In re Jacobs

794 S.W.2d 199, 1990 Mo. LEXIS 70, 1990 WL 109514
CourtSupreme Court of Missouri
DecidedJuly 31, 1990
DocketNo. 66458
StatusPublished
Cited by1 cases

This text of 794 S.W.2d 199 (In re Jacobs) 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 Jacobs, 794 S.W.2d 199, 1990 Mo. LEXIS 70, 1990 WL 109514 (Mo. 1990).

Opinion

HOLSTEIN, Justice.

Movant, Richard M. Jacobs, seeks reinstatement of his license to practice law in Missouri. On November 20, 1984, pursuant to movant’s request, this Court ordered surrender of movant’s license until further order of the Court. On December 4, 1984, movant’s license was surrendered. Since then movant has filed pleadings seeking reinstatement on no less than four separate occasions, the first being December 20, 1984. As was ordered on each previous occasion, reinstatement is denied.

I.

Movant was licensed to practice law in Missouri in 1973. In 1981, he was charged with two felony offenses in St. Louis County. Movant’s attorneys in the criminal cases referred him to psychiatrist Maria Manion, M.D., for a psychiatric evaluation.

Dr. Manion performed her evaluation over the course of six meetings with mov-ant beginning April 29, 1982, and concluding in August of that year. During their meetings, she noted Jacobs attempted to dictate the rules of the interview to her. He appeared to be “controlling and defensive.” She found “insufficient information to make a definite diagnosis,” but concluded that movant seemed to fit the diagnostic category known as narcissistic personality disorder. Among a long list of characteristics she found in movant to be consistent with the disorder were that he carried feelings of entitlement, engaged in interpersonal exploitation and had little or no capacity to empathize with others. Dr. Man-ion recommended therapy in a “structured fashion,” followed by regular supervision and steady involvement in psychotherapy.

Based on Dr. Manion’s report, movant’s attorneys in the criminal case negotiated an agreement that movant would surrender his license to practice law in exchange for dismissal of the felony charges.

Movant submitted his first motion to surrender his license on July 15, 1983. However, the motion did not mention Dr. Man-ion’s report. Instead, movant relied on the report of Larry Kiel, a psychologist.1 Dr. Kiel’s report, dated April 11, 1983, declared that movant was suffering from an acute stress reaction arising from an adversarial relationship with the Missouri Bar Administration. Kiel’s first report suggested mov-ant have “a couple of weeks” away from his practice. Later, he was to modify that report to recommend that movant have “an indefinite period” away from the practice. Kiel’s report indicated that movant had embarked on a “course of psychotherapy.”

Shortly after movant’s first motion to surrender his license was filed, an assistant prosecuting attorney for St. Louis County informed the General Chairman of the Bar Committee by letter that movant’s surrender of his license was movant’s part of a reciprocal agreement by the prosecutor to drop the felony charges. On December 20, 1983, this Court overruled Jacobs’ first motion to surrender his license.

On October 10, 1984, movant filed a second pleading entitled “Motion for Voluntary Transfer of License to Practice Law to Inactive Status for Medical Reasons, or in the alternative, to Voluntarily Surrender License to Practice Law for Medical Reasons” with this Court. On that occasion, the motion was accompanied by the earlier evaluation of Dr. Manion. The motion asserted that it was not based upon any “coerced prosecutorial agreement,” and the only reason for failing to mention the criminal charges in the previous motion was that they were “collateral to, and not the basis of, the motion.” The motion averred that [201]*201movant continued to suffer “certain medical problems which have been disruptive to ... his ability to presently continue in the practice of law.”

On November 20, 1984, the Court accepted the surrender of movant’s license to practice law and ordered that the license be suspended “for medical reasons based on mental infirmity,” as described in Rule 5.22. Movant was ordered to notify his clients and counsel pursuant to Rule 5.21. On December 4, 1984, the license was surrendered. On December 20, 1984, movant filed his first motion for reinstatement of his license. The motion was accompanied by the report of psychiatrist James Eyer-man, M.D. In his report, Dr. Eyerman disagreed with Dr. Manion’s diagnosis. His examination revealed no definite diagnosis and no therapy was indicated. He urged that movant “be permitted to immediately return to his professional practice.” That motion was referred to the Advisory Committee of the Missouri Bar. A hearing was held, the Advisory Committee recommended denial of reinstatement, and reinstatement was denied on August 7, 1985.

Similar motions were filed on September 26, 1985, and on June 26, 1987. On each occasion the motion was referred to the Advisory Committee, a hearing was held, a recommendation was made that reinstatement be denied, and the Court denied reinstatement.

The most recent motion was filed on August 11, 1988. That motion was titled, “Motion to Expedite Consideration of Motion to Review United States Supreme Court’s Decision as it applies to this Cause and Give Further Consideration in Light of said Decision to Petitioner’s Motion for Reinstatement.” No motion for reinstatement was then pending. Nevertheless, this Court elected to treat the latest pleading as a fourth motion for reinstatement. A Special Master was appointed, a hearing conducted and a recommendation made by the Special Master that reinstatement be denied. In addition, the Special Master recommended that disbarment proceedings be commenced immediately.

II.

As recognized by movant, the Advisory Committee and the Special Master, this is not a disciplinary proceeding. Movant’s license was surrendered and accepted by this Court pursuant to Rule 5.22. This proceeding is a reinstatement proceeding governed by Rule 5.22(d) which, in part, provides: “Upon such application [for reinstatement] this Court may take or direct such action as it deems necessary or proper,_” As part of the Court’s order appointing the Special Master, the Court noted that the burden of showing movant was fit to practice law lies with him. As with other adversary proceedings, the burden of proof in this case rests upon the party who, as determined from the pleadings, asserts the affirmative of an issue, and remains there until termination of the action. Brown v. Sloan’s Moving and Storage Co., 274 S.W.2d 310, 313 (Mo.1954).

While this is not a disciplinary proceeding, the Master’s report functions essentially the same as in a disciplinary proceeding. The Court is not bound by the findings and conclusions of the Master. In re Littleton, 719 S.W.2d 772, 775 (Mo. banc 1986). The report is advisory only. In re Gamblin, 458 S.W.2d 321, 323 (Mo. banc 1970). Because the first three points in movant’s brief take issue with the Master’s factual findings, and because we are not bound by those factual findings, we do not address them.

III.

At the hearing, the Master took judicial notice of the transcripts of evidence presented during prior reinstatement hearings. Movant’s fourth point claims the Master and presumably this Court are barred from considering such evidence because of Rule 57.07, relating to the use of depositions, and because the transcripts are tainted by evidence of violations of disciplinary rules of which movant was not given due process notice prior to the hearing.

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Bluebook (online)
794 S.W.2d 199, 1990 Mo. LEXIS 70, 1990 WL 109514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jacobs-mo-1990.