Cupples, Matter of
| Decision Date | 19 August 1997 |
| Docket Number | No. 79063,79063 |
| Citation | 952 S.W.2d 226 |
| Parties | In the Matter of Gary M. CUPPLES, Respondent. |
| Court | Missouri Supreme Court |
John E. Howe, Chief Disciplinary Counsel, Sam Phillips, Staff Counsel, Jefferson City, for informant.
Gary M. Cupples, Kansas City, for respondent.
ORIGINAL DISCIPLINARY PROCEEDING
This is an original disciplinary proceeding instituted by the Bar Committee for the 16th Judicial Circuit. Gary M. Cupples was charged by the Chief Disciplinary Counsel with two counts of violating Rule 4-8.4(c). We find that Cupples engaged in misconduct by secreting client litigation files from his partners in preparation to withdraw from the law firm and by removing client litigation files from the firm without the appropriate consent of the client. We order that Cupples be publicly reprimanded for this misconduct.
In a disciplinary proceeding the Master's findings, conclusions, and recommendations are advisory in nature. In re Oberhellmann, 873 S.W.2d 851, 852 (Mo. banc 1994). 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. Id. In attorney disciplinary proceedings, the truth of allegations must be established by a preponderance of the evidence. In re Howard, 912 S.W.2d 61, 63 (Mo. banc 1995).
We find the following facts. Gary Cupples has been an attorney licensed to practice law in the State of Missouri since 1978. After graduation from law school in 1978, Cupples was hired as an associate with the firm of Deacy & Deacy. He was made a partner of the firm in 1985. During his tenure with Deacy & Deacy, Cupples handled a significant amount of litigation for the State Farm Insurance Company. State Farm was one of the Deacy law firm's biggest and oldest clients. State Farm had authorized a limited number of law firms in the Kansas City area to represent it and its insureds. Cupples acknowledged that he knew that the firm was authorized to handle State Farm business, but that he, as an individual lawyer, was not.
Deacy & Deacy had a policy of assigning State Farm cases within the firm on an alphabetical basis, regardless of to whom the case was initially addressed. During the relevant time, Cupples was assigned all State Farm cases beginning with the letters "B" and "I". Under the alphabetical system, if a case that began with the letter "B" or "I" was addressed to a member of the firm other than Cupples, that attorney would enter the case in the firm's "day book", fill out a File Receipt Form, and turn the file over to Cupples. If Cupples received a file for a case that did not begin with the letters "B" or "I", he was supposed to enter the case into the daybook, fill out the File Receipt Form, and turn the file over to the proper member of the firm. The firm's policy allowed cases to be assigned outside of the alphabetical system when State Farm requested that a particular attorney work on the file or when an attorney was too busy with other files to work on a case that normally would be assigned to him. State Farm knew of Deacy & Deacy's case assignment system and regional superintendents from State Farm met regularly with Deacy & Deacy to discuss its representation of State Farm.
During the Memorial Day weekend of May 31, 1993, one of the members of Deacy & Deacy learned that Cupples had leased office space to establish his own independent law practice. Upon being informed of that news, Thomas Deacy, Jr., and Spencer Brown, the managing partners of Deacy & Deacy, called directory assistance and found a phone number listed as "Gary Cupples, Attorney at Law". When they called the phone number, a voice answered the phone, "Gary Cupples' Law Office."
Brown and Deacy asked Cupples to meet with them immediately after the weekend. When questioned whether he had set up an independent law office, Cupples acknowledged that he had leased office space but denied having used the office to practice law. Cupples told Brown and Deacy that he leased the space for his wife's catering business. Cupples later testified that he negotiated the lease for the office space in March 1993 and had phone service connected a few weeks prior to the Memorial Day weekend. The meeting concluded with Deacy, Brown, and Cupples agreeing that Cupples should withdraw from the firm effective May 31, 1993.
Over the next few days, the members of Deacy & Deacy learned that Cupples had failed to register twelve to fifteen case files in the firm's tracking and billing systems and had failed to turn over State Farm cases that he had received but that would not have been assigned to him by the alphabetical system. Cupples also failed to report his work on these cases during weekly meetings with the members of the firm. The firm learned of this behavior when an adverse attorney left a message for Cupples, after he had left the firm, advising Cupples that his client would not agree to set aside a default judgment. Although Cupples ultimately had the default judgment set aside, the news of the judgment caused the Deacy firm to investigate the files that Cupples had worked on. By comparing computer files of correspondence that Cupples wrote to clients with the firm's list of cases, the firm learned of the twelve to fifteen files that Cupples never entered into the system.
Brown asked Cupples to meet him again on the following Saturday. During their meeting, Brown, armed with a list of fourteen or fifteen cases, questioned Cupples whether he had worked on any cases that were not recorded in the Deacy firm's system. Cupples answered that there were two or three cases on which he had worked that were not on the firm's books. After a denial by Cupples that other cases existed, Brown told Cupples that he hoped to have the problem resolved by Monday morning.
Cupples called Brown at home the next day and admitted to possessing twelve or thirteen files. Cupples told Brown that he planned to keep the files and split the fees with Deacy & Deacy. Brown again told Cupples that he hoped to have the problem solved before a members' meeting at 9:00 a.m. on Monday morning. On Monday morning, before the meeting, Cupples called Brown and agreed to return the twelve files to the firm. Cupples asked Brown to pick the files up at his new law office at 5:00 p.m. that evening, and Brown agreed to do so. When Brown asked whether Cupples possessed any other files that belonged to the firm, Cupples evaded the question. A week later, the firm received six more files from State Farm that had been returned by Cupples when State Farm informed him that Deacy & Deacy would continue to represent it. Cupples never informed State Farm that he was not using the firm's system of handling cases or that he was hiding the files from the other members of the firm.
Cupples admitted that he previously complied with the firm's system of managing State Farm cases. He stated that he did not comply with the system in regard to the cases at issue here because he did not want Thomas Deacy interfering with the handling of the files. The obvious inference from these facts is that Cupples was planning to withdraw as a partner from the Deacy firm and that he was secreting the files in an effort to take them with him to his new practice.
On July 23, 1993, Deacy & Deacy filed a complaint relating to Cupples' behavior with the Circuit Bar Committee for the 16th Judicial Circuit. The Bar Committee held hearings on December 8 and 18, 1993. The Circuit Bar Committee found probable cause to believe that Cupples was guilty of professional misconduct and served a Proposed Information on March 29, 1995. Pursuant to Rule 5.10 (then in effect), Cupples requested a hearing by the Advisory Committee to review the Bar Committee's finding. The Advisory Committee held a hearing on May 21, 1996, and ruled on May 23 that probable cause existed to believe that Cupples was guilty of professional misconduct.
An Information charging two counts of professional misconduct for violating Rule 4-8.4(c) 1 was filed with this Court by the chief disciplinary counsel. The Information charged:
Gary M. Cupples ... violated the following Rules of Professional Conduct (Missouri Supreme Court Rule 4):
Count I
Rule 8.4(c) of the Rules of Professional Conduct in that he secreted legal matters from his partners at the Deacy and Deacy Law Firm while a partner in the firm by: (a) failing to enter files received from firm clients into the firm's filing and docketing systems; and (b) failing to bill time he expended on such matters against the files at the time it was expended. Further, he removed the files on such matters from the Firm without the knowledge or consent of his partners. All such conduct was for the purpose of deceiving and defrauding his partners with the intent to appropriate the business for himself.
Rule 8.4 (c) of the Rules of Professional Conduct in that he engaged in conduct which involved deceit and misrepresentation to clients by (a) failing to enter files received from clients of the Deacy and Deacy Law Firm into the Firm's filing and docketing systems and failing to bill time he expended on such matters against the files at the time it was expended while a partner of the firm; and (b) removing the files on such matters from the Deacy and Deacy Law Firm following his withdrawal from the Firm without the knowledge or consent of the clients.
This Court appointed Judge Donald Barnes as Master. After the Master's hearing on December 13, 1996, the Master concluded that Cupples was guilty as charged and recommended that Cupples' license be "suspended indefinitely unless the Court decides to disbar him."
II.
Cupples raises five points in his brief challenging the jurisdiction of this Court to hear this disciplinary proceeding and alleging a violation of his due process rights.
Cupples first cites Rule 5.13 for the proposition that "[...
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