The Mississippi Bar v. Gail P. Thompson
Annotate this Case
Download PDF
IN THE SUPREME COURT OF MISSISSIPPI
NO. 2007-BA-00556-SCT
THE MISSISSIPPI BAR
v.
GAIL P. THOMPSON
DATE OF JUDGMENT:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
03/14/2006
JAMES R. CLARK
GWENDOLYN G. COMBS
LEONARD McCLELLAN
CIVIL - BAR MATTERS
AFFIRMED IN PART; REVERSED AND
RENDERED IN PART; REVERSED AND
REMANDED IN PART - 06/19/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1.
The Mississippi Bar appeals from a complaint tribunal’s order imposing a one-year,
retroactive suspension on Gail Thompson 1 for violating Rules 1.15, 5.3, and 8.4(a), (d), of
the Mississippi Rules of Professional Conduct. We affirm the complaint tribunal’s order
with regard to its finding that Thompson violated Rules 1.15, 5.3, and 8.4(a), (d), but reverse
its finding that Thompson did not violate Rule 5.5(b). Furthermore, we reverse the one-year,
1
Gail Thompson was admitted to practice in the State of Mississippi in April 1990.
1
retroactive suspension and remand this case for consideration of the proper sanction(s) in
light of the nine Liebling factors that must be examined in attorney discipline matters.
Liebling v. The Mississippi Bar, 929 So. 2d 911 (Miss. 2006).
FACTS AND PROCEDURAL HISTORY
¶2.
Gail Thompson employed Robert Tubwell, a former inmate at the Mississippi State
Penitentiary at Parchman,2 as a paralegal at the Thompson Law Firm in Tunica County.
Thompson hired Tubwell based, in part, on his reputation as a successful writ writer while
at Parchman, and his potential ability to generate business for Thompson’s firm.
¶3.
Mario McGaughy, an inmate serving a life sentence without the possibility of parole,
met Tubwell while the two were at Parchman. When McGaughy learned that Tubwell was
working as a paralegal, he wrote Tubwell at Thompson’s law office. McGaughy sought to
hire a lawyer to file his petition for post-conviction relief. A series of communications then
ensued between Tubwell and McGaughy, McGaughy’s mother, and McGaughy’s stepfather.
¶4.
On February 1, 2002, Tubwell wrote McGaughy on Thompson Law Firm letterhead.3
The letter stated that Tubwell had consulted with Thompson and that she had agreed to work
with him on McGaughy’s case. Tubwell stated that everything would be reviewed by an
attorney and quoted McGaughy a fee of $500 for the preliminary work. He also requested
2
Tubwell was convicted for armed robbery and false pretense.
3
Thompson did not have printed letterhead. Instead, she made her own computergenerated letterhead.
2
that McGaughy send future correspondence to his Southaven apartment address,4 and
provided McGaughy his personal home and cellular phone numbers.
¶5.
It is somewhat unclear whether the $500 payment was made, and if so, to whom such
payment was directed. McGaughy stated that his father paid $550 via money order, but
could not confirm whether the payment was made to the Thompson Law Firm or to Tubwell
himself. Tubwell acknowledged that he received fifty dollars for travel-related expenses, but
claimed that he never received the $500 money order.5 Thompson also denied ever receiving
anything from McGaughy. Regardless, the complaint tribunal found implicitly that the $500
payment was made.6
¶6.
On March 18, 2002, Tubwell again wrote McGaughy on Thompson Law Firm
letterhead. Tubwell advised McGaughy that he had a strong case and that there was a
seventy-percent chance that this Court would reverse and grant a new trial.
¶7.
Tubwell eventually obtained McGaughy’s court records and mailed McGaughy his
files, along with a pro se petition for post-conviction relief.7 Per Tubwell’s instructions,
4
Despite Tubwell’s request that McGaughy send future correspondence to the
Southaven address, McGaughy testified that he sent all of his letters to the Thompson Law
Firm.
5
In a letter to McGaughy dated January 3, 2003, Tubwell acknowledged receiving
a money order from McGaughy’s father. However, it is not clear whether this money order
represented the fifty dollars or the $500 amount.
6
In its opinion, the complaint tribunal found that “[McGaughy] was also prejudiced
in that his family was duped into paying for non[]-existent representation.”
7
While working as a writ writer at Parchman, Tubwell had designed a general form
that inmates could fill in and use to file a pro se petition for post-conviction relief. Tubwell
3
McGaughy signed and had notarized the necessary documentation without realizing that he
was filing pro se. This Court ultimately denied McGaughy’s pro se petition for postconviction relief.
¶8.
Thereafter, Tubwell informed McGaughy that the next step would be to file a writ of
habeas corpus in federal court. Tubwell later wrote McGaughy to inform him that he had
begun work on filing the habeas corpus petition. But a petition for habeas corpus was never
filed on McGaughy’s behalf.
¶9.
On November 18, 2004, McGaughy, on the belief that he had hired Thompson’s law
firm to represent him on his application for post-conviction relief and his federal habeas
corpus petition, filed an informal complaint against Thompson with the Mississippi Bar. In
its Amended Formal Complaint, the Bar alleged that Thompson violated Rules 1.2(a), 1.15,
1.3, 1.6(a), 5.3, 5.5, and 8.4(a),(d), of the Mississippi Rules of Professional Conduct.
¶10.
A hearing was held on March 14, 2006, in which Thompson testified that she was
unaware of Tubwell’s correspondence with McGaughy, and claimed that he had taken
advantage of her. Thompson stated that she trusted Tubwell and had instructed him that any
cases he was working on had to come through her office. Yet she admitted that additional
safeguards should have been implemented.
¶11.
In addition to the McGaughy matter, the Bar inquired about Thompson’s handling of
client files after she moved her law office from Oxford to Tunica in 2000, and when she
claims that he sent McGaughy only the court records and a copy of the form itself. However,
McGaughy testified that the petition already had been prepared when he received it.
4
closed her Tunica practice in 2003. When Thompson moved her practice from Oxford to
Tunica in 2000, she left some client files in a storage facility in Oxford. She admitted that
those files had been lost. In 2003, Thompson closed her Tunica office after being suspended
from the practice of law for a period of eighteen months.8 After closing the Tunica office,
Thompson kept two file drawers of client files in a storage unit in Tunica. She testified that
those file drawers were later moved to the home/office of Oxford attorney Alvin Chambliss.
She explained that those file drawers remain locked because she lost the keys.
¶12.
After hearing testimony and arguments, the complaint tribunal issued its opinion on
March 16, 2007. The tribunal found that Thompson had not violated Rules 1.2(a), 1.3,
1.6(a), or 5.5 of the Rules of Professional Conduct. However, the complaint tribunal
determined that Thompson had violated Rules 1.15, 5.3, and 8.4(a), (d). As a result,
Thompson was suspended from the practice of law for a period of one year, effective from
March 14, 2006.9 Thompson was further ordered to pay costs and expenses incurred by the
Bar in the amount of $24.53.
¶13.
Aggrieved by the complaint tribunal’s ruling, the Bar appeals to this Court.
STANDARD OF REVIEW
¶14.
When reviewing matters pertaining to attorney discipline, this Court “reviews the
8
Thompson was suspended from the practice of law for mishandling client funds in
her trust account. Mississippi Supreme Court Cause Number 2002-B-645.
9
The complaint tribunal made the suspension effective from the date of her hearing.
Thus, her suspension ended two days prior to the entry of the complaint tribunal’s order.
5
evidence de novo, on a case-by-case basis, sitting as triers of fact, and no substantial
evidence or manifest error rule shields the Tribunal from scrutiny.” Foote v. Miss. State Bar
Ass’n., 517 So. 2d 561, 564 (Miss. 1987). However, the Court may grant deference to the
tribunal “due to its exclusive opportunity to observe the demeanor and attitude of witnesses,
including the attorney, which is vital in weighing evidence.” The Miss. Bar v. Logan, 726
So. 2d 170, 175 (Miss. 1999) (quoting Parrish v. The Miss. Bar, 691 So. 2d 904, 906 (Miss.
1996)). The Bar bears the burden of proving by clear and convincing evidence that
Thompson violated the rules of professional conduct. Logan, 726 So. 2d at 175.
DISCUSSION
I.
Whether Thompson failed to safeguard client property and/or improperly
disclosed confidential client information.
A.
¶15.
Rule 1.15: Safekeeping Property.
The complaint tribunal found that Thompson failed to adequately safeguard client
property by losing or misplacing client files.
¶16.
Rule 1.15 requires lawyers to hold the property of others with the care required of a
professional fiduciary. M.R.P.C. 1.15, cmt. The loss of client files constitutes a violation
of Rule 1.15. In re Craig, 344 S.C. 646, 648-51 (2001); In re Evans, 175 Ariz. 404, 406
(1993).
¶17.
Thompson admitted to losing client files that she had placed in an Oxford storage unit.
Although Thompson said that she returned important documents to clients “most times,” she
could not say that she had done so every time.
6
¶18.
We find that Thompson violated Rule 1.15.
B.
¶19.
Rule 1.6: Confidentiality of Information.
The complaint tribunal found that Thompson did not violate Rule 1.6 because there
was no proof that she divulged any confidential client information. With certain exceptions,
Rule 1.6 generally prohibits the disclosure of information relating to the representation of a
client, absent the client’s informed consent. M.R.P.C. 1.6.
¶20.
While Thompson admitted to losing the client files in Oxford, there is no evidence that
any of those files were divulged. Likewise, there is no evidence that any of the client files
from her Tunica office were disclosed.
¶21.
We find that there is insufficient evidence to show that Thompson violated Rule 1.6.
II.
Whether an attorney-client relationship existed between Thompson and
McGaughy.
¶22.
The complaint tribunal found that Thompson had not violated Rules 1.2(a) or 1.3
because no attorney-client relationship existed between Thompson and McGaughy. The Bar
contends that Tubwell, acting as an agent for Thompson, communicated Thompson’s consent
to act as McGaughy’s lawyer, and that Thompson should have known of McGaughy’s
reliance.
¶23.
Rule 1.2(a) provides that a lawyer shall abide by a client’s decisions concerning the
objectives of representation and shall consult with the client as to the means by which they
are pursued. M.R.P.C. 1.2(a). Rule 1.3 requires a lawyer to act with reasonable diligence
and promptness in representing a client. M.R.C.P. 1.3. For either rule to be implicated, an
7
attorney-client relationship must exist.
¶24.
The existence of an attorney-client relationship depends upon the circumstances and
may be a question of fact. M.R.P.C., SCOPE.
The Restatement (Third) of the Law
Governing Lawyers, Section 14, (2000), states, in pertinent part, that:
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide
legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer
knows or reasonably should know that the person reasonably relies on
the lawyer to provide the services . . . .
Restatement (Third) of the Law Governing Lawyers § 14 (2000). A lawyer’s consent to
represent a client need not be made by the lawyer himself. “An agent for the lawyer may
communicate consent, for example, a secretary or paralegal with express, implied, or
apparent authority to act for the lawyer in undertaking a representation.” Restatement
(Third) of the Law Governing Lawyers § 14 cmt. e (2000).
¶25.
Thompson hired Tubwell to do legal research and draft briefs. He was told not to
independently communicate with clients.
Thus, Tubwell lacked express authority to
communicate Thompson’s consent to represent a client. Tubwell also lacked implied
authority because communicating Thompson’s consent to represent a client was not
“necessary, proper, and usual,” in the exercise of his express duties. Patriot Commercial
Leasing Co. v. Jerry Enis Motors, Inc., 928 So. 2d 856, 864 (Miss. 2006) (emphasis
removed) (citing Bolus v. United Penn. Bank, 363 Pa. Super. 247, 259, 525 A.2d 1215, 1221
(1987), alloc. denied, 518 Pa. 627, 541 A.2d 1138 (1988)).
8
¶26.
Apparent authority is “authority that the principal has by words or conduct held the
alleged agent out as having.” Patriot Commercial Leasing Co., 928 So. 2d at 864 (citing
Bolus, 525 A.2d at 1221). Apparent authority requires “(1) acts or conduct of the principal
indicating the agent’s authority, (2) reasonable reliance on those acts, and (3) detrimental
change in position as a result of reliance.” Christian Methodist Episcopal Church v. S &
S Constr. Co., Inc., 615 So. 2d 568, 573 (Miss. 1993) (citing Andrew Jackson Life Ins. Co.
v. Williams, 566 So. 2d 1172, 1181 (Miss. 1990)). A principal is “bound if the conduct of
the principal is such that persons of reasonable prudence, ordinarily familiar with business
practices, dealing with the agent might rightfully believe the agent to have the power he
assumes to have.” Christian Methodist Episcopal Church, 615 So. 2d at 573.
¶27.
The Bar cites De Vaux v. American Home Assurance Co., 387 Mass. 814 (1983), for
support. In De Vaux, an individual called the attorney’s office seeking legal advice. De
Vaux, 387 Mass. at 816. The attorney’s secretary returned this person’s phone call and
rendered some legal advice, arranged for a medical examination, and instructed the person
to write a letter requesting the attorney’s assistance. Id. This person delivered a letter to the
attorney’s office, but the secretary misfiled the letter. Id. As a result, the attorney failed to
discover the letter until after the statute of limitations had expired. Id. at 816-17. The person
then filed a malpractice suit against the attorney based, in part, on a theory that the secretary
had apparent authority to establish an attorney-client relationship on behalf of the attorney.
Id. at 819. The plaintiff claimed that the attorney had placed the secretary in a position in
which prospective clients might reasonably believe that she had the authority to establish an
9
attorney-client relationship. Id. The Supreme Judicial Court of Massachusetts held that “[i]t
is a question for the jury whether the attorney allowed his secretary to act as she did, and
whether he knew what she was doing.” Id. at 820.
¶28.
Thompson stated that Tubwell had not been given authority independently to
communicate with clients and had been instructed not to sign any letters. She told Tubwell
that any cases he worked on had to come through her office. Thompson included Tubwell’s
name on the law firm letterhead, but identified him as a paralegal. Furthermore, she
disclaimed any knowledge of Tubwell’s correspondence with McGaughy or his work on
McGaughy’s case.
¶29.
We find insufficient evidence to support that Thompson, by her words, actions, or
conduct, indicated that Tubwell had authority to communicate her consent to undertake the
representation of a client. We also find that no attorney-client relationship was established
by Thompson’s failure to communicate her lack of consent to represent McGaughy.
Thompson had no knowledge of McGaughy’s case or Tubwell’s correspondence with
McGaughy, and therefore, could not reasonably have known about McGaughy’s reliance on
her services.
¶30.
Because no attorney-client relationship existed, we find that Thompson did not
violate Rules 1.2(a) and 1.3.
III.
Whether Thompson failed to properly supervise a non-lawyer assistant and/or
assisted a non-lawyer in the unauthorized practice of law.
A.
Rule 5.3: Responsibilities Regarding Non-Lawyer Assistants.
10
¶31.
The complaint tribunal found that Thompson had violated Rule 5.3 by failing to
implement adequate safeguards to give reasonable assurance that Tubwell’s conduct
complied with the professional obligations of a lawyer.
The tribunal concluded that
Thompson’s lack of supervision had permitted Tubwell to engage in the unauthorized
practice of law.10
¶32.
Rule 5.3 provides that a lawyer with managerial authority in a law firm “shall make
reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance
that the [non-lawyer’s] conduct is compatible with the professional obligations of the lawyer
. . . .” M.R.P.C. 5.3.
¶33.
Thompson testified that she had total control of the firm’s post office box and that she
reviewed all mail that came into the firm, including any letters addressed to Tubwell.
McGaughy stated that every letter he wrote to Tubwell was addressed to the Thompson Law
Firm in Tunica. While it is unclear from the record exactly how many letters McGaughy sent
to Tubwell, six letters from Tubwell to McGaughy acknowledged, either directly or
implicitly,11 the receipt of an earlier letter from McGaughy. Nevertheless, Thompson said
10
“The practice of law includes the drafting or selection of documents, the giving of
advice in regard to them, and the using of an informed or trained discretion in the drafting
of documents to meet the needs of the person being served. So any exercise of intelligent
choice in advising another of his legal rights and duties brings the activity within the practice
of the legal profession.” Darby v. Miss. State Bd. of Bar Admissions, 185 So. 2d 684, 687
(Miss. 1966) (citing Oregon State Bar v. Security Escrows, Inc., 233 Ore. 80, 377 P.2d 334
(1962)).
11
In five letters, Tubwell expressly acknowledged the receipt of a letter from
McGaughy and was writing in response to those letters. Tubwell’s initial letter to
11
she could not recall seeing any letters from McGaughy.
¶34.
While Thompson set forth some general instructions and procedures, she admitted that
she had not done enough. When asked what steps she had put into place to ensure that
Tubwell was not independently working on cases that he had handled while in prison,
Thompson answered:
Other than trusting him and, you know, telling him that any cases that, you
know, we have, any cases that you have that you’re working on, its got to
come through my office. . . . And, you know, had I - - I guess had the foresight
or just had - - had didn’t give me any reason to distrust him. You know, I
wouldn’t have - - you know, I would have put other, I guess, precautions in
place.
Furthermore, while she knew about Tubwell’s armed robbery conviction at the time she hired
him, she was unaware of his prior conviction for forgery until she read his deposition in this
matter.
¶35.
We find that Thompson violated Rule 5.3 by failing to make sufficient efforts to
supervise Tubwell’s work. This is especially true in light of Tubwell’s criminal past and
Thompson’s awareness of the fact that Tubwell might have continued to work on cases from
his earlier days as a writ writer. While Thompson’s ill-advised choice of an untrustworthy
paralegal may bear upon the degree to which she could foresee Tubwell’s actions, it does not
excuse her violation of the rules of professional conduct. In re Complaint of Jones, 308
Ore. 306, 311 (Or. 1989).
McGaughy, dated January 4, 2002, did not acknowledge receipt of an earlier letter from
McGaughy. However, McGaughy testified that he wrote Tubwell prior to the January 4,
2002, letter.
12
B.
¶36.
Rule 5.5(b): Unauthorized Practice of Law.
The complaint tribunal held that there was insufficient evidence to find that Tubwell
had violated Rule 5.5(b). The tribunal determined that there was not enough evidence to
show that Thompson knew or should have known that Tubwell was holding out himself or
her firm as attorneys for McGaughy. The Bar, however, asserts that a lawyer can assist a nonlawyer in the unauthorized practice of law by giving him all the necessary resources to
practice law, and then failing to supervise him.
¶37.
Rule 5.5(b) prohibits a lawyer from assisting a non-lawyer in the unauthorized
practice of law. M.R.P.C. 5.5(b). While a lawyer may employ paralegals and delegate duties
to them, the lawyer must supervise the delegated work and retain responsibility for it.
M.R.P.C. 5.5, cmt.
¶38.
The Bar cites In Re Gaff, 524 S.E.2d 728 (Ga. 2000), to support its argument that a
Rule 5.5 violation can occur as a result of a lawyer’s failure to supervise. In In Re Gaff,
Gaff opened a second law office in another town and allowed a disbarred attorney, Ellis, to
work there unsupervised as a paralegal. Gaff, 524 S.E.2d. at 728. Gaff failed to implement
procedures to insure that Ellis did not have contact with Gaff’s clients. Id. Ellis engaged in
forgery, theft, and met with and assisted clients on his own. Id. at 729. The Supreme Court
of Georgia held that Gaff had assisted Ellis in the unauthorized practice of law by failing to
supervise him and failing to establish precautionary policies and procedures. Id. at 729.
¶39.
Other jurisdictions also have found that a lawyer’s failure to supervise a non-lawyer
employee constitutes assistance in the unauthorized practice of law. People v. Smith, 74
13
P.3d 566, 572 (Col. 2003); In re Sledge, 859 So. 2d 671, 684-86 (La. 2003); In re
McMillian, 359 S.C. 52, 59-60 (S.C. 2004); In re Complaint of Jones, 308 Ore. at 309-11
(1989). Mere warnings or instructions are inadequate unless actual efforts are made to
enforce those instructions. In re Complaint of Jones, 308 Ore. at 309-11.
¶40.
While Tubwell took advantage of his position in Thompson’s firm and engaged in the
unauthorized practice of law without her direct knowledge, her failure to supervise and
enforce necessary precautions allowed his actions to go unnoticed. See supra Part III.A.
Accordingly, we find that Thompson assisted Tubwell in the unauthorized practice of law
by giving him the position and resources necessary to practice law, and then failing to
adequately supervise him. Therefore, we find that Thompson violated Rule 5.5(b).
IV.
Whether Thompson violated Rules 8.4(a), (d).
¶41.
Rule 8.4 (a), (d), provides that it is professional misconduct to violate or to attempt
to violate the rules of professional conduct and to engage in conduct that is prejudicial to the
administration of justice. M.R.P.C. 8.4(a), (d). Whenever there is a violation of any other
rule, there will always be a violation under Rule 8.4. L.S. v. The Miss. Bar, 649 So. 2d 810,
814 (Miss. 1994).
¶42.
Having found that Thompson violated Rules 1.15, 5.3, and 5.5(b), we necessarily find
that she violated Rule 8.4(a) as well. Furthermore, Thompson’s conduct was prejudicial to
the administration of justice, because McGaughy was deprived of his right to file a habeas
corpus petition and paid for non-existent representation. Therefore, we find that Thompson
violated Rule 8.4(a), (d).
14
V.
Whether a retroactive, one-year suspension is an appropriate sanction, and
whether the complaint tribunal erred in failing to consider the nine factors that
must be considered when imposing attorney discipline, as set forth in Liebling v.
The Mississippi Bar, 929 So. 2d 911, (Miss. 2006).
¶43.
In imposing the retroactive, one-year suspension, the complaint tribunal failed to
examine the nine factors that are required to be considered in attorney disciplinary matters.
Those factors are:
(1) The nature of the misconduct involved; (2) the need to deter similar
misconduct; (3) the preservation of dignity and reputation of the legal
profession; (4) the protection of the public; (5) sanctions imposed in similar
cases; (6) the duty violated; (7) the lawyer's mental state; (8) the actual or
potential injury resulting from the misconduct; and (9) the existence of
aggravating or mitigating factors.
Liebling, 929 So. 2d at 918 (quoting Miss. Bar v. Walls, 890 So. 2d 875, 877 (Miss. 2004)).
¶44.
In Liebling, this Court stated that an analysis of the above factors would be required
“in the opinions of all Tribunals which conduct hearings after today’s decision.” Liebling,
929 So. 2d at 918. Liebling was handed down on March 23, 2006. Id. at 911. The hearing
in this matter occurred prior to Liebling, but the complaint tribunal’s opinion was not issued
until nearly one year after Liebling, on March 16, 2007. Under a strict interpretation, this
case falls outside of the requirement we imposed in Liebling. Yet, even before Liebling, we
had noted that these nine factors should be included in tribunal opinions. Id. at 918.
Liebling further emphasized the importance of considering these factors. Id. Given the
significance we have continually prescribed to these nine factors, as clearly highlighted by
Liebling, we find that the complaint tribunal erred in failing to analyze the factors.
¶45.
The Bar contends that this case merits a harsher penalty than a one-year, retroactive
15
suspension. In determining whether retroactive discipline is appropriate, we find the
following factors set forth by the New Jersey Supreme Court to be helpful:
[W]hether the conduct is part of a continuing pattern or whether there is only
a single instance of misconduct; whether there is a significantly attenuated
relationship between the misconduct and the practice of law; and whether the
passage of time mitigates the severity of the discipline required. The last
factor—the remoteness of the misconduct—has two facets. The first is
whether the passage of time itself has accomplished rehabilitation of the
lawyer. The second is whether the transgressions are so remote in time that
intervening developments and current circumstances dilute the public interest
in proper and prompt discipline.
People v. Abelman, 804 P.2d 859, 862 (Colo. 1991) (internal citations omitted). Thompson’s
conduct reflects a continuing pattern of neglect as to her professional responsibilities. Her
neglect ultimately caused severe prejudice to McGaughy. While Thompson acknowledged
her wrongdoing and gave some indication that she has learned from her mistakes, the public
maintains an interest in proper and prompt discipline. See Shah v. Miss. Bar, 962 So. 2d
514, 525 (Miss. 2007) (“The purpose of discipline is not simply to punish the guilty attorney,
but to protect the public, the administration of justice, to maintain appropriate professional
standards, and to deter similar misconduct.”) (quoting Miss. State Bar Ass’n v. A Miss.
Attorney, 489 So. 2d 1081, 1084 (Miss. 1986)). Neither the passage of time nor subsequent
developments have lessened such public interest in this case.
¶46.
The delay of disciplinary proceedings is a mitigating circumstance to be considered
when determining sanctions. See Clark v. Miss. State Bar Ass’n, 471 So. 2d 352, 357 (Miss.
1985) (citing 93 A.L.R. 3rd 1057, 1091 (1979)). But after considering the aforementioned
factors and the prejudice resulting to McGaughy, we find that a one-year, retroactive
16
suspension is insufficient. Nevertheless, we must await an examination of the Liebling
factors before imposing any sanction(s).12
CONCLUSION
¶47.
We affirm the complaint tribunal with regard to its finding that Thompson violated
Rules 1.15, 5.3, and 8.4(a), (d). We find that Thompson also violated Rule 5.5(b), and
therefore, reverse the complaint tribunal’s finding as to that issue. Because the complaint
tribunal failed to consider the nine Liebling factors, we reverse the one-year, retroactive
suspension and remand this case to the tribunal for consideration of the appropriate
sanction(s) in light of these factors.
¶48. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED
AND REMANDED IN PART.
SMITH, C.J., DIAZ, P.J., CARLSON, GRAVES, DICKINSON, RANDOLPH AND
LAMAR, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART
WITHOUT SEPARATE WRITTEN OPINION.
12
The record indicates that Thompson has a history of disciplinary violations. In
addition to her aforementioned eighteen-month suspension for mishandling client funds in
2003, Thompson was privately reprimanded in 1997 and 2002, and publicly reprimanded in
2002. Thompson’s prior disciplinary conduct should be considered as an aggravating factor
on remand.
17
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.