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GRADUATION (MAY 2014) LAW CENTERS PUBLIC INFORMATION PROGRAMS • 177 JD degrees • Bioethics and Health Law • Judicial Data Project • 4 LLM degrees (Mexico, Philippines, • Litigation and Dispute Resolution www.law.mc.edu/judicial Afghanistan, China) • Business and Tax Law • Mississippi Legislative History Project • Family and Children www.law.mc.edu/legislature JULY MISSISSIPPI BAR EXAM • Public Interest Law t


Mississippi Legal Resources • 2012: 72 of 83 or 86.7% of MC Law • International and Comparative Law www.law.mc.edu/mlr grads passed (overall 81.3%) • 2013: 76 of 89 or 85.4% of MC Law LAW PROGRAMS FACULTY grads passed (overall 86.2%) • Juris Doctorate degree (J.D.) • 26 full time faculty • Executive J.D. program (part time) www.law.mc.edu/faculty ENTERING CLASS (AUGUST 2013) • Academic Success program (summer start) • 13 hold Ph.D. or Masters degrees • 159 JD candidates • Fast Start Program (summer start) in addition to JD degrees • 64% Mississippi / 36% out of state • Civil Law Program (Louisiana) • 86 adjunct faculty • 56 undergrad schools • Master of Laws (LLM) in American Legal • 164 high LSAT Studies for International Lawyers MEMBERSHIP • 149 median LSAT • Foreign Study Program (Merida, Mexico; • Accredited by the American Bar • 4.21 high GPA China/Seoul, Korea; Berlin, Germany; Association • 3.30 median GPA Havanna, Cuba; Lille, France) • Member, Association of • 57% male • Two-Year JD Program American Law Schools • 43% female • Adoption Project • Charter Member, International • 25% minority • Mission First Legal Aid Clinic Association of Law Schools • $2,017,000 awarded in merit • Continuing Legal Education • Member, American Society scholarships to entering students www.law.mc.edu/cle of Comparative Law • 4 LLM candidates (Mexico, • Mississippi Law Institute Press Philippines, Afghanistan, China) www.law.mc.edu/publications Consumer information for MC Law CLASS OF 2013 (EMPLOYMENT at www.law.mc.edu/consumer 9 MONTHS AFTER GRADUATION) Admissions www.law.mc.edu/admissions • 79 (42%) private law firms or 601.925.7152 • 25 (13%) government • 24 (13%) seeking employment As of May 12, 2014 • 20 (11%) business • 14 (9%) judicial clerks • 10 (5%) graduate degree • 6 (3%) public interest • 1 (1%) not seeking employment

mississippi college school of law | 151 e. griffith street | jackson, ms 39201 | 601.925.7100 | www.law.mc.edu PRESIDENT Eugene M. Harlow (Gene), Laurel PRESIDENT-ELECT Roy D. Campbell, III, Jackson SECOND VICE-PRESIDENT Julie J. Gresham, Biloxi IMMEDIATE PAST PRESIDENT Guy W. Mitchell III, Tupelo VOL. LXI WINTER 2015 NO. 2 BOARD OF COMMISSIONERS Jason D. Herring, Tupelo Peter C. Abide, Biloxi Features Jennifer Tyler Baker, Gulfport Kent E. Smith, Holly Springs Lawrence L. Little, Oxford Employment Law Update 10-15 Howard Q. Davis, Jr., Indianola Ronald S. Wright, Ackerman Title VII After Vance and Boh Bros Scott F. Slover, Natchez By Matthew W. Burris Laura M. Glaze, Jackson William Liston III, Jackson Rebecca Lee Wiggs, Jackson Exceptions to the Mississippi Employment at Will La'Verne Edney, Jackson Doctrine Remain Viable Willie T. Abston, Flowood Melissa Carleton, Choctaw By Rachel and Jim Waide 16-20 Brannan P. Southerland, Vicksburg E. Nick Kramer III, Quitman Cynthia I. Mitchell, Clarksdale The Employee Appeals Board – An Overview Chadwick L. Shook, Hattiesburg By Ingrid Dave Williams 23-28 John R. Tullos, Raleigh Mark R. Holmes, McComb John A. Howell, Picayune Evelyn Gandy Lecture Series Highlights 38-40 Michelle D. Easterling, West Point Joseph D. Neyman, Jr., Hernando Richard O. Burson, Laurel Jessica M. Dupont, Pascagoula Departments Shannon S. Elliot, Brandon Whitney Adams, Pearl David L. Morrow, Jr., Brandon President’s Message 7-8 Bryant W. Clark, Lexington Timothy L. Rutland, Hazlehurst Ethics Opinions 29 Ashley N. Wicks, Ridgeland YOUNG LAWYERS DIVISION MB & YLD Election Results 30 President Jennie A. Eichelberger, Jackson Young Lawyers Division News 31 President-Elect Diala H. Chaney, Oxford High School Mock Trial Competition 32-35 ABA DELEGATES W.C. (Cham) Trotter, III, Belzoni Charles J. Swayze, Jr., Greenwood Lawyers Legislators Luncheon 36 EXECUTIVE DIRECTOR CLE Calendar of Events 46 Larry Houchins, Jackson EDITOR In Memoriam 47-50 Sam Kelly, Jackson MANAGING EDITOR Lawyers Helping Lawyers 51 Melanie Henry, Jackson ADVERTISING MANAGER Professional Announcements 52-53 Krissa Dobbins Easley, Jackson Classified Advertising 54

A special thanks to the Labor and Employment Law Section of The The Mississippi Lawyer is published quarterly by The Mississippi Bar for providing the feature articles of this issue. Mississippi Bar, 643 North State Street, P.O. Box 2168, Jackson, Mississippi 39225. Telephone (601) 948-4471. Publication of advertising does not imply endorsement of products, services or statements made concerning them. All advertising copy is subject to approval. The Editor reserves the right to reject advertising. Manuscripts are welcome and preparation instructions may be obtained on request. The right is reserved to select mate- rials to be published. Material accepted for publication becomes property of The Mississippi Bar. Statement of opinions appearing herein are those of the authors and are not necessarily that of the Editor, Officers or Board of Commissioners of The Mississippi Bar.

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our Mississippi contingent just got back from the ABA Mid-Year meeting in Houston, Texas. Your President Elect, Roy Campbell and I attended something called the YNational Conference of Bar Presidents (NCBP), which takes place on the front end of the mid-year meeting. There are plenary sessions and breakout sessions that cover the gamut of bar related issues. Everything from diversity programs to handling damage control, the need for which occurs when our States are sometimes cast in the spotlight on law related issues. My good friend and current President of the Missouri Bar, Reuben A. Shelton, was cast in just such a position when a white Ferguson, Missouri police officer shot and killed a young black man named Michael Brown. It is important to know that Reuben is an African- American from St. Louis. He knew the prosecutor, the judge, the chief of police and the mayor well, but most importantly he represented every attorney in the State of Missouri and, therefore, represents our system of justice while it is under attack at many levels. The one thing that stood out to me was how Reuben handled all of the above. He expressed publicly that the Missouri Bar would see to it that the “rule of law” was upheld, and if anyone stepped outside of those bounds, they would be dealt with accordingly by the disciplinary arm of their Bar. Neither emotions, riot nor any other turmoil, was going to change that position. He was able to say that, to date, the system of justice in Missouri has upheld the rule of law. What more can you ask? The system is working and we must let it work. Rueben has handled his position well under these horrendous circumstances. Thank you Reuben for defending our system of justice in such an admirable manner. We went to a plenary session with Bar Presidents and Presidents-Elect from all over the country. Hang in here with me because this is worth being aware. The session entitled, “The Future is Here: NCBP Futures Conference,” was about the delivery of legal services. The tenor of the discussions relied on data that the mid-income level of our society is underserved when it comes to delivery of legal services. This refers to those who do not qualify for vari- ous forms of legal aide and cannot afford to hire a lawyer or law firm. It goes without saying that access to affordable legal services for the public is critical in a society based on the rule of law. Throughout my legal career, legal proceedings have grown more expensive, time con- suming and complex. Many in our society do not even realize there are legal solutions for problems they suffer daily, and even those who know they have a legal problem, too often can- not afford an attorney. Our new ABA President, William C. Hubbard from South Carolina, has appointed the ABA Commission on the Future of Legal Services to study this perceived gap in the effective delivery of legal services. This blue ribbon committee is chaired by a distant Young Lawyer (i.e., back when we were both young lawyers) and acquaintance of mine, Judy Perry Martinez, Eugene M. Harlow from Louisiana. President of The Mississippi Bar Judy had this to say, “Lawyers realize we’re not meeting the needs of the public and there 2014-2015 needs to be a combination of solutions. But, what’s the priority, lawyers or the public? I think Continued on next page

The Mississippi Lawyer Winter 2015 7 Reflections From the ABA Mid-Year Meeting Houston, Texas

those interests align. The interest of the client, the interest of the public, has got to be the guiding light.” It is clearly my impression that this Commission will proceed on the basic assumption that the problem exists and try to address what our profession and “the market” can do about it. We have all seen what happens when a perceived need goes unmet. Someone or something will come in to fill that need, especially if money can be made in the process. Is that not exactly what is happening in the technology arena as we read this? Alternative providers such as LegalZoom, Rocket Lawyer and many others are providing legal services and are growing at a very rapid rate. Can this type of technology serve as a resource that facilitates personal legal services rather that disrupt it? ABA President Hubbard in addressing the ABA House of Delegates, states in part, “We must engage in fresh thinking….” I will paraphrase a few of his salient points. He argues that we must reimagine the fun- damental roles of courts and our profession by opening up our minds to innovative approaches to serve the needs of our society. He points out that in 2012 over $66 million was being spent on startup businesses designed to provide legal assistance to the public. By 2013, the number exceeded $458 million, and last year over $1 billion was invested. He argues that we must marry our efforts with theirs to bring about meaningful change that will address the delivery of legal service to the underserved in our communities. It appears that familiar and traditional practice structures, while still relevant, are showing signs of giving way in a marketplace that continues to evolve. We know that our model of delivery of legal services has served us and our clients, who could afford us, well for a very long time. Across the pond in the UK, they have reworked the regulatory framework for legal services, allowing new business models to emerge. Even right here at home, the medical profession is flush with “non-doctor” service providers. There is no one better way to address this need, but very likely with much forethought and planning, there are multiple ways that the Mississippi legal community can make a difference. Does Mississippi want to join the conversation? I don’t advocate a defined solution, but I do hear the dog barking at the door. In June of 2012, the distant State of Washington, through their Supreme Court, adopted a rule authorizing persons who are not traditionally licensed lawyers to deliver legal services in a limited fashion. A Civil Needs Study commissioned by their Court in 2003 revealed that segments of the population were not receiving ade- quate access to the legal system. It was not only the poor but also the lower middle income and middle income families that were found to be lacking access. This study suggested that the substantive areas of need were family law, elder law, immigration and housing. In response, the Court adopted the Limited License Legal Technician (LLLT) Rule. By this rule, LLLTs were authorized to deliver legal services in a limited scope in certain Supreme Court approved practice areas. These practitioners received education from paralegal pro- grams, as well as the state’s three law schools. The technicians must pass an examination, engage in contin- uing education, follow the rules of professional conduct, and show proof of financial responsibility, among other stringent requirements. Prior to licensure, the LLLTs must obtain 18 months of full-time substantive law-related work experience under the supervision of an attorney. The likely business models for LLLTs will be either freestanding practices, on staff with other lawyers and law firms, or perhaps in the civil legal serv- ices arena. The LLLTs must uphold the same ethical standards as fully licensed attorneys. The Washington Supreme Court created an LLLT Board to handle the process of implementation and administration of the program. However, the program is regulated by the Washington State Bar Association (WSBA). The WSBA oversees the applications to the program, testing, licensing, discipline, continuing edu- cation, and all other regulatory and professional needs for LLLTs. It was reported that one of the exciting dynamics that evolved since the LLLT Rule was adopted was a col- laboration among their three law schools and their many community colleges to create and implement the edu- cation component of the program. The LLLT Board initially chose the single practice area of family law as this was understood to be the area of highest unmet need. However, the rule was designed to be applied to a number of practice areas and the expectation is that it will be expanded as the program grows. To quote Dorothy from The Wizard of Oz, “Toto, I’ve a feeling we’re not in Kansas anymore.” Whether Mississippi ever adopts such a system is not the point. The point is we live in an ever evolving society and our system of justice has to evolve to meet the needs of all the people. Technology is changing as we read this and will adapt to changing needs. When it involves our legal system and meeting the legal needs of the people of Mississippi, I think we should be at the forefront of change, not reacting to it. The ABA Commission on the Future of Legal Services plans to conduct a series of community-based grassroots meetings and then a national convocation designed to encourage bar leaders, judges, court person- nel, practitioners, businesses, technologists and innovators to share their vision for more efficient and effec- tive ways to deliver legal services. The ABA Commission offers a Grassroots Resources Toolkit to encourage bar associations to hold such meetings around the country. Details of the Commission’s work and resources are available on the ABA website. Buckle your seatbelts — times they are changing! I

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The Mississippi Lawyer Winter 2015 11 Employment Law Update Title VII After Vance and Boh Bros.

n 2013, the United States Supreme Court decided Vance v. Ball State University and defined “supervisor” for the Ipurposes of Title VII workplace harassment.2 This article examines two subjects. First, the harassment but failed to take remedial whether Vance’s definition of supervisor action in controlling working conditions.8 significantly affected Title VII discrimi- “If the harassing employee is a ‘supervi- nation cases. Second, the scope of the sor,’ different rules apply.”9 If the super- Fifth Circuit’s breathtaking break with visor’s harassment culminates in a tangi- same-sex sexual harassment precedent in ble employment action, the employer is a Vance-related case, EEOC v. Boh Bros. strictly liable.10 Consistent with the Court’s rejection of automatic liability in I. From Meritor to Vance: “Supervi- Meritor, if the harassing supervisor takes sors” and the Different Frame- no tangible employment action, the works for Employer Liability employer may escape vicarious liability In 1986, the Supreme Court decided by establishing what is now known as the Meritor Savings Bank v. Vinson, which Ellerth/Faragher affirmative defense: (1) established that while Title VII prohibits employer exercised reasonable care to the creation of a hostile work environ- prevent and correct the harassment, and ment, to be actionable the alleged harass- (2) employee failed to take advantage of ment must be “sufficiently pervasive to any preventive or corrective measures alter the conditions of the victim’s offered by the employer.11 The Court employment and create an abusive work explained this framework as a compro- environment.”3 In Meritor, the Supreme mise that “accommodates the agency Court rejected the proposition “that principles of vicarious liability for harm employers are automatically liable for . . . caused by misuse of supervisory authori- harassment by their supervisors, as well ty, as well as Title VII’s equally basic poli- as the employer’s suggestion that absence cies of encouraging forethought by of notice to an employer automatically employers and saving action by objecting insulates that employer from liability,” but employees.”12 The Court cautioned that the Court refused to further clarify the “most tortfeasors are aided in accom- issue of employer liability, suggesting plishing their tortious objective by the only that the lower courts “look to agency existence of the agency relation,” and principles for guidance[.]”4 consequently, “something more” is required in order to warrant vicarious lia- A. Ellerth/Faragher bility.13 However, the Court in Ellerth and Twelve years later, the Court clarified Faragher left open the question of who the extent of an employer’s liability for qualifies as a “supervisor” in a Title VII acts of the employer’s supervisors in the harassment case. twin cases of Burlington Industries, Inc. v. B. Vance v. Ball State University Ellerth5 and Faragher v. City of Boca Raton.6 The Court explained that an Because the Court left “supervisor” employer’s liability for workplace harass- undefined in Ellerth and Faragher, a cir- ment depends on the harasser’s status.7 “If cuit split resulted. Some circuits defined the harassing employee is the victim’s co- “supervisor” as one having the actual By Matthew W. Burris1 worker, the employer is liable only if it authority to make a tangible employment was negligent” - i.e., if the employer knew action, meaning that person could hire, or reasonably should have known about fire, demote, promote, transfer, or disci-

12 Winter 2015 The Mississippi Lawyer Employment Law Update Title VII After Vance and Boh Bros. pline the victim.14 Other circuits adopted formance evaluations, and the like, and a more open-ended approach, consistent where the person with final decision- with EEOC guidelines, which attached Vance continues to making power does not work directly with supervisor status to one who can exercise recognize an alternate the plaintiff, the harasser may be a ‘super- significant direction over the daily work route to vicarious liability visor’ under Title VII.”22 McCafferty v. of another.15 The Court granted cert in Preiss Enters., Inc., clarifies the impor- Vance to define “supervisor” and resolve when the harassing tance of empowered supervisors working the circuit split. employee was not a with the victim. In McCafferty, the Tenth Circuit found no genuine dispute regard- In Vance, the petitioner (Vance), sued supervisor, but the ing the non-supervisory status of a male her employer, Ball State University, alleg- shift manager who directed the victim’s ing that a fellow employee, Saundra supervisor did not daily activities and had significant influ- Davis, created a racially hostile work normally work with the ence over hiring, firing, and promotion.23 environment in violation of Title VII.16 harassed employee. While the shift manager did, under the Vance agreed that “Davis did not have the pretense of giving a 15-year-old female power to hire, fire, demote, promote, employee a ride to work, instead take her transfer, or discipline her,” but nonethe- through this exception, stating: “Where a for three days of drugs and statutory rape, less argued that Davis was her supervisor harasser is empowered to effect signifi- he did not have the actual authority to by pointing to the responsibilities includ- cant changes in employment status indi- ed in Davis’ job description, which stated rectly through recommendations, per- Continued on next page that Davis supervised, led, and directed some employees.17 Both the majority and dissent rejected the idea of relying on Davis’s job description, with the majority insisting (and holding) a “supervisor” must be able to take a tangible employ- ment action,18 and the dissent stating “the supervisor status inquiry should focus on substance, not labels or paper descrip- tions.”19 In the end, the Vance Court adopt- ed the Seventh Circuit’s definition of “supervisor,” holding: [A]n employer may be vicarious- ly liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ‘signifi- cant change in employment sta- tus, such as hiring, firing, failing to promote, reassignment with significantly different responsi- bilities, or a decision causing a significant change in benefits.’20 C. Circuit Court decisions after Vance. Vance has not significantly altered the analysis of employer liability. For exam- ple, Vance continues to recognize an alter- nate route to vicarious liability when the harassing employee was not a supervisor, but the supervisor did not normally work with the harassed employee. In Kramer v. Wasatch County Sheriff’s Office,21 the Tenth Circuit imposed vicarious liability

The Mississippi Lawyer Winter 2015 13 Employment Law Update Title VII After Vance and Boh Bros. hire, fire, or promote her, and the employ- A. Oncale: 1998-2013. Two years after the EEOC lost an ees who did have the actual authority nor- almost identical challenge in the Northern In the landmark Oncale v. Sundowner mally worked with her. In Lambert v. Peri District of Alabama,36 E.E.O.C. v. Boh Offshore Services, Inc.,26 a unanimous Formworks Sys. Inc., the Seventh Circuit Bros. Const. Co., L.L.C.,37 arrived on Court extended Title VII to sexual harass- found that Vance’s definition of “supervi- appeal to the Fifth Circuit. In Boh Bros., ment in the same-sex context.27 sor” for purposes of strict liability does the EEOC brought an action on behalf of Addressing criticism that Oncale risked not absolve “people who stand higher in a male iron worker (Woods), who claimed transforming Title VII “into a general the chain of authority” of the obligation to that his supervisor (Wolfe) engaged in civility code for the American work- process reports of harassment up the same sex harassment. The jury awarded place,”28 the Court stated that the risk chain of command if it is reasonable to $451,000,38 the Fifth Circuit panel over- would be “adequately met by careful expect them to do so.24 Finally, in turned the jury verdict finding no causa- attention to the requirements of the E.E.O.C. v. Boh Bros. Const. Co., tion (no “because of ” sex), the EEOC statute.”29 The Court was clear that “Title L.L.C,25 the Fifth Circuit simply accepted appealed, and the court sat for en banc VII does not prohibit all verbal or physi- a foreman’s testimony that he had the review. cal harassment in the workplace,” only authority to hire, fire, transfer, and pro- “discrimination because of sex.”30 “The Wolfe was the worst offender in “an mote, to find him a supervisor under critical issue . . . is whether members of undeniably vulgar” all-male jobsite, and Vance for purposes of vicarious liability. 39 one sex are exposed to disadvantageous Woods received the brunt of his abuse. II. Boh Bros.: Outlier or Sea- terms or conditions of employment to Many times a day Wolfe used vulgarities Change? which members of the other sex are not to describe Woods. Many times a week, exposed.”31 when Woods would bend over to work, Boh Bros, while not especially signifi- Wolfe would come up behind him to sim- cant for its treatment of Vance, is espe- The Court noted that an inference of ulate anal sex.40 Wolfe regularly exposed cially noteworthy for its analysis and discrimination “because of sex” was himself to Woods while smiling and wav- break with precedent regarding same-sex “easy to draw in most male-female sexual ing.41 The event that took up the lion’s sexual harassment in the workplace. harassment situations, because the chal- share of the court’s analysis, however, was lenged conduct typically involves explicit that Woods once shared with his co-work- or implicit proposals of sexual activity.” ers that he used “Wet Ones”, which sub- The same inference would be available in jected him to increased ridicule and same-sex cases where the alleged harass- abuse, as Wolfe considered their use er was homosexual, but harassing conduct “kind of gay” and “feminine.”42 need not be based on sexual desire to sup- port an inference of discrimination One day, Woods committed a ter- 43 because of sex.32 General hostility towards minable offense. This was reported to one sex, or direct comparative evidence of Wolfe, who reported it to his supervisor, 44 how an alleged harasser treated members Duckworth. When Duckworth confront- of both sexes in a mixed sex environment ed Woods, Woods complained in detail would also support an inference of dis- about Wolfe’s conduct and also that Wolfe 45 crimination because of sex.33 However, no was “probably stealing.” Duckworth matter what evidentiary route a plaintiff sent Woods home, but assured Woods he 46 followed, he “must always prove that the would look into his allegations. conduct at issue was not merely tinged Duckworth briefly investigated, but did with offensive sexual connotations, but not document, Wolfe’s conduct and deter- 47 actually constituted discrimination mined there was no sexual harassment. because of sex.”34 He investigated Wolfe’s possibly stealing gas by hiring a private detective and pay- In the Fifth Circuit’s only published ing for 85 hours of investigation work, decision prior to Boh Bros., La Day v. including two written reports.48 Catalyst Technology, Inc., the court iden- The Boh Bros. majority cited La Day’s tified a two part test: first, whether the 49 harasser’s conduct constitutes discrimina- two-step test, which required Woods to tion because of sex. If the answer is “yes”, prove that the alleged harassing conduct “actually constituted discrimination the court then determines whether the 50 harassing conduct satisfies the require- because of sex.” Regarding the inference ments for a quid pro quo or hostile envi- of discrimination, the court stated that Oncale’s inferential routes are not “the ronment claim.35 This was the understood test in the Fifth Circuit until 2013. exclusive paths to success on a Title VII same-sex harassment claim.” However, B. Boh Bros. that is where the court’s analysis gets

14 Winter 2015 The Mississippi Lawyer Employment Law Update Title VII After Vance and Boh Bros. interesting. The majority never identified to complain about harassment . . . he just 21743 F.3d 726 (10th Cir. 2014). For those interest- the evidentiary path used to support its never did so until . . . his own misconduct ed, Kramer is a “what not to do” guide for employers interested in limiting liability. inference of discrimination.51 Rather, it was reported.”60 “relie[d] on the harassment, in and of 22 Id. at 741. Prior to Boh Bros., the framework for itself, as a substitute for actual evidence 23 534 F.App’x 726, 731 (10th Cir. 2013). same-sex sexual harassment cases was reflecting a subjective intent of Wolfe to 24 723 F.3d 863, 866-68 (7th Cir. 2013) clear: first, a plaintiff had to prove dis- engage in sex discrimination[.]”52 25 731 F.3d 444 (5th Cir. 2013). crimination because of sex. He could do 26 Oncale, 523 U.S. 75 (1998). Where Oncale and La Day both care- this by one of Oncale’s suggested routes, 27 Id. at 79. or by any other route which provided a fully articulated the “the critical issue” as 28 Id. at 80. reasonable inference that the plaintiff had “whether members of one sex are exposed 29 Id. to disadvantageous terms or conditions of been subjected to detrimental terms and 30 Id. employment to which members of the conditions of employment that members 31 Id. other sex are not exposed”, the majority in of another gender had not. If the first step 32 Id. Boh Bros overlooked this guideline. was established, the court then addressed the claim under a quid pro quo or hostile 33 Id. at 80-81. In a pitch-perfect dissent, Judge Jolly work environment standard. 34 Id. at 80-81. criticized the lack of testimony or other 35 La Day v. Catalyst Technology, Inc., 302 F.3d evidence of Woods’ perceived or alleged After Boh Bros., evidence only of 474, 478 (5th Cir. 2002). femininity. The majority responded that harassment may be enough to establish a 36 E.E.O.C. v. McPherson Companies, Inc., 914 the plaintiff was not required to “prop up reasonable inference of intentional sexual F.Supp.2d 1234 (N.D. Ala. 2012) (all-male his employer’s subjective discriminatory discrimination, and the form of an workplace; same-sex gender discrimination suit employer’s sexual harassment policy may based on gender stereotyping and a “hostile” animus by proving that it was rooted in work environment; neither harassers nor the some objective truth.”53 However, accord- be considered as important as the employ- plaintiff were homosexual or perceived as ing to precedent, it is (or was) the plain- er’s practice of policy enforcement. I effeminate; and the plaintiff waited years to report the “offensive” language). tiff’s burden to prove discrimination ______because of sex, and a same-sex plaintiff 37 Boh Bros., 31 F.3d 444 (5th Cir. 2013). must establish some inference of discrim- 1 Matthew W. Burris is an attorney with Mayo 38 Id. at 451. MallettePLLC in Oxford, MS. He practices pri- 39 Id. at 449. ination. If the inferential route he chooses marily in Labor and Employment and special- is discrimination because his behavior did izes in the area of Higher Education. 40 Id. not conform to traditional gender stereo- 2 Vance v. Ball St. Univ., 133 S.Ct. 2434, 2443 41 Id. at 449-50. However, as the dissent pointed types, the plaintiff indeed does (or did) (2013) (quoting Burlington Indus., Inc. v. out, Wolfe did this to the other employees, and Ellerth, 524 U.S. 742, 761 (1998)). the other employees themselves were “vulgar.” have to provide objective evidence of his Id. at 473 (Jolly, J. dissenting). Wolfe “mooned” nonconformance “to demonstrate the 3 Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 others regularly and called his own son, also an presence or absence of the employer’s (1986). employee, “a queer.” Id. at 478 & n.7 (Jones, J. subjective discriminatory animus.”54 In 4 Id. at 72. dissenting). the end, the majority relied on testimony 5 Ellerth, 524 U.S. 742 (1998). 42 However, “[F]our current NFL players are par- ticipating in an advertising ‘marketing blitz’ to by Wolfe55 in which, at most, he stated he 6 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). promote men’s use of a brand of moistened toi- considered Woods’s use of wet wipes to let wipes similar to Wet Ones.” Id. at 485 & n.3 be feminine, but insisted he did not con- 7 Vance, 133 S.Ct. at 2439. (Smith, J. dissenting). sider Woods himself to be gay, feminine,56 8 Id. 43 Id. or to not fit into the stereotypical iron 9 Id. 44 Id. worker work environment.57 10 Id. 45 Id. 11 Id. 46 Boh Bros., 31 F.3d at 450. Boh Bros. failed to establish the 12 Id. at 2442. Ellerth/Faragher affirmative defense 47 Id. at 451. Duckworth estimated that he spent 20 13 Id. at 2447-48. minutes investigating Wolfe’s conduct. because: it had a broad, non-specific pol- 14 Vance v. Ball State Univ., 646 F.3d 461, 470 (7th 48 Id. icy, its employees were unaware of the Cir. 2011); Noviello v. Bos., 398 F.3d 76, 96 (1st 49 Id. at 453. policy, there were no specific guidelines Cir. 2005); Weyers v. Lear Operations Corp., on how to report or investigate harass- 359 F.3d 1049, 1057 (8th Cir. 2004). 50 Id. at 455. ment complaints, the annual training last- 15 Mack v. Otis Elevator Co., 326 F.3d 116, 126-27 51 Id. at 471 (Jolly, J., dissenting). ed approximately five minutes, and the (2d Cir. 2003); Whitten v. Fred’s, Inc., 601 F.3d 52 Id. at 472. 231, 245-47 (4th Cir. 2010). company did little to implement its poli- 53 Id. at 456-57. 16 Vance, 133 S.Ct. at 2439-40. cies.58 The dissent suggested the majority 54 Id. at 472 (Jolly, J., dissenting). focused on form over substance, noting 17 Id. at 2439, 2449 55 Id. at 457-59. that Boh Bros had not one “cause” find- 18 Id. at 2454. 56 Id. ing by the EEOC in forty years.59 19 Id. at 2465 (Ginsberg, J., dissenting). 57 Id.; see also id. at 471-72Id. Besides, “Woods knew how and to whom 20 Id. at 2443.

The Mississippi Lawyer Winter 2015 15 ExceptionsExceptions toto EmploymentEmployment aatt RemaiRemainn

16 Winter 2015 The Mississippi Lawyer thethe MississippiMississippi tt WillWill DoctrineDoctrine nn ViableViable

By Rachel and Jim Waide

The Mississippi Lawyer Winter 2015 17 Exceptions to the Mississippi Employment at Will Doctrine Remain Viable

he Mississippi Supreme Court has recognized two important exceptions to Mississippi’s “employment at will” doctrine. By Rachel and Jim Waide T First, McArn v. Allied Bruce-Terminix it clear that at will contracts of Co., Inc., 626 So. 2d 603,607 (Miss. employment are subject to a tor- 1993) held: tious interference claim. We are of the opinion that there . . . . should be in at least two cir- Following the law of the afore- cumstances, a narrow public mentioned jurisdictions, this policy exception to the employ- Court concludes that a claim for ment at will doctrine and this tortious interference with at-will should be so whether there is a contracts of employment is written contract or not: (1) an viable in this state as well. employee who refuses to partic- ipate in an illegal act as in Laws These two exceptions to the employ- shall not be barred by the com- ment at will doctrine have met differing mon law rule of employment at responses from state and federal courts. will from bringing an action in Various McArn issues have been present- tort for damages against his ed to the Mississippi Supreme Court after employer; (2) an employee who McArn, and that Court has never retreated is discharged for reporting ille- from McArn. See Jones v. Fluor Daniel gal acts of his employer to the Services Corp., 959 So. 2d 1044 (Miss. employer or anyone else is not 2007) (The McArn exception applies Rachel Waide barred by the employment at whenever illegal acts reported relate to will doctrine from bringing employer’s business); DeCarlo v. Bonus action in tort for damages Stores, Inc., 989 So. 2d 351, 354 (Miss. against his employer. 2008) (Approving Laws v. Aetna Finance Co., 667 F.Supp. 342, 344 (N.D. Miss. Second, Levens v. Campbell, 733 So. 1987), which correctly anticipated McArn 2d 753, 760 (Miss. 1999) held: by holding that under Mississippi law, an “One who intentionally and employee cannot be fired for reporting improperly interferes with the “unsavory and possibly illegal business performance of a contract ... practices...of his employer.”); Willard v. between another and a third per- Paracelsus Health Care Corp, 681 So. 2d son, by preventing the other 539, 543 (Miss. 1996) (Holding that dis- from performing the contract or charge “in retaliation for an employee’s causing his performance to be good faith effort to protect the employer more expensive or burdensome, from wrongdoing” is actionable under is subject to liability to the other McArn); Buchanan v. Ameristar Casino for the pecuniary loss resulting Vicksburg, Inc., 852 So. 2d 25, 26 (Miss. to him.” Restatement Second of 2003) (Upholding dismissal of wrongful Torts § 766A (1979). This sec- discharge claim because plaintiff “does tion does apply to contracts ter- not allege . . . that she was terminated for minable at will. Id. at cmt. d. reporting illegal acts . . . .”). Jim Waide There are numerous cases from The only restrictive interpretation of other jurisdictions which make McArn by the Mississippi appellate courts

18 Winter 2015 The Mississippi Lawyer Exceptions to the Mississippi Employment at Will Doctrine Remain Viable is the recent decision in Strong v. North The Mississippi Supreme Court employment in bad faith. Mississippi Center for Higher Education has recognized that “a claim for Vaughan may satisfy this “bad Advancement, Inc., ___ So.3d. ___, 2014 tortious interference with at- faith exception” by showing WL 4695789 (Miss. App. 2014) (petition will contracts of employment is that Hill acted with malice, in for rehearing pending), which held that viable in [Mississippi].” Levens other words, that he terminated McArn does not apply to an employee v. Campbell, 733 So. 2d 753, Vaughan “without right or good whose contract was not renewed because 760 (Miss. 1999). However, cause.” Morrison v. Miss. Enter. he reported illegal acts. “one occupying a position of for Tech., 798 So. 2d 567, 575 While the state courts in Mississippi responsibility on behalf of (Miss. App. 2001). have continued to interpret McArn broad- another is privileged, within the Vaughan, 553 Fed.Appx. at 444. ly, the federal courts have narrowly inter- scope of that responsibility and preted the case. Wheeler v. BL absent bad faith, to interfere These two (2) exceptions to the Development Corp., 415 F.3d 399 (5th with his principal’s contractual employment at will doctrine (discharge Cir. 2005), for example, held that it was relationship with a third per- for reporting illegal acts and malicious not unlawful to fire an employee for son.” Shaw, 481 So. 2d at 255. interference with employment), should be reporting that casino executives were Hill occupied a position of interpreted to comply with the receiving free dry cleaning from an out- responsibility, acting on behalf Mississippi Supreme Court’s dissatisfac- side laundry service. Vaughan v. Carlock of Carlock, and thus was privi- tion with the Mississippi employment at Nissan of Tupelo, Inc., 553 Fed.Appx. 438 leged to interfere with will doctrine in general. In Shaw v. (5th Cir. 2014), held that McArn does not Vaughan’s employment unless Burchfield, 481 So. 2d 247, 254 (Miss. apply if a plaintiff cannot prove the acts he did so in bad faith or outside 1985), the Court held: which he or she reported are actual the scope of his employment. Such contracts in form are crimes. See id. Consequently, we must reciprocal in that either party It is debatable whether the Mississippi consider whether Vaughan has may terminate at will. Still, we Supreme Court would follow either the demonstrated a genuine issue may not remain insensitive to federal court’s narrow interpretation of of material fact regarding the McArn public policy exception to the whether Hill interfered with her Continued on next page employment at will doctrine or the court of appeals’ narrow interpretation of McArn in Strong. There is some public LITIGATION & MEDIATION SUPPORT policy exception to employment at will in at least forty-one (41) states and, further, ON REAL ESTATE ISSUES such an exception “has almost unanimous support among employment law com- mentators.” Thomas L. Cluff, Jr., In Defense of a Narrow Public Policy Exception to the Employment at Will Rule, 16 Miss. C.L. Rev. 437, n.35 (1996). While narrowly construing McArn, Real Estate Appraisers & Mediation Consultants federal courts have favorably applied 100 Years Combined Experience Levens. For instance, Gibson v. Estes, 338 Fed.Appx. 476, 477 (5th Cir. 2009) Joe W. Parker, MAI, CRE Curtis A. Gentry, IV, MAI held that a city mayor was individually Edward W. Dinan, MAI, CRE Elizabeth S. West, MAI, CRE liable for tortious interference with a J. Neil Parker police chief’s employment when the mayor caused the police chief to be fired, Services: Litigation Support, Expert Witness, Legal Strategy, Mediation and not because of job performance, but Mediation Support, Appraisals, Acquisition, Disposition, Arbitration, because the police chief had investigated Alternative Dispute Resolution, Asset Management, Strategic Positioning, the mayor’s son. Similarly, Vaughan v. Corporate Real Estate, Eminent Domain, Environmental, Government (State, Carlock Nissan of Tupelo, Inc., 553 Municipal, Federal), Investment Strategy, Investment Management, Market Fed.Appx. 438 (2014), while rejecting a Studies, Site Location, Conservation Easements, Feasibility Analysis McArn claim, upheld a malicious interfer- ence claim of a sales clerk that her store 641660 Lakeland Katherine East Drive, Drive, Jackson, Jackson, MS MS 39232 39232 manager had fired her because she report- 601-664-2422601-664-2422 1-800-759-1849 1-800-759-1849 ed unsavory sales practices. The Fifth FaxFax 601-66401605601-664-1605 Circuit wrote: www.appraisalresearch.net

The Mississippi Lawyer Winter 2015 19 Exceptions to the Mississippi Employment at Will Doctrine Remain Viable

the fact that the impact of ter- upon the efforts and diligence of lawyers that “[d]oubtful cases must be mination upon the employee is in presenting the applicable principles to compensated.” The Act is to be in general more adverse in a the Mississippi Supreme Court. In this viewed as a whole without iso- way that is qualitatively differ- connection, Bryan C. Sanders, The lating any particular provision ent than what the employer Inconvenient Worker–Can Mississippi’s apart from the rest. A statutory experiences when it is the Public Policy Exceptions to the contract is created, vesting employee who walks off the job. Employment-at-Will Doctrine be employees with a right to We approach this case cog- Expanded to Encompass the Exercise of receive compensation and plac- nizant of the force of Anatole Workers’ Compensation Rights? 81 Miss. ing a duty on employers to pro- France’s pointed observation L.J. 1563, 1581-82 (2012), has argued vide it. In consideration, the that “the law, in its majestic that the McArn public policy exception employee forgoes any action in equality, forbids the rich as well should be broad enough to encompass tort against the employer while as the poor to sleep under protecting employees who are fired ensuring a minimal recovery bridges, to beg in the streets, because they filed workers’ compensation for his injuries. The Mississippi and to steal bread”. Were this a claims: Supreme Court has recognized case where no employment con- [A] plausible argument could the strong public interest tract established expressly the be made that interpreting the behind the Act, stating: “The ground rules for termination Workers’ Compensation Act to entire system was designed to and where the employer was allow a wrongful discharge insure that those injured as a calling upon the state to furnish cause of action would not be result of their employment the law which authorized termi- judicial intervention in legisla- would not be reduced to a pen- nation, we might well be tive affairs, but simply constru- niless state and thereby become charged to reconsider the at will ing its language to effectuate dependent on some form of termination rule. the legislative intent. The governmental public assis- I (footnote omitted). courts have found that the leg- tance.” Ultimately, whether the employment islature intended the Act be (footnotes omitted). at will doctrine is expanded will depend given a liberal construction and

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20 Winter 2015 The Mississippi Lawyer

22 Winter 2015 The Mississippi Lawyer TheThe EmployeeEmployee AppealsAppeals BoardBoard –– AnAn OverviewOverview

By Ingrid Dave Williams1

The Mississippi Lawyer Winter 2015 23 The Employee Appeals Board – An Overview

OVERVIEW OF MISSISSIPPI STATE LAW he law governing the process and recourse available to state employees faced with disciplinary action is contained in the Mississippi Code of 1972 and the Mississippi State Personnel Board Rules and Regulations promulgated by the TMississippi State Personnel Board.

The principles of the state personnel regulations prescribed by the state person- system include the directive to ensure fair nel system may be dismissed or otherwise treatment of applicants and employees in adversely affected as to compensation or all aspects of personnel administration employment status for inefficiency or without regard to political affiliation, race, other good cause, after written notice and national origin, sex, religious creed, age or hearing within the department, agency, or disability.2 institution as specified in the rules and “State Service” means all employees regulations of the Mississippi State of state departments, agencies and institu- Personnel Board.8 On appeal, any employ- tions, except those officers and employees ee who has been dismissed or otherwise excluded by the law.2 The law provides an adversely affected as to compensation or extensive list of positions which are not employment status must prove that the rea- considered State Service including: sons stated in the notice of dismissal or employees who are terminated due to a action adversely affecting his compensa- reduction in force conducted in accor- tion or employment status are not true or dance with the rules and regulations of the are not sufficient grounds for the action state personnel system;4 probationary taken.9 Note that this section of the law employees, who have been employed for establishes the burden of proof in appeals less than twelve months; and professional for employees in employment disciplinary employees such as doctors, lawyers, nurs- proceedings and places the burden of es, academicians; and elected officials.5 proof on the employee – not the state Another important exclusion is for “time- agency. limited” positions, which the law defines The Employee Appeals Board as personnel who are paid from a federal (“EAB”) consists of three hearing offi- grant which has been approved by the cers.10 These hearing officers hold hear- Legislature or the Department of Finance ings, compile evidence, and render deci- and Administration whose length of sions on appeals of state agency actions employment has been determined to be adversely affecting the employment status time-limited in nature.6 Even though those or compensation of “State Service” employees may have the same positions as employees and appeals of applicants for State Service employees and receive the state employment, probationary employ- same benefits, they are “non-State ees and time-limited employees who make Service” employees. Consequently, “time- claims of discrimination. One hearing limited” employees are not entitled to the officer is appointed from each of the three same protections as “State Service” Supreme Court districts, and the three employees under state law. Thus, it is hearing officers serve staggered four-year incumbent upon anyone representing a terms.11 state employee with regard to an employ- Either party may appeal the presiding ment matter to first determine if the hearing officer’s ruling to the entire EAB, employee is on probation, “State Service,” en banc. If an employee is aggrieved by a “non-State Service,“ or “time-limited.”7 final order of the EAB, en banc, the By Ingrid Dave Williams1 With regard to disciplinary actions employee may then appeal to the Circuit against employees, the law provides that Court of the principal county of the employees who are subject to the rules and employee’s employment or the Circuit

24 Winter 2015 The Mississippi Lawyer The Employee Appeals Board – An Overview

Court of Hinds County.12 The scope of and employees who commit such offenses prior to an action that would adversely review by the Circuit Court is limited to may be disciplined with a written repri- affect the employee’s employment status the record before the Employee Appeals mand. However, the accumulation of mul- or compensation. The employee must be Board. The court is limited to determining tiple Group One offenses may result in provided written notice of any proposed if the action taken by the Employee demotion or dismissal, depending on the disciplinary action which states with suffi- Appeals Board is supported by any sub- frequency of the offenses.20 Group Two cient particularity the charges or allega- stantial evidence, is arbitrary or capri- offenses are more serious offenses, and an tions being made against the employee; cious, or is in violation of a statutory or employee may be disciplined with a writ- the proposed discipline which may be constitutional right of the employee.13 ten reprimand or receive a suspension taken; and provides the opportunity for a As noted above, when an employee without pay for five days. Group Two conference with the employing agency, appeals a decision of the EAB Full Board, offenses may also result in demotion or appointing authority, or designated repre- the standard of review is provided for by dismissal depending on the accumulation sentative of the appointing authority. The law. The state agency must apply for a and frequency of offenses from Groups notice must be provided to the employee at writ of certiorari to the circuit court in One and Two.21 Finally, Group Three least seven working days prior to the con- order to obtain judicial review of the final offenses are the most serious offenses. ference.23 Chapter Nine also provides pro- EAB Board order.14 In Gill v. Mississippi State employees who commit a Group cedures for the immediate suspension of Department of Wildlife Conservation, 574 Three offense may be disciplined with a employees under extraordinary circum- So.2d. 586 (Miss. 1990), the Mississippi written reprimand, suspension without pay stances.24 Supreme Court outlined the standard of for up to 30 days, demotion, or dismissal. Chapter Ten of the Manual sets forth review when the agency appeals, as fol- Group Three offenses are not necessarily the rules governing employee grievances lows: “We thus are in our familiar posture cumulative and an employee may be dis- and lists the matters which State Service of judicial review of administrative missed for the commission of one Group employees may contest. This Chapter also processes wherein we may interfere only Three offense.22 clarifies that applicants for state employ- where the board or agency’s decision is Chapter Nine of the Manual also out- ment, probationary employees, and Non- arbitrary and capricious, accepting in prin- lines the specific due process to be ciple the notion that a decision unsupport- accorded to any State Service employee Continued on next page ed by any evidence is by definition arbi- trary and capricious.”15 The Mississippi Supreme Court in later decisions has elab- orated on this standard of review, based on the general standard of review applied to appeals from administrative bodies,16 and in some instances conflated it with the standard of review provided by statute for employee appeals.17 It appears that a form of the standard of review outlined in the statute applies to appeals from both the employee and the agency. Any Party aggrieved by the action of the Circuit Court has further recourse through the normal appellate process.18

MISSISSIPPI STATE PERSONNEL BOARD RULES GOVERNING EMPLOYEE DISCIPLINARY AND GRIEVANCE PROCEDURES The administrative rules governing disciplinary actions and appeals to the EAB are contained in the Mississippi State Personnel Board Policy and Procedures Manual.19 Chapter Nine of the Manual addresses disciplinary actions for state employees. Disciplinary offenses are divided into three groups — Group One offenses, Group Two offenses and Group Three offenses. Group One offenses are less serious,

The Mississippi Lawyer Winter 2015 25 The Employee Appeals Board – An Overview

State Service employees may contest The EAB has jurisdiction of all filed concurrently with EAB appeals. alleged acts of discrimination on the basis appeals filed by permanent State Service An appeal to the EAB must be filed of political affiliation, race, color, handi- employees regarding any action which within 15 calendar days after the date the cap, genetic information, religion, nation- adversely affects the employee’s compen- employee receives written notice of the al origin, sex, religious creed, age, or dis- sation, employment status, or grievable final decision of the state agency action, ability.25 State Service employees may actions.28 All other employees, including or within 15 days of the first attempted appeal the specific employment matters probationary and Non-State Service, and delivery of the final decision by certified outlined in the rules, as well as any matter applicants for employment may appeal mail, whichever occurs first.34 The appeal of concern or dissatisfaction to an employ- alleged acts of discrimination based on filing fee is $100.00.35 A form containing ee if the matter is subject to the control of political affiliation, race, color, handicap, all of the required information for filing is the state agency except for those matters genetic information, religion, national ori- available on the MSPB website, although which are specifically listed as non-griev- gin, sex, religious creed, age, or disabili- use of the form is not a requirement.36 able.26 ty.29 The rules also give the EAB jurisdic- The administrative rules provide that tion over any appeals alleging acts of retal- prehearing conferences may be held, with- EMPLOYEE APPEALS BOARD iation against whistleblowers,30 and the in the discretion of the hearing officer, to RULES decision that an employee is not eligible to resolve any matters which may simplify or Chapter Ten of the Manual also con- receive donated leave.31 In order for the expedite the hearing.37 Ten days prior to tains the rules for an appeal to the EAB to have jurisdiction, the employee the hearing, both parties must file a wit- Employee Appeals Board. The EAB oper- must have exhausted all applicable agency ness list, which contains each witness’ ates through the EAB Administrative level grievance procedures.32 An appeal to name, employer and employer’s address. Office. The EAB Administrative Office is the EAB is usually the employee’s exclu- The witness list must also contain a brief responsible for accepting and processing sive state remedy; however, 42 U.S.C. summary of the witness’ testimony.38 This all appeals, maintaining appeal records, §1983 actions against persons in their summary should be more extensive than a compiling and maintaining aggregate data individual capacities are not required to be pro forma recital that the witness will tes- on appeals, and providing administrative adjudicated through the EAB,33 and feder- tify to the facts and circumstances sur- support to the hearing officers.27 al discrimination complaints are often rounding the disciplinary action. The hear-

26 Winter 2015 The Mississippi Lawyer The Employee Appeals Board – An Overview ing officer has the authority to issue sub- to provide due process in employment have reviewed the decisions of the EAB poenas for witnesses and subpoenas duces actions where the employee’s compensa- more than 300 times. In their review of tecum.39 Any request for subpoenas must tion or employment status is adversely the cases decided by the EAB, the courts be filed no less than twenty days prior to affected. Therefore, although there are no have found that the decision of the EAB to the hearing and must be accompanied by formal discovery procedures, because the reinstate a game warden who helped his the appropriate fees.40 employee is entitled to several levels of brother poach game fish was arbitrary and The rules specify that the purpose of administrative review before the employee capricious;53 that an agency is not required the hearing is to ascertain the truth, and appears before the EAB, there is usually to institute a performance improvement specifically provides that the hearing offi- ample documentary evidence available to plan before implementing disciplinary cer may question the witnesses.41 The the attorney representing a state employee. action;54 that when an employee is termi- hearing is de novo.42 The hearing officer nated for sleeping on the job it is incum- has the authority to control the presence of bent on the hearing officer to determine witnesses in the hearing room, but gener- that the employee was not asleep in order ally the hearing officer will accede to the If either party is to reinstate the employee;55 that one employee’s request in this regard.43 instance of the use of a racial slur is not Employees may be represented by attor- aggrieved by the hearing sufficient to create a hostile work environ- neys licensed in Mississippi.44 officer’s final order then ment;56 and that an employee who is polit- Hearings before the EAB are informal ically inactive and unconnected is protect- and technical rules of evidence are the aggrieved party ed equally as one who has positive politi- relaxed.45 Witnesses testify under oath and may appeal to the cal opinions and affiliations.57 are subject to cross-examination.46 The EAB en banc for The EAB provides a valuable service standard of proof outlined in the law is to the state in providing an avenue for reiterated in the rules, and the employee is review of that order. review of agency disciplinary decisions required to prove that the reasons stated in both mundane and momentous. The EAB the state agency’s final decision are not gives employees a fair and impartial venue true or are not sufficient grounds for the for review of disciplinary matters and action taken.47 Continued on next page The EAB may reinstate a terminated This information is often available via a employee and restore all applicable simple request to the agency or via the employee rights and benefits.48 The EAB issuance of a subpoena duces tecum. may also modify any action of a state Every attorney should be thoroughly agency, but cannot increase the severity of familiar with the documentation generated any state agency action. However, the in a grievance procedure or disciplinary EAB may not modify the personnel action action prior to the EAB hearing. The if the agency has acted in accordance with Rules governing appeals to the EAB are all MSPB policies, rules and regulations.49 readily available to state employees and The EAB does not have the authority to the public. The EAB Administrative award attorneys’ fees.50 Office is available to assist employees and If either party is aggrieved by the hear- attorneys with any issues which may arise. ing officer’s final order then the aggrieved Many of the employees who appear party may appeal to the EAB en banc for before the EAB are unrepresented and review of that order. Such a request for unfamiliar with any type of legal process, review must be filed within 15 days after whereas the agency is always represented the date that the final order is filed. The by legal counsel. When an employee parties may file briefs within thirty days of appears pro se, the hearing officers take the request for review. The en banc review special care to make sure that the employ- is based on the record created at the EAB ee is able to present his or her case to the hearing.51 Either party, the employee or best of that employee’s ability. In such sit- the agency, aggrieved by a final decision uations, procedures are more likely to be of the EAB, sitting en banc, may appeal to informal and the rules of procedure and the Circuit Court.52 evidence are relaxed to assist the employ- ee in presenting his or her case. REPRESENTING THE EMPLOYEE BEFORE THE EAB CONCLUSION Prior to appeal to the EAB, the Since the law establishing the employee is required to exhaust all admin- Employee Appeals Board was enacted in istrative remedies. The agency is required 1980, the Circuit and Appellate Courts

The Mississippi Lawyer Winter 2015 27 The Employee Appeals Board – An Overview grievances, and in doing so provides an 15 Gill, 574 So.2d at 591 35 Id., 10.7.5.C. alternative to expensive and lengthy litiga- 16 Harris v. Mississippi Department of 36 http://www.mspb.ms.gov Corrections, 831 So.2d 1105 (Miss. 2002) tion. I 37 Mississippi State Personnel Board Policy and 17 Miss. Code Ann. 25-9-132 (2); Pannell v. Procedures Manual, 10.7.12; 10.7.13. ______Tombigbee River Valley Water Management 38 Id., 10.7.15.A. 1 Ingrid Dave Williams is the Chief Hearing District, 909 So.2d, 1115, 1119-1120 (Miss. 39 Id., 10.7.16. Officer of the Employee Appeals Board. The 2005) author acknowledges the assistance of Hearing 40 Id., 10.7.16. D. and F. 18 Miss Code Ann. §25-9-132 (4) Officer Michael N. Watts and Director of the 41 Id., 10.7.18.A. and B. 19 http://www.mspb.ms.gov EAB Administrative Office, Dianne Harrell. 42 Id, 10.7.18.C. 20 Mississippi State Personnel Board Policy and 2 Miss. Code Ann. §25-9-103(e) allows all appli- 43 Id, 10.7.18.D. cants for state employment and Non-State Procedures Manual, 9.1.A. Service Employees to appeal acts of discrimina- 21 Id., 9.1.B. 44 Id., 10.7.18.F. tion to the EAB. 22 Id., 9.1.C. 45 Id., 10.7.19.A. 3 Miss. Code Ann. §25-9-107 (b) 23 Id., 9.3. 46 Id., 10.7.19.B. 4 Miss. Code Ann. §29-9-127 (1); Mississippi 24 Id., 9.3.B. 47 Id.,10.7.20.B.; Miss. Code Ann. §25-9-127 (1) State Personnel Board Policies and Procedures 25 Id., 10.1., Mississippi Code Ann. §§25-9-103(e), 48 Mississippi State Personnel Board Policy and Manual, 7.7 25-9-149; Genetic Information is not mentioned Procedures Manual, 10.7.24.A. 5 Miss. Code Ann. §25-29 107 (c) specifically in the state statutes, although such 49 Id., 10.7.24.B. 6 Miss. Code Ann. §25-29-107 (c)(xiv) discrimination is prohibited by the Federal 50 Mississippi Employment Security Commission v. 7 Mississippi State Personnel Board Policy and Genetic Information Nondiscrimination Act. Culbertson, 832 So.2d 519 (Miss. 2002) Procedures Manual, 10.7.3.D. 26 Mississippi State Personnel Board Policy and 51 Mississippi State Personnel Board Policy and 8 Miss. Code Ann. §25-9-127 (1) Procedures Manual, 10.2.; 10.3. Procedures Manual, 10.7.25. 9 Id. 27 Id., 10.7. 52 Id., 10.7.26.; Miss. Code Ann. §25-9-32 (4); 10 The Current Hearing Officers are Ingrid Dave 28 Id., 10.7.3.A. and B. Gill, 574 So.2d 586 Williams (First Supreme Court District), B. Ray 29 Id., 10.7.3.D. 53 Mississippi Department of Wildlife Therrell, II (Second Supreme Court District), 30 Id., 10.7.3.E. Conservation v. Browning, 578 So.2d 667 (Miss. 1991) and Michael N. Watts (Third Supreme Court 31 Id., 10.7.3.F; Miss. Code Ann §25-3-95 District) 54 Young v. Mississippi State Tax Commission, 635 32 Mississippi State Personnel Board Policy and So.2d 869 (Miss. 1994) 11 Miss. Code Ann. §25-9-129 Procedures Manual, 10.7.4.A. 55 Mississippi Department of Corrections v. 12 Miss. Code Ann. §25-9-132 (1) 33 East Mississippi State Hospital v. Callens, 892 McClee, 677 So.2d 732 (Miss. 1996) 13 Miss. Code Ann. §25-9-132 (2) So. 2d 800 (Miss. 2004) 56 Richmond v. Mississippi Department of Human 14 Gill v. Mississippi Department of Wildlife 34 Mississippi State Personnel Board Policy and Services, 745 So.2d 254 (Miss. 1999) Conservation, 574 So.2d. 586 (Miss. 1990) Procedures Manual, 10.7.5.B. 57 Gill, 574 So.2d 586

28 Winter 2015 The Mississippi Lawyer Ethics Opinions

Ethics Opinion No 260 of The Mississippi Bar Rendered November 20, 2014

CAVEAT: This Opinion is limited strict- participating in such an offer under the That same defense lawyer cannot be ly to the facts as presented for analysis Mississippi Rules of Professional expected to objectively evaluate his own under the Mississippi Rules of Profession Conduct. representation in an ongoing case when Conduct. The facts and questions outlined The Preamble to the Rules of considering and advising his client on a below and the opinion rendered is limited Professional Conduct accurately describes plea agreement that contains such a waiv- to ethical issues only. a lawyer as “ a representative of clients, an er. This is a conflict that cannot be waived Is it ethical for a criminal defense officer of the legal system and a public cit- by consent of the client. A majority of lawyer to participate in a “Plea izen having special responsibility for the states to consider the propriety of this Agreement” that requires the quality of justice.” This obligation extends practice have likewise found it impermis- Defendant to waive past or future to a number of functions: as an advisor, as sible for defense counsel to participate in ineffective assistance of counsel an advocate, as a negotiator and as an making a plea agreement that waives a intermediary and evaluator. The impor- defendant’s past or future claims for inef- claims? Does this provision of the 1 plea agreement create a personal tant goal of finality in criminal convic- fective assistance of counsel. conflict of interest between the tions must be balanced against the fact that As for the prosecutor who may request criminal defense lawyer and the an effective and fair criminal justice sys- such a waiver, his conduct in requesting client? If so, does such conflict tem necessitates both competent, diligent the waiver is likewise prohibited. Rule rise to the level of denial of the and conflict free defense attorneys and 3.8, MRPC, and its comment explain that right to loyal counsel under the prosecutors who promote the fair adminis- a prosecutor has a heightened responsibil- Sixth Amendment of the United tration of justice. Plea bargains are a cen- ity as a minister of justice and not simply States Constitution? Is this a vio- tral part of the administration of the crim- that of an advocate. This heightened lation of due process of law under inal justice system and account for nearly responsibility includes seeing that the the Fifth and Fourteenth 95% of all criminal convictions. Missouri defendant is accorded procedural justice. Amendments of the United States v. Frye, 132 S.Ct. 1399, 1407 (2012). Rule 8.4(a) prohibits a lawyer from induc- Constitution? Is this an attempt Several of the Mississippi Rules of ing another to violate the rules of profes- by defense counsel to limit liabili- Professional Conduct (“MRPC”) are at sional conduct. Rule 8.4(d) prohibits any ty of the lawyer to the client? play and interrelated in this scenario. First conduct that is prejudicial to the adminis- Does this waiver violate the pros- Rule 1.7(b), MRPC states: tration of justice. A prosecutor’s insis- ecutors’ ethical responsibility? A lawyer shall not represent a tence on a waiver of past or future claims client if the representation of that of ineffective assistance creates a conflict ANALYSIS client may be materially limited by for the defense counsel between his the lawyer’s responsibilities to client’s interest and his own and is prejudi- The Ethics Committee for The cial to the administration of justice. Mississippi Bar has been requested to ren- another client or to a third person, or by the lawyer’s own interest, Foreclosing a defendant’s ability to have der an opinion as to the ethical implica- claims that defense counsel has failed in tions of an attorney participating in a unless the lawyer reasonably believes: his most fundamental duty to provide “Plea Agreement” where the client waives competent, diligent and conflict free rep- past or future ineffective assistance of (1) the representation will not be resentation undermines confidence in our counsel. In the hypothetical posed by the adversely affected; and criminal justice system. requestor, the defendant is entering into a (2) the client has given knowing voluntary plea agreement, and in consid- CONCLUSION eration of the plea offer the defendant has and informed consent after consul- been requested to waive any rights that he tation. The consultation shall For the reasons stated above, an attor- might have to attack the plea or other con- include explanation of the implica- ney representing a defendant in a criminal duct under 28 USC §2255 or other avail- tions of the representation and the case may not participate nor enter into a able remedies concerning the “effective- advantages and risks involved. “Plea Agreement” where the Defendant waives past, present or future “ineffective ness of counsel’s” responsibility prior to or Axiomatic in Rule 1.7 is counsel’s assistance” of counsel. Similarly, a prose- subsequent to the plea. obligation to avoid conflicts – conflicts cutor may not insist on such a waiver. I The Committee is of the opinion that it that would be detrimental to the client’s is improper for a criminal defense attorney interest. The Comment to Rule 1.7 ______1 to participate in making such a plea agree- explains that loyalty is an essential ele- North Carolina Ethics Opinion 129 (1993); Tennessee Informal Ethics Opinion 94-A-549; ; ment and it is equally unethical for a pros- ment in the lawyer client relationship and Vermont Ethics Opinion 95-04; Ohio Ethics ecutor to require such a waiver. Whether a the lawyer’s own interest cannot be per- Opinion 2001-6; Missouri Formal Ethics Opinion particular plea agreement containing such mitted to have an adverse effect on the 126 (2009); Alabama Informal Opinion September 1, 2010; Virginia State Bar Legal Ethics Opinion a waiver is lawful, enforceable and/or con- representation of the client. Defense 1857 (2011); Florida Bar Professional Ethics stitutional are questions of law outside the counsel has an undoubtable personal inter- Opinion 12-1; National Association of Criminal scope of this opinion. This Opinion est in the issue of whether he has provided Defense Lawyers Formal Opinion 12-02; ABA addresses only the propriety of a lawyer constitutionally effective representation. Resolution 113E, August 2013.

The Mississippi Lawyer Winter 2015 29 MB Election Results

W. Briggs Hopson, III, has become 9th District President Elect Designee of The Mississippi Penny B. Lawson, Vicksburg Bar. He will assume his elected position during the Bar’s Annual Meeting in 10th District Sandestin in July. Jackson attorney Roy D. Robert M. Dreyfus, Jr., Meridian Campbell will assume presidency of the Bar 13th District at that time. Wesley Broadhead, Mendenhall In addition to the race for President- Elect, the following have been certified as 15th District newly elected members of the Board of Bar Matthew D. Shoemaker, Petal Commissioners: 18th District 2nd District – Post 1 John A. Piazza, Laurel Karen K. Sawyer, Gulfport 20th District – Post 2 7th District – Post 4 Paul Randall, Jr., Ridgeland Susan R. Tsimortos, Jackson W. Briggs Hopson, III 22nd District Vicksburg, MS 7th District – Post 5 James D. Shannon, Hazelhurst President-Elect Stephen Montagnet III, Jackson of The Mississippi Bar

YLD Election Results

Bradley M. Reeves of Jackson has been elected Secretary of the Young Lawyers Division. Certified to serve on the Young James D. Harper, J.D., M.A. Lawyers Division Board of Directors are the following: Conflict Resolution and Reconciliation Central I Joseph Spencer Young, Jr., Flowood Mediator and Conflict Coastal II Resolution Consultant Lauren R. Hillery, Gulfport Hinds Post IV Gerald A. Mumford, Jackson Mediating all types of disputes or cases, Hinds Post V including personal injury, commercial, Kaytie M. Pickett, Jackson healthcare, malpractice, family and Jenny Tyler Baker Hinds Post VI divorce, corporate, organizational, Gulfport, MS Elizabeth “Betsy” Turley, Jackson administrative, and employment. President-Elect North East of the Young Lawyers Division Kristin G. Belvin, Tupelo Jenny Baker has been elected to 662-234-0320 the position of President-Elect South West Designee of the Young Lawyers Sarah M. Moulder, Hazelhurst • • • Division of The Mississippi Bar. Director-at-Large [email protected] Her term will begin in June of this Kassie A. Coleman of Meridian year. Diala H. Chaney of Oxford will assume duties of President of the YLD at that time.

30 Winter 2015 The Mississippi Lawyer Young Lawyers Division News

Pro Bono Committee of the Mississippi Nelson, the founder of I’m ME, and Judge Association for Justice to draft wills for James Graves of the 5th Circuit Court of members of the Hinds County Sheriff’s Appeals. Patrick Nelson will speak to our Department. We look forward to more young lawyers about the need to think out- events this spring. side the box when giving back to the com- Our new service project, which will munity and people in need and the neces- provide legal clinics for our homeless sity of public service. We will hear his Jennie Eichelberger youth is getting ready to start with some personal story of how public service drove Young Lawyers Division President clinics this spring across the state. We him and his brothers, including David 2014-2015 look forward to the opportunity to serve Nelson, a professional football player, to our children in need. form a non-profit organization to help the The 2015 year has gotten off to a busy The High School Mock Trial homeless children in Haiti. The day will start for the Young Lawyers Division, and Competition wrapped up on February 28 close with an ethics hour of advice from the winter has been packed full of projects with Sacred Heart Catholic High School Past Presidents of The Mississippi Bar. and events, both for the community and prevailing in the Finals. I was fortunate We are very excited about this event and for our young lawyers. I want to thank enough to serve as a judge in the Final hope to see you there! everyone for voting and selecting a great Round, along with Judge Linda Anderson, We look forward to building on group of incoming officers and directors Robert Gibbs, Gene Harlow and our active fall and winter as we head to serve on the YLD Board for 2015-2016. LaKeysha Greer-Isaac. The winning team into the spring months. If you would I know the YLD Board will be in good will travel to Raleigh, NC, in May to com- like to become more involved with hands with Jenny Tyler Baker as YLD pete in the National Competition. As YLD, please contact Rene’ Garner President-Elect and Brad Reeves as always, we could not have this competi- at [email protected] or me at Secretary. Thank you everyone for your tion without the generosity of our attor- [email protected] I willingness to serve The Mississippi Bar neys and judges in giving their time to and help YLD continue to grow. judge the regionals and the statewide Our Public Service Committee has competition in January and February. A been busy this winter season, between big thank you to all of our volunteers and Wills for Heroes and Lawyers in the a huge congratulations to all participants. Library. In the first year of organizing We know Sacred Heart will make us clinics for the Lawyers in the Library pro- proud in North Carolina! gram, Chair Hunter Aikens has done a This year, YLD has concentrated on fabulous job. After an extremely success- offering more services for our members. ful event in Jackson in October, a second That started with the Litigation 101 event was held in Pascagoula on January Series, which has been hugely successful. 22. Once again, the participation numbers This program is a series of CLEs on how were high – the nine volunteer attorneys to handle a case from the beginning were able to assist 30 participants with through appeals. We are in the planning their questions about their legal issues. I stages of a Deposition boot camp, later want to give a giant thanks to Hunter for this spring. Additionally, the Second all of his hard work and to all of our attor- Annual YLD Mid-Year Conference will ney volunteers from the coast. Due to the be held in Jackson on March 27 at the success of the first event in Jackson, we King Edward Hotel. The event will kick- will hold a second event, in coordination off with a reception the evening before at with our local affiliate, the Jackson Young the King Edward Hotel, and the confer- Lawyers Association. This event will be ence will begin the next morning. This held on March 19. Clarence Webster, who year, the conference will feature a contin- heads up the second part of the Public uation of skills CLEs, including voir dire, Service Committee, is busy planning mul- opening statements and closing argu- tiple Wills for Heroes Events in the State. ments, mediation and deposition skills. On November 14, YLD partnered with the We will feature two speakers, Patrick

The Mississippi Lawyer Winter 2015 31 LAW-RELATED EDUCATION

2015 Mississippi High Sch

Sacred Heart Catholic School Team 2 displays the First Place gavel they were awarded during the 32nd Annual High School Mock Trial Competition. Pictured with their teacher sponsor, Paul VanZandt, and their attorney coaches (left to right) Don Hinton and Carey Varnado. n Saturday, February 28, in the Hinds County Courthouse, Sacred Heart Catholic School Team 2 finished in first place Oand will represent Mississippi in the 2015 National High School Mock Trial Competition on May 14-16 in Raleigh, North Carolina. Distinguished members of the Bar judged the statewide final round. These judges included Jennie Eichelberger, President of the Young Lawyers Division of The Mississippi Bar; Gene Harlow, President of The Mississippi Bar; Magistrate Judge Linda Anderson, Southern District of MS; LaKeysha Greer Isaac, member of South Pike High School’s Mock Trial Team that won 1st at Nationals in 1993 in Atlanta and earned 3rd place at Nationals in 1992 in Madison, Wisconsin; and Robert Gibbs, who has judged the final round for 25 years, served as the presiding judge. Twenty-six teams from around the state participated in three regional competitions, which were held in January in Jackson, Gulfport and Oxford. From those teams, 19 teams advanced to the statewide competition held on February 27 - February 28 at the Hinds County Courthouse and Chancery Courthouse in Jackson. Sacred Heart Catholic School Team 1 earned the second place trophy gavel, coached by Don Hinton and Carey Varnado. The fol- lowing schools earned the remainder of the top six positions – The final round judges included (left to right): Gene Harlow, Cleveland High School, third place, coached by Michael Carr and President of The Mississippi Bar; Jennie Eichelberger, Arthur Calderon; St. Patrick Catholic High School, fourth place, President of the Young Lawyers Division of The Mississippi coached by Judge Jennifer Schloegel and Elena Guida; MSMS Team Bar; Robert Gibbs, who has judged the final round for 25 1, fifth place, coached by Scott Colom; and Madison Central, sixth years, served as the presiding judge; LaKeysha Greer Isaac, place, coached by Rogen Chhabra and Staci O’Neal. A special thanks member of South Pike High School’s Mock Trial Team that to all of the attorney coaches and judges that volunteered their valu- won 1st at Nationals in 1993 in Atlanta and earned 3rd able time to help with this Young Lawyers Division law related educa- place at Nationals in 1992 in Madison, Wisconsin; and tion program in its 32nd year.I Magistrate Judge Linda Anderson, Southern District of MS.

32 Winter 2015 The Mississippi Lawyer UPDATE ool Mock Trial Competition

The Mississippi Lawyer Winter 2015 33 Mississippi Attorneys Who Served As Team Coaches During The Mississippi 2015 High School Mock Trial Competition

David Harris ...... Biloxi Staci A. O’Neal...... Madison Biloxi High School Madison Central John A. Meynardie ...... Biloxi Scott Colom ...... Columbus Biloxi High School MSMS Gina B. Tompkins...... Biloxi Keith Pearson...... Oxford Biloxi High School Oxford High School Judge James K. McDaniel ...... Brandon Brad Morris ...... Oxford Brandon High School Oxford High School Michael S. Carr...... Cleveland Wes Curry ...... Hattiesburg Cleveland High School Presbyterian Christian School Arthur H. Calderon...... Cleveland Kimberly-Joy Lockley ...... Hattiesburg Cleveland High School Presbyterian Christian School Milton Carroll McCardle ...... Hazlehurst Stephen W. Burrow...... Pascagoula Copiah Educational Foundation Resurrection Catholic School Daniel W. Kitchens ...... Crystal Springs Deborah Kazal...... Pascagoula Copiah Educational Foundation Resurrection Catholic School Mary Lee Walker Brown ...... Hernando Don Hinton ...... Hattiesburg Desoto Central High School Sacred Heart Catholic School Cole Massie ...... Hernando Carey R. Varnado...... Hattiesburg Desoto Central High School Sacred Heart Catholic School Judge Robert P. Chamberlin ...... Hernando Tammye Brown ...... Jackson Hernando High School St. Andrew’s Episcopal School Walter J. Brand...... Jackson Bradford J. Blackmon ...... Canton Jackson Prep St. Andrew’s Episcopal School Wesla S. Leech...... Mendenhall Judge Jennifer T. Schloegel...... Gulfport Jackson Prep St. Patrick Catholic High School Kathryn McNair...... Meridian Elena Guida...... Gulfport Lamar School St. Patrick Catholic High School Amanda Glover Evans ...... Meridian Lee Ann Turner...... Starkville Lamar School Starkville High School Rogen Chhabra...... Jackson Wendell James...... Bay Springs Madison Central Sylva-Bay Academy

34 Winter 2015 The Mississippi Lawyer Special Thanks to Mississippi Attorney Judges for 2015 Statewide & Regional Mock Trial Competition

he Mississippi Bar Young Blythe Lollar...... Aberdeen Matt Baldridge...... Ridgeland Jacob Malatesta ...... Jackson Lawyers Division would Alex Lowman...... Pascagoula Ed Bean...... McComb Will Manuel...... Jackson Tlike to thank the following members of The Mississippi Bar Jacob Malatesta ...... Jackson Pat Bennett ...... Jackson Megan McGrew...... Jackson for their efforts as attorney judges Will Manuel...... Jackson Eric Brown...... Jackson Roun McNeal...... Leakesville during the 2015 High School Neal Marlow...... Duck Hill Michael Brown ...... Jackson Mike McPhail ...... Hattiesburg Mock Trial Competition. April McDonald ...... Lucedale Stephanie Brown ...... Jackson Rachel Michel...... Jackson Regional Judges Megan McGrew...... Jackson Neill Bryant...... Jackson Kim Nailor...... Vicksburg Jessica Bates...... Pascagoula Mike McPhail ...... Hattiesburg Bryan Buckley...... Canton Cheryn Netz...... Jackson Pat Bennett ...... Jackson Sue Merchant...... Jackson Barry Campbell ...... Ridgeland Abram Orlansky ...... Jackson David Bridges...... Jackson Jimmy Milam ...... Tupelo Jack Carmer...... Jackson Crymes Pittman...... Jackson Angela Brooks...... Tupelo Cheryn Netz...... Jackson Graham Carner ...... Jackson Michael Prewitt ...... Greenville Bryan Buckley...... Canton David Parker...... Clinton Jennifer Case ...... Jackson Judge John Price ...... Magnolia Matthew Burris...... Oxford Brad Rath ...... Biloxi Mel Coxwell ...... Brandon Melvin Priester ...... Jackson Jennifer Case ...... Jackson Brett Richards...... Gulfport Paul Davis...... Ridgeland Jacque Purnell ...... Brandon Marcy Croft ...... Jackson Ben Robinson ...... Ridgeland Nakimuli Davis-Primer ..Jackson Keishunna Randall...Ridgeland John Dawson ...... Gulfport Jim Rosenblatt ...... Jackson William Drinkwater.....Jackson Jeff Rimes ...... Ridgeland Tommy Defer...... Water Valley Bill Sanders...... Charleston Dan Duggan...... Brandon Ben Robinson ...... Ridgeland Sarah Dickey...... Oxford Bryan Sawyers...... Gulfport Jennie Eichelberger .....Jackson Vicki Rundlett ...... Clinton Brad Dillard...... Tupelo Al Shiyou...... Hattiesburg Wendy Ellard...... Jackson Chad Russell...... Jackson Dan Duggan...... Brandon Matthew Shoemaker.Hattiesburg Harvey Fiser ...... Jackson Randall Saxton...... Madison Jessica Dupont...... Pascagoula Petesy Smith ...... Vicksburg David Frazier...... Pascagoula Jim Shelson...... Jackson Bill Eckert ...... Gulfport Francis Springer ...... Madison Robert Gibbs ...... Jackson Matthew Shoemaker .Hattiesburg Steven Eckert...... Biloxi Austin Stewart ...... Jackson Gabe Goza...... Brandon Chad Shook ...... Hattiesburg Jeremy England Ocean Springs Mallory Street ...... Madison LaKeysha Greer Isaac..Jackson Danny Smith ...... McComb Will Ford ...... New Albany Forrest Stringfellow...... Clinton Tiffany Grove...... Ridgeland Michael Smith ...... Jackson David Frazier...... Pascagoula Tom Taff ...... Hammond Trey Gunn...... Jackson Petesy Smith ...... Vicksburg Joanna Frederick...... Senatobia Sumeka Thomas ...... Okolona Holly Hammett ...... Hattiesburg Katie Snell ...... Ridgeland Katy Gerber ...... Chicago Amanda Tollison...... Oxford Macy Hanson ...... Madison Francis Springer ...... Madison Ryan Hall...... Oxford Elizabeth Treadway.Olive Branch Gene Harlow...... Laurel Alice Stamps...... Jackson Joshua Hill...... Oxford Catherine Umberger..Southaven Emily Haxton...... Jackson Austin Stewart ...... Jackson Lauren Hillery ...... Gulfport Dietrich von Biedenfeld Philip Hearn...... Jackson Frannie Strayham ...Mandeville Wendy Hollingsworth.Pascagoula ...... West Columbia, TX Tiffanee Henderson...Memphis Forrest Stringfellow...... Clinton Aaron Hommell...... Flowood Daniel Waide ...... Hattiesburg Ashley Hendricks ...... Jackson Toni Terrett...... Vicksburg Julie Howell ...... Oxford Victoria Washington.....Clinton Charles Homan ....Water Valley Ray Therrell ...... Mendenhall Jack Hunt...... Jackson Clarence Webster...... Jackson Aaron Hommell...... Flowood Glen Waddle ...... Jackson Jamie Jacks...... Cleveland Rebecca Wiggs ...... Jackson Jack Hunt...... Jackson Victoria Washington.....Clinton Andy Johnson...... Madison Jason Zemek...... Flowood Andy Johnson...... Madison Ben Watson...... Ridgeland Robert Jolly...... Olive Branch Harriett Johnson ...... Jackson George Whitten...... Greenwood Rita Jones ...... Choctaw Statewide Judges Judge Joseph Kilgore.Philadelphia Josh Wiener...... Ridgeland John Kavanagh...... Mobile Brandi Ajpacaja...... Clinton John Knox...... Hattiesburg Rebecca Wiggs ...... Jackson Matt Kittrell...... Gulfport Judge Linda Anderson.Jackson Davetta Lee...... Jackson Kelly Williams ...... Ridgeland Philip Levy ...... Oxford John Ayers...... Ridgeland Christy Malatesta...... Jackson Jason Zemek...... Flowood

The Mississippi Lawyer Winter 2015 35 Supreme Court and Bar Host Luncheon for Lawyer Legislators

Attending the lawyer legislator luncheon are: (l to r) Chief Justice Bill Waller addresses the Justice Randy Pierce (left) vis- Darlene Ballard, Director, MS Commission on Judicial lawyer legislator luncheon. its with Rep. Sherra Lane, Performance; Sen. Sean Tindell, Gulfport; Rep. David Waynesboro at the luncheon. Baria, Bay St Louis; Justice Jess Dickinson, Gulfport and Court of Appeals Chief Judge Joe Lee, Jackson.

Court of Appeals Judge Jimmy Maxwell, Oxford visits with Sen. Derrick Simmons, Greenville and Pictured at Lawyer Legislator Luncheon are: (l to r) Sen. Briggs Hopson, Rep. Andrienne Wooten, Jackson. Vicksburg; Court of Appeals Judge Gene Fair, Hattiesburg; Court of Appeals Judge Kenny Griffis, Jackson; Billy Saul, Director of the Office of Drug Court Compliance, Crystal Springs; Rep. Willie Perkins, Greenwood and Judge Mike Taylor, Brookhaven.

Discussing funding for the MS Judge Mike Taylor of Brookhaven Commission on Judicial Performance is: reports on Mississippi Drug (l to r) Rep. Willie Perkins, Greenwood; Courts. Darlene Ballard, MCJP Director and House Speaker Phillip Gunn speaks during the Gene Harlow, MB President, Laurel. lawyer legislator luncheon.

36 Winter 2015 The Mississippi Lawyer

MVLP would like to thank the following individuals, businesses, organizations and agencies that helped to make the inaugural 2014 Pro Bono Awards Dinner a huge success. Because of your support, MVLP can continue to advance justice and restore hope in the lives of many Mississippi residents in need of legal services.

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The Mississippi Lawyer Winter 2015 37 22nd Annual Evelyn Gandy Lecture Series February 20-22, 2015 Marriott Grand Hotel, Point Clear, AL

Chair of the 2015 Gandy Lecture Series Tiffany Grove of Jackson and Co- Chair of the Gandy Lecture Series Alison Goodman of Tupelo.

Friday afternoon panel speakers included from left: Selene Maddox, Tupelo; Julie Gresham, Pascagoula; Dean Wendy Scott, Jackson and Cindy Mitchell, Clarksdale. Debbie Bell of Oxford and Guest Speaker U.S. Representative Marsha Blackburn. Nina Stubblefield Tollison of Oxford, Charliene Roemer of Biloxi and Lydia Quarles of Starkville.

Jenny Tyler Baker, Gulfport; Cheryn Netz, Jackson; Jessica Dupont, Brittany Smith, Tchanavia Bryant and Gayla Pascagoula and Carpenter-Sanders, all of Jackson. Jennifer Hall, Jackson.

Kathy Brown van Zutphen of Gulfport and Katherine Kerby Tiffany Graves, Jackson; Kristi Brown, Gulfport; of Columbus. Nicole McLaughlin and Alison Goodman both from Tupelo.

38 Winter 2015 The Mississippi Lawyer Friday afternoon panel speakers included from left: Anne Judge Deneise Turner Lott, Jackson; Lydia Quarles, Starkville; Veazey of Ridgeland, Gene Harlow of Laurel and Rebecca Judge Virginia Mounger, Jackson and State Treasurer Lynn Fitch Wiggs of Jackson. of Jackson.

Sarah Beth Wilson and Ellen Robb both of Judge Jacqueline Mask of Tupelo, Judge Pat Bennett of Jackson and Judge Lillie Ridgeland. Cynthia Brewer of Canton and Jennifer Blackmon Sanders of Natchez. Ingram of Hattiesburg.

Front: Elizabeth Feder – Hosey of Ocean Springs and Patti Golden of Biloxi; Back: Margaret McGill Lane of Point Clear, AL and Maura McLaughlin of Hattiesburg.

Lisa Meggs of Columbus, Judge Jannie Lewis of Lexington and Shakeba Johnson of Greenwood.

Sandra Buchanan, Tianna Raby, Sherri Flowers- Billups, Joan Potter all of Jackson and Vangela Wade of Ridgeland. Emily Fertig of Gulfport and Katherine Henderson of Ocean Springs.

The Mississippi Lawyer Winter 2015 39 22nd Annual Evelyn Gandy Lecture Series

Chereka Witherspoon of Tupelo and Shakeba Johnson of Greenwood. Karen Sawyer, Gulfport; Judge Lisa Dodson, Gulfport; Constance Jordan, Gulfport; Charliene Roemer, Biloxi; Elizabeth Feder – Hosey, Ocean Springs; Patti Golden, Biloxi and Kimberly Rosetti, Gulfport.

Judge Cynthia Brewer of Canton and Amanda Alexander of Selene Jackson. Maddox and Judge Jacqueline Mask, both of Tupelo.

Break- out ses- sion speaker Angel Patano- Myers of Pascagoula.

Jessica Ayers and Dana Sims both of Jackson and Alexis Farmer of Oxford.

Cheryn Netz of Jackson, Jessica Dupont of Pascagoula, and Michelle Easterling of West Point.

Alison Baker of Gulfport, Tiffany Grove of Ridgeland and Catherine Bell of Jackson.

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(Entrance Lobby Above) THE MISSISSIPPI BAR’S HISTORY & HERITAGE By Cham Trotter, Belzoni

In 2011 the Board of Bar tories of Attorneys Boyce Holleman, Commissioners established the Legal Reuben Anderson, Thomas Ethridge, History Committee as an ad hoc commit- Clare Hornsby and Robert Cannada. tee of the Bar, and this Committee has Three of these attorneys have since been in continuance existence since that passed away, and we realize that time is of time. The Legal History Committee is the essence in recording the unique histo- charged with fostering the preservation, ries that only outstanding Mississippi recording and dissemination of historical lawyers can provide. information related to the Bench and Bar The preservation of our history was in Mississippi. This article is a report to started by developing a bibliography of the readers of The Mississippi Lawyer on articles, books, or other writings that what has been accomplished in these four relate to the legal history and heritage of years. our state. Many of these books have been At its inception, the Legal History written over the years, but the Committee Committee identified five specific areas is attempting to assemble in one bibliog- to be addressed. These are Cotesworth raphy books and articles on the history of House in Carrollton, the ante-bellum our Courts’í significant decisions, legal home of J. Z. George, generally recog- figures, law firm history, local Bar histo- nized as the author of Mississippi’ís 1890 ry and personal reminiscences of Cham Trotter, Chair Constitution. Next was the gathering of Mississippi attorneys. Copies of some of The Mississippi Bar oral history to have tape and video repos- this bibliography are published here for Legal History Committee itories of outstanding Mississippi attor- anyone interested in specific areas of our neys. The Committee then looked into heritage. preservation of courthouses, legal sites As our committee moves forward, Finally, the Legal History Committee and historical records. These would there are exciting projects that will be has been asked to work with the include books and photographs. T h e developing in the near future. The Bar Mississippi Supreme Court on the Committee then sought to obtain infor- Association is looking to soon publish the Bicentennial celebration of the legal mation on Women in the Law and stories of Mississippi’ís first 100 women branch of government in Mississippi, African-American legal history. Other lawyers. The Committee is still looking which began at statehood in 1817, and general items of legal history all seemed for articles for our bibliography. We have will be celebrated during the year 2017. to fall within these five categories. several promising leads and will be Work has already begun to make this a The Cotesworth House was pur- adding to this on a continuing basis. memorable year in celebrating 200 years chased in the summer of 2014 by the One extremely exciting item is the of Mississippi’ís legal system. Our Cotesworth Legal Historical Society, and report we received from Felicia Adams, Committee is enjoying its work and solic- is in the process of having restoration U.S. Attorney for the Northern District of its any and all ideas and suggestions from made. Adjacent to the house (which was Mississippi, that mentioned a book enti- our membership. featured in the movie “ìThe Help”î) is the tled “ìEmancipation: The Making of the There is an old rock and roll song library of J. Z. George, which is an amaz- Black Lawyer 1844-1944”, which from the 1950s that has the line “ìDon’ít ing eight-sided building. The Committee includes a chapter on the emergence of know much about history”î, or science has started the process of accepting dona- the African-American lawyer in books or French I took, or sliderules for tions of old law books to have this library Mississippi beginning in 1969. The that matter. But with the continuing work look, as nearly as possible, as it would Committee is looking to obtain a good of the Mississippi Legal History have in the late 1800s. The Cotesworth copy of this book or the chapter on Committee we will let sliderules and sci- House itself is envisioned to be used to Mississippi. Also, the Committee is ence fend for themselves, and we will do showcase not only legal history, but also attempting to receive from the Library of our best to take care of history. I for agricultural history and tourism. Congress a composite photograph enti- The Committee is in the process of tled “ìNegro Lawyers of Mississippi, identifying attorneys for inclusion in oral 1909”, which has photographs of 25 history by use of tape and video. A few African-American lawyers in Mississippi years ago, the Bar produced five oral his- in that year.

42 Winter 2015 The Mississippi Lawyer The Mississippi Bar’s Legal History Committee Bibliography of articles, books, and other writings related to Mississippi’s legal history.

Mississippi Law Journal All Rise: Memoirs of a Mississippi A History of Mississippi Volume II. Volume XXXVI Federal Judge “Lawyers, Courts, and Judges, Journal of the Mississippi State Bar By William C. Keady 1890-1970.” By Dick Bennett 1988 By E. Everett, Jr. 1965 1973

Memoirs of a Country Lawyer Biographical & Historical Courts, Judges, and Lawyers The High Courts of By Charles C. Jacobs, Jr. Memoirs of Misssissippi of Mississippi 1798-1935 Mississippi 1817 - 1875 Volume I. Chapter 5. 1891 By Dunbar Rowland By Meredith Lang

A History of the Mississippi Early Mississippi Bar A Mississippi Bar’s Bench and Bar Supreme Court 1817 - 1948 Associations Centennial of Mississippi By John Ray Skates, Jr. By Mississippi Bar Foundation “A Legacy of Service” 1938

The Honor & Dignity The Challenge of Service: The University of Mississippi A Goodly Heritage A Memoir of the Profession A History of The Mississippi’s School of Law of Mississippi College 1906 - 1976 Young Lawyers 1936 - 1986 A Sesquicentennial History School of Law By Michael de L. Landon By Michael de L. Landon By Michael de L. Landon By Mary Libby Payne

The Mississippi Lawyer Winter 2015 43

MVLP salutes the following law firms, businesses, agencies, organizations and individuals who contributed to the 2014 “Advancing Justice: Restoring Hope” Annual Campaign. Through your efforts, MVLP will be able to provide much-needed legal services to thousands of Mississippians of low-income and limited means.

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44 Winter 2015 The Mississippi Lawyer MS Access to Justice Commission

Justice Leslie King and Michael Jones Ben Cole, Gayla Carpenter-Sanders, and Patti Gandy

Cherri Green, Sam Buchanan, Ben Cole, Gayla Carpenter-Sanders, Judge Margaret Alfonso, Judge Jacqueline Mask, Jamie Patti Gandy, and Paheadra Robinson Bardwell, and Gwen Baptist-Hewlett

Dean Wendy Scott Jamie Bardwell, Gwen Baptist-Hewlett, David Baria, and Beau Cole

The Mississippi Lawyer Winter 2015 45 CLE Calendar of Events The following live programs have been approved by the Mississippi Commission on Continuing Legal Education. This list is not all-inclusive. For information regarding other programs, including teleconferences and online programs, contact Tracy Graves, CLE Administrator at (601)576-4622 or 1-800-441-8724, or check out our website, www.mssc.state.ms.us. Mississippi now approves online programs for CLE credit. For a list of approved courses, check the Calendar of Events on our website. For information on the approval process for these programs, please see Regulations 3.3 and 4.10 posted under the CLE Rules on our website or contact Tracy Graves at the numbers listed above.

APRIL 6.7 credits. Biloxi, MS. Contact 715- JUNE 8 Children’s Advocacy Centers of 855-0495. 4 NBI “Social Security Disability Mississippi “Social Media & Ethics.” 24 MC School of Law “Mediation Training Bootcamp.” 6.7 credits (includes ethics). 2.0 credits (includes ethics). Biloxi, Certification/Re-Certification.” 6.0 Tupelo, MS. Contact 715-835-825. MS. Contact 601-940-6183. credits (includes ethics). Jackson, MS, 5 MC School of Law “Youth Court 8-10 Children’s Advocacy Centers of MC School of Law. Contact 601-925- Parental Representation.” 6.0 credits Mississippi “One Loud Voice: A 7107, Tammy Upton. (includes ethics). Jackson, MS, MC Multidisciplinary Team Approach.” 24-25 UM CLE “Mississippi Law Update.” School of Law. Contact 601-925-7107, 12.0 credits. Biloxi, MS. Contact 601- 12.0 credits (includes ethics). Natchez, Tammy Upton. 940-6183. MS, Dunleith Plantation. Contact 662- 12 MC School of Law “Criminal Law 9 NBI “Anatomy & Physiology 101 for 915-9282. CLE.” 6.0 credits (includes ethics). Attorneys.” 6.0 credits. Jackson, MS. MAY Jackson, MS, MC School of Law. Contact 715-835-8525. Contact 601-925-7107, Tammy Upton. 1 MS Bar “CLE on the Road.” 6.0 credits 10 Children’s Advocacy Centers of (includes ethics). Tupelo, MS. Contact 26 MC School of Law “Litigating the Mississippi “One Loud Voice: Post 601-353-1703, Kellie Freeman. Commercial Trucking Case.” 6.0 credits Conference Session.” 2.0 credits. (includes ethics). Jackson, MS, MC 1 MC School of Law “17th Annual Biloxi, MS. Contact 601-940-6183. School of Law. Contact 601-925-7107, Guardian Ad Litem Training.” 6.0 cred- Tammy Upton. 10 UM CLE “Effective Mediation Skill its (includes ethics). Jackson, MS, MC (Refresher).” 6.0 hours (includes ethics). School of Law. Contact 601-925-7107, JULY Ridgeland, MS, Hyatt Place. Contact Tammy Upton. 6-8 MS Bar “2015 Summer School for 662-915-7283. 8 MS Bar “Hot Tips.” 6.0 credits (includes Lawyers.” 12.0 credits (includes ethics). 10 MC School of Law “Arbitration CLE.” ethics). Jackson, MS. Contact 601-355- Sandestin, Florida, Bayside-Linkside 6.0 credits (includes ethics). Jackson, 9226, Rene Garner. Conference Room. Contact 601-353- MS, MC School of Law. Contact 601- 11-15 Children’s Advocacy Centers of 1703, Kellie Freeman. 925-7107, Tammy Upton. Mississippi “Child First MS Forensic 23 MC School of Law “Annual CLE 17 MC School of Law “Education Law Interview & Court Preparation.” 18.0 Marathon.” 6.0 credits (includes ethics). CLE.” 6.0 credits (includes ethics). credits. Jackson, MS. Contact 601- Jackson, MS, MC School of Law. Jackson, MS, MC School of Law. 940-6183. Contact 601-925-7107, Tammy Upton. Contact 601-925-7107, Tammy Upton. 15 MC School of Law “Social Security 24 MC School of Law “Annual CLE 21 NBI “Planning for Long Term Care.” Disability CLE.” 6.0 credits (includes Marathon.” 6.0 credits (includes ethics). 6.0 credits (includes ethics). Jackson, ethics). Jackson, MS, MC School of Jackson, MS, MC School of Law. MS. Contact 715-835-8525. Law. Contact 601-925-7107, Tammy Contact 601-925-7107, Tammy Upton. 23 Sterling Education Services, Inc. Upton. 28 Your DUI Pro “Winning DUI Cases.” “Employment Law: Beyond the Basics.” 6.0 credits (includes ethics). Tupelo, MS. Contact 208-340-2933. 29 Your DUI Pro “Winning DUI Cases.” 6.0 credits (includes ethics). Meridian, MS. Contact 208-340-2933. LACOSTELACOSTE 30 Your DUI Pro “Winning DUI Cases.” 6.0 credits (includes ethics). Gulfport, ARCHITECTARCHITECT MS. Contact 208-340-2933. CONSTRUCTION • PREMISES LIABILITY 31 MS Center for Legal Services “MCLS’ 32nd Annual CLE Seminar.” 6.0 credits (includes ethics). Jackie Dole Sherrill JAY LACOSTE Community Center, Hattiesburg, MS. Contact 601-545-2950, Virginia Hales Brown. 2349 TWIN LAKES CIRCLE 601 981-2853 31 Your DUI Pro “Winning DUI Cases.” 6.0 credits (includes ethics). Jackson, JACKSON, MS 39211 [email protected] MS. Contact 208-340-2933.

46 Winter 2015 The Mississippi Lawyer IN MEMORIAM

Sam H. Allen, III Detachment of the 9th Air Force in the ETO, landing in France on D-Day +16 and accumulating several battle ribbons before V E Sam H. Allen, III, 69, of Knoxville, TN, died January 2, 2015. A Day. He was awaiting orders for the Pacific Theatre when the graduate of the University of Mississippi School of Law, he was war ended. He began his law practice in Meridian in 1948 with admitted to practice in 1973. Allen served as a special agent of his father’s firm where he practiced law for 5 decades. He sang in the Federal Bureau of Investigation for 28 years. He retired from the choir at St. Paul’s Episcopal Church for many years and also the FBI in 2002. During the summers of 1967 - 1969, he served served as the Cantor at The Temple Beth Israel in Meridian. He as a Park Ranger on the Natchez Trace. In 1969, he voluntarily was a Cub Scout and Boy Scout leader and was awarded the enlisted in the United States Army, completing the Infantry Silver Beaver. He served in many civic capacities including Officer Candidate Course at Fort Benning, Georgia and achiev- President of the Kiwanis Club, President of the Symphony ing the rank of 1st Lieutenant. He served in Korea and received League, President of the Lauderdale County Bar Association, the Army Commendation Medal for meritorious performance of attorney for the Board of Merchants and Farmer’s Bank, and was duty. a founding board member at Lamar School.

Fred Alvin Anderson, III Robert Franklin Cooper, Jr. Fred Alvin Anderson, III, 72, of Gloster, died April 26, 2014. A Robert Franklin Cooper, Jr., 101, of Memphis, TN, died January graduate of University of Mississippi School of Law, he was 12, 2015. A graduate of the University of Louisville School of admitted to practice in 1966. He was an attorney for the Amite Law, he was admitted to practice in 1946. Cooper was a member County Board of Education, attorney for the town of Gloster and of the Hinds County Bar Association, American Bar Association, 14 years as Gloster alderman. He served as a board member of Federal, and United States Supreme Court and was named in the Deposit Guaranty National Bank in Jackson, and Mississippi first edition of Who’s Who in American Law. He was recognized Chemical Corporation in Yazoo City. He sat on the board of the as a 50 Year Member of the Bar. Cooper joined the Federal Amite County Co- Op and served as trustee for Field Memorial Bureau of Investigation as a Special Agent and retired from the Community Hospital for over 20 years. He was an appointed rep- Bureau in 1967. He was assigned to its offices in Pittsburg, resentative to the Mississippi Forestry Commission. Detroit, Oklahoma City, Boston, and Washington D.C. where he served under J. Edgar Hoover. He then served in New Orleans, Edward L. Atkinson and in 1957 was assigned to the Jackson, MS office. Upon retire- ment from the FBI he joined First National Bank, (now Edward L. Atkinson, 83, of Yantis, TX, died October 14, 2014. A Trustmark) in Jackson. While in New Orleans he served the graduate of the University of Mississippi School of Law, he was Prytania Street Presbyterian Church as Chairman of its Board of admitted to practice in 1956. He also graduated from the Deacons and later as a Ruling Elder. After moving to Jackson, he Graduate Law School of Southern Methodist University where he joined First Presbyterian Church and again served in both of received a master’s degree in Oil and Gas Law. He practiced law those capacities. Cooper had served as president of the FBI’s in Texas approximately 45 years. He was a partner in the Perryton Society of Former Agents, Mississippi Chapter as well as the firm of Lemon, Close, Atkinson and Shearer for 27 years. After North Jackson Kiwanis Club. He was a member of the MS Law retiring from the legal practice in 1995, he raised Angus cattle on Enforcement Officers Association and its Estate Planning pasture land in Wood County, TX. Council. He was a long time member of the Jackson Chamber of Commerce, Capital Club and a charter member of the River Hills Joe M. Buchanan Club. Joe M. Buchanan, 82, of Indianola, died February 1, 2015. A graduate of Mississippi College School of Law, he was admitted Lawrence C. Corban, Jr. to practice in 1966. Buchanan practiced civil and criminal Lawrence C. Corban, Jr., 85, of Biloxi, died August 04, 2014. A defense law from 1966 until retirement in 2008. Buchanan was graduate of the University of Mississippi School of Law, he was involved in various social and community activities, including admitted to practice in 1953. He served in the U.S. Army during the Indianola Little League Baseball Commissioner, Cub Scout the Korean Conflict, where he was stationed in Germany. He was Pack Leader, Golden Glove Boxing Judge and past member of a past President of the Harrison County Bar Association, and a Lions Club. Fellow of the Mississippi Bar Foundation. By appointment of the Mississippi Supreme Court, corban served 2 terms on the com- O. Winston Cameron plaint Tribunal. He also served as a member of the Bi-racial Committee for the Biloxi School District, by appointment of the O. Winston Cameron, 92, of Winchester, VA, died January 12, United States District Court. He was a member of First United 2015. A graduate of the University of Mississippi School of Law, Methodist Church, Biloxi, which he served as a Sunday School he was admitted to practice in 1947. Cameron joined the Army Air Force in 1942. He served with the 20th Photo Intelligence Continued on next page

The Mississippi Lawyer Winter 2015 47 IN MEMORIAM

Teacher, Lay Leader, and through several positions on the District Attorney in Oxford from 1955-56. He moved to Tupelo Administrative Board. He served as Chairman of Administrative to practice with Sam E. Lumpkin and later James Hugh Ray, and Board for many years. Corban was a 50-year member and Past spent the rest of his career as a member of the firm known pre- President of the Biloxi Rotary Club. He was recognized as a Paul viously as Holland, Ray, Upchurch, and Hillen, P.A. Harris Fellow. He served as President of the Biloxi Chamber of Commerce, and later was a charter member of the separate Biloxi Ernest E. “Wyn” Howard, III Bay Chamber of Commerce. Corban was a Thirty-Third Degree Mason, having membership in the Gulfport Scottish Rite Bodies, Ernest E. “Wyn” Howard, III, 71, of Metarie, LA, died March 26, Biloxi York Rite Bodies, and Joppa Shrine Temple, and was a 2014. A graduate of the University of Mississippi Law School, he Past Master of Magnolia Lodge No. 120, F.&A.M., Biloxi. He was admitted to practice in 1968. He worked several years in was also a member of the American Legion, and serving on the Dallas then moved his family to New Orleans. Howard served Biloxi City Library Board, the Board of Directors of Howard throughout the 1970’s and 1980’s in a variety of executive capac- Memorial Hospital, the Biloxi Salvation Army Advisory Board, ities with McMoRan and its successor company, Freeport- the Board of Directors of the Biloxi Chapter of the American Red McMoRan Inc. Howard also acted as CFO, Chief Exec VP and Cross, the Board of Directors of the Moore Community House, a director of Freeport-McMoRan Copper & Gold Inc. In the and as President of the Biloxi Jaycees. 1990’s he was President, CEO and a director of FM Properties Inc. Richard M. Edmonson, Jr. Larry L. Johnson Richard M. Edmonson, Jr., 51, of Madison, died January 15, 2015. A graduate of the University of Mississippi School of Law, Larry L. Johnson, 76, of Jackson, died October 14, 2014. A grad- he was admitted to practice in 1988. Edmonson had practiced law uate of the University of Mississippi School of Law, he was at Markow Walker for 24 years where he was a partner. He served admitted to practice in 1962. He was a residential real estate as president of the Madison County Bar in 2011. He was a mem- developer, founder of The Landmark Companies, and oil and gas ber of the Jackson Metro Cyclist & Tri-County Mountain Bike investor. Association, the Riverside Hunting Club and coached soccer. He attended Madison United Methodist Church where he was a Donice V. Knight member of the New Covenant Sunday School Class and had been a former member of Broadmeadow Methodist Church. Donice V. Knight, 80, of Laurel, died January 17, 2015. A grad- uate of Mississippi College School of Law, he was admitted to practice in 1974. He served in the United States Army as an E. Allen Gardner Army Surveyor. He served the people of Jones County as Circuit E. Allen Gardner, 84, of Memphis, TN, died October 17, 2014. A Clerk and Chancery Clerk for 16 years. After his terms in office, graduate of the University of Mississippi School of Law, he was he was Assistant Director to the Mississippi Highway admitted to practice in 1958. He joined the Air Force and served Department Commissioner. He later practiced Law at Abernathy, in the Korean War. He represented Webster County in the MS Strickland & Knight Attorney at Law. Knight was a Master House of Representatives before moving to Memphis where he Mason of the Masonic Lodge No. 414 in Laurel and a member of practiced law for over 50 years. Allen was a member of the the Hamasa Shrine of Meridian. Knight was a Life-Time Memphis Jaycees, the Lion’s Club, and the Rotary. Member of the American Legion Post No. 11 where he served as an Executive Officer. He was President of the Mississippi Circuit Clerks Association and co-author of the Mississippi Handbook Elbert Earl Haley, Jr. for both Circuit and Chancery Clerks. He was a member of The Elbert Earl Haley, Jr., 62, of Brandon, died January 29, 2015. A Kiwanis Club of Laurel, the United States Civil Defense Council, graduate of Mississippi College School of Law, he was admitted and a founder of Dixie Golf Club. to practice in 1979. He was a member of the Rankin County Bar Association. He was a writer and member of Poets Anonymous. Roy N. Lee He served in the U. S. Navy. Roy N. Lee, 99, of Forest, died January 21, 2015. A graduate of the Cumberland School of Law, he was admitted to practice in Ralph L. Holland 1939. Lee served 16 years on the Mississippi Supreme Court and Ralph L. Holland, 86, of Tupelo, died December 5, 2014. A grad- retired as chief justice in 1993. Governor Cliff Finch appointed uate of Mississippi College School of Law, he was admitted to Lee to fill a vacancy on the Supreme Court in March 1976. He practice in 1949. He served on active duty in the US Air Force was elected to a full term later that year and won another term in Reserves during the Korean War. Holland practiced law for more 1984. He became chief justice in 1987. The state Supreme Court than 55 years. In his early career, he served as Assistant U.S. says Lee and his father, Percy Mercer Lee, are the only father and son who have both served as chief justice.

48 Winter 2015 The Mississippi Lawyer IN MEMORIAM

E. Michael Marks Phillips director of the state Bureau of Narcotics and later as Commissioner of Public Safety. Phillips served as U.S. Attorney E. Michael Marks, 79, of Jackson, died September 29, 2014. A for the Southern District of Mississippi from 1980 to 1994. graduate of Mississippi College School of Law, he was admitted Phillips served on the Executive Committee of the American to practice in 1964. He practiced for over 50 years. Marks was a Quarter Horse Association the past several years. Phillips would member and usher for St. Peter’s Cathedral in Jackson. have become the association’s president in March. Phillips was originally a county prosecuting attorney in Hattiesburg before Ray Hillman Montgomery being appointed in 1980 as U.S. Attorney, then the youngest in the nation. During his tenure, he helped develop the Law Judge Ray Hillman Montgomery, 79, of Canton, died December Enforcement Coordinating Committee, a program that became 14, 2014. A graduate of Mississippi College School of Law, he mandated for each U.S. Attorney’s Office. When he stepped was admitted to practice in 1970. He was a longtime volunteer down 14 years later, he was the most senior U.S. Attorney in the and supporter of the March of Dimes and served on the national nation. After that time, he served as special counsel to U.S. Sen. board of Easter Seals for eight years. He was a Mason, Wahabi Thad Cochran for six years. In 2008, he was appointed the Shriner, and lifelong member of Canton First Baptist Church. Mississippi State Director for USDA Rural Development, his last Montgomery was elected Tax Assessor of Madison County and position of public office. served 8 years in that position. He was a practicing attorney in Canton, elected to Mississippi State Senate serving 2 terms, and elected and served as County Judge. He was elected and served Suzanne Newton Saunders as Chancery Judge until his retirement. In retirement, he was appointed by the Supreme Court of Mississippi as a special Suzanne Newton Saunders, 67, of Jackson, died January 15, Chancellor and continued to hear special cases until recently. 2015. A graduate of Mississippi College School of Law, she was admitted to practice in 1976. Saunders practiced for several decades in both federal and state courts as a trial lawyer in a large E. Don Moore firm and then her own smaller firms. During her legal career she E. Don Moore, 91, of Ridgeland, died December 28, 2014. A served on various committees of the Bar and the American Bar graduate of Mississippi College School of Law, he was admitted Association. This included her chairmanship of the Mississippi to practice in 1948. He served as a radio operator with the U.S. Bar disaster legal assistance committee during the 1979 Easter Army Air Corps in Burma during World War II, flying on C-47 flood of the Pearl River. A former member of Covenant cargo planes in and out of Japanese-held jungles and over the Presbyterian Church in Jackson and First Presbyterian Church in “hump” to China. He was awarded the Distinguished Flying Canton, Saunders was a member of Fondren Presbyterian Cross with two oak leaf clusters and the Air Medal with three oak Church. leaf clusters. In 1978, after 26 years with Zurich-American Insurance Companies, he retired as Corporate Senior Vice President and embarked on a second career by forming and serv- David Rowe Sparks ing as Chairman and CEO of Mississippi American Life David Rowe Sparks, 68, of Tupelo, died November 29, 2014. A Insurance Company (MALICO). Moore was a charter member of graduate of the University of Mississippi School of Law, he was Broadmoor Baptist Church. Moore served as church attorney and admitted to practice in 1972. Sparks served his country in the trustee in Broadmoor’s early years, as a Deacon, and Sunday U.S. Army and Army Reserves from 1968-1974. Sparks was a School teacher for more than fifty years. He was a Little League practicing attorney in General Law in Tupelo for over 42 years manager, league commissioner and President of the Servian until his death. He was a former president of the Lee County Bar Club. Association and a recipient of the Mississippi Bar’s Lawyer Citizenship Award in 2013. Sparks served for many years on the Medical Ethics Committee of the North Mississippi Medical J. Harbour Mounger Center. He was District Counsel of the Town Creek Master Water J. Harbour Mounger, 61, of Jackson, MS, died October 26, 2014. Management District in Lee, Pontotoc, Prentiss and Union A graduate of the University of Mississippi School of Law, he Counties. Sparks was one of the founding leaders in Faith Haven was admitted to practice in 1980. He first worked as a Certified serving on its first Board and later chairing the Board. He was Public Accountant for Deloitte-Touche in Memphis and later, active in the Gardner-Simmons Home for Girls and was a former after earning his law degree, worked in private practice. board president of Tupelo Community Theatre. Very active in the Episcopal Diocese of Mississippi where he served on the Executive Committee, the Finance Committee, the Bishop George L. Phillips Search Committee and on the Board of Camp Bratton Green, George L. Phillips, 65, of Hattiesburg, died January 26, 2015. A Sparks was faithful to the All Saints Parish in Tupelo where he graduate of the University of Mississippi School of Law, he was admitted to practice in 1973. Former Gov. Haley appointed Continued on next page

The Mississippi Lawyer Winter 2015 49 IN MEMORIAM served multiple terms as senior warden and vestryman as well as Robert Hamilton Weaver verger, Diocesan lay reader and on the Priest Search Committee. Robert Hamilton Weaver, 83, of Jackson, died February 3, 2015. A graduate of the Vanderbilt University Law School, he was John C. Underwood, Jr. admitted to practice in 1959. In 1954, Weaver was commissioned as an ensign in the U.S. Navy. He served for three years aboard John C. Underwood, Jr., 66, of Jackson, died October 13, 2014. both the USS Monterey and the USS New Jersey. Weaver joined A graduate of the University of Mississippi School of Law, he the Jackson law firm of Watkins, Pyle, Edwards and Ludlam. was admitted to practice in 1972. He served as a Judge Advocate Weaver was a member of the Board of the Peoples Bank and General and in the National Guard. Underwood clerked for the Trust (now Renasant Bank) for many years. He served on the Mississippi Supreme Court Presiding Justice Henry Lee Rodgers Investment and Executive Committees and was Chair of the Trust and served as special assistant to the Attorney General A.F. Committee until his retirement at age 72. He was an active mem- Summer, enjoying an extensive practice before the state supreme ber of the Hinds County Forestry Association and the Mississippi court. Underwood entered private practice in 1977 and founded Forestry Association, where he served on the Board of Directors Underwood Law Firm in 1981. Underwood wrote and edited sev- and chaired the Environmental Committee. He was a member of eral articles, chapters and books on Mississippi foreclosure law. both the River Hills Club and Jackson Yacht Club. He was a long- He frequently spoke at bar association events, legal seminars and time member of Galloway Memorial United Methodist Church. law schools. A founding member of St. Stephen’s Reformed Episcopal Church, Underwood was currently serving in his sec- ond term as senior warden. Larry Whitmal Wood Larry Whitmal Wood, 73, of Lena, died November 1, 2014. A Michael J. Vallette graduate of Mississippi College School of Law, he was admitted to practice in 1968. Wood was a member of the MS Association Michael J. Vallette, 60, of Ocean Springs, died February 6, 2015. A of Petroleum Land Men. graduate of Mississippi College School of Law, he was admitted to practice in 1980. He was a longtime member of the Old Biloxi Marching Club and various Mardi Gras Associations over the years. Vallette was a member of the Mosaic Church in Ocean Springs.

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50 Winter 2015 The Mississippi Lawyer LAWYERS HELPING LAWYERS It’s Official – Your LJAP Stands Alone On January 15, 2015, the Supreme referrals.” While we call it a “self-refer- quicker movement into recovery and Court of Mississippi issued an Order ral” it is often at the urging of the attor- health. LJAP staff and volunteers have establishing The Mississippi Bar Lawyers ney’s colleagues and loved ones. We become aware after the fact that impedi- and Judges Assistance Program as an enti- believe this is due in large part to the pos- ment at its extreme, on more than one ty separate from the Court’s disciplinary itive work of Your LJAP seen in the occasion, cost an attorney a career, his agents. The Court also issued Rules gov- lawyer community and the confidential health, or even his life, because he or erning the operations of the program. nature of our services. those concerned about him believed to Assistance through the program under Since its inception as an all-volunteer reach out to LJAP would jeopardize his these Rules remains confidential and vol- group to its current status as a full time license. While stories of attorneys arriv- untary. The Rules may be viewed at professionally staffed “broad-brush” pro- ing at interventions with rule books and http://courts.ms.gov/rules/msrules.html gram, the program’s chief objective has representation can be amusing years later, The Supreme Court’s Order marks a always been to provide confidential assis- assuming the attorney survived and is giant step forward for LJAP. The program tance. Before last week’s Order, howev- now in recovery, we are haunted by stories staff and volunteers are extremely excited er, this objective was often met with sig- of opportunities tragically lost. about the new possibilities ahead. Recent nificant suspicion, conscious avoidance, If you have any question about LJAP’s years have seen marked increases in or active resistance due to LJAP’s desig- new status, or if you or someone you apparent recognition of program as a nation as a disciplinary entity. It was fre- know may be in need of assistance, please viable resource and confidence in its serv- quently very difficult to convince strug- contact us. I ices and support. gling lawyers or those concerned about During the 2013-2014 Bar Fiscal Year, them that LJAP’s attempts to assist were For Confidential Help Your LJAP responded to 123 new simply an attempt to assist and and not a Call The Lawyers and Judges inquiries for assistance. This represents a disciplinary issue. That impediment, at 36% increase over the year before. The its minimum, wasted valuable time, time Assistance Program. great majority of these inquiries are “self- which might have afforded a lawyer a 1.800.593.9777

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The Mississippi Lawyer Winter 2015 51 BIGGS, INGRAM & SOLOP, PLLC DOGAN & WILKINSON, PLLC is pleased to announce takes pleasure in announcing that BRIAN T. ALEXANDER

has joined the firm as an Associate. G. CHARLES BORDIS, IV former Chancellor for the 16th Chancery District Mr. Alexander represents clients in the area of has joined the firm as a Member Construction and Insurance Litigation. in its Ocean Springs office;

Telephone: 601-713-6339 and that Email: [email protected]

BIGGS, INGRAM & SOLOP, PLLC A. KELLY SESSOMS, III 111 E. Capitol Street, Suite 101 formerly with Phelps Dunbar, LLP Jackson, Mississippi 39201 has joined the firm as a Member Main: 601-713-1192 in its Pascagoula office; www.bislawyers.com

and that

JAMES E. LAMBERT, III former law clerk to Presiding Justice Michael K. Randolph of the Mississippi Supreme Court has joined the firm as an Associate PERRIER & LACOSTE, LLC in its Pascagoula office.

is pleased to announce 734 Delmas Avenue Pascagoula, Mississippi 39567 Telephone: 228-762-2272 TREY WIMBERLY 914 Washington Avenue has joined the firm as Special Counsel Ocean Springs, Mississippi 39564 Telephone: 228-875-5400 Direct: 228-214-1250 Facsimile: 504-212-8825 Offices in Jackson, New Orleans and Houston

www.doganwilkinson.com

GRIFFITH & GRIFFITH

is pleased to announce the change of its name to GAINSBURGH, BENJAMIN, DAVID, GRIFFITH & CARR MEUNIER & WARSHAUER, L.L.C.

and is pleased to announce that ARTHUR H. CALDERÓN WALTER C. MORRISON IV former law clerk to Senior Circuit Judge Albert B. Smith, III of the 11th Circuit Court District has been selected to appear in the 2014 edition of has joined the firm as an Associate Mid-South Super Lawyers Magazine which was published in December. This publication includes leading Daniel J. Griffith Michael S. Carr lawyers for Mississippi, Arkansas, and Tennessee and Arthur H. Calderón bases its recommendations on case research and 123 S. Court Street extensive interviews with both attorneys and clients. Post Office Drawer 1680 Telephone: 662-843-6100 Cleveland, Mississippi 38732 Facsimile: 662-843-8153

52 Winter 2015 The Mississippi Lawyer MOCKBEE HALL & DRAKE, P.A. RICHARD T. STARRETT Attorneys at Law Former Assistant United States Attorney and Senior Litigation Counsel is pleased to announce that for the United States Attorney’s Office Southern District of Mississippi and DAVID B. ELLIS Staff Attorney for the Mississippi Court of Appeals

has become a Shareholder in the firm Is pleased to announce

effective January 1, 2015 The opening of a new law practice on March 1, 2015

David W. Mockbee Judson R. Jones Handling appeals in all State and Federal Mary Elizabeth Hall David B. Ellis courts throughout Mississippi Danny A. Drake D. Wesley Mockbee Alexander F. Guidry Coleman M. Mockbee 505 Stoney Cove 125 S. Congress Street, Suite 1820 Telephone: 601-353-0035 Madison, Mississippi 39110 Capital Towers Facsimile: 601-353-0035 Telephone: 601-966-1390 Jackson, Mississippi 39201 www.mhdlaw.com E-mail: [email protected]

Distinguished Service Award Judicial Excellence Award This award shall be granted to a lawyer or lay The Judicial Excellence Award recognizes a judge person for outstanding achievement in or a sig- who has exceeded the fall of the judicial office. The nificant contribution to the legal profession. The Guidelines recipient should be an exceptional county, circuit, recipient must be cited for specific actions which chancery or state appellate judge who is an example occurred no longer than five (5) years immedi- of judicial excellence, a leader in advancing the qual- ately prior to the date of the award. The for ity and efficiency of justice and a person of high Distinguished Service Award is presented annu- ideals, character and integrity. To be eligible, a judge ally and multiple awards may be presented. The must be serving as a county, circuit, chancery or appellate judge. Judges on senior status are eligible if Lifetime Achievement Award they continue to be active on the bench. This award will be granted for devoted service Mississippi Nominations shall be reviewed by the Executive to the public, profession and administration of Committee of The Mississippi Bar. The Executive justice over the span of a professional career. Committee shall make its recommendations to the Only lawyers or individuals who have worked Bar Board of Commissioners at its Spring Board within or contributed significantly to the system Meeting. Upon approval of the Board, award recipi- of justice or legal profession will be qualified to ents shall be notified by the Executive Director of the receive this award. The Lifetime Achievement Awards Bar. All awards shall be presented at the next Annual Award is presented only on those occasions when Meeting of the Bar following their selection by the a deserving recipient is nominated and selected. Board of Commissioners.

DUE BY MARCH 30! Nominations for The Mississippi Bar Awards DUE BY MARCH 30! Check: K Distinguished Service Award K Lifetime Achievement Award K Judicial Excellence Award

Nominee: ______Nominee’s Address & Tel: ______Submitted by: ______Address: ______Tel: ______Affiliation: ______Reason nominee should be selected for the award: ______Mail to: The Mississippi Bar • Post Office Box 2168 • Jackson, Mississippi 39225-2168 • or FAX to (601) 355-8635

The Mississippi Lawyer Winter 2015 53 CLASSIFIED ADVERTISING

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