Comment Bump: Earwigging the Chancellor

Editor’s note: We are not going to do any analysis or comment on the ex partay until all the kids hand in their homework.  In the meantime, the infamous Nunn Yabidnez weighs in on the ex partay, centered around the rule that forbids anyone from “earwigging the Chancellor” or “putting a bug in his ear.”  Special note for Scott Taylor and those in Rio Linda:  this does not actually mean someone will place an insect in a chancellor’s external auditory meatus.

Hilburn, a STATE appointed special judge, Singletary, the Special Master Hilburn appointed in a STATE case and Simpson, the Special Fiduciary appointed in a STATE case had absolutely no plausible need or arguably valid reason to be at such a meeting, “secret” or otherwise. The attorneys for a few members of a putative class, the Defendants’ attorneys, and reps of some of the Defendants were by their own admissions discussing settlement in a FEDERAL lawsuit that involved the exact same set of facts as the parallel STATE case. Even if none of the attendees intended to “discuss” any state cases, the presence of Hilburn, Singletary and Simpson was at best unnecessary and every attorney there including the judges and attorney/trustee Taylor knew or should have known it was a highly improper clear violation of numerous rules.

With it being a Chancery Court matter at the state, they were operating under not only the Rules of Professional Conduct and/or Code of Judicial Conduct, but also the Uniform Chancery Court Rules. Rule 3.10 states in part:

“No person shall undertake to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith.” and “Any person who shall violate this rule, knowing that such conduct is prohibited, shall be guilty of a contempt.” If they did not know Rule 3.10, they are not competent lawyers and if they did, they are guilty violating the rules and guilty of a contempt.

These are MS lawyers and judges, so they are covered by the various rules in MS law, but they claim they were only discussing a FEDERAL case. This also brings them under the FEDERAL rules (upon which many of the MS counterparts are based). However, Mississippi does not permit class actions. If the attorneys for a limited number of putative class members and the Defendants in the federal case were attempting some “end run” by using improper and unethical means to stay numerous state cases and “rig up” a federal class action (with fewer Plaintiffs than the state cases) that really should not be certified (and would detrimentally affect the state court rights of the majority of Plaintiffs), that would easily raise the ire of the Federal judiciary. The “no opt out” request from a limited number of the class members as well as the Defendants is problematic for them here.

It would also present a problem for those involved as well as for the class action itself should the 5th Circuit wind up involved (and they probably will). Numerous combinations of three judge panels might make things very unpleasant for some of these folks and en banc (all of the judges) might make “very unpleasant” seem like an all-expenses-paid month in the islands. Add to that the fact that numerous Feds are already “looking into things,” and some of these folks may have very different futures than they hoped. This kind of horsesh!t might play in Jackson, but the 5th Circuit is whole different matter and it seems clear that NONE of this bunch, and I mean NONE on any side, has anything approaching the legal ability, knowledge or chops to dance at that level.