In Re Frick

694 S.W.2d 473, 1985 Mo. LEXIS 340

• Court: Supreme Court of Missouri
• Decided: August 7, 1985
• Docket: 65934
• Status: Published

Opinions

ORIGINAL DISCIPLINARY ACTION

WELLIVER, Judge.

The facts of this case tell the sad story of a lawyer who had an affair with a divorce client. He successfully dissolved her marriage but failed so miserably at dissolving the affair that the Advisory Committee of the Missouri Bar Administration has charged him with having engaged in conduct warranting disbarment. The Hon. Jack 0. Edwards, Associate Circuit Judge, Twenty-Fifth Judicial Circuit was appointed as Special Master. A hearing was held and the master entered findings of fact and conclusions of law and recommended that respondent be disbarred. In a disciplinary proceeding we must review the evidence, the credibility, weight and value of the testimony of the witnesses, and decide all fact issues necessary to a decision. In re Pine, 576 S.W.2d 538, 539 (Mo. banc 1979); In re Schiff, 542 S.W.2d 771 (Mo. banc 1976); In re Williams, 233 Mo.App. 1174, 128 S.W.2d 1098, 1101 (1939).

The information contains three counts. In Count I, respondent is charged with anonymously engaging in a pattern of conduct designed and intended to harass his former client, “P”, conduct which included writing anonymous letters to P, her friends, acquaintances, employer and others; and committing five acts of violence and vandalism against P and her property. Such conduct is alleged to be contrary to Missouri Supreme Court Disciplinary Rules DR 1-102(A)(3)(4) and (6). Count II charges respondent with disclosing confidential information received in a lawyer-client relationship, in contravention to Missouri Supreme Court Disciplinary Rules DR 4-101(B)(l) and (2). In Count III, respondent is charged with vandalism of a public building, pointing and then discharging a handgun at Security Personnel, and being found guilty of the felony of unlawful use of a weapon in violation of § 571.030(4). This conduct is alleged to be contrary to Missouri Supreme Court Disciplinary Rules DR 1-102(A)(3)(5) and (6).

I

On February 26, 1980, respondent met with and agreed to represent P in her dissolution proceeding. Although respondent was married, he sought to initiate an affair with P, and beginning on March 19 the couple engaged in sexual relations. In early August 1980, P moved from a central Missouri town where she formerly had resided and purchased a house in Kirksville, Missouri. On the 14th of that month, the couple met at the new house and celebrated the closing. During their celebration, P admitted to respondent that she had sexual relations with one D. This admission was apparently given in response to respondent’s questions as to whether P had ever slept or had sex on a waterbed. The following week, on August 22, P’s divorce settlement was finalized.

In October 1980, respondent separated from his wife, and the relationship between respondent and P warmed to the point that in November he moved into P’s home in Kirksville. Respondent became friendly with P’s teenage son, who was also living in the house, and took him fishing and hunting.

By late February 1981, their relationship was becoming increasingly unstable. P confessed to respondent that she had had a prior sexual encounter with another lawyer, R. As of mid-April, the affair had deteriorated to the degree that respondent was no longer living with P. During the ensuing months, respondent continued writing letters to P, P’s son and to other relatives of P. He also wrote some business letters for P. Although P did not save all the letters written to her, she did save a number of the personal letters authored by respondent. These letters were admitted into evidence during the hearing before the special master. Some of the letters were mailed to P’s home, while others were left under the windshield wiper of her car. Certain themes and characterizations run throughout these communications. Some of respondent’s letters exhibit strong disapproval of P’s dating men much younger than even herself. Respondent is approximately 30 years older than P.

We agree with the special master’s finding that respondent’s admitted letters went from pleasant to extremely hateful and vile as the relationship deteriorated. The master found:

[Respondent’s] first letter in July, 1980, was addressed to “My dear, sweet P,” and that same vein continued through February of 1981 when he opened with “My dear, sweet P.” But after P terminated the relationship in March, 1981, he addressed her as “Dear P” or simply “Peggy” or “P”. The only cordial greeting was in the July 8, 1981, letter to “Sweet P,” but the content showed the same vile, hateful theme exhibited since March with more complaints about [her dating men younger than respondent and referring to one such person as the “kid”], a comment about the “cheap and tawdry things you have done,” and prediction that in five years P’s “looks will begin to go, those gorgeous breasts will begin to sag, the double chin and tenderloin will become permanent....” These later admitted letters are so vile and hateful the author must have intended to inflict extreme mental anguish upon the recipient.

After the March, 1981, break-up, respondent told P to leave town. In April respondent wrote: “My instincts tell me that you won’t be in Kirksville much longer.” There were also oral threats, including a threat against her if she reported respondent to the Bar.

Respondent’s language in his letters to P also became coarser after March, 1981. In April he referred to her as a “midnite (sic) barroom pickup” and a “one hour punching bag,” and said she was “debasing and degrading yourself.” He reminded her of her one-night stand with D, knowing that this was an embarrassment to her.

The only positive note in respondent’s letters after March, 1981, was his attitude toward P’s teenage son, J. Respondent commented about J frequently in his letters to P. He wrote at least two letters directly to J.

On October 23, 1981, P received an unsigned letter. From the content of the letter, P identified respondent as the author. The letter frightened P and on October 26 she called Harold Barrick, Chairman of the Missouri Bar Administration, and told him about her affair with respondent and about the letter. Mr. Barrick called respondent and warned him against contacting or writing P. After this conversation P received a number of other “anonymous” letters. The content and tone of these letters left no doubt in P’s mind that respondent was their author. She saved some of the letters, but apparently a number of them either she or her roommate burned.

The master found that these letters were either written or typed, or caused to be written or typed, by respondent.¹ Only respondent knew all of the personal details, events and facts described in the letters, and the anonymous letters contained nicknames and “words and topics [that] were so much like those found in the admitted letters as to leave no doubt that respondent wrote all of the letters.” The master also stressed the importance of other factors. First, P only recently had moved to Kirksville and her address was unlisted in the telephone directory. She knew only a few people in the city, one of whom was respondent, and all the letters were postmarked from Kirksville. Second, respondent often communicated with P by writing her letters. Third, the anonymous letters commenced after the letters admittedly written by respondent stopped; and the anonymous letters stopped after the police arrested respondent for a crime committed on April 13, 1982. Fourth, the anonymous letters contain themes found in the letters respondent admits to having written, such as exhibiting a concern for P’s son and a preoccupation with P’s dating “kids” or “boys.”

In general, the anonymous letters focus on the writer’s disapproval of P’s sexual activity, and the age of P’s purported paramours. The letters are clearly debasing and riddled with vulgar words and descriptions. Some of the letters sought to intimidate P into moving. One letter, for example, ends with the following words of warning:

The next surprise will be soon. May be big or small. Tomorrow, next week or the week after, or maybe all three, but for sure. Some things will also happen that have never happened before and you wont ever know if they are surprises, but we will. A lot of your time will be taken up doing things you wont like and you will spend money you wont want to spend and we will know why. Think of it as the price you pay for being a slut. Do all your spring s__ real quick because you are gonna be very short on time very soon. You could just move out of our neighborhood ... It would be a very smart move for you. Youll come to it.

Anonymous letters also were received by third parties. They contain unfriendly and debasing comments concerning P. One letter was mailed to a fraternity and it suggested that the members should call P if they wanted to have “a good time.”

There can be little doubt that the same person wrote all of the anonymous letters. The master observed correctly that, in addition to common words and topics, there are references in some letters to previous anonymous letters and also references to future anonymous letters.

The special master also found that the author of these letters engaged in the acts of vandalism directed toward P. Many of the anonymous letters discussed past acts of vandalism or foretold future acts. Specifically, the master found:

[Sixteen of the letters referred to acts of vandalism already committed. Of even greater significance, however, is that nine of the letters predicted future acts of vandalism, and some predictions were so specific as to leave no doubt as to common responsibility (one letter predicted the vulgar word and even the color of the paint that appeared on the P house on March 3, 1982).

There are five separate reported incidents of vandalism. On November 17, 1981, the word “whore” was scratched in the paint on P’s car and nails on wood blocks were placed under the tires of the car. On December 10, 1981, P’s jeep was vandalized, with the word “whore” spray painted on the vehicle in various places. Eight days later the same word was spray painted on her house and a car parked in her driveway was vandalized. On March 3, 1982, the word “cocksucker” was spray painted on P’s house, a rock was thrown through her bedroom window, and her porch light was painted red. Sometime thereafter, P’s shrubs died from poisoning, a prediction in one of the letters. Other acts of vandalism were similarly predicted or described.

Then, on April 9, 1982, P received an anonymous letter that indicated “[tjhere will be a lot more advertising for you next week. Look for it[.j How are the shrubs and the roof? Be patient. Enjoy your car while you can.” The following week, on April 13, 1982, a person was observed spray painting P’s name on a wall of the Science Hall tunnel on the Northeast Missouri State University Campus.

A University patrol interrupted the person painting the wall, and they pursued the individual when he began to run away. He turned and faced the two security men and, while pointing a gun, told them to “stand back and give me room.” One member of the patrol was within five to six feet of the person, while the other was within ten feet of the suspect. The person fled, but the pursuit continued. The individual then turned around and at a distance of fifty to sixty feet fired the pistol at his pursuers. One of the security men, a former military man, said that he knew that the gun was pointed at them when fired because he saw the circle of fire that one observes when a gun is pointed and fired in the observer’s direction. The security patrol identified respondent as the culprit. Respondent was charged with and found guilty of the crime of unlawful use of a weapon, § 571.030(4), a Class D felony. The Advisory Committee moved for suspension of respondent’s license pursuant to Rule 5.20. The majority ruled that conviction under § 571.030(4) was not per se conviction of a felony “involving moral turpitude” as required by Rule 5.20. The conviction was affirmed on appeal and respondent has been denied relief under his 27.26 motion.

II

Respondent maintains that he did not, in fact, commit the offense on April 13, 1982, although he stipulates to the fact of his conviction. He further claims that he did not commit any of the acts of vandalism or write any of the anonymous letters. Particularly, respondent argues that the special master erred in admitting into evidence the anonymous letters because they were not properly authenticated. This Court, and not the master, is the final arbiter of both the law and facts in this proceeding. We agree with the master that, in light of all of the circumstances, respondent either wrote or caused these letters to be written or typed. There can be no question as to their relevancy to this disciplinary proceeding. In this connection, it should be noted that several of the letters in question previously had been admitted into evidence at respondent’s prior criminal prosecution.

III

Respondent alleges that the master improperly ruled that he was collaterally estopped from “challenging certain eviden-tiary facts brought out in respondent’s criminal trial, because these facts related to incidental conduct that was not essential to respondent’s criminal conviction.” Specifically, respondent challenges the fact that he was observed spray painting P’s name on the University wall, arguing that he should not now be collaterally estopped from denying and refuting this evidence. Respondent’s contention is meritless for several reasons. The transcript of the criminal conviction, now final in all respects, is properly before this Court, not for the reason that guilt in this case must be grounded on guilt in the criminal case but rather for the reason that it is but one of the acts or circumstances in the course of conduct now charged against respondent by the Advisory Committee. There is no question of the admissibility of the spray painting in this proceeding. Neither before the master nor before this Court has respondent made an offer of proof to challenge, deny or refute the act. While we are not here reviewing the admissibility of this evidence in the criminal proceeding, we know of no reason why it would not have been admissible in that proceeding. Nor do we know of any reason why respondent should not be collaterally estopped from now challenging the prior admitted evidence. It was this act which must have suggested to respondent the need for the weapon which he subsequently used. The spray painting of the wall was the vandalism which was an inseparable part of the incident which led to respondent’s conviction for “unlawful use of a weapon.” There is no error, no preservation of the alleged error, and no evidence of prejudice to respondent by admission of the evidence of the spray painting of the wall.

IV

While the preponderance of the evidence² establishes that respondent caused the anonymous letters to be written and that he committed various acts of vandalism leading up to his conviction of the class D felony, the determinative question is whether these facts support the violations charged in the information. At the outset, we dismiss Count II. Count II charges respondent with having disclosed the allegedly confidential information that P had sexual relations with D. Respondent obtained this information from P shortly before her divorce was finalized. We do not believe that this information was given in the lawyer-client relationship but rather in their personal relationship. This does not constitute a violation of DR 4-101(B)(l) and (2).

V

Next, we consider respondent’s argument that his conviction for unlawful use of a weapon was not illegal conduct involving moral turpitude under DR 1-102(A)(3). Respondent contends that “[t]his Court’s earlier refusal to suspend respondent pursuant to Rule 5.20 implicitly adopted the view that the crime for which respondent was convicted does not involve moral turpitude.” Rule 5.20 and § 484.240, RSMo 1978, authorize the automatic removal or suspension of an attorney upon the mere showing of a conviction of a crime involving moral turpitude. Respondent in effect argues that our prior ruling is res judicata. This argument overlooks the fact that, at most, our previous ruling decided only that the mere fact of conviction for unlawful use of a weapon is not per se conviction of a crime involving moral turpitude. See generally Annot. 21 ALR3d 887, 890 (1968). Cf. Schwartz, “Automatic Discipline — A Concept Whose Time has Arrived,” 1981 Det. College of Law Review 1 (discussing rule for automatic suspension in New York and Michigan). At this stage of the proceeding, however, we are no longer concerned with the mere fact of conviction; rather, under both Counts I and III we must examine respondent’s entire course of conduct. Unlike Rule 5.20, DR 1-102(A)(3) is not limited to a “conviction of a crime” involving moral turpitude, but rather encompasses “illegal conduct” involving moral turpitude. The circumstances surrounding an assault related crime may establish an offense involving moral turpitude. See e.g. People ex rel. Colorado Ass’n v. _, Attorney at Law, 88 Colo. 325, 295 P. 917 (1930); In re Christakis, 344 N.E.2d 852 (Ind.1976); In re Vincent, 282 S.W.2d 335 (Ky.1955); State ex rel. Oklahoma Bar Ass’n v. Seelye, 490 P.2d 1095 (Okla.1971); In the Matter of McGrath, 98 Wash.2d 337, 655 P.2d 232 (1982).

“Moral turpitude” has been defined as “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowman or to society in general, contrary to the accepted and customary rule of right and duty between man and man; everything ‘done contrary to justice, honesty, modesty, and good morals’.” In re Wallace, 323 Mo. 203, 19 S.W.2d 625 (banc 1929). See also Neibling v. Terry, 352 Mo. 396, 177 S.W.2d 502 (banc 1944); In re McNeese, 346 Mo. 425, 142 S.W.2d 33, 34 (banc 1940). The moral delinquency may refer to nonprofessional conduct as well as conduct committed while acting in one’s capacity as a lawyer. In re Williams, 233 Mo.App. 1174, 128 S.W.2d 1098, 1105 (1939). Courts invariably find moral turpitude in the violation of narcotic laws. See e.g., The Florida Bar v. Linn, 461 So.2d 101 (Fla.1984); Matter of Thomas, 472 N.E.2d 609 (Ind.1985); Committee on Professional Ethics v. Shuminsky, 359 N.W.2d 442 (Iowa 1984); Matter of Discipline of Reutter, 361 N.W.2d 68 (Minn.1985); Ohio State Bar Ass’n v. Orosz, 5 Ohio A.2d 204, 449 N.E.2d 1310 (1983). See generally Annot. 99 ALR3d 277 (1980). Moral turpitude has also been found in crimes involving fraud and false pretenses. See e.g., In re Schwartz, 31 Cal.3d 395, 644 P.2d 833, 182 Cal.Rptr. 640 (1982) (false pretenses); Matter of Anderson, 474 A.2d 145 (D.C.App.1984) (false pretenses); In re Scott, 98 Ill.2d 9, 455 N.E.2d 81, 74 Ill.Dec. 51 (1983) (filing false tax return); Louisiana State Bar Ass’n v. Whiting, 425 So.2d 725 (La.1983) (false pretenses); Attorney Grievance Comm’n of Maryland v. Mandel, 294 Md. 560, 451 A.2d 910 (1982) (mail fraud); Attorney Grievance Comm’n of Maryland v. Molovinsky, 300 Md. 291, 477 A.2d 1181 (1984) (counterfeiting). Theft has been held to involve moral turpitude. See e.g., In re Conduct of Carstens, 297 Or. 155, 683 P.2d 992 (1984). Contributing to the delinquency of a minor has also been held to involve moral turpitude. See Matter of Rabideau, 306 N.W.2d 1, 102 Wis.2d 16 (1981), appeal dismissed 454 U.S. 1025, 102 S.Ct. 559, 70 L.Ed.2d 469.

We believe that a preponderance of the evidence demonstrates that respondent did engage in illegal conduct involving moral turpitude. Respondent went to the university property carrying a handgun. When caught committing the act of vandalism, he used this gun to avoid capture. He deliberately pointed and then discharged the weapon in the direction of two individuals on security patrol. He knowingly placed these people in fear for their lives. The conduct described in Count III, the crime for which respondent was charged and convicted and the conduct immediately surrounding the crime, establishes a violation of DR 1-102(A)(3).

VI

Count I neither charges nor relies on conviction of a crime, but rather charges a course of conduct including the harassment, the reign of terror and intimidation, and the vandalism of P’s property, all preceding the events of April 13th which are charged in Count III. Nothing in the record demonstrates that this course of conduct less involves the illegal acts and moral turpitude contemplated by DR 1-102(A)(3) than the acts committed the morning of April 13th. The writing of the anonymous letters, which purport to have been written by others, is clearly deceitful and dishonest, and constitutes a misrepresentation in violation of DR 1-102(A)(4).

VII

There remains to be decided the appropriate discipline. The purpose of these proceedings is not to punish the attorney; rather, the primary goal is protection of the public and the legal profession. In re Randolph, 347 S.W.2d 91, 109 (Mo. banc), cert. denied, 368 U.S. 916, 82 S.Ct. , 7 L.Ed.2d 132 (1961). Another court stated that “even if it is unlikely that the attorney will repeat the misconduct, certain acts by attorneys so impugn the integrity of the legal system that disbarment is the only appropriate means to restore public confidence in it.” In re Hughes, 90 N.J. 32, 446 A.2d 1208, 1210-11 (1982). Some acts committed in a non-professional capacity may indicate such a lack of respect for the law and for other members of society that disbarment may be warranted.

In the defense of respondent a number of professional and lay character witnesses were presented. We agree with the special master that the testimony of these witnesses is of little relevance or help in these proceedings:

The special master was impressed by the esteemed members of the Bench and Bar and persons from Mr. Frick’s community who testified as character witnesses in his behalf. However, Mr. Frick’s own conduct as to the particular charges brought is what is at issue here. The special master would like to be able to conclude that Mr. Frick’s misconduct was a minor aberration. It was not. It was a cold, calculated, covert campaign of terror and intimidation brought by an attorney against his own client. This campaign was carried on for six months and only ceased upon the arrest of Mr. Frick.

Evidence of good character is much more appropriate in regard to assessment of sanctions for discipline where the attorney has admitted to the misdeeds and shows some remorse. It is then helpful to fathom just what sanctions are most likely to preserve the integrity of the profession and protect the public. But where, as here, the accused stands in unbowed opposition to the administration of justice, though the evidence against him is far greater than that required by disciplinary proceedings, and no remorse is shown, evidence of otherwise good character is less of an aid in fashioning sanctions.

Critical to any opinion as to the appropriate sanction is a full knowledge of the conduct alleged and charged. The character witnesses who testified indicated that they were not familiar with the conduct charged in the information.³

In passing we note that in addition to those who testified, one hundred forty-two prominent individuals or couples and 68 lawyers affixed their signatures to instruments denominated to be “amicus curiae briefs,” advocating acquittal of or leniency toward respondent. There is no evidence before us that any of these persons were more knowledgeable of the facts surrounding respondent’s conduct than the character witnesses previously discussed.

It is unfortunate that recent cases,⁴ including this case, indicate that there may be a growing belief that the Missouri judiciary will be responsive to appellate practice techniques much resembling the letter writing bombardments and the petition signing campaigns to which legislative bodies are subjected. We do not believe that the citizens of Missouri either expect or want a judiciary which responds to such practices. Nor do we believe that such practices have a place in the orderly administration of justice under the rule of law.

We have no difficulty in understanding and excusing what we believe to be the well-intentioned responses of those who are untrained in the law. It is no compliment to the Court, however, that there may exist within the profession those who believe that such tactics might influence the decision of the Court. Recognizing that there is an appropriate and legitimate use and function of amicus curiae briefs in our judicial process, we caution all that letter writing bombardments and petition signing campaigns are no part of that process and are not welcomed by the Court.

Respondent argues that while there may be no defense to his handling of his personal life, and regardless of how bad or how foolish the conduct may have been, nothing in the conduct affects his ability to practice law. We believe that we would be derelict in the performance of our duties to the public were we to say that those who would seek the advice and representation by lawyers must do so at the risk of being subjected to this type of conduct.

The special master concluded that respondent’s conduct “was not a minor violation of the law, it was a serious, gross violation of law. Even worse, this conduct was directly related to, or arose from malicious acts directed toward a client. [His] conduct has lessened public confidence in the legal profession.” The length of time which respondent pursued the course of conduct, the intensity with which he pursued the course of conduct, and, his further pursuit of the course of conduct after warning by the Chairman of the Advisory Committee, could not do other than increase the resulting damage to the image of the legal profession. This, together with respondent’s willingness to break the law and to place individuals in fear for their lives to prevent enforcement of the law, leaves us with no other alternative. We agree with the master that disbarment is the appropriate sanction.

Respondent is ordered disbarred.

HIGGINS, C.J., BILLINGS, J., BARRETT, HOUSER and SEILER, Sr. JJ., concur. BLACKMAR, J., concurs in separate opinion filed. DONNELLY and RENDLEN, JJ., not sitting. ROBERTSON, J., not participating because not a member of the Court when cause was submitted.

1 . The typewriter used in the anonymous letters could not be found. No identification of respondent’s fingerprints on any of the letters was effected.

2 . In a disciplinary proceeding, guilt must be proven by a preponderance of the evidence. See In re Connaghan, 613 S.W.2d 626, 628 (Mo. banc 1981); In re Lowther, 611 S.W.2d 1, 2 (Mo. banc 1981); In re Weiner, 547 S.W.2d 459, 561 (Mo. banc 1977); In the Matter of Duncan, 541 S.W.2d 564 (Mo. banc 1976).

3 . Respondent offered testimony of his fine reputation as a counselor and advocate and urges that we impose a sanction of requiring a certain amount of pro bono work. As we said in In the Matter of Stephen W. Mendell, 693 S.W.2d 76 (Mo. banc 1985), "[t]his evidence demonstrates with full force the personal tragedy involved, but does not overcome the manifest showing in the evidence nor does it mitigate the seriousness of the offense.”

4 . In Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. banc 1983), approximately 115 associations and individuals all clearly identified with and advocating for one side of the case, appeared denominating themselves as "amicus curiae” (friends of the Court). In the Application for Reinstatement of Donald M. Witte, (not reported), the Court was bombarded with 37 letters on behalf of the applicant, 19 being from members of the judiciary itself, 8 from lawyers, and 10 from prominent citizens in the area. In In the Matter of Kohn, 568 S.W.2d 255 (Mo. banc 1978), 32 letters were offered as an exhibit.