In Re Howard

912 S.W.2d 61, 1995 Mo. LEXIS 102, 1995 WL 755663
CourtSupreme Court of Missouri
DecidedDecember 19, 1995
Docket77446
StatusPublished
Cited by13 cases

This text of 912 S.W.2d 61 (In Re Howard) 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 Howard, 912 S.W.2d 61, 1995 Mo. LEXIS 102, 1995 WL 755663 (Mo. 1995).

Opinions

ORIGINAL DISCIPLINARY PROCEEDING

BENTON, Judge.

The Chief Disciplinary Counsel charges attorney Raymond Howard with “placing his own prurient interests paramount to and in conflict with his client’s best interest” and with “impugning the integrity of opposing counsel, the judge and the judicial process.” Rules of Professional Conduct 1.7(b), 2.1, 3.5(c), 8.2(a) and 8.)(e). After reviewing the [62]*62evidence de novo, this Court orders Howard suspended for violating Rules 1.7(b) and 2.1.

I.

On July 23, 1989, Wanda J. Sargent and her spouse hired Howard for an insurance claim. During the course of representation, Howard suggested that Wanda Sargent accompany him on personal out-of-town trips (while her husband was away in the Army). In September 1991, while at Howard’s office, he “grabbed” and tried to embrace and Mss her, compelling her to pull out a can of mace. The Sargents then discharged Howard as their attorney.

On August 17, 1990, Debra F. Brandt hired Howard to assist in collecting child support. On August 18, Brandt recorded a telephone conversation in which he suggested she come to his office for “a few drinks” and “a little loving.” She declined. In September, two days before argument of her case in this Court, Howard informed Brandt that he would not appear unless, within 48 hours, she pay him $850 or have sex with him. Brandt refused Howard’s advances and paid him cash the morning of oral argument.

A third complainant testified before the Advisory Committee but not before this Court’s Master. The law of evidence in non-jury civil cases applies to disciplinary proceedings. Rule 5.21(b). In order to introduce the prior testimony into evidence, the Chief Disciplinary Counsel must prove the complainant is unavailable after due diligence to procure her attendance. In re Falzone, 240 Mo.App. 877, 220 S.W.2d 765, 770 (1949). Neither at trial to the Master nor in briefing to this Court is due diligence demonstrated. The Chief Disciplinary Counsel merely asserted that the complainant was unavailable but offered no evidence of unavailability. Id., 220 S.W.2d at 770-771. This Court thus cannot find the witness “unavailable”; her prior testimony is not admissible before this Court.

Howard denies all claims of sexual misconduct, arguing that the adverse testimony was fabricated when the complainants sat together before testifying to the Advisory Committee. Contrary to Howard’s claim, there is no evidence the complainants conspired. The complaints against Howard were filed separately; the complainants neither knew nor communicated with each other prior to the proceedings. “This Court reviews the evidence de novo, determines independently the credibility, weight and value of the testimony of the witnesses, and draws its own conclusions of law.” In re Westfall, 808 S.W.2d 829, 831 (Mo. banc 1991), cert. denied, 502 U.S. 1009, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991). This Court finds the facts as stated in this opinion.

In regard to sexual misconduct, Howard is charged with violating Rule 1.7(b) and 2.1. Rule 1.7(b) states: “A lawyer shall not represent a client if the representation of that client may be materially limited by ... the lawyer’s own interests-” Rule 2.1 provides: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.” “The relation between attorney and client is highly fiduciary and of a very delicate, exacting and confidential character, requiring a very Mgh degree of fidelity and good faith on attorney’s part.” In re Oliver, 365 Mo. 656, 285 S.W.2d 648, 655 (Mo. banc 1956).

The Rules are clear: “The lawyer’s own interests should not be permitted to have adverse effect on representation of a client.” Comment, Rule 1.7. Howard’s unwanted sexual advances undermined the client’s faith in his service and interfered with his independent professional judgment. Both the complainants testified that rejecting Howard’s advances adversely affected his representation. In sum, Howard attempted to force clients to prostitute themselves to secure legal services, and thus violated Rules 1.7(b) and 2.1. See In re Bourdon, 132 N.H. 365, 565 A.2d 1052, 1056 (1989); People v. Good, 893 P.2d 101, 104 (Colo. banc 1995); In re Gilbert, 194 A.D.2d 262, 606 N.Y.S.2d 478, 479 (N.Y.1993); Office of Disciplinary Counsel v. Paxton, 66 Ohio St.3d 163, 610 N.E.2d 979, 980 (1993); In re Otis, 135 N.H. 612, 609 A.2d 1199, 1203 (1992); In re Wolf, 312 Or. 655, 826 P.2d 628, 630-31 (banc 1992); People v. Zeilinger, 814 P.2d 808, 809 (Colo. banc 1991); In re Ridgeway, 158 Wis.2d 452, 462 N.W.2d 671, 673 (1990); In re Drucker, 133 [63]*63N.H. 326, 577 A.2d 1198, 1202 (1990); In re Wood, 489 N.E.2d 1189, 1191 (Ind.1986); People v. Gibbons, 685 P.2d 168, 175 (Colo. banc 1984); In re Wood, 265 Ind. 616, 358 N.E.2d 128, 133 (1976).

Howard responds that the Chief Disciplinary Counsel failed to establish clear and convincing evidence of quid pro quo sexual harassment or a hostile work environment. He apparently confuses this attorney disciplinary proceeding with an action under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-17. In disciplinary proceedings, truth of the allegations need only “be established by a preponderance of the evidence.” In re Elliott, 694 S.W.2d 262, 263 (Mo. banc 1985).

II.

On August 13,1992, Howard was to appear in court for a call docket on a counterclaim. He did not appear, request a continuance, or otherwise explain his absence. The counterclaim was dismissed with prejudice. In response, Howard filed a Motion for Change of Judge stating:

Comes now defendant, Mary Winfield, and requests a change of judge for the reason that she can not obtain a fair and impartial trial before Judge Goeke and for the further reason that plaintiffs counsel, Kathryn A. Dyer, appears to have an unusual amount of influence with a said judge.

In the accompanying Motion to Set Aside the Dismissal, Howard alleged:

Defendant’s counsel was on vacation on August 13, 1992, and did not believe plaintiffs counsel would surreptitiously and unethically cause the court to dismiss defendant’s counterclaim with prejudice.... The dismissal was unfair, unreasonable, capricious and anathema to a just and humane judicial system.

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In Re Howard
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Cite This Page — Counsel Stack

Bluebook (online)
912 S.W.2d 61, 1995 Mo. LEXIS 102, 1995 WL 755663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-howard-mo-1995.