Miss. Bar v. Pegram

167 So.3d 230

THE MISSISSIPPI BAR

v.Joe Donald PEGRAM.

No. 2012–BA–01711–SCT.

Supreme Court of Mississippi.

July 31, 2014.

Rehearing Denied Feb. 19, 2015.

James Russell Clark, Adam Bradley Kilgore, Melissa Selman Martin, Jackson, attorneys for appellant.

Joe D. Pegram, Oxford, appellee, pro se.

Haven Clanton, attorney for appellee.

EN BANC.

Opinion

CHANDLER, Justice, for the Court:

¶ 1. In this attorney-discipline case, we affirm the Mississippi Bar Complaint Tribunal's finding that attorney Joe Pegram violated Mississippi Rule of Professional Conduct 1.1 (Competence). We additionally find that Pegram violated Rule 1.16 (Declining or Terminating Representation). We affirm the Public Reprimand issued by the Complaint Tribunal and additionally order this matter referred to the Fee Dispute Resolution Committee of the Mississippi Bar for a determination as to whether Pegram should refund as unearned a portion of the flat fee he accepted to complete his client's case.

FACTS AND PROCEEDINGS BELOW

¶ 2. In 2005, Oxford attorney Joe Pegram agreed to corepresent Iroko Ayodele on a charge of felony possession of marijuana. When initially approached by a friend of Iroko's father about the possibility of representing Iroko, Pegram stated that he did not handle criminal matters, but would make an effort to help find a criminal attorney who would be available to accept the representation. Pegram contacted Oxford lawyer Jay Carmean, who routinely handled criminal cases. Carmean stated that he generally charged between $15,000 and $20,000 to handle a case like Iroko's, with $10,000 due preindictment, with the balance to be paid post-indictment. Iroko's father mortgaged his home in order to raise the $20,000 fee. He had the check sent to Pegram, who deposited it into his lawyer trust account.

¶ 3. Pegram and Carmean decided that Pegram would also participate in representation due to his familiarity with the arresting officer. They determined that Carmean would be paid $6,000 for his part in the preindictment work and Pegram $4,000. Carmean entered into a contract to represent Iroko through indictment. Carmean and others testified at the Mississippi Bar Complaint Tribunal hearing that $20,000 is a reasonable fee to charge in that locality for a case like Iroko's.

¶ 4. Carmean and Pegram met with the arresting officer and an assistant district attorney about the possibility of a plea agreement. Iroko subsequently rejected a plea bargain for a seven-year prison sentence. Carmean believed, as a result of that meeting, that law enforcement officials had additional charges they intended to bring, likely involving audio and video tapes of more serious crimes. In June 2005, Iroko was indicted for seven counts of possession of marijuana and narcotics with intent to sell. Post-indictment, and in light of Carmean's understanding that no more money was available to pay him for representation, Carmean formally withdrew as counsel and Pegram was formally substituted as counsel for Iroko.

¶ 5. Around this time, Pegram began to investigate the possibility of getting Iroko into a pretrial diversion program as a way of avoiding jail time. A local judge, Judge Henry Lackey, informed him of this program and directed him to contact district attorney Ben Creekmore for more information. From 2005 to 2009, Pegram called and wrote several letters to Creekmore inquiring about Iroko's eligibility for pretrial diversion. Other than an initial communication in which Creekmore indicated that Iroko needed to be drug-free before pursuing pretrial diversion, Creekmore did not respond to Pegram's letters. Iroko's case was continued multiple times over this period.

¶ 6. During those four years, Pegram arranged for Iroko to be drug-tested for marijuana three times with the view of making him eligible for pretrial diversion. He also helped Iroko obtain a job and purchased a car for Iroko for $2,100. Iroko returned the car as soon as he earned enough money to purchase one for himself. The money for the car came from Pegram's operating account. He paid Iroko significantly above minimum wage to perform handyman tasks around his house. He also assisted Iroko in obtaining dismissals or expungements of various justice-court charges.

¶ 7. In January of 2009, a new assistant district attorney, Tom Levidiotis, who had been hired in part to help address a large backlog of cases, called Iroko's case to trial on short notice. On the day of trial, January 6, 2009, Pegram called Iroko to his office. From there, he took him to court. Then, without any forewarning to Iroko, Pegram made a verbal motion to withdraw as counsel, saying

I will be glad to refile my verbal motion to withdraw as attorney of record because I have never tried a criminal case. I have only been in this one for negotiation purposes. Which I had hoped would work out with a pretrial diversion and I understand the District Attorney can reduce the charges of sale to possession which would allow that but apparently they didn't want to go that route at this time. So I filed a motion to withdraw so Mr. Ayodele can have a competent criminal attorney which is not me.

The State objected to the motion to withdraw, pointing out that Pegram had been involved with the case for four years, had not in fact negotiated a settlement or done anything substantive while the case was continued, and that permitting such withdrawals impeded the orderly handling of the docket. The court noted agreement, saying

... if you are going to enter an appearance on behalf of a defendant you should be prepared to take the case to trial. That is factual, axiomatic, no exception rule. However, ... ultimately the fairness of the proceedings is what matters and the protecting the rights of the defendant is paramount in that process and in order to ensure that that is done ... I'm going to relieve Mr. Pegram and grant his oral motion to withdraw.

¶ 8. Then Iroko's father informed the court that he did not have the funds to hire another attorney, as he was still paying off the loan from hiring Pegram. The court called a local attorney with an office close to the courthouse and appointed him to come immediately represent Iroko. That same day, Iroko entered into a plea deal in which the charges were reduced to possession and he was sentenced to serve three years.

¶ 9. Iroko filed an informal bar complaint against Pegram, complaining that Pegram had abandoned him the day of trial after accepting a large fee from his father. At the direction of the Committee on Professional Responsibility, the Mississippi Bar filed a formal complaint against Pegram on June 8, 2012. A trial was held before a Complaint Tribunal on November 2, 2011.

¶ 10. Pegram was unable to provide an accounting of the expenditure of the remainder of the $20,000 fee post-indictment. He stated that he considered himself to have been using Iroko's father's money—money from the flat fee—when he bought Iroko the car and paid him for handyman labor. He stated that his trust-fund records had been destroyed inadvertently several years before when his daughters cleaned out his office. The Complaint Tribunal hearing transcript reflects the following discussion regarding the amount of the flat fee available in the trust account at the time of indictment and Pegram's understanding of his own role going forward:

[BAR] So there should have been some more money available?

[PEGRAM] Well, it was.

[BAR] Okay. Did you advise Jay [Carmean] you still had money in your trust account?

[PEGRAM] Well, I'm sure—now why should I advise him of that. He knew I got a check, and so I didn't advise him of that, no.

[BAR] Okay. Did you ever offer to give him more money out of your trust account?

[PEGRAM] No. As I understood my conversations with Jay, he needed another 10, and I thought maybe after I talked with Judge Lackey I could get the pretrial diversion for Iroko and be done with the case. I didn't need Jay to help me on that part.

[BAR] Okay. So at that time you had decided that you could handle the case?

[PEGRAM] Well, I wouldn't say handle the case, no. I thought I could maybe talk with Ben Creekmore and get pretrial diversion for Iroko. As far as handling the case if he went to trial, I knew I couldn't do that.

[BAR] How much of the $20,000 fee had you earned in July of '05?

[PEGRAM] That's six years ago. I have no idea. Well, let me tell you how these criminal lawyers do. They don't keep time records. They charge an “x”—we'll do your case for 20,000... I know of a case ... where a guy paid [the attorney] $25,000, he went down there and pled him guilty, kept the money, and didn't keep any time. So criminal records or criminal attorneys apparently don't keep any time records like you do if you're representing an insurance company.

(Emphasis added.)

¶ 11. The Complaint Tribunal found a lone violation of Mississippi Rule of Professional Conduct 1.1 (Competence) and issued a public reprimand. The Bar appeals, asking this Court to find additional violations and imposing a sanction of at least six month's suspension from the practice of law.

DISCUSSION

¶ 12. This Court has exclusive and inherent jurisdiction over attorney-discipline matters. Miss. Bar v. Alexander, 669 So.2d 40, 41 (Miss.1996) ; Asher v. Miss. Bar, 661 So.2d 722, 727 (Miss.1995) ; Rule 1(a), Rules of Discipline for the Mississippi State Bar. On appeal from the findings of the Complaint Tribunal, we “shall review the entire record and the findings and conclusions of the Tribunal, and shall render such orders as the Court may find appropriate.” Foote v. Miss. State Bar Ass'n, 517 So.2d 561, 564 (Miss.1987) ; M.R.D. 9.4. When reviewing disciplinary matters, this Court “reviews the evidence de novo, on a case-by-case basis, sitting as trier of fact, and no substantial evidence or manifest error rule shields the Tribunal from scrutiny.” Foote, 517 So.2d at 564 (citing Hoffman v. Miss. State Bar Ass'n, 508 So.2d 1120, 1124 (Miss.1987) ); Vining v. Miss. State Bar Ass'n, 508 So.2d 1047,...