In re: Eric F. Kayira

SUPREME COURT OF MISSOURI
en banc
Opinion issued January 12, 2021
IN RE: ERIC F. KAYIRA, )
) No. SC98531
Respondent. )
ORIGINAL DISCIPLINARY PROCEEDING
The parties agree that, over a period of approximately five years, Eric F. Kayira
repeatedly failed to notify clients he had received funds belonging to them, engaged in a
pattern of depleting his clients’ funds—frequently to make payments owed to other
clients—and misappropriated client funds to pay for personal and firm expenses. As
Mr. Kayira acknowledges, disbarment is the baseline sanction for knowingly converting
client funds and is the sanction recommended by the disciplinary hearing panel (“DHP”)
and the office of chief disciplinary counsel (“OCDC”).
But, Mr. Kayira argues, this case presents the kind of unusual circumstance in which
consideration of mitigating factors should result in imposition of the lesser sanction of
indefinite suspension. He notes that, at the time of his conduct, he had serious personal
problems, including—he claims without providing any medical support—alcohol abuse
and depression. He also was recently divorced. The DHP considered this information but
found it did not sufficiently mitigate Mr. Kayira’s wrongful conduct so as to lessen the
appropriate sanction from disbarment to suspension.
Mr. Kayira asserts the DHP was unaware he also suffered from bipolar disorder
because he did not discover it himself until after his disciplinary hearing and Rule 5.285
did not permit him to raise this mental disorder as a basis for mitigation of the sanction
once he had filed his answer. If he had been permitted to raise it, he argues, it would have
resulted in a lesser sanction, citing In re Belz, 258 S.W.3d 38 (Mo. banc 2008).
Mr. Kayira is incorrect. Unlike in Belz, Mr. Kayira offered no medical evidence to
support his claim of a mental disorder, and an unsupported allegation of such a disorder is
inadequate to invoke the mitigation features of Rule 5.285. And contrary to Mr. Kayira’s
assertion that one cannot offer such evidence after the answer is filed, Rule 5.285(b)
expressly permits an attorney to raise the issue of a mental disorder out of time if good
cause is shown. Not only did Mr. Kayira fail to provide any proof of good cause, he failed
to even seek permission to raise this defense or offer any evidence in support of it. Finally,
unlike in Belz, he did not show additional mitigating factors such as self-reporting and
voluntary restitution before the information was filed.
In light of Mr. Kayira’s pattern of mishandling and misappropriating client funds,
and the lack of sufficient mitigation evidence, this Court disbars him.
I. STANDARD OF REVIEW
“This Court has inherent authority to regulate the practice of law and administer
attorney discipline.” In re Gardner, 565 S.W.3d 670, 675 (Mo. banc 2019). “The DHP’s
findings of fact and conclusions of law are advisory. This Court decides the facts de
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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 Farris, 472 S.W.3d
549, 557 (Mo. banc 2015) (citations and quotations omitted). “Professional misconduct
must be proven by a preponderance of the evidence before discipline will be imposed.” Id.II. LEGAL STANDARDS GOVERNING ATTORNEY DISCIPLINE
A. General Factors Governing Baseline Level of Discipline
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).
This Court determines appropriate discipline by considering its prior cases and the
American Bar Association’s Standards for Imposing Lawyer Sanctions (1992) (“ABA
Standards”). Gardner, 565 S.W.3d at 677. After finding a lawyer has committed
professional misconduct, this Court considers four primary factors when applying ABA
Standard 3.0 in imposing sanctions: “(a) the duty violated; (b) the lawyer’s mental state;
(c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence
of aggravating or mitigating factors.” Belz, 258 S.W.3d at 42. These four key factors
provide a framework for all disciplinary matters, although other ABA Standards can also
“provide guidance as to appropriate sanctions for specific types of misconduct.” Id.When this Court finds a lawyer has committed multiple acts of misconduct, it
imposes discipline consistent with the most serious violation. In re Ehler, 319 S.W.3d 442,
451 (Mo. banc 2010). The most serious misconduct alleged here is the misappropriation
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of client property. ABA Standard 4.11 provides, “Absent aggravating or mitigating
circumstances … [d]isbarment is generally appropriate when a lawyer knowingly converts
client property and causes injury or potential injury to a client.” This Court similarly has
held “disbarment is most often the appropriate discipline” for the misappropriation of client
funds. Farris, 472 S.W.3d at 570.
In contrast, “[s]uspension is generally appropriate when a lawyer knows or should
know that he is dealing improperly with client property and causes injury or potential injury
to a client.” ABA Standard 4.12. This Court similarly has held suspension may be
appropriate when an attorney does not intentionally take client property but deals with it in
a way that causes injury or potential injury. See Gardner, 565 S.W.3d at 678 (involving an
attorney who was suspended when, in an isolated incident, he paid himself early without
permission, but his conduct “d[id] not show an intent on his part to take monies to which
he ultimately would not have been entitled”).
B. Aggravating and Mitigating Factors
Regardless of the baseline or presumptive discipline, the DHP, and this Court,
always consider aggravating and mitigating factors. Belz, 258 S.W.3d at 42. The ABA
standards list numerous types of mitigating factors, among which are the absence of prior
discipline; the absence of a selfish or dishonest motive; personal and emotional problems;
timely making restitution or attempting in good faith to do so; full cooperation with the
disciplinary authorities; inexperience in the practice of law; good character; physical
disability or mental disorder, when supported by appropriate evidence; and remorse. ABA
Standard 9.32. The ABA standards also list aggravating factors, among which are prior
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discipline; a dishonest or selfish motive; a pattern of misconduct; multiple violations; bad
faith obstruction of the disciplinary proceedings; submitting false evidence; and refusing
to acknowledge wrongfulness. ABA Standard 9.22. This Court considers these same or
similar factors in determining what discipline to impose. See In re Coleman, 295 S.W.3d
857, 870 (Mo. banc 2009) (applying aggravating and mitigating factors as set out in the
ABA Standards); In re Stewart, 342 S.W.3d 307, 312 (Mo. banc 2011) (same).
III. THE ATTORNEY MISAPPROPRIATED CLIENT FUNDS, MISUSED HIS
TRUST ACCOUNT, AND LACKED CANDOR WITH THE COURT AND OCDC
A. DHP Finding of Misappropriation of Trust Estate Funds
In 2000, Mr. Kayira was admitted to practice law in Missouri. After licensure, he
worked as an associate or partner at various St. Louis area law firms before starting his
own law firm, Kayira Law, LLC, in 2008. Mr. Kayira was responsible for the maintenance
and administration of Kayira Law’s trust account and operating account. His practice
currently focuses on entertainment and media law, contracts and commercial disputes, and
litigation. From 2013 to 2018, however, when the conduct in question occurred,
Mr. Kayira also handled personal injury and probate matters.
Mr. Kayira’s misconduct came to OCDC’s attention as a result of his mishandling
of a probate estate in which he and his associate attorney entered their appearances as
counsel for the personal representative. As the estate was subject to supervised
administration, he was required to seek the probate division’s approval for settlements,
attorney fee payments, and numerous other matters directly affecting the estate. See
Gardner, 565 S.W.3d at 676 n.5 (explaining the hallmarks of a supervised administration).
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He, nonetheless, filed a lawsuit on behalf of the estate without informing the probate
division or seeking court approval. He settled the lawsuit for $12,500 but failed to inform
the probate division when he received the settlement check. He believed, instead, he had
the approval of the estate’s beneficiary to take the $12,500 as attorney fees and then paid
himself by depositing those fees into his operating account, rather than the estate’s account,
and dismissed the lawsuit, all without notice to or approval of the probate division.
Mr. Kayira later filed a petition to the convert the estate to an unsupervised estate.
In doing so, he told the probate division the estate was still searching for assets and did not
disclose that he had filed a suit and settled it for a sum that belonged to the estate but that
he had deposited as “earned” attorney fees. Lacking this important information, the probate
division granted the petition.
Almost two years later, the probate division discovered the lawsuit and settlement
when Mr. Kayira moved to withdraw, and informed Mr. Kayira the settlement check was
the estate’s asset. The transcript shows it verbally ordered Mr. Kayira to deposit the check
into the estate’s account. After two months passed without Mr. Kayira complying, the
probate division informed OCDC of Mr. Kayira’s financial conduct.
When contacted by OCDC, Mr. Kayira falsely told the disciplinary authorities he
was “holding” the $12,500 settlement amount in his account. In fact, on the day he made
this statement, his trust account contained $9.13 and his operating account contained
$3,687.44. While Mr. Kayira claimed at his disciplinary hearing that he had simply meant
he believed he had earned the fees, the DHP found this testimony lacked credibility. The
DHP similarly found incredible his claim that he thought the estate already had been
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converted to an unsupervised estate before he received the settlement check, noting his
office had sought approval of a $1,510.75 attorney fee payment just a few months earlier,
something that is not done in an unsupervised estate and that established Mr. Kayira was
aware of the need to seek the probate division’s approval.
Mr. Kayira finally complied with the court’s order and paid the $12,500 into the
estate two days before his scheduled disciplinary hearing—more than five months after the
court’s order—but, even then, he made misrepresentations to the disciplinary authorities
regarding the account from which he paid it. 1 Further, OCDC’s later audit revealed the
reason the settlement funds had not been in his account when the court first ordered him to
pay the settlement into the estate was because he had used a significant portion of the
settlement to pay rent he owed on his residence so as to avoid eviction in a pending
rent-and-possession action filed by his landlord.
Following the disciplinary hearing, the DHP found Mr. Kayira had violated
numerous ethics rules in handling this probate matter, including:
• Rule 4-1.1 (competent representation) by failing to provide competent
representation in the probate matter discussed above;
• Rule 4-3.3(a)(1) (false statement to a tribunal) by knowingly and
intentionally failing to disclose to the probate division in his petition to
convert the estate that he had settled the estate’s claim and had already
received a settlement check;
1
Mr. Kayira claimed he transferred funds from his operating account to his trust account
before remitting the reimbursement check to the estate when, in fact, he had not done so.
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• Rule 4-3.4(c) (knowing disobedience of an obligation under the tribunal’s
rules) by failing to pay the estate back the $12,500 settlement as ordered by
the probate division;
• Rule 4-5.1(a) (partner’s obligation to ensure all lawyers in a firm conform to
the rules) by failing to ensure his associate attorney had the requisite
knowledge and skill necessary to provide competent representation in the
probate matter discussed above; and
• Rule 4-8.1(a) (false statement in a disciplinary matter) and Rule 4-8.4(c)
(conduct involving dishonesty, fraud, deceit, or misrepresentation) by falsely
representing in response to OCDC’s complaint that he was “holding” the
$12,500 in settlement funds and that the estate had been converted to an
unsupervised estate prior to his receipt of the settlement check and by telling
the Advisory Committee he had transferred the $12,500 settlement funds
from his operating account to his trust account prior to remitting the
reimbursement check to the estate.
B. DHP Finding of Misuse of Trust Account and Misappropriation of Client
Funds
The DHP determined mishandling of a probate estate was only a small part of
Mr. Kayira’s ethics violations. The DHP also found he repeatedly mishandled and
misappropriated the funds of 28 clients by engaging in a roughly five-year pattern of
depleting one client’s funds to pay other clients. Mr. Kayira expressly admits he used some
of these clients’ funds to pay personal and firm expenses. Further, he admits he repeatedly
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failed to provide clients with prompt notice of the receipt of settlement funds and failed to
deliver client funds promptly, frequently delaying payment by many months. He also
failed to keep accurate—or, in many instances, any—records of client receipts and
disbursements and of transfers between his trust and operating accounts.
In one of the most egregious instances, in March 2013, Mr. Kayira received a
$50,000 settlement via wire transfer on behalf of a client. Mr. Kayira failed to notify this
client of the settlement. By July 2013, the $50,000 had been depleted—Mr. Kayira’s trust
account balance was $440 and his operating account balance was $3,789.04. In November
2014—more than 18 months after Mr. Kayira received the settlement funds—the client
inquired about the status of his claim. Only then did Mr. Kayira remit a cashier’s check to
the client in the amount of $44,493.56 (the amount he owed the client). Mr. Kayira
admitted he used some of the client’s funds for personal expenses. He also admitted,
because he had depleted the client’s funds, he had to use another client’s funds, along with
other funds, to finally pay the client the amount owed.
Not learning from his mistakes, three years later Mr. Kayira negotiated a
$385,104.30 settlement on behalf of another client, of which, after other payments were
made, Mr. Kayira was entitled to $77,020.86 in fees and the client was owed the remaining
$263,595.89. Despite depositing the settlement check in November 2016, he used much
of it to pay personal expenses and other clients, so it took him until January 2018—more
than 18 months—to pay the client the majority of the funds owed. At the time OCDC filed
its information, Mr. Kayira still owed the client $29,741.13.
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These were not isolated instances. Mr. Kayira engaged in similar misconduct as to
26 other identified clients, ranging from failing to inform one client of a $7,000 settlement
check for more than 10 weeks while he moved the money from his trust account (which
was left with $5) into his operating account and used it for his own purposes, to depositing
advanced fees straight into his operating account without any evidence the fees had been
earned. In another case, Mr. Kayira withdrew $7,500 from the trust account via cashier’s
checks and deposited those checks into his operating account, using half the amount as a
down payment on a personal vehicle.
In other instances, it is impossible to determine how Mr. Kayira used the settlement
funds except to say he did not pay those funds to the appropriate clients for many months
and, in the interim, the accounts were often almost entirely depleted or even overdrawn.
No records exist to explain what happened to other funds other than to show Mr. Kayira
often used funds deposited in favor of one client to pay another client who had been owed
funds for a longer period.
The DHP found this misconduct violated numerous ethical rules, including:
• Rule 4-1.15(a) (failure to safekeep property) by depositing advance costs,
advanced fees, and client funds into his operating account when such funds
should have been deposited into his trust account and held intact for the
benefit of the client;
• Rule 4-1.15(a)(5) (unauthorized cash or electronic trust account
withdrawals) by making in excess of 70 electronic transfers from his trust
account to his operating account when this rule requires withdrawals from a
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trust account “shall be made only by check payable to a named payee, and
not to cash, or by authorized electronic transfer”;
• Rule 4-1.15(a)(7) (failure to reconcile trust account) by failing to reconcile
his trust account at any point between July 2013 and March 2018 when this
rule requires Mr. Kayira to reconcile his trust account “reasonably promptly
each time an official statement from the financial institution is provided or
available”;
• Rule 4-1.15(b) (depositing the lawyer’s own funds in the trust account in
excess of financial service charges) by depositing funds into his trust account
in an amount greater than necessary to pay financial institute service
charges;
• Rule 4-1.15(d) (failure to promptly notify client of receipt of funds; failure
to promptly deliver client funds) by failing to promptly notify the client he
had received settlement funds or other funds in which the client had an
interest, failing to promptly deliver funds owed to clients, and failing to pay
clients the full amount owed to them;
• Rule 4-1.15(f) (failure to keep complete trust account records) by failing to
keep adequate records, including failing to keep a receipt and disbursement
journal, individual client ledgers, settlement sheets, accurate bills for legal
fees and expenses rendered to clients, fee agreements or retainer agreements
with clients, and adequate records involving electronic transfers; and
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• Rule 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or
misrepresentation) by knowingly converting client property by repeatedly
delaying payment to clients or third parties and depleting their share of funds
prior to remitting the payment owed.
C. The DHP Recommended Disbarment
Based on these findings, the DHP concluded, “The overwhelming evidence
presented during the disciplinary hearing revealed that Respondent misappropriated
several thousands of dollars belonging to his clients between July 1, 2013, and March 30,
2018, which Respondent admitted to using some of the misappropriated funds for his
personal use and benefit.” The DHP noted that, absent mitigating circumstances,
disbarment would be the appropriate sanction for what it found to be knowing conversion
of client funds that resulted in injury.
The DHP considered mitigating evidence, including Mr. Kayira’s personal and
emotional problems, his remorse, and his general cooperativeness with the disciplinary
authorities. It found these mitigating factors were insufficient to mitigate the appropriate
sanction of disbarment. It also considered aggravating factors, including Mr. Kayira’s
previous tax suspension and that he had engaged in a pattern of misconduct, violated
multiple rules, had been practicing law for 13 years, and displayed a selfish and dishonest
motive. The DHP recommended disbarment.
IV. DISBARMENT IS THE APPROPRIATE SANCTION
This Court agrees the record supports each of the violations the DHP found,
including Mr. Kayira’s particularly egregious violations involving misappropriation of
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client funds for payment of personal and law practice bills. The misappropriation of client
funds is “one of the most serious types of attorney misconduct.” Farris, 472 S.W.3d at
570. Both ABA Standard 4.11 and this Court’s cases are in accord that misappropriation
usually merits disbarment:
It is always a ground for the disbarment of an attorney that he has
misappropriated the funds of his client, either by failing to pay over money
collected by him for his client or by appropriating to his own use funds
entrusted to his care. That respondent has made restitution of the converted
funds is no defense to these charges.
In re Mentrup, 665 S.W.2d 324, 325 (Mo. banc 1984) (citations omitted); accord In re
Phillips, 767 S.W.2d 16, 18 (Mo. banc 1989) (involving an attorney engaged “in illegal and
dishonest conduct when he received funds on behalf of [the client] and converted these
funds to his own use by placing them in his office account without the [client’s] consent”);
Ehler, 319 S.W.3d at 451 (finding misappropriation is one of the most egregious violations
of the ethics rules).
Here, the egregious nature of Mr. Kayira’s misconduct is compounded by the
aggravating fact that his misappropriation was not an isolated incident but rather is part of
a long pattern of behavior. ABA Standards 9.22 (listing a pattern of misconduct as an
aggravating circumstance); Ehler, 319 S.W.3d at 452 (finding the conduct aggravated by a
pattern of misconduct). Indeed, Mr. Kayira freely admits he misappropriated client funds
when he used them to pay his residential landlord and to make a down payment on a car.
He also admits he used client funds for other personal and firm expenses, routinely depleted
client funds to pay other clients, and treated some client payments as “advance fees” before
he had earned the funds. This, too, is misappropriation:
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When an attorney deposits the client’s funds into an account used by the
attorney for his own purposes, any disbursement from the account for
purposes other than those of the client’s interests has all the characteristics
of misappropriation, particularly when the disbursement reduces the balance
of the account to an amount less than the amount of the funds being held by
the attorney for the client.
In re Schaeffer, 824 S.W.2d 1, 5 (Mo. banc 1992); see also Farris, 472 S.W.3d at 565
(finding dishonest motive when an attorney was “siphoning trust account funds into his
office account and paying personal, non-office related bills and expenses”).
The series of events in this case belies any claim by Mr. Kayira that his actions were
undertaken without knowledge of their wrongfulness. “Knowledge,” as defined in the
ABA Standards, is “the conscious awareness of the nature or attendant circumstances of
the conduct but without the conscious objective or purpose to accomplish a particular
result.” This Court finds, as the DHP did, that Mr. Kayira knowingly converted client
funds when he used funds he knew to be client funds to pay for personal and firm expenses
and to make payments to clients other than the client for whose benefit the funds were
supposed to be held.
In a particularly severe misappropriation case such as this, absent the most
compelling of mitigating circumstances, this Court finds disbarment is appropriate.
Mr. Kayira notes he demonstrated charitable and community involvement. He also
expressed remorse; thereafter, he fully cooperated with the disciplinary authorities and took
classes about how to properly run a law practice. 2 Most importantly, Mr. Kayira claims he
2
While Mr. Kayira also notes he provided restitution, he did not do so until after he had
been caught and an information filed. This Court does not find this to weigh heavily in
favor of mitigation.
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has shown exceptional mitigating circumstances in the form of his testimony as to his
personal and emotional issues during the time period relevant to this disciplinary action.
In particular, he alleged he was going through a divorce, struggled with alcohol abuse and
depression, and, at one point, even considered suicide.
The DHP had before it these mitigating factors, including his cooperation, remorse,
and community involvement, as well as his problems with alcohol, depression, and divorce,
and this Court considers them as well. ABA Standard 9.32(c) provides that such personal
or emotional problems can appropriately be considered in mitigation. As many states note,
such evidence is particularly relevant to the attorney’s state of mind and intent. See, e.g.,
People v. Braham, 409 P.3d 655, 664 n.12 (Colo. O.P.D.J. 2017) (considering attorney’s
depression as an emotional or personal problem where attorney did not show it met
standard of medical disability); In re Thompson, 911 A.2d 373, 377 (Del. 2006) (same);
Johnson v. Kentucky Bar Ass’n, 364 S.W.3d 192, 194 (Ky. 2012) (noting mitigating factors
included “dealing with several family matters including his wife undergoing bypass heart
surgery and his father’s death”); In re Disciplinary Action against Kirschner, 793 N.W.2d
196, 200 (N.D. 2011) (“[P]ersonal or emotional problems do not justify or excuse a
lawyer’s misconduct, but are mitigating factors that may reduce a disciplinary sanction
against a lawyer.”). In addition to personal and emotional problems, ABA Standard 9.22
provides for consideration of cooperation, character, and remorse.
Such mitigating evidence, however, must be weighed against the seriousness of the
offenses and the evidence in aggravation. Here, that included evidence not only of the
misappropriation discussed above but dishonesty when Mr. Kayira initially lied to OCDC
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in stating that he was “holding” the $12,500 in funds and that he believed the estate was
not supervised at the time he paid himself the $12,500. Mr. Kayira also engaged in a long
pattern of misconduct and displayed a selfish and dishonest motive when he used client
funds to pay his rent, car payment, and other miscellaneous personal and firm expenses.
He also displayed a selfish and dishonest motive by continuing to engage in a repeated
cycle of paying one client with another client’s money. As this Court stated in In re
Williams:
We cannot allow an attorney to escape ultimate responsibility for
mishandling of a client’s funds where he knowingly and intentionally ignores
trust account problems and demonstrates an almost total disregard for the
protection of those funds. Certainly where an attorney misappropriates a
client’s funds, protection of the public is uppermost in our minds and
disbarment is generally appropriate in such cases.
711 S.W.2d 518, 522 (Mo. banc 1986). This Court agrees the evidence presented at the
hearing before the DHP does not provide a basis for reducing the baseline sanction from
disbarment to an indefinite suspension.
This does not end the matter, however. In his brief before this Court, Mr. Kayira
for the first time claimed he has learned he also suffers from bipolar disorder and believes
he was suffering from it at the time of his misconduct. Mr. Kayira asserts the DHP was
unaware he had this mental disorder when it recommended disbarment because he did not
discover it himself until after his disciplinary hearing and Rule 5.285 did not permit him to
raise this mental disorder as a basis for mitigation of the sanction once he had filed his
answer. He would have raised this mitigator had he been permitted to do so, he argues,
and then the DHP may have recommended a lesser sanction. In support, he cites Belz, 258
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S.W.3d 38, in which an attorney with a mental disorder was suspended rather than disbarred
following evidence his conduct was caused in part by a mental disorder.
Mr. Kayira’s argument and reliance on Belz are incorrect for numerous reasons.
First, in Belz, the attorney self-reported and kept meticulous records showing what had
happened to his clients’ funds, id. at 39, whereas Mr. Kayira failed in both these respects.
Second, Mr. Kayira offered no medical evidence to support his claim of a mental disorder.
By contrast, in Belz, medical experts testified about the attorney’s mental disorder. Id. at
44.
And, while Mr. Kayira is correct that, after Belz was decided, this Court adopted
Rule 5.285, he is wrong that it does not permit an attorney to raise the existence of a mental
disorder after the attorney has filed an answer, which he had filed long before he received
his alleged diagnosis. 3 To the contrary, while Rule 5.285 indeed provides that notice of
the particular mental disorder and how it affected the attorney’s misconduct must be
provided no later than the answer or amended answer, it then states, “For good cause
shown, the time for claiming the mitigating factor may be extended.” Rule 5.285(b)
(emphasis added).
Mr. Kayira made no attempt to show the DHP he had good cause for failing to raise
his mental condition in his answer. 4 He did not even move to supplement the record with
3
Mr. Kayira did give notice in his answer of an intent to claim attention deficit disorder or
attention deficit hyperactivity disorder as a mental disorder, but he has since abandoned
that mitigation claim and never presented evidence from a licensed medical health
professional regarding those conditions.
4
“Good cause should be given a liberal interpretation and includes good faith mistakes and
even negligence[.]” Dozier v. Dozier, 222 S.W.3d 308, 313 (Mo. App. 2007) (analyzing
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evidence of his claimed diagnosis, much less support such a motion with medical evidence,
even though he did successfully move to submit other evidence regarding restitution after
the close of the disciplinary hearing. Further, he does not even allege he could have offered
evidence that this disorder is what caused his repeated misappropriation and other
inappropriate behavior over the roughly five-year period in question, or otherwise met the
requirements of Rule 5.285. It was his burden to so demonstrate. Id. (“Respondent shall
bear the burden of proof that the mental disorder is a mitigating factor.”).
V. CONCLUSION
For years, Mr. Kayira engaged in an egregious pattern of mishandling and
misappropriating client funds. Despite being on notice in 2014 that his trust account
practices were resulting in the conversion of client funds, he failed to correct course.
Rather than address the obvious issues related to his management of client funds, he
continued to engage in a pattern of depleting one client’s funds to make payments owed to
other clients. Because of this revolving door, Mr. Kayira routinely failed to pay his clients
promptly the funds to which they were entitled. Payments were frequently delayed by
months and, in the worst cases, by 18 months or more. Equally troubling is Mr. Kayira’s
declaration that he never had a selfish motive despite his use of client funds to pay for his
rent, a personal vehicle, and various other personal and firm expenses.
good cause for setting aside default judgment under Rule 74.05(d)); Brungard v. Risky’s
Inc., 240 S.W.3d 685, 688 (Mo. banc 2007) (“‘Good cause’ is defined under Rule 74.05(d)
as including ‘a mistake or conduct that is not intentionally or recklessly designed to impede
the judicial process.’”). Rulings regarding good cause are reviewed for abuse of discretion.
Risky’s Inc., 240 S.W.3d at 688.
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In light of Mr. Kayira’s serious and repeated misappropriation of client funds,
disbarment is the appropriate sanction in this case. Although this Court has considered
Mr. Kayira’s emotional and personal problems and other mitigating factors, they do not
change the appropriate discipline in this case. His remorse and after-the-fact desire to learn
proper trust accounting practices likewise provide him no salvation. This Court has long
said, “To disbar an attorney, it must be clear that the attorney is not fit to continue in the
profession; disbarment is reserved only for clear cases of severe misconduct.” In re
Mirabile, 975 S.W.2d 936, 939 (Mo. banc 1998). This is such a case.
Mr. Kayira is ordered disbarred.
_______________________________
LAURA DENVIR STITH, JUDGE
Wilson, Russell, Powell, Breckenridge, and Fischer, JJ., concur.
Draper, C.J., not participating.
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