In Re Stewart
342 S.W.3d 307
Mo.2011Background
- Stewart, licensed Missouri attorney since 1982, has four prior DWIs over 11 years (1997, 2004, 2006, 2008).
- The November 2008 fourth DWI was a class D felony with a three-year suspended sentence, probation, and alcohol/drug testing; 60 days jail shock time with work release to practice law.
- During shock time, OCDC moved to discipline under Rule 5.21(c) based on felony conviction; OCDC proposed indefinite suspension with three years’ probation mirrored to criminal probation.
- Stewart had a prior 2009 admonition for diligence/communication, not aware of the felony charge at that time.
- The Court considers discipline under ABA Standards and Missouri precedent, concluding the felony conviction violated Rule 4-8.4(b) and warrants suspension, not a stay.
- Stewart is suspended indefinitely with no leave to reapply for six months after mandate, based on aggravating factors (four DWIs) and mitigating factors (sobriety efforts) and public protection goals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Stewart’s felony conviction violated Rule 4-8.4(b). | OCDC asserts four DWIs, including a felony, reflect adversely on fitness; thus rule violation. | Stewart argues nonprofessional misconduct should be weighed with mitigation and not automatically trigger harsher discipline. | Yes; the felony conviction violated Rule 4-8.4(b) and harmed public confidence. |
| What sanction is appropriate for Stewart’s felony conduct. | Suspension with probation mirrors criminal probation; three years, no reinstatement for three years. | Considerful of mitigating factors but caution against minor sanctions given repeated misconduct. | Suspension is the appropriate sanction; indefinite with six-month postmandate reinstatement restriction. |
| Whether a stayed suspension is warranted. | Stayed suspensions have been used in comparable alcohol-related cases. | Stay not warranted due to multiple felonies and degree of risk to public trust. | Not warranted; no stay; impose active suspension. |
| Role of aggravating vs. mitigating factors in determining sanction. | Aggravating: four DWIs; mitigating: recovery efforts, compliance with probation. | Mitigating factors reduce but do not eliminate public-protection concerns. | Aggravating factors outweighed mitigating factors; suspension without stay = appropriate. |
| Impact of prior admonitions and failure to report conduct to OCDC. | Failure to report during admonition shows indifference to disciplinary process. | Acknowledges past issues but emphasizes ongoing sobriety efforts. | Aggravating factor supported; supports strong sanction. |
Key Cases Cited
- In re Zink, 278 S.W.3d 166 (Mo. banc 2009) (high court acknowledged inherent regulatory authority over attorney discipline)
- In re Kazanas, 96 S.W.3d 803 (Mo. banc 2003) (disbarment typically for felony-related misconduct; aggravation possible)
- In re Duncan, 844 S.W.2d 443 (Mo. banc 1992) (discretionary suspension for felony-related misconduct consistent with Rule 5.21)
- In re Frick, 694 S.W.2d 473 (Mo. banc 1985) (some nonprofessional acts may warrant disbarment depending on severity)
- In re Shunk, 847 S.W.2d 789 (Mo. banc 1993) (serious criminal conduct by attorney may warrant severe discipline to protect public)
- In re Coleman, 569 N.E.2d 631 (Ind. 1991) (mitigating factors considered but public confidence still prioritized)