In re Hess

406 S.W.3d 37, 2013 WL 4519772, 2013 Mo. LEXIS 248
CourtSupreme Court of Missouri
DecidedAugust 27, 2013
DocketNo. SC 92923
StatusPublished
Cited by11 cases

This text of 406 S.W.3d 37 (In re Hess) 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 Hess, 406 S.W.3d 37, 2013 WL 4519772, 2013 Mo. LEXIS 248 (Mo. 2013).

Opinions

ZEL M. FISCHER, Judge.

The Office of Chief Disciplinary Counsel (OCDC) filed an information and motion for reciprocal discipline recommending that this Court indefinitely suspend Lawrence Hess’s Missouri law license with no leave to reapply for six months. The Illinois Supreme Court suspended Hess’s Illinois license to practice law for six months for filing frivolous lawsuits in violation of Illinois Rules 3.1 and 8.4(a)(5), which are analogous to Missouri Rules 4-3.1 and 4-8.4(d), respectively.

The evidence1 overwhelmingly demonstrates that Hess violated Rule 4-3.1, Meritorious Claims and Contentions, by expressly authorizing the filing of attorney’s liens and lawsuits alleging breach of contract, breach of promise, interference with attorney’s liens, and unjust enrichment, when all of those liens and claims were frivolous and without merit. Hess also violated Rule 4-8.4(d)’s admonition not to, “engage in conduct prejudicial to the administration of justice” because those liens and claims were frivolous, without merit, wasted the time and resources of the courts, delayed the clients’ receipt of their settlement money, required the hiring of additional legal counsel, and harmed the integrity of the profession.

Hess’s Illinois license was suspended for six months by the Illinois Supreme Court in an order dated September 17, 2012. The plain language of Rules 4-3.1 and 4-8.4(d) does not differentiate between an attorney acting as an advocate or an attorney acting in his own business and personal affairs, and the policy supporting reciprocal discipline, which is in place to protect the public, must be given proper weight and consideration by this Court. Therefore, Hess’s Missouri license is suspended indefinitely without leave to apply for reinstatement for a period of six months.

Factual and Procedural Background

Lawrence Hess was admitted to the Missouri bar in 1975. Hess became an employee of Kanoski & Associates in 2001. [39]*39Hess signed an employment agreement providing that he would receive a base salary plus a bonus based on the amount of fees he generated. That employment agreement also provided, in pertinent part:

Employee acknowledges that while licensed attorneys must perform all legal services, the clients contracting for said services are clients of the Corporation and not of any individual employee[.]
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All proceeds received by [Employee] for professional services rendered for Corporation clients shall be the property of the Corporation.
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Furthermore, Employee acknowledges that the service nature of the business of the Corporation requires close client contact, and that he has no proprietary right or interest in any client[.]
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Employee agrees that, in the event employment is terminated, Employee will not notify, advise, solicit, or otherwise contact clients of the Corporation.
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Corporation and Employee acknowledge that each client of the Law Firm has the right to freely choose representation in the event of a separation of employment by Employee from the Corporation and that choice should be allowed to take place without interference from either the Corporation or the Employee.
* ⅝ *
Employee acknowledges that where the Corporation retains clients upon Employees [sic] termination that Employee has no proprietary interest in fees to be earned since the Employee is to be fully compensated through his salary and/or bonus for all work done while an Employee of the Corporation.

In 2002, Ronald and Cathy Loyd entered into a contingency fee agreement with Kanoski & Associates, not Hess, to represent them in a medical malpractice action. The fee agreement provided that the Loyds would pay “the firm” a contingent fee, the firm could assign associate counsel to work on their case, and the associate’s fees would be paid by the firm.

Hess was assigned to work on the Loyds’ case. Hess filed suit on behalf of the Loyds against Dennis Billiter, M.D., and Litchfield Family Practice Center, L.L.P., in February 2004. Hess was terminated from employment with Kanoski & Associates in February 2007. Hess performed most of the work on the Loyd case prior to termination but did not perform any work on the case after February 2007.

Kenneth Blan was asked to handle some of Hess’s cases, and Blan became “of counsel” to Kanoski & Associates. The Loyds chose to stay with Kanoski & Associates and have Blan represent them. They signed an agreement to that effect in March 2007. Blan entered an appearance as counsel in their case.

From January' to October 2008, Hess was not authorized to practice law in Illinois, choosing not to pay the Illinois attorney registration fee to reduce expenses and practice law only in Missouri. He later changed his mind, and his Illinois license was reinstated in October.

A mediation of the Loyds’ case took place in March 2008, and a settlement agreement was finalized in June 2008. Hess contends he had a breach of contract claim against Kanoski & Associates and was owed compensation from the firm. Hess hired an attorney, Bruce Carr, to represent him on that claim in April 2008.

On May 15, 2008, Carr sent a letter to the Loyds informing them that Hess had [40]*40retained Carr as his attorney and stating: “Hess remains responsible for the lawsuit you entrusted to him.” Carr and Hess knew at the time the letter was sent that Hess had done no work on the Loyd case since February 2007 and that, as of January 2008, Hess did not have an active Illinois law license. On the same day, Carr sent notice of Hess’s attorney’s hen to the defendant in the Loyds’ lawsuit, Dr. Billiter. A copy of the notice of lien was sent to Ron Kanoski at Kanoski & Associates. Loyd responded to Carr by letter, stating: “Mr. Hess is not responsible for my lawsuit. I have a very competent attorney. Do not contact me again regarding this matter.” Hess said he received Loyd’s letter on May 19, 2008, and, even though the letter did not say Hess was fired, Hess and Carr treated this letter as Loyd’s attempt to terminate his relationship with Hess.

On May 21, 2008, Carr filed Hess’s notice of attorney’s lien with the clerk of the circuit court of Montgomery County, Illinois, in the case captioned Loyd v. Dennis Billiter, M.D., et al., No. 04-L-10. A copy was sent to the Loyds. The Loyds, through their attorneys, filed a petition on June 24, 2008, to strike or adjudicate the lien. The petition asserted, among other things, that Ronald Loyd told Hess during their telephone conversation in March 2007 that Ronald “wanted nothing further to do with” Hess and that the Loyds “had competent representation with whom they were very pleased.” The Loyds both signed the attestation certifying the statements in the petition were true.

Hess then filed a complaint on July 21, 2008 and later testified that he expressly gave Carr permission to file the attorney’s hen against the Loyds. Hess and Carr discussed the claims against the Loyds, but Hess said he did not read the complaint until after it was filed.

Kanoski testified that he felt “stunned” and “embarrassed” when he learned of the complaint against the Loyds.

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Bluebook (online)
406 S.W.3d 37, 2013 WL 4519772, 2013 Mo. LEXIS 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hess-mo-2013.