; however, 37
    • the Commission on Judicial Performance, the Supreme Court and all other regulatoryand enforcement authorities shall consider reliance by a judicial candidate upon theSpecial Committee opinion in any disciplinary or enforcement proceeding. (3) Upon receipt of information facially indicating a violation by a judicialcandidate of any provision of Canon 5 during the course of a campaign for judicialoffice, or indicating actions by an independent person, committee or organization whichare contrary to the limitations placed upon candidates by Canon 5, the Commissionstaff shall immediately forward a copy of the same by e-mail or facsimile, if available,and U.S. mail to the Special Committee members and said Committee shall: (a) seek, from the informing party and/or the subject of the information, such further information on the allegations as it deems necessary; (b) conduct such additional investigation as the Committee may deem necessary; (c) determine whether the allegations warrant speedy intervention and, if so, immediately issue a confidential cease-and-desist request to the candidate and/or organization or independent committee or organization believed to be engaging in unethical and/or unfair campaign practices. If the Committee determines that the unethical and/or unfair campaign practice is of a serious and damaging nature, the Committee may, in its discretion, disregard the issuance of a cease-and-desist request and immediately take action authorized by the provisions of paragraph (3)(d)(i) and (ii), hereafter described. If the allegations of the complaint do not warrant intervention, the Committee shall dismiss the same and so notify the complaining party. (d) If a cease-and-desist request is disregarded or if the unethical or unfair campaign practices otherwise continue, the Committee is further authorized: (i) to immediately release to all appropriate media outlets, as well as the reporting party and the person and/or organization against whom the information is submitted, a public statement setting out the violations believed to exist, or, in the case of independent persons, committees or organizations, the actions by an independent person, committee or organization which are contrary to the limitations placed upon candidates by Canon 5. In the event that the violations or actions have continued after the 38
    • imposition of the cease and desist request, the media release shall also include a statement that the candidate and/or organization or independent person, committee or organization has failed to honor the cease-and-desist request, and (ii) to refer the matter to the Commission on Judicial Performance or to any other appropriate regulatory or enforcement authority for such action as may be appropriate under the applicable rules. (4) All proceedings under this Rule shall be informal and non-adversarial, andthe Special Committee shall act on all requests within ten (10) days of receipt, eitherin person, by facsimile, by U.S. mail, or by telephone. In any event, the SpecialCommittee shall act as soon as possible taking into consideration the exigencies of thecircumstances and, as to requests received during the last ten (10) days of the campaign,shall act within thirty-six (36) hours. (5) Except as herein specifically authorized, the proceedings of the SpecialCommittee shall remain confidential, and in no event shall the Special Committee havethe authority to institute disciplinary action against any candidate for judicial office,which power is specifically reserved to the Commission on Judicial Performance underapplicable rules. (6) The Committee shall after conclusion of the election distribute to theCommission on Judicial Performance copies of all information and all proceedingsrelating thereto. (7) This Canon 5F shall apply to all candidates for judicial offices of theSupreme Court, Court of Appeals, chancery courts, circuit courts and county courts,be they incumbent judges or not, and to the families and campaign/solicitationcommittees of all such candidates. Persons who seek to have their name placed on theballot as candidates for such judicial offices and the judicial candidates’ electioncommittee chairpersons, or the chairperson’s designee, shall no later than 20 days afterthe qualifying date for candidates in the year in which they seek to run complete atwo-hour course on campaign practices, finance, and ethics sponsored and approvedby the Committee. Within ten days of completing the course, candidates shall certifyto Committee that they have completed the course and understand fully therequirements of Mississippi law and the Code of Judicial Conduct concerning campaignpractices for judicial office. Candidates without opposition are exempt from attendingthe course. Commentary 39
    • This Section 5F does not appear in the ABA Model Code and was added with theadoption of this Section 5. Similar provisions have been adopted for South Dakota andGeorgia. See South Dakota Rules of Commission on Judicial Qualifications, Rule IV andRules of Georgia Judicial Qualification Commission, Rule 27. In Weaver v. Bonner, 114 F.Supp. 2d 1337 (N.D. Ga. 2000), a constitutional challenge to the Georgia rule was rejected,the court saying the government may “participate in the marketplace of ideas” and“contribute its own views to those of the other speakers. Weaver at 1345, quoting Muir v.Ala. Educ. Television Comm’n, 688 F. 2d 1033, 1037 (5 th Cir. 1982). In Weaver, the courtalso specifically found the procedures adequate to satisfy due process requirement. Provision is made for the Special Committee to issue opinions to judicial candidates.Ordinarily, absent extraordinary circumstances or statutory authority to the contrary, whena judge or candidate, relying on the opinion of the Special Committee, acts in accordancewith the opinion and the opinion is based on a full disclosure of facts and circumstances, thejudge or candidate will not be subject to disciplinary or enforcement action or liability. APPLICATION OF THE CODE OF JUDICIAL CONDUCT A. Parties Affected. Anyone, whether or not a lawyer, who is an officer of ajudicial system and who performs judicial functions, including an officer such as amagistrate, court commissioner, special master or referee, is a judge within the meaningof this Code. All judges shall comply with this Code except as provided below. B. Part-time Judge. A part time judge shall not be subject to the restrictions andlimitations of Sections 4C, 4D(2), 4F, and 4G, except as regards practice in the court inwhich the part-time judge serves [prohibition on practice of law], and 4H(1). C. Special Judge. A special judge shall not, except while serving as a judge, besubject to the restrictions and limitations of Sections 4A. A special judge shall not, atany time be subject to the restrictions and limitations of Sections, 4B, 4D, 4E, 4F, 4G,and 4H. A special judge, except while serving as a special judge or while a candidatefor judicial office, shall not be subject to the restrictions of Canon 5. D. Magistrates, court commissioners, special masters and referees shall not atany time be subject to the restrictions and limitations of Sections 4A, 4B, 4C(1), 4C(2)4D, 4E, 4F, 4G, and 4H. Magistrates, court commissioners, special masters andreferees, except while a candidate for judicial office, shall not be subject to therestrictions of Canon 5. E. Time for Compliance. A person to whom this Code becomes applicable shallcomply immediately with all provisions of this Code except Sections 4D(1), 4D(2) and4E and shall comply with those Sections as soon as reasonably possible and shall do soin any event within the period of one year. 40
    • F. Effective Date. The separate provisions of this Code shall govern acts, eventsand conduct of those subject to those provisions from and after the effective date of theadoption of each such provision. Acts, events and conduct which occur prior to theadoption of each provision shall be governed by the provisions of the Code effective atthe time of such acts, events and conduct. Commentary The ABA Model Code of Judicial Conduct provides for several non-standardcategories of judges who perform duties on a limited basis, which differ from thoserecognized for Mississippi by this Applications Section. If serving as a fiduciary whenselected as judge, a new judge may, notwithstanding the prohibitions in Section 4E, continueto serve as a fiduciary but only for that period of time necessary to avoid serious adverseconsequences to the beneficiary of the fiduciary relationship and in no event longer than oneyear. Similarly, if engaged at the time of judicial selection in a business activity, a new judgemay, notwithstanding the prohibitions in Section 4D(2), continue in that activity for areasonable period but in no event longer than one year.
    • CM/ECF LIVE - U.S. District Court: Mississippi Southern District U.S. District Court Southern District of Mississippi (Jackson) CIVIL DOCKET FOR CASE #: 3:12-cv-00342-TSL-MTP Newsome v. Page Kruger & Holland, P.A. et al Date Filed: 05/15/2012 Assigned to: District Judge Tom S. Lee Jury Demand: Plaintiff Referred to: Magistrate Judge Michael T. Parker Nature of Suit: 440 Civil Rights: Other Demand: $5,000,000 Jurisdiction: Federal Question Cause: 42:1981 Civil Rights Plaintiff Vogel Denise Newsome represented by Vogel Denise Newsome Post Office Box 14731 Cincinnati, OH 45250 601/885-9536 PRO SE V. Defendant Page Kruger & Holland, P.A. represented by William T. Siler , Jr. A Mississippi Corporation PHELPS DUNBAR, LLP - Jackson P. O. Box 16114 Jackson, MS 39236-6114 601/352-2300 Fax: 601/360-9777 Email: silert@phelps.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason T. Marsh PHELPS DUNBAR, LLP - Gulfport NorthCourt One, Suite 300 2304 19th Street Gulfport, MS 39501 228/679-1130 Fax: 228-679-1131 Email: marshj@phelps.com ATTORNEY TO BE NOTICED Defendant Thomas Y. Page represented by William T. Siler , Jr. In his official and Individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason T. Marsh (See above for address) EXHIBIT "6"1 of 4 7/24/2012 9:59 AM
    • CM/ECF LIVE - U.S. District Court: Mississippi Southern District ATTORNEY TO BE NOTICED Defendant Louis G. Baine, III represented by William T. Siler , Jr. In his official and Individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason T. Marsh (See above for address) ATTORNEY TO BE NOTICED Defendant Linda Thomas represented by William T. Siler , Jr. In her official and Individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason T. Marsh (See above for address) ATTORNEY TO BE NOTICED Defendant Does 1-100 In their official and individual capacities Date Filed # Docket Text 05/15/2012 1 COMPLAINT with JURY DEMAND against Louis G. Baine, III, Does 1-100, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Filing fee $350.00 receipt number 34643015824), filed by Vogel Denise Newsome. (Attachments: # 1 Exhibit I- Registered Agent Information, # 2 Exhibit II-Email from Susan Carr # 3 Exhibit III-Email from Thomas Page # 4 Exhibit IV-Hinds County Court Complaint, # 5 Exhibit V-Conflic Check # 6 Exhibit VI-Memoralizing # 7 Exhibit VII-Motion # 8-Exhibit VIII-Indictment # 9 Exhibit IX-Impeachment # 10 Exhibit X-List of Judges/Justices # 11 Exhibit XI-Recusal Order # 12 Exhibit XII-Noblin Information # 13 Exhibit XIII-Phone Director # 14 Exhibit XIV-Duff Information # 15 Exhibit XV-Rawls Information # 16 Exhibit XVI-Vlanton Information # 17 Exhibit XVII-Leggitt Information # 18 Exhibit XVIII- Government Positions # 19 Exhibit XIX-MS Defense Lawyers Assoc. # 20 Exhibit XX-Computer Skills, # 21 Exhibit XXI- Google, # 22 Exhibit XXII-Website Information # 23 Exhibit XXIII - Docket Sheet # 24 Exhibit XXIV - Emergency Complaint #25 XXV- Letters(SEC) Modified on 5/15/2012 (SEC). (Attachment 23 replaced on 5/21/2012) (SEC). (Attachment 24 replaced on 5/21/2012) (SEC). (Additional attachment(s) added on 5/23/2012: # 25 Exhibit 10 part-1 photos email copies, # 26 Exhibit 10 PART 2 photos and email copies, # 27 Exhibit 10 -PART 3 photo and email copies) (SEC). (Additional attachment(s) added on 5/23/2012: # 29 Exhibit 10 Part 4 photos and email copies, # 30 Exhibit 10 Part 5 photos and email copies, # 31 Exhibit 10 Part 6 photos and email copies) (SEC). Modified on 5/23/2012 (SEC). (Entered: 05/15/2012)2 of 4 7/24/2012 9:59 AM
    • CM/ECF LIVE - U.S. District Court: Mississippi Southern District 05/15/2012 2 MOTION Conflict of Interest Information by Vogel Denise Newsome (Attachments: # 1 Exhibit 1 Docket Sheet, # 2 Exhibit 2 Recusal Order, # 3 Exhibit 3 Baker Donelson ties, # 4 Exhibit 4 Baker Donelson listing, # 5 Exhibit 5 Leggitt Information, # 6 Exhibit 6 PKH Phone Directory)(SEC) (Entered: 05/17/2012) 05/17/2012 3 EXHIBIT-7 Judge G Thomas Porteous (IMPEACHMENT Article(s) by Vogel Denise Newsome Related document: 2 MOTION Conflict of Interest Information filed by Plaintiff Vogel Denise Newsome (Attachments: # 1 Exhibit 8 Filing Fee-FINAL, # 2 Exhibit 9 Senator Rand Paul mailing, # 3 Exhibit 11 President Barack Obama)(SEC) (Entered: 05/17/2012) 05/17/2012 4 EXHIBIT-12 by Vogel Denise Newsome Related document: 2 MOTION Conflict of Interest Information filed by Plaintiff Vogel Denise Newsome (Attachments: # 1 Exhibit 13 Green Card)(SEC) (Entered: 05/17/2012) 07/05/2012 5 MOTION to Dismiss by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Attachments: # 1 Exhibit A, May 16, 2006 E-mail)(Marsh, Jason) (Entered: 07/05/2012) 07/05/2012 6 MEMORANDUM in Support re 5 MOTION to Dismiss filed by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Attachments: # 1 unpublished court opinion: 2008 WL 4450295, # 2 unpublished court opinion: 310 FedAppx 623, # 3 unpublished court opinion: 2010 WL 3377626, # 4 unpublished court opinion: 2010 WL 3937942, # 5 unpublished court opinion: 1996 WL 33370660, # 6 unpublished court opinion: 2010 WL 1709980, # 7 unpublished court opinion: 2007 WL 2746786, # 8 unpublished court opinion: 116 FedAppx 19, # 9 unpublished court opinion: 150 FedAppx 286, # 10 unpublished court opinion: 2008 WL 5132047, # 11 unpublished court opinion: 2010 WL 4617147, # 12 unpublished court opinion: 2007 WL 295220, # 13 unpublished court opinion: 261 FedAppx 761)(Marsh, Jason) (Entered: 07/05/2012) 07/05/2012 7 NOTICE of Appearance by Jason T. Marsh on behalf of Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Marsh, Jason) (Entered: 07/05/2012) 07/05/2012 8 NOTICE of Appearance by William T. Siler, Jr on behalf of Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Siler, William) (Entered: 07/05/2012) 07/06/2012 DOCKET ANNOTATION as to #6: L.U.Civ.R. 7 requires that all supporting exhibits document be denominated by an exhibit letter or number and a meaningful description. Attorney is advised to follow this rule in future filings. (SEC) (Entered: 07/06/2012) 07/16/2012 9 MOTION to Stay Proceedings Pending A Ruling On Defendants Motion To Dismiss by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Attachments: # 1 Exhibit A, Court Order)(Marsh, Jason) (Entered: 07/16/2012) 07/16/2012 10 MEMORANDUM in Support re 9 MOTION to Stay Proceedings Pending A Ruling On Defendants Motion To Dismiss filed by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Attachments: # 1 Exhibit 1, unpublished court opinion: 2008 WL 4216108)(Marsh, Jason) (Entered: 07/16/2012) 07/17/2012 11 Corporate Disclosure Statement by Page Kruger & Holland, P.A. identifying Corporate Parent Page Kruger & Holland, P.A. for Page Kruger & Holland, P.A.. (Marsh, Jason) (Entered: 07/17/2012)3 of 4 7/24/2012 9:59 AM
    • CM/ECF LIVE - U.S. District Court: Mississippi Southern District 07/17/2012 12 MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss, MOTION for Sanctions, MOTION for Default Judgment as to by Vogel Denise Newsome (Attachments: # 1 Exhibit 1 Affifavit of Vogel Denise Newsome, # 2 Exhibit 2 Rule 73, # 3 Exhibit 3 Declining Asssignment of Magistrate, # 4 Exhibit 4 Ruel 7-1, # 5 Exhibit 5 Plummer vs Chicago Jomrneyman, # 6 Exhibit 6 WALTON vs UTILITY, # 7 Exhibit 7 HEATH v BALDWIN, # 8 Exhibit 8 HOWARD vs SUNCase, # 9 Exhibit 9 TRUVILLION vs KINGS DA, # 10 Exhibit 10 051606 Termination Email)(SEC) (Additional attachment(s) added on 7/18/2012: # 11 Exhibit 11 Municipal Government, # 12 Exhibit 12 Motion Docket, # 13 Exhibit 13 Callahan vs Bancorpsouth, # 14 Exhibit 14 Phelps Dunbar & Baker donelson, # 15 Exhibit 15 Hambrick vs. Bear Stear, # 16 Exhibit 16 Walker vs Epps, # 17 Exhibit 17 Docket Sheet, # 18 Exhibit 18 Gates vs Spinks, # 19 Exhibit 19 Boykin vs Georgia Pacific, # 20 Exhibit 20 Garner vs. Ashley Furniture, # 21 Exhibit 21 Payne vs Travenol, # 22 Exhibit 22 Notice of Appearance, # 23 Exhibit 23 Waiver, # 24 Exhibit 24 Waiver, # 25 Exhibit 25 Waiver, # 26 Exhibit 26 Waiver, # 27 Exhibit 27 Phelps Dunbar & Page Kruger, # 28 Exhibit 28 Docket Sheet, # 29 Exhibit 29 Judge Tom S. Lee Recusal Order) (SEC). Modified on 7/18/2012 (SEC). (Additional attachment(s) added on 7/18/2012: # 30 Exhibit 30 Alexander vs Easy Finance, # 31 Exhibit 31 Mississippi Bar Directory, # 32 Exhibit 32 28-455, # 33 Exhibit 33 28-144 disqualification, # 34 Exhibit 34 Construction, # 35 Errata 35 Safeguard Litigant, # 36 Errata 36 Disqualification, # 37 Exhibit 37 Disqualification, # 38 Exhibit 38 Disqualification, # 39 Exhibit 39 Conduct or Bias, # 40 Exhibit 40 Fax, # 41 Exhibit 41 Liddell vs Northrop, # 42 Errata 42 Phelps Dunbar-Marsh letter) (SEC). Modified file date on 7/18/2012 (SEC). (Entered: 07/18/2012) 07/17/2012 13 WAIVER OF SERVICE Returned Executed by Vogel Denise Newsome. Louis G. Baine, III waiver sent on 6/6/2012, answer due 8/6/2012; Thomas Y. Page waiver sent on 6/6/2012, answer due 8/6/2012; Page Kruger & Holland, P.A. waiver sent on 6/6/2012, answer due 8/6/2012; Linda Thomas waiver sent on 6/6/2012, answer due 8/6/2012. (SEC) (Entered: 07/18/2012) 07/17/2012 14 REQUEST FOR WAIVER of Service sent to Louis G. Baine III, Page Kruger & Holland, Thomas Y. Page, Linda Thomas on 6/8/12 by Vogel Denise Newsome. (Attachments: # 1 Wavier, # 2 Waiver, # 3 Waiver)(SEC) (Entered: 07/18/2012) 07/17/2012 15 Letter from Vogel Denise Newsome (SEC) (Entered: 07/18/2012)4 of 4 7/24/2012 9:59 AM
    • EXHIBIT "7"
    • Rule 73. Magistrate Judges: Trial by Consent; Appeal | Federal Rules of C... http://www.law.cornell.edu/rules/frcp/rule_73 RULE 73. MAGISTRATE JUDGES: TRIAL BY CONSENT; APPEAL (a) TRIAL BY CONSENT. When authorized under 28 U.S.C. §636(c), a magistrate judge may, if all parties consent, conduct a civil action or proceeding, including a jury or nonjury trial. A record must be made in accordance with 28 U.S.C. §636(c)(5). (b) CONSENT PROCEDURE. (1) In General. When a magistrate judge has been designated to conduct civil actions or proceedings, the clerk must give the parties written notice of their opportunity to consent under 28 U.S.C. §636(c). To signify their consent, the parties must jointly or separately file a statement consenting to the referral. A district judge or magistrate judge may be informed of a partys response to the clerks notice only if all parties have consented to the referral. (2) Reminding the Parties About Consenting. A district judge, magistrate judge, or other court official may remind the parties of the magistrate judges availability, but must also advise them that they are free to withhold consent without adverse substantive consequences. (3) Vacating a Referral. On its own for good cause—or when a party shows extraordinary circumstances—the district judge may vacate a referral to a magistrate judge under this rule. (c) APPEALING A JUDGMENT. In accordance with 28 U.S.C. §636(c)(3), an appeal from a judgment entered at a magistrate judges direction may be taken to the court of appeals as would any other appeal from a district-court judgment. NOTES (As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 30, 2007, eff. Dec. 1, 2007.) N OTES OF ADVISORY C OMMITTEE ON R ULES —1983 Subdivision (a). This subdivision implements the broad authority of the 1979 amendments to the Magistrates Act, 28 U.S.C. §636(c), which permit a magistrate to sit in lieu of a district judge and exercise civil jurisdiction over a case, when the parties consent. See McCabe, The Federal Magistrate Act of 1979, 16 Harv. J. Legis. 343, 364–79 (1979). In order to exercise this jurisdiction, a magistrate must be specially designated under 28 U.S.C. §636(c)(1) by the district court or courts he serves. The only exception to a magistrates exercise of civil jurisdiction, which includes the power to conduct jury and nonjury trials and decide dispositive motions, is the contempt power. A hearing on contempt is to be conducted by the district judge upon certification of the facts and an order to show cause by the magistrate. See 28 U.S.C. §639(e). In view of 28 U.S.C. §636(c)(1) and this rule, it is unnecessary to amend Rule 58 to provide that the decision of a magistrate is a “decision by the court” for the purposes of that rule and a “final decision of the district court” for purposes of 28 U.S.C. §1291 governing appeals. Subdivision (b). This subdivision implements the blind consent provision of 28 U.S.C. §636(c)(2) and is designed to ensure that neither the judge nor the magistrate attempts to induce a party to consent to reference of a civil matter under this rule to a magistrate. See House Rep. No. 96–444, 96th Cong. 1st Sess. 8 (1979). The rule opts for a uniform approach in implementing the consent provision by directing the clerk to notify the parties of their opportunity to elect to proceed before a magistrate and by requiring the execution and filing of a consent form or forms setting forth the election. However, flexibility at the local level is preserved in that local rules will EXHIBIT determine how notice shall be communicated to the parties and local rules will specify "8"1 of 2 7/12/2012 7:15 PM
    • Rule 73. Magistrate Judges: Trial by Consent; Appeal | Federal Rules of C... http://www.law.cornell.edu/rules/frcp/rule_73 determine how notice shall be communicated to the parties, and local rules will specify the time period within which an election must be made. The last paragraph of subdivision (b) reiterates the provision in 28 U.S.C. §636(c)(6) for vacating a reference to the magistrate. Subdivision (c). Under 28 U.S.C. §636(c)(3), the normal route of appeal from the judgment of a magistrate—the only route that will be available unless the parties otherwise agree in advance—is an appeal by the aggrieved party “directly to the appropriate United States court of appeals from the judgment of the magistrate in the same manner as an appeal from any other judgment of a district court.” The quoted statutory language indicates Congress’ intent that the same procedures and standards of appealability that govern appeals from district court judgments govern appeals from magistrates’ judgments. Subdivision (d). 28 U.S.C. §636(c)(4) offers parties who consent to the exercise of civil jurisdiction by a magistrate an alternative appeal route to that provided in subdivision (c) of this rule. This optional appellate route was provided by Congress in recognition of the fact that not all civil cases warrant the same appellate treatment. In cases where the amount in controversy is not great and there are no difficult questions of law to be resolved, the parties may desire to avoid the expense and delay of appeal to the court of appeals by electing an appeal to the district judge. See McCabe, The Federal Magistrate Act of 1979, 16 Harv. J. Legis. 343, 388 (1979). This subdivision provides that the parties may elect the optional appeal route at the time of reference to a magistrate. To this end, the notice by the clerk under subdivision (b) of this rule shall explain the appeal option and the corollary restriction on review by the court of appeals. This approach will avoid later claims of lack of consent to the avenue of appeal. The choice of the alternative appeal route to the judge of the district court should be made by the parties in their forms of consent. Special appellate rules to govern appeals from a magistrate to a district judge appear in new Rules 74 through 76. N OTES OF ADVISORY C OMMITTEE ON R ULES —1987 AMENDMENT The amendment is technical. No substantive change is intended. N OTES OF ADVISORY C OMMITTEE ON R ULES —1993 AMENDMENT This revision is made to conform the rule to changes made by the Judicial Improvements Act of 1990. The Act requires that, when being reminded of the availability of a magistrate judge, the parties be advised that withholding of consent will have no “adverse substantive consequences.” They may, however, be advised if the withholding of consent will have the adverse procedural consequence of a potential delay in trial. N OTES OF ADVISORY C OMMITTEE ON R ULES —1997 AMENDMENT The Federal Courts Improvement Act of 1996 repealed the former provisions of 28 U.S.C. §636(c)(4) and (5) that enabled parties that had agreed to trial before a magistrate judge to agree also that appeal should be taken to the district court. Rule 73 is amended to conform to this change. Rules 74, 75, and 76 are abrogated for the same reason. The portions of Form 33 and Form 34 that referred to appeals to the district court also are deleted. C OMMITTEE N OTES ON R ULES —2007 AMENDMENT The language of Rule 73 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.2 of 2 7/12/2012 7:15 PM
    • EXHIBIT "9"
    • MISSISSIPPI RULES OF PROFESSIONAL CONDUCT Table of Rules Preamble. Scope. Terminology.CLIENT-LAWYER RELATIONSHIP1.1 Competence.1.2 Scope of Representation.1.3 Diligence.1.4 Communication.1.5 Fees.1.6 Confidentiality of Information.1.7 Conflict of Interest: General Rule.1.8 Conflict of Interests: Prohibited Transactions.1.9 Conflict of Interest: Former Client.1.10 Imputed Disqualification: General Rule.1.11 Successive Government and Private Employment.1.12 Former Judge or Arbitrator.1.13 Organization as Client. EXHIBIT "10"
    • 1.14 Client Under a Disability.1.15 Safekeeping Property. Mississippi IOLTA Program Notice of Election.1.16 Declining or Terminating Representation.1.17 Sale of Law Practice.COUNSELOR2.1 Advisor.2.2 Intermediary.2.3 Evaluation for Use by Third Persons.ADVOCATE3.1 Meritorious Claims and Contentions.3.2 Expediting Litigation.3.3 Candor Toward the Tribunal.3.4 Fairness to Opposing Party and Counsel.3.5 Impartiality and Decorum of the Tribunal.3.6 Trial Publicity.3.7 Lawyer as Witness.3.8 Special Responsibilities of a Prosecutor.3.9 Advocate in Nonadjudicative Proceedings.TRANSACTIONS WITH PERSON OTHER THAN CLIENTS4.1 Truthfulness in Statements to Others. 2
    • 4.2 Communication With Person Represented by Counsel.4.3 Dealing with Unrepresented Person.4.4 Respect for Rights of Third Persons.LAW FIRMS AND ASSOCIATIONS5.1 Responsibilities of a Partner or Supervisory Lawyer.5.2 Responsibilities of a Subordinate Lawyer.5.3 Responsibilities Regarding Non-Lawyer Assistants.5.4 Professional Independence of a Lawyer.5.5 Unauthorized Practice of Law.5.6 Restrictions on Right to Practice.PUBLIC SERVICE6.1 Voluntary Pro Bono Public Service.6.2 Accepting Appointments.6.3 Membership in Legal Services Organization.6.4 Law Reform Activities Affecting Client Interests.INFORMATION ABOUT LEGAL SERVICES7.1 Communications Concerning a Lawyer’s Services.7.2 Advertising.7.3 Direct Contact With Prospective Clients.7.4 Legal Service Information. 3
    • 7.5 Submission of Advertisements.7.6 Communication of Certificate or Designation.7.7 Firm Names and Letterheads.MAINTAINING THE INTEGRITY OF THE PROFESSION8.1 Bar Admission and Disciplinary Matters.8.2 Judicial and Legal Officials.8.3 Reporting Professional Misconduct.8.4 Misconduct.8.5 Jurisdiction. MISSISSIPPI RULES OF PROFESSIONAL CONDUCT Effective July 1, 1987 PREAMBLE: A LAWYERS RESPONSIBILITIES A lawyer is a representative of clients, an officer of the legal system and a publiccitizen having special responsibility for the quality of justice. As a representative of clients, a lawyer performs various functions. As advisor, alawyer provides a client with an informed understanding of the clients legal rights andobligations and explains their practical implications. As advocate, a lawyer zealously assertsthe clients position under the rules of the adversary system. As negotiator, a lawyer seeksa result advantageous to the client but consistent with requirements of honest dealing withothers. As intermediary between clients, a lawyer seeks to reconcile their divergent interestsas an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts asevaluator by examining a clients legal affairs and reporting about them to the client or toothers. 4
    • In addition to these representational functions, a lawyer may serve as a third-partyneutral, a nonrepresentational role helping the parties to resolve a dispute or other matter.Some of these Rules apply directly to lawyers who are or have served as third-party neutrals.See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are notactive in the practice of law or to practicing lawyers even when they are acting in anonprofessional capacity. For example, a lawyer who commits fraud in the conduct of abusiness is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit,or misrepresentation. See Rule 8.4. In all professional functions a lawyer should be competent, prompt and diligent. Alawyer should maintain communication with a client concerning the representation. A lawyershould keep in confidence information relating to representation of a client except so far asdisclosure is required or permitted by the Rules of Professional Conduct or other law. A lawyers conduct should conform to the requirements of the law, both inprofessional service to clients and in the lawyers business and personal affairs. A lawyershould use the laws procedures only for legitimate purposes and not to harass or intimidateothers. A lawyer should demonstrate respect for the legal system and for those who serveit, including judges, other lawyers and public officials. While it is a lawyers duty, whennecessary, to challenge the rectitude of official action, it is also a lawyers duty to upholdlegal process. As a public citizen, a lawyer should seek improvement of the law, access to the legalsystem, the administration of justice and the quality of service rendered by the legalprofession. As a member of a learned profession, a lawyer should cultivate knowledge ofthe law beyond its use for clients; employ that knowledge in reform of the law and work tostrengthen legal education. In addition, a lawyer should further the public’s understandingof and confidence in the rule of law and the justice system because legal institutions in aconstitutional democracy depend on popular participation and support to maintain theirauthority. A lawyer should be mindful of deficiencies in the administration of justice and ofthe fact that the poor, and sometimes persons who are not poor, cannot afford adequate legalassistance. Therefore, all lawyers should devote professional time and resources and use civilinfluence to ensure equal access to our system of justice for all those who, because ofeconomic or social barriers, cannot afford or secure adequate legal counsel. A lawyer shouldaid the legal profession in pursuing these objectives and should help the bar regulate itselfin the public interest. Many of a lawyers professional responsibilities are prescribed in the Rules ofProfessional Conduct, as well as substantive and procedural law. However, a lawyer is alsoguided by personal conscience and the approbation of professional peers. A lawyer should 5
    • strive to attain the highest level of skill to improve the law and the legal profession and toexemplify the legal professions ideals of public service. A lawyers responsibilities as a representative of clients, an officer of the legal systemand a public citizen are usually harmonious. Thus, when an opposing party is wellrepresented, a lawyer can be a zealous advocate on behalf of a client and at the same timeassume that justice is being done. So also, a lawyer can be sure that preserving clientconfidences ordinarily serves the public interest because people are more likely to seek legaladvice, and thereby heed their legal obligations, when they know their communications willbe private. In the nature of law practice, however, conflicting responsibilities are encountered.Virtually all difficult ethical problems arise from conflict between a lawyers responsibilitiesto clients, to the legal system and to the lawyers own interest in remaining an upright personwhile earning a satisfactory living. The Rules of Professional Conduct prescribe terms forresolving such conflicts. Within the framework of these Rules many difficult issues ofprofessional discretion can arise. Such issues must be resolved through the exercise ofsensitive professional and moral judgment guided by the basic principles underlying theRules. These principles include the lawyer’s obligation to zealously protect and pursue aclient’s legitimate interests, within the bounds of the law, while maintaining a professional,courteous, and civil attitude toward all persons involved in the legal system. The legal profession is largely self-governing. Although other professions also havebeen granted powers of self-government, the legal profession is unique in this respectbecause of the close relationship between the profession and the processes of governmentand law enforcement. This connection is manifested in the fact that ultimate authority overthe legal profession is vested largely in the courts. To the extent that lawyers meet the obligations of their professional calling, theoccasion for government regulation is obviated. Self-regulation also helps maintain the legalprofessions independence from government domination. An independent legal professionis an important force in preserving government under law, for abuse of legal authority ismore readily challenged by a profession whose members are not dependent on governmentfor the right to practice. The legal professions relative autonomy carries with it special responsibilities ofself-government. The profession has a responsibility to assure that its regulations areconceived in the public interest and not in furtherance of parochial or self-interested concernsof the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct.A lawyer should also aid in securing their observance by other lawyers. Neglect of these 6
    • responsibilities compromises the independence of the profession and the public interestwhich it serves. Lawyers play a vital role in the preservation of society. The fulfillment of this rolerequires an understanding by lawyers of their relationship to our legal system. The Rules ofProfessional Conduct, when properly applied, serve to define that relationship.[Amended effective November 3, 2005 to address lawyers’ responsibilities as arbitrators,mediators and other third party neutrals and to emphasize lawyers’ responsibilities topromote public understanding of the rule of law and promoting equal access to the legalsystem.] SCOPE The Rules of Professional Conduct are rules of reason. They should be interpretedwith reference to the purposes of legal representation and of the law itself. Some of theRules are imperatives, cast in the terms "shall" or "shall not." These define proper conductfor purposes of professional discipline. Others, generally cast in the term "may," arepermissive and define areas under the Rules in which the lawyer has professional discretion.No disciplinary action should be taken when the lawyer chooses not to act or acts within thebounds of such discretion. Other Rules define the nature of relationships between the lawyerand others. The Rules are thus partly obligatory and disciplinary and partly constitutive anddescriptive in that they define a lawyers professional role. Many of the Comments use theterm "should." Comments do not add obligations to the Rules but provide guidance forpracticing in compliance with the Rules. The Rules presuppose a larger legal context shaping the lawyer’s role. That contextincludes court rules and statutes relating to matters of licensure, laws defining specificobligations of lawyers and substantive and procedural law in general. The Comments aresometimes used to alert lawyers to their responsibilities under such other law. Compliancewith the Rules, as with all laws in an open society, depends primarily upon understanding andvoluntary compliance, secondarily upon reinforcement by peer and public opinion andfinally, when necessary, upon enforcement through disciplinary proceedings. The Rules donot, however, exhaust the moral and ethical considerations that should inform a lawyer, forno worthwhile human activity can be completely defined by legal rules. The Rules simplyprovide a framework for the ethical practice of law. Furthermore, for purposes of determining the lawyers authority and responsibility,principles of substantive law external to these Rules determine whether a client-lawyerrelationship exists. Most of the duties flowing from the client-lawyer relationship attach only 7
    • after the client has requested the lawyer to render legal services and the lawyer has agreedto do so. But there are some duties, such as that of confidentiality under Rule 1.6, that mayattach when the lawyer agrees to consider whether a client-lawyer relationship shall beestablished. Whether a client-lawyer relationship exists for any specific purpose can dependon the circumstances and may be a question of fact. Under various legal provisions, including constitutional, statutory and common law,the responsibilities of government lawyers may include authority concerning legal mattersthat ordinarily reposes in the client in the private client-lawyer relationships. For example,a lawyer for a government agency may have authority on behalf of the government to decideupon settlement or whether to appeal from an adverse judgment. Such authority in variousrespects is generally vested in the attorney general and the state’s attorney in stategovernment, and their federal counterparts, and the same may be true of other governmentlaw officers. Also, lawyers under the supervision of these officers may be authorized torepresent several government agencies in intra governmental legal controversies where aprivate lawyer could not represent multiple private clients. These Rules do not abrogate anysuch authority. Failure to comply with an obligation or prohibition imposed by a Rule is a basis forinvoking the disciplinary process. The Rules presuppose that disciplinary assessment of alawyers conduct will be made on the basis of the facts and circumstances as they existed atthe time of the conduct in question and in recognition of the fact that a lawyer often has toact upon uncertain or incomplete evidence of the situation. Moreover, the Rules presupposethat whether or not discipline should be imposed for a violation, and the severity of asanction, depend on all the circumstances, such as the willfulness and seriousness of theviolation, extenuating factors and whether there have been previous violations. Violation of a Rule should not give rise to a cause of action nor should it create anypresumption that a legal duty has been breached. The Rules are designed to provide guidanceto lawyers and to provide a structure for regulating conduct through disciplinary agencies.They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rulescan be subverted when they are invoked by opposing parties as procedural weapons. The factthat a Rule is a just basis for a lawyers self-assessment, or for sanctioning a lawyer underthe administration of a disciplinary authority, does not imply that an antagonist in a collateralproceeding or transaction has standing to seek enforcement of the Rule. Accordingly,nothing in the Rules should be deemed to augment any substantive legal duty of lawyers orthe extra-disciplinary consequences of violating such a duty. Moreover, these Rules are not intended to govern or affect judicial application ofeither the attorney-client or work product privilege. Those privileges were developed to 8
    • promote compliance with law and fairness in litigation. In reliance on the attorney-clientprivilege, clients are entitled to expect that communications within the scope of the privilegewill be protected against compelled disclosure. The attorney-client privilege is that of theclient and not of the lawyer. The fact that in exceptional situations the lawyer under theRules has a limited discretion to disclose a client confidence does not vitiate the propositionthat, as a general matter, the client has a reasonable expectation that information relating tothe client will not be voluntarily disclosed and that disclosure of such information may bejudicially compelled only in accordance with recognized exceptions to the attorney-client andwork product privileges. The lawyers exercise of discretion not to disclose information under Rule 1.6 shouldnot be subject to reexamination. Permitting such reexamination would be incompatible withthe general policy of promoting compliance with law through assurances thatcommunications will be protected against disclosure. The Comment accompanying each Rule explains and illustrates the meaning andpurpose of the Rule. The Preamble and this note on Scope provide general orientation. TheComments are intended as guides to interpretation, but the text of each Rule is authoritative.Research notes were prepared to compare counterparts in the Mississippi Code ofProfessional Responsibility (adopted 1971, as amended) and to provide selected referencesto other authorities. The notes have not been adopted, do not constitute part of the Rules andare not intended to affect the application or interpretation of the Rules and Comments.[Amended effective November 3, 2005 to make technical changes in text.] TERMINOLOGY "Belief" or "Believes" denotes that the person involved actually supposed the fact inquestion to be true. A persons belief may be inferred from circumstances. “Confirmed in writing,” when used in reference to the informed consent of a persondenotes informed consent that is given in writing by the person or a writing that a lawyerpromptly transmits to the person confirming an oral informed consent. If it is not feasibleto obtain or transmit the writing at the time the person gives informed consent, then thelawyer must obtain or transmit it within a reasonable time thereafter. "Consult" or "Consultation" denotes communication of information reasonablysufficient to permit the client to appreciate the significance of the matter in question. 9
    • “Firm” or “law firm” denotes a lawyer or lawyers in a partnership, professionalcorporation, professional association, professional limited liability company, soleproprietorship, governmental agency, or other association whose members are authorized topractice law; or lawyers employed in a legal services organization or the legal department ofa corporation or other organization. "Fraud" or "Fraudulent" denotes conduct having a purpose to deceive and not merelynegligent misrepresentation or failure to apprise another of relevant information. “Informed consent” denotes voluntary acceptance and agreement by a person of aproposed course of conduct after adequate information has been imparted to the person thatallows the person to arrive at a decision. "Knowingly," "Known," or "Knows" denotes actual knowledge of the fact in question.A persons knowledge may be inferred from circumstances. “Partner” denotes the member of a partnership, a shareholder in a law firm organizedas a professional corporation, professional association, or a member of a professional limitedliability company or an entity whose members are authorized to practice law. "Reasonable" or "Reasonably" when used in relation to conduct by a lawyer denotesthe conduct of a reasonably prudent and competent lawyer. "Reasonable belief" or "Reasonably believes" when used in reference to a lawyerdenotes that the lawyer believes the matter in question and that the circumstances are suchthat the belief is reasonable. "Reasonably should know" when used in reference to a lawyer denotes that a lawyerof reasonable prudence and competence would ascertain the matter in question. “Screened” denotes the isolation of a lawyer from any participation in a matterthrough the timely imposition of procedures within a firm that are reasonably adequate underthe circumstances to protect information that the isolated lawyer is obligated to protect underthese Rules or other law. "Substantial" when used in reference to degree or extent denotes a material matter ofclear and weighty importance. “Writing” or “written” denotes a tangible or electronic record of a communication or 10
    • representation, including handwriting, typewriting, printing, photostating, photography, audioor video recording, and e-mail. A “signed” writing includes an electronic sound, symbol orprocess attached to or logically associated with a writing and executed or adopted by a personwith the intent to sign the writing.[Amended effective November 3, 2005 to add definitions for “confirmed in writing,”“informed consent,” “knowingly, known, or knows,” “screened,” and “writing or written.” At that time the definitions for “firm or law firm” and “partner” were modified.] CLIENT-LAWYER RELATIONSHIP RULE 1.1 COMPETENCE A lawyer shall provide competent representation to a client. Competent representationrequires the legal knowledge, skill, thoroughness and preparation reasonably necessary forthe representation. Comment Legal Knowledge and Skill. In determining whether a lawyer employs the requisiteknowledge and skill in a particular matter, relevant factors include the relative complexityand specialized nature of the matter, the lawyer’s general experience, the lawyer’s trainingand experience in the field in question, the preparation and study the lawyer is able to givethe matter and whether it is feasible to refer the matter to, or associate or consult with, alawyer of established competence in the field in question. In many instances the requiredproficiency is that of a general practitioner. Expertise in a particular field of law may berequired in some circumstances. A lawyer need not necessarily have special training or prior experience to handle legalproblems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be ascompetent as a practitioner with long experience. Some important skills, such as the analysisof precedent, the evaluation of evidence and legal drafting, are required in all legal problems.Perhaps the most fundamental legal skill consists of determining what kind of legal problemsa situation may involve, a skill that necessarily transcends any particular specializedknowledge. A lawyer can provide adequate representation in a wholly novel field throughnecessary study. Competent representation can also be provided through the association ofa lawyer of established competence in the field in question. In an emergency a lawyer may give advice or assistance in a matter in which thelawyer does not have the skill ordinarily required where referral to or consultation or 11
    • association with another lawyer would be impractical. Even in an emergency, however,assistance should be limited to that reasonably necessary in the circumstances, for illconsidered action under emergency conditions can jeopardize the client’s interest. A lawyer may accept representation where the requisite level of competence can beachieved by reasonable preparation. This applies as well to a lawyer who is appointed ascounsel for an unrepresented person. See also Rule 6.2. Thoroughness and Preparation. Competent handling of a particular matter includesinquiry into and analysis of the factual and legal elements of the problem, and use of methodsand procedures meeting the standards of competent practitioners. It also includes adequatepreparation. The required attention and preparation are determined in part by what is atstake; major litigation and complex transactions ordinarily require more elaborate treatmentthan matters of lesser consequence. Maintaining Competence. To maintain the requisite knowledge and skill, a lawyershould engage in continuing study and education. If a system of peer review has beenestablished, the lawyer should consider making use of it in appropriate circumstances. Code Comparison DR 6-101(A)(1) provides that a lawyer shall not handle a matter “which he knows orshould know that he is not competent to handle, without associating with him a lawyer whois competent to handle it.” DR 6-101(A)(2) requires “preparation adequate in thecircumstances”; Rule 1.1 more fully particularizes the elements of competence. RULE 1.2 SCOPE OF REPRESENTATION (a) A lawyer shall abide by a clients decisions concerning the objectives ofrepresentation, subject to paragraphs (c), (d) and (e), and shall consult with the client as tothe means by which they are to be pursued. A lawyer shall abide by a clients decisionwhether to accept an offer of settlement of a matter. In a criminal case, a lawyer shall abideby the clients decision, after consultation with the lawyer, as to a plea to be entered, whetherto waive jury trial and whether the client will testify. (b) A lawyers representation of a client, including representation by appointment,does not constitute an endorsement of the clients political, economic, social or moral viewsor activities. 12
    • (c) A lawyer may limit the objectives of the representation if the client gives informedconsent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that alawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences ofany proposed course of conduct with a client and may counsel or assist a client to make agood faith effort to determine the validity, scope, meaning or application of the law. (e) When a lawyer knows that a client expects assistance not permitted by the Rulesof Professional Conduct or other law, the lawyer shall consult with the client regarding therelevant limitations on the lawyers conduct.[Amended effective November 3, 2005] Comment Scope of Representation. Both lawyer and client have authority and responsibilityin the objectives and means of representation. The client has ultimate authority to determinethe purposes to be served by legal representation, within the limits imposed by law and thelawyer’s professional obligations. At the same time, a lawyer is not required to pursueobjectives or employ means simply because a client may wish that the lawyer do so. A cleardistinction between objectives and means sometimes cannot be drawn, and in many cases theclient-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyershould assume responsibility for technical and legal tactical issues, but should defer to theclient regarding such questions as the expense to be incurred and concern for third personswho might be adversely affected. Law defining the lawyer’s scope of authority in litigationvaries among jurisdictions. In a case in which the client appears to be suffering mental disability, the lawyer’sduty to abide by the client’s decisions is to be guided by reference to Rule 1.14. Independence from Client’s Views or Activities. Legal representation should notbe denied to people who are unable to afford legal services, or whose cause is controversialor the subject of popular disapproval. By the same token, representing a client does notconstitute approval of the client’s views or activities. Services Limited in Objectives or Means. The objectives or scope of servicesprovided by a lawyer may be limited by agreement with the client or by the terms underwhich the lawyer’s services are made available to the client. For example, a retainer may befor a specifically defined purpose. Representation provided through a legal aid agency may 13
    • be subject to limitations on the types of cases the agency handles. When a lawyer has beenretained by an insurer to represent an insured, the representation may be limited to mattersrelated to the insurance coverage. The terms upon which representation is undertaken mayexclude specific objectives or means that the lawyer regards as imprudent. An agreement concerning the scope of representation must accord with the Rules ofProfessional Conduct and other law. Thus, the client may not be asked to agree torepresentation so limited in scope as to violate Rule 1.1, or to surrender the right to terminatethe lawyer’s services or the right to settle litigation that the lawyer might wish to continue. Criminal, Fraudulent and Prohibited Transactions. A lawyer is required to givean honest opinion about the actual consequences that appear likely to result from a client’sconduct. The fact that a client uses advice in a course of action that is criminal or fraudulentdoes not, of itself, make a lawyer a party to the course of action. However, a lawyer may notknowingly assist a client in criminal or fraudulent conduct. There is a critical distinctionbetween presenting an analysis of legal aspects of questionable conduct and recommendingthe means by which a crime or fraud might be committed with impunity. When the client’s course of action has already begun and is continuing, the lawyer’sresponsibility is especially delicate. The lawyer is not permitted to reveal the client’swrongdoing, except where permitted by Rule 1.6. However, the lawyer is required to avoidfurthering the purpose, for example, by suggesting how it might be concealed. A lawyer maynot continue assisting a client in conduct that the lawyer originally supposes is legally proper,but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore,may be required. Where the client is a fiduciary, the lawyer may be charged with special obligations indealings with a beneficiary. Paragraph (d) applies whether or not the defrauded party is a party to the transaction.Hence, a lawyer should not participate in a sham transaction; for example, a transaction toeffectuate criminal or fraudulent escape of tax liability. Paragraph (d) does not precludeundertaking a criminal defense incident to a general retainer for legal services to a lawfulenterprise. The last clause of paragraph (d) recognizes that determining the validity orinterpretation of a statute or regulation may require a course of action involving disobedienceof the statute or regulation or of the interpretation placed upon it by governmental authorities. Code Comparison Rule 1.2(a) has no counterpart in the Disciplinary Rules of the Code. EC 7-7 states 14
    • that “In certain areas of legal representation not affecting the merits of the cause orsubstantially prejudicing the rights of a client, a lawyer is entitled to make decisions on hisown. But otherwise the authority to make decisions is exclusively that of the client. . . .” EC7-8 states that “In the final analysis, however, the . . . decision whether to forego legallyavailable objectives or methods because of nonlegal factors is ultimately for the client. . . .In the event that the client in a nonadjudicatory matter insists upon a course of conduct thatis contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules,the lawyer may withdraw from the employment.” DR 7-101(A)(1) provides that “A lawyershall not intentionally . . . fail to seek the lawful objections of his client through reasonableavailable means permitted by law. . . . A lawyer does not violate this Disciplinary Rule,however, by . . . avoiding offensive tactics. . . .” Rule 1.2(b) has no counterpart in the Code. Rule 1.2(c) has no counterpart in the Code. With regard to paragraph (d), DR 7-102(A)(7) provides that a lawyer shall not“counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.” DR7-102(A)(6) provides that a lawyer shall not “participate in the creation or preservation ofevidence when he knows or it is obvious that the evidence is false.” DR 7-106 provides that“A lawyer shall not . . . advise his client to disregard a standing rule of a tribunal . . . but hemay take appropriate steps in good faith to test the validity of such rule or ruling.” EC 7-5states that “A lawyer should never encourage or aid his client to commit criminal acts orcounsel his client on how to violate the law and avoid punishment therefor.” With regard to Rule 1.2(e), DR 2-110(C)(1)(c) provides that a lawyer may withdrawfrom representation if a client “insists” that the lawyer engage in “conduct that is illegal orthat is prohibited under the Disciplinary Rules.” DR 9-101(C) provides that “a lawyer shallnot state or imply that he is able to influence improperly . . . any tribunal, legislative body orpublic official.” See also MSB Ethics Opinion No. 92. RULE 1.3 DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client. Comment A lawyer should pursue a matter on behalf of a client despite opposition, obstruction 15
    • or personal inconvenience to the lawyer, and may take whatever lawful and ethical measuresare required to vindicate a client’s cause or endeavor. A lawyer should act with commitmentand dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.However, a lawyer is not bound to press for every advantage that might be realized for aclient. A lawyer has professional discretion in determining the means by which a mattershould be pursued. See Rule 1.2. A lawyer’s workload should be controlled so that eachmatter can be handled adequately. Perhaps no professional shortcoming is more widely resented than procrastination.A client’s interests often can be adversely affected by the passage of time or the change ofconditions; in extreme instances, as when a lawyer overlooks a statute of limitations, theclient’s legal position may be destroyed. Even when the client’s interests are not affected insubstances, however, unreasonable delay can cause a client needless anxiety and undermineconfidence in the lawyer’s trustworthiness. Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carrythrough to conclusion all matters undertaken for a client. If a lawyer’s employment is limitedto a specific matter, the relationship terminates when the matter has been resolved. If alawyer has served a client over a substantial period in a variety of matters, the clientsometimes may assume that the lawyer will continue to serve on a continuing basis unlessthe lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship stillexists should be clarified by the lawyer, preferably in writing, so that the client will notmistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceasedto do so. For example, if a lawyer has handled a judicial or administrative proceeding thatproduced a result adverse to the client but has not been specifically instructed concerningpursuit of an appeal, the lawyer should advise the client of the possibility of appeal beforerelinquishing responsibility for the matter. Code Comparison DR 6-101(A)(3) requires that a lawyer not “neglect a legal matter entrusted to him.”EC 6-4 states that a lawyer should “give appropriate attention to his legal work.” Canon 7states that “a lawyer should represent a client zealously within the bounds of the law.” DR7-101(A)(1) provides that “a lawyer shall not intentionally . . . fail to seek the lawfulobjectives of his client through reasonably available means permitted by law and theDisciplinary Rules. . . .” DR 7-101(A)(3) provides that “a lawyer shall not intentionally . . .prejudice or damage his client during the course of the professional relationship. . . .” RULE 1.4 COMMUNICATION 16
    • (a) A lawyer shall keep a client reasonably informed about the status of a matter andpromptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit theclient to make informed decisions regarding the representation. Comment The client should have sufficient information to participate intelligently in decisionsconcerning the objectives of the representation and the means by which they are to bepursued, to the extent the client is willing and able to do so. For example, a lawyernegotiating on behalf of a client should provide the client with facts relevant to the matter,inform the client of communications from another party and take other reasonable steps thatpermit the client to make a decision regarding a serious offer from another party. A lawyerwho receives from opposing counsel an offer of settlement in a civil controversy or aproffered plea bargain in a criminal case should promptly inform the client of its substanceunless prior discussions with the client have left it clear that the proposal will beunacceptable. See Rule 1.2(a). Even when a client delegates authority to the lawyer, theclient should be kept advised of the status of the matter. Adequacy of communication depends in part on the kind of advice or assistanceinvolved. For example, in negotiations where there is time to explain a proposal, the lawyershould review all important provisions with the client before proceeding to an agreement.In litigation a lawyer should explain the general strategy and prospects of success andordinarily should consult the client on tactics that might injury or coerce others. On the otherhand, a lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail.The guiding principle is that the lawyer should fulfill reasonable client expectations forinformation consistent with the duty to act in the client’s best interests, and the client’soverall requirements as to the character of representation. Ordinarily, the information to be provided is that appropriate for a client who is acomprehending and responsible adult. However, fully informing the client according to thisstandard may be impracticable, for example, where the client is a child or suffers from mentaldisability. See Rule 1.14. When the client is an organization or group, it is often impossibleor inappropriate to inform every one of its members about its legal affairs; ordinarily, thelawyer should address communications to the appropriate officials of the organization. SeeRule 1.13. Where many routine matters are involved, a system of limited or occasionalreporting may be arranged with the client. Practical exigency may also require a lawyer toact for a client without prior consultation. 17
    • Withholding Information. In some circumstances, a lawyer may be justified indelaying transmission of information when the client would be likely to react imprudentlyto an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis ofa client when the examining psychiatrist indicates that disclosure would harm the client. Alawyer may not withhold information to serve the lawyer’s own interest or convenience.Rules or court orders governing litigation may provide that information supplied to a lawyermay not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders. Code Comparison This Rule has no direct counterpart in the Disciplinary Rules of the Code.DR 6-101(A)(3) provides that a lawyer shall not “neglect a legal matter entrusted to him.”DR 9-102(B)(1) provides that a lawyer “shall promptly notify a client of the receipt of hisfunds, securities, or other properties.” EC 7-8 states that “a lawyer should exert his bestefforts to insure that decisions of his client are made only after the client has been informedof relevant considerations.” EC 9-2 states that “a lawyer should fully and promptly informhis client of material developments in the matters being handled for the client.” RULE 1.5 FEES (a) A lawyers fee shall be reasonable. The factors to be considered in determiningthe reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and 18
    • (8) whether the fee is fixed or contingent. (b) When the lawyer has not regularly represented the client, the basis or rate of thefee shall be communicated to the client, preferably in writing, before or within a reasonabletime after commencing the representation. (c) A fee may be contingent on the outcome of the matter for which the service isrendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or otherlaw. A contingent fee agreement shall be in writing and shall state the method by which thefee is to be determined, including the percentage or percentages that shall accrue to thelawyer in the event of settlement, trial or appeal, litigation and other expenses to be deductedfrom the recovery, and whether such expenses are to be deducted before or after thecontingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shallprovide the client with a written statement stating the outcome of the matter and, if there isa recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of fee between lawyers who are not in the same firm may be made onlyif: (1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; (2) the client is advised of and does not object to the participation of all the lawyers involved; and (3) the total fee is reasonable. Comment Basis or Rate of Fee. When the lawyer has regularly represented a client, theyordinarily will have evolved an understanding concerning the basis or rate of the fee. In a 19
    • new client-lawyer relationship, however, an understanding as to the fee should be promptlyestablished. It is not necessary to recite all the factors that that underlie the basis of the fee,but only those that are directly involved in its computation. It is sufficient, for example, tostate that the basic rate is an hourly charge or a fixed amount or an estimated amount, or toidentify the factors that may be taken into account in finally fixing the fee. Whendevelopments occur during the representation that render an earlier estimate substantiallyinaccurate, a revised estimate should be provided to the client. A written statementconcerning the fee reduces the possibility of a misunderstanding. Furnishing the client witha simple memorandum or a copy of the lawyer’s customary fee schedule is sufficient if thebasis or rate of the fee is set forth. Terms of Payment. A lawyer may require advance payment of a fee, but is obligedto return any unearned portion. See Rule 1.16(d). A lawyer may accept property in paymentfor services, such as an ownership interest in an enterprise, providing this does not involveacquisition of a proprietary interest in the cause of action or subject matter of the litigationcontrary to Rule 1.8(j). However, a fee paid in property instead of money may be subject tospecial scrutiny because it involves questions concerning both the value of the services andthe lawyer’s special knowledge of the value of the property. An agreement may not be made whose terms might induce the lawyer improperly tocurtail services for the client or perform them in such a way contrary to the client’s interest.For example, a lawyer should not enter into an agreement whereby services are to beprovided only up to a stated amount when it is foreseeable that more extensive services willprobably be required, unless the situation is adequately explained to the client. Otherwise,the client might have to bargain for further assistance in the midst of a proceeding ortransaction. However, it is proper to define the extent of services in light of the client’sability to pay. A lawyer should not exploit a fee arrangement based primarily on hourlycharges by using wasteful procedures. When there is doubt whether a contingent fee isconsistent with the client’s best interest, the lawyer should offer the client alternative basesfor the fee and explain their implications. Applicable law may impose limitations oncontingent fees, such as a ceiling on the percentage. Paragraph (d)(1) does not prohibit a contingent fee agreement for the collection ofpast due alimony or support. See MSB Ethics Opinion No. 88. Division of Fee. A division of fee is a single billing to a client covering the fee of twoor more lawyers who are not in the same firm. A division of fee facilitates association ofmore than one lawyer in a matter in which neither alone could serve the client as well, andmost often is used when the fee is contingent and the division is between a referring lawyerand a trial specialist. Paragraph (e) permits the lawyers to divide a fee on either the basis of 20
    • the proportion of services they render or by agreement between the participating lawyers ifall assume responsibility for the representation as a whole and the client is advised and doesnot object. It does not require disclosure to the client of the share that each lawyer is toreceive. Joint responsibility for the representation entails the obligations stated in Rule 5.1for purposes of the matter involved. Disputes Over Fee. If a procedure has been established for resolution of fee disputes,such as an arbitration or mediation procedure established by the bar, the lawyer shouldconscientiously consider submitting to it. Law may prescribe a procedure for determininga lawyer’s fee, for example, in representation of an executor or administrator, a class or aperson entitled to a reasonable fee as part of the measure of damages. The lawyer entitledto such a fee and a lawyer representing another party concerned with the fee should complywith the prescribed procedure. Code Comparison DR 2-106(A) provides that “A lawyer shall not enter into an agreement for, charge,or collect an illegal or clearly excessive fee.” DR 2-106(B) provides that “A fee is clearlyexcessive when, after a review of the facts, a lawyer of ordinary prudence would be left witha definite and firm conviction that the fee is in excess of a reasonable fee.” DR 2-106(B)further provides that “Factors to be considered . . . in determining . . . reasonableness . . .include . . .: (1) The time and labor required, the novelty and difficulty of the questionsinvolved and the skill requisite to perform the legal service properly. (2) The likelihood, ifapparent to the client, that the acceptance of the particular employment will preclude otheremployment by the lawyer. (3) The fee customarily charged in the locality for similarservices. (4) The amount involved and the results obtained. (5) The time limitationsimposed by the client or by the circumstances. (6) The nature and length of the professionalrelationship with the client. (7) The experience, reputation, and ability of the lawyer orlawyers performing the services. (8) Whether the fee is fixed or contingent.” The Ruleincludes the factor of ability to pay; a person of ample means may justly be charged more fora service, and a person of limited means less, other factors being the same. EC 2-17 statesthat “A lawyer should not charge more than a reasonable fee. . . .” There is no counterpart to Rule 1.5(b) in the Disciplinary Rules of the Code. EC 2-19states that “It is usually beneficial to reduce to writing the understanding of the partiesconcerning the fee, particularly when it is contingent.” With regard to Rule 1.5(c), DR 2-106(C) prohibits “a contingent fee in a criminalcase.” 21
    • With regard to Rule 1.5(d), DR2-107(A) permits division of fees only if: “(1) Theclient consents to employment of the other lawyer after a full disclosure that a division offees will be made. (2) The division is in proportion to the services performed andresponsibility assumed by each. (3) The total fee does not exceed clearly reasonablecompensation. . . .” Rule 1.5(d) permits division without regard to the services rendered byeach lawyer if they assume joint responsibility for the representation. See also MSB Ethics Opinion Nos. 40, 59, 88, 91, 92 and 100. RULE 1.6 CONFIDENTIALITY OF INFORMATION (a) A lawyer shall not reveal information relating to the representation of a clientunless the client gives informed consent, the disclosure is impliedly authorized in order tocarry out the representation, or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal such information to the extent the lawyer reasonably believesnecessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services; (4) to secure legal advice about the lawyer’s compliance with these rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyers representation of the client. (6) to comply with other law or a court order. 22
    • (c) A lawyer who participates in an intervention on a lawyer, judge or law student bythe Lawyers and Judges Assistance Committee shall not reveal any information learnedthrough the intervention from or relating to the lawyer, judge or law student on whom theintervention is conducted except as may be permitted by the Rules of Discipline of theMississippi Bar or requlired by law or court order. (d) A lawyer shall reveal information to the Lawyers and Judges AssistanceCommittee in accordance with approved monitoring procedures of the Lawyers and JudgesAssistance Committee relating to the status of compliance of a lawyer, judge or law studentwith the terms and conditions imposed upon the lawyer, judge or law student by the Lawyersand Judges Assistance Committee. (e) A lawyer may reveal such information to the extent required by law or court order.[Amended June 23, 1994; amended April 18, 2002; amended effective November 3 , 2005to add circumstances under which disclosure of otherwise confidential information ispermitted.] Comment The lawyer is part of a judicial system charged with upholding the law. One of thelawyer’s functions is to advise clients so that they avoid any violation of the law in the properexercise of their rights. The observance of the ethical obligation of a lawyer to hold inviolate confidentialinformation of the client not only facilitates the full development of facts essential to properrepresentation of the client but also encourages people to seek early legal assistance. A fundamental principle in the client-lawyer relationship is that, in the absence of theclient’s informed consent, the lawyer must not reveal information relating to therepresentation. See Terminology for definition of “informed consent.” This contributes tothe trust that is the hallmark of the client-lawyer relationship. The client is therebyencouraged to seek legal assistance and to communicate fully and frankly with the lawyereven as to embarrassing or legally damaging subject matter. The lawyer needs thisinformation to represent the client effectively and, if necessary, to advise the client to refrainfrom wrongful conduct. Almost without exception, clients come to lawyers in order todetermine their rights and what is, in the complex of laws and regulations, deemed to be legaland correct. Based upon experience, lawyers know that almost all clients follow the advicegiven, and the law is upheld. 23
    • The principle of client-lawyer confidentiality is given effect by related bodies of law,: the attorney-client privilege the work product doctrine, and the rule of confidentialityestablished in professional ethics. The attorney-client privilege and the work productdoctrine apply in judicial and other proceedings in which a lawyer may be called as a witnessor otherwise required to produce evidence concerning a client. The rule of client-lawyerconfidentiality applies in situations other than those where evidence is sought from thelawyer through compulsion of law. The confidentiality rule, for example, applies not onlyto matters communicated in confidence by the client but also to all information relating tothe representation, whatever the source. A lawyer may not disclose such information exceptas authorized or required by the Rules of Professional Conduct or other law. See also Scope. The requirement of maintaining confidentiality of information relating torepresentation applies to government lawyers who may disagree with the policy goals thattheir representation is designed to advance. Paragraph (a) prohibits a lawyer from revealing information relating to therepresentation of a client. This prohibition also applies to disclosures by a lawyer that do notin themselves reveal protected information but could reasonably lead to the discovery of suchinformation by a third person. A lawyer’s use of a hypothetical to discuss issues relating tothe representation is permissible so long as there is no reasonable likelihood that the listenerwill be able to ascertain the identity of the client or the situation involved. Authorized Disclosure. Except to the extent that the client’s instructions or specialcircumstances limit that authority, a lawyer is impliedly authorized to make disclosures abouta client when appropriate in carrying out the representation. In some situations, for example,a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or tomake a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm’s practice, disclose to each otherinformation relating to a client of the firm, unless the client has instructed that particularinformation be confined to specified lawyers. Disclosure Adverse to Client. Although the public interest is usually best served bya strict rule requiring lawyers to preserve the confidentiality of information relating to therepresentation of their clients, the confidentiality rule is subject to limited exceptions.Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permitsdisclosure reasonably necessary to prevent reasonably certain death or substantial bodilyharm. Such harm is reasonably certain to occur if it will be suffered imminently or if thereis a present and substantial threat that a person will suffer such harm at a later date if thelawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that 24
    • a client has accidentally discharged toxic waste into a town’s water supply may reveal thisinformation to the authorities if there is a present and substantial risk that a person whodrinks the water will contract a life-threatening or debilitating disease and the lawyer’sdisclosure is necessary to eliminate the threat or reduce the number of victims. Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits thelawyer to reveal information to the extent necessary to enable affected persons or appropriateauthorities to prevent the client from committing a crime or fraud, as defined in theTerminology section, that is reasonably certain to result in substantial injury to the financialor property interest of another and in furtherance of which the client has used or is using thatlawyer’s services. Such a serious abuse of the client-lawyer relationship by the clientforfeits the protection of this rule. The client can, of course, prevent such disclosure byrefraining from the wrongful conduct. Although paragraph (b)(2) does not require the lawyerto reveal the client’s misconduct, the lawyer may not counsel or assist the client in conductthe lawyer knows is criminal or fraudulent. Ree Rule 1.2(d). See also Rule 1.16 with respectto the lawyer’s obligation or right to withdraw from the representation of the client in suchcircumstances. Paragraph (b)(3) addresses the situation in which the lawyer does not learn of theclient’s crime or fraud until after it has been consummated. Although the client no longerhas the option of preventing disclosure by refraining from the wrongful conduct, there willbe situations in which the loss suffered by the affected person can be prevented, rectified ormitigated. In such situations, the lawyer may disclose information related to therepresentation to the extent necessary to enable the affected persons to prevent or mitigatereasonably certain losses or to attempt to recoup their losses. Paragraph (b)(3) does not applywhen a person who has committed a crime or fraud thereafter employs a lawyer forrepresentation concerning that offense. A lawyer’s confidentiality obligations do not preclude a lawyer from securingconfidential legal advice about the lawyer’s personal responsibility to comply with theseRules. In most situations, disclosing information to secure such advice will be impliedlyauthorized for the lawyer to carry out the representation. Even when the disclosure is notimpliedly authorized, paragraph (b)(4) permits such disclosure because of the importance ofa lawyer’s compliance with the Rules of Professional Conduct. A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the servicesrendered in an action to collect it. This aspect of the rule expresses the principle that thebeneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. Withdrawal. If the lawyer’s services will be used by the client in materially 25
    • furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as statedin Rule 1.16(a)(1). After withdrawal the lawyer is required to refrain from making disclosure of theclients’ confidences, except as otherwise provided in Rule 1.6. Neither this rule nor Rule1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, andthe lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like. Where the client is an organization, the lawyer may be in doubt whether contemplatedconduct will actually be carried out by the organization. Where necessary to guide conductin connection with this Rule, the lawyer may make inquiry within the organization asindicated in Rule 1.13(b). Dispute Concerning Lawyer’s Conduct. Where a legal claim or disciplinary chargealleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyerinvolving representation of the client, the lawyer may respond to the extent that lawyerreasonably believes necessary to establish a defense. The same is true with respect to a claiminvolving the conduct or representation of a former client. Such a charge can arise in a civil,criminal, disciplinary or other proceeding and can be based on a wrong allegedly committedby the lawyer against the client or on a wrong alleged by a third person, for example, aperson claiming to have been defrauded by the lawyer and client acting together. Thelawyer’s right to respond arises when an assertion of such complicity has been made.Paragraph (b)(2)(5) does not require the lawyer to await the commencement of an action orproceeding that charges such complicity, so that the defense may be established byresponding directly to a third party who has made such an assertion. The right to defend alsoapplies, of course, where a proceeding has been commenced. Where practicable and notprejudicial to the lawyer’s ability to establish the defense, the lawyer should advise the clientof the third party’s assertion and request that the client respond appropriately. In any event,disclosure should be no greater than the lawyer reasonably believes is necessary to vindicateinnocence. As stated above, the lawyer must make every effort practicable to avoid unnecessarydisclosure of information relating to a representation, to limit disclosure to those having theneed to know it, and to obtain protective orders or make other arrangements minimizing therisk of disclosure. Other law may require that a lawyer disclose information about a client. Whether sucha law supersedes Rule 1.6 is a question of law beyond the scope of these rules. Whendisclosure of information relating to the representation appears to be required by other law,the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, 26
    • however, the other law supersedes this rule and requires disclosure, paragraph (b)(6) permitsthe lawyer to make such disclosures as are necessary to comply with the law. A lawyer may be ordered to reveal information, relating to the representation of aclient, by a court or by another tribunal or governmental entity claiming authority pursuantto other law to compel the disclosure. Absent informed consent of the client to do otherwise,the lawyer should assert on behalf of the client all nonfrivolous claims that the order is notauthorized by other law or that the information sought is protected against disclosure by theother law or that the information sought is protected against disclosure by the attorney-clientprivilege or other applicable law. In the event of an adverse ruling, the lawyer must consultwith the client about the possibility of appeal to the extent required by Rule 1.4. Unlessreview is sought, however, paragraph (b)(6) permits the lawyer to comply with the court’sorder. Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes thedisclosure is necessary to accomplish one of the purposes specified. Where practicable, thelawyer should first seek to persuade the client to take suitable action to obviate the need fordisclosure. In any case, a disclosure adverse to the client’s interest should be no greater thanthe lawyer reasonably believes necessary to accomplish the purpose. If the disclosure willbe made in connection with a judicial proceeding, the disclosure should be made in a mannerthat limits access to the information to the tribunal or other person having a need to know itand appropriate protective orders or other arrangements should be sought by the lawyer tothe fullest extent practicable. Paragraph (b) permits but does not require the disclosure of information relating toa client’s representation to accomplish the purposes specified in paragraphs (b)(1) through(b)(6). In exercising the discretion conferred by this rule, the lawyer may consider suchfactors as the nature of the lawyer’s relationship with the client and with those who might beinjured by the client, the lawyer’s own involvement in the transaction and factors that mayextenuate the conduct in question. A lawyer’s decision not to disclose as permitted byparagraph (b) does not violate this rule. Disclosure may be required, however, by other rules.Some rules require disclosure only if such disclosure would be permitted by paragraph (b).See Rules 4,1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in somecircumstances regardless of whether such disclosure is permitted by this rule. Acting Competently to Preserve Confidentiality. A lawyer must act competentlyto safeguard information relating to the representation of a client against inadvertent orunauthorized disclosure by the lawyer or other persons who are participating in therepresentation of the client or who are subject to the lawyer’s supervision. See rules 1.1, 5.1and 5.3. 27
    • When transmitting a communication that includes information relating to therepresentation of a client, the lawyer must take reasonable precautions to prevent theinformation from coming into the hands of unintended recipients. This duty, however, doesnot require that the lawyer use special security measures if the method of communicationaffords a reasonable expectation of privacy. Special circumstances, however, may warrantspecial precautions. Factors to be considered in determining the reasonableness of thelawyer’s expectation of confidentiality include the sensitivity of the information and theextent to which the privacy of the communication is protected by law or by a confidentialityagreement. A client may require the lawyer to implement special security measures notrequired by this rule or may give informed consent to the use of a means of communicationthat would otherwise be prohibited by this rule. Disclosures Otherwise Required or Authorized. The attorney-client privilege isdifferently defined in various jurisdictions. If a lawyer is called as a witness to givetestimony concerning a client, absent waiver by the client, Rule 1.6(a) requires the lawyer toinvoke the privilege when it is applicable. The lawyer must comply with the final orders ofa court or other tribunal of competent jurisdiction requiring the lawyer to give informationabout the client. The Rules of Professional Conduct in various circumstances permit or require alawyer to disclose information relating to the representation. See Rules 2.2, 2.3, 3.3 and 4.1.In addition to these provisions, a lawyer may be obligated or permitted by other provisionsof the law to give information about a client. Whether another provision of law supersedesRule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumptionshould exist against such a supersession. Former Client. The duty of confidentiality continues after the client-lawyerrelationship has terminated. See Rule 1.9.[Amended June 23, 1994; amended effective November 3, 2005.] RULE 1.7 CONFLICT OF INTEREST: GENERAL RULE (a) A lawyer shall not represent a client if the representation of that client will bedirectly adverse to another client, unless the lawyer reasonably believes: (1) the representation will not adversely affect the relationship with the other client; and (2) each client has given knowing and informed consent after consultation. 28
    • The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved. (b) A lawyer shall not represent a client if the representation of that client may bematerially limited by the lawyers responsibilities to another client or to a third person, or bythe lawyers own interests, unless the lawyer reasonably believes: (1) the representation will not be adversely affected; and (2) the client has given knowing and informed consent after consultation. Theconsultation shall include explanation of the implications of the representation and theadvantages and risks involved. Comment Loyalty to a Client. Loyalty is an essential element in the lawyers relationship to aclient. An impermissible conflict of interest may exist before representation is undertaken,in which event the representation should be declined. If such a conflict arises afterrepresentation has been undertaken, the lawyer should withdraw from the representation. SeeRule 1.16. Where more than one client is involved and the lawyer withdraws because aconflict arises after representation, whether the lawyer may continue to represent any of theclients is determined by Rule 1.9. See also Rule 2.2(c). As to whether a client-lawyerrelationship exists or, having once been established, is continuing, see Comment to Rule 1.3and Scope. As a general proposition, loyalty to a client prohibits undertaking representationdirectly adverse to that client without that clients consent. Paragraph (a) expresses thatgeneral rule. Thus, a lawyer ordinarily may not act as advocate against a person the lawyerrepresents in some other matter, even if it is wholly unrelated. On the other hand,simultaneous representation in unrelated matters of clients whose interests are only generallyadverse, such as competing economic enterprises, does not require consent of the respectiveclients. Paragraph (a) applies only when the representation of one client would be directlyadverse to the other. Loyalty to a client is also impaired when a lawyer cannot consider, recommend orcarry out an appropriate course of action for the client because of the lawyers otherresponsibilities or interests. The conflict in effect forecloses alternatives that wouldotherwise be available to the client. Paragraph (b) addresses such situations. A possibleconflict does not itself preclude the representation. The critical questions are the likelihoodthat a conflict will eventuate and, if it does, whether it will materially interfere with the 29
    • lawyers independent professional judgment in considering alternatives or foreclose coursesof action that reasonably should be pursued on behalf of the client. Consideration should begiven to whether the client wishes to accommodate the other interest involved. Consultation and Consent. In some cases a client may consent to representationnotwithstanding a conflict. However, as indicated in paragraph (a)(1) with respect torepresentation directly adverse to a client, and paragraph (b)(1) with respect to materiallimitations on representation of a client, when a disinterested lawyer would conclude that theclient should not agree to the representation under the circumstances, the lawyer involvedcannot properly ask for such agreement or provide representation on the basis of the clientsconsent. When more than one client is involved, the question of conflict must be resolvedas to each client. Moreover, there may be circumstances where it is impossible to make thedisclosure necessary to obtain consent. For example, when the lawyer represents differentclients in related matters and one of the clients refuses to consent to the disclosure necessaryto permit the other client to make an informed decision, the lawyer cannot properly ask thelatter to consent. Lawyers Interests. The lawyers own interests should not be permitted to have anadverse effect on representation of a client. For example, a lawyers need for income shouldnot lead the lawyer to undertake matters that cannot be handled competently and atreasonable fee. See Rules 1.1 and 1.5. If the probity of a lawyers own conduct in atransaction is in serious question, it may be difficult or impossible for the lawyer to give aclient detached advice. A lawyer may not allow related business interests to affectrepresentation, for example, by referring clients to an enterprise in which the lawyer has anundisclosed interest. Conflicts in Litigation. Paragraph (a) prohibits representation of opposing partiesin litigation, including both parties to a divorce action. See MSB Ethics Opinion No. 80.Simultaneous representation of parties whose interests in litigation may conflict, such asco-plaintiffs or co-defendants, is governed by paragraph (b). An impermissible conflict mayexist by reason of substantial discrepancy in the parties testimony, incompatibility inpositions in relation to an opposing party or the fact that there are substantially differentpossibilities of settlement of the claims or liabilities in question. Such conflicts can arise incriminal cases as well as civil. The potential for conflict of interest in representing multipledefendants in a criminal case is so grave that ordinarily a lawyer should decline to representmore than one co-defendant. On the other hand, common representation of persons havingsimilar interests is proper if the risk of adverse effect is minimal and the requirements ofparagraph (b) are met. Compare Rule 2.2 involving intermediation between clients. Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in 30
    • some other matter, even if the other matter is wholly unrelated. However, there arecircumstances in which a lawyer may act as advocate against a client. For example, a lawyerrepresenting an enterprise with diverse operations may accept employment as an advocateagainst the enterprise in an unrelated matter if doing so will not adversely affect the lawyersrelationship with the enterprise or conduct of the suit and if both clients consent uponconsultation. By the same token, government lawyers in some circumstances may representgovernment employees in proceedings in which a government agency is the opposing party.The propriety of concurrent representation can depend on the nature of the litigation. Forexample, a suit charging fraud entails conflict to a degree not involved in a suit for adeclaratory judgment concerning statutory interpretation. A lawyer may represent parties having antagonistic positions on a legal question thathas arisen in different cases, unless representation of either client would be adverselyaffected. Thus, it is ordinarily not improper to assert such positions in cases pending indifferent trial courts, but it may be improper to do so in cases pending at the same time in anappellate court. Interest of Person Paying for a Lawyers Service. A lawyer may be paid from asource other than the client, if the client is informed of the fact and consents and thearrangement does not compromise the lawyers duty of loyalty to the client. See Rule 1.8(f).For example, when an insurer and its insured have conflicting interests in a matter arisingfrom a liability insurance agreement, and the insurer is required to provide special counselfor the insured, the arrangement should assure the special counsels professionalindependence. So also, when a corporation and its directors or employees are involved in acontroversy in which they have conflicting interests, the corporation may provide funds forseparate legal representation of the directors or employees, if the clients consent afterconsultation and the arrangement ensures the lawyers professional independence. Other Conflict Situations. Conflicts of interest in contexts other than litigationsometimes may be difficult to assess. Relevant factors in determining whether there ispotential for adverse effect include the duration and intimacy of the lawyers relationship withthe client or clients involved, the functions being performed by the lawyer, the likelihood thatactual conflict will arise and the likely prejudice to the client from the conflict if it does arise.The question is often one of proximity and degree. For example, a lawyer may not represent multiple parties to a negotiation whoseinterests are fundamentally antagonistic to each other, but common representation ispermissible where the clients are generally aligned in interest even though there is somedifference of interest among them. 31
    • Conflict questions may also arise in estate planning and estate administration. Alawyer may be called upon to prepare wills for several family members, such as husband andwife, and depending upon the circumstances, a conflict of interest may arise. In estateadministration the identity of the client may be unclear under the law of a particularjurisdiction. Under one view, the client is the fiduciary; under another view the client is theestate or trust, including its beneficiaries. The lawyer should make clear the relationship tothe parties involved. A lawyer for a corporation or other organization who is also a member of its board ofdirectors should determine whether the responsibilities of the two roles may conflict. Thelawyer may be called on to advise the corporation in matters involving actions of thedirectors. Consideration should be given to the frequency with which such situations mayarise, the potential intensity of the conflict, the effect of the lawyers resignation from theboard and the possibility of the corporations obtaining legal advice from another lawyer insuch situations. If there is material risk that the dual role will compromise the lawyersindependence of professional judgment, the lawyer should not serve as a director. Conflict Charged by an Opposing Party. Resolving questions of conflict of interestis primarily the responsibility of the lawyer undertaking the representation. In litigation, acourt may raise the question when there is reason to infer that the lawyer has neglected theresponsibility. In a criminal case, inquiry by the court is generally required when a lawyerrepresents multiple defendants. Where the conflict is such as clearly to call in question thefair or efficient administration of justice, opposing counsel may properly raise the question.Such an objection should be viewed with caution, however, for it can be misused as atechnique of harassment. See Scope. Code Comparison DR 5-101(A) provides that "Except with the consent of his client after full disclosure,a lawyer shall not accept employment if the exercise of his professional judgment on behalfof the client will be or reasonably may be affected by his own financial, business, property,or personal interests." DR 5-105(A) provides that "A lawyer shall decline profferedemployment if the exercise of his independent professional judgment in behalf of a client willbe or is likely to be adversely affected by the acceptance of the proffered employment, or ifit would be likely to involve him in representing differing interests, except to the extentpermitted under DR 5-105(C)." DR 5-105(C) provides that "In the situations covered by DR5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he canadequately represent the interest of each and if each consents to the representation after fulldisclosure of the possible effect of such representation on the exercise of his independentprofessional judgment on behalf of each." DR 5-107(B) provides that "A lawyer shall not 32
    • permit a person who recommends, employs, or pays him to render legal services for anotherto direct or regulate his professional judgment in rendering such services." Rule 1.7 goes beyond DR 5-105(A) in requiring that, when the lawyers other interestsare involved, not only must the client consent after consultation but also that, independentof such consent, the representation reasonably appears not to be adversely affected by thelawyers other interests. This requirement appears to be the intended meaning of theprovision in DR 5-105(C) that "it is obvious that he can adequately represent" the client, andis implicit in EC 5-2, which states that "A lawyer should not accept proffered employmentif his personal interests or desires will, or there is a reasonable possibility that they will,adversely affect the advice to be given or services to be rendered the prospective client." See MSB Ethics Opinions Nos. 43, 46, 52, 55, 58, 61, 63, 68, 80, 87, 99 and 103. RULE 1.8 CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS (a) A lawyer shall not enter into a business transaction with a client or knowinglyacquire an ownership, possessory, security or pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interests are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; (2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and (3) the client consents in writing thereto. (b) A lawyer shall not use information relating to representation of a client (1) to the disadvantage of the client, or (2) to the advantage of himself or a third person, unless the client consents after consultation. (c) A lawyer shall not prepare an instrument giving the lawyer or a person related tothe lawyer as parent, child, sibling, or spouse any substantial gift from a client, including atestamentary gift, except where the client is related to the donee. (d) Prior to the conclusion or representation of a client, a lawyer shall not make or 33
    • negotiate an agreement giving the lawyer literary or media rights to a portrayal or accountbased in substantial part on information relating to the representation. (e) A lawyer shall not provide financial assistance to a client in connection withpending or contemplated litigation, or administrative proceedings, except that: 1. A lawyer may advance court costs and expenses of litigation, including but not limited to reasonable medical expenses necessary to the preparation of the litigation for hearing or trial, the repayment of which may be contingent on the outcome of the matter; and 2. A lawyer representing a client may, in addition to the above, advance the following costs and expenses on behalf of the client, which shall be repaid upon successful conclusion of the matter. a. Reasonable and necessary medical expenses associated with treatment for the injury giving rise to the litigation or administrative proceeding for which the client seeks legal representation; and b. Reasonable and necessary living expenses incurred. The expenses enumerated in paragraph 2 above can only be advanced to a client underdire and necessitous circumstances, and shall be limited to minimal living expenses of minorsums such as those necessary to prevent foreclosure or repossession or for necessary medicaltreatment. There can be no payment of expenses under paragraph 2 until the expiration of60 days after the client has signed a contract of employment with counsel. Such paymentsunder paragraph 2 cannot include a promise of future payments, and counsel cannot promiseany such payments in any type of communication to the public, and such funds may only beadvanced after due diligence and inquiry into the circumstances of the client. Payments under paragraph 2 shall be limited to $1,500 to any one party by any lawyeror group or succession of lawyers during the continuation of any litigation unless, upon exparte application, such further payment has been approved by the Standing Committee onEthics of the Mississippi Bar. An attorney contemplating such payment must exercise duediligence to determine whether such party has received any such payments from anotherattorney during the continuation of the same litigation, and, if so, the total of such payments,without approval of the Standing Committee on Ethics shall not in the aggregate exceed$1,500. Upon denial of such application, the decision thereon shall be subject to review bythe Mississippi Supreme Court on petition of the attorney seeking leave to make further 34
    • payments. Payments under paragraph 2 aggregating $1,500 or less shall be reported by thelawyer making the payment to the Standing Committee on Ethics within seven (7) daysfollowing the making of each such payment. Applications for approval by the StandingCommittee on Ethics as required hereunder and notices to the Standing Committee on Ethicsof payments aggregating $1,500 or less, shall be confidential.[Amended October 21, 1999.] (f) A lawyer shall not accept compensation for representing a client from one otherthan the client unless: (1) the client consents after consultation; (2) there is no interference with the lawyers independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. (g) A lawyer who represents two or more clients shall not participate in making anaggregate settlement of the claims of or against the clients, or in a criminal case anaggregated agreement as to guilty or nolo contendere pleas, unless each client consents afterconsultation, including disclosure of the existence and nature of all the claims or pleasinvolved and of the participation of each person in the settlement. (h) A lawyer shall not make an agreement prospectively limiting the lawyers liabilityto a client for malpractice unless permitted by law and the client is independently representedin making the agreement, or settle a claim for such liability with an unrepresented client orformer client without first advising that person in writing that independent representation isappropriate in connection therewith. (i) A lawyer related to another lawyer as parent, child, sibling or spouse shall notrepresent a client in a representation directly adverse to a person who the lawyer knows isrepresented by the other lawyer except upon consent by the client after consultation regardingthe relationship. (j) A lawyer shall not acquire a proprietary interest in the cause of action or subjectmatter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyers fee or expenses; and 35
    • (2) contract with a client for a reasonable contingent fee in a civil case.[Amended March 25, 1999.] Comment Transactions Between Client and Lawyer. As a general principle, all transactionsbetween client and lawyer should be fair and reasonable to the client. In such transactionsa review by independent counsel on behalf of the client is often advisable. Furthermore, alawyer may not exploit information relating to the representation to the clients disadvantage.For example, a lawyer who has learned that the client is investing in specific real estate maynot, without the clients consent, seek to acquire nearby property where doing so wouldadversely affect the clients plan for investment. Paragraph (a) does not, however, apply tostandard commercial transactions between the lawyer and the client for products or servicesthat the client generally markets to others, for example, banking or brokerage services,medical services, products manufactured or distributed by the client, and utilities services.In such transactions, the lawyer has no advantage in dealing with the client, and therestrictions in paragraph (a) are unnecessary and impracticable. A lawyer may accept a gift from a client, if the transaction meets general standardsof fairness. For example, a simple gift such as a present given at a holiday or as a token ofappreciation is permitted. If effectuation of a substantial gift requires preparing a legalinstrument such as a will or conveyance, however, the client should have the detached advicethat another lawyer can provide. Paragraph (c) recognizes an exception where the client isa relative of the donee or the gift is not substantial. Literary Rights. An agreement by which a lawyer acquires literary or media rightsconcerning the conduct of the representation creates a conflict between the interests of theclient and the personal interests of the lawyer. Measures suitable in the representation of theclient may detract from the publication value of an account of the representation. Paragraph(d) does not prohibit a lawyer representing a client in a transaction concerning literaryproperty from agreeing that the lawyers fee shall consist of a share in ownership in theproperty, if the arrangement conforms to Rule 1.5 and paragraph (j). Person Paying for Lawyers Services. Rule 1.8(f) requires disclosure of the fact thatthe lawyers services are being paid for by a third party. Such an arrangement must alsoconform to the requirements of Rule 1.6 concerning confidentiality and Rule 1.7 concerningconflict of interest. Where the client is a class, consent may be obtained on behalf of the classby court-supervised procedure. 36
    • Family Relationships Between Lawyers. Rule 1.8(i) applies to related lawyers whoare in different firms. Related lawyers in the same firm are governed by Rules 1.7, 1.9, and1.10. The disqualification stated in Rule 1.8(i) is personal and is not imputed to membersof firms with whom the lawyers are associated. Acquisition of Interest in Litigation. Paragraph (j) states the traditional general rulethat lawyers are prohibited from acquiring a proprietary interest in litigation. This generalrule, which has its basis in common law champerty and maintenance, is subject to specificexceptions developed in decisional law and continued in these Rules, such as the exceptionfor reasonable contingent fees set forth in Rule 1.5 and the exception for certain advancesof the costs of litigation set forth in paragraph (e). This Rule is not intended to apply to customary qualification and limitations in legalopinions and memoranda. Code Comparison This Rule deals with certain transactions that per se involve conflict of interest. With regard to Rule 1.8(a), DR 5-104(A) provides that "A lawyer shall not enter intoa business transaction with a client if they have differing interests therein and if the clientexpects the lawyer to exercise his professional judgment therein for the protection of theclient, unless the client has consented after full disclosure." EC 5-3 states that "A lawyershould not seek to persuade his client to permit him to invest in an undertaking of his clientnor make improper use of his professional relationship to influence his client to invest in anenterprise in which the lawyer is interested." With regard to Rule 1.8(b), DR 4-101(B)(3) provides that a lawyer shall not "use aconfidence or secret of his client for the advantage of himself, or of a third person, unless theclient consents after full disclosure." There is no counterpart to Rule 1.8(c) in the Disciplinary Rules of the Code. EC 5-5states that "A lawyer should not suggest to his client that a gift be made to himself or for hisbenefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the chargethat he unduly influenced or overreached the client. If a client voluntarily offers to make agift to his lawyer, the lawyer may accept the gift, but before doing so, he should urge that theclient secure disinterested advice from an independent, competent person who is cognizantof all the circumstances. Other than in exceptional circumstances, a lawyer should insist thatan instrument in which his client desires to name him beneficially be prepared by anotherlawyer selected by the client." 37
    • Rule 1.8(d) is substantially similar to DR 5-104(B), but refers to "literary or media"rights, a more generally inclusive term than "publication" rights. Rule 1.8(e)(1) is similar to DR 5-103(B), but eliminates the requirement that "theclient remain ultimately liable for such expenses." Rule 1.8(e)(2) has no counterpart in the Code. Rule 1.8(f) is substantially identical to DR 5-107(A)(1). Rule 1.8(g) is substantially identical to DR 5-106. The first clause of Rule 1.8(h) deals with the same subject as DR 6-102(A). There isno counterpart in the Code to the second clause of Rule 1.8(h). Rule 1.8(i) has no counterpart in the Code. See MSB Ethics Opinion No. 102. RULE 1.9 CONFLICT OF INTEREST: FORMER CLIENT A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another in the same or a substantially related matter in which thatpersons interests are materially adverse to the interests of the former client unless the formerclient consents after consultation; or (b) use information relating to the representation to the disadvantage of the formerclient except as Rule 1.6 would permit with respect to a client or when the information hasbecome generally known. Comment After termination of a client-lawyer relationship, a lawyer may not represent anotherclient except in conformity with this Rule. The principles in Rule 1.7 determine whether theinterests of the present and former client are adverse. Thus, a lawyer could not properly seekto rescind on behalf of a new client a contract drafted on behalf of the former client. So alsoa lawyer who has prosecuted an accused person could not properly represent the accused insubsequent civil action against the government concerning the same transaction. 38
    • The scope of a "matter" for purposes of Rule 1.9(a) may depend on the facts of aparticular situation or transaction. The lawyers involvement in a matter can also be aquestion of degree. When a lawyer has been directly involved in a specific transaction,subsequent representation of other clients with materially adverse interests clearly isprohibited. On the other hand, a lawyer who recurrently handled a type of problem for aformer client is not precluded from later representing another client in a wholly distinctproblem of that type even though the subsequent representation involves a position adverseto the prior client. Similar considerations can apply to the reassignment of military lawyersbetween defense and prosecution functions within the same military jurisdiction. Theunderlying question is whether the lawyer was so involved in the matter that the subsequentrepresentation can be justly regarded as a changing of sides in the matter in question. Information acquired by the lawyer in the course of representing a client may notsubsequently be used by the lawyer to the disadvantage of the client. However, the fact thata lawyer has once served a client does not preclude the lawyer from using generally knowninformation about that client when later representing another client. Disqualification from subsequent representation is for the protection of clients and canbe waived only by them. A waiver is effective only if there is disclosure of thecircumstances, including the lawyers intended role in behalf of a new client. With regard to an opposing partys raising a question of conflict of interest, seeComment to Rule 1.7. With regard to disqualification of a firm with which a lawyer isassociated, see Rule 1.10. Code Comparison There is no counterpart to Rule 1.9(a) or (b) in the Disciplinary Rules of the Code.The problem addressed in Rule 1.9(a) sometimes has been dealt with under the rubric ofCanon 9 of the Code, which provides that "A lawyer should avoid even the appearance ofimpropriety." EC 4-6 states that "the obligation of a lawyer to preserve the confidences andsecrets of his client continues after the termination of his employment." The exception in the last sentence of Rule 1.9(b) permits a lawyer to use informationrelating to a former client that is in the "public domain," a use that is also not prohibited bythe Code. Since the scope of Rule 1.6(a) is much broader than "confidences and secrets," itis necessary to define when a lawyer may make use of information after the client-lawyerrelationship has terminated. The provision for waiver by the former client is in effect similar to DR 5-105(C). 39
    • See MSB Ethics Opinion No. 106. RULE 1.10 IMPUTED DISQUALIFICATION: GENERAL RULE (a) While lawyers are associated in a firm, none of them shall knowingly represent aclient when any one of them practicing alone would be prohibited from doing so by Rules1.7, 1.8(c), 1.9 or 2.4. (b) When a lawyer becomes associated with a firm, the firm may not knowinglyrepresent a person in the same or a substantially related matter in which that lawyer, or a firmwith which the lawyer was associated, had previously represented a client whose interests arematerially adverse to that person and about whom the lawyer had acquired informationprotected by Rules 1.6 and 1.9(b) that is material to the matter. (c) When a lawyer has terminated an association with a firm, the firm is not prohibitedfrom thereafter representing a person with interests materially adverse to those of a clientrepresented by the formerly associated lawyer unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(b) that is material to the matter. (d) A disqualification prescribed by this Rule may be waived by the affected clientunder the conditions stated in Rule 1.7.[Amended effective November 3, 2005 to add reference to Rule 2.4.] Comment Definition of "Firm". For purposes of the Rules of Professional Conduct, the term"firm" includes lawyers in a private firm, and lawyers employed in the legal department ofa corporation or other organization. Whether two or more lawyers constitute a firm withinthis definition can depend on the specific facts. For example, two practitioners who shareoffice space and occasionally consult or assist each other ordinarily would not be regardedas constituting a firm. However, if they present themselves to the public in a way suggestingthat they are a firm or conduct themselves as a firm, they should be regarded as a firm forpurposes of the Rules. The terms of any formal agreement between associated lawyers arerelevant in determining whether they are a firm, as is the fact that they have mutual access 40
    • to confidential information concerning the clients they serve. Furthermore, it is relevant indoubtful cases to consider the underlying purpose of the rule that is involved. A group oflawyers could be regarded as a firm for purposes of the rule that the same lawyer should notrepresent opposing parties in litigation, while it might not be so regarded for purposes of therule that information acquired by one lawyer is attributed to another. With respect to the law department of an organization, there is ordinarily no questionthat the members of the department constitute a firm within the meaning of the Rules ofProfessional Conduct. However, there can be uncertainty as to the identity of the client. Forexample, it may not be clear whether a law department of a corporation represents asubsidiary or an affiliated corporation, as well as the corporation by which the members ofthe department are directly employed. A similar question can arise concerning anunincorporated association and its local affiliates. Similar questions can also arise with respect to lawyers in legal aid. Lawyersemployed in the same unit of a legal service organization constitute a firm, but notnecessarily those employed in separate units. As in the case of independent practitioners,whether the lawyers should be treated as associated with each other can depend on theparticular rule that is involved, and on the specific facts of the situation. Where a lawyer has joined a private firm after having represented the government, thesituation is governed by Rule 1.11(a) and (b); where a lawyer represents the government afterhaving served private clients, the situation is governed by Rule 1.11(c)(1). The individuallawyer involved is bound by the Rules generally, including Rules 1.6, 1.7, and 1.9. Different provisions are thus made for movement of a lawyer from one private firmto another and for movement of a lawyer between a private firm and the government. Thegovernment is entitled to protection of its client confidences, and therefore to the protectionsprovided in Rules 1.6, 1.9, and 1.11. However, if the more extensive disqualification in Rule1.10 were applied to former government lawyers, the potential effect on the governmentwould be unduly burdensome. The government deals with all private citizens andorganizations, and thus has a much wider circle of adverse legal interests than does anyprivate law firm. In these circumstances, the governments recruitment of lawyers would beseriously impaired if Rule 1.10 were applied to the government. On balance, therefore, thegovernment is better served in the long run by the protections stated in Rule 1.11. Principles of Imputed Disqualifications. The rule of imputed disqualification statedin paragraph (a) gives effect to the principles of loyalty to the client as it applies to lawyerswho practice in a law firm. Such situations can be considered from the premise that a firmof lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, 41
    • or from the premise that each lawyer is vicariously bound by the obligation of loyalty ownedby each lawyer with whom the lawyer is associated. Paragraph (a) operates only among thelawyers currently associated in a firm. When a lawyer moves from one firm to another, thesituation is governed by paragraphs (b) and (c). Lawyers Moving Between Firms. When lawyers have been associated in a firm butthen end their association, however, the problem is more complicated. The fiction that thelaw firm is the same as a single lawyer is no longer wholly realistic. There are severalcompeting considerations. First, the client previously represented must be reasonably assuredthat the principle of loyalty to the client is not compromised. Second, the rule ofdisqualification should not be so broadly cast as to preclude other persons from havingreasonable choice of legal counsel. Third, the rule of disqualification should notunreasonably hamper lawyers from forming new associations and taking on new clients afterhaving left a previous association. In this connection, it should be recognized that todaymany lawyers practice in firms, that many to some degree limit their practice to one field oranother, and that many move from one association to another several times in their careers.If the concept of imputed disqualification were defined with unqualified rigor, the resultwould be radical curtailment of the opportunity of lawyers to move from one practice settingto another and the opportunity of clients to change counsel. Reconciliation of these competing principles in the past has been attempted under tworubrics. One approach has been to seek per se rules of disqualification. For example, it hasbeen held that a partner in a law firm is conclusively presumed to have access to allconfidences concerning all clients of the firm. Under this analysis, if a lawyer has been apartner in one law firm and then becomes a partner in another law firm, there is apresumption that all confidences known by a partner in the first firm are known to allpartners in the second firm. This presumption might properly be applied in somecircumstances, especially where the client has been extensively represented, but may beunrealistic where the client was represented only for limited purposes. Furthermore, such arigid rule exaggerates the difference between a partner and an associate in modern law firms. The other rubric formerly used for dealing with vicarious disqualification is theappearance of impropriety proscribed in Canon 9 of the Code of Professional Responsibility.This rubric has a two-fold problem. First, the appearance of impropriety can be taken toinclude any new client-lawyer relationship that might make a former client feel anxious. Ifthat meaning were adopted, disqualification would become little more than a question ofsubjective judgment by the former client. Second, since "impropriety" is undefined, the term"appearance of impropriety" is question-begging. It therefore has to be recognized that theproblem of imputed disqualification cannot be properly resolved either by simple analogy toa lawyer practicing alone or by the very general concept of appearance of impropriety. 42
    • A rule based on a functional analysis is more appropriate for determining the questionof vicarious disqualification. Two functions are involved: preserving confidentiality andavoiding positions adverse to a client. Confidentiality. Preserving confidentiality is a question of access to information.Access to information, in turn, is essentially a question of fact in particular circumstances,aided by inferences, deductions or working presumptions that reasonably may be made aboutthe way in which lawyers work together. A lawyer may have general access to files of allclients of a law firm and may regularly participate in discussions of their affairs; it should beinferred that such a lawyer in fact is privy to all information about all the firms clients. Incontrast, another lawyer may have access to the files of only a limited number of clients andparticipate in discussion of the affairs of no other clients; in the absence of information to thecontrary, it should be inferred that such a lawyer in fact is privy to information about theclients actually served but not those of other clients. Application of paragraphs (b) and (c) depends on a situations particular facts. In anysuch inquiry, the burden of proof should rest upon the firm whose disqualification is sought. Paragraphs (b) and (c) operate to disqualify the firm only when the lawyer involvedhas actual knowledge of information protected by Rules 1.6 and 1.9(b). Thus, if a lawyerwhile with one firm acquired no knowledge of information relating to a particular client ofthe firm, and that lawyer later joined another firm, neither the lawyer individually nor thesecond firm is disqualified from representing another client in the same or a related mattereven though the interests of the two clients conflict. Independent of the question of disqualification of a firm, a lawyer changingprofessional association has a continuing duty to preserve confidentiality of informationabout a client formerly represented. See Rules 1.6 and 1.9. Adverse Positions. The second aspect of loyalty to a client is the lawyers obligationto decline subsequent representations involving positions adverse to a former client arisingin substantially related matters. This obligation requires abstention from adverserepresentation by the individual lawyer involved, but does not properly entail abstention ofother lawyers through imputed disqualification. Hence, this aspect of the problem isgoverned by Rule 1.9(a). Thus, if a lawyer left one firm for another, the new affiliationwould not preclude the firms involved from continuing to represent clients with adverseinterests in the same or related matters, so long as the conditions of Rule 1.10(b) and (c)concerning confidentiality have been met. Code Comparison 43
    • DR 5-105(D) provides that "If a lawyer is required to decline or to withdraw fromemployment under a Disciplinary Rule, no partner, or associate, or affiliate with him or hisfirm, may accept or continue such employment." RULE 1.11 SUCCESSIVE GOVERNMENT AND PRIVATE EMPLOYMENT (a) Except as law may otherwise expressly permit, a lawyer shall not represent aprivate client in connection with a matter in which the lawyer participated personally andsubstantially as a public officer or employee, unless the appropriate government agencyconsents after consultation. No lawyer in a firm with which that lawyer is associated mayknowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule. (b) Except as law may otherwise expressly permit, a lawyer having information thatthe lawyer knows is confidential government information about a person acquired when thelawyer was a public officer or employee, may not represent a private client whose interestsare adverse to that person in a matter in which the information could be used to the materialdisadvantage of that person. A firm with which that lawyer is associated may undertake orcontinue representation in the matter only if the disqualified lawyer is screened from anyparticipation in the matter and is apportioned no part of the fee therefrom. (c) Except as law may otherwise expressly permit, a lawyer serving as a public officeror employee shall not: (1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyers stead in the matter; or (2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially. 44
    • (d) As used in this Rule, the term "matter" includes: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency. (e) As used in this Rule, the term "confidential government information" meansinformation which has been obtained under governmental authority and which, at the timethis Rule is applied, the government is prohibited by law from disclosing to the public or hasa legal privilege not to disclose, and which is not otherwise available to the public. Comment This Rule prevents a lawyer from exploiting public office for the advantage of aprivate client. It is a counterpart of Rule 1.10(b), which applies to lawyers moving from onefirm to another. A lawyer representing a government agency, whether employed or specially retainedby the government, is subject to the Rules of Professional Conduct, including the prohibitionagainst representing adverse interests stated in Rule 1.7 and the protections afforded formerclients in Rule 1.9. In addition, such a lawyer is subject to Rule 1.11 and to statutes andgovernment regulations regarding conflict of interest. Such statutes and regulations maycircumscribe the extent to which the government agency may give consent under this Rule. Where the successive clients are a public agency and a private client, the risk existsthat power or discretion vested in public authority might be used for the special benefit of aprivate client. A lawyer should not be in a position where benefit to a private client mightaffect performance of the lawyers professional functions on behalf of public authority. Also,unfair advantage could accrue to the private client by reason of access to confidentialgovernment information about the clients adversary obtainable only through the lawyersgovernment service. However, the rules governing lawyers presently or formerly employedby a government agency should not be so restrictive as to inhibit transfer of employment toand from the government. The government has a legitimate need to attract qualified lawyersas well as to maintain high ethical standards. The provisions for screening and waiver arenecessary to prevent the disqualification rule from imposing too severe a deterrent againstentering public service. 45
    • When the client is an agency of one government, that agency should be treated as aprivate client for purposes of this Rule if the lawyer thereafter represents an agency ofanother government, as when a lawyer represents a city and subsequently is employed by afederal agency. Paragraphs (a)(1) and (b) do not prohibit a lawyer from receiving a salary orpartnership share established by prior independent agreement. They prohibit directly relatingthe attorneys compensation to the fee in the matter in which the lawyer is disqualified. Paragraph (a)(2) does not require that a lawyer give notice to the government agencyat a time when premature disclosure would injure the client; a requirement for prematuredisclosure might preclude engagement of the lawyer. Such notice is, however, required tobe given as soon as practicable in order that the government agency will have a reasonableopportunity to ascertain that the lawyer is complying with Rule 1.11 and to take appropriateaction if it believes the lawyer is not complying. Paragraph (b) operates only when the lawyer in question has knowledge of theinformation, which means actual knowledge; it does not operate with respect to informationthat merely could be imputed to the lawyer. Paragraphs (a) and (c) do not prohibit a lawyer from jointly representing a privateparty and a government agency when doing so is permitted by Rule 1.7 and is not otherwiseprohibited by law. Paragraph (c) does not disqualify other lawyers in the agency with which the lawyerin question has become associated. Code Comparison Rule 1.11(a) is similar to DR 9-101(B), except that the latter uses the terms "in whichhe had substantial responsibility while he was a public employee." Rules 1.11(b), (c), (d) and (e) have no counterparts in the Code. See MSB Ethics Opinion No. 45.RULE 1.12 FORMER JUDGE, ARBITRATOR, MEDIATOR OR OTHER THIRD PARTY NEUTRAL (a) Except as stated in paragraph (d), a lawyer shall not represent anyone in 46
    • connection with a matter in which the lawyer participated personally and substantially as ajudge or other adjudicative officer, or law clerk to such person or as an arbitrator, mediatoror other third-party neutral, unless all parties to the proceeding give informed consentconfirmed in writing. (b) A lawyer shall not negotiate for employment with any person who is involved asa party or as an attorney for a party in a matter in which the lawyer is participating personallyand substantially as a judge or other adjudicative officer, or as a law clerk to such a personor as an arbitrator, mediator, or other third-party neutral. (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which thatlawyer is associated may knowingly undertake or continue representation in the matterunless: (1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule. (d) An arbitrator selected as a partisan of a party in a multi-member arbitration panelis not prohibited from subsequently representing that party.[Amended effective November 3, 2005 to include third party neutrals generally.] Comment This Rule generally parallels Rule 1.11. The term "personally and substantially"signifies that a judge who was a member of a multimember court, and thereafter left judicialoffice to practice law, is not prohibited from representing a client in a matter pending in thecourt, but in which the former judge did not participate. So also the fact that a former judgeexercised administrative responsibility in a court does not prevent the former judge fromacting as a lawyer in a matter where the judge had previously exercised remote or incidentaladministrative responsibility that did not affect the merits. Compare the Comment to Rule1.11. The term "adjudicative officer" includes such officials as judges pro tempore, referees,special masters, hearing officers and other parajudicial officers, and also lawyers who serveas part-time judges. Like former judges, lawyers who have served as arbitrators, mediators or other third-party neutrals may be asked to represent a client in a matter in which the lawyer participated 47
    • personally and substantially. This Rule forbids such representation unless all of the partiesto the proceedings give their informed consent, confirmed in writing. See Terminology.Other law or codes of ethics governing third-party neutrals may impose more stringentstandards of personal or imputed disqualification. Rule 2.4. Although lawyers who serve as third-party neutrals do not have informationconcerning the parties that is protected under Rule 1.6, they typically owe the parties anobligation of confidentiality under law or codes of ethics governing third-party neutrals.Thus, paragraph (c) provides that conflicts of the personally disqualified lawyer will beimputed to other lawyers in a law firm unless the conditions of this paragraph are met. Requirements for screening procedures are stated in Terminology. Paragraph (c) (1)does not prohibit the screened lawyer from receiving a salary or partnership share establishedby prior independent agreement, but that lawyer may not receive compensation directlyrelated to the matter in which the lawyer is disqualified. Notice, including a description of the screened lawyer’s prior representation and ofthe screening procedures employed, generally should be given as soon as practicable afterthe need for screening becomes apparent.[Amended effective November 3, 2005.] Code Comparison Paragraph (a) is substantially similar to DR 9-101(A), which provides that "A lawyershall not accept employment in a matter upon the merits of which he has acted in a judicialcapacity." Paragraph (a) differs, however, in that it is broader in scope and states morespecifically the persons to whom it applies. There is no counterpart in the Code toparagraphs (b), (c) or (d). With regard to arbitrators, EC 5-20 states that "a lawyer who has undertaken to act asan impartial arbitrator or mediator, ... should not thereafter represent in the dispute any of theparties involved." DR 9-101(A) does not provide a waiver of the disqualification applied toformer judges by consent of the parties. However, DR 5-105(C) is similar in effect and couldbe construed to permit waiver. RULE 1.13 ORGANIZATION AS CLIENT (a) A lawyer employed or retained by an organization represents the organizationacting through its duly authorized constituents. 48
    • (b) If a lawyer for an organization knows that an officer, employee or other personassociated with the organization is engaged in action, intends to act or refuses to act in amatter related to the representation that is a violation of a legal obligation to the organization,or a violation of law which reasonably might be imputed to the organization, and is likely toresult in substantial injury to the organization, the lawyer shall proceed as is reasonablynecessary in the best interest of the organization. In determining how to proceed, the lawyershall give due consideration to the seriousness of the violation and its consequences, thescope and nature of the lawyers representation, the responsibility in the organization and theapparent motivation of the person involved, the policies of the organization concerning suchmatters and any other relevant considerations. Any measures taken shall be designed tominimize disruption of the organization and the risk of revealing information relating to therepresentation to persons outside the organization. Such measures may include amongothers: (1) asking reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law. (c) If, despite the lawyers efforts in accordance with paragraph (b), the highestauthority that can act on behalf of the organization insists upon action, or a refusal to act, thatis clearly a violation of law and is likely to result in substantial injury to the organization, thelawyer may resign in accordance with Rule 1.16. (d) In dealing with an organizations directors, officers, employees, members,shareholders or other constituents, a lawyer shall explain the identity of the client when it isapparent that the organizations interests are adverse to those of the constituents with whomthe lawyer is dealing. (e) A lawyer representing an organization may also represent any of its directors,officers, employees, members, shareholders or other constituents, subject to the provisionsof Rule 1.7. If the organizations consent to the dual representation is required by Rule 1.7,the consent shall be given by an appropriate official of the organization other than theindividual who is to be represented, or by the shareholders. Comment 49
    • The Entity as the Client. An organizational client is a legal entity, but it cannot actexcept through its officers, directors, employees, shareholders and other constituents. Officers, directors, employees and shareholders are the constituents of the corporateorganizational client. The duties defined in this Comment apply equally to unincorporatedassociations. "Other constituents" as used in this Comment means the positions equivalentto officers, directors, employees and shareholders held by persons acting for organizationalclients that are not corporations. When one of the constituents of an organizational client communicates with theorganizations lawyer in that persons organizational capacity, the communication is protectedby Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer toinvestigate allegations of wrongdoing, interviews made in the course of that investigationbetween the lawyer and the clients employees or other constituents are covered by Rule 1.6.This does not mean, however, that constituents of an organizational client are the clients ofthe lawyer. The lawyer may not disclose to such constituents information relating to therepresentation except for disclosures explicitly or impliedly authorized by the organizationalclient in order to carry out the representation or as otherwise permitted by Rule 1.6. When constituents of the organization make decisions for it, the decisions ordinarilymust be accepted by the lawyer even if their utility or prudence is doubtful. Decisionsconcerning policy and operations, including ones entailing serious risk, are not as such in thelawyers province. However, different considerations arise when the lawyer knows that theorganization may be substantially injured by action of a constituent that is in violation of law.In such a circumstance, it may be reasonably necessary for the lawyer to ask the constituentto reconsider the matter. If that fails, or if the matter is of sufficient seriousness andimportance to the organization, it may be reasonably necessary for the lawyer to take stepsto have the matter reviewed by a higher authority in the organization. Clear justificationshould exist for seeking review over the head of the constituent normally responsible for it.The stated policy of the organization may define circumstances and prescribe channels forsuch review, and a lawyer should encourage the formulation of such a policy. Even in theabsence of organization policy, however, the lawyer may have an obligation to refer a matterto higher authority, depending on the seriousness of the matter and whether the constituentin question has apparent motives to act at variance with the organizations interest. Reviewby the chief executive officer or by the board of directors may be required when the matteris of importance commensurate with their authority. At some point it may be useful oressential to obtain an independent legal opinion. In an extreme case, it may be reasonably necessary for the lawyer to refer the matter 50
    • to the organizations highest authority. Ordinarily, that is the board of directors or similargoverning body. However, applicable law may prescribe that under certain conditionshighest authority reposes elsewhere; for example, in the independent directors of acorporation. Relation to Other Rules. The authority and responsibility provided in paragraph (b)are concurrent with the authority and responsibility provided in other rules. In particular, thisRule does not limit or expand the lawyers responsibility under Rules 1.6, 1.8 and 1.16, 3.3or 4.1. If the lawyers services are being used by an organization to further a crime or fraudby the organization, Rule 1.2(d) can be applicable. Government Agency. The duty defined in this Rule applies to governmentalorganizations. However, when the client is a governmental organization, a different balancemay be appropriate between maintaining confidentiality and assuring that the wrongfulofficial act is prevented or rectified, for public business is involved. In addition, duties oflawyers employed by the government or lawyers in military service may be defined bystatutes and regulation. Therefore, defining precisely the identity of the client andprescribing the resulting obligations of such lawyers may be more difficult in the governmentcontext. Although in some circumstances the client may be a specific agency, it is generallythe government as a whole. For example, if the action or failure to act involves the head ofa bureau, either the department of which the bureau is a part or the government as a wholemay be the client for purpose of this Rule. Moreover, in a matter involving the conduct ofgovernment officials, a government lawyer may have authority to question such conductmore extensively than that of a lawyer for a private organization in similar circumstances.This Rule does not limit that authority. See note on Scope. Clarifying the Lawyers Role. There are times when the organizations interest maybe or become adverse to those of one or more of its constituents. In such circumstances thelawyer should advise any constituent, whose interest the lawyer finds adverse to that of theorganization, of the conflict or potential conflict of interest, that the lawyer cannot representsuch constituent, and that such person may wish to obtain independent representation. Caremust be taken to assure that the individual understands that, when there is such adversity ofinterest, the lawyer for the organization cannot provide legal representation for thatconstituent individual, and that discussions between the lawyer for the organization and theindividual may not be privileged. Dual Representation. Paragraph (e) recognizes that a lawyer for an organization mayalso represent a principal officer or shareholder. Derivative Actions. Under generally prevailing law, the shareholders or members 51
    • of a corporation may bring suit to compel the directors to perform their legal obligations inthe supervision of the organization. Members of unincorporated associations have essentiallythe same right. Such an action may be brought nominally by the organization, but usually is,in fact, a legal controversy over management of the organization. The question can arise whether counsel for the organization may defend such anaction. The proposition that the organization is the lawyers client does not alone resolve theissue. Most derivative actions are a normal incident of an organizations affairs, to bedefended by the organizations lawyer like any other suit. However, if the claim involvesserious charges of wrongdoing by those in control of the organization, a conflict may arisebetween the lawyers duty to the organization and the lawyers relationship with the board.In those circumstances, Rule 1.7 governs who should represent the directors and theorganization. Code Comparison There is no counterpart to this Rule in the Disciplinary Rules of the Code. EC 5-18states that "A lawyer employed or retained by a corporation or similar entity owes hisallegiance to the entity and not to a stockholder, director, officer, employee, representative,or other person connected with the entity. In advising the entity, a lawyer should keepparamount its interests and his professional judgment should not be influenced by thepersonal desires of any person or organization. Occasionally, a lawyer for an entity isrequested by a stockholder, director, officer, employee, representative, or other personconnected with the entity to represent him in an individual capacity; in such a case the lawyermay serve the individual only if the lawyer is convinced that differing interests are notpresent." EC 5-24 states "Although a lawyer may be employed by a business corporationwith non-lawyers serving as directors or officers, and they necessarily have the right to makedecisions of business policy, a lawyer must decline to accept direction of his professionaljudgment from any layman." DR 5-107(B) provides that "a lawyer shall not permit a personwho ... employs ... him to render legal services for another to direct or regulate hisprofessional judgment in rendering such legal services." RULE 1.14 CLIENT UNDER A DISABILITY (a) When a clients ability to make adequately considered decisions in connection withthe representation is impaired, whether because of minority, mental disability or for someother reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyerrelationship with the client. (b) A lawyer may seek the appointment of a guardian or take other protective action 52
    • with respect to a client, only when the lawyer reasonably believes that the client cannotadequately act in the clients own interest. (c) Information relating to the representation of a client who may be impaired isprotected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyeris impliedly authorized under Rule 1.6(a) to reveal information about the client, but only tothe extent necessary to protect the client’s interest.[Amended effective November 3, 2005 to add subsection (c).] Comment The normal client-lawyer relationship is based on the assumption that the client, whenproperly advised and assisted, is capable of making decisions about important matters. Whenthe client is a minor or suffers from a mental disorder or disability, however, maintaining theordinary client-lawyer relationship may not be possible in all respects. In particular, anincapacitated person may have no power to make legally binding decisions. Nevertheless,a client lacking legal competence often has the ability to understand, deliberate upon, andreach conclusions about matters affecting the clients own well-being. Furthermore, to anincreasing extent the law recognizes intermediate degrees of competence. For example,children as young as five or six years of age, and certainly those of ten or twelve, areregarded as having opinions that are entitled to weight in legal proceedings concerning theircustody. So also, it is recognized that some persons of advanced age can be quite capableof handling routine financial matters while needing special legal protection concerning majortransactions. The fact that a client suffers a disability does not diminish the lawyers obligation totreat the client with attention and respect. If the person has no guardian or legalrepresentative, the lawyer often must act as de facto guardian. Even if the person does havea legal representative, the lawyer should as far as possible accord the represented person thestatus of client, particularly in maintaining communication. If a legal representative has already been appointed for the client, the lawyer shouldordinarily look to the representative for decisions on behalf of the client. If a legalrepresentative has not been appointed, the lawyer should see to such an appointment whereit would serve the clients best interests. Thus, if a disabled client has substantial propertythat should be sold for the clients benefit, effective completion of the transaction ordinarilyrequires appointment of a legal representative. In many circumstances, however,appointment of a legal representative may be expensive or traumatic for the client.Evaluation of these considerations is a matter of professional judgment on the lawyers part. 53
    • If the lawyer represents the guardian as distinct from the ward, and is aware that theguardian is acting adversely to the wards interest, the lawyer may have an obligation toprevent or rectify the guardians misconduct. See Rule 1.2(d). Disclosure of the Clients Condition. Rules of procedure in litigation generallyprovide that minors or persons suffering a mental disability shall be represented by aguardian or next friend if they do not have a general guardian. However, disclosure of theclients disability could, in some circumstances, lead to proceedings for involuntarycommitment. The lawyers position in such cases is an unavoidably difficult one. The lawyermay seek guidance from an appropriate diagnostician. Disclosure of the Clients Condition. Rules of procedure in litigation generallyprovide that minors or persons suffering a mental disability shall be represented by aguardian or next friend if they do not have a general guardian. However, disclosure of theclient’s disability could, in some circumstances, lead to proceedings for involuntarycommitment. Information relating to the representation is protected by Rule 1.6. Therefore,unless authorized to do so, the lawyer may not disclose such information. When takingprotective action pursuant to paragraph (b), the lawyer is impliedly authorized to make thenecessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless,given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consultingwith other individuals or entities or seeking the appointment of a legal representative. At thevery least, the lawyer should determine whether it is likely that the person or entity consultedwill act adversely to the client’s interests before discussing matters related to the client. Thelawyer’s position in such cases is an unavoidably difficult one. The lawyer may seekguidance from an appropriate diagnostician.[Amended effective November 3, 2005.] Code Comparison There is no counterpart to this Rule in the Disciplinary Rules of the Code. EC 7-12states that "Any mental or physical condition of a client that renders him incapable of makinga considered judgment on his own behalf casts additional responsibilities upon his lawyer.Where an incompetent is acting through a guardian or other legal representative, a lawyermust look to such representative for those decisions which are normally the prerogative ofthe client to make. If a client under disability has no legal representative, his lawyer may becompelled in court proceedings to make decisions on behalf of the client. If the client iscapable of understanding the matter in question or of contributing to the advancement of hisinterests, regardless of whether he is legally disqualified from performing certain acts, thelawyer should obtain from him all possible aid. If the disability of a client and the lack of 54
    • a legal representative compel the lawyer to make decisions for his client, the lawyer shouldconsider all circumstances then prevailing and act with care to safeguard and advance theinterests of his client. But obviously a lawyer cannot perform any act or RULE 1.15 SAFEKEEPING PROPERTYEffective January 1, 2007(a) A lawyer shall hold clients’ and third persons’ property separate from the lawyers ownproperty. Funds shall be kept in a separate trust account maintained in the state where the lawyersoffice is situated, or elsewhere with the consent of the client or third person. Other property shall beidentified as such and appropriately safeguarded. Complete records of such trust account funds andother property shall be kept and preserved by the lawyer for a period of seven years after terminationof the representation.(b) Upon receiving funds or other property in which a client or third person has an interest, alawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwisepermitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or thirdperson any funds or other property the client or third person is entitled to receive and, upon requestby the client or third person, shall promptly render a full accounting regarding such property.(c) When a lawyer is in possession of property in which both the lawyer and another personclaim an interest, the property shall be kept separate by the lawyer until completion of an accountingand severance of their respective interests. If a dispute arises concerning their respective interests,the lawyer shall disburse the portion not in dispute, and keep separate the portion in dispute until thedispute is resolved.(d) Except as provided in paragraph (f) of this rule, a lawyer or law firm shall create andmaintain an interest- or dividend-bearing trust account (IOLTA Account) for all funds which arenominal or short term funds that cannot earn income for the client or third party in excess of the costsincurred to secure such income (IOLTA eligible Funds), pursuant to the following: (1) All trust Funds shall be deposited in a lawyers or law firms IOLTA Account unless– in the lawyer’s judgment – the funds can earn income for the client or third party in excess of the costs incurred to secure such income. (2) No earnings from such an IOLTA Account shall be made available to a lawyer or law firm. (3) IOLTA Accounts shall be established only with financial institutions: i. authorized by federal or state law to do business in Mississippi; 55
    • ii. the deposits of which are insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation or any successors thereof; iii. which pay a rate of interest or dividend on IOLTA Accounts that is no less than the highest rate generally available to its own non-IOLTA Account depositors when the IOLTA Account meets the same minimum balance or other eligibility requirements, provided however that: (a) IOLTA Accounts may be maintained in an interest-bearing checking account or an interest or dividend-bearing account with check-writing and with a sweep feature which is tied to either a money market account insured by an agency of the federal government or a money market fund or daily overnight repurchase agreement invested solely in or fully collateralized by U.S. Government securities (defined as U.S. Treasury obligations and obligations issued or guaranteed as to principal and interest by the United States or any agency or instrumentality thereof) so long as there is no impairment of the right to immediately withdraw and transfer principal as soon as permitted by law; (b) institutions may choose to pay these rates on a qualifying IOLTA checking account instead of establishing the higher rate product; and (c) institutions may also elect to pay a higher interest or dividend rate and may waive any fees on IOLTA Accounts.(4) Financial institutions are prohibited from using interest from one IOLTA Account to payfees or charges in excess of the interest earned on another IOLTA Account. If not waived bythe financial institution, such fees, if any, are the responsibility of the lawyer or the law firm.(5) Lawyers or law firms depositing funds in an IOLTA Account established pursuant to thisrule shall direct the depository institution: i. to remit all interest, net of reasonable service charges or fees, if any, on the average monthly balance in the account, or as otherwise computed in accordance with the institutions standard accounting practice, at least quarterly, to the Mississippi Bar Foundation, Inc. For the purposes of this paragraph, reasonable services charges or fees shall not include fees for wire transfers, insufficient funds, bad checks, stop payments, account reconciliation, negative collected balances and check printing; ii. to transmit with each remittance to the Foundation a report showing the following information for each IOLTA Account: the name of the lawyer or law firm, the amount of interest or dividends earned, the rate and type of interest or dividend applied, the amount of any services charges or fees assessed during the remittance period, the net amount of interest or dividends remitted for the period, the average account balance for the period for which the interest was earned and such other 56
    • information as is reasonably required by the Foundation; iii. to transmit to the depositing lawyer or law firm a periodic account statement in accordance with normal procedures for reporting to depositors.(e) Any IOLTA Account which has or may have the net effect of costing the IOLTA programmore in fees than earned in interest over a period of time may, at the discretion of the Foundation,be exempted from and removed from the IOLTA program. Exemption of an IOLTA Account fromthe IOLTA program revokes the permission to use the Foundations tax identification number for thataccount. Exemption of such account from the IOLTA program shall not relieve the lawyer and/orlaw firm from the obligation to maintain the nominal or short term funds of clients and third personsseparately, as required above, in a non-interest bearing account.(f) Every lawyer admitted to practice in this State shall annually certify to this Court that allIOLTA eligible Funds are held in an IOLTA Account, or that the lawyer is exempt because thelawyer: (1) is not engaged in the private practice of law; (2) does not have an office within the State of Mississippi; (3) is a judge, attorney general, public defender, U.S. attorney, district attorney, on duty with the armed services or employed by a local, state or federal government, and is not otherwise engaged in the private practice of law; (4) is a corporate counsel or teacher of law and is not otherwise engaged in the private practice of law; (5) has been exempted pursuant to Section (e) above; or (6) has been exempted by an order of general or special application of this Court which is cited in the certification.(g) In the exercise of a lawyers good faith judgment in determining whether funds can earnincome in excess of costs, a lawyer may take into consideration all reasonable factors including,without limitation: (1) the amount of the funds to be deposited; (2) the expected duration of the deposit, including the likelihood of delay in the matter for which the funds are held; (3) the rates of interest or yield at the financial institutions where the funds are to be 57
    • deposited; (4) the cost of establishing and administering the account, including the cost of the lawyers services, accounting fees, and tax reporting costs and procedures; (5) the capability of a financial institution, a lawyer or a law firm to calculate and pay income to individual clients; and (6) any other circumstances that affect the ability of the funds to earn a net return for the client.(h) A lawyer shall review the IOLTA Account at reasonable intervals to determine whetherchanged circumstances require further action with respect to the funds of any client.(i) The determination of whether funds are nominal or short-term so that they can not earnincome in excess of costs shall rest in the sound judgment of the lawyer or law firm. No lawyer shallbe charged with an ethical impropriety or other breach of professional conduct based on the goodfaith exercise of such judgment.(j) A lawyer generally may not use, endanger, or encumber money held in trust for a client orthird person without the permission of the owner given after full disclosure of the circumstances.Except for disbursements based upon any of the four categories of limited-risk uncollected depositsenumerated in paragraph (1) below, a lawyer may not disburse funds held in trust unless the fundsare collected funds. For purposes of this provision, "collected funds" means funds deposited, finallysettled, and credited to the lawyers trust account. (1) Certain categories of trust account deposits are considered to carry a limited and acceptable risk of failure so that disbursements of trust account funds may be made in reliance on such deposits without disclosure to and permission of clients and third persons owning trust account funds that may be affected by such disbursements. Provided the lawyer has other sources of funds available at the time of disbursement (other than client or third party funds) sufficient to replace any uncollected funds, not withstanding that a deposit made to the lawyers trust account has not been finally settled and credited to the account, the lawyer may disburse funds from the trust account in reliance on such deposit under any of the following circumstances: (i) when the deposit is made by certified check or cashiers check; (ii) when the deposit is made by a bank check, official check, treasurers check, money order, or other such instrument where the payor is a bank, savings and loan association, or credit union; (iii) when the deposit is made by a check issued by the United States, the State of Mississippi, or any agency or political subdivision of the State of Mississippi; or 58
    • (iv) when the deposit is made by a check or draft issued by an insurance company, title insurance company, or a licensed title insurance agency authorized to do business in the State of Mississippi.In any of the above circumstances, a lawyers disbursement of funds from a trust account in relianceon deposits that are not yet collected funds is at the risk of the lawyer making the disbursement. Ifany of the deposits fail, for any reason, the lawyer, upon obtaining knowledge of the failure, mustimmediately act to protect the property of the lawyers clients and third persons. If the lawyeraccepting any such check personally pays the amount of any failed deposit within three business daysof receipt of notice that the deposit has failed, the lawyer will not be considered guilty ofprofessional misconduct based upon the disbursement of uncollected funds. (2) A lawyers disbursement of funds from a trust account in reliance on deposits that arenot yet collected funds in any circumstances other than those four categories set forth above, whenit results in funds of clients or third persons being used, endangered, or encumbered, will be groundsfor a finding of professional misconduct.[Amended effective January 1, 2007, to provide for mandatory IOLTA participation.] CommentA lawyer should hold property of others with the care required of a professional fiduciary. Securitiesshould be kept in a safe deposit box, except when some other form of safekeeping is warranted byspecial circumstances. All property which is the property of clients or third persons should be keptseparate from the lawyers business and personal property and, if monies, in one or more trustaccounts. Separate trust accounts may be warranted when administering estate monies or acting insimilar fiduciary capacities.Lawyers often receive funds from third parties from which the lawyers fee will be paid. If there isa risk that the client may divert the funds without paying the fee, the lawyer is not required to remitthe portion from which the fee is to be paid. However, a lawyer may not hold funds to coerce a clientinto accepting the lawyers contention. The disputed portion of the funds should be kept in trust andthe lawyer should suggest means for prompt resolution of the dispute, such as arbitration. Theundisputed portion of the funds shall be promptly distributed.Third parties, such as a clients creditors, may have just claims against funds or other property in alawyers custody. A lawyer may have a duty under applicable law to protect such third-party claimsagainst wrongful interference by the client, and accordingly may refuse to surrender the property tothe client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the clientand the third party.The obligations of a lawyer under this Rule are independent of those arising from activity other thanrendering legal services. For example, a lawyer who serves as an escrow agent is governed by the 59
    • applicable law relating to fiduciaries even though the lawyer does not render legal services in thetransaction.Interest on Lawyers Trust Accounts. Each lawyer or law firm, unless specifically excluded inparagraph (f), is required to establish an IOLTA Account. Only IOLTA eligible funds - thosenominal or short term funds that cannot earn income for the client or third party in excess of the costsincurred to secure such income – may be placed in the IOLTA Account. This definition of IOLTAeligible funds is in compliance with the decision in Brown v. Legal Foundation of Washington, 538U.S. 216 (2003), which upheld the constitutionality of the IOLTA concept.No earnings on the IOLTA Accounts may be made available to or utilized by the lawyer or law firm.Upon the request of the client, earnings may be made available to the client whenever possible upondeposited funds which are neither nominal in amount nor to be held for a short period of time;however, traditional attorney client relationships do not compel lawyers either to invest clients fundsor to advise clients to make their funds productive.IOLTA eligible funds shall be retained in an interest - or dividend - bearing trust account with theinterest (net of any reasonable service charge or fees) made payable to the Mississippi BarFoundation, Inc., said payments to be made by the financial institution at least quarterly. Thedetermination of whether client or third party funds are nominal in amount or to be held for a shortperiod of time so that they cannot earn net income over costs rests in the sound judgment of eachlawyer or law firm and no charge of ethical impropriety or other breach of professional conduct shallattend a lawyers exercise of judgment in that regard.Annual certification required in (f) above shall be through a form that is made a part of themembers’s annual membership fees statement.The decision to deposit client or third party funds in an IOLTA Account rests with the lawyers, sonotification of such a deposit to clients whose funds are nominal in amount or to be held for a shortperiod of time is unnecessary. This is not to suggest that many lawyers will not want to notify theirclients of their participation in the program in some fashion. There is no impropriety in a lawyer orlaw firm advising all clients of how their participation advances the administration of justice inMississippi.Unclaimed Property. Any lawyer holding property or monies belonging to clients with whom hehas lost contact must retain and account for said funds, subject to the Mississippi UniformDisposition of Unclaimed Property Act. Code ComparisonWith regard to Rule 1.15(a), DR 9-102(A) provides that "funds of clients" are to be kept in a trustaccount in the state in which the lawyers office is situated. DR 9-102(B)(2) provides that alawyer shall "identify and label securities and properties of a client ... and place them in ... 60
    • safekeeping ...." DR 9-102(B)(3) requires that a lawyer "maintain complete records of all funds,securities and other properties of a client ...." Rule 1.15(a) extends these requirements to propertyof a third person that is in the lawyers possession in connection with the representation.Rule 1.15(b) is substantially similar to DR 9-102(B)(1) and (4).Rule 1.15(c) is substantially similar to DR 9-102(A)(2), except that the requirement regardingdisputes applies to property concerning which an interest is claimed by a third person as well asby a client.See MSB Ethics Opinions Nos. 98 and 104. RULE 1.16 DECLINING OR TERMINATING REPRESENTATION (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, whererepresentation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyers physical or mental condition materially impairs the lawyers ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing aclient if withdrawal can be accomplished without materially adverse effect on theinterests of the client, or if: (1) the client persists in a course of action involving the lawyers services that the lawyer reasonably believes is criminal or fraudulent; (2) the client has used the lawyers services to perpetrate a crime or fraud; (3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; (4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyers services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; 61
    • (5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (6) other good