In re Crouppen

731 S.W.2d 247, 1987 Mo. LEXIS 300
CourtSupreme Court of Missouri
DecidedJune 16, 1987
DocketNo. 68424
StatusPublished

This text of 731 S.W.2d 247 (In re Crouppen) 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 Crouppen, 731 S.W.2d 247, 1987 Mo. LEXIS 300 (Mo. 1987).

Opinion

ROBERTSON, Judge.

This is a disciplinary proceeding instituted by the Bar Committee of the Twenty-Second Judicial Circuit pursuant to Supreme Court Rule 5. On July 17, 1986, the Bar Committee filed an information in this Court charging respondents Terry B. Crouppen and Myron S. Zwibelman, attorneys and partners engaged in the practice of law in the City of St. Louis, Missouri, with violations of Rule 4, DR 2-103(A) and DR 2-103(B) (1981). This Court appointed the Honorable Edward D. Hodge, Presiding Judge, Twelfth Judicial Circuit, Special Master. The Master conducted a hearing and entered findings of fact and conclusions of Iaw-

I.

On or about April 11,1981, Virgil Brown, a Missouri Pacific Railroad employee, injured his back and groin while on the job. He apparently called two attorneys in the St. Louis area, Marshall Friedman and Robert F. Ritter and talked with each of them about handling his injury claim. On April 21, 1981, Brown signed a contingent fee contract with Mr. Ritter.

On April 28, 1981, Brown entered Normandy Osteopathic Hospital to undergo surgery for his injuries. In the early evening of April 28, respondents Crouppen and Zwibelman, though uninvited, arrived at Brown’s hospital room. Brown testified that Zwibelman had called him on the telephone prior to coming to the hospital and that during that telephone conversation, Brown told Zwibelman he already had an attorney. Brown’s wife, Chisena Brown, and a family friend, Linda White, were with him in the hospital at the time of respondents’ visit. The Browns and Ms. White have different recollections about the events which took place at the hospital. Mrs. Brown testified that Mr. Brown informed respondents that he had a lawyer with whom he was satisfied. Ms. White testified that Mr. Brown informed respondents that he had “talked” to Mr. Ritter but that Brown never indicated that he and Ritter had entered into a contract.

Respondents spoke with Brown for approximately 15 minutes. Brown, by his own account “somewhat confused — being in pain and whatnot,” recalls that respondents denigrated Mr. Ritter’s legal abilities and extolled their own virtues as attorneys, offering to make him rich and match or beat any fee for which any other attorney would handle his case. Neither Mrs. Brown nor Ms. White testified concerning comments about Ritter’s ability. Mrs. Brown did recall, however, that respondents made positive comments about their ability to handle Brown’s case.

[248]*248After apparently suggesting that Brown consider hiring them and, according to Brown, encouraging him to discharge Rit-ter, respondents left the hospital room. Brown testified that Zwibelman made subsequent telephone calls to him asking whether Ritter had been discharged. On or about April 29, Brown received a bouquet of helium-filled balloons. With the balloons was a card inscribed, “Best wishes for a speedy recovery. The law firm of Brown, Crouppen, Walther and Zwibel-man.”

For their part, Crouppen and Zwibelman testified that one of their clients, a Larry Clark, had called the law firm, indicating that his friend, Virgil Brown, was in the hospital and in need of an attorney as a result of work-related injuries. According to respondents, Clark’s call prompted them to visit the hospital on the way home from the office. Respondents deny any disparaging comments about Ritter’s abilities. After leaving the hospital, respondents claim they were unsure whether they had left a business card with Brown. The balloons were intended to assure that Brown knew their firm name. Respondents further deny ever speaking with Brown on the telephone — either before or after the hospital visit.

On May 2,1981, Brown called Mr. Ritter and related the story of respondents’ visit in the hospital room. Ritter called Zwibel-man telling him to stay out of Brown’s hospital room and suggesting that he would turn the matter over to the Bar Committee for further investigation. After Zwibelman related the substance of Rit-ter’s call to Crouppen, Crouppen called Rit-ter. Crouppen informed Ritter that Brown was not telling him the truth. During the course of these conversations, one of the respondents, apparently attempting to justify his conduct, told Ritter, “Come on Bob, you know the rules of the game. This is a dog eat dog business.”

The information filed against Crouppen and Zwibelman by the Bar Committee alleged that respondents’ conduct violated Missouri Supreme Court Disciplinary Rules DR 2-103(A) and DR 2-103(B).

The Master found no violation of Rule DR 2-103(A) “as the evidence was insufficient to support a finding that Respondents were not requested by Mr. Brown to contact him concerning their possible employment. The evidence of Respondents was that a client of theirs, one Larry Clark, had called them and advised them that Mr. Brown wished to discuss his case with them.” The Master found that the gift of the bouquet of helium-filled balloons violated Rule DR 2-103(B)1 in that the balloons were “something of value” given for the purpose of securing employment as counsel to Mr. Brown.2

II.

DR 2-103(A) provides: “A lawyer shall not, except as authorized in DR 2-101(B), recommend employment as a private practitioner, of himself, his partner, or associate to a layperson who has not sought his advice regarding employment of a lawyer.” (Emphasis added). The rule seeks to preserve the professional ideal of the attorney-client relationship and is

“based in part on deeply ingrained feelings of tradition, honor and service. Lawyers have for centuries emphasized that the promotion of justice, rather than the earning of fees, is the goal of the profession.” Comment, A Critical Analy[249]*249sis of Rules Against Solicitation by Lawyers, 25 U.Chi.L.Rev. 674 (1958).
* * * * * *
It is said that the prohibitions embodied in DR 2-103(A) ... serve to reduce the likelihood of overreaching and the exertion of undue influence on lay persons, to protect the privacy of individuals, and to avoid situations where the lawyer’s exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest.
* * * * * *
[ T]he overtures of an uninvited lawyer may distress the solicited individual simply because of their obtrusiveness and the invasion of the individual’s privacy, even when no other harm materializes.

Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 460, 461, 465-66, 98 S.Ct. 1912, 1921, 1921, 1923-24, 56 L.Ed.2d 444 (1978) (footnotes omitted).

III.

We have consistently stated that we are not bound by the Master’s findings in disciplinary actions. In re Littleton, 719 S.W.2d 772, 775 (Mo. banc 1986). We review the evidence ourselves and decide all issues of fact necessary to a decision. In re Frick, 694 S.W.2d 473, 474 (Mo. banc 1985). Nevertheless, the written record before us in this case requires that we give some deference to the Master’s ability to assess the credibility of the live witnesses appearing before him. In re Jones, 431 S.W.2d 809, 811 (Mo. banc 1966); In re Woodward,

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Related

Ohralik v. Ohio State Bar Assn.
436 U.S. 447 (Supreme Court, 1978)
In Re Woodward
300 S.W.2d 385 (Supreme Court of Missouri, 1957)
In Re Frick
694 S.W.2d 473 (Supreme Court of Missouri, 1985)
In Re Jones
431 S.W.2d 809 (Supreme Court of Missouri, 1966)
In Re Littleton
719 S.W.2d 772 (Supreme Court of Missouri, 1986)

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731 S.W.2d 247, 1987 Mo. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-crouppen-mo-1987.