In re Stricker , 1991 Mo. LEXIS 57 ( 1991 )

RENDLEN, Judge,

dissenting.

For the reasons following, I respectfully dissent. A number of facts in mitigation warrant discussion.

Respondent a sole practitioner in Potosi, Missouri, for approximately six years, is paralyzed from the waist down as a result of fall suffered in 1975. Presently and for much of the time here involved respondent conducted his practice from his home located a few blocks from the county courthouse. And though seldom has he enjoyed the services of a regular secretary, occasionally a part-time secretary manned the office phone. Recently he has acquired an answering machine to monitor incoming calls.

The charge here involved among others several subcharges including: (1) failing to timely appear at scheduled court hearings and has been unavailable to court personnel; (2) failing to make himself available to communicate with his clients and other counsel; (3) failing to timely communicate with his clients and to pursue vigorously litigation to protect his clients’ interest, (4) failing to withdraw as counsel when he was asked to do so by his client and (5) that respondent lied to the Prosecutor to hide his identity and failed to appear for trial.

At the disciplinary hearing, the evidence as to subcharge (1) included testimony of the Prosecuting Attorney, the Division Clerk of the Associate Division, and Circuit Clerk of Washington County, as well as records of a case in which respondent had served as counsel. These witnesses claimed that respondent had failed to appear at several scheduled hearings and had been difficult to contact; further the Prosecuting Attorney had resorted to tacking messages on the front door of respondent’s home to contact him.

Respondent’s failure to appear at scheduled court proceedings was disruptive of the system impairing the court’s efforts to dispose of litigation. However, each witness who testified to these matters noted that it has been easier to contact respondent since his acquisition of the answering machine.

Subcharges 2 and 3 rest on the hearsay testimony of the clerks of the circuit and associate circuit courts. Both testified that clients of respondent and opposing attorneys frequently contacted their respective offices attempting to reach respondent. The circuit clerk further testified that during 1989 several of respondent’s clients visited his office complaining because certain matters remained unattended in their cases. Many clients had stated respondent claimed to have performed the requested service but review of their files revealed nothing seemed to have been accomplished.

Nevertheless both clerks testified it had been much easier to contact respondent, especially after acquisition of the answering machine, in the months preceding the disciplinary hearing. Although respondent denied these allegations of inattention to his clients’ needs, he admitted having been hospitalized for periods of time in 1989 due to an urological disease which required surgery on both kidneys followed by a protracted period of recovery and that he was forced to withdraw as counsel from certain cases. Additionally, respondent conceded that prior to the summer of 1990 he did not have a reliable system to receive incoming calls from clients.

Subcharge (4) alleges that respondent failed to withdraw as counsel in a case though repeatedly requested by the client so to do. On August 6, 1987, respondent filed a petition for dissolution of marriage on behalf of Sherry BeAndrews. The record reveals that on June 22, 1989, BeAn-drews sent a letter bearing a notary acknowledgment asking that respondent withdraw as counsel and in that letter stated she had previously requested respondent’s withdrawal. Respondent did not withdraw until December 1989, but contends he did not receive the June 22 letter. BeAndrews in a August 17, 1989, letter to the Missouri Bar Association stated that respondent had refused to withdraw from the case because he claimed she had failed to pay for past services. Other letters demonstrate that in July 1989, BeAndrews was attempting to obtain new counsel through Legal Services of Eastern Missouri, Inc. who mailed a letter to respondent informing him of BeAndrews’ attempts to contact him.

Most certainly attempts were made by BeAndrews and others to contact respondent and discharge him as counsel and respondent’s contrary testimony is insufficient to meet the charge. Rule 1.16 provides that an attorney once discharged shall withdraw from representation of the client and here respondent appears to have procrastinated for at least six months before effecting his withdrawal. Because he failed to act when the client made known her wishes, the charge of subcharge (4) was sustained.

Subcharge 5 alleges that respondent lied to the Washington County Prosecuting Attorney to hide his identity and whereabouts after he had failed to appear for trial. Sucharge 5 stems from an incident described in the testimony of Candide Cooper, Prosecuting Attorney of Washington County. Cooper testified that on August 1, 1989, she was present at court ready for a bench trial of State v. Campbell set that day in which respondent represented the defendant. At the appointed hour respondent failed to appear and could not be located.

Though the evidence bears identifiable traces of a spiteful attitude less than commendable for a prosecutor, the docket sheet for the Campbell case reveals that on June 13, the court set the matter for trial on August 1. That after respondent’s August first “no-show” the matter was reset for August 8 where respondent and his client appeared and requested the matter continued till August 15 for entry of a plea. Further, the facts as related by Cooper were refuted only by respondent.

Finally the complaint alleges that respondent, in violation of Rule 4-8.1(b), failed to cooperate with the Committee in its investigation of a complaint filed by Fred McDaniel. McDaniel is the superintendent of Southeast Missouri Mental Health Center. It was his complaint which led to Count I of the information which the Master found failed for insufficient proof.

Clinton Roberts, chairman of the Committee, testified that a letter was sent August 17, 1989, to respondent informing him of the complaint filed by McDaniel and that respondent was to respond to such with a letter of explanation in ten days. No such response was received by the Committee.

The Special Master in his findings recommended that because the complaint of McDaniel should be dismissed no action should be taken. However Rule 4-8.1(b) provides that an attorney involved in a disciplinary matter shall not “fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter” and we have held that failure to cooperate with the disciplinary authorities may constitute attorney misconduct warranting sanctions. In re Staab, 719 S.W.2d 780, 784 (Mo. banc 1986). The basis of the misconduct for failing to cooperate does not rest upon the merit of the complaint, rather cooperation with the Committee is expected of all attorneys so that such matters may receive prompt resolution. Had respondent responded to the letter from the Committee outlining the evidence later presented at the disciplinary hearing, this matter could have been expeditiously dispatched without need for hearing and review by this Court. It is important however that respondent’s action was an isolated event and since that time he has cooperated fully with the Committee’s investigation in this matter.

In deciding the appropriate sanction I note that respondent, from all testimony gathered, has taken steps to correct the deficiencies of his practice. These include the purchase and operation of an answering machine and the use of call forwarding. Several testifying on behalf of the Committee emphasized it had become easier to contact him in recent months.

While mindful of respondent’s physical handicap and the difficulties this produces in his daily life, such does not excuse the misconduct nor alter the fact the practice of law requires a high level of competence and he must hereafter effect measures to ensure such professional performance of his duties. This entails appearing at scheduled court appearances and providing reasonable means for communications with clients and attorneys alike. If unable to properly serve a client in a particular matter he should withdraw from such case. Significantly most of the allegations raised in the information appear to have occurred in 1989 when respondent was hospitalized and undergoing major surgery. Respondent testified that since that time his health has improved and the record bears witness that since his recovery he is more readily available to clients and officers of the court.

In disciplinary proceedings the Court’s objective is to protect society and maintain the integrity of the legal profession, In re Adelman, 734 S.W.2d 509, 511 (Mo. banc 1987), and to that end the ultimate sanction is disbarment. Such action is reserved for cases of extreme misconduct and it must be clear the attorney is not fit to continue in the profession. In re Waldron, 790 S.W.2d 456, 461 (Mo. banc 1990). Respondent’s actions cannot be said to merit disbarment.

Appointed Special Master, the Honorable Lewis M. Blanton after plenary hearing found respondent had violated certain of the rules and recommended public reprimand. Similarly I conclude reprimand is the appropriate sanction for this case in which the misconduct resulted in minimal harm to the client and the attorney received no personal gain from his actions, In re Kopf, 767 S.W.2d 20, 23 (Mo. banc 1989), and this determination is reinforced by the fact that respondent has resolved most of the difficulties which led to the proliferation of complaints.