406 S.W.3d 37
Mo.2013Background
- Hess, a Missouri attorney admitted in 1975, was suspended in Illinois for six months for frivolous lawsuits and attorney lien filings.
- Hess was employed by Kanoski & Associates and assigned to the Loyd medical malpractice case; he later terminated and pursued a personal dispute over compensation.
- Hess authorized and allowed Carr to file attorney’s liens and a suit against the Loyds in Illinois while Hess had no active Illinois license for a period.
- The Loyds had a contingent fee contract with Kanoski & Associates, not with Hess, who was salaried through the firm.
- The Missouri OCDC sought reciprocal discipline under Rule 5.20 after Illinois imposed discipline; the board found Hess knowingly filed frivolous, meritless claims and liens to harass the Loyds.
- The Missouri Supreme Court suspended Hess indefinitely with six months to reinstate, applying reciprocal discipline for professional misconduct under Rules 4-3.1 and 4-8.4(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reciprocal discipline is proper based on Illinois disciplinary order | Hess argues Illinois erred; he was a litigant, not an attorney, so Missouri should not apply reciprocal discipline | Court should apply reciprocal discipline to protect the public | Reciprocal discipline imposed; six months suspension, indefinite with six months no reinstatement. |
| Whether Rule 4-3.1 applies to a lawyer acting as a client | Rule 4-3.1 targets lawyers in advocacy, not clients; Hess argues it doesn’t apply to him as a client | Rule 4-3.1 applies to lawyers regardless of capacity; Hess knowingly filed frivolous claims | Rule 4-3.1 applies to Hess; violations found. |
| Whether Hess’s conduct also violated Rule 4-8.4(d) governing prejudice to justice | Hess engaged in conduct prejudicial to the administration of justice through frivolous filings | Conduct was prejudicial; reciprocal discipline appropriate | Hess violated Rule 4-8.4(d) and misconduct supports discipline. |
| Due process in Illinois disciplinary proceedings | Illinois proceedings gave Hess notice of frivolous, meritless claims | Due process satisfied; review board findings upheld | Due process not violated; Illinois order properly based on conduct. |
| Public policy rationale for reciprocal discipline | Reciprocal discipline protects the public from unethical conduct by attorneys moving jurisdictions | Reciprocal discipline should not be automatic in personal misconduct cases | Reciprocal discipline valid to protect the public and preserve discipline efficiency. |
Key Cases Cited
- In re Stewart, 342 S.W.3d 307 (Mo. banc 2011) (discipline for misconduct; public protection principles)
- In re Duncan, 844 S.W.2d 443 (Mo. banc 1992) (discipline for tax-related or serious misconduct; public protection)
- In re Frick, 694 S.W.2d 473 (Mo. banc 1985) (extensive misconduct; integrity of the profession)
- In re Panek, 585 S.W.2d 477 (Mo. banc 1979) (fraudulent acts; professional discipline)
- Parktown Imports, Inc. v. Audi of Am., Inc., 278 S.W.3d 670 (Mo. banc 2009) (statutory interpretation; plain language rule)