General Legal

Attorney Malpractice vs. Misconduct

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Dreaded words! “I’ll report you to the Bar!” or “I’ll sue you!”

Attorney Malpractice

“Not every mistake made by an attorney is considered legal malpractice. Instead, legal malpractice happens when an attorney handles a case inappropriately due to negligence or with intent to harm and causes damages to a client. To prevail in a legal malpractice lawsuit in most jurisdictions, you will need to prove an attorney-client relationship between you and the lawyer, a breach of the duty to provide skillful and competent representation (negligence), causation, and a financial/tangible loss. “
https://www.justia.com/injury/legal-malpractice/

In Mississippi, in most instances, you have to show but for the malpractice you would have won your case, known colloquially as trying a case within a case.

Malpractice may give rise to a lawsuit against your lawyer. This would NOT be handled by the Mississippi Bar and would NOT be handled through a Bar Complaint. Instead, you would hire another lawyer, hopefully experienced in these types of matters, and would require you proving the above elements for attorney malpractice.

The usual litigation process would apply and you can count on a defense. A three year statute of limitations applies to attorney malpractice.

Additionally, malpractice is different than attorney discipline or a Bar Complaint.

Attorney Misconduct

Misconduct includes a violation of the Mississippi Rules of Professional Conduct. This is evaluated by the Mississippi Bar and eventually the Mississippi Supreme Court, if a serious violation is deemed to have occurred.

The MS Bar website has a thorough Q&A section on Attorney Misconduct/Bar Discipline. Selected excerpts included below;

What is the statute of limitations for conduct that is the subject of a Bar complaint?

Generally, the statute of limitations is three years after discovery of the facts that give rise to the Bar complaint.  There are some exceptions.  There is no statute of limitations for conduct that violates Rules 1.15, 8.1 and 8.4 of the Mississippi Rules of Professional Conduct.  See Rule 4(d) of the Rules of Discipline for the Mississippi State Bar.

Is the Bar complaint process confidential?

All Bar personnel and members of the Committee on Professional Responsibility are charged with maintaining the confidentiality of the Bar complaint process.  This means Bar personnel can neither confirm nor deny the existence of any Bar complaint.  However, this prohibition does not apply to the attorney, the complainant or any other witness.  The confidential nature of the Bar complaint process ends if the attorney makes any public statement, public discipline is imposed or a Formal Complaint is filed.  See Rule 15 of the Rules of Discipline for the Mississippi Bar.

Who do I contact to complain about an attorney?

If you are concerned that your attorney or an attorney you have come in contact with may have committed an ethics violation you may contact the Consumer Assistance Program (CAP) to inquire about the possibility of filing a Bar Complaint.  CAP may be contacted by telephone at (601) 948-2344; by email at gwaddle@msbar.org; or by mail:

Consumer Assistance Program
Post Office Box 2168
Jackson, Mississippi 39225-2168

Who considers my Bar complaint?

The Committee on Professional Responsibility acts as a grand jury of sorts.  It considers each Bar complaint to determine whether there is proof of an ethics violation.  If the Committee determines there is sufficient proof of a violation, they may impose discipline in the form of an Informal Admonition, Private Reprimand or Public Reprimand.  If the Committee determines that the ethics violation is so serious that it deserves more than a Public Reprimand, they may direct General Counsel to file a Formal Complaint with the Supreme Court of Mississippi. 

Does a complainant have to be a client or former client to file a Bar complaint?

No. The Rules of Discipline for the Mississippi State Bar provides that acts or omissions by an attorney that violate the Rules of Professional Conduct are grounds for discipline regardless of whether those acts or omissions occurred in the context of an attorney-client relationship. 

What is a Formal Complaint?

A Formal Complaint is filed at the direction of the Committee on Professional Responsibility or as a result of the attorney appealing the discipline imposed by the Committee.   Formal Complaints are public record and are filed with the Clerk of the Supreme Court of Mississippi.  Once a Formal Complaint is filed, the Supreme Court designates a Complaint Tribunal to hear and determine the matter.  A Complaint Tribunal can dismiss the Formal Complaint or impose discipline in the form of a Private Reprimand, Public Reprimand, Suspension of Disbarment.  The attorney or the Bar may appeal the decision of a Complaint Tribunal within 30 days to the Supreme Court of Mississippi. See Rules 8 and 9 of the Rules of Discipline for the Mississippi State Bar.

How does a suspended or disbarred attorney seek reinstatement to the practice of law?

Attorneys suspended for less than 6 months are reinstated upon the expiration of the time imposed and the satisfaction of any conditions of the suspension order.  Attorneys suspended for 6 months or more or disbarred must petition the Supreme Court of Mississippi for reinstatement and follow the dictates of Rule 12 of the Rules of Discipline for the Mississippi State Bar.  Attorneys disbarred due to a felony conviction after April 4, 2002, are not eligible for reinstatement to the practice of law. 

The hyperlinks above will take you to the source page and includes additional information.

General Legal

Who Judges the Judges?

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The Mississippi Commission on Judicial Performance was created in 1979 by the Mississippi Legislature, and voters, by constitutional amendment to enforce judicial standards.

It was created for the following purpose:

All proceedings before the Commission are of a civil nature, not criminal, as the​ purpose of the Commission is to be rehabilitative and educational, as well as disciplinary.

What is judicial misconduct?

Actual conviction of a felony in a court other than a Mississippi court; willful misconduct in office; willful and persistent failure to perform his duties; habitual intemperance in the use of alcohol or other drugs; conduct prejudicial to the administration of justice which brings the judicial office into disrepute; physical or mental disability seriously interfering with the performance of duties and such disability is or is likely to become permanent; any willful violation of the Code of Judicial Conduct; and any violation of the Rules of Professional Conduct as adopted by the Mississippi Supreme Court.

Some examples of judicial misconduct include abuse of contempt power, failure to disqualify when required by law, ex parte communication, and improper demeanor.

Who can file a complaint?

Any citizen, litigant, attorney, law enforcement official, judge, public official, or other individual who has knowledge of possible judicial misconduct may file a complaint with the Commission. Complaints may also be filed anonymously. Additionally, the Commission may file a complaint on its own motion based upon matters it learns of in other ways, such as from mass media and information obtained during the course of an investigation.

What information should I submit with my complaint?

You may attach any documentation and/or evidence you believe may be pertinent, such as court documents, witness statements, correspondences, audio/video tapes, etc. Please do not send originals. Additionally, please include the names of any witnesses that may be able to substantiate the allegations contained in your complaint.

Matthew Thompson is Family Law Attorney in Mississippi and believes all persons within our legal system are subject to accountability.

Child Custody, Visitation

THERE IS NO PROHIBITION ON Interstate or INternational travel in Custody, unless there is…

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“But, he can’t travel out of state with my children without my permission…”

In Child Custody matters a parent can travel with their child during their time. And, NO, usually you do not need the other parent’s “permission.”

This is true whether you are the primary custodian or the visitation exerciser, there is no real, legal limitation on your ability to travel with your child.

You can run up to Gatlinburg, TN and see the Smokies, or you can head to New Orleans, LA to spend time in the Big Easy. You can hop down to Orange Beach, AL or Destin, FL for some fun-in-the-sun and there is not much the other parent can do about it…

Unless, there is a prohibition against such travel. Those prohibitions come in two forms, most commonly by agreement. This means the parties expressly agreed that their rights to travel with the children would be infringed. So, permission does have to be provided or the travel is limited to a geographic area or by travel time limits. Secondly, and less common, travel may be restricted by the Court. This is in the rare occasion where a parent makes a credible threat of leaving with the child or has done so in the past. If the Court Orders it, it must be abided by or there could be sever consequences.

The same holds true for international travel, though there are additional requirements, usually, beyond the Court. For instance, international travel would require a birth certificate or (passport which usually requires both parent’s consent.) Likewise, U.S. Customs recommends a child travelling with only one parent to have a written authorization for such. There may also be reasons to restrict travel based upon the destination and how that Country would treat a U.S. Custody Order.

Now, what is required is keeping the other parent reasonably informed. That includes travel, a means to communicate and it could also require more specific information, such as an itinerary, contact numbers for destinations, where you are staying and who else may be traveling. It all depends on your custody language in your Order.

So, can he travel? Yes. Do you have the right to know about it? Yes.

Matthew Thompson is a child custody lawyer in Mississippi and reminds you to be a reasonable parent and get out there and see the world. http://www.BowTieLawyer.MS (601)850-8000

Divorce, Child Custody & Child Support, Alimony, Contempt, Modification, Youth Court, TPR/ Adoption and Appeals.

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