source: Caselaw Access Project

author: WALLER, J„ McRAE, P.J.,

license: Public Domain

text:
    In re Edward A. WILLIAMSON and Michael J. Miller.
    Nos. 2001-IA-00105-SCT, 2001-CA-00578-SCT.
    Supreme Court of Mississippi.
    Dec. 5, 2002.
    Rehearing Denied March 6, 2003.

      Edward A. Williamson, Philadelphia, Robert B. McDuff, Alex A. Alston, Jackson, attorneys for appellants.
    Lee Davis Thames, Jr., R.E. Parker, Jr., Vicksburg, attorneys for appellee.
   WALLER, J„

for the Court.

¶ 1. Bobby G. Reed, Jr., Teresa Powell Reed and Bobby G. Reed, Sr., seek review of the denial of the motion for admission pro hac vice of Michael J. Miller. The circuit court found that Miller, an attorney who is not licensed to practice law in the State of Mississippi, had participated in more than five cases within the immediately preceding twelve-month period, thereby violating M.R.A.P. JdCbXGXii). The circuit court also found Miller and Edward A. Williamson, an attorney licensed to practice law in Mississippi, to be in contempt of court due to an affidavit filed in support of the motion for admission pro hac vice and due to their actions during a deposition of the defendant physician. Williamson and Miller seek review of the denial of the motion for admission pro hac vice and the contempt order. We affirm the denial of the motion for admission pro hac vice and reverse and remand the circuit court’s judgments of contempt against Williamson and Miller.

FACTS

¶ 2. Miller, an attorney licensed in Maryland, Virginia and the District of Columbia, maintains an office in Alexandria, Virginia. Even though he is not licensed to practice law in Mississippi, he has advertised his legal services on television in the Greenville/ Greenwood, Mississippi area. The Reed family contacted Miller directly by calling the toll free telephone number mentioned in the advertisement. Miller and his office staff investigated the Reeds’ claim and associated Williamson, with whom Miller had previously worked on several Mississippi cases. On behalf of the Reed family, Williamson filed a complaint against Terry McMillin, M.D., alleging medical malpractice. In that complaint, which was signed by Williamson but not by Miller, Miller’s name and address were placed under Williamson’s name and address as follows:

Respectfully submitted,
(signature)
Edward A. Williamson
EDWARD A. WILLIAMSON ATTORNEY AT LAW POST OFFICE BOX 588 PHILADELPHIA, MISSISSIPPI 39350 601-656-5634 MSB# 7276
MICHAEL J. MILLER MILLER & ASSOCIATES 809 CAMERON STREET ALEXANDRIA, VIRGINIA 22314 1-800-882-2525
WASHINGTON D.C. BAR NO. 397689

¶ 3. R.E. Parker, an attorney who was retained to represent Dr. McMillin, filed an answer and a motion requesting the circuit court to strike all of the pleadings since Miller, a foreign attorney, had not complied with M.R.A.P. 46 and was therefore guilty of the unauthorized practice of law. Williamson then filed a motion for Miller’s admission pro hac vice; however, he failed to attach an informational affidavit as required by M.R.A.P. 46(b)(4). Parker again asked the circuit court to strike all of the pleadings. Miller then filed an informational affidavit and certificate. Miller’s affidavit, in which he acknowledged his involvement in two other Mississippi cases over the past twelve months, stated as follows:

Affiant has appeared pro hac vice in the matter of Ford v. Baker, in the Circuit Court of Washington County, Mississippi and by agreement with defense counsel in this action in the case of La’Shant-ton Morris v. Gerald Rankin, M.D., et al., Cause No. 99-0181-CI, in the Circuit Court of Warren County in the last twelve months.

¶4. During a telephone conference on the motion for admission pro hac vice and the motion to strike, Parker informed the circuit court that within the last twelve months Miller had been involved in several other Mississippi cases not listed in the affidavit. The court directed Miller to file a second affidavit pursuant to M.R.A.P. 46 and list all the cases in which Miller had applied for admission pro hac vice or in which he had an interest.

¶ 5. Miller’s second informational affidavit, which was filed on September 7, 2000, and which acknowledged other cases not previously disclosed, provided as follows:

Affiant has appeared pro hac vice, has filed a motion to appear pro hac vice or has an interest in the following cases filed in the State of Mississippi:
A. Cases concluded more than 12 months from this date:
1. In the matter of Ford v. Baker, the Circuit Court of Washington County, Mississippi;
B. On-going cases in which Michael Miller has, been admitted to practice pro hac vice:
1. La’Shantton Morris v. Gerald Rankin, M.D., et al., Cause No. 99-0181-CI, in the Circuit Court of Warren County;
C. On-going cases in which Michael Miller has filed a motion to appear pro hac vice. However, no Order allowing his admission has been filed by the Court:
1. Bobby G. Reed, Jr., et al. v. Terry Y. McMillin, M.D., Cause No. 20-0042CI — In the Circuit Court of Le-flore County, Mississippi;
2. Edward Jakarrious Williams, et al v. Carl Reddix, M.D., et al. — Cause No. 251-99-1245CIV — In the Circuit Court of the First Judicial District of Hinds County, Mississippi;
8. Keyosha Suber, a minor, et al. v. James R. Beckham, M.D., In the Circuit Court of Washington County, Mississippi; and
4. Annette Williams v. American Home Products Corporation, et al., Cause No.2000-207 — In the Circuit Court of Holmes County, Mississippi;
D. On-going cases in which Michael J. Miller has an interest, but no motion for pro hac vice admission has been filed:
1. Janice Washington, et al. v. American Home Products Corporation, et al., Cause No.2000-292, In the Circuit Court of Holmes County, Mississippi; and
2. Ruthie Amos, et al. v. American Home Products Corporation, et al., Cause No.2000-293, In the Circuit Court of Holmes County, Mississippi.

¶ 6. The circuit court denied the motion for admission pro hac vice, finding that Miller had “appeared in six different cases during the last twelve months, and the present case would constitute the seventh,” “appending [one’s] name to pleadings in a cause constitutes an appearance as counsel of record as contemplated by Rule 46,” and that Miller had engaged in the unauthorized practice of law.

¶ 7. Dr. McMillin’s deposition was scheduled for the day following the entry of the order denying the motion for admission pro hac vice. Prior to the deposition, Williamson spoke to the circuit judge’s law clerk, seeking permission for Miller’s presence at the deposition. The law clerk told Williamson that the circuit judge would allow Miller to attend the deposition, but that Miller could not participate in the deposition. This oral instruction was never reduced to a written order.

¶ 8. During the deposition, Parker observed Miller taking notes and placing them on a flight bag which was underneath the table. When Williamson reached down for the notes, Parker objected and accused Miller of violating the circuit court’s order. Miller stated that he had merely been taking notes and placing the notes on the floor. He denied that he had attempted to hand the notes to Williamson under the table. Williamson denied that he had ever had the notes in his hands. Parker called the circuit judge, who ordered Miller to leave the deposition.

¶ 9. The “notes” Miller took at the deposition are as follows:

Questions for Dr. McMillin
i. What publications in the field of Ob-Gyn do you read (or subscribe to)
ii. What were the contra indications to performing a Caesarian section on Theresa Reed
iii. Prior to the birth of Bobby Reed did you review any prior birth records for other kid
iv. Prior to 37 weeks gestation you knew this was a male fetus
v. Agree the pregnancy with Bobby Reed, Jr., was the first pregnancy where Theresa Reed was diagnosed as a gestational diabetic?
vi. Do you have privileges at any other hospital other than Greenwood-Leflore

¶ 10. Dr. McMillin filed a motion for contempt which accused Miller of violating the circuit judge’s instructions at the deposition, as well as failing to mention another Mississippi case in which Miller had participated. Dr. McMillin did not accuse Williamson of contempt.

¶ 11. In response to the motion for contempt, Williamson averred that Miller did not participate except to respond to accusations of participation and that the three pages of notes fell on the floor:
2. On the 13th day of September, 2000, Michael Miller attended, with this court’s permission, the depositions of the plaintiff and Dr. McMillin at which Attorney Williamson appeared as counsel for the plaintiffs. Mr. Miller did not appear at those depositions as counsel for the plaintiffs and did not participate in those depositions. He did respond to defense counsel’s accusation during the deposition that he was participating through taking notes by urging defense counsel to contact this court if he felt it necessary.
3. Mr. Miller had notes with him during the deposition which were made prior to receiving this court’s order. He took additional notes during the deposition. During the deposition, three pages containing the notes attached to the motion for contempt fell to the floor. During the deposition, when defense counsel accused Mr. Miller of violating this court’s order with the notes, Mr. Miller stated on the record that he would provide the court with copies of the notes he took during the deposition.

¶ 12. During a hearing on the motion for contempt, Williamson and Miller changed their stories and testified that Miller was merely acting as a paralegal and not as an attorney, and that a paralegal, though not licensed to practice law, could suggest questions to the attorney taking the deposition. The circuit court granted the motion for contempt, finding, among other things, that: (1) Miller was practicing law without a license; (2) Miller made false representations to the court in the affidavits; (3) Miller blatantly and willfully disobeyed the court’s order barring his participation at the deposition by writing down questions and handing them to Williamson; and (4) Miller and Williamson repeatedly misspelled the name of the defendant in the Ford v. Barker case, making it difficult for the circuit court to ascertain the correct facts. The circuit court found that both Miller and Williamson were in contempt of its orders. Punishment was the imposition of a cost bill, jointly and severally, to be submitted by Dr. McMillin.

¶ 13. Miller and Williamson seek review of the denial of the motion for pro hac vice and of the contempt order.

DISCUSSION

I. WHETHER THE CIRCUIT COURT PROPERLY DENIED THE MOTION FOR ADMISSION PRO HAC VICE.

¶ 14. We review questions of law de novo. Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss.1999). Findings of fact will not be overturned where they are supported by substantial evidence in the record, unless the trial judge abused his discretion or his findings were manifestly wrong or clearly erroneous. Sawyer v. Brandon, 825 So.2d 26, 34 (Miss.2002); Tricon Metals & Servs., Inc. v. Tapp, 516 So.2d 236, 238 (Miss.1987).

¶ 15. Attorneys not licensed in Mississippi must follow the guidelines outlined in M.R.A.P. 46 to have limited practice privileges, pro hac vice, in Mississippi courts. An attorney seeking admission pro hac vice must be in good standing of the bar of another state and must be of good moral character. M.R.A.P. 46(b)(1). He must associate an attorney who is a member in good standing of the Mississippi Bar. M.R.A.P. 46(b)(3). He must file an informational affidavit before the particular court for which practice privileges are desired. M.R.A.P. 46(b)(4). The informational affidavit must include a list of other Mississippi cases in which the attorney has appeared pro hac vice within the preceding twelve months, including the style of each cause and the name of each court. M.R.A.P. 46(b)(6)(H).

¶ 16. We strictly construe Rule 46(b)(6)(h) and have affirmed the dismissal of a civil action because the foreign attorney who filed the complaint did not associate local counsel and failed to supply a timely and correct informational affidavit in accordance with the rule. Taylor v. Gen. Motors Corp., 717 So.2d 747, 749 (Miss.1998).

¶ 17. M.R.A.P. 46(b)(6) also prohibits a foreign attorney from appearing pro hac vice if the foreign attorney has engaged in the “general practice of law” in this state without being properly admitted and licensed to practice law in this state. M.R.A.P. 46(b)(6)(i). For purposes of the rule, the “general practice of law” is defined as “appearances as counsel pro hac vice before any court or administrative agency of this state on more than five (5) occasions in any 12 month period.” M.R.A.P. 46(b)(6)(h). The “practice of law” has been defined to be as little as advising a person of his legal rights or exercising discretion in drafting documents:

[The] practice of law includes drafting or selection of documents, the giving of advice in regard to them, and the using of an informed or trained discretion in the drafting of documents to meet the needs of the person being served. So any exercise of intelligent choice in advising another of his legal rights and duties brings the activity within the practice of the legal profession.

Darby v. Miss. State Bd. of Bar Admissions, 185 So.2d 684, 687 (Miss.1966) (citation omitted).

A. WHETHER AFFIXING ONE’S NAME TO A PLEADING CONSTITUTES AN “APPEARANCE” WITHIN THE MEANING OF M.R.A.P. 46(b)(6).

¶ 18. Miller’s name and address were included on pleadings in at least seven cases. In the case sub judice, this information was placed on the complaint, a response to requests for admission, a notice of deposition of Dr. McMillin, a subpoena duces tecum directed to a hospital records custodian, and a rebuttal to the response to the motion for admission pro majority vice for Mhler. Because of the inclusion of Miller’s name and address on the pleadings, Parker served both Williamson and Miller with copies of pleadings he filed with the court.

¶ 19. Miller and Williamson contend that the inclusion of Miller’s name, address, phone number, etc., to a pleading signed and filed by a local attorney does not constitute an appearance as the term is used in M.R.A.P. 46. They argue that if providing such information is deemed to constitute an appearance, local attorneys would be discouraged from consulting foreign attorneys who have greater knowledge of complex fields of litigation.

¶ 20. Parker contends that the inclusion of Miller’s information on the complaint is an appearance and a representation to the court and to other attorneys that Miller is an attorney of record. The circuit court agreed and held that “appending one’s name and address on a Complaint constituted an appearance as counsel of record as contemplated by Rule'46.” Accordingly, the circuit court concluded that Miller was guilty of practicing law without a license.

¶21. Our rules of civil procedure require that counsel be identified on the pleadings. The comments to M.R.C.P. 11, Signing of Pleadings and Motions, state that “Counsel’s office address should appear on all pleadings and other papers.” An “appearance by attorney” is defined as holding oneself out to be representing a client. “Appearance” is defined as “an act of an attorney in prosecuting an action on behalf of his client. Document filed in court in which attorney sets forth fact that he is representing a party to the action.” Black’s Law Dictionary 712 (6th ed.1990). Affixing a name to pleadings has been interpreted as an intent to be involved in the litigation:

The purpose of resident counsel joining with nonresident counsel is obvious. It is to insure that the nonresident counsel will be associated with a counsel involved in the litigation who is knowledgeable and familiar with the laws and practices of this state. By permitting his name to be affixed to a pleading or brief, a resident lawyer represents to this court that he is a part of the litigation and a counsel of record. Accordingly, he should be held accountable for the transaction of the litigation to the full extent as if there were no nonresident counsel. A resident lawyer should not permit his or her name to be affixed to pleadings or briefs unless he or she intends to be involved in the litigation and be familiar with the actions taken by nonresident counsel.

Emry v. Am. Honda Motor Co., 214 Neb. 435, 334 N.W.2d 786, 793 (1983).

¶ 22. We take judicial notice from the amici briefs submitted in this case that it has been the practice of some attorneys in this State to include a foreign attorney’s name on pleadings without intending for the foreign attorney to make an appearance. Because we have not previously addressed what constitutes making an appearance, we take this opportunity to narrow the definition of making an appearance. In the future, attorneys are hereby noticed and cautioned that a foreign attorney will be deemed to have made an appearance in a Mississippi lawsuit if the foreign attorney signs the pleadings or allows his or her name to be listed on the pleadings. A foreign attorney may further make an appearance in a Mississippi court by physically appearing at a docket call, a trial, a hearing, any proceeding in open court, at a deposition, at an arbitration or mediation proceeding, or any other proceeding in which the attorney announces that he or she represents a party to the lawsuit or is introduced to the court as a representative of the party to the lawsuit. These actions require' that the foreign attorney be admitted pro hac vice and activate the prohibition of M.R.A.P. 46(b)(6)(H).

B. WHETHER MILLER ENGAGED IN THE UNAUTHORIZED PRACTICE OF LAW.

¶ 23. Even excluding the fact that Miller’s name and address appeared on the pleadings, we find that Miller’s actions constituted practicing law in Mississippi. All of the cases listed in the affidavits, as well as the case sub judice, originated from Miller’s office and were “his” cases. The cases came directly to Miller’s office by way of a 1-800 number advertised in Mississippi. Miller reviewed the cases with his staff of two nurses, a doctor, a surgeon, and six lawyers to determine whether the claim was meritorious. Once a contractual relationship with the client was established, Williamson filed a complaint in the appropriate Mississippi court. Miller conceded that he and Williamson jointly worked on all of the cases and that he normally did not put his name on a pleading unless he had decided to enter an appearance.

¶ 24. Miller supplied all the substantive medical expertise to the medical malpractice cases he shared with Williamson. In one case, Williamson did not feel sure of himself with the medical evidence, and so, with the consent of opposing counsel, and without filing a motion for admission pro hac vice, Miller conducted the deposition of the physician defendant.

¶ 25. Miller and Williamson contend that the only appropriate authority for addressing a charge that Miller engaged in the unauthorized practice of law is the Mississippi Bar and not the courts. They further argue that Miller was serving only as a means of determining whether any of the claims had merit, that he merely “screened the case and provided Williamson with technical advice on the medical aspects of it.” If the claims had merit, Williamson prepared and filed the pleadings. It was only when Miller was allowed to appear pro hac vice that he deposed experts. They also contend that numerous lawyers do this type of activity regularly without being accused of engaging in the unauthorized practice of law.

¶ 26. In Darby, a chancery court clerk was found guilty of engaging in the unauthorized practice of law when she prepared deeds, deeds of trust, notes, bills of sale, and real property title certificates. 185 So.2d at 687. The Kansas Supreme Court has held that performing legal services in any legal proceeding through the various stages of litigation constitutes the practice of law:

[T]he practice of law is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.
[0]ne who confers with clients, advises them as to their legal rights, and then takes the business to an attorney and arranges with him to look after it in court is engaged in the practice of law.

State ex rel. Stephan v. Williams, 246 Kan. 681, 793 P.2d 234, 240 (1990) (citations omitted).

¶ 27. Miller clearly conferred with clients, advised them as to their legal rights and then engaged the services of another attorney to litigate the claim. He procured each and every client through commercials on the television. Once their claims were investigated by Miller and his office staff, he contacted Williamson. Miller characterized these cases as “his” cases. He continued to advise Williamson on the case and, in the case sub judice, attended a deposition. Miller also had a financial interest in the outcome of these cases. Although the Court has held that although “the practice of law does not necessarily depend on whether one charges or receives a fee for services performed, the element of compensation may be a factor in determining whether the specified conduct constitutes the practice of law.” Darby, 185 So.2d at 687. Miller’s name appeared on the complaint and other pleadings. The combination of all of these factors supports a finding that Miller had engaged in the unauthorized practice of law.

¶ 28. We therefore affirm the circuit court’s' denial of the motion for admission pro hac vice, and we refer this matter- to the Mississippi Bar for further proceedings.

II. WHETHER THE CIRCUIT COURT PROPERLY FOUND MILLER AND WILLIAMSON IN CONTEMPT OF COURT.

¶ 29. We carefully examine contempt convictions. Melvin v. State, 210 Miss. 132, 48 So.2d 856 (1950). Generally speaking, contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than the Supreme Court. Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990). When dealing with contempt matters, we must first determine whether the alleged contempt is either civil or criminal in nature. If the contempt is civil, the proper standard utilized for review is the manifest error rule. Id. If the contempt is criminal, then we will proceed ab initio and will determine on the record whether the person in contempt is guilty of contempt beyond a reasonable doubt. Id. If the primary purpose of the contempt order is to enforce the rights of private party litigants or enforce compliance with a court order, then the contempt is civil. Purvis v. Purvis, 657 So.2d 794, 796 (Miss.1994). The contemnor may be jailed or fined for civil contempt; however, the contemnor must be relieved of the penalty when he performs the required act. Id. at 796-97. Criminal contempt penalties, on the other hand, are designed to punish the contem-nor for disobedience of a court order; punishment is for past offenses and does not terminate upon compliance with the court order. Common Cause of Miss. v. Smith, 548 So.2d 412, 415-16 (Miss.1989).

¶ 30. It is clear that in the case sub judice, the contempt is criminal in nature. See, e.g., Newell v. Hinton, 556 So.2d 1037, 1044 (Miss.1990) (“[A] criminal contempt proceeding is maintained solely and simply to vindicate the authority- of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court”). The circuit court held both Miller and Williamson in contempt for their noncompliance with its order regarding their actions at Dr. McMillin’s deposition and their alleged misrepresentations to the court in the two M.R.A.P. 46(b)(4) affidavits. Accordingly, we proceed ab initio and determine on the record whether Miller and Williamson are guilty of contempt beyond a reasonable doubt.

¶ 31. There are two forms of criminal contempt, direct and constructive:

Direct criminal contempt involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice. Punishment for direct contempt may be meted out instantly by the judge in whose presence the offensive conduct was committed....
Unlike direct contempt, constructive contempt involves actions which are committed outside the presence of the court ... In the case of constructive criminal contempt, we have held that defendants must be provided with1 procedural due process safeguards, including a specification' of charges, notice, and a hearing.

Moulds v. Bradley, 791 So.2d 220, 224-25 (Miss.2001) (citations omitted). The allegations contained in the motion for sanctions were committed outside the presence of the court; therefore the acts constituted constructive criminal contempt and procedural due process safeguards attached.

¶ 32. The circuit court held Williamson and Miller in contempt for deliberately trying to mislead the court by not filing a complete and factual affidavit in support of the motion to admit Miller pro hac vice; for violating the court’s order about the conduct of the deposition; and for trying to conceal their actions at the deposition.

¶ 33. The judgment of contempt against Williamson and Miller must be reversed. First, Williamson was not given notice that the contempt hearing would address any actions he engaged in or that a judgment of contempt might be entered against him. His right to due process was therefore violated. Secondly, Judge Hines should have recused himself from conducting the contempt charges against Williamson and Miller. In Terry v. State, 718 So.2d 1097, 1104-05 (Miss.1998), we held that “[i]t is necessary for the individual to be tried by another judge in cases of constructive contempt where the trial judge has substantial personal involvement in the prosecution.” In Terry, the judge himself brought the contempt charges against the individuals involved and therefore had a prosecutorial role in the proceedings. In both Williamson and Miller’s cases, Judge Hines had substantial personal involvement in the prosecution because he was a material witness to what had occurred. In order to have a full hearing on the charges, Judge Hines would need to testify as a fact witness as to what he told his law clerk to tell to Williamson. The law clerk’s testimony would be inadmissible hearsay because the declarant, Judge Hines, would be available to testify.

¶ 34. We therefore find that Judge Hines should have recused himself and remand for a new hearing on the motion for contempt.

CONCLUSION

¶ 35. The denial of the motion for admission pro hac vice is affirmed. Miller’s actions support a finding that he engaged in the unauthorized practice of law. Miller procured clients in this state, investigated their claims, consulted with local counsel, and allowed his name to be placed on the pleadings in those cases. All of these combined actions go beyond merely referring clients to other counsel or merely serving in an advisory capacity.

¶ 36. The circuit court’s judgments of contempt against Williamson and Miller are reversed because Williamson’s right to due process was violated and because the circuit judge should have recused himself. We remand for proceedings consistent with this opinion.

¶ 37. Upon the issuance of our mandate in these cases, the Clerk of this Court shall promptly mail a copy of this opinion to The Mississippi Bar, Post Office Box 2168, Jackson, Mississippi 39225-2168, and note such mailing on the docket.

¶ 38. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., SMITH, P.J., COBB AND CARLSON, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J.

McRAE, P.J.,

Dissenting:

¶ 39. The Court’s holding today illustrates an antiquated approach to a modern day question of law concerning what is, ultimately, the right of a citizen to choose legal representation. The holding, inter alia, limits the participation of an attorney, or an expert, or even a paralegal, in a proceeding or trial. Further, anyone with a monetary interest in a particular ease or lawsuit is potentially engaging in the practice of law. And if the senior partner of a regional law firm or multi-national law firm, or an attorney in a limited joint venture, is named in the pleadings, or has a monetary interest in a Mississippi case, he or she, too, is in effect practicing law in Mississippi. This is an end that simply cannot be justified today; and in any case, the means chosen to reach it most certainly cannot be. Indeed, the attorneys in this case, Edward A. Williamson and Michael J. Miller, have been subjected to an ad hoc decision-making process, for which no legal foundation exists. Only by making new rules out of ambiguous rules is the majority able to achieve its desired policy preference in this case. Accordingly, I dissent.

¶ 40. The attorneys in this case have been subjected to rules that are not crystal clear, as the majority outlined in, but retracted from, its originally circulated opinion in this case. Specifically, following in the misguided footsteps of the trial court, the majority holds Miller to a standard that did not exist, and worse appears to hold him guilty of violating it.

¶ 41. Today the majority holds “that a foreign attorney will be deemed to have made an appearance in a Mississippi lawsuit if the foreign attorney signs the pleadings or allows his or her name to be listed on the pleadings.” (emphasis added). This holding and the trial court’s according ruling are the first of any court to this effect. Thus, Miller’s actions prior to the ruling could not possibly constitute a violation, much less one sufficient to deny the pro hac vice motion.

¶42. This, however, is not the only reason that this holding is so peculiar and unjust. Indeed, its ramifications will, without any justification from this Court whatsoever, unravel years of well-settled and common practice, as well as the policies that underscore the rules of admission pro hac vice.

¶ 43. The goal of M.R.A.P. 46 is the protection of the Mississippi public from undereducated and unlearned individuals practicing law. This Court has accordingly stated that “the prohibition against others than members of the bar of the State of Mississippi from engaging in the practice of law is not for the protection of the lawyers against lay competition, but is for the protection of the public.” Darby v. Miss. State Bd. of Bar Admissions, 185 So.2d 684, 687 (Miss.1966) (Citing Beach Abstract & Guar. Co. v. Bar Ass’n of Ark., 230 Ark. 494, 326 S.W.2d 900 (1959); State Bar of Ariz. v. Ariz. Land Title & Trust Co., 90 Ariz. 76, 366 P.2d 1 (1961); Grievance Comm. of Bar of New Haven County v. Payne, 128 Conn. 325, 22 A.2d 623 (1941); Union City & Obion County Bar Ass’n v. Waddell, 30 Tenn.App. 263, 205 S.W.2d 573 (1947); Hexter Title & Abstract Co. v. Grievance Comm., State Bar of Tex., 142 Tex. 506, 179 S.W.2d 946 (1944)). “The state has legitimate interests to be weighed in considering pro hac vice admissions in order to maintain a high level of professional ethics, [and] to assure a high quality of representation in the courts.” McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357, 364 (1973) The majority’s opinion is inconsistent with this goal.

¶ 44. What is consistent with this goal, however, is the practice of Mississippi lawyers who, like Williamson, seek the assistance of expert, or highly qualified, attorneys who are not licensed in this state and therefore, enter into a limited joint venture. Such attorneys are often needed to effectuate full and comprehensive legal advice and services for our Mississippi residents. Often, foreign expert attorneys teach our local attorneys how to most effectively and zealously represent Mississippi clients, which is the reason why Rule 46 exists in the first place. Further, it is the client who decides who can provide the very best advocacy possible. The client has the ultimate right to choose their selected counsel.

¶ 45. Even the Mississippi Rules of Professional Conduct encourage the association of specialized attorneys in order to achieve competency. The Comment to Mississippi Rule of Professional Conduct 1.1 advises that an attorney may become competent to handle a matter by the association or consultation of “a lawyer of established competence in the field in question.” M.R.P.C. 1.1 cmt. For some Mississippi lawyers, it may be necessary to seek the assistance and counsel of a foreign attorney in a specialized field. The majority’s opinion effectively makes any such consultation the unauthorized practice of law, which could place both the local and foreign attorney on the chopping block of contempt.

¶ 46. Most surprisingly in this matter, however, is the majority’s rather enormous and untutored leap in announcing that an appended name on a pleading constitutes an “appearance” for the purpose of determining whether one is “practicing law” in Mississippi. This does and will include the name or names that appear as part of any firm’s name on any pleading. What does this do to the regional and multi-national firms? There are many regional firms in which the firm’s names include those of attorneys licensed in various states. These firms have offices here in Mississippi but not all those appearing in the firm’s name are licensed here in Mississippi. Is the majority not also holding that these foreign attorneys are “appearing” in Mississippi courts and therefore possibly engaging in the unauthorized practice of law as prescribed by M.R.A.P. 46(b)(6).

¶ 47. Further, citing Darby, 185 So.2d at 687, the majority states that “the element of compensation may be a factor in determining whether the specified conduct constitutes the practice of law.” Is it also the case, therefore, that since regional firms share profits throughout the firm, that the unlicensed attorneys therefor are practicing law in Mississippi by virtue of their financial interest in a Mississippi litigation? There are many, many foreign or out of state attorneys who have a financial interest in Mississippi litigations although they do not maintain Mississippi licenses.

¶ 48. Worth additional consideration is the connection of today’s holding with our joinder rules. In American Bankers Ins. Co. of Florida v. Alexander, 818 So.2d 1073, 1076 (Miss.2001) this Court approved the joinder of over one thousand cases into a single cause of action under Rule 20 of the Mississippi Rules of Civil Procedure. The majority’s definition of “appearance and occasions” suggests that these one thousand cases would be seen as separate and distinct appearances and occasions, thereby making a foreign attorney disqualified for admission pro hac vice every time there is a consolidation of more than five cases. This will have a significant impact on the legal climate in Mississippi since there is a steady increase in the number of consolidated causes. The larger consolidated causes which involve multinational corporations usually involve a team comprised of foreign attorneys having expertise in large lawsuits and a local attorney. The majority’s holding will create ambiguity as to whether these expert foreign attorneys will be allowed to continue the customary path of pro majority vice admittance.

¶ 49. The majority also misses the glaring distinction between petitioning a court for admittance pro hac vice and actually being admitted pro hac vice. Miller has not been admitted pro majority vice on more than five occasions in this state in the last twelve months. In most cases in which he was involved, he had either petitioned for admission or maintained an interest therein. Albeit, the majority concludes that Miller “appeared” for the purpose of determining that he engaged in the “general practice of law” in “any court or administrative agency of this state on more than five (5) occasions in any 12 month period.” M.R.A.P 46(b)(6)(ii). If the filing of a Motion for Appearance Pro Hac Vice is considered an “appearance or occasion,” then it is possible for someone to file five Motions for Appearance, never be granted appearance and still be found to have “appeared” for the purposes of the rule and therefore be forbidden from admission pro hac vice on other cases.

¶ 50. Additionally, the twelve month period of time referenced in M.R.A.P. 46(b)(6)(ii) is modified by the word “any.” "When, therefore, does this “any twelve month period” begin and end so as to determine, if at all, that an out of state attorney has engaged in the general practice of law? Does it mean a chronological period, or five cases pending over a protracted period since they were not closed out in the chronological year. Is the twelve month period when one first has a case and the period continues through the next twelve months and drops off after that? What about insurance lawyers or in house counsel for national corporations that supervise local attorneys and control the lawsuit? Have they made an appearance and practiced in this state? Could it include six months two years ago, for example, and six months this year? Or is it clearly applicable to the most recent twelve month period? While I am inclined to believe it is the latter, the rule does not make this clear. In the present case, Miller’s name appeared, or, he was admitted pro hac vice, or, he did not seek admission but had an interest, in seven cases in the preceding twelve month period. In any case, there was absolutely no twelve month period in which he appeared pro hac vice more than five times as the rule clearly forbids.

¶ 51. And as a practical matter, even without attempting to define an “occasion” for which an out-of-state attorney must petition for pro hac vice admission, it is undebatable that the filing of a complaint initiates a law suit, and thus the “occasion” for which pro hac vice admission is sought. Indeed, this filing at least sets the “occasion” in motion. Since, however, the majority holds that the placement of a name, not a signature, but a name, on a pleading constitutes an “appearance,” an attorney seeking admission pro hac vice must petition for admission before filing an initial complaint so as to avoid making an illegal appearance before the court if, indeed, he wishes to enter the litigation at the outset. If, however, there is no complaint before the court, then there is no “occasion” for which to petition for admission. Requiring an attorney to file for admission pro hac vice before allowing him to present his name toward an “occasion” that does not yet exist is, quite literally, putting the cart before the horse.

¶ 52. Finally, the logic of holding one whose name appears on the pleadings without an according signature as having “appeared” before the court does not comport with the standard of certification required of the attorney whose signature does appear on the pleadings. It is thé signing lawyer who attests to the merit of the allegations in the complaint. It is the signing attorney, who by virtue of signing the pleading, certifies that to “the best of his knowledge, information, and belief, there is good ground to support” the allegations of the pleading or complaint. M.R.C.P 11. Are we now going to hold that a name on a pleading has the same meaning as the name whose signature appears on the pleading? This does not make sense.

¶ 53. Nor does it make sense that this Court affirms that Miller violated a court order because he “participated” in a deposition over which he had no control. This Court has stated that [a] contempt citation is proper when the eontemnor has willfully and deliberately ignored the order of the court. Brame v. State, 755 So.2d 1090, 1093 (Miss.2000) (quoting Cooper v. Keyes, 510 So.2d 518, 519 (Miss.1987) citing Millis v. State, 106 Miss. 131, 63 So. 344 (1913)). Here, there was no clear order by the trial court specifying the role and limitations of Miller’s attendance at the deposition. The law clerk told Miller the judge would allow him to attend the deposition but that he could not participate. Does keeping a record and writing down questions, the asking of which remain in the sole discretion of the lawyer conducting the deposition, constitute participation? Are we now saying paralegal assistants or a non designated expert cannot assist the attorney because making sure the attorney covers everything is “participating” in a deposition or trial? What is the difference? Williamson kept control of his deposition at all times. His discretion in examining the deponent remained with him, period, regardless of whether the notes and questions had fallen on the floor, or were passed to Williamson for purposes of suggestion.

¶ 54. Furthermore, the Court’s affirmation of contempt begs the question of whether general counsel for a foreign corporation or insurance company, who is not licensed to practice law in Mississippi, may advise and assist local counsel in the defense of claims? Never mind, for example, that it is common practice for corporations and insurance companies to require local counsel to accept advice from their general counsel and get their approval on all settlements. And never mind that “a commercial entity that serves interstate and/or international markets is likely to receive more effective and efficient representation when its general counsel, who is based close to its home office or headquarters and is familiar with the details of its operations, supervises the work of local counsel in each of the various jurisdictions in which it does business.” Fought & Co. v. Steel Eng’g & Erection, Inc., 87 Hawai’i 37, 951 P.2d 487, 497 (1998). If “practicing law” in Mississippi includes advising clients and advising local counsel, then these corporations and insurance companies will have to totally rely on the judgment and guidance of their associated local counsel.

¶ 55. Additionally, it is common practice of attorneys in Mississippi to hire jury consultants and other experts to help with trial preparation. Some experts even participate in depositions just by attending and taking notes in order to help counsel in establishing their case. Jury consultants also advise counsel on voir dire. Are these experts “practicing law” by participating, attending, and advising local counsel?

¶ 56. In the final analysis, it cannot be gainsaid, as other courts have recognized, that technology and society are moving and growing at such great speeds raising questions about where boundaries of law begin and end. “[T]he demands of business and the mobility of our society pose distinct problems in the regulation of the practice of law by the states.” Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1, 7 (1998). Courts are beginning to recognize that the legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity of a client to obtain the services of a lawyer of his choice in all matters including the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice. Id. See also Fought, 951 P.2d at 497. It is clear that often times it is necessary for foreign attorneys to become involved in Mississippi cases. These attorneys may be corporate counsel or specialized litigators. There participation is necessary to effectively assist parties in litigation.

¶ 57. Today, however, the Court foists a completely senseless — a radical — regulation upon the legal profession, which will ultimately hurt none other than the citizens of this state who have a right to counsel of their choice. Further, the Mississippi Bar Counsel appears to have its work cut out in policing the multi-national and regional firms as well as in house counsel for the corporations and insurance companies doing business in this state.

DIAZ, J., JOINS THIS OPINION.

      . M.R.A.P. 46(b)(6) provides in relevant part as follows:
      (6) Prohibition of Regular Practice of Law in Mississippi Under Pro Hac Vice Privilege. (i) General Prohibition. No foreign attorney shall appear as counsel pro hac vice before the Supreme Court or the Court of Appeals or any court or administrative agency of this state if the foreign attorney maintains an office within this state, or if the foreign attorney has engaged in the general practice of law in this state without being properly admitted and licensed to practice law in this state.
      (ii) General Practice Defined. Appearances as counsel pro hac vice before any court or administrative agency of this state on more than five (5) occasions in any 12 month period shall be deemed the general practice of law in this state, which may be lawfully performed only by an attorney properly admitted and in good standing as a member of the Mississippi Bar.

      . M.R.A.P. 46(b)(9) provides that "Any pleadings or other papers filed in violation of this rule shall be stricken from the record upon the motion of any party or by the court or administrative agency sua sponte.”

      . M.R.A.P. 46(b) provides in pertinent part as follows:
      (4) Informational Affidavit. A foreign attorney desiring to appear pro hac vice before any court or administrative agency of this state shall file with subject court or administrative agency a sworn affidavit. Such affidavit shall be filed not later than the first occasion on which the foreign attorney files any pleading or other paper in the case or appears personally before the court or administrative agency.... The sworn affidavit shall contain the following information:
      i. the name of the court or administrative agency before which the foreign attorney desires to appear as counsel pro hac vice;
      ii. the style of the matter in which the foreign attorney desires to appear;
      iii. the full name, residence address, and office address of the foreign attorney;
      iv. each jurisdiction in which the foreign attorney has been admitted and the date of admission; v. a statement that the foreign attorney is currently licensed in good standing to practice law in each jurisdiction in which the foreign attorney has been admitted or, if the foreign attorney is not currently licensed in good standing to practice law in any jurisdiction in which the foreign attorney has previously been admitted, a full explanation of circumstances;
      vi. a statement that the foreign attorney is not currently suspended or disbarred by any jurisdiction in which the foreign attorney has been admitted;
      vii. a statement of whether or not the foreign attorney has been the subject of disciplinary action by the bar or courts of any jurisdiction during the preceding five (5) years, and if so, a full explanation of circumstances;
      viii. the style of each cause, including the name of the court or administrative agency, in which the foreign attorney has appeared pro hac vice within this state within the immediately preceding 12 months;
      (6) Prohibition of Regular Practice of Law in Mississippi Under Pro Hac Vice Privilege. i. General Prohibition. No foreign attorney shall appear as counsel pro hac vice before the Supreme Court or the Court of Appeals or any court or administrative agency of this state if the foreign attorney maintains an office within this state, or if the foreign attorney has engaged in the general practice of law in this state without being properly admitted and licensed to practice law in this state.
      ii. General Practice Defined. Appearances as counsel pro hac vice before any court or administrative agency of this state on more than five (5) occasions in any 12 month period shall be deemed the general practice of law in this state, which may be lawfully performed only by an attorney properly admitted and in good standing as a member of the Mississippi Bar.

      . Miller had flown down from Virginia the night before on the assumption that the motion for admission pro hac vice would be granted.

      . Actually, two judgments of contempt were entered. The first one, which was entered on November 29, 2000, barred Miller from the practice of law in the Fourth Circuit Judicial District. However, this judgment was rescinded and a second one entered on December 8, 2000. The circuit court did not bar Miller from practicing law in the Fourth District in the second judgment.

      . Upon request by the Court pursuant to M.R.C.P. 29, briefs were submitted by the Mississippi Trial Lawyers Association, the Magnolia Bar Association, The Mississippi Bar, and the Mississippi Prosecutors Association.

      . Heirs and Wrongful Death Beneficiaries of Eddie Bryant, Jr. v. Nosratollah Ghaemma-ghami, M.D., and RCG of Mississippi, Inc. d/b/aKidney Care, Inc., No. 251-98-651-CIV, Hinds County Circuit Court.


author: WALLER, J.,

text:
    LEE COUNTY, Mississippi and Lee County Emergency Communication District v. Kermit DAVIS and Nancy Davis.
    No. 2001-IA-00636-SCT.
    Supreme Court of Mississippi.
    Jan. 9, 2003.
    Rehearing Denied Feb. 27, 2003.
    Gregory M. Hunsucker, William M. Beasley, Tupelo, attorneys for appellants.
    Duncan L. Lott, Bonneville, attorney for appellees.
   WALLER, J.,

for the Court.

¶ 1. This interlocutory appeal concerns the liability of Lee County and the Lee County Emergency Communication District (collectively “Lee County”) for property damage resulting from a failure to notify police of a suspected burglary in a timely manner. We find Lee County to be immune under the Mississippi Tort Claims Act, Miss.Code Ann. §§ 11A16-1 to -28 (2002), and reverse and render.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the early morning hours of June 13, 1998, Kenneth Baker, a neighbor of plaintiffs Kermit and Nancy Davis, noticed a white sedan pull into the driveway of the Davis residence, three men exit the vehicle, and the sedan leave the scene. At the time, the Davises were vacationing in Florida. Baker called 911 to report the incident, but the police never responded. Fifteen minutes later, the white sedan returned to the Davis residence, and the three men got into it and left. Baker called 911 again, and yet again the police failed to respond. It was not until Baker made a third call to 911 and some 80 minutes after the first call that the Tupelo Police Department responded. The officers determined that the Davis residence had been burglarized and many valuable items stolen.

¶ 3. The Davises sued Lee County for damages alleging that it is a political subdivision of the State of Mississippi and charging it with negligence and reckless disregard for failing to respond timely to an emergency call. The trial court denied Lee County’s motion to dismiss and motion for a certificate for interlocutory appeal. We subsequently granted Lee County’s petition for interlocutory appeal. See Miss. R.App. P. 5.

STANDARD OF REVIEW

¶ 4. We employ a de novo standard when reviewing questions of law, including those questions concerning the application of the Mississippi Tort Claims Act. Maldonado v. Kelly, 768 So.2d 906, 908 (Miss. 2000) (citing City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)).

DISCUSSION

¶ 5. The dispositive issue in this case is whether Lee County is liable to the Davises for property damage they sustained when their house was burglarized while they were on vacation, and the police were not notified to respond in a timely manner.

¶ 6. The Legislature enacted the Emergency Telephone Service (911) Law, Miss. Code Ann. §§ 19-5-301 to -317 (1995 & Supp.2002), to improve emergency. response time to requests for emergency services:

The Legislature finds and declares it to be in the public interest to reduce the time required for a citizen to request and receive emergency aid, and to raise the level of competence of local public safety and 911 telecommunicators by establishing a minimum standard of training and certification for personnel involved in the answering and dispatching of calls to law enforcement, fire and emergency medical services.

Id. § 19-5-301.

¶ 7. The malfeasance about which the Davises complain was that of the Lee County 911 dispatcher’s failure to send law enforcement to their home until after Baker’s third call. A dispatcher is a “telecom-municator” within the meaning of the 911 statute and is defined as

any person engaged in or employed as a telecommunications operator by any public safety, fire or emergency medical agency whose primary responsibility is the receipt or processing of calls for emergency services provided by public safety, fire or emergency medical agencies or the dispatching of emergency services provided by public safety, fire or emergency medical agencies and who receives or disseminates information relative to emergency assistance by telephone or radio.

Id. § 19-5-303(n) (emphasis added).

¶ 8. While the Davises are correct that Miss.Code Ann. § 11 — 46—9(l)(c) does not expressly refer to 911 services, it cannot be said that such services do not relate to police and fire protection. A plain reading of this statute indicates that the activities of telecommunicators are covered by the police and fire protection exemption of Miss.Code Ann. § 11 — 46—9(l)(c) which provides an exemption from liability for any claim “relating to police or fire protection” absent reckless disregard:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

(emphasis added). Telecommunicators process emergency calls from the public and dispatch police and fire personnel in response. They are trained and certified by the state and are, after all, in the employ of public safety, fire or emergency medical agencies. See Miss.Code Ann. § 19-5-303(n). Not only does a telecom-municator’s job relate to police and fire protection, it is an integral link to police and fire services.

¶ 9. A 911 telecommunicator is not a “service supplier” under the Emergency Telephone Service (911) Law. The limitation of liability contained in Miss.Code Ann. § 19-5-361 applies to “service suppliers” and their employees. Miss.Code Ann. § 19-5-303(d) defines “service supplier” as “any person providing exchange telephone service, cellular telephone service or personal communications service to any service user throughout the county.” This entity provides the Miss.Code Ann. § 19-5-303(a) “exchange access facilities” and is, in other words, the phone company. The service supplier is obviously not liable in this case, for there is no allegation the 911 system itself failed to operate as intended.

¶ 10. The “reckless disregard” exception to Miss.Code Ann. § 11^16-9(l)(c) as quoted above is not applicable in this case. Clearly, Miss.Code Ann. § ll-46-9(l)(c) requires a reckless disregard for the safety and well-being of any person. The Davises’ argument that “[wjhether or not appellee sustained physical injury is immaterial as they did sustain loss of property and mental pain and anguish associated with the burglary of their home and theft of their property” is not persuasive given the clear and unambiguous language of Miss.Code Ann. § 11 — 46—9(l)(c). At no time have we held the “reckless disregard” exception to apply in cases involving only loss of property, and we decline to do so now. All prior cases discussing the “reckless disregard” exception have involved personal injury. See, e.g., Liggans v. Coa-homa County Sheriffs Dep’t, 823 So.2d 1152 (Miss.2002) (finding “reckless disregard” exception did not apply to case in which arrestee fell from top bunk bed in county jail); Maldonado v. Kelly, 768 So.2d 906 (Miss.2000) (finding deputy sheriffs actions did not amount to “reckless disregard” when his vehicle struck and injured plaintiff); Turner v. City of Rule-ville, 735 So.2d 226 (Miss.1999) (defining Miss.Code Ann. § ll-46-9(l)(c) in an action for injuries sustained when police officer, who had previously stopped drunk driver, intentionally allowed driver to continue driving).

¶ 11. It simply would not be practical to hold a 911 District liable for damages sustained as a result of a telecommunicator’s delay in dispatching police and fire personnel and the only damage sustained was to property. If we were to sanction such actions, the courts would be entertaining suits alleging that police and/or fire protection did not respond fast enough to an emergency. The Legislature surely did not intend for the courts to develop a stopwatch test or to make a 911 District a property insurer when it enacted the Emergency Telephone Service (911) Law. If the Legislature intends to include property damage an amendment would be necessary, for the plain language of Miss.Code Ann. § ll^t6-9(l)(c) lends itself to no legislative intent for judicial development.

CONCLUSION

¶ 12. We find that Lee County and the Lee County Emergency Communication District are immune to the Davises’ suit to collect for property damage and loss due to the alleged tardy notification of police. The Lee County Circuit Court should have granted their motion to dismiss. Therefore, we reverse the circuit court’s order denying the motion to dismiss, and we render judgment here dismissing the Davises’ complaint with prejudice.

¶ 13. REVERSED AND RENDERED.

PITTMAN, C.J., SMITH, P.J., COBB, EASLEY AND CARLSON, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. McRAE, P.J., AND GRAVES, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . The Tupelo Police Department was the law enforcement agency with jurisdiction in this case, though their involvement is not at issue. However, as most cases define "law enforcement” as "police,” to avoid confusion we will refer to them as "police.”

      . Miss.Code Ann. § 19-5-353.

      . See Jay M. Zitter, Annotation, Liability for Failure of Police Response to Emergency Call, 39 A.L.R.4th 691 (1985), for an annotation of cases addressing the liability of police for failing to respond or delaying in their response to an emergency call.


author: McRAE, P.J.,

text:
    D.J. KOENIG & ASSOCIATES, INC. v. MISSISSIPPI STATE TAX COMMISSION.
    No. 2001-CC-01087-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2003.

      Sheldon G. Alston, Alex A. Alston, Jr., Jackson, attorneys for appellant.
    Jeffrey Johns Little, Gary Wood Stringer, Bobby R. Long, Jackson, attorneys for appellee.
    Before McRAE, P.J., COBB and GRAVES, JJ.
   McRAE, P.J.,

for the Court.

¶ 1. After two hearings before the Alcoholic Beverage Control (ABC) Division of the Mississippi State Tax Commission, the solicitor’s permit of D.J. Koenig & Associates, Inc. was suspended for one month. The Madison County Chancery Court ultimately affirmed the suspension. Koenig appeals to this Court arguing that the Commission had no authority to suspend its permit, the evidence was not clear and convincing, proper notification of the charges was not received, the Commission improperly amended the indictment, and the penalties assessed were inappropriate.

¶ 2. We find that Koenig acted in total derogation of the authority granted to the ABC pursuant to Miss.Code Ann. § 67-1-37(b) by defying the cease and desist letter and continuing to sell the items in question. For this reason, we affirm the chancery court.

FACTS

¶ 3. Laquita Koenig, 49% owner of D.J. Koenig & Associates, Inc. (“Koenig”), and her son, Bill Hawks, the general manager of Koenig, solicited orders of and sold to Mississippi package retailers items such as cherries, olives, beans, wine re-corkers, and flasks. Dave Koenig, 51% owner of Koenig, testified that the items were sold under the assumption that they were considered mixers pursuant to ABC Regulation No. 54. After learning of these sales, the ABC Division of the Commission (“the ABC”) sent a cease and desist letter to Koenig on August 17, 2000, informing it that items, including, but not limited to, cherries, olives, wine re-corkers and flasks, are not salable by package retailers and that ABC Regulation No. 54 requires ABC approval of such items prior to sale. Documents and testimony induced from Dave Koenig indicated that Koenig continued to sell the items after receiving the cease and desist letter from the ABC because Koenig had decided for itself that the cherries, olives and beans were mixers and were legal because other stores had been selling them for some time with no objection from the ABC. On September 6, 2000, Koenig was notified by certified mail that a hearing would take place on November 1, 2000. On September 13, 2000, Koenig was notified by certified mail that the hearing was changed to November 15, 2000.

¶ 4. The hearing letter stated that a determination would be made as to whether Koenig violated (1) ABC Regulation No. 54; (2) Miss.Code Ann. § 67-l-57(a) by compromising the trust reposed in him by misleading and/or encouraging the sales contrary to Miss.Code Ann. § 67-51-l(b) and Regulation No. 54; and (3) Miss.Code Ann. § 67-51-l(a) based on Koenig’s prior conduct. As to the prior conduct, the hearing letter noted incidents occurring in 1997 and 1995. In 1997, Koenig sold a non-alcoholic wine based product to package retailers without first obtaining written permission, seemingly in violation of Regulation No. 54. According to the ABC, Koenig received a warning and was placed on notice that the regulation required written approval prior to selling non-alcoholic products to package stores. In 1995, Koe-nig was found in violation of ABC Regulation No. 33 and was fined for failing to file timely reports of distribution samples and for failing to follow proper procedures for shipment and labeling of sample distributions. The hearing letter noted that the items at issue included, but were not limited to, cherries, olives and beans. On November 9, 2000, a letter was sent to Koenig confirming a conversation the day before in which Koenig was informed that the sale of flasks would be discussed at the hearing.

November 15, 2000, Commission hearing

¶ 5. The Commission found that from May to August of 2000, Koenig sold cherries, olives, beans, and flasks to package retailers in violation of Miss.Code Ann. § 67 — 1—51(b) and ABC Regulation 54. The Commission further found that Koe-nig misrepresented to package stores that these items were authorized as “mixers” pursuant to § 67 — 1—57(b). The Commission’s order stated that Koenig was aware of the regulatory procedure for obtaining prior approval of items for sale in package stores and that Koenig had previously indicated an unwillingness to follow proper procedures. The Commission concluded that Mr. Koenig violated Miss.Code Ann. § 67-l~57(a) by compromising the trust reposed in him through repeated disregard of the alcoholic beverage laws and regulations.

¶ 6. The Commission ordered suspension of Koenig’s permit for one month and probation for one year. Koenig was also prohibited from receiving remuneration from any company for sales made during the suspension period and from having any contact with any permittee, manufacturer or wholesaler doing business in Mississippi. Koenig timely appealed the Commission’s order to the Chancery Court of Madison County.

Appeal to Madison County Chancery Court

¶ 7. Chancellor Lutz reversed and remanded the case finding that Regulation No. 54 applies to package retailers not solicitors and was improperly applied to Koenig, that the trust reposed language in § 67-1-57 applies to those seeking to qualify for a permit, and that the Commission exceeded its authority by applying Regulation No. 54 to Koenig because it only grants the Commission the power to revoke or suspend a retailer’s permit, not a solicitor’s permit. The Chancellor also noted that the Commission contended at the administrative hearing at the chancery court appeal that Koenig solicited retailers to sell flasks but that charge was not included in the indictment against Koenig and was objected to at the administrative hearing. The Chancellor held that since the action is penal in nature, the Commission erred in allowing the amendment of the indictment at trial.

¶ 8. Further, the Chancellor found that the evidence was not sufficient to support the finding that Koenig violated the trust reposed in it. Specifically, the Commission produced one witness that stated that Mrs. Koenig said the ABC authorized the sale of cherries, olives and beans. The only other witness stated that Mrs. Koenig told him the items were mixers, not that they were legal or had been approved by the ABC. Koenig produced 84 affidavits and several witnesses from package retailers throughout Mississippi who stated that Koenig did not represent that the items were legal to sell. Koenig also presented witnesses who testified to its reputation and fitness for the trust reposed in it as a solicitor.

¶ 9. The Chancellor further agreed that Koenig did not have to prove that cherries, olives, and spiced beans are “mixers” under Regulation No. 54 and that the Commission “altered the previous definition of mixers found in Regulation No. 54 and applied it in a post hoc manner.” Chancellor Lutz noted that this Court has stated, “[ajmbiguities in a regulation should be construed against the agency where the agency seeks to apply its interpretation on a post hoc basis and the regulated party has already adopted and abided by a reasonable interpretation.” State v. Beebe, 687 So.2d 702, 707 (Miss.1996).

¶ 10. After reviewing all of the applicable laws, the evidence and the testimony, the Chancellor found that the Commission exceeded its authority and abused its discretion in suspending the solicitor’s permit. He also found that the Commission only has the express authority to grant, and by the same token to deny, a solicitor from acting as a salesman, soliciting orders, and promoting products, and therefore the Commission’s order exceeded its authority in barring Koenig from contacting alcoholic beverage permittees, wholesalers, or manufacturers. Miss.Code Ann. § 67-1-51(d).

On remand to the Commission

¶ 11. After Chancellor Lutz’s order was filed, the Commission issued a certified letter to Koenig on February 15, 2001, informing it of a hearing set for March 15, 2001. The hearing was changed to April 2, 2001. The additional charge of lack of control of Koenig’s employees in violation of Regulation No. 31 was raised and flasks, pourers, wine stoppers, wine preservers, shot glasses and sure-shots were added to the list of items which are illegal to sell to package retailers. The time period of the violations was also extended from June to August of 2000 to May to September of 2000. The Commission ultimately found Koenig in violation of all charges and again ordered a one-month suspension, one-year probation, and no remuneration from any company for sales made during the suspension period. The Commission also ordered the ABC to notify all manufacturers and wholesalers represented by Koenig and all other permittees of the decision and penalties imposed.

Second Appeal to the Madison County Chancery Court

¶ 12. Chancellor Lutz affirmed the Commission’s second order dated April 4, 2001. The Chancellor opined that the Commission properly framed the violation in the context of Miss.Code Ann. § 67-1-37 and that the evidence and testimony at the second hearing established the allegations. Additional witnesses, including Dave Koenig’s secretary, provided testimony showing Mrs. Koenig’s misrepresentations to package retailers. The Chancellor found that the evidence and testimony presented established sufficient cause to support the suspension. Koenig filed a motion to alter or amend the judgment which was denied. Koenig timely appealed to this Court.

DISCUSSION

¶ 13. Our review of decisions rendered by the Mississippi State Tax Commission is limited to whether the administrative agency’s decision was supported by substantial evidence, was arbitrary or capricious, was an abuse of the agency’s discretion or was a violation of a constitutional or statutory right. Miss. State Tax Comm’n v. Jenkins, 624 So.2d 91, 92 (Miss.1993); Miss. State Tax Comm’n v. Package Store, Inc., 208 So.2d 46 (Miss.1968). We will not substitute this Court’s judgment for that of the agency when the findings are supported by substantial evidence. State Bd. of Psychological Examiners v. Coxe, 355 So.2d 669, 671 (Miss.1978). The Commission cross-appealed. However, because we have addressed its issues in the direct appeal we will not separately discuss it.

I. WHETHER THE COMMISSION HAS AUTHORITY TO PENALIZE KOENIG FOR THE ALLEGED ACTIONS.

¶ 14. The Alcoholic Beverage Control Division (“ABC”) is a division of the Mississippi State Tax Commission (“Commission”). The Commission is the exclusive wholesaler for alcoholic beverages in Mississippi. Miss.Code Ann. § 67-1-41. The Legislature has prescribed various permits for alcoholic beverage related businesses. In order to sell unopened alcoholic beverages, not to be consumed on the premises, in a store at retail, a package retailer’s permit must be obtained. Id. § 67-1-51(b). Liquor manufacturers or producers send sales persons to retail stores to promote their brands and convince the retailers to carry their products. This practice requires a solicitor’s permit. Id. § 67-1-51(d). Koenig has had a solicitor’s permit since 1982.

¶ 15. The Commission has the power and duty

[t]o revoke, suspend or cancel, for violation of or noncompliance with the provisions of this chapter or the law the production and sale of native wines, or any lawful rules and regulations of the commission issued hereunder, or for sufficient cause, any permit issued by it under the provisions of this chapter.

Id. § 67-l-37(b).

Before a permit is issued the commission shall satisfy itself ... that ... each of its principal officers and directors, is of good moral character and, in addition, enjoys a reputation of being a peaceable, law abiding citizen of the community in which he resides, and is generally fit for the trust to be reposed in him ...

Id. § 67-l-57(a) (emphasis added).

¶ 16. The Commission submitted in its second order that if the permittee fails to maintain the qualifications set forth in § 67-l-57(a), the Commission is authorized to revoke, suspend or cancel the permit pursuant to § 67-l-37(b) which was the Commission’s original stated basis for the suspension of Koenig’s permit. Koenig argues that the “trust reposed” language of § 67-l-57(a) applies to those applying for a permit. The Chancellor noted this argument in his order and held that this section did not apply to Koenig’s actions at issue. The statute is clear; it begins with the phrase, “[bjefore a permit is issued.” Additionally, no other provision of the Code states that § 67-l-57(a) applies to maintaining the permit. It only states that it applies to seeking a permit. That is not to say that a permittee is no longer accountable for his actions, but the actions at issue here do not fall under that statutory section.

¶ 17. Koenig also argues that the Commission stated no violation of law or regulation of which Koenig was guilty and that to suspend Koenig’s permit under the “sufficient cause” language of § 67-l-37(b) is unconstitutional. Legislative power may not be “vested with an arbitrary and uncontrolled discretion.” State v. Allstate Ins. Co., 231 Miss. 869, 882, 97 So.2d 372, 375 (1957). The Chancellor affirmed the suspension on this basis in the second appeal. This argument requires a closer look.

¶ 18. The Commission argues that Koenig violated the trust reposed as set forth in § 67-l-57(a) and was, therefore, subject to suspension under § 67—1—37(b). As noted above, we find that § 67-l-57(a) does not apply to the actions at issue here. Therefore, the question is, can Koenig be suspended under § 67-l-37(b) alone? We find that the “sufficient cause” language within the statute is an express grant of power that does not give arbitrary or capricious discretion to the Commission.

¶ 19. We have stated “that government agencies have only such powers that are expressly granted to them, or necessarily implied in their grant of authority. Any acts which are not so authorized are void.” Farrish Gravel Co. v. Miss. State Highway Comm’n, 458 So.2d 1066, 1068 (Miss.1984) (citing Strong v. Bostick, 420 So.2d 1356 (Miss.1982); Golding v. Salter, 234 Miss. 567, 107 So.2d 348 (1958)). The Mississippi Legislature has been adamant about the strict controls over alcoholic beverage sales and consumption. The intention of the Legislature has been to maintain that strictness of controls via the Commission and its ABC division. The Legislature gave an express grant of power to the Commission to suspend, revoke or cancel permits. We find that the Legislature intended for that power to extend to actions for which the Legislature could not or did not account in drafting the statute. The Commission is given authority under § 67-1-37 to revoke, suspend or cancel a permit for either non-compliance or for other sufficient cause.

¶ 20. Therefore, as long as there was sufficient evidence before the Commission to suspend the permit, we will not disturb that finding. The Chancellor has twice reviewed the evidence and ultimately ruled that there was sufficient evidence. Upon our own review of the evidence in the record, we agree that there was sufficient evidence under § 67—1—37(b) to support a suspension of Koenig’s permit.

¶ 21. The record contains testimony and affidavits supporting both sides. The Commission and the Chancellor found the evidence against Koenig, specifically the witness testimony as to the misrepresentations by Mrs. Koenig, to be convincing. Most importantly, even after the cease and desist letter was sent, Koenig continued to sell the items even after the ABC put it on notice that they were not proper items to sell. Koenig totally disregarded the authority and power of the ABC. Koenig is not new to dealing with the ABC or its regulations. Koenig has pushed the envelope in the past. As noted previously, Koe-nig was in a situation quite similar to the instant case in 1997. While Koenig was not found to be in violation of any regulations at that time, it was put on notice as to the proper procedures to follow. The 1997 matter dealt with Regulation No. 54, the same one at issue here. Regulation No.54 clearly states that

[a]ny questions regarding the permissibility of products intended for sale by package retailers governed by this regulation should be submitted, in writing, to the Director of the Alcoholic Beverage Control Division.

ABC Reg. No. 54. Koenig did not do this. Moreover, Dave Koenig testified that he and his employees had discussed the sale of cherries, olives and beans and had determined for themselves that they were legal. A red flag should have gone up, especially in light of the previous dealings with the ABC, that this was not the proper way to proceed. At the minimum, Koenig should have followed the mandate given in the cease and desist letter until further review was had. For this reason, we affirm the Chancellor. We And a detailed analysis of Regulation No. 54 at this time to be unnecessary.

¶ 22. Koenig also asserts that ABC Regulation No. 31 does not apply to it in this action. Regulation No. 31 states as follows:

The manufacturer’s registered representative shall be held responsible for all activities, including the personal conduct, of all employees of the manufacturer in connection with the representation of their business in this state. Every employee or representative of a manufacturer shall observe state laws and the rules and regulations of the Alcoholic Beverage Control Division of the State Tax Commission.

Alcoholic Beverage Control Div., Reg. No. 31 (emphasis added). The Commission charged Koenig with failure to maintain responsibility over the personal conduct of its employees by permitting them to solicit orders for and to sell said items. Regulation No. 31 is directed at the employees of the manufacturer, not at a solicitor’s employees. Our common law pertaining to agency deals sufficiently with the responsibility Koenig has with regard to his employees and obviously is not at issue here as it is the actions of the employees of Koenig that are at issue. Those actions, in this case, are imputed to the employer. Koenig has admitted responsibility for the actions of its employees. Therefore, this issue is without merit.

II. WHETHER KOENIG WAS PROPERLY NOTIFIED OF THE VIOLATIONS CHARGED AGAINST IT PRIOR TO THE HEARING.

¶ 23. Koenig argues that it was never notified that it was being charged under the specific portion of the Miss.Code Ann. § 67 — 1—37(b) relating to “other sufficient cause” and that this section of the statute was not mentioned until the Commission filed its second appellee’s brief with the chancery court. Koenig cites In re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), for the proposition that procedural due process is not afforded if a charge becomes known after a proceeding has commenced. The charges in In re Ruffalo were amended after testimony was given in direct relation to that testimony. Id. Koenig makes no comparable analogy in this case. Even still, this argument is without merit.

¶ 24. Administrative agencies must afford minimal due process consisting of notice and an opportunity to be heard. State Oil & Gas Bd. v. McGowan, 542 So.2d 244, 246 (Miss.1989) (collecting authorities). Koenig was given both. The specific statute was not mentioned in the hearing letters, only violations of § 67-1-51(a) and (b), and Regulation Nos. 31 and 54. However, § 67-1-37 was discussed in the first hearing, and this put Koenig on notice that it was at issue in the second hearing. Sufficient grounds were stated for the charges brought against Koenig, especially in light of the content of § 67-1-37, which merely states the powers and duties of the Commission, not a specific charge against a permittee.

1125. Koenig further complains that it was not notified that items sold after the cease and desist order would be at issue. This assertion defies all common sense. Of course, any items sold after warning was issued will be targeted and rightfully so.

III. WHETHER THE COMMISSION INAPPROPRIATELY AMENDED THE INDICTMENT AGAINST KOENIG.

¶ 26. Koenig contends that the Commission amended the indictment against it after the case was remanded from chancery court and that it was required to defend against a moving target. The Commission sent a second letter notifying Koenig of the second hearing and the determinations that the Commission would make. As noted previously, additional charges were made, and some were clarified. Koenig claims that this is a violation of Uniform Circuit and County Court Rule 7.09 which states that “[a]ll indictments may be amended as to form but not as to the substance of the offense charged.” Koenig cites no case law that would make this Rule applicable to an administrative hearing. Further, the letters issued are not “indictments.” They are notifications of the charges to be determined by an administrative agency. Due process was afforded pursuant to Miss.Code Ann. § 67-1-37 via notice and an opportunity to be heard. This issue is without merit.

IV. WHETHER THE PENALTY ASSESSED IS APPROPRIATE FOR THE VIOLATIONS ALLEGED.

¶ 27. Koenig argues that the actions do not endanger the public and that the one-month suspension is too harsh and may put it out of business. Koenig states that package stores are usually only suspended for one week for selling to minors, an act which endangers the minors and the public. Koenig also states that a package store which was selling the items Koenig sold to it is not being suspended because the Commission found no intent to violate the regulations. Since no intent to violate the regulations was shown, Koenig contends that the punishment is arbitrary and capricious and should be voided. However, Koenig cites no legal authority supporting any of these contentions.

¶ 28. The Commission notes that Koenig’s permit could have been revoked altogether and that the actions taken could have caused serious repercussions to the package stores involved. The Commission is given broad discretion concerning its powers and duties over alcoholic beverage permits. Miss. State Tax Comm’n v. Moore, 209 So.2d 832, 835 (Miss.1968). With no legal authority to support its arguments and with due regard for the broad discretion given to the Commission in matters of this nature, the one-month suspension and one-year probation will not be disturbed. If this were merely a case of a solicitor pushing the boundaries of the regulations, the outcome might be different. However, Mrs. Koenig and other employees clearly made independent decisions about what to sell and made false representations to package dealers. For those reasons, the penalty stands.

CONCLUSION

¶29. We find that Miss.Code Ann. § 67 — 1—37(b) grants the Commission the power to suspend Koenig’s permit. Further, we find that the evidence was sufficient to support the finding and that the Chancellor’s review of the case is sound. The one-month suspension and one-year probation are upheld as being within the sound discretion of the Commission. The Chancellor was correct in his findings regarding remuneration and is hereby affirmed on that issue as well. The Chancery Court’s judgment is affirmed.

¶ 30. AFFIRMED ON DIRECT AND CROSS-APPEAL.

PITTMAN, C.J., WALLER, COBB, EASLEY AND CARLSON, JJ., CONCUR. SMITH, P.J., AND GRAVES, J., CONCUR IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.

      . Although the Chancellor inadvertently stated that he “reversed and rendered” regarding the remuneration issue, it is clear from the record that he and the Commission both agreed that Koenig should receive no remuneration for sales made during the suspension month.


text:
    Rheuvonia BUCK v. STATE of Mississippi.
    No. 2001-CT-00345-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2003.

      James L. Penley, Jr., Vicksburg, attorney for appellant.
    Office of the Attorney General by: Charles W. Maris, attorney for appellee.
   ON WRIT OF CERTIORARI

WALLER, J.,

for the Court.

¶ 1. We granted certiorari in this post-conviction relief case to address the issue of whether Rheuvonia Buck’s drug case was properly transferred from youth court to circuit court. The Court of Appeals affirmed the Warren County Circuit Court’s denial of Buck’s motion for post-conviction relief. Finding that Buck’s case was improperly transferred, we reverse and remand. However, we affirm the Court of Appeals’ finding of no ineffective assistance of counsel by Buck’s previous representatives.

FACTS AND PROCEDURAL HISTORY

¶2. Rheuvonia Buck was arrested for two counts of sale of cocaine to an undercover informant. At the time, she was sixteen years old. At another proceeding in Warren County Youth Court involving other members of her family, Buck and her mother requested that she be certified as an adult. The following exchange took place before the youth court:

Mr. Bonner [Buck’s attorney]: Your Honor, this is R.B., who has been charged with the sale of cocaine. She is a child from this household, but she is not listed in this petition. She’s before this Court to be certified as an adult today, and I was going to point out to the Court, that she’s not a party to this particular cause number.
The Court: All right. Do you have any objection to her being certified as an adult?
Mr. Bonner: Your Honor, I have advised her not to seek certification. She has indicated and her mother has indicated to me that it is her wish to be certified as an adult against my advice and best wishes, but that’s what she wants to do.
The Court: You understand what you’re doing? You’ve been explained this?
R.B.: Yes, sir.
The Court: You’ve been to training school before, haven’t you?
R.B.: Yes, sir.
The Court: How many times?
R.B.: Two.

The youth court thereafter accepted Buck’s request to be certified as an adult, ordered her confined in an adult facility, and imposed a $25,000 bond.

¶ 3. In circuit court and with different counsel, Buck entered an open plea to one count of sale of cocaine; the second count having been dismissed by the State. The court informed Buck that she was entering an open plea and that he could give her the maximum sentence. After an exhaustive inquiry to determine Buck’s understanding of what she was doing and being satisfied that she did understand, the court sentenced her to ten years’ imprisonment, with five years suspended.

¶ 4. On October 11, 2000, Buck filed a motion for post-conviction relief. She was represented by yet another attorney. The motion argued a failure of statutory procedure since no motion to transfer had been filed, neither she nor her mother understood the ramifications of being transferred, the youth court failed to find no reasonable prospects of rehabilitation within the juvenile justice system, and ineffective assistance of counsel. The circuit court denied Buck’s motion, finding that Buck’s guilty plea had been voluntary and that the youth court had substantially complied with statutory requirements before allowing transfer to circuit court.

¶ 5. Buck appealed, and a divided Court of Appeals affirmed, finding no ineffective assistance of counsel, but not addressing the assigned error of the youth court’s failure to follow statutory requirements for transfer of a case. Buck v. State, — So.2d -, 2002 WL 1278063 (Miss.Ct.App.2002). Presiding Judge Southwick dissented without opinion. Three additional judges, Presiding Judge King and Judges Lee and Irving, dissented, stating that Buck’s counsel’s raising the issue of transfer to circuit court was constitutionally ineffective assistance of counsel that was “akin to a confession of guilt....” Id. at *4. We granted certiorari thereafter. Since the issue of transfer is, in our opinion, central to the resolution of this case, we will address it.

STANDARD OF REVIEW

¶ 6. In reviewing a trial court’s decision to deny a defendant’s petition for post-conviction relief, we will not disturb the court’s findings of fact unless clearly erroneous; however, we apply the de novo standard to questions of law. Harris v. State, W1 So.2d 195, 197 (Miss.2000); Pickett v. State, 751 So.2d 1031, 1032 (Miss.1999).

DISCUSSION

I. WHETHER JURISDICTION WAS PROPERLY TRANSFERRED FROM YOUTH COURT TO CIRCUIT COURT.

¶ 7. Buck argues that the Warren County Youth Court’s improper transfer of jurisdiction under Miss.Code Ann. § 43-21-157 (2000) failed to confer authority in the circuit court to act in her case. The State responds that, while procedurally irregular, the transfer order was sufficient to transfer jurisdiction to circuit court.

¶ 8. Section 43-21-157 establishes an elaborate procedure to be followed in transferring jurisdiction from youth court to another court and states in pertinent part:

(1) If a child who has reached his thirteenth birthday is charged by petition to be a delinquent child, the youth court, either on motion of the youth court prosecutor or on the youth court’s own motion, after a hearing as hereinafter provided, may, in its discretion, transfer jurisdiction of the alleged offense described in the petition or a lesser included offense to the criminal court which would have trial jurisdiction of such offense if committed by an adult. The child shall be represented by counsel in transfer proceedings.
(2) A motion to transfer shall be filed on a day prior to the date set for the adjudicatory hearing but not more that ten (10) days after the filing of the petition. The youth court may order a transfer study at any time after the motion to transfer is filed. The transfer study and any other social record which the youth court will consider at the transfer hearing shall be made available to the child’s counsel prior to the hearing. Summons shall be served in the same manner as other summons under this chapter with a copy of the motion to transfer and the petition attached thereto.
(3) The transfer hearing shall be bifurcated. At the transfer hearing, the youth court shall first determine whether probable cause exists to believe that the child committed the alleged offense. For the purpose of the transfer hearing only, the child may, with the assistance of counsel, waive the determination of probable cause.
(4) Upon such a finding of probable cause, the youth court may transfer jurisdiction of the alleged offense and the youth if the youth court finds by clear and convincing evidence that there are no reasonable prospects of rehabilitation within the juvenile justice system.
(5) [Fourteen factors to be considered in determining reasonable prospects of rehabilitation are listed here.]
(6) If the youth court transfers jurisdiction of the alleged offense to a criminal court, the youth court shall enter a transfer order containing:
(a) Facts showing that the youth court had jurisdiction of the cause and of the parties;
(b) Facts showing that the child was represented by counsel;
(c) Facts showing that the hearing was held in the presence of the child and his counsel;
(d) A recital of the findings of probable cause and the facts and reasons underlying the youth court’s decision to transfer jurisdiction of the alleged offense;
(e) The conditions of custody or release of the child pending criminal court proceedings, including bail or recognizance as the case may justify, as well as a designation of the custodian for the time being; and
■ (f) A designation of the alleged offense transferred and of the court to which the transfer is made and a direction to the clerk to forward for filing in such court a certified copy of the transfer order of the youth court,
(emphasis added).

¶ 9. In the instant case, the transfer was not initiated on motion of the youth court prosecutor or on the youth court’s own motion, but it was brought up by counsel in another related case. Contrary to clear statutory requirements, there was no bifurcated transfer hearing held, and the transfer order does not contain the requisite findings of probable cause. The State, however, responds that Buck waived the above-quoted statutory procedure by requesting that she be certified as an adult and transferred to circuit court.

¶ 10. The very purpose of the Youth Court Law is to preclude allowing Buck to do what she did. A youth court is a division of a county court if the county has a county court, or a division of a chancery court. Miss.Code Ann. § 43-21-107. As such, “No proceeding by the youth court in cases involving children shall be a criminal proceeding but shall be entirely of a civil nature.” (emphasis added). The Legislature’s goal in creating the youth court was one of rehabilitation:

This chapter shall be liberally construed to the end that each child coming within the jurisdiction of the youth court shall become a responsible, accountable and productive citizen, and that each such child shall receive such care, guidance and control, preferably in such child’s own home as is conducive toward that end and is in the state’s and the child’s best interest. It is the public policy of this state that the parents of each child shall be primarily responsible for the care, support, education and welfare of such children; however, when it is necessary that a child be removed from the control of such child’s parents, the youth court shall secure proper care for such child.

Miss.Code Ann. § 43-21-103. Thus, the objective of all those involved should focus on rehabilitation and what is in the best interests of the child. The Louisiana Supreme Court stated as much in finding “the unique nature of the juvenile system is manifested in its noncriminal, or ‘civil’ nature, its focus on rehabilitation and individual treatment rather than retribution, and the state’s role as parens patriae in managing the welfare of the juvenile in state custody.” In re C.B., 708 So.2d 391, 396-97 (La.1998). This goal surely is the reason for the stringent procedural requirements, for a transfer sends a child from a civil court with a paramount goal of rehabilitation to a criminal court with goals of incarceration and retribution.

¶ 11. It certainly appears that Buck knew precisely what she was doing in requesting certification and transfer to circuit court, although doing so defies any all notions of common sense and self-preservation. We cannot, however, get past the proposition that the State and the youth court, in their exercise of their parens patriae duties to Buck, would have found that certification would be beneficial to her. Nonetheless, the Youth Court judge should not have transferred without the specific statutory findings and conducting a bifurcated hearing.

II. WHETHER BUCK RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 12. On the issue of ineffective assistance of counsel, we agree with the Court of Appeals that Buck’s representation before the youth court and circuit court was not ineffective. At the youth court proceeding, Buck was adamant about being transferred to circuit court despite her attorney’s professed opposition to doing so. As for the guilty plea in circuit court, we echo the Court of Appeals’ observation that Buck’s circuit court counsel opposed her entering an open plea. The rule regarding ineffective assistance of counsel in the context of a guilty plea is that

when a convicted defendant challenges his guilty plea on grounds of ineffective assistance of counsel, he must show unprofessional errors of substantial gravity. Beyond that, he must show that those errors proximately resulted in his guilty plea and that but for counsel’s errors he would not have entered the plea.

Reynolds v. State, 521 So.2d 914, 918 (Miss.1988). Buck has failed to establish that her representation prejudiced her. On the contrary, all of the prejudice she sustained came of her own volition despite the opposition of her attorneys. We therefore affirm the circuit court and the Court of Appeals on this issue.

CONCLUSION

¶ 13. We certainly do not wish to see criminal defendants take a tactical gamble and then cry “foul” when it backfires. However, the statutory youth court transfer procedure is comprehensive and must be followed. The consequences of carving exceptions are far too grave. We therefore affirm the Warren County Circuit Court and the Court of Appeals on the finding that Buck’s counsel was not ineffective, reverse on the issue of transfer of jurisdiction, and remand to the circuit court with instructions that it (1) vacate Rheuvonia Buck’s conviction and sentence and (2) transfer this case to the Warren County Youth Court for further proceedings consistent with this opinion.

¶ 14. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The order transferring Buck’s case to circuit court indicated that it was on the State's motion. Since it was Buck who initiated the certification and transfer, it appears that the State acquiesced in her request. The statute does not contemplate a juvenile's transfer request.