*1 Gary CUPPLES, Matter of M. Respondent.
No. 79063. Missouri,
Supreme Court
En Banc.
Aug.
228 *3 Counsel, Howe, Disciplinary
John E. Chief Counsel, City, Jefferson Phillips, Sam Staff for informant. City, respon-
Gary Cupples, Kansas M. dent. Proceeding
Okiginal Disciplinary PRICE, Judge. disciplinary proceeding
This original an for the 16th instituted the Bar Committee Cupples was Gary M. Judicial Circuit. Disciplinary Counsel charged by the Chief J+-84(c). violating Rule with two counts of in misconduct Cupples engaged We find that litigation files from his by secreting client from the preparation to withdraw litigation client by removing law firm and appropriate without order of the client. We consent this misconduct. publicly reprimanded for I.
A. disciplinary proceeding In a conclusions, and recom findings, Master’s nature. In re advisory in mendations are (Mo. Oberhellmann, S.W.2d 1994). This the evidence reviews banc Court novo, independently the credi determines de testimony bility, weight, and value witnesses, its own conclusions and draws disciplinary proceed of law. Id. In estab allegations must be ings, the truth of of the evidence. preponderance lished (Mo. Howard, banc 912 S.W.2d 1995). managing partners Deacy Deacy,
B. & called directory phone num- assistance and found a following Gary Cupples We fiiid the facts. “Gary Cupples, Attorney at ber listed as has been licensed to law number, phone they Law”. When called the in the State of Missouri After since 1978. phone, “Gary Cupples’ voice answered graduation from law school in Law Office.” was hired as an firm of associate with the Deacy Deacy. partner & He was made a Brown and asked to meet the firm in During his tenure with immediately with them after the weekend. Deacy Deacy, Cupples signifi- & questioned up handled whether he had set When office, litigation cant amount of for the Farm independent State acknowl- Company. edged space Insurance Farm was one of that he office but had leased *4 Deacy biggest having law firm’s and oldest denied used the office to law. Cupples Deacy clients. State Farm had authorized a limited Brown that he told and City number of law firms in the space catering Kansas area leased the for his wife’s busi- represent Cupples Cupples to it and its negoti- insureds. ness. later testified that he acknowledged that space he knew that the firm was ated the office in March lease business, to phone authorized handle State Farm 1993 and connected a few had service he, lawyer, but that prior Day individual was not. to weeks the Memorial weekend. Brown, meeting Deacy, concluded with Deacy Deacy policy assigning & had a Cupples agreeing Cupples and that should State Farm cases within the firm on an 31, May withdraw from the firm effective basis, alphabetical regardless of to whom the 1993. initially case was During addressed. the rel- time, Cupples evant assigned days, was all State Over the next few the members of beginning Farm cases with the letters “B” Deacy Deacy Cupples & learned that had alphabetical and “I”. system, Under the if register a failed to twelve to fifteen case files began case that with the letter “B” or “I” tracking billing systems the firm’s and and was addressed to a member of the firm other had failed to turn over State Farm cases that Cupples, than that attorney enter would he had received but that would not have been book”, “day ease the firm’s assigned by fill out a File alphabetical system. to him the Form, Receipt turn Cup- Cupples report the file over to also failed to his work on ples. If Cupples weekly received a file for a case during meetings these cases with the begin “I”, that did not with the letters “B” or members of the firm. The firm learned of supposed he was to attorney enter the case into the this behavior when an adverse left a daybook, Form, Receipt fill out the message Cupples, File after he had left the proper firm, turn the file over to advising Cupples member of that his client would policy the firm. The firm’s agree judgment. allowed cases to not to set aside a default assigned alphabetical sys- Although Cupples ultimately outside of the had the default aside, requested par- tem when State Farm judgment judg- that a set the news of the ticular Deacy investigate work on the file or when an ment caused the to busy Cupples By was too with other files to the files that on. had worked normally on comparing computer correspondence work a case that would be as- files of signed Deacy to him. Cupples State Farm knew of & that wrote to clients with the firm’s cases, Deacy’s assignment system regional case list of the firm learned of the twelve to superintendents regu- Cupples Farm met fifteen files that never entered into larly Deacy Deacy system. with & to discuss its
representation of State Farm. again him Brown asked to meet Cupples
During Day May following Saturday. During the Memorial weekend of on the their 31, 1993, Brown, Deacy meeting, one of the members of & armed a list of four- with cases, Deacy Cupples that questioned Cupples learned had leased office teen or fifteen space independent any to establish his own law whether he had worked on cases that news, practice. Upon being sys- of that firm’s informed were recorded Jr., Brown, Deacy, Spencer Cupples Thomas tem. answered that there were two Proposed al or three eases on which he had worked that misconduct and served Infor- firm’s books. on Pursuant were not on the After a denial mation March to Rule (then existed, effect), cases Cupples Cupples requested other Brown that 5.10 hoped Cupples prob- hearing that he Advisory told have Committee to re- by Monday morning. finding. lem resolved view Bar Committee’s The Ad- visory hearing May on Committee held at Cupples called Brown home the next May probable 23 that ruled on day possessing and admitted twelve or Cupples cause existed believe files. told that he thirteen Brown professional guilty of misconduct. planned keep split the fees Deacy Deacy. Cup- Brown again & told charging An two Information counts ples hoped problem that he have the professional violating misconduct for Rule J- meeting a members’ at 9:00 solved before 84(c)1 was filed with this Court the chief Monday morning. Monday on a.m. On disciplinary counsel. Information meeting, morning, before the called charged: agreed Brown and to return the twelve files Gary following ... violated the M. pick to the firm. asked Brown to (Missouri Rules of Professional Conduct up p.m. the files at his new office at 5:00 4): Supreme Court agreed evening, and Brown so. do *5 pos- Cupples When Brown asked whether I Count any belonged other files that to the sessed firm, question. the A Cupples evaded week 8.4(c) the Rules of Professional of later, six from the firm received more files legal he secreted matters Conduct in that by Cup- State Farm that had been returned Deacy Deacy and partners from at the his ples Farm him that when State informed partner by: in the firm Law Firm a while Deacy Deacy represent would continue to & (a) from firm failing files received to enter Cupples it. informed Farm that never filing docketing and clients the firm’s into firm’s han- using system he not the of was (b) systems; failing to bill time he and hiding he was the files dling eases or that expended against files such matters the on of firm. from the other members the Further, expended. at the he time it was Cupples previously admitted that he com- matters from the removed the files on such system plied managing the firm’s with of knowledge or Firm the consent of without He he State Farm cases. stated that did partners. was for the All such conduct system regard to the comply with the purpose deceiving defrauding and of cases at issue here because he did not want appropriate intent to the with the Deacy interfering handling Thomas with the himself. business for from of the files. The obvious inference Cupples planning facts is that was these II Count partner Deacy from withdraw as a the (c) the Rules of Professional secreting Rule 8.4 was the files and that he engaged he conduct Conduct in that to take them him to his new effort misrepresenta- and practice. which deceit involved (a) failing to tion to enter clients C. Deacy clients of received from filing Firm’s Deacy into the 23, 1993, Deacy Law Firm Deacy & filed a July On failing to bill time systems and Cupples’ docketing complaint relating to behavior with against expended matters he such 16th Judi- on Bar Committee Circuit expended hear- files at time it was while The Bar Committee held cial Circuit. (b) firm; removing the partner ings December 8 and 1993. The Cir- on Deacy probable files on found cause to such matters cuit Bar Committee following his Firm withdrawal Cupples guilty profession- Law believe that was (c) 4-8.4(c) involving dishonesty, engage provides: in conduct 1. Rule fraud, misrepresentation.” deceit or lawyer professional misconduct for a to: "It is Firm knowledge without the 2. consent of the clients. Cupples alleges next that the Adviso appointed Judge This Court Donald Barnes ry finding probable Committee’s cause was as Master. After the hearing Master’s on chair void because the of the committee en 13, 1996, December the Master concluded gaged parte in an ex discussion with a com guilty charged rec- plaining witness. The chair of the committee Cupples’ ommended that license be “sus- very stated on the record she had a brief pended indefinitely unless the Court decides in discussion with the witness that did not to disbar him.” charges against Cupples. volve Bar hearings Committee held before an Informa II. informal, tion is filed with this Court are non- points raises five in his brief chal- proceedings purpose adversarial held for the lenging jurisdiction of this Court to hear determining probable the existence of disciplinary this proceeding alleging Sparrow, cause. Mo. process rights. violation of his due (banc 1935). S.W.2d An informal discussion involving with witness not A. charges finding at issue does not render the probable cause void. 1. first cites Rule 5.13 for the
proposition that “[t]he record of the investi gation prior request conducted to the for the Cupples also asserts that the Infor hearing shall not be part made a signed by mation void because it was not record unless respondent given Advisory Committee. cites Rule *6 opportunity at hearing the to cross-examine (then effect) in authority as for the 5.1k all witnesses whose evidence is offered at the proposition Advisory that the Committee or a hearing.” Cupples asserts that the testimo Advisory member of the Committee must Mullen, ny of partner, Edward taken dur sign and file the Information before this ing investigation by the the Circuit Bar Com Court. Rule read as follows: 5.1k mittee, part was made of the record without majority If a of the committee or divi- being given him opportunity to cross- sion conducting hearing pursu- thereof the examine the during Advisory witness the proba- ant to Rule 5.13 that finds there is hearing. Cupples Committee argues that ble cause to believe that the individual the Advisory error renders the Committee’s investigation guilty professional under is of finding probable of cause void and divests charged proposed misconduct as jurisdiction. this Court of information, it shall an information cause 5.13, pro- Court_ as it was in written to in be filed this The informa- hibited the admission of the record without in prescribed by tion shall be the form person cross-examination because being the Rule 5.09. investigated right present had no to be dur- (then effect) in Rule 5.18 stated: “If an ing investigation the right and had no to Court, information is in this filed it shall be during cross-examine the witnesses the in- in provided by the form Rule 5.09.” Rule (then effect). vestigation. Rule 5.08 In provided: 5.09 case, Cupples only given this not was the opportunity to during proposed cross-examine Mullen signed The information shall be fact, investigation, Cupples, counsel, the by disciplinary but did the chief the chair every committee, cross-examine him on secretary issue raised of the circuit bar testimony. purpose by majority The obvious of Rule of the members of the com- mittee, Cupples 5.13 was fulfilled presiding major- so has no cause to or the or a officer Furthermore, complain. ity even without Mul- the members the division of testimony, len’s there was sufficient evidence committee to which the matter was as- to secreting signed.- find that was files. added).
(emphasis charg- protracted proof The from Information offers properly signed ing Cupples by alleged the chair included three exhibits related to the Bar improprieties Division of the Sixteenth Circuit in the court file. Cupples’ assertion error sim- Committee. The Master had discretion rule on the ply if is incorrect. Even the Information was admissibility proposed of the evidence. He fully signed, Cupples participated not has correctly alleged improprie- that determined proceedings any these and has not shown by give ties one do another charges against lack of him. notice of right dishonestly. to act The prove disprove evidence not tend to did 4. Furthermore, charged misconduct. Judge claims that faded to Barnes Master made a full record evidence for oath swear and subscribe the of master as by allowing our offers of review extended required Again, by Rule 68.OS. he is factual- proof including three related ex- ly clearly The record that incorrect. shows hibits before this Court. This the record Judge Barnes swore and the oath subscribed substantially complied with the Rule July acknowledged on 1996. This Court 73.01(a)(1) requirement trial court receipt in a letter clerk of the oath “shall record the evi- [inadmissible] take and 24,1996. July of this Court dated dence in full.” The Master did not err in regard point. this asserts the Master B. improperly failed to take and record the evi Cupples’ arguments as above are required dence in full as Rule 68.OSand they frivolous a matter of law as are as a (then 68.03(d) effect) Rule 7S.01. Rule right matter of fact. This Court’s inherent read: discipline attorneys has been recognized may upon rule master the admissibili- power” as “an of this Court. inherent ty of evidence unless otherwise directed Sparrow, supra, procedural at 403. Mere authori- order of reference has the jurisdiction. to divest our error insufficient ty put may on oath exam- witnesses purpose disciplinary proceedings may parties ine call the them and profession protect public and the them upon action and examine oath. Lang, law. persons unfit to *7 requests, the party When a so master shall 1982). (Mo. 77, 641 79 banc S.W.2d make a record of evidence offered and importance great to the rights While subject in the same manner excluded well, individual, litigated the bar as are provided limitations as in Rule the same cases, procedure in loose disbarment 73.01(a) sitting jury. for a court without a countenanced, should not be the courts effect) (then 73.01(a)(1) Rule read: repeatedly being have held that the action upon objections The rule all court shall inquiry protec- the nature of an jury eases. the evi- evidence as "Where courts, public pro- tion of the and the inadmissible, upon court dence is ruled fession, procedure strict rules of should be request and record shall take the evidence relaxed end that fitness of an to the full, appears clearly it that the unless profession attorney to continue any ground is not admissible on evidence on the merits rather should be determined privileged. that the evidence worthy grounds. than on less hearing, Cupples attempted At the Master’s 11, Pate, Mo.App. 119 232 S.W.2d through exami- introduce evidence direct (1938). 24 in- allegedly Thomas was nation that error activity. procedural Cupples volved in criminal offered Mere Advisory or the Master also proof state Committee evidence own process rights. secreting implicate he was insufficient to due during mind the time judicial component conducts the Judge files. Barnes ruled the evidence Court This In inadmissible, disciplinary proceedings. accepted of of the was but a number Mills, (Mo. re 539 S.W.2d banc dence was cumulative to other evidence that 1976). charged prove This Court is Cupples with determin- tended to secreted files ing necessary Cupples all fact from the firm given issues to a decision. In and because was Frick, (Mo. ample opportunity S.W.2d banc cross-examine Mullen. 1985). Cupples precluded was not from ar-
guing exceptions report to the Master’s B. proceedings before this Court. Cupples’ argument that Mullen’s 68.03(g). Cupples precluded Nor was from testimony was irrelevant and immaterial fo making any argument to a due lack of evi- primarily testimony concerning cuses on dentiary support Cupples the record. judgment Cupples’ default entered in one of given opportunity a full argue to brief and Although Cupples secreted files. was not the facts and the law that he believed were charged negligence allowing the de pertinent Cup- to this Court’s deliberations. rendered, judgment testimony fault to be ples has any specific preju- not established was demonstrative of the harm that can be resulting dice hearings below. fall clients and when an specific
Absent a showing preju- testimony actual secretes files. The was both rele dice, upon this Court will focus the merits of vant and material.
disciplinary proceedings, as should the attor- neys participating in legiti- those cases. No IV. jurisdictional mate process or due issue was points brief, In of his V VI presented by Cupples in raising allegations challenges sufficiency of the evidence of error in the informal Advisory Committee against him. claims that the Chief hearing or in the hearing Special before the Disciplinary Counsel failed to establish Master. preponderance of the evidence that he was guilty professional misconduct.
III.
brief,
point
IV of his
alleges
A.
that the inclusion
prior
of Edward Mullen’s
problems
that occurred when
testimony in the record before the Master
Deacy Deacy
sympto-
decided to leave
&
are
and before this Court
right
violated his
growing
day-to-day
matic
trend in the
process. Cupples
due
also claims that
legal profession.
business of the
“Partners
testimony should be excluded from the rec-
in law
increasingly
firms have become
‘mo-
ord because it is irrelevant and immaterial to
bile,’ feeling
they formerly
much freer than
the issues before this Court.
having
greater opportunity
did and
much
did,
they formerly
than
to shift from one firm
A.
another_”
Rehnquist,
William H.
Cupples’ argument
151,152
Today,
that the inclu Legal
62 Ind. L.J.
Profession
*8
(1986).
sion
testimony
fear,
fear,
of Mullen’s
right
violates his
“There was a
there is a
process misguided
fear,
to due
is
always
pro-
for two reasons.
highly
there
will be a
that
First, disciplinary proceedings
leave,
are not crimi
...
go
ductive
can
to another
nal trials in
place
which a defendant has
get
money.”
a constitu
more
and
Allan W. Ves-
right
tal,
tional
to confront witnesses.
In re
Large
“Assume a Rather
Boat ...
Mills, supra,
Cupples’ only
Law,
at 450.
right to
Partnership
Mess We Have Made
54
(1997)
487,487
cross-examine witnesses arose from Rule Wash. & Lee L. Rev.
(quoting
Fritts,
right
by Cupples’
Co-Chair,
5.13. That
Esq.,
fulfilled
John
Management
Committee, Cadwalader,
cross-examination
investiga
of Mullen in the
&
Wickersham
Taft).
phase
Second,
proceedings.
tion
of the
Cup-
giving
in-
This trend is
rise to an
ples
prejudiced by
was not
disputes
the inclusion of
creased number of
between the exit-
testimony
ing attorneys
the record
evi-
because the
and their former firms.2 A
See,
409,
Babcock,
e.g.,
2.
accounting, damages,
rights
Howard v.
6 Cal.4th
25
and declaration of
80,
Smith,
260,
(1993) (action
Cal.Rptr.2d
by departing partner);
234 706, 761, (1989); Hillman, disputes of these who 779 765
central issue most is P.2d su pra, Finally, attorney repre sec. an right has to the clients’ and who has 2.3.2.1. senting duty right representing to continue the clients. client has communicate regarding repre
with the client client’s I-14(b)(1997); B. sentation. also Rule see Code, duty This Model EC 9-2. includes 1. communicating the client about material right The client has the to choose changes represents the client. who See attorneys represent attorney who will )-1.16(d) (1997); (Preamble); Rule Rule 1 Jf-1.16(a)(3) (1997); it. see also Model Block, 489, Vollgraff 117 Misc.2d 458 v. Code, 2-110(B)(4). “[C]lients DR are not the (1982); 437, 440 Judy R. May, N.Y.S.2d Com but, ‘possession’ anyone, contrary, ment: In Search Greener Pastures: Do represent Kelly control who them.” v. and Other Ethical Re Solicitation Rules 118, (Ind.1993). Smith, 122 611 N.E.2d Governing Departing strictions Partners Re They “Clients are not merchandise. cannot ally Today?, 40 Vill. L. Rev. Make Sense sold, attorney- bought, or traded. The 1517, 1528(1995). relationship personal client confiden tial, attorneys choice of and the client’s civil absolute.” v. cases is near Koehler 304,
Wales,
233,
present
Wash.App.
556
ease that
16
P.2d
236
It is clear
(1976);
Deaey
Ellerby
Spiezer,
initially
v.
had chosen the
see also
138 Ill. State Farm
602,
firm,
77,
605,
represent
App.3d
entirety, to
it in mat
92 Ill.Dec.
485 N.E.2d
its
413,
(1985);
attorneys.
firm’s
Kaplan,
Resnick v.
49 Md.
ters
to the
416
forwarded
firm,
582,
Corti,
firm,
499,
(1981);
lawyers in
App.
588
not the individual
434 A.2d
Legal
Henry
Drinker,
supra;
211
authorization
client
S.
maintained the
Ethics
(1953);
2.3.1.1;
City
Kansas
area.
supra, sec.
handle matters in the
Hillman,
Hazard
of,
7.3:202,
apparent
aware
supra,
see.
at 885. The State Farm also was
Hodes,
&
client,
ly agreed to,
alphabetical
of as
belong to the
not to the
method
client’s files
lawyers
signing
at the
attorney representing the client. The client
to individual
eases
clear, however,
may
equally
or firm to transmit
firm.
It
direct
played a material role with
newly
retained counsel.
had
file
941,
Farm
Proceedings,
regard
files. The
Jury
F.2d
944
to certain State
Grand
727
(10th
denied,
Cir.),
819,
that certain lower level
cert.
469
105 record even reflects
U.S.
(1984);
90,
personnel would have cho
v.
State Farm claims
S.Ct.
withdraws removing State Farm files from the by bility attorney that of both the withdrawal, ap Deacy firm after without that that to ensure the clients for whom consent, propriate Farm mate State attorney provided representa had material representa the nature of rially the altered of the cir change tion are informed the in receiving of tion. of the full services Instead representation. cumstances the clients’ represented years, a law firm had it for requires duty This communication with those by being represented State Farm was written, by personal, or clients—whether lawyer systems without the various individual professional means—that is some other him. support previously had assisted primary purpose content. nature and The right to the State Farm had be informed of clients in the communication to assist these representation change in the nature of the determining should legal whether their work Cupples’ withdrawal from and of the firm, the law to remain with be transferred right firm. Farm had a to State determine attorney, departing or be transferred perform legal who continue to its would it both expect elsewhere. While is natural to By secreting Farm’s work. files departing to want attorney the firm and change in concealing the the nature of legal representation, the clients’ continued representation, Cupples violated Rule k- primary purpose of the communication is 84(c). to assist the clients their needs and to by clients’ solicit the business. A failure C. duty attorney appro the firm to fulfill or this partner A a law firm to also has duties may justify
priately disciplinary action. the other firm. We acknowl- Supreme in In Oregon, The Court of noted, edge Blackmun Bates that Justice Smith, nearly considered the same factual Arizona, are v. State Bar that “law offices Smith, situation exists here. the with- big To term them businesses.... noncom- drawing thirty-one client secreted humbug.” mercial 433 U.S. is sanctimonious failing open by files to firm’s 19, 2691, 368 n. 97 S.Ct. 2701 n. Smith, filing supra, system. 843 P.2d at (1977) ap- (quoting L.Ed.2d 810 counsel for misrepresented 450-51. also Nevertheless, pellee argument). at oral change representation nature quoted standard set out often Justice sending to only letters clients that reflected con- Cardozo in v. Salmon still Meinhard change in the name the firm. and address of trols: Id. “the ac- at 451. court held that adventurers, copartners, like Joint owe dishonesty, deceit, misrepresen- cused’s another, enterprise while the contin- one duty tation violated a to his Id. clients.” ues, Many duty loyalty. of the finest attorney’s found that the breach of The court permissible in a forms of conduct worka- duty potentially to his clients harmed length, day acting those at world for arm’s ways. harmed his clients two different by fiduciary are those bound forbidden First, months-long up set failure to “[h]is something ties. A trustee held strict- could have clients: it client files harmed his place. er morals of the market than the well have resulted in deadlines could missed alone, honesty punctilio but the Not Id, Second, or lost clients “[h]is documents.” sensitive, stan- honor most is then the have been limita- also could harmed dard behavior. opportunity wheth- upon tion their to decide (1928). 458, 164 N.E. 249 N.Y. firm, go stay er to with the GGMS law firm, fiduciary duty partner’s or to A includes with the accused his new law concerning duty choice.” sus- candid business make another Id. The court *10 fair, duty duty opportunities, law for the to be the pended practice from the of Smith 236 put at 451.
not to self-interests before the interests Id. The court stated “[t]he partnership, duty surreptitious handling of the not to com of the client the files was pete partnership -with the the business of toward [his dishonest deceitful former Johnson, partnership. supra, at 100. In assessing potential the Id. In the firm].” harm lawyer, withdrawing duties, context of a these by attorney’s the the of caused breach the lawyers applied duties have been to who court wrote: withdrawing before from solicit clients the of firm also Partners the GGMS were ex- firm, opportunities who withhold business potential to harm the posed failure partnership, secrete and who the accused to the firm know let whom he See, Silverberg, e.g., from the firm. In re 81 practiced there; representing while he (1981) 143, 144 A.D.2d 438 N.Y.S.2d exposed to they profes- could have been (“The solicitation of a firm’s client one liability sional for errors the ac- claims partner benefit, prior any for his own to they which no cused matters about had partnership, to dissolve is a decision the knowledge. fiduciary obligation breach of the owed to Finally, Id. the court held: Smith partnership_”); each other and the Mee explicit rule Although is no [disci- there Shaughnessy, han v. 404 Mass. 535 lawyers to plinary requiring rules] be can- (“[The (1989) 1255, 1265 departing N.E.2d partners employ- or did and fair with their lawyers] partners their from excluded effec ers, implicit obligation such an the tively presenting their services as alterna 1—102(A)(3) prohibition against dis- DR departing attorneys].”); those of [the tive to fraud, deceit, misrepresenta- honesty, or Smith, supra, (noting at that attor In re Moreover, ais violation tion. such conduct ney implicit obligation ethical violated rules by a duty loyalty lawyer to of the owed to fair be candid and with secret his or her firm on their contractual based files). ing agency relationship. or Although lawyer’s violations fiduciary of a at Id. may give duty liability, his firm rise to civil to here, To relevant the the extent liability partic disciplinary find courts also firm lawyers in a can be practicing duties of See, e.g., ular circumstances. Committee on withdrawal, Prior to summarized as follows. Ethics & Iowa State Bar Conduct Prof. duty treat lawyers within a firm have to (Iowa McClintock, Assoc. v. 442 N.W.2d honestly put and to fairly other each 1989); Casey, In re 174 Wis.2d regarding firm firm busi interests (1993); supra; In Silverberg, N.W.2d The before their interests. ness individual Smith, McClintock, supra. In re In the firm for lawyer may compete respondent that the violated the court held lawyer Each has a opportunities. business prohibition disciplinary against rules’ conduct firm duty represent clients to the firm to adversely lawyer’s reflects fitness on the zealously. diligently, competently, and law, 1-102(A)(6), by failing DR to court-appointed attorneys’ fees to remit attorney withdraws After McClintock, supra, firm. at 608. court firm, no fiduciary longer duties from a stated, partnerships “Most law are founded However, competition. the firm and prohibit among upon a total trust and confidence duty to departing attorney have a deal partners. exceedingly A breach of this close up firm good winding faith in business. merits relationship disciplinary action.” Id. attorney and the firm withdrawing Both the Smith, any clients duty to Supreme In re Court of have a inform change representation departing attor- Oregon, also material addressed direction as to former firm the clients’ informed ney’s violation of duties obtain Smith, client its work be handled. ground discipline. how the wishes as a withdrawing attorney and firm also supra, 451-52. court found that The at orderly or input thirty- duty maintain transfer Smith’s intentional have failure involving in accordance with “clearly was dis- the clients’ files one files conduct fraud, deceit, rep- misrepresentation.” to withdraw honesty, clients’ directions and *11 resenting they practiced nearly twenty years those clients whom are law for without discharged. withdrawing attorney Both the previous complaint. duty, only and the firm have a mutual publicly repri- We order be client, well, but to each other as to make against manded. Costs are assessed him. certain that completed these tasks are in a competent professional and manner to the BENTON, C.J., and ROBERTSON and
reasonable satisfaction of their clients. See WHITE, JJ., concur. Termination, Withdrawal and 129 ABA/ BNA LawyeRs’ Manual on PROFESSIONAL COVINGTON, J., part concurs in and 1993). 91:701, (Apr. For Conduct part separate in in opinion dissents filed. concerning lawyer matters discipline, we are HOLSTEIN, JJ., and LIMBAUGH concur most concerned when the failure to fulfill COVINGTON, opinion of J. these representation duties affects client not the mere division of firm assets and COVINGTON, Judge, concurring part liabilities. dissenting part. By secreting the State Farm files I respects concur in all I sections Deacy from the firm failing to honest through principal opinion. of the I IV re- ly appraise firm legal work he was spectfully discipline. dissent on the issue of handling Farm, Cupples for State violated Respondent dishonestly. acted This Court his duties to the firm. The firm had devel disciplines dishonest conduct disbarment oped properly a method to manage rep suspension. or resentation of its largest oldest and client The American Bar Association’s Standards purposefully sys evaded that (1986) (ABA Imposing Lawyer Sanctions exposed tem. His actions Standards), generally to which this Court has potential malpractice liability. caught, When years, best, suspen- adhered recent recommend Cupples, forthright at was not about his lawyer sion in a knowingly case which “a intent withdraw from firm and not client, injury deceives a poten- and causes or forthcoming with cooperation process injury tial to the client.” ABA Standards assisting State Farm in determining who Sanctions, Imposing Lawyer Rule they would choose to handle the matters on 4-62 (1986). ABA Standards also recommend working. which he had been Cupples’ viola suspension lawyer knowingly when a violates tion Deacy of his duties to directly firm duty profession, respon- owed to the as the endangered quality repre affected and done, injury poten- dent has “causes provided sentation the firm to State Farm. client, injury tial public, legal to a or the regard actions in this was miscon- Standards, system.” ABA A Rule 7.2. fail- 4-8.4(c). duct in violation Rule integrity ure such as the one in this case view, requires, my a severe sanction. See V. Standards, (“The ABA purpose Rule 1.1 Cupples’ secreting actions in State lawyer discipline proceedings protect is to Farm files before and after his withdrawal public justice and the administration of Deacy from the potential created lawyers discharged who have not ... actual harm to State Farm and the professional clients, public, their duties to firm. His actions violated duties to both legal system, legal profession.”) and the the client and the firm and mis constituted 4-84(c). conduct in violation of precedent Rule suggests This Court’s own determining the sanction to may appropriate. be assessed disbarment In In re (Mo. against Cupples, Oberhellmann, Cup- we also consider that 873 S.W.2d ples 1994), obtained consent from lower level lawyer State banc this Court disbarred a personnel law, Farm claims repre to continue following ABA Stan- Farm, senting dards, 6.12, that Missouri has not lawyer where the lied to a squarely had a written decision of attempt ad tribunal in an to retain federal diver- matter, dressing sity jurisdiction this and that has by asserting that his client *12 8.4(c), surprise in state client did Rule should come as no to resided a in which the not Storment, 227, accurately anyone. majority opinion In In re 873 S.W.2d The reside. and (Mo. 1994), banc disbarred a eloquently respondent’s 231 this Court describes misconduct to lawyer submitting for false evidence manner it violates the Code and the which Maier, Court, Lawyers This in In re 664 Responsibility. court. Professional (Mo. 1, 1984), 2 banc disbarred a S.W.2d neither the of Professional Re- need Code lawyer diverting money Court, however, for from his law firm nor this an- sponsibility Finally, clients. this Court disbarred a that we refrain from nounce should conduct attorney in lawyer delrauding for another In Nor do law- that is deceitful dishonest. (Mo. Panek, 477, 585 479 re S.W.2d banc yers disciplinary need committees courts 1979). surreptitious handling of to tell us that client con- files constitutes deceitful and dishonest discipline suspension Any than is less any is duct. This ease not one to which Disney, clearly 922 insufficient. In In re looking of the bar member would be an (Mo. 12, 1996), lawyer 16 lied S.W.2d banc interpretation of the of Professional Code attempt client to loan in an to his secure a Responsibility. is no new law an- There wife, from and this hide assets his former here, any legitimate nor nounced is there suspension. In Court ordered immediate Finally, dispute respect the facts. as with (Mo. Strieker, 356, 808 361 In re S.W.2d banc above, precedent forth this Court’s set Court, 1991), rejecting this the recommenda deceitful, discipline dishonest respect lawyer, reprimand tion of the Master to" long is and well established. In conduct suspended lawyer the for misconduct that contained summary, surprises there are no In In re dishonesty included and deceit. respondent’s or the facts (Mo. the law relative Littleton, 772, 719 777 banc S.W.2d misconduct. 1986), stated, “Reprimand ... this Court is only attorney’s breach appropriate where the weight respon- that might give I to the fact dishonest, discipline ... does not involve nearly twenty practiced dent has law fraudulent, part the or deceitful conduct on majori- complaint, the years without as does case, attorney.” present In the re respondent’s substan- ty, for the fact that but spondent lied to and deceived experience practice of law works tial in the Reprimand his clients. is unwarranted. mitigating, cir- aggravating, as well as suspension to be finding Standards, In accord with the See ABA cumstance. Smith, 260, proper discipline is 315 Or. 9.22(i). factor, undisputed aggravating The (1992), upon 453 the case which 843 P.2d however, that the in this case was violation principal opinion heavily relies. In deliberate, dishonest, selfish, willful, Smith, suspend- Oregon Supreme Court Standards, Rule See inexcusable. ABA practice of respondent ed 9.22(b). respondent’s Although length of period of The for a four months. Smith case per- complaint practice without evidences respect in almost from the no case differs involved, overcome tragedy it does not sonal here. presented case, nor does it the clear evidence in this methods em- mitigate scheming, devious Applying the ABA and consid- Standards potential harm ployed by respondent and the cited, precedent respondent ering the should principal aptly is so described suspended practice of law. from the Mendell, re 693 opinion. See In S.W.2d appropriate length To determine sus- 1985). (Mo. majority’s willing- banc The pension, this considers the effect of Court with le- respondent’s to view conduct ness mitigating aggravating factors. share, only I but niency a view would (Mo. 1995). Howard, banc S.W.2d suspen- distinguish between disbarment majority fact that this considers sion. previously had a written deci- Court has is, Honesty perhaps, essential addressing this matter. most squarely of law sion submit, lawyer. purpose of disci- This, for a quality should not be respectfully I public, the plinary protect action is to The decision in mitigation. considered No sane- ease, system, profession. legal respondent’s conduct violates this suspension tion lesser than is consistent with purpose disciplinary for which our ac- I respondent
tions exist. would order sus-
pended of law for six
months.
*13
also,
See
Michael Narron Gibson and Gibson, Appellants- Marianne
Respondents,
v. BREWER,
Father Michael
Respondent-Appellant, Chancery—Diocese
Catholic of Kansas
City—St. Joseph, Respondent.
No. 79291.
Supreme Missouri, Court of
En Banc.
Aug.