In re Vails

768 S.W.2d 78, 1989 Mo. LEXIS 35, 1989 WL 36664
CourtSupreme Court of Missouri
DecidedApril 18, 1989
DocketNo. 70526
StatusPublished
Cited by2 cases

This text of 768 S.W.2d 78 (In re Vails) 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 Vails, 768 S.W.2d 78, 1989 Mo. LEXIS 35, 1989 WL 36664 (Mo. 1989).

Opinions

RENDLEN, Judge.

This disciplinary action was instituted by the Advisory Committee of the Missouri Bar, which conducted a formal hearing and found probable cause to believe respondent was guilty of professional misconduct. The Committee then filed its information charging violation of Supreme Court Disciplinary Rules 1-102(A)(1) and 1-102(A)(4), 2-107(A), (B), 2-lll(A)(2H3), 6-101(A)(3), and 7-101(A)(l)-<3), effective January 1, 1971; and of Rule 8.4(a) and (d) of the Missouri Rules of Professional Conduct, effective January 1, 1986. Appointed by the Court as Special Master, the Honorable Robert G. Dowd, Jr. made findings of fact [79]*79and recommended disbarment; though not bound by those findings and cognizant that we may determine the facts for ourselves, In re Murphy, 732 S.W.2d 895, 902 (Mo. banc 1987), we in large part agree with the facts found by the Master, but not with the suggested sanction.

These proceedings arise from Minnie Vick’s employment of respondent in June, 1985 to draft an agreement setting forth the ownership rights in a parcel of property which she had purchased with a friend. On June 25, Ms. Vick paid respondent’s fee with two checks of $175.00, which respondent cashed the following day. He promised the clients the agreement would be drafted within the next week; however, Ms. Vick testified that she has never received the agreement. Though she attempted to contact respondent six or seven times, respondent had not personally replied, and she spoke with his secretary instead. In slightly less than two months following her first contact with respondent, Ms. Vick filed a complaint with the Bar Association of Metropolitan St. Louis requesting arbitration of a fee dispute, though the matter seems more akin to tardy performance than a “fee dispute.” Respondent failed to answer phone calls from the Bar Association’s investigator but did respond to letters. He told the investigator that he had not had a chance to finish the work and would refund the money to Ms. Vick. Upon his failure so to do, an arbitration hearing was conducted on February 4, 1986, but respondent failed to attend. The arbitrator ruled that respondent should refund the fee, and on respondent’s continuing delay, the Advisory Committee of the Missouri Bar notified him by a letter of January 19, 1988, that it would proceed with a hearing if he did not explain his conduct. A similar letter was sent February 8, and on failure to respond he was notified of an informal hearing to be held on March 24, 1988. Respondent again failed to appear, whereupon the committee notified him by certified mail of its formal hearing to be held on April 28, 1988, but respondent, consistent with his prior performance, again declined or neglected to attend.

The Advisory Committee filed its information in this Court May 18, 1988, and within a month respondent mailed a check for $385 (which included interest), accompanied by a letter of apology to Ms. Vick, but the check was returned for insufficient funds. Respondent answered the information on June 17, enclosing a copy of the property agreement, and finally broke his pattern of nonappearance by attending a pretrial conference before the Master on June 30. At that meeting, respondent waived his right to an evidentiary hearing and agreed to submit the case on the record contained in the legal file and documents submitted with notice to the opposing party. He also promised to send $385 to Ms. Vick by July 11, but delayed so doing until September 13, after the Master had inquired concerning the delay.

In our examination of the proceeding under the disciplinary rules, the Master’s findings and conclusions are essentially advisory to this Court, and we must “review the evidence, assign credibility to witness testimony, and make all necessary factual determinations.” In re Staab, 719 S.W.2d 780, 781 (Mo. banc 1986). Each alleged violation of a disciplinary rule must be established by a preponderance of the evidence as a predicate to respondent’s guilt. In re Murphy, 732 S.W.2d at 902. We have no doubt that respondent neglected a legal matter entrusted to him, DR 6-101(A)(3), intentionally failed to seek the lawful objectives of his client through reasonably available means, DR 7-101(A)(l), and intentionally failed to carry out a contract of employment. DR 7-101(A)(2). Though respondent included a copy of the completed agreement with his answer to the information, the evidence does not clearly indicate when the agreement was drafted, and Ms. Vick consistently testified that she had at no time received a copy of the agreement. We, therefore, find a violation of these rules established by a preponderance of the evidence.

Further, the evidence establishes that respondent in effect withdrew from employment without notifying his client and without promptly refunding unearned portions [80]*80of the fee, contrary to DR 2-lll(A)(2) and (3).1 See In the Matter of Striebel, 744 S.W.2d 778, 779-80 (Mo. banc 1988). Though respondent, at some point, drafted the agreement, it was certainly not delivered in a timely fashion to the client. His conduct and statements before the disciplinary authorities, while not expressly announcing an intent to abandon his employment, produced an inordinate delay. This, coupled with the protracted disinclination to return the fee as promised, justifies our finding the violation of those rules.

Nevertheless, we do not find his conduct resulted in “prejudice” or “damage” to the client in contravention of DR 7-101(A)(3). Though the proposed agreement was to describe the interests of the owners as cotenants of the property, nothing was presented demonstrating that they were in any way damaged or prejudiced because they failed to receive the written contract memorializing their agreement. Nor can we agree that respondent charged an excessive fee for the service to be performed within the meaning of DR 2-107(A) and (B). The evidence establishes that respondent spent a total of at least an hour on two different occasions in consultation with Ms. Vick and her co-purchaser. His assistant conferred with Ms. Vick by telephone and this was followed by correspondence requesting additional documentation. In addition, time was required to perform necessary research and draft the agreement. We cannot hold the agreed fee was clearly excessive in violation of the rule. Cf. In the Matter of Kinghorn, 764 S.W.2d 939, 940-41 (Mo. banc 1989).

The information also charges respondent with “conduct involving dishonesty, fraud, deceit, or misrepresentation,” DR 1-102(A)(4), evidently premised on his failure to fulfill his promise to Ms. Vick that the agreement would be drafted and the delayed performance of his promise to the Bar Association investigator that he would refund the fee.2 While the evidence fails to support that charge, in a related point he is charged with “engagpng] in conduct that is prejudicial to the administration of justice,” Rule 8.4(d), for refusing to cooperate with the Advisory Committee. We agree that his persistent failure to appear when requested and his procrastination in refunding the fee constitutes trifling with the disciplinary process, which warrants a finding of conduct prejudicial to the administration of justice. See In re Forge, 747 S.W. 2d 141, 144-45 (Mo. banc 1988).

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Bluebook (online)
768 S.W.2d 78, 1989 Mo. LEXIS 35, 1989 WL 36664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-vails-mo-1989.