In Re: R. Scott Gardner

SUPREME COURT OF MISSOURI
en banc
Opinion issued January 15, 2019
IN RE: R. SCOTT GARDNER, )
) No. SC97207
Respondent. )
ORIGINAL DISCIPLINARY PROCEEDING
Section 473.153, 1 governing payment of personal representative fees, requires
personal representatives to obtain prior approval from the probate division to be paid all
or part of their personal representative fees before final settlement. Here, the probate
division approved early payment of only part of R. Scott Gardner’s personal
representative fee request and specifically directed the remainder of his fees would be
paid only at final settlement. Mr. Gardner nonetheless paid himself most of the
remainder of his fees prior to final settlement, in violation of the circuit court’s order and
the relevant statute. This violation was made worse when Mr. Gardner failed to inform
the court of his payments to himself prior to or even in the final settlement. His conduct
was knowing and, considered without regard to mitigating factors, would merit
suspension. That he was actually entitled to the fees, there was no harm to the estate, and
he had no dishonest motive but rather incorrectly believed local practice would permit his
1
All statutory references are to RSMo 2000 unless otherwise noted.
conduct despite the rule and statute do not lessen the violations but serve to mitigate the
discipline imposed. Also mitigating are Mr. Gardner’s remorse, good character, and lack
of significant disciplinary history. This Court, therefore, imposes an indefinite
suspension with no leave to reapply for six months, but stays the suspension and places
Mr. Gardner on probation for one year under conditions set by this Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
R. Scott Gardner was admitted to practice in Missouri in 1983. After licensure,
Mr. Gardner began practicing at his family law firm in Sedalia. Currently, he is a solo
practitioner. He has maintained a significant probate practice since 1988 but has been a
personal representative on only a few occasions. In 2014, Mr. Gardner was appointed as
personal representative for the estate of Ethel M. Hall, which was pending in the probate
division of the Pettis County circuit court.
The estate was under supervised administration. 2 On February 18, 2015,
Mr. Gardner submitted an amended motion requesting payment of a partial fee of
$30,070 pursuant to section 473.153. The circuit court first issued an order overruling
the motion:
The Court considers the motion for approval of partial payment of fees. The
motion is denied for two reasons. The first is that the motion asks for 5% of
total reimbursements which exceeds the amount authorized by § 473.153
RSMo. Secondly, receiving a fee when an estate closes is a powerful
incentive to encourage a PR to get the estate closed. Were the Court to
authorize early payments of partial fees, this incentive would be lost. This
Court desires to keep this incentive in place.
2
Supervised administration is distinct from independent administration authorized by
will as permitted under sections 473.780 to 473.845.
2
Later the same day, the court issued a second order permitting payment of almost
half of the requested fee:
The Court considers the amended petition for fees. The personal
representative is authorized to pay himself an advance personal
representative fee in the amount of $15,000.00. This amount shall be
deducted from the final calculation of fees due him at the close of the
estate.
Mr. Gardner paid himself the $15,000 permitted by the court’s order.
On or about June 25, 2015, Mr. Gardner wrote a second check to himself from the
estate account in the amount of $15,466. The parties agree this would have been the
remainder of the fee to which he would have been entitled once the estate was settled. He
deposited the money into his law firm account. Despite the circuit court’s prior order
stating the final calculation of the remainder of Mr. Gardner’s fee would occur “at the
close of the estate,” Mr. Gardner did not file a final settlement or otherwise seek to close
the estate at the time he paid himself the remainder of his fee. Neither did he file a
written motion asking for approval of early payment of the remainder of his fee.
Mr. Gardner later testified he acted without court approval and in advance of the
final settlement because, after talking to the estate’s accountant, he concluded the estate
could avoid certain income taxes if it paid out all claims and fees and finally settled the
estate before what he then believed was the end of the tax year on June 30, 2015. In fact,
however, he failed to settle the estate by the end of June after he got caught up in
preparing for a July trial in another matter. Mr. Gardner nonetheless had paid himself his
final fee without informing the court he had done so, and he did so at a time and in a
3
manner inconsistent with the court’s prior order. 3
Mr. Gardner testified he realized he needed to let the court know what had
happened and so went by the judge’s office without a prior appointment on a couple of
occasions but did not locate the judge on those visits. He said he continued to go by the
judge’s office during the following Fourth of July holiday week but also was
unsuccessful in seeing the judge. So far as the record shows, Mr. Gardner did not attempt
either to call the court to inform the judge orally what he had done or to set an
appointment to see the judge, nor did he file a written motion for after-the-fact approval
of the payment. He then forgot about the fee issue in the press of other business and did
not follow up further.
Mr. Gardner filed his final settlement of the estate two months later, on September
3, 2015. The final settlement includes a spreadsheet showing the assets, debits, and
credits of the estate, fees paid to the personal representative, and the distributions to the
estate beneficiaries. In the final settlement spreadsheet, Mr. Gardner listed the correct
total amount of fees due to him, $32,604. He also noted $15,000 of this fee already had
been paid to him on February 26, 2015, but he did not note he had disbursed to himself
the remainder of the fee in June 2015 as well. Attached to this final settlement, however,
3
Mr. Gardner says he based this belief about tax savings on an informal conversation
with his accountant, James Bales, in June 2015. In a letter written to the disciplinary
hearing panel (DHP) five months later, Mr. Bales stated Mr. Gardner saved $1,054 in
federal tax liability and $338 in Missouri tax liability when he paid himself early.
Despite Mr. Gardner’s belief the fiscal year was imminently coming to a close on the one
year anniversary of Ms. Hill’s death, the office of chief disciplinary counsel (OCDC) also
submitted evidence the fiscal year for the estate ended a month earlier, in late May,
negating the urgency of the June withdrawals.
4
Mr. Gardner included bank records of disbursements from the estate that did show the
June 2015 payment to himself of $15,466.
On September 10, 2015, upon reviewing the filing and attachments, the circuit
court discovered the advance payment and ordered Mr. Gardner to appear on September
15, 2015, to show cause why he should not be held in contempt and removed as personal
representative in light of his early advance payment to himself without court permission
and in violation of the court’s order. Mr. Gardner then went to the judge’s office and
spoke with him about the early payment, and the circuit court canceled the hearing.
The next day, Mr. Gardner finally submitted a motion requesting approval to pay
himself the total personal representative fee. The circuit court nonetheless issued a
contempt order on September 14, 2015, and reduced Mr. Gardner’s fee by $2,138. The
following month, however, the circuit court set aside this contempt order and entered a
revised order directing Mr. Gardner to restore the $15,466 he had paid himself the prior
June and appear before the court to address his removal as personal representative. 4
On March 21, 2017, the circuit court appointed a different attorney as successor
personal representative. The successor personal representative and Mr. Gardner entered
into a stipulation for the payment of personal representative fees for the estate, which the
court approved. Under the stipulation, the successor personal representative received
$2,500 and Mr. Gardner received $15,105.
4
This later hearing apparently did not occur because, in the interim, Mr. Gardner
contested several of the circuit court’s rulings, which eventually resulted in a change of
judge.
5
The judge later testified Mr. Gardner apologized during their conversation and
asked for permission to file a revised petition for fees. The judge also testified he had no
issue with the amount of the fee and did not believe Mr. Gardner was trying to be paid
twice. Instead, the judge was concerned with the length of the delay between the time
Mr. Gardner advanced the rest of his fee to himself and the time Mr. Gardner filed the
final settlement. The judge acknowledged attorneys occasionally disburse fees to
themselves just before filing the final settlement, and Mr. Gardner said at the time he was
planning to close the estate within a few days. But, the judge testified, that is not what
happened here:
The way it works is, when the attorney files the final settlement, usually,
that subsection right there describes the fees they’re proposing, and so I
authorize it, but I never actually look and see whether the proposed check
to themselves is actually -- was cashed the day before or the week before.
When it’s right around the final settlement, I just assume that’s the
reasonable protocol. It was only because this was several months earlier
that caused me concern.
The judge later testified he believed Mr. Gardner’s reduction in fees was a “fair
resolution of the personal representative fee issue.” The judge also testified he thought
Mr. Gardner was a good man who worked to make a difference in his community.
On September 29, 2017, OCDC filed an information alleging Mr. Gardner had
committed professional misconduct in violation of Rule 4-1.15 (failing to safekeep client
property); Rule 4-3.3 (making a false statement of fact to a tribunal); Rule 4-3.4(c)
(taking a fee without court authorization and in violation of the circuit court’s February
18, 2015 order); Rule 4-8.4(c) (engaging in deceitful conduct in taking a personal
representative fee without court authorization).
6
Mr. Gardner testified it was his firm’s practice to file an application for court
approval before paying out fees from an estate. Mr. Gardner also acknowledged he made
a mistake when he failed to list the payment on the final settlement spreadsheet.
Mr. Gardner said this occurred because he had prepared the draft of the final settlement in
June 2015, before he discussed tax liability with the accountant. After hearing about the
possibility of avoiding a tax liability, Mr. Gardner testified he took the payment and
attached a copy of the check to the final settlement paperwork, but forgot to revise the
listed payment totals within the form itself. He testified he believed the clerk would see
the check when looking at the copy of the bank records he included, and he did not intend
to hide the payment.
During the proceedings, Mr. Gardner presented evidence from a former associate
circuit judge who had presided over probate matters in the county from 1975 to 2006.
Both the former judge and Mr. Gardner testified they believed Mr. Gardner could
lawfully pay himself a personal representative fee without a court order because it was a
claim against the estate under section 473.433. Finally, Mr. Gardner submitted affidavits
from attorneys and judges who have experience working with him and can testify to his
honesty and character. These affidavits averred Mr. Gardner was “a man of high moral
character and integrity” with a reputation for being “honest and above-board” and stated
Mr. Gardner “will not seize an unfair advantage or engage in sharp dealing. He is always
prepared, professional and friendly.”
The disciplinary hearing panel found Mr. Gardner violated Rules 4-1.15, 4-3.3(a),
4-3.4(c), and 4-8.4(c) of the rules of professional conduct. It recommended an order of
7
suspension with no leave to apply for reinstatement for six months.
II. STANDARD OF REVIEW
This Court has inherent authority to regulate the practice of law and administer
attorney discipline. See Rule 5; In re Zink, 278 S.W.3d 166, 169 (Mo. banc 2009). The
DHP’s findings of fact, conclusions of law, and recommendations are advisory. In re
Oberhellmann, 873 S.W.2d 851, 852 (Mo. banc 1994). “This Court [in a disciplinary
proceeding] reviews the evidence de novo, independently determining all issues
pertaining to credibility of witnesses and the weight of the evidence, and draws its own
conclusions of law.” In re Snyder, 35 S.W.3d 380, 382 (Mo. banc 2000) (Citations
omitted).
III. MR. GARDNER’S DISBURSAL OF HIS PERSONAL REPRESENTATIVE
FEE EARLY AND CONTRARY TO COURT ORDER VIOLATED THE
DISCIPLINARY RULES AND MERITS DISCIPLINE
This Court begins its analysis by considering whether the facts show counsel
violated any disciplinary rules. It then turns to the question of the appropriate discipline.
A. Mr. Gardner’s Actions Violated the Rules of Professional Conduct
This case does not involve self-dealing or misappropriation. There is no contention
Mr. Gardner was attempting to obtain a second fee or sought more money than he had
earned. Further, there is no contention Mr. Gardner’s conduct caused harm to the estate.
The issue before this Court is whether Mr. Gardner knowingly violated a court order and
statute prohibiting him from paying himself his fees prior to the final settlement of the
estate and, if so, whether this violates the rules of professional conduct. For those serving
as personal representatives, the probate code sets out specific procedures governing the
8
fees to which a personal representative is entitled and the process to be followed before
being entitled to those fees:
1. … When there is only one personal representative he shall be allowed as
the minimum compensation for his services the following percentages
of the value of the personal property administered and of the proceeds
of all real property sold under order of the probate court:
….
3. Attorneys performing services for the estate at the instance of the
personal representative shall be allowed out of the estate as the
minimum compensation for their services sums equal to the percentages
set forth in the schedule contained in subsection 1 of this section.
….
6. Compensation properly allowable hereunder may be allowed to
personal representatives or attorneys upon final settlement, or partial
compensation upon application therefor, at any time or times during
administration.
§ 473.153 (emphasis added).
As is evident, section 473.153.6 specifically provides a personal representative is
not entitled to payment of even a partial fee before final settlement in the absence of an
application for approval of the early payment. Mr. Gardner showed his awareness of this
requirement when he sought and obtained court approval for a partial payment of his fee
in February 2015, pursuant to section 473.153; initially sought informal after-the-fact oral
approval for the additional payment in June 2015; and ultimately filed a motion for
approval of these payments following final settlement.
Mr. Gardner’s only explanation for his conduct is his contention he believed he
could pay himself his fee without court approval because his fee request would be treated
as a claim under the statutes governing claims of creditors against the estate. See
§§ 473.360-473.444. Personal representatives are not mere creditors of the estate. They
9
have a fiduciary obligation to the estate and must avoid conflicts of interest. Estate of
Keen, 488 S.W.3d 73, 92 (Mo. App. 2016). For this reason, Missouri probate statutes
require court approval of many of the personal representative’s actions in a supervised
estate. 5 Section 473.153 also specifically provides when and how personal
representatives are paid fees for work done as a personal representative. It gives the
probate division the authority to approve such fees and imposes on the personal
representative the obligation to obtain such approval. Id.
It is well-established “where one statute deals with the subject in general terms and
the other deals in a specific way, to the extent they conflict, the specific statute prevails
over the general statute.” Turner v. Sch. Dist. of Clayton, 318 S.W.3d 660, 668 (Mo. banc
2010). Section 473.153, which specifically governs fees paid to personal representatives,
therefore, is the governing statute. No personal representative reasonably could believe
he could instead pay himself his fee without court approval. And indeed, Mr. Gardner’s
February application for court approval of early payment of his partial fee shows he was
well aware of his statutory obligation to obtain court approval.
The misconduct is compounded by the fact Mr. Gardner’s conduct violated the
circuit court’s order specifically directing Mr. Gardner he could not take the remainder of
5
The hallmark of a supervised administration is direct court supervision over many of the
personal representative’s actions. For example, a court order is required for the sale of
property (except when the will authorizes power of sale), § 473.457, and the partial
distribution of property. § 473.613. In a supervised estate, personal representatives must
prepare the final settlement of the estate accompanied by “vouchers” verifying every
disbursement of the personal representative for review by the court. § 473.543. The
personal representative may close the estate and make final distributions only after the
court has reviewed and approved this final settlement. § 473.583.
10
his fee until final settlement. Mr. Gardner’s suggestion the court’s second order
permitting him to take $15,000 of his fee before final settlement also sub silentio
removed the prohibition in the court’s first order on paying himself the remainder of his
fee whenever he wanted is not supported by the language of either order. To the
contrary, the second order stated:
the Court considers the amended petition for fees. The personal
representative is authorized to pay himself an advance personal
representative fee in the amount of $15,000. This amount shall be
deducted from the final calculation of fees due him at the close of the
estate.
(Emphasis added). This language can be interpreted only as saying the remainder of Mr.
Gardner’s fees would not be calculated and due him until “the close of the estate.”
Mr. Gardner violated Rule 4-3.4(c) when he took a personal representative fee
without court authorization and in violation of the circuit court’s February 18, 2015
order. Mr. Gardner also violated Rule 4-1.15 by failing to safekeep client property when
he withdrew money for personal representative fees without court authorization. 6 This
conduct, as well as Mr. Gardner’s submission of a ledger as part of the final settlement
which failed to list the unauthorized payment, also violated Rule 4-3.3, which prohibits
making a false statement of fact to a tribunal, and Rule 4-8.4(c), which prohibits
engaging in deceitful conduct.
6
Further, even were it appropriate to treat Mr. Gardner’s personal representative fees as
claims against the estate, he still could not have paid himself his own fees. To avoid the
potential conflict of interest when there is only one personal representative, section
473.423 requires “the court shall appoint some suitable person as administrator ad litem
to appear and manage the defense” against the claim.
11
B. A Stayed Suspension is the Appropriate Discipline in Light of the Absence of
Dishonest or Selfish Motive
In determining appropriate discipline, this Court is guided by two key principles:
The purpose of discipline is not to punish the attorney, but to protect the
public and maintain the integrity of the legal profession. Those twin
purposes may be achieved both directly, by removing a person from the
practice of law, and indirectly, by imposing a sanction which serves to deter
other members of the Bar from engaging in similar conduct.
In re Kazanas, 96 S.W.3d 803, 807-08 (Mo. banc 2003).
In furtherance of these principles, this Court looks at the individual facts and
“considers the ethical duty violated, the attorney’s mental state, the extent of actual or
potential injury caused by the attorney’s misconduct, and any aggravating or mitigating
factors.” In re McMillin, 521 S.W.3d 604, 610 (Mo. banc 2017). This Court looks for
guidance from the American Bar Association Standards for Imposing Lawyer Sanctions
(ABA Standards) and applies those standards and its prior cases to those facts.
In re Madison, 282 S.W.3d 350, 360 (Mo. banc 2009). 7
1. Mr. Gardner’s Conduct was in Part Knowing and in Part Negligent
The first issue this Court considers is the state of mind with which the attorney
acted in committing the rule violations. The recommended discipline for violations under
the ABA Standards differs based on whether the lawyer acted intentionally, knowingly,
or negligently. ABA Standards § 3.0; see, e.g. In re Forck, 418 S.W.3d 437, 442
(Mo. banc 2014). Generally, the baseline discipline for intentional misconduct is
7
Accord In re Belz, 258 S.W.3d 38, 42 (Mo. banc 2008); In re Crews, 159 S.W.3d 355,
360-61 (Mo. banc 2005); In re Griffey, 873 S.W.2d 600, 603 (Mo. banc 1994).
12
disbarment, for knowing misconduct is suspension, and for isolated instances of negligent
misconduct is a reprimand. See generally ABA Standards §§ 4.1; 5.1; 6.1; 6.2.
“Intention” is defined as “the conscious objective or purpose to accomplish a
particular result. ABA Standards, Definitions. “Knowledge” is defined as “a conscious
awareness of the nature or attendant circumstances of the conduct but without the
conscious objective or purpose to accomplish a result.” Id. “Negligence” is defined as “a
failure of a lawyer to heed a substantial risk that circumstances exist or that a result will
follow, which failure is a deviation from the standard of care that a reasonable lawyer
would exercise in that situation.” Id. When an attorney has committed multiple acts of
misconduct, “the ultimate sanction imposed should at least be consistent with the
sanction for the most serious instance of misconduct among the violations.” In re
Coleman, 295 S.W.3d 857, 870 (Mo. banc 2009).
Mr. Gardner concedes he withdrew the remainder of his fees from the estate
knowing he did not have court permission to do so. He maintains, however, he did not
know this was impermissible. Mr. Gardner contends he was at most negligent in
believing he could withdraw the fees without court permission, and he correctly points
out the estate suffered no injury as he only took the fee to which he would have been
entitled. Mr. Gardner also argues he did not knowingly submit false information but
instead inadvertently omitted relevant information in his final settlement.
This Court agrees the record shows Mr. Gardner’s misconduct was an isolated
instance and does not show an intent on his part to take monies to which he ultimately
13
would not have been entitled. This Court credits Mr. Gardner’s statement he believed it
would not be a problem to withdraw the payment a few days early, because the payment
would allow him to settle the estate very shortly thereafter and so save taxes for the
estate. The Court further finds his conduct reflects negligence in failing to familiarize
himself with the law governing when and how a personal representative may obtain fees.
This Court also finds Mr. Gardner’s failure to list his unauthorized payment in the final
settlement to be negligent rather than intentional, in light of his attachment of the check
showing the payment and his explanation he had forgotten to update the previously
prepared settlement form.
But this Court finds Mr. Gardner’s claim he thought the specific statute governing
payment of personal representative fees did not apply to him is not credible. This Court
further finds his claim the circuit court’s order did not prohibit him from taking the fee
early to be misleading and his conduct in seeking approval and then taking the fee when
he could not find the judge to obtain approval, as well as his other conduct showing such
approval was needed, show Mr. Gardner knew he took the fee without authorization and
in violation of the February order. This Court finds he did so believing it was a minor
issue, because it is conceded he was entitled to the fee as soon as he closed the estate, and
he believed it was local practice to allow such payments within a few days before filing a
final settlement. Once Mr. Gardner realized the estate would not be closed by the end of
June 2015, however, he still did not obtain court approval or file a written motion
explaining what had happened in writing. Instead, he failed to act until after the circuit
court discovered the situation months later.
14
Mr. Garner’s conduct, therefore, was in part negligent and in part knowing. In
keeping with the principle the discipline will match the most serious misconduct, this
conduct considered alone would merit suspension as the presumptive result for these
violations. ABA Standards § 6.22 (“Suspension is generally appropriate when a lawyer
knows that he or she is violating a court order or rule, and causes injury or potential
injury to a client or other party, or causes interference or potential interference with the
legal proceeding”).
2. Mitigating Factors Support Imposition of a Stayed Suspension
After determining what rules were violated and the baseline discipline for those
violations, this Court considers aggravating and mitigating factors in determining the
appropriate discipline. In re Belz, 258 S.W.3d at 39. “Mitigating factors do not constitute
a defense to a finding of misconduct. But they may justify a downward departure from
the presumptively proper discipline.” In re Farris, 472 S.W.3d 549, 563 (Mo. banc 2015)
(citations omitted). Several mitigating factors apply to Mr. Gardner and justify staying
the suspension otherwise appropriate for his misconduct.
Most importantly, there is no evidence Mr. Gardner acted with a selfish or
dishonest motive. Although the dissent suggests Mr. Gardner was acting for his own
financial benefit, Mr. Gardner did not take more money than he earned. There is no
evidence to suggest Mr. Gardner took the fees early because he was suffering personal
financial difficulties or because he needed the funds early for cash-flow purposes. The
record does not show any self-serving motivation as Mr. Gardner did not, in fact, benefit
more from taking the funds in June than if he had waited to take the funds when he filed
15
the settlement two months later. Instead, the evidence shows Mr. Gardner undertook this
early payment after speaking with the tax advisor and then failed to immediately inform
the circuit court out of carelessness and an erroneous belief minor deviations from the
statutory procedure would be acceptable even if not proper. Cf. In re Farris, 472 S.W.3d
at 565 (dishonest motive when an attorney was “siphoning trust account funds into his
office account and paying personal, non-office related bills and expenses”); In re Ehler,
319 S.W.3d 442, 452 (Mo. banc 2010) (selfish motive when an attorney “repeatedly
converted client funds for her own personal use.”).
That no clients were harmed by Mr. Gardner’s misconduct is also a
long-recognized and important mitigating factor. In re Weier 994 S.W.2d 554, 558 (Mo.
banc 1999); In re Cupples, 979 S.W.2d 932, 937 (Mo. banc 1998). The evidence before
the Court also shows evidence of good character, a mitigating factor under the ABA
Standards. ABA Standards § 9.32(g).
Further, Mr. Gardner has an excellent record as an attorney. The judge whose
order Mr. Gardner violated testified Mr. Gardner was a good man who worked to make a
difference in his community, and this was confirmed by the affidavits filed by other
judges and lawyers. Mr. Gardner’s conduct in this instance clearly was a deviation from
his normal behavior and in part due to his unfamiliarity with the rules governing personal
representatives.
Evidence of good character is more likely to be a mitigator when the attorney has
also admitted to the misdeeds and shows some remorse. See In re Stewart, 342 S.W.3d
307, 311 (Mo. banc 2011); In re Frick, 694 S.W.2d 473, 480 (Mo. banc 1985) (showing
16
of remorse is a mitigating factor); ABA Standards § 9.32(l). Mr. Gardner showed
remorse for his conduct. He openly testified with regret for failing to submit the final
settlement immediately after his payment to himself and for failing to modify the
settlement to show the payment, stating “that was completely a mistake on my part,” and
“I thought I -- I really truly thought it was in there. And I just flat screwed up.” This
Court also finds Mr. Gardner displayed a cooperative attitude toward the proceeding. See
ABA Standards § 9.32(e) (“full and free disclosure to disciplinary board or cooperative
attitude during proceedings” is a mitigating factor).
Mr. Gardner does have substantial experience as an attorney, which is a minor
aggravating factor, and, as the dissent notes, he agreed to one prior admonition years ago
regarding his probate practice, but he has never has been the subject of discipline
imposed by this Court. See ABA Standards §§ 9.22 (a) and (i); Rule 5.16. And he did
violate the circuit court order. But, while the dissent says this mandates a non-stayed
suspension regardless of other mitigators, to do so would disregard the importance of
these other mitigating factors. It also misapprehends Mr. Gardner’s state of mind in
undertaking the premature payment of his fees. His conduct in taking the fees was not a
disregard of a court order in an attempt to mislead the court. To the contrary, Mr.
Gardner was required to and did submit the final settlement, which included a copy of the
check paying himself the remainder of the fees then owed. It seems evident he
erroneously and negligently believed this conduct would be acceptable.
While meriting the serious sanction of suspension, his violation of the circuit
court’s order should not by itself prohibit staying of the suspension. The aggravating
17
factor highlighted by the dissent is outweighed by the mitigating factors noted. The
primary purposes of discipline are to protect the public, the legal system, and the legal
profession. Weier, 994 S.W.2d at 561. A stayed suspension serves those purposes.
IV. CONCLUSION
For the foregoing reasons, Mr. Gardner is suspended indefinitely from the practice
of law with no leave to apply for reinstatement for six months. Execution of the
suspension is stayed, and he is placed on a one year term of probation to be completed in
accordance with the conditions imposed by this Court.
_________________________________
LAURA DENVIR STITH, JUDGE
Draper, Russell and Breckenridge, JJ., concur;
Powell, J., dissents in separate opinion filed;
Fischer, C.J. and Wilson, J., concur in opinion
of Powell, J.
18
SUPREME COURT OF MISSOURI
en banc
IN RE: R. SCOTT GARDNER, )
) No. SC97207
Respondent. )
DISSENTING OPINION
I respectfully dissent to draw attention to the gravity of Mr. Gardner’s misconduct,
which the principal opinion understates by staying Mr. Gardner’s suspension. Mr. Gardner
knowingly violated a court order when he took the remainder of his personal representative
fee from his client’s estate before the estate was closed. This gross misconduct caused
damage to the integrity of the legal profession and diminished public confidence in our
system of justice. This Court, therefore, should suspend indefinitely Mr. Gardner from the
practice of law with no leave to apply for reinstatement for six months.
I concur with the principal opinion’s conclusion that Mr. Gardner violated Rule
4-3.4(c) when he took the remainder of his personal representative fee from a probate estate
without court authorization and in knowing violation of a circuit court order. I also concur
with the principal opinion’s conclusion that Mr. Gardner violated Rule 4-1.15 by failing to
safekeep client property, Rule 4-3.3 by making a false statement to a tribunal, and Rule
4-8.4(c) by engaging in deceitful conduct. I write separately, however, because a stayed
suspension is not the appropriate sanction for Mr. Gardner’s misconduct.
“[T]he purpose of disciplinary proceedings is to protect the public and maintain the
integrity of the legal profession.” In re Waldron, 790 S.W.2d 456, 457 (Mo. banc 1990).
To maintain the integrity of the legal profession, this Court should not turn a blind eye to
Mr. Gardner’s serious misconduct by staying his suspension and placing him on probation.
Instead, Mr. Gardner’s license to practice law should be suspended indefinitely for paying
himself the remainder of his personal representative fee after the circuit court specifically
denied his request for the entire fee until the estate was closed. 1 Mr. Gardner not only
violated § 473.153.6, 2 as the principal opinion accurately articulates, but he also knowingly
disregarded the circuit court’s order when he pocketed more then $15,000 before his
client’s estate was closed. Although Mr. Gardner claims his conduct conformed to local
practice, local practice cannot and does not justify the violation of a statute or a circuit
court order. See Rose v. State Bd. of Registration for Healing Arts, 397 S.W.2d 570 (Mo.
1
Mr. Gardner filed two motions with the circuit court seeking approval of the payment of
his personal representative fees in the amount of $30,070. The circuit court denied
Mr. Gardner’s request stating:
The [initial] motion is denied … receiving a fee when an estate closes is a
powerful incentive to encourage a PR to get the estate closed. Were the Court
to authorize early payments …, this incentive would be lost. This Court
desires to keep this incentive in place. The Court considers the amended
petition for fees. The personal representative is authorized to pay himself an
advance of PR fees in the amount of $15,000. This amount shall be deducted
from the final calculation of fees due him at the close of the estate.
2
Citations are to RSMo 2000 unless otherwise indicated.
2
1965). 3 This misconduct harmed the integrity of the legal profession and the probate
process and, therefore, warrants an actual, indefinite suspension with no leave to apply for
reinstatement for six months.
The ABA standards for imposing sanctions support this conclusion. Mr. Gardner
knowingly removed funds from his client’s estate for payment of personal representative
fees after the circuit court specifically denied his request to receive payment before the
estate was closed. Rule 4-3.4(c) states in pertinent part, “A lawyer shall not … knowingly
disobey an obligation under the rules of a tribunal ….” The ABA standard for
violating Rule 4-3.4(c), titled “Abuse of the Legal Process,” states in pertinent part,
“Suspension is generally appropriate when a lawyer knows that he or she is violating a
court order or rule, and … causes interference or potential interference with the legal
proceeding.” ABA Standard 6.22.
The circuit court’s order made it clear the court had no intention of awarding the
remainder of Mr. Gardner’s fee until the final settlement was filed. Nevertheless, and in
direct contradiction to the order, Mr. Gardner paid himself the remainder of his fee before
the estate was closed, and he did not disclose the payment in the final settlement, interfering
with the probate proceeding and causing damage to the integrity of the legal profession and
the probate process.
3
In Rose, this Court affirmed the revocation of a physician’s medical license because the
local practice of writing false prescriptions to obtain drugs to keep as supplies in a
physician’s bag did not justify the writing of knowingly false prescriptions. 397 S.W.2d
at 577. Similarly, the local practice of paying oneself a personal representative fee before
filing a final settlement cannot justify doing so in violation of § 473.153.6 and a circuit
court order.
3
This Court takes seriously misconduct in the handling of a probate estate. In the
case of In re Charron, 918 S.W.2d 257, 261 (Mo. banc 1996), an attorney, serving as
personal representative of a probate estate, failed to file a final settlement before paying
himself a personal representative fee and $20,000 owed to him by the decedent on an
unrelated promissory note. Id. at 259. These payments were not approved by the circuit
court and violated state law. 4 Id. at 259–60. This Court held the most serious misconduct
was the payment of $20,000 owed to him by the decedent on the promissory note without
court approval. Id. at 262. Although the attorney in Charron was actually entitled to the
money he paid himself, this Court still found the attorney’s misconduct warranted
suspension with leave to apply for reinstatement in one year. Id.
Similarly, in this case, Mr. Gardner took money from an estate without court
approval and in violation of state law. However, Mr. Gardner’s misconduct is more
egregious because he took the money in violation of the circuit court’s express order stating
Mr. Gardner was not entitled to the remainder of his personal representative fee until the
close of the estate. Even though Mr. Gardner had a legitimate claim to the money, an actual
suspension is the appropriate sanction as it was in Charron because Mr. Gardner took the
money in violation of a state statute and in knowing violation of the circuit court’s order.
ABA standards 9.22 and 9.23 set forth mitigating and aggravating factors to
consider when imposing lawyer sanctions. Aggravating factors, in this case, include
4
The attorney’s payment to himself on the promissory note violated § 473.423, which
requires the appointment of an administrator ad litem when the personal representative is
also a creditor of the estate.
4
Mr. Gardner’s refusal to acknowledge his misconduct by insisting what he did was not
wrong, substantial experience in the practice of law, failure to disclose the early payment
until it was discovered, and a selfish motive. Although the principal opinion concludes
Mr. Gardner did not act with a selfish motive in taking the remainder of his fee before final
settlement of the estate, Mr. Gardner recognized an obvious financial benefit by taking the
entire personal representative fee before the estate closed even though he acted with the
belief it would lower the estate’s tax liability. These aggravating factors, alone, warrant an
indefinite suspension.
In addition to these aggravating factors, it is also significant Mr. Gardner accepted
an admonition in 2011 for failing to reasonably communicate with his client about a
settlement offer and failing to act with reasonable diligence in closing an estate. The
principal opinion downplays the significance of the admonition even though it arose from
the mishandling of another probate matter. These prior acts suggest an indefinite
suspension would better protect the public and maintain the integrity of the legal
profession.
Furthermore, while the mitigating factors cited in the principal opinion may justify
a shorter period of suspension, a departure from the baseline sanction of an actual
suspension is unwarranted because Mr. Gardner knew he was violating the circuit court’s
order when he paid himself the remainder of his fee before the estate closed. Anything less
than an actual, indefinite suspension suggests this Court tolerates lawyers knowingly
violating court orders and will undoubtedly damage the public’s perception of the legal
profession.
5
Accordingly, because Mr. Gardner knowingly violated the circuit court’s order
when he paid himself the remainder of his personal representative fee before the estate
closed, I would recommend this Court suspend Mr. Gardner from the practice of law
indefinitely with no leave to apply for reinstatement for six months.
____
W. Brent Powell, Judge
6