                  IN THE SUPREME COURT OF MISSISSIPPI

                           NO. 2002-CA-01245-SCT

EDWIN WELSH

v.

WILLIAM M. MOUNGER, II, E. B. MARTIN, JR.,
MSM, INC. AND MERCURY WIRELESS
MANAGEMENT, INC.


DATE OF JUDGMENT:                  06/27/2002
TRIAL JUDGE:                       HON. DENISE OWENS
COURT FROM WHICH APPEALED:         HINDS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:           JAMES R. HUBBARD
                                   DANA E. KELLY
                                   PHILLIP J. BROOKINS
                                   JOHN LEONARD WALKER
                                   GRADY F. TOLLISON
                                   E. FARISH PERCY
ATTORNEYS FOR APPELLEE:            JOHN L. MAXEY
                                   GEORGE R. FAIR
                                   PAUL STEPHENSON
                                   DONNA ROSS PHILIP
NATURE OF THE CASE:                CIVIL - TORTS - OTHER THAN PERSONAL
                                   INJURY AND PROPERTY DAMAGE
DISPOSITION:                       PUBLIC REPRIMAND AND MONETARY
                                   SANCTION - 03/17/2005.
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
                         CONSOLIDATED WITH

                           NO. 2005-CS-00538-SCT

IN RE: DANA E. KELLY

     EN BANC.

     SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1.    This case arises from statements made by Dana E. Kelly in his motion for

reconsideration of this Court’s denial of his motions for the recusal of two justices made after

the Court’s opinion in Welsh v. Mounger, 883 So. 2d 46 (Miss. 2004), was handed down. The

primary focus of Kelly’s motions for reconsideration was upon Justice Dickinson.         Kelly was

ordered to appear before this Court, sitting en banc, on January 13, 2005, at which time he was

offered an opportunity to further address the Court.      Kelly declined to make any statement to

the Court.   His counsel, Rob McDuff, did address the Court.           Due to Kelly’s untimely filed

motion for recusal, his refusal to accept responsibility for making inappropriate statements

to this Court concerning Mounger being the “highest bidder” in Justice Dickinson’s election

campaign, and further due to his repeated false statements to this Court concerning Mounger

being the “single largest individual major donor to Justice Dickinson’s election campaign,”

even after being clearly informed by this Court that the statements were false, we find that

sanctions in the amount of a $1,000 and a public reprimand are appropriate.

                                               FACTS

¶2.    This matter began in the Chancery Court of Hinds County where Edwin Welsh,

represented by Kelly, sued various defendants, including William Mounger II.          After hearing

testimony of over twenty witnesses over eleven days of trial, the Chancellor entered a

judgment in favor of the defendants, and against Welsh.       Then, Welsh appealed to this Court,

whereupon we handed down a decision in July, 2004, affirming the Chancellor. Only after this

Court handed down its decision which was unfavorable to Welsh, did Kelly file a motion for

the recusal of Chief Justice Smith and Justice Dickinson.         In the motion, Kelly alleged that

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“defendant Mounger was the single largest individual major donor to Justice Dickinson’s

election campaign.”

¶3.     By separate orders, both Justices denied the motions for recusal.                          In Justice

Dickinson’s order denying recusal, he pointed out that, when the case was decided on the

merits, he was unaware of Mounger’s contribution. He also pointed out that Kelly improperly

waited over five months, until after this Court handed down its decision, before filing the

motion to recuse.     The order denying recusal also informed Kelly in no uncertain terms that

the   Certified Public    Accountant    for Justice Dickinson’s campaign            investigated     Kelly’s

allegation that “defendant Mounger was the single largest individual major donor to Justice

Dickinson’s election campaign,” and found it to be false.

¶4.     Welsh filed a motion for reconsideration which contained the following:

                 As the Clarion Ledger has noted, ‘[o]ur judicial elections have become
        highest-bidder exercises. It has to stop or the public will lose all faith in the
        system.’ As the Chief Justice recently noted, ‘[t]rue or not, most people believe
        that too much money corrupts . . .’

                In this sense, one of the two Defendants in this case was the highest
        bidder in the election campaign of Justice Dickinson.

Our order denying the motion for reconsideration included the following language:

        attorney Dana E. Kelly is hereby ordered to show cause, within five days from
        the date of the Order, why he should not be sanctioned for including the
        language in the motion, and is further ordered to present to this Court all
        evidence known to him which supports his allegation that ‘one of the two
        Defendants in this case was the highest bidder in the election campaign of
        Justice Dickinson.’




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¶5.     Kelly filed his response, as ordered.       He presented no evidence which supported his

prior statement that “one of the two Defendants in this case was the highest bidder in the

election campaign of Justice Dickinson.”         Instead, he insisted that the language in question

“was a fair reference to documented public opinion, . . .” and further told this Court that the

language “was not intended and cannot fairly be read as an accusation that a judge sold his

vote.” Kelly appears to feel that the matter was not even fairly debatable.

¶6.     Kelly then characterized this Court’s order as “an incomplete and thus inaccurate

description of the language of the motion and omits any reference to the context in which the

argument is presented.” Accordingly, he urged this Court to look at the “context” and ignore

the literal language (“was the highest bidder”), which was the same language in which he

authored and filed with this Court.

¶7.     Kelly told this Court that the “context” is provided by a speech given by the Chief

Justice of the Court, and an editorial in the Clarion-Ledger newspaper. The quote from the

Clarion-Ledger (which is cited as part of the “context”) states that “[o]ur judicial elections

have become highest-bidder exercises.         It has to stop or the public will lose faith in the

system.” It does not say “
                         appears to have become highest-bidder exercises,” but instead says,

“have become highest-bidder exercises.” (emphasis added).

¶8.     Thus, Kelly insists that, not only must we ignore his literal language and read it in

“context” with the Clarion-Ledger, but we must also accept that the Clarion-Ledger language

does not really mean what it says and should also be read in context.         Kelly’s efforts are a

weak, disingenuous attempt to explain (rather than a complete and unequivocal apology for)

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his inappropriate and       unfounded accusation.          There is also Kelly’s repeated, false

representation to this Court that “Mounger was the single largest individual contributor to

Justice Dickinson’s election campaign . . . .”

¶9.        This allegation was first made by Kelly in the motion for recusal.            After Justice

Dickinson’s campaign treasurer informed us that the statement was not accurate, this Court

informed Kelly, expecting him to check the records of the Secretary of State and withdraw his

false assertion.    However, without bothering to carefully recheck the records of the Secretary

of State, Kelly ignored this Court’s admonition, and he repeated the false statement three

times in his motion for reconsideration.         He even underlined it to afford it emphasis. He then

repeated the false allegation for a third time in his response to our show cause order. Only

after we ordered him to appear before this Court did he check the records and learn that indeed

his statement was not accurate.         Even then, he filed nothing with this Court to retract or

apologize for these false statements. Making a false statement to this Court, repeatedly in the

face of the truth, quickly approaches what many trial practitioners would maintain to be willful,

wanton, and gross negligent behavior.

¶10.       In his submission to this Court, Kelly implied that Justice Dickinson did not respond

to the issue of whether appearance of impropriety might be raised, claiming such issue was

“not addressed by the September 30 order.” Kelly failed to mention, however, that the issue

had already been fully addressed in this Court’s August 23, 2004, order denying the motion for

recusal.




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¶11.    Many other problems exist with Kelly’s submission to this Court, all of which are

outlined in our previous orders.      Until Kelly was ordered to appear before us on January 13,

2005, Kelly’s submissions to this Court in this matter were disrespectful, disingenuous, and

totally unapologetic.    Kelly accused this Court of being “incomplete” and “inaccurate.”     He

repeatedly made the inaccurate claim that “Mounger was the single largest individual

contributor to Justice Dickinson’s election campaign,” even after being warned in this Court’s

previous order that the statement was false.

¶12.    Kelly attempted to mislead this Court, and anyone else reading his submission, by

implying in his motion for reconsideration that the issue of “appearance of impropriety” had

not been addressed when, in fact, it had been addressed by this Court. Kelly informed us that

this Court could not fairly read his language to say what we fairly read it to say.

¶13.    Finally, after all this, Kelly informs us that he drafted the motion for reconsideration

“with care.”    Kelly also filed a supplemental response which this Court read and reviewed.

Practitioners before this Court must appreciate and ensure that documents filed with this Court

do not contain disrespectful, inappropriate language.

¶14.    The purpose of the January 13, 2005, sanctions hearing was to allow Kelly to make a

statement to this Court, followed by questions.               However, Kelly declined to make any

statement to the Court, although his counsel did address the Court. Having taken the matter

under advisement, en banc, we render our decision as follows.

                                               ANALYSIS




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¶15.    It is undisputed that this Court holds attorneys to the highest of standards. Furthermore,

this is evidenced by the fact that the Board of Bar Commissioners of the Mississippi Bar has

adopted the Lawyer’s Creed which contains standards for lawyers’ conduct in association with

fellow professionals.      A complete recitation of the applicable rules governing professional

conduct would be redundant.         However, we reiterate the importance of the first as well as

foremost duty of attorneys which is to represent the interests of the client. Disturbingly, Kelly

blatantly disregarded the standards of conduct enumerated in the Lawyer’s Creed as well as

the Mississippi Rules of Professional Conduct. Therefore, we must ask how, then, did Kelly’s

repeated, knowingly false comments serve first, the interests of his client to the best of

Kelly’s ability? We conclude they did not serve his client’s interests.

¶16.    We are further appalled by Kelly’s selective, yet purposeful dismissal of the four

previous statements we issued whereupon we specifically informed him that he had made false

accusations in his pleadings.      Attorneys are officers of the Court and as such, according to

Rule 3.3 of the Mississippi Rules of Professional Conduct, are charged with displaying candor

towards the tribunal.      Kelly violated this mandate by knowingly continuing to make false

statements of material fact to this Court.

¶17.    Similarly, as an officer of the courts, attorneys are expected to engage in or refrain

from certain actions or behaviors in order to maintain the integrity of this noble profession.

Rule 8.2 of the Mississippi Rules of Professional Conduct expressly prohibits lawyers from

“mak[ing] a statement that the lawyer knows to be false or with reckless disregard as to its truth




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or falsity concerning the qualifications or integrity of a judge . . .” Again, Kelly repeated false

accusations even after having been corrected by this Court.

¶18.    Notably, the Mississippi Bar as well as Mississippi College School of Law and the

University of Mississippi School of Law have taken additional measures in order to address

Ethics and Professional Conduct among the Bar. Specifically, the Mississippi Bar has devoted

several issues to Ethics and Professionalism in an attempt to “reign-in” behavior similar to

Kelly’s.    More recently, both the Mississippi College School of Law and the University of

Mississippi School of Law began conducting an annual Law School Professionalism Program

that is presented to entering law students.      Prior to the initiation of this program, courses on

Ethics and Professionalism were not available until much later in the curriculum.             While

sponsored by the Mississippi Bar, many noted attorneys and judges participate in this program

to inform entering law students of the high standards they will be held to, and also to deter

them from engaging in unprofessional, unethical, and ill-advised behavior like that exhibited

by Kelly.

¶19.    Our response to Kelly’s flagrantly disrespectful conduct occurring before this Court,

shall serve as a warning to the members of the Mississippi Bar, and as such, shall conclusively

clarify any misconceptions regarding the possibility of tolerance to improper conduct before

this Court.   While Kelly is not suspended or disbarred, we shall reference other jurisdictions

that have suspended as well as disbarred attorneys that behaved similarly to Kelly.

¶20.    In United States District Court for Eastern District of Washington v. Sandlin, 12 F.3d

861 (9th Cir. 1993), an attorney was suspended from the practice of law for six months for

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allegedly making false statements about a trial judge, in reckless disregard for their truth.

Moreover, in Comm. on Legal Ethics of West Virginia v. Farber, 408 S.E.2d 274 (W. Va.

1991), a lawyer was given a three-month suspension for three separate counts of misconduct

and indefinite suspension (pending proof of emotional and psychological stability) because he

had a “pattern and practice” of lashing at judges with reckless accusations.       The attorney

misrepresented facts in a motion to disqualify a circuit judge and made allegations against that

judge to a special prosecutor and again falsely accused the circuit judge of criminal acts.   Id.

Also, in Bar Ass’n of Greater Cleveland v. Carlin, 423 N.E.2d 477 (Ohio 1981), an attorney

was suspended from the practice of law for one (1) year for persistently responding to court

rulings with statements of disbelief, profanity, obscenity, disparagement of the judge and other

manifestations of disrespect and discourtesy.

¶21.    The following cases are exemplary of a nation-wide judiciary that refuses to condone

or even entertain conduct by attorneys that is unprofessional or unethical. In the case of In re

Evans, 801 F.2d 703 (4th Cir. 1986), a lawyer was disbarred from the practice of law for

reasserting charges against a judge, without investigating. The Court stated that the “failure to

investigate, coupled with his unrelenting reassertion of the charges . . . convincingly

demonstrates his lack of integrity and fitness to practice law.” Id. at 706. Also, in the case of

In re Palmisano, 70 F.3d 483 (7th Cir. 1995), which was a reciprocal discipline case where

Palmisano was disbarred in Illinois for making blameless accusations of crime and lesser




                                                9
wrongs against judges, the federal judiciary asserted that they “are no more willing to tolerate

repeated, false, malicious accusations of judicial dishonesty than are state courts.”

¶22.    Likewise, in People ex. rel. Chicago Bar Ass’n v. Metzen, 125 N.E. 734 (Ill 1919),

the court disbarred an attorney who brought suit against a trial judge for damages on account

of his ruling and prepared newspaper articles gaining publicity for his suit.           When a lawyer

repeatedly made grossly disrespectful allegations against a judge, he was subsequently

disbarred from the practice of law. In re Whiteside, 386 F.2d 805 (2d Cir. 1967). Finally, in

State ex rel. Nebraska State Bar Ass’n v. Michaelis, 316 N.W.2d 46 (Neb. 1982), an

attorney was disbarred when, while at a hearing on charges of making unfounded allegations

against judges, continued his attacks, and also attacked the deciding court just prior to its

decision.    In the case at bar, Kelly should have timely filed his motion before Justice

Dickinson voted on the merits of the case, he should have supported his motion with evidence

in the record, and he should have presented us with legal authority, rather than a newspaper

editorial and a speech given by the Chief Justice. All attorneys are required to comply with

these restrictions and requirements. So must Kelly.

                                            CONCLUSION

¶23.    For the aforementioned reasons, this Court concludes that Kelly’s behavior is

unacceptable and sanctionable. This is not an issue of free speech as attorneys are required to

abide by higher ethical standards of conduct and give up what normally would be considered

free speech to the public at large while appearing in Court or filing documents with the Court.

Zealous advocacy does not include blatant disregard or outright disrespect to the judiciary and,

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accordingly, will not be tolerated. Our judicial system can not properly function when lawyers

demonstrate a pervasive lack of respect for judges, justices and the courts.   Lawyers are thus

required to show respect for the position of judge and for the institution.      Due to Kelly’s

inability to fully accept responsibility for making false and disrespectful accusations, his

repeated false statements to the Court, and his untimely motion to recuse we find that

sanctions in the amount of a $1,000, and a public reprimand are appropriate.

¶24. DANA E. KELLY SHALL APPEAR BEFORE THIS COURT, IN OPEN COURT,
ON MAY 10, 2005, AT 9:30 A.M. TO RECEIVE A PUBLIC REPRIMAND AND SHALL
PAY SANCTIONS IN THE SUM OF $1,000 TO THE CLERK OF THIS COURT WITHIN
THIRTY (30) DAYS OF THE DATE OF THIS OPINION.

        COBB, P.J., EASLEY, CARLSON, AND DICKINSON, JJ., CONCUR. WALLER,
P.J., DIAZ, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.




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