In re Barr

796 S.W.2d 617, 1990 Mo. LEXIS 92, 1990 WL 155970
CourtSupreme Court of Missouri
DecidedOctober 16, 1990
DocketNo. 72047
StatusPublished

This text of 796 S.W.2d 617 (In re Barr) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Barr, 796 S.W.2d 617, 1990 Mo. LEXIS 92, 1990 WL 155970 (Mo. 1990).

Opinion

BILLINGS, Judge.

Disciplinary proceeding by the Sixteenth Judicial Circuit Bar Committee pursuant to Rule 51 against respondent George H. Barr. A five count information filed September 11, 1989, in this Court charged respondent with violation of Rules 1.1, 1.3, 1.4, 1.15 and 8.1 of Supreme Court Rule 4-

The Honorable Carl D. Gum, Circuit Judge of the Eighteenth Judicial Circuit, was appointed Master to hear the proceedings, and to make findings of fact and conclusions of law. The Master recommended disbarment. While the Master’s findings, conclusions and recommendation are necessary to the orderly supervision of the bar, they remain advisory. In re Staab, 719 S.W.2d 780, 781 (Mo. banc 1986); In re Hardge, 713 S.W.2d 503, 504 (Mo. banc 1986). This Court must review the evidence de novo, assess witness credibility, and make its own conclusions of law. In re Lavin, 788 S.W.2d 282, 283 (Mo. banc 1990). The Court concludes that respondent’s violations warrant an indefinite suspension from the practice of law, with leave to reapply after six months.

Initially, the Court notes its inherent, original jurisdiction over attorney disciplinary matters in this State, In re Wilson, 391 S.W.2d 914, 917 (Mo. banc 1965), and In re McMullin, 370 S.W.2d 151, 151 (Mo. banc 1963), notwithstanding any agreement which may have been struck between respondent and informant, the Circuit Bar Committee for the Sixteenth Judicial Circuit, as to dismissal of the Information.

Andrei Hill, Gerald Taylor and Norris Williams were employed at the Kansas University Medical Center. Believing they were victims of racial discrimination by their employer, the three sought the services of Steven Wickersham, a Kansas City attorney. Later, Hill, Taylor and Williams thought that Wickersham had mishandled their claims. They then sought the services of respondent to file a legal malpractice suit against Wickersham.

Respondent met with Hill, Taylor and Williams sometime in. 1982. He accepted three filing fees, $61.00 apiece, for the purpose of filing the clients’ malpractice claims against Wickersham.

A. The Hill and Williams claims

Respondent never filed suit on behalf of Hill and Williams, nor did he procure a settlement for the two. Though respondent had judged that the Hill and Williams claims were not worth filing, he never attempted to contact either client to give them the “bad news,” and has not returned their filing fees.

Hill attempted to call Respondent every three to six months, up to 1985. Respondent either did not return ■ Hill’s calls or could not reach him; respondent did not correspond with him. Hill then moved to Wichita, Kansas, where he stayed from 1985 to 1989, but visited respondent’s office once or twice during that period. Unable to see respondent when he dropped in, Hill left messages with the secretary. Again, respondent did not contact Hill.

Respondent does not claim to have ever attempted to contact Williams personally concerning the status of his case. Further, respondent’s claim that he kept Hill and Williams reasonably informed via Taylor, as the “contact person,” fails for lack of proof.

Finally, respondent never discussed a fee with Hill and Williams, and no bill was ever sent. Hill believed respondent would take a percentage of any amount respondent recovered for him from Wickersham. There is no evidence in the record of the amount of time respondent spent on Hill and Williams’ cases.

B. The Taylor claim

Although respondent first met with the clients in March of 1982 concerning the Wickersham matter, it was not until April 19, 1983, that respondent first contacted Wickersham to begin settlement negotiations. Whether respondent had the clients’ [619]*619authority to settle is not clear from the record; at the very least, it can be said respondent did not have authority to make his initial settlement demand for the amount of $4000.00 per client, sometime in March of 1984. Settlement negotiations dragged on.

Finally on December 17, 1986, respondent filed a legal malpractice suit against Wiekersham on behalf of Taylor alone. Aside from the suit having been filed some four years after Taylor first gave respondent the filing fee, the applicable statute of limitations had run in the interim. Respondent also dropped all settlement negotiations on behalf of Hill and Williams at that time.

In early 1988, Wiekersham offered $750.00 in settlement of Taylor’s claim. At respondent’s urging, Taylor signed a release of his causes of action against Wick-ersham, and endorsed the Wiekersham check which had been made out to both Taylor and respondent. Respondent took the check and deposited it in a nontrust account, in his own name, in a bank in Kansas City, Kansas. Respondent never gave Taylor any of the settlement proceeds, though Taylor has requested the money, and though at one time respondent trotted out the old bromide: “the check is in the mail.”

Respondent claims that other legal services he had performed for Taylor, for which respondent remains unpaid, justifies his withholding of the settlement proceeds, as per Rule 1.15, Comment. Indeed, respondent has collected assorted papers, handbooks, photocopies and the like from Taylor on the Wiekersham matter, as well as on other employment and nonem-ployment matters. Respondent has in the past drafted letters to various persons on Taylor’s behalf, and represented Taylor in at least one employment-related hearing.

Respondent claims that as to legal services rendered prior to the Wiekersham matter, he and Taylor had a loose “understanding” that whenever Taylor could pay, he would pay. Yet respondent also admits that Taylor built a fireplace in respondent’s office as, at least, part payment for respondent’s past services. At the hearing before the Master, respondent claimed to have spent in excess of 30 hours on legal matters on Taylor’s behalf. Simply put, however, there exist in the record no fee agreements, and no credible evidence of the time that respondent spent on the Wiekersham matter, or on any other matter, in his representation of Taylor.

At the hearing, respondent admitted Counts I, II, III and V of the five-count Information, and agreed to pay restitution to Hill and Taylor. In return, informant dropped Count IV, the so-called “noncooperation” count, and recommended only a 60-day suspension from practice. Regardless, informant’s recommendation, and indeed the Master’s, as to the proper sanction were but advisory to the Master and this Court, respectively.

Counts I, III and V of the Information essentially reiterate each other. Respondent is charged with violating the following provisions of Supreme Court Rule 4:

Rule 1.1, COMPETENCE — “A. lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Rule l.S, DILIGENCE — “A. lawyer shall act with reasonable diligence and promptness in representing a client.”

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Related

Matter of Williams
711 S.W.2d 518 (Supreme Court of Missouri, 1986)
In Re Staab
785 S.W.2d 551 (Supreme Court of Missouri, 1990)
In Re Littleton
719 S.W.2d 772 (Supreme Court of Missouri, 1986)
In Re Staab
719 S.W.2d 780 (Supreme Court of Missouri, 1986)
In Re Hardge
713 S.W.2d 503 (Supreme Court of Missouri, 1986)
In Re Wilson
391 S.W.2d 914 (Supreme Court of Missouri, 1965)
In re McMullin
370 S.W.2d 151 (Supreme Court of Missouri, 1963)
In re Lavin
788 S.W.2d 282 (Supreme Court of Missouri, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
796 S.W.2d 617, 1990 Mo. LEXIS 92, 1990 WL 155970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-barr-mo-1990.