Eastmoor Estates Residents Association et al v. Miller et al

Filing 132

ORDER denying 116 Motion for sanctions and injunctions and finding no obligation to conduct inspections. Signed by Jane M Virden on 11/18/11. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
EASTMOOR ESTATES RESIDENTS
ASSOCIATION, ET AL.

PLAINTIFFS

vs.

CAUSE NO. 4:10CV144-P-S

GLENN MILLER, ET AL.

DEFENDANT

ORDER
Before the court is the Motion (# 116) of counsel for Defendants Glenn Miller Construction
Company, Inc., Eastmoor Estates, L.P., Glenn Miller, and Florence Miller for “Preliminary and
Permanent Injunction and Miscellaneous Relief.” Counsel has filed the instant motion pursuant to L.
U. Civ. R. 83.1(c) and FED. R. CIV. P. 11. The court has considered the submissions of the parties, the
record of this case, and the applicable law and is of the opinion that the motion should be denied in
its entirety for the reasons that follow.
Defense counsel lodges several very serious allegations of professional misconduct against
plaintiffs’ counsel and seeks, among other things, preliminary and permanent injunctions and
sanctions. Specifically, defense counsel charges plaintiffs’ counsel with violations of MISSISSIPPI
RULES OF PROF’L CONDUCT R. 3.3, 7.3, and 8.4 (a), (c) and (d). As an initial matter, the court notes
that defense counsel makes allegations of misconduct against plaintiffs’ counsel in general, with no
specific reference to the individual lawyer or lawyers who committed the alleged violations. The
Mississippi Rules of Professional Conduct govern a lawyer’s individual conduct and actions. Because
plaintiffs currently have four attorneys of record, and because the allegations call into question the

attorney(s)’ professional reputation(s), the general nature of this motion is improper.1 Nevertheless,
the court has considered each alleged violation and finds that the proof before the court is insufficient
to establish a violation of the Mississippi Rules of Professional Conduct or Rule 11.
Rule 3.3
Here, defense counsel contends plaintiffs’ counsel made a misrepresentation to the undersigned
during an October 6, 2011, settlement conference with regard to the number of Eastmoor homeowners
and leaseholders plaintiffs’ counsel actually represented at that time. Specifically, defense counsel
states that 1) this court– though not by formal order– directed that defense counsel conduct inspections
of Eastmoor plaintiffs’ homes in anticipation of a December 1 settlement conference2 and that 2)
plaintiffs’ counsel thereafter misrepresented to the court the number of Eastmoor homeowners or
leaseholders actually represented.
Rule 3.3(a)(1) of the Mississippi Rules of Professional Conduct states in pertinent part:
Rule 3.3. Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
First, the court finds that while it certainly understood plaintiffs’ counsel, Ms. Desiree Hensely,
to state that the Law Clinic represented all of the Eastmoor homeowners and leaseholders

1

The court also notes that several law students are involved in the Law Clinic’s
representation of the plaintiffs in this case.
2

As an element of the relief requested by the instant motion, defense counsel seeks relief
from “the obligation” of performing home inspections. In the interest of clarity, the court finds that
defense counsel was not and is under no obligation to perform inspections of Eastmoor homes and
that the issue of home inspections was born purely from an attempt to assist Millers’ defense
counsel’s expressed need to inspect each house in order to calculate damages, if any, for purposes
of settlement negotiations.

2

(approximately 50) and conveyed the same to defense counsel, the court is willing to and does accept
Ms. Hensley’s explanation that the same was not intended by her. Instead, she only meant to convey
that the Law Clinic represented approximately fifty Eastmoor residents, a number that happened to
coincide with the number of Eastmoor houses at issue.
And, while defense counsel suggests that even this representation by the Law Clinic was
inaccurate because the Law Clinic has since identified only twenty-two residents at Eastmoor with
whom it has signed retainer contracts, the court does not find this discrepancy to be the stuff upon
which to found a serious sanctions motion, especially since, as here, there are alternative explanations
for the apparent discrepancy that do not involve any bad faith or intentional effort to mislead. For
example, it is entirely possible that the Law Clinic believed, based on prior communications, that it
represented fifty Eastmoor residents on October 6 and later determined that only twenty-two actually
had authority to authorize entry into the houses at issue. It is also possible that believing itself to
represent fifty Eastmoor residents at the time of the conference, the Legal Clinic later learned some
residents decided not to proceed with representation or moved.
Ultimately, the court finds that defense counsel has failed to prove that plaintiffs’ counsel
knowingly made a false statement of material fact to the court in violation of Rule 3.3. The court
accepts plaintiffs’ counsel’s explanation regarding the nature of the Law Clinic’s relationship with the
Eastmoor residents and also agrees that defense counsel has failed to show how the legal dispute over
whether a resident actually has the lawful authority to authorize entry into a home in which he resides
(but has no ownership or leasehold interest) is relevant to the issue of whether plaintiffs’ counsel has
committed some sanctionable conduct.

3

Rule 7.3
First, defense counsel seeks sanctions and a preliminary and permanent injunction to “prohibit
Plaintiffs’ counsel from additional door-to-door solicitation in Eastmoor Estates.” According to
defense counsel, during the week of October 10, 2011, “Plaintiffs’ counsel and/or others authorized
by counsel solicited Eastmoor Estates door-to-door to ‘sign up’ clients.” In support of this allegation,
counsel has presented the affidavits of eight Eastmoor residents who make various claims including,
that plaintiffs’ counsel or their representatives went door to door with “paperwork;” asked residents
to sign “paperwork” in order to obtain grant funds for home repairs; and asked residents to sign up for
legal representation. Additionally, defense counsel has submitted an October 10, 2011, letter signed
by plaintiffs’ counsel, Marie Cope, in which individual Eastmoor Estates residents are advised that
they should meet with counsel individually in order to sign a retainer agreement with the University
of Mississippi Civil Legal Clinic (“Law Clinic”). Defense counsel contends that MISSISSIPPI RULE OF
PROF’L CONDUCT R. 7.3 “strictly prohibits” this type of “ in-person solicitation.”
Plaintiffs’ counsel responds that plaintiffs’ lawyers are salaried employees of a non-profit,
public organization (the Law Clinic); do not receive a portion of any fees; provide all legal services
on a pro bono basis; and have no pecuniary interest in contacting potential clients of the Clinic.
Rule 7.3 states in pertinent part:
Rule 7.3. Direct Contact With Prospective Clients
(a) A lawyer shall not by in-person live telephone or real-time electronic contact solicit
professional employment from a particular prospective client with whom the lawyer
has no family, close personal, or prior professional relationship when a significant
motive of the lawyer’s doing so is the lawyer’s pecuniary gain.
....

4

The court finds that defense counsel has failed to convince the court that plaintiffs’ lawyers
have violated Rule 7.3. By its express terms, Rule 7.3(a) prohibits in-person solicitation when a
“significant motive” of the lawyer is the lawyer’s pecuniary gain. Here, defense counsel has failed to
rebut plaintiffs’ counsel’s representation that there was and is no pecuniary motive behind plaintiffs’
attorneys’ contact with Eastmoor residents.
Further, for the first time, in his reply brief, defense counsel suggests that plaintiffs’ counsel
specifically violated Rule 7.3(b).3 Again, because defense counsel has presented the court with no
clear proof beyond the possibility of a violation by any plaintiff’s lawyer, the court finds there was no
violation.
Rule 8.4

Rule 8.4 governs misconduct in general. It states in pertinent part:
Rule 8.4. Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly
assist or induce another to do so, or do so through the acts of another;
...
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.
3

Subsection (b) states:

(b) A lawyer shall not solicit professional employment from a particular prospective
client by written, recorded or electronic communication or by in-person, telephone
or real time electronic contact even when not otherwise prohibited by paragraph (a),
if:
(1) Prospective client has made known to the lawyer the desire not to be solicited by
the lawyer or
(2) The solicitation involves coercion, duress or harassment.

5

....
Defense counsel charges that in an effort to “recruit” clients door-to-door, plaintiffs’
counsel misrepresented to Eastmoor residents that grant funds were available for home
repairs. Plaintiffs’ counsel essentially responds that considering the complexity of this class
action lawsuit, the fact that the parties have discussed the issue of the City of Moorhead
obtaining grant funds for sewer repairs, and the possibility that laypersons could have
misunderstood communications made by the Law Clinic to Eastmoor residents, there is no
basis for a finding of bad faith. The court agrees. The court has considered the affidavits
of the Eastmoor residents submitted by defense counsel and could find no convincing proof
of sanctionable conduct.4 Ultimately, the court finds that on this record, there is no basis
for sanctions against any of plaintiffs’ lawyers for professional misconduct. Accordingly,
the instant motion is DENIED in all respects. Further, plaintiffs’ request for fees is also
hereby DENIED.
This, the 18th day of November, 2011.

/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

4

Indeed, the statements in the Eastmoor residents’ affidavits regarding representations made
about grant funds do not specifically identify any of plaintiffs’ lawyers and in large part are not
based on the personal knowledge of the affiant.

6