In re Kinghorn

764 S.W.2d 939, 1989 Mo. LEXIS 10, 1989 WL 11370
CourtSupreme Court of Missouri
DecidedFebruary 14, 1989
DocketNo. 70176
StatusPublished
Cited by1 cases

This text of 764 S.W.2d 939 (In re Kinghorn) 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 Kinghorn, 764 S.W.2d 939, 1989 Mo. LEXIS 10, 1989 WL 11370 (Mo. 1989).

Opinion

BLACKMAR, Judge.

The respondent was admitted to the Missouri Bar in 1983. In May of 1986 he had an office at 111 South Bemiston in Clayton, in a practice which used the name “King-horn and Hyatt.” Two “paralegals” worked in the office, one of these being Donald L. Erickson. Mr. Erickson occupied an office in the suite and used business cards listing “legal research, attorney briefs, paralegal training, investigations.” His activities play a substantial part in the disciplinary charges against the respondent.

Our record is somewhat abbreviated because of the manner in which the formal hearing was conducted. The charges originated in a complaint by Terry S. Patterson about a fee of $2350 which she paid to the respondent. A five-count notice of formal hearing before the Advisory Committee was served on the respondent. He appeared with counsel at the appointed time. Before the hearing convened the staff counsel for the committee met with the respondent and his counsel to discuss a possible disposition of the charges. Under the proposed disposition the respondent would admit the truth of the facts stated in the information and would make restitution of $2350 to the client “before sundown.” The staff counsel agreed that he would then “recommend” that the matter be disposed of by means of a reprimand, but he made it clear to the respondent and his counsel that he could not bind the committee and could not give any assurance that the committee would accept his recommendation. Because the facts of the information were admitted, no testimony was taken. The two counsel and respondent appeared before the committee in session. The respondent made a statement to the committee and answered numerous questions. He was advised that the committee would consider the recommendation and would reach a decision. It apparently decided not to accept the recommendation, for an information in five counts seeking disbarment was filed in this Court on January 26, 1988. The information is substantially the same as the notice of formal hearing.

A master was appointed1 and a hearing held. The notice of formal hearing was received in evidence, inasmuch as the respondent had admitted the facts there stated. There is absolutely no support for a claim that the respondent’s admission of the facts stated in the notice was the result of his having been misled or deceived. He no doubt made the admission in the hope of receiving lenient treatment, but without assurance of leniency. Neither Mrs. Patterson, who apparently was available at the formal hearing, nor Erickson testified be[940]*940fore the master. The master found that the committee had established only Counts III, IV and V of the information, but nevertheless recommended disbarment. Although the master’s report is simply a recommendation we do not find it necessary to discuss the two counts which he found not to have been established.

Count IV

Count IV has to do with a listing placed in the yellow pages of the St. Louis telephone directory, under the heading "Attorney Referral and Information Service,” and listing, in lower case, “Kinghorn and Hyatt, 111 S. Bemiston, 727-0123.” There were four other listings under this heading, all in capital letters and some with additional advertising matter. The respondent’s firm was also listed in the “Attorneys” section of the classified listings, along with a prominent display advertisement.

The respondent frankly admits that he did not operate an attorney referral service. He testified that the listing under that heading was procured by Mr. Erickson, without his knowledge or consent. The signed order to the publisher of the directory supports this contention. Nothing in evidence shows that Kinghorn directed Erickson to arrange the referral listing. The respondent testified that, when he discovered this listing, he reprimanded Erickson and instructed his staff to advise any persons who called in response to this listing that the listing was in error and that the office was a law office rather than an attorney referral service.

A lawyer called the listed number to inquire about the handling of a copyright matter. He was told that the attorney who handled those matters was out of the office and would call when he returned. The caller then asked for a referral to a lawyer who handled copyrights and was told that the office did not make referrals.

The master found that the maintenance of this listing constituted a “false or misleading communication” in violation of Rule 7.1 of the Rules of Professional Conduct (set out as our Rule 4).2 We agree with this finding. Whether or not the respondent caused the initial listing, the evidence shows that he sought to reap benefits in the form of law business from persons who responded in the expectation of an unbiased reference to a lawyer. He of course could not erase the listing from the current edition of the yellow pages, but, when he learned about it, he was obliged to take affirmative steps so that all callers who were strangers to the office would be asked whether they were calling in response to the referral listing and advised of the error. The evidence of the one caller indicates that the first effort of the person answering the phone was to steer callers to the respondent’s office. It makes no difference that this caller may have been a self-appointed tester. The listing raised questions which might properly be the subject of inquiries by members of the bar.

We therefore find that the respondent violated Rule of Professional Conduct 7.1 by reason of the facts alleged in Count IV of the information.

Counts III and V

It is convenient to treat the very serious charges contained in Counts III and V together. On May 30, 1986, Terry Sue Patterson went to respondent’s office to obtain legal representation in collecting child support due her pursuant to an Illinois judgment. The father of the child was then in Wichita, Kansas. She met with Erickson and the respondent spoke to her briefly while she was in Erickson’s office. She signed a retainer agreement and a promissory note for $2350. There was no discussion with respondent as to the amount of this fee. It appears, however, that the child support owing at the time of her visit to the law office was less than the amount of the fee she agreed to.

The sum of $2350 was paid on June 2, 1986, by check signed by Mark A. Patterson, Terry's then husband, and payable to the respondent. The respondent was quite [941]*941aware that this check had been received and deposited in his account.

The respondent did very little toward collecting the child support. A letter on the respondent’s stationery, dated July 28, 1986 and signed by Erickson, advised Mrs. Patterson that there had been a problem in getting the required documents from the court in Peoria, Illinois, but that the documents were then available and that she should make arrangements to appear at the office to sign the verified petition.3 She signed the verification on a two-page petition on October 17, 1986 but there is no evidence that the petition was ever filed. Under date of November 20, 1986 Mrs. Patterson and her husband notified the respondent that they were terminating his services and instructed him to deliver the file and reimbursement of fees paid to another attorney. The respondent did not comply with these directions and Mr. Patterson made a further demand on December 8, 1986, directing return of the retainer “which should have a small portion taken for services rendered.”

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Bluebook (online)
764 S.W.2d 939, 1989 Mo. LEXIS 10, 1989 WL 11370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kinghorn-mo-1989.