Judge Henry Lackey, yes, that Judge Lackey, disqualified Brunini law firm attorneys Joe Sclafani, Chris Shapley and David Kaufman, from representing attorney Robert Germany and his firm, Pittman, Germany, Walsh, in a legal malpractice case last week. All Hinds County Circuit judges recused themselves from the case. Judge Lackey ruled "the Brunini Law Firm has a substantial conflict of interest to the Plaintiffs" when he removed the firm from the case.
This story began over twenty years ago when Mississippi State football player Rodney Stowers died while hospitalized after breaking his leg while playing the Florida Gators. The Orlando Sentinel reported:
"Stowers was admitted Sunday to Golden Triangle Regional Medical Center in Columbus, Miss., so doctors could place a pin in his broken leg to speed healing. It had been hoped Stowers could return to play for the team in four to six weeks.
But before surgery, Stowers began showing signs of the rare complication, known as fat embolism syndrome. Treatment began to stabilize the fracture and provide ''aggressive pulmonary support,'' Linton said." Article
The family filed a wrongful death action and retained Pittman, Germany, Roberts, & Welsh for legal representation. The complaint was dismissed after it "languished" due to the "attorney's failure to prosecute the case." Judge Lackey stated, "Judge Howard found Delie Shepard's lawyers had been dilatory in allowing the case to remain on the docket without proper action and the case was dismissed with prejudice."
Pittman-Germany filed a notice of appeal in 2009, yes, 2009, but the Court of Appeals upheld the dismissal and the Supreme Court refused to review the decision. The daughter of Rodney Stowers filed a legal malpractice action against Pittman-Germany. (The court said she achieved majority age while the case was pending.)
Pittman-Germany retained the Brunini law firm on May 13, 2010 to defend the firm against the complaint. Nothing wrong with representing a client, as long as the lawyer remembers he can only work for one side. Pittman-Germany also filed a "motion for additional time to file appellate brief" that just so happened to list Brunini as being "of counsel". The motion stated:
"Counsel for appellants have associated the firm of Brunini, Grantham, Grower, & Hewes to assist in preperation of the Brief of Appellant and related papers in further prosecution of this appeal. The Brunini Law Firm entered its appearance on May 19, 2010."
One little problem: Judge Lackey states Pittman-Germany never notified the client it retained Brunini to help with the appeal and was "contrary to the terms" of the agreement signed in 1991. The three Brunini lawyers even notified the Court of Appeals they represented the Stowers family. Now the fun starts.
Brunini tells attorney Michael Crowley (representing the family in the legal malpractice complaint against Pittman-Germany) it is defending Pittman-Germany in the legal malpractice case "but does not inform Crowley of their being co-counsel for Ms. Shepard (daughter) in the appeal" of the dismissed lawsuit.
Thus on one side, Brunini represents the client and on the other side, Brunini represents the defendant attorney in the legal malpractice case filed by the client. The legal malpractice was dismissed for ripeness as the appeal was still alive but later reinstated after the appeal failed. Mr. Crowley charged the Brunini lawyers had a conflict of interest and should be removed from the case. He argued the clients never knew they were represented by Brunini. Indeed, Judge Lackey writes:
"It is undisputed the Brunini Finn never had a conversation with either Shepard or Stowers and neither Shepard nor Stowers knew of Brunini' s involvement in the underlying case and neither Shepard nor Stowers employed the Brunini finn as their attorney nor gave their consent for their employment."
Judge Lackey compared the case to a game of marbles:
"The Court believes this is a case of ftrst impression for Mississippi but this entanglement reminds the Court ofplaying the game of marbles in its youth. Those ofus who were not as proficient at the game as our opponent always tried to exact an agreement from all parties that 1 each player was entitled to at least two "Slips". When Slips was invoked the shooter was granted I a replacement shot at the marbles. A major problem would arise when there was a question of when it was a true Slips or just poor shooting."
Brunini argued it was not fair to remove the firm from the case when Pittman-Germany had paid for a defense which was produced by Brunini. The court said it would usually agree with this. "Pittman-Germany brought Brunini into this fray by its motion before the Court ofAppeals advising that Brunini had been associated to help prepare Appellant's Brief, seeking a delay, and announcing Brunini to be Of Counsel, May 13,2010."
Judge Lackey then aims his literary fire at Pittman-Germany as he writes the firm brought this problem upon itself:
"It would appear if anyone should suffer Pittman-Germany should be among the group. Why? They violated the terms of their contract with the kin of Rodney Stowers when they engaged Brunini to assist in the preparation ofthe Appellate Brief without the knowledge or consent of their client; allowed Brunini to file Notice of Appearance in the Court of Appeals certifying their representation of Stowers when 6 days earlier they had employed Brunini to defend them in the malpractice suit filed by Shepard, and never notified Shepard of their actions."