In re Forck

418 S.W.3d 437, 2014 WL 438171, 2014 Mo. LEXIS 3

• Court: Supreme Court of Missouri
• Decided: February 4, 2014
• Docket: No. SC88961
• Status: Published

Opinions

GEORGE W. DRAPER III, Judge.

The Office of Chief Disciplinary Counsel (hereinafter, “OCDC”) seeks to discipline Nathan J. Forck’s (hereinafter, “Forck”) law license for alleged multiple violations of the rules of professional conduct that occurred while Forck was on probation. This Court finds that Forck committed violations of Rule 4-1.1, Competence, in connection with the preparation of estate planning documents and the dispensing of advice regarding Medicaid eligibility, and Rule 4-1.5, Fees, by charging an excessive fee for estate planning services and representation concerning Medicaid eligibility. This Court orders Forck’s term and conditions of probation be changed and that the stay of his previously imposed suspension remain in effect.

Factual and Procedural History

Forck was admitted to The Missouri Bar in April 2006 pursuant to a monitoring agreement entered into between the Missouri Board of Law Examiners (hereinafter, “the Board”), Forck, and the OCDC. A monitoring agreement is executed when the Board has concerns about an applicant based upon the Board’s character and fitness investigation but determines it is appropriate to admit an applicant to the practice of law so long as the applicant is monitored for some initial period of time by the OCDC. Here, the Board was concerned with Forck’s excessive alcohol use. Forck was charged with three separate alcohol-related offenses prior to admission into the bar. After his third offense, Forck received out-patient treatment for alcoholism.

The monitoring agreement set forth several conditions Forck agreed to follow upon admission to the bar. These conditions included Forck’s abstinence from alcohol and regular attendance at a support or therapy group, such as Alcoholics Anonymous, with verification of attendance provided by Forck to an attorney monitor. Any violation of the terms of the monitoring agreement would be deemed a violation of Rule 4-8.4(d), Misconduct, and subject Forck to disciplinary action.

On May 18, 2007, Forck was drinking at a bar, became embroiled in an altercation, and was arrested for third-degree assault.¹ As a result of Forck’s alcohol use, failure to send verification of his attendance at support group meetings, and the failure to notify the OCDC of his arrest, the OCDC filed an information charging Forck with violations of Rule 4-8.4(d) for conduct prejudicial to the administration of justice and Rule 4 — 8.1(b) for failing to report his conduct to the OCDC.

The parties submitted a joint stipulation to this Court requesting that the appropriate discipline to impose on Forck would be an indefinite suspension with leave to apply for reinstatement in six months, with the suspension stayed, and Forck placed on probation for two years. On December 7, 2007, this Court accepted the OCDC’s recommendation. Forck also agreed to comply with several probation conditions, including: the appointment of a probation monitor; quarterly reporting responsibilities; compliance with the rules of professional conduct; abstinence from the use of alcohol and other controlled substances; participation in treatment and support group programs; submission to random drug testing; and cooperation with an attorney mentor. Forck’s probation also provided that should the OCDC receive a complaint during Forck’s term of probation, the term would be extended until such charge was investigated and the OCDC made a determination regarding its disposition.

Forck’s first employment after admission into the bar was with Joseph Yung-wirth (hereinafter, ‘Yungwirth”), an attorney with a large elder law and estate planning practice. Yungwirth employed Carmen Munford (hereinafter, “Munford”), a former state benefit specialist, as a member of his support staff. Forck left Yung-wirth’s practice after approximately eighteen months. From early 2008 until March 2009, Forck worked as a general practitioner with another attorney.

In early 2009, Yungwirth contacted Forck about taking over Yungwirth’s practice.² Forck and Yungwirth negotiated a verbal agreement to transfer the practice, with Forck agreeing to retain Munford and other support staff. Forck did not have personal experience or expertise in the practice of elder law or Medicaid litigation when taking over Yungwirth’s practice. Forck relied upon the knowledge he gained from Yungwirth, Munford, and the support staff he retained to represent clients and administer paperwork. Despite this lack of experience, Forck promoted himself and his firm as experienced in elder law, even conducting seminars targeted to people who had questions regarding Medicaid issues.

On January 13, 2010, Forck filed a motion for this Court to issue an order of successful completion of probation. In response, the OCDC stated it received two complaints regarding Forck and Yung-wirth’s firm. The OCDC indicated the investigation was ongoing and no factual determination had been made at the time Forck filed his motion. As part of its investigation, the OCDC requested Forck produce several documents, including certain bank records. Forck failed to produce these records. The OCDC issued a subpoena to a bank for the production of records pertaining to an account over which Forck had signatory authority. In response, Forck filed a motion to quash the subpoena. This Court overruled Forck’s motion and permitted the OCDC to continue its investigation. This Court also overruled Forck’s motion regarding his release from probation because the OCDC’s investigation extended the term of his probation.

On December 23, 2010, Forck filed a second motion for this Court to issue an order of successful completion of probation. The OCDC opposed the motion, stating it received two additional complaints regarding Forck’s practice since his first motion for release filed in January. The OCDC’s response also supported a finding that the delay in completing its investigation was due, in large part, to Forck’s failure to provide requested information.³ This Court overruled Forck’s motion.

The OCDC completed its investigation, which is the basis for the current disciplinary proceeding. The OCDC and Forck have stipulated that Forck committed three counts of professional misconduct.

With respect to Count I, James and Kathy Poletti retained Forck in August 2009 to prepare estate planning documents so they could avoid spending their resources on Kathy Poletti’s nursing home expenses. These documents were intended to replace ones previously prepared by a different law firm. The Polettis initially paid Forck $8,030 for long-term care planning and an application for Medicaid benefits. By the time Forck completed preparing the necessary documents, Mrs. Poletti was no longer competent to execute them.

Mrs. Poletti passed away on February 20, 2010. The documents submitted to the probate court were the ones drafted by the former law firm. Although Mrs. Poletti’s assets were small enough to be disposed of through the short-form probate procedure, Forck advised Mr. Poletti that a full probate estate needed to be opened so the Medicaid application for her nursing home expenses could proceed. Despite the Po-lettis having already paid Forck for estate planning and Medicaid application services, Forck informed Mr. Poletti that an additional fee of $2,000 would be required to open the estate. Mr. Poletti paid the additional $2,000. When the probate estate was opened in December 2010, it was discovered that Forck did not complete Mrs. Poletti’s Medicaid application. Mr. Poletti ultimately paid $16,000 in nursing home expenses. Mr. Poletti later discharged Forck and retained new counsel to process the administration of the probate estate.

With respect to Count II, Larry Charles and Patricia Merrill, children of Mildred Charles (hereinafter, “Charles”), met with Yungwirth twice in early 2009 to discuss preparing a trust and other estate documents that would allow Charles’ assets to be sheltered from payment to nursing homes. Charles was a patient of a care facility at the time. When the children went to an appointment in April 2009 to meet with Yungwirth, they were informed that he was no longer practicing law and that Forck now represented them. Forck and Munford advised the children it was likely they would be able to protect Charles’ property so that she could immediately apply for Medicaid benefits for her nursing home expenses. At the conclusion of the meeting, the children paid $8,000 to the firm.

Forck prepared a number of documents for Charles’ signature, including an affidavit stating that all shares of the family’s farm were owned by Larry Charles, and a quit claim deed from Charles to Larry Charles quit-claiming all real estate to him. These documents were executed in April 2009. Forck sent an additional directive to Charles in September 2009 regarding the re-titling of property to remove her name from her assets if she had already not done so. Thereafter, Forck filed an application with the State for immediate Medicaid benefits. Despite the application being incomplete and inaccurate, Charles was awarded Medicaid benefits.

In late 2009, Charles and her children discharged Forck and retained new counsel. Upon review of Charles’ file, new counsel discovered that several transfers of property were reported inaccurately or were of questionable validity for Medicaid purposes. New counsel reported this matter to the Department of Social Services, which prompted an investigation into Charles’ award of benefits. In August 2011, the State concluded Charles was ineligible for Medicaid benefits because of the inappropriate transfers and advised that the uncompensated amount before Medicaid eligibility was $518, 398.48.

Count III involves Bernadine Anderson (hereinafter, “Anderson”), another client initially represented by Yungwirth. In October 2007, Anderson executed the Anderson Family Irrevocable Trust Agreement with Yungwirth, Munford, and another Yungwirth employee named as trustees.

Between April 1, 2009, and August 2010, Munford, acting in her capacity as trustee of the irrevocable trust, made payments from the trust to Forck for legal work in the amount of $5,975. Forck was unable to document what work justified this fee and failed to provide Anderson with an itemized statement of his work. Anderson discharged Forck in August 2010, revoked a durable power of attorney, and directed her file to be sent to another attorney.

The parties stipulate that Forck committed five violations pertaining to his representation of the Polettis, Charles, and Anderson. Forck admits he violated Rule 4-1.1, Competence, with respect to his representation of the Polettis and Charles. Forck further admits he violated Rule 4-1.5, Fees, with respect to all three clients.

Forck and the OCDC jointly recommend that this Court extend Forck’s probation for a minimum term of one year, with additional terms and conditions to be imposed beyond those originally ordered by this Court in 2007. The parties assert there has been a change of circumstances warranting probation being extended, rather than the imposition of the stayed suspension. Forck states he has maintained his sobriety since 2007, and the original conditions of probation no longer apply. The parties also agree that the facts related to the new stipulated violations are unrelated to Forck’s disciplinary history for alcohol abuse, which was the reason he was placed on probation originally.

Standard of Review

This Court has the inherent authority to regulate the practice of law and administer attorney discipline. In re Zink, 278 S.W.3d 166, 169 (Mo. banc 2009). The purpose of imposing discipline is not to punish the attorney, but to protect the public and maintain the integrity of the legal profession. In re Stewart, 342 S.W.3d 307, 308 (Mo. banc 2011). “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 Razanas, 96 S.W.3d 803, 807-08 (Mo. banc 2003).

Analysis

Forck admits he violated Rule 4-1.1, Competence, and Rule 4-1.5, Fees, with respect to three of his clients. It is this Court’s duty to determine what discipline is appropriate to impose for these violations by reviewing similar past cases, the disciplinary rules, and the applicable ABA standards. Stewart, 342 S.W.3d at 310. When this Court finds 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) (internal citations omitted).

Turning to the ABA Standards for Imposing Lawyer Sanctions, (1991 Ed.) this Court first examines the recommended range of discipline for a competence violation. “Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client.” ABA Standard 4.52. “Knowledge” is defined as “the conscious awareness of the nature of attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.” ABA Standards for Imposing Lawyer Sanctions at 7. “Reprimand is generally appropriate when a lawyer: (a) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or (b) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injury to a client.” ABA Standard 4.53. “Negligence” is defined as “the 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 the situation.” ABA Standards for Imposing Lawyer Sanctions at 7.

The ABA Standards contain similar recommendations for violations concerning the fees charged to a client, with the only difference between the sanctions being the attorney’s state of mind at the time of the violation. “Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.” ABA Standard 7.2. “Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of the duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.” ABA Standard 7.3.

Forck’s misconduct arose out of negligence instead of an intention to violate the rules of professional conduct and take advantage of his clients. The record reflects that while Forck knowingly promoted himself and his firm as having expertise in elder law, estate planning, and Medicaid litigation, he did so only upon the misguided, and unfortunately, unprofessional practices he learned from Yungwirth, Munford, and the support staff he retained. Forck admits he was inexperienced and naively relied upon these persons due to their extensive governmental and paralegal experience in the elder law field when he committed the violations at issue here. Upon learning of the professional misconduct charges brought against him, Forck promptly discharged Munford and the remaining support staff and now completes all of the legal work, including document preparation, himself.

The parties stipulate misconduct has occurred. After misconduct has been established, this Court may consider aggravating and mitigating circumstances when deciding what sanction to impose. ABA Standard 9.1. The record contains evidence of both circumstances.

With respect to aggravating circumstances, Forck’s actions involved a pattern of misconduct resulting in multiple offenses regarding his procurement of legal fees that were excessive for the quality of the work done and the likelihood of success. Further, Forck’s clients were vulnerable victims, consisting of primarily elderly clients concerned with how to maintain their assets while seeking care for a family member entering a nursing home. ABA Standard 9.22(c), (d), and (h).

With respect to mitigating circumstances, Forck was inexperienced in the practice of law when he committed these new violations, relying upon improper practices learned from Yungwirth, Mun-ford, and his support staff. Since discharging Yungwirth’s support staff, the OCDC has not received any new complaints regarding Forck’s elder law practice. Forck expressed remorse for his actions and is making restitution to his harmed clients. Moreover, Forck agreed to subject himself to an extended term of probation, along with additional terms and conditions, should this Court determine probation is appropriate. ABA Standard 9.32(f), (k), and (1).

The parties contend that application of the ABA Standards and this Court’s rules justify continuing Forck’s term of probation because the circumstances and factors connected with his earlier issues have changed substantially. An attorney is eligible for probation if the attorney: (1) is unlikely to harm the public during the probationary period and can be supervised adequately; (2) is able to perform legal services and practice law without causing the courts or profession to fall into disrepute; and (3) has not committed acts warranting disbarment. Rule 5.225(a)(2)(A-C). This Court must take into account the nature and circumstances of the attorney’s misconduct and his or her history, character, and health status when placing him or her on probation and fashioning the conditions the attorney must abide by while on probation. Rule 5.225(b)(1).

All three eligibility requirements of Rule 5.225(a) have been demonstrated here. First, it is unlikely Forck will harm the public during his extended probationary period. Forck has maintained his sobriety since 2007, he has undertaken to improve his practice by discharging the support staff that offered misguided and erroneous advice, and he now completes all of his clients’ legal tasks himself. Forck also forged a relationship with an attorney mentor who is well-respected in the elder law field, and that attorney agreed to monitor and supervise Forck professionally, as well as personally, to ensure Forck remains in compliance with the terms of his probation. Second, Forck’s utilization of the services of the attorney mentor, attendance at additional professional education classes, and reporting requirements will remedy the prior misconduct and permit Forck to perform legal services and practice law in the future without causing the courts or profession to fall into disrepute. Finally, Forck has not committed any misconduct that warrants disbarment.

This Court determined probation was the appropriate discipline in In re Wiles, 107 S.W.3d 228 (Mo. banc 2003). There, the attorney had been admonished at least eleven times over a three-year period for violations of the rules pertaining to diligence, communication, safeguarding client property, and conduct prejudicial to the administration of justice in Missouri. Id. at 229. The attorney also had two prior admonitions and stipulated to misconduct that warranted a public censure in Kansas. Id. at 228. Likewise, in In re Coleman, this Court issued a suspension, which was stayed, subject to the completion of a one-year term of probation. In re Coleman, 295 S.W.3d at 859. There, the attorney had been admonished twice and publicly reprimanded once for a total of eight violations of the rules pertaining to communication, unreasonable fees, diligence, expediting litigation, and conduct prejudicial to the administration of justice. Id. This Court found the attorney committed five new violations of the rules that resulted in client harm, and that concerned the management of his IOLTA account, yet this Court permitted the attorney to serve a probationary term rather than be suspended. Id.

This Court adheres to a practice of applying progressive discipline when imposing sanctions on attorneys who commit misconduct. See In re Ehler, 319 S.W.3d 442, 445 (Mo. banc 2010). ABA Standard 2.7 governs when probation may be imposed. The commentary to that standard provides that in the event an attorney violates the terms of his or her probation, this Court “may extend the probation, impose a more severe sanction, or otherwise handle the matter.” Likewise, this Court’s Rule 5.225(f)(2), which governs probation violations, provides:

If the chief disciplinary counsel receives information during the period of probation that any condition may have been violated, the chief disciplinary counsel may file a motion in this Court specifying the alleged violation and seeking an order requiring the lawyer to show cause why the probation should not be revoked and further discipline imposed. Further discipline may include additional probation, suspension, or disbarment. The filing of the motion stays the expiration date of the period of probation until final action is taken on the motion. (Emphasis added).⁴

This Court recognizes Forck already has received the benefit of an extended probationary period, and it could impose the stayed suspension. The commentary to ABA Standard J+.52, advises that “a suspension should be imposed in cases where a lawyer engages in practice in areas in which a lawyer knows he or she is not competent.” ABA Standards for Imposing Lawyer Sanctions at 34. Here, however, Forck did not engage in an area of practice that he knew he was not competent to undertake. Rather, he negligently utilized improper practice techniques learned from his previous senior partner. Moreover, the original imposition of probation arose from Forck’s alcohol abuse and not fulfilling the terms of the monitoring agreement. These current violations are the first complaints that have resulted in client harm, and are less numerous than the violations in Wiles and Coleman, who both received probation.

The recommendation by the OCDC seeks to extend the terms of probation and add additional conditions, which, while not a suspension, does impose additional sanctions on Forck.⁵ Moreover, by allowing Forck to remain on probation, he is provided an opportunity to receive additional education, monitoring, and support that will improve his law practice and better serve and protect his clients in the future. Moreover, by permitting Forck to continuing practicing law ensures his harmed clients can be made whole through full restitution payments.

Therefore, after examining past decisions of this Court, the rules of professional conduct, and the ABA Standards, this Court finds Forck’s conduct, which can be remedied by education and is unlikely to reoccur, warrants an extended term of probation, rather than revocation.⁶ The conditions of Forck’s probation include: the appointment of a probation monitor; filing of quarterly responsibility reports; attendance at the ethics school conducted by the OCDC and elder law continuing legal education programs; meetings and reporting to an attorney mentor regarding practice management; submission to periodic client trust account audits; commission of no other violations of the rules of professional conduct; and full restitution to his harmed clients.⁷

Conclusion

This Court orders that Forck remain on probation for a period of two years on the conditions imposed herein and that the stay of his previously imposed suspension remain in effect.

RUSSELL, C.J., STITH and TEITELMAN, JJ., concur. FISCHER, J., dissents in separate opinion filed. BRECKENRIDGE and WILSON, JJ., concur in opinion of FISCHER, J.

1 . The charges were dismissed October 18, 2007.

2 . As of April 1, 2009, Yungwirth ceased practicing law due to physical and mental infirmities and on August 23, 2010, received an Order of Interim Suspension from this Court issued pursuant to Rule 5.23(b) (Case No. SC91102).

3 . The dissent repeatedly refers to Forck’s actions during the investigation of the current disciplinary proceeding as additional evidence that his misconduct warrants the imposition of the stayed suspension. It should be noted that the OCDC did not charge Forck with violating Rule 4-8.1 or any other rule for initially contesting the charges brought against him or for failing to cooperate with the OCDC's investigation. See e.g., In re Hardge-Harris, 845 S.W.2d 557, 560 (Mo. banc 1993) (issuing public reprimand after OCDC charged attorney with misconduct for failing to cooperate with its investigation); In re Harris, 890 S.W.2d 299, 302 (Mo. banc 1994) (same).

4 . Although the dissent argues Forck’s misconduct warrants the harsher sanction of suspension, this Court’s extension of Forck's probation is undisputedly permitted pursuant to the guidelines provided by ABA Standard 2.7 and Rule 5.225(f)(2).

5 . The dissent faults the OCDC for failing to seek any discipline for the new violations that occurred. However, the extended term of probation, with additional terms specifically tailored to address the misconduct related to Forck’s elder law practice, effectively serve to impose discipline for these violations.

6 . The dissent states that extending Forck's probation will not protect the public or maintain the integrity of the legal profession because Forck has moved on from engaging in alcohol abuse to alcohol-related assault to incompetent representation of elderly clients and attorney-fee abuse. The record demonstrates that this Court’s imposition of probation in 2007 was effective in protecting the public from the harms related to Forck’s alcohol abuse. Forck has remained sober since being placed on probation and adhered to the terms of probation related to his alcohol abuse. Further, it must be stressed that Forck negligently, rather than knowingly, represented his clients and is making restitution for the excessive fees collected.

7 . Forck has agreed to pay James Poletti $9,000 in restitution, the Mildred Charles Family Trust $8,000, and the Bernadine Anderson Family Trust $5,000.