In Re Weiner

547 S.W.2d 459, 1977 Mo. LEXIS 262

• Court: Supreme Court of Missouri
• Decided: March 14, 1977
• Docket: 58923
• Status: Published

Opinions

SEILER, Chief Justice.

This is a disciplinary action involving rule 5.19, which deals with professional misconduct in another state. Respondent, Dan D. Weiner, age 44, is a member of both the Ohio and Missouri bars who practiced in Ohio, not Missouri. He was suspended in Ohio for an indefinite period, Dayton Bar Association v. Weiner, 40 Ohio St.2d 7, 69 Ohio Op.2d 83, 317 N.E.2d 793 (1974), which under the Ohio rules meant suspension for at least two years from the date of the ruling, October 16, 1974. The matter first came before us in In re Weiner, 530 S.W.2d 222 (Mo. banc 1975), in which we considered the question of to what extent we should rely on the Ohio decision when deciding whether discipline is called for in Missouri for the acts and omissions which took place in Ohio.

As will be seen from our earlier decision, In re Weiner, supra, at 225, it appeared that the Ohio authorities probably would not have disciplined respondent beyond a public reprimand had it not been for their belief that he had applied $480 which had been deposited with him for another purpose to his fee without his clients’ consent. As reported in our earlier decision, respondent asserted that in the course of cleaning out his office shortly after the Ohio suspension he ran across a tape recording of an office conference during which his clients authorized and consented to his application of the above mentioned $480 to the fee. The Ohio court refused to hear this newly discovered evidence but we saw “no reason why we should not do so in deciding the important question of whether respondent has properly conducted himself as a member of our bar and whether discipline is necessary to protect the public interest.” 530 S.W.2d at 225.

Therefore, we ordered an evidentiary hearing in front of a master before making our final determination. The hearing has been held. It took place in St. Louis. The witnesses were respondent’s former secretary, his clients, respondent, and respondent’s wife, who filled in as substitute when the regular secretary was absent. The tape of the March 6,1970, conference was played before the master and also before us. We also have a transcript of the tape in the record. Respondent and his clients, Mr. and Mrs. Turner, heard the tape before the master and were interrogated about it.

The master ruled against respondent, holding that respondent had improperly applied the $480 fund to his fee. However, in a disbarment or disciplinary proceeding, the ultimate responsibility for finding the facts is ours. It is our duty to make our own decision, In re Veach, 365 Mo. 776, 287 S.W.2d 753, 755 (banc 1956). The findings and conclusions of a master are advisory, not binding. It is our duty to review the evidence, the credibility, weight, and value of the witnesses, and the determination of all fact issues necessary to a decision in the case are for this court, In re Gamblin, 458 S.W.2d 321, 323 (Mo. banc 1970). This continues to be the basis on which we hear and determine disciplinary proceedings, In re Schiff, 542 S.W.2d 771, 774 (Mo. banc 1976). The rule of appellate review under rule 73.01 set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) does not apply to disciplinary proceedings. Accordingly, we make our own independent review of the evidence before the master and despite our high regard for his ability and sincerity, we are unable to agree with his findings or conclusions.

We are satisfied the tape recording is authentic and reliable, that it was made in Mr. Weiner’s office on the date claimed, March 6, 1970, and that Mr. Weiner overlooked it until he ran across it when closing his office after his suspension. In the taped conversation Mr. Weiner reminded Mr. and Mrs. Turner that Mrs. Turner had called his office a month or so earlier and said to “keep the money on their fees” and return their important papers. The telephone message was jotted down by Mr. Weiner’s secretary at the. time and given to him by her. Respondent produced a copy of the telephone message (the original is on file in Ohio) and the secretary’s carbon copy.¹ We do not believe it is a fabrication or afterthought. Mrs. Turner did not gainsay having made the call, nor did she disagree that if she had not made such a call to the secretary, she would no doubt have objected strenuously when Mr. Weiner related the conversation. No such objection appears.

Mr. Turner remembered the March 6 conference to some extent and he knew at the time it was being taped. He could not remember authorizing his wife to make the call about applying the $480 to the fee but said it was possible he had done so.

Some of the statements made by Mr. and Mrs. Turner in the conference of March 6, 1970, are neither consistent with their complaint nor their present or past testimony against respondent; perhaps this accounts for a lack of forthrightness on their part in their testimony before the master about that conference and their reluctance to accept what the transcript and the tape itself show was said. For example, although they conceded the female voice on the tape was that of Mrs. Turner and there was no dispute about respondent’s voice, neither Mr. nor Mrs. Turner would say unequivocally that the other male voice was that of Mr. Turner, despite the absurdity of the alternative that someone other than Mr. Turner could have been the third person present with Mrs. Turner and respondent in a conference dealing with personal matters involving Turner and his problems regarding child support and attorney fees.

Mr. and Mrs. Turner continued with respondent as their lawyer after the March 6 conference and they made further payments on the balance of respondent’s fee. Cash payments of $20 were made on March 13 and March 20, 1970. Respondent did some work on their matters March 7, 1970, had another conference with Mrs. Turner on March 20, 1970, wrote a letter to the Bureau of Support on March 22, had further telephone conversations with Mrs. Turner on April 1 and April 28 and a final conference with her on May 4, 1970. Mr. Turner admitted that additional payments were made on respondent’s fee and that the child support matter which brought the Turners to respondent’s office on March 6 had thereafter “been all straightened out”. This course of events following the March 6, 1970, conference is much more consistent with respondent’s position that Mrs. Turner in her telephone call of January 23, 1970, authorized him to apply the $480 to his fee than that he had no such authority or that the Turners were taking a contrary position in the March 6 meeting.

We therefore conclude that respondent did not conduct himself improperly as a member of the Missouri bar with respect to the $480 mentioned above. “In Missouri . disciplinary proceedings for lawyers require the charges be sustained by a preponderance of the evidence. . . .” In the Matter of Duncan, 541 S.W.2d 564, 569 (Mo. banc 1976). That has not been done here.

We are mindful that respondent acted promptly at the time of his suspension in Ohio to bring his suspension to the attention of the Advisory Committee of this court, as he should have done, In re Coleman, 492 S.W.2d 750 (Mo. banc 1973). Respondent has not practiced law here or elsewhere since his suspension in Ohio and we were informed at oral argument that his application for reinstatement in Ohio is now under consideration there.

In our judgment, no additional discipline is warranted in view of the suspension imposed by Ohio, the time that has elapsed since imposition of the suspension, and respondent’s forbearance from practicing law in Missouri during the same time.

We therefore conclude this proceeding and order the costs of this proceeding assessed against informant and respondent equally.

MORGAN, BARDGETT and DONNELLY, JJ., concur. FINCH, J., dissents in separate dissenting opinion filed. HENLEY, J., dissents and concurs in separate dissenting opinion of FINCH, J. RENDLEN, J., dissents and concurs in part in dissenting opinion of FINCH, J., in separate dissenting opinion filed.

1 . The telephone message forms were in duplicate, bound in a pad, four to a page, with carbon paper in between, so that the making of the original also produced a duplicate carbon copy. The secretary would tear out the original and give it to Mr. Weiner and the carbon copy stayed in the pad. The carbon copy of the Terry Turner call shows the call came in at 2:50 p. m. It is in the pad in sequence along with other telephone calls before and after it on January 23, 1970.