Mississippi Advisory Opinions February 01, 2001: AGO 000014211 (February 01, 2001)

AGO 000014211.

Dear Justice Easley:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter asks several questions which will be presented in this opinion followed by our response. We note that your questions may involve issues of professional ethics and therefore should also be addressed to the Mississippi Bar.

Mississippi Code Annotated Section 9-1-25 provides insight to many of your questions and for your reference we provide a copy of it as a preface to our opinion. Mississippi Code Annotated Section 9-1-25 states:

It shall not be lawful for any judge of the Supreme Court, Court of Appeals or a judge of the circuit court, or a chancellor to exercise the profession or employment of an attorney or counsellor at law, or to be engaged in the practice of law; and any person offending against this prohibition shall be guilty of a high misdemeanor and be removed from office; but this shall not prohibit a chancellor or circuit judge or a judge of the Court of Appeals from practicing in any of the courts for a period of six (6) months from the time such judges or chancellors assume office so far as to enable them to bring to a conclusion cases actually pending when they were appointed or elected in which such chancellor or judge was then employed, nor shall a judge of the Supreme Court be hindered from appearing in the courts of the United States in any case in which he was engaged when he was appointed or elected judge.

Question 1: Can my law firm, Easley Law Firm, merge with another law firm or another lawyer, to create the Bambach and Easley Law Firm?

Response: Although we find no statutory prohibition to your law firm merging with another firm or lawyer provided you personally do not practice law with the firm after taking office and while remaining a member of Court, we note that Canon 2(B) of the Code of Judicial Conduct states:

B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.

Furthermore, Cannon 5(C)(1) provides:

(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.

Question 2: Can I lease Easley Law Firm to another lawyer? Can I sell Easley Law Firm to another lawyer?

Response: We find no statutory prohibition to you leasing or selling your law firm to another lawyer; however, any financial interest you maintain in the firm may affect your ability to hear certain cases. See the response to question 1.

Question 3: Can I represent new Social Security cases since they come under federal law?

Response: It is the opinion of this office that Section 9-1-25 prohibits you from representing new Social Security cases while serving as a Justice of the Mississippi Supreme Court. Further Canon 5(F) states:

A judge should not practice law, if by statute he is a full time judge.

Question 4: Can I represent new Bankruptcy cases?

Response: No, see the response to question 3.

Question 5: Can I represent new federal cases in Federal Court?

Response: No, see the response to question 3.

Question 6: Can I represent and complete all social security cases I was retained in before I was sworn in as a Justice of the Supreme Court?

Response: It is the opinion of this office that Section 9-1-25 prohibits a Justice of the Mississippi Supreme Court from practicing law before an administrative agency after assuming office. However, the Justice may appear in a federal court in a case in which he was engaged when elected or appointed to the Supreme Court.

Question 7: Can I represent and complete all bankruptcy cases I was retained in before I was sworn in as a Justice of the Supreme Court?

Response: A Mississippi Supreme Court Justice may represent a client in Bankruptcy Court only if the Justice was engaged for the case prior to the election or appointment of the Justice.

Question 8: Can I represent and complete all federal lawsuits I was retained in before I was sworn in as a Justice of the Supreme Court?

Response: A Mississippi Supreme Court Justice may represent and complete all federal lawsuits where he was engaged prior to his election or appointment to office.

Question 9: Can I collect fees for cases I worked on prior to being sworn in? Can I collect fees for cases completed after being sworn in?

Response: We refer you to the Mississippi Bar Association.

Question 10: Can I represent myself in state court in lawsuits which I am a party?

Response: Section 25 of the Mississippi Constitution of 1890 states:

No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both.

Section 26 of the Mississippi Constitution of 1890 states in part:

In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself; but in prosecutions for rape, adultery, fornication, sodomy or crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.

Therefore you may represent yourself in a lawsuit in state courts, as long as your representation does not constitute representation of any other party, individual or entity, e.g., partnerships or professional corporations.

Question 11: Can I file and sign a motion to withdraw from a case after I was sworn in?

Response: Yes

Question 12: Can I sign an [agreed] order allowing me to withdraw from a case after I was sworn in?

Response: Yes, you may, as an attorney, sign such an order.

Question 13: Can I file pro se lawsuits which I am a party to collect debts after I was sworn in?

Response: See the response to question 10.

Question 14: Can I file a bankruptcy case in which I was retained in prior to January 1, 2001, but had not filed until after I was sworn in?

Response: No, see the response to question 7. The prohibition starts as of the time the judge is "appointed or elected," not when he is sworn in.

Question 15: Can my Supreme Court Campaign Committee receive contributions 90 days after the November 7, 2000 election?

Response: The Code of Judicial Conduct, Canon 7(B)(2) states:

(2) A candidate, including an incumbent judge, for judicial office that is filled by public election between competing candidates should not himself solicit or accept campaign funds, or solicit publicly stated support, but he may establish committees of responsible persons to secure and manage the expenditure of funds for his campaign and to obtain public statements of support for his candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from lawyers. A candidate's committees may solicit funds for his/her campaign no earlier than 60 days before qualifying deadline and not later than 90 days after last election in which he participates during the election year. A candidate should not use or permit the use of campaign contributions for the private benefit of himself or members of his family.

Based on the above quoted Canon, it is the opinion of this office that a campaign committee may receive contribution after ninety (90) days after the election; however, they may not solicit funds after ninety (90) days after the election.

Question 16: The statute states my committee cannot solicit contributions after 90 days after the election, is solicit different from receive? Can my committee receive funds after 90 days of the election?

Response: See the response to question 15.

If we may be of further service to you, let us know.

Very truly yours,

MIKE MOORE, ATTORNEY GENERAL

By:

David K. Scott

Special Assistant Attorney General