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EDWARD L. BOOTH v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION9/11/1991
party and the court, or other adjudicatory body, all notices required to be given in relation to the matters in controversy, including notice of the decision and entry thereof, should be given to the attorney of record. This basic requirement flows from the attorney-client relationship by which the management, discretion and control of all procedural matters connected with the litigation is invested in the attorney. . .If the attorney through no fault of his own is denied notice of the critical determination in the case, and by reasons thereof fails to take procedural steps necessary to preserve his client's rights, fundamental unfairness results. Procedural due process cannot be satisfied when counsel, upon whom a client is entitled to rely, is not notified of decisions affecting his client's interests.
520 P.2d 586, 589 (Colo. 1974) (emphasis added by Booth); see also Perry v. Department of Employment & Training, 523 A.2d 1242 (Vt. 1987).
The City counters by quoting from a Louisiana Supreme Court opinion:
A provision for notice to the attorney of record may have been beneficial to this plaintiff, but it is not constitutionally required. Due process does not require that the attorney be notified, because notice sent to the interested party is reasonably calculated to give him notice.
Bailey v. Cajun Insulation, 453 So. 2d 237, 241 (La. 1984).
The statutory scheme, Miss. Code Ann. 71-5-1 et seq., and two Mississippi cases discuss the requirement that the" claimant "must be afforded notice. In Williams v. Miss. Employment Sec. Comm'n, 395 So. 2d 964, 966 (Miss. 1981), this Court wrote:" We are of the opinion that notice to Ms. Williams was necessary before the [Board could decide to disqualify her]. "See also Cane v. Miss. Employment Sec. Comm'n, 368 So. 2d 1263, 1263-64 (Miss. 1979) (notice
must be mailed to claimant's last known address). These two cases did not involve the issue of whether the claimant's attorney should also have been provided notice; in fact, the cases do not indicate whether the claimants were even represented by counsel.
Rule 5 (b) of the Mississippi Rules of Civil Procedure provides some insight into this Court's present stance regarding this question.
(b) Service: How Made. Whenever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon such an attorney unless service upon party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address, or if no address is known, by leaving it with the clerk of the court. . . . Service by mail is complete upon mailing.
Quoted in Covington v. Covington, 459 So. 2d 780, 782 (Miss. 1984).
However, the Rules of Civil Procedure are inapplicable to administrative proceedings. See State Oil & Gas Bd. v. McGowan, 542 So. 2d 244, 246-47 (Miss. 1989); Miss. R. Civ. P. 1 (governs procedure in circuit, chancery and county courts). In unemployment compensation cases, procedure is governed by regulations prescribed by the MESC. Miss. Code Ann. 71-5-725 (1972). Additionally, federal law dictates:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. This notice must be of such nature as reasonably to convey the required information and it must afford a re
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