JACKSON, Miss. (Legal Newsline) - Mississippi’s highest court rejected a lawyer’s claim rival attorneys conspired to deprive him of his contingency fee in a legal malpractice lawsuit, agreeing a trial judge was justified in dismissing the long-running case as frivolous.
An attorney has no duty to an adverse party, the Mississippi Supreme Court concluded in a Dec. 3 decision, dooming Barry Wade Gilmer’s claim that lawyers who sued him were actually trying to illegally steal his fee.
In April 2012, Bobby Gibson hired the Gilmer Law Firm to represent him in a legal malpractice case under a contingency-fee agreement. Gilmer assigned the case to Seth Little, who later moved to the McRae Law Firm, taking the case with him.
When the malpractice suit settled, McRae didn’t get any money, so firm principal Chuck McRae hired Michelle Biegel and Bettie Ruth Johnson to sue Gilmer for the fee. Gilmer then sued McRae, Little, Biegel and Johnson for conspiracy, claiming Biegel and Johnson “instructed” McRae to call plaintiff Gibson and illegally record the conversation.
After pretrial maneuvering including one trip to the Mississippi Supreme Court on interlocutory appeal, the trial judge dismissed Gilmer’s case in November 2020 and ordered him to pay Biegel and Johnson $6,000 each. The “filing of the complaint and pursuit of this litigation had no hope of success and therefore was frivolous,” the judge ruled.
Gilmer appealed but had no luck at the Mississippi Supreme Court either. First, the fundamental rules of tort law prevent litigants from suing attorneys who file suit against them, since rival lawyers have no duty to each other that they can breach.
“Biegel and Johnson owed no duty to Gilmer, an adverse party, when they were acting in their official capacities as McRae’s attorneys,” the court ruled in a unanimous decision. “Therefore, Biegel and Johnson are immune from Gilmer’s lawsuit.”
To claim civil conspiracy, Gilmer had to show there was an agreement to accomplish an unlawful purpose, acts to bring it about, and damages. He was on track as far as alleging Biegel and Johnson agreed that McRae should call Gibson, the court said. “But Gilmer did not allege what unlawful purpose was accomplished or what particular law was violated,” the court went on.
Gilmer also claimed the trial judge abused his discretion by ordering him to pay legal fees. But the judge was well within his discretion in doing so under the Mississippi Litigation Accountability Act and didn’t have to specify exactly how Gilmer had violated the rules.