In re Eisenstein
| Decision Date | 05 April 2016 |
| Docket Number | No. SC 95331,SC 95331 |
| Citation | 485 S.W.3d 759 |
| Parties | In re: Joel B. Eisenstein, Respondent. |
| Court | Missouri Supreme Court |
The chief disciplinary counsel, Alan D. Pratzel, represented himself along with Sam S. Phillips of the chief disciplinary counsel's office in Jefferson City, (573) 635-7400, and Special Representative Marc A. Lapp of the Region X Disciplinary Committee in St. Louis, (314) 440-9337
Eisenstein was represented by Alan S. Mandel of Mandel & Mandel LLP in St. Louis, (314) 621-1701
The Office of Chief Disciplinary Counsel (OCDC) filed an information charging Joel Eisenstein with several violations of the Rules of Professional Responsibility. A disciplinary hearing panel (DHP) found that Mr. Eisenstein violated Rules 4–8.4(c), 4–8.4(d), 4–3.4(a) and 4–4.4(a) by using illegally obtained evidence, including the work product of opposing counsel. The DHP recommended an indefinite suspension with no leave to apply for reinstatement for 12 months. Mr. Eisenstein rejected the recommended discipline. This Court finds that Mr. Eisenstein violated the rules as determined by the DHP and orders that he be suspended indefinitely with no leave to reapply for reinstatement for six months.
Mr. Eisenstein was licensed as an attorney in Missouri in 1974. Mr. Eisenstein's license has been disciplined on five prior occasions. In 1991 and again in 1999, Mr. Eisenstein was admonished for violating Rule 4–3.5(b) by engaging in ex parte communications with the judge. In 1997, this Court suspended Mr. Eisenstein after he pleaded guilty to a federal misdemeanor for willfully failing to file an income tax return. In 2001, Mr. Eisenstein was admonished for violating Rule 4–8.1(b) by failing to respond to the OCDC's request for information regarding an ethics complaint. Finally, in 2004, Mr. Eisenstein was admonished for violating Rule 4–3.3(d) for failing to inform the court of material facts relevant to a pending issue.
The present disciplinary matter involves Mr. Eisenstein's representation of his client (Husband) in an action to dissolve Husband's marriage to Wife. Attorney Stephanie Jones represented Wife. On multiple occasions, Husband accessed Wife's personal e-mail account without her permission. Mr. Husband obtained Wife's most current payroll documents and a list of direct examination questions Ms. Jones had e-mailed to Wife in preparation for trial. In November 2013, Husband delivered the payroll documents and list of direct examination questions to Mr. Eisenstein.
On February 11, 2014, the second day of trial, Mr. Eisenstein handed Ms. Jones a stack of exhibits that included Ms. Jones' direct examination questions. Prior to this time, neither Ms. Jones nor Wife was aware that Husband had improperly accessed Wife's e-mail account and delivered the information to Mr. Eisenstein. Ms. Jones requested a conference with the trial judge and a hearing on the record.
At the hearing, Husband admitted that he improperly accessed Wife's personal e-mail account and obtained the list of direct examination questions and the payroll information. Husband admitted that he made notes on the list and delivered the documents to Mr. Eisenstein.
Ms. Jones also questioned Mr. Eisenstein on the record. Mr. Eisenstein admitted that he had viewed the information improperly obtained by Husband and that he did not immediately disclose his receipt of this information to Ms. Jones:
On February 14, 2014, Mr. Eisenstein sent the following e-mail to Ms. Jones:
Rumor has it that you are quite the gossip regarding our little spat in court. Be careful what you say. I'm not someone you really want to make a lifelong enemy of, even though you are off to a pretty good start. Joel.
The OCDC filed an Information charging Mr. Eisenstein with violating Rules 4–4.4(a) for using methods of obtaining evidence in violation of the rights of a third person; 4–8.4(c) and (d) for reviewing and using improperly obtained evidence; 4–3.4(a) for unlawfully concealing a document having evidentiary value; and 4–3.3(a) for misrepresenting facts to a tribunal. The DHP held a hearing and determined that Mr. Eisenstein violated Rules 4–4.4(a), 4–8.4(c) and (d), and 4–3.4(a). In addition to possessing Ms. Jones' direct examination questions, the DHP also found, based on Ms. Jones' testimony, that Mr. Eisenstein had used the improperly obtained payroll information during a pre-trial settlement conference. The DHP recommended an indefinite suspension with no leave to apply for reinstatement for 12 months. Mr. Eisenstein rejected this recommendation. This Court has jurisdiction pursuant to its inherent power to regulate the practice of law.
The DHP's findings of fact, conclusions of law, and recommendations are advisory, and this Court may reject any or all of the DHP's recommendations. In re Coleman, 295 S.W.3d 857, 863 (Mo. banc 2009). "Professional misconduct must be proven by a preponderance of the evidence before discipline will be imposed." In re Farris, 472 S.W.3d 549, 557 (Mo. banc 2015). "This Court decides the facts de novo, ‘independently determining all issues pertaining to credibility of witnesses and the weight of the evidence, and draws its own conclusions of law.’ " Id. quoting In re Snyder, 35 S.W.3d 380, 382 (Mo. banc 2000).
The information alleged that Mr. Eisenstein violated Rule 4–4.4(a) by utilizing the payroll information and list of direct examination questions that were improperly procured by Husband. Rule 4–4.4(a) prohibits a lawyer from using "methods of obtaining evidence that violate the legal rights" of a third party. Comment 1 to Rule 4–4.4(a) specifically notes that the rule is intended to prevent "unwarranted intrusions into privileged relationships, such as the client-lawyer relationship."
The preponderance of the evidence supports a finding that Mr. Eisenstein violated Rule 4–4.4(a). Ms. Jones testified credibly that Mr. Eisenstein had referenced information from Wife's payroll documents during pretrial settlement negotiations. Further, Mr. Eisenstein admitted that he reviewed the information provided by Husband, realized it was "verboten," and did not immediately disclose his receipt of the information to opposing counsel. Mr. Eisenstein's failure to promptly disclose his receipt of the information and return it to Ms. Jones until after the trial had commenced supports a finding that Mr. Eisenstein utilized Husband's improper acquisition of Wife's personal information, including privileged attorney client communications.
Mr. Eisenstein argues that he did not use improper means to obtain the evidence because it was Husband who obtained the information. The fact that Husband obtained the information does not negate the fact that Mr. Eisenstein received the information, realized it was "verboten," and then failed to disclose his receipt of that information until the second day of trial. The comment accompanying Rule 4–4.4(a) recognizes that lawyers "sometimes receive documents that were mistakenly sent or procured by opposing parties or lawyers." However, when a lawyer knows that he or she has improperly received information, "Rule 4–4.4 requires the lawyer to promptly notify the sender in order to permit that person to take protective measures." In this case, Rule 4–4.4 required Mr. Eisenstein to promptly disclose his receipt of the information to Ms. Jones so that appropriate protective measures could be undertaken. Mr. Eisenstein did not do so.
Mr. Eisenstein also argues that he immediately disclosed his receipt of the information. Mr. Eisenstein asserts that when he testified in chambers that he had realized "at some point in time" that the information was "verboten," he was explaining that he had just realized that the information was improperly obtained. If Mr. Eisenstein had just discovered the source of the information minutes before his in-chambers testimony, he could have so stated. The DHP did not find Mr. Eisenstein's explanation credible and neither does this Court. Mr. Eisenstein violated Rule 4–4.4(a).
Rule 4–8.4(c) prohibits a lawyer from engaging "in conduct involving dishonesty, fraud, deceit, or misrepresentation." Mr. Eisenstein's violation of Rule 4–4.4(a) by obtaining evidence procured through improper means and failing to immediately disclose the same to opposing counsel demonstrates a violation of Rule 4–8.4(c).
Rule 4–3.4(a) provides, in part, that a lawyer shall not "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value." Mr. Eisenstein violated Rule 4–3.4(a) by concealing his possession of Wife's payroll information and Ms. Jones' direct examination questions until the second day of trial.
The information alleged that Mr. Eisenstein violated Rule 4–8.4(d) by sending a threatening e-mail to Ms. Jones. Rule 4–8.4(d) prohibits a lawyer from engaging "in conduct that is prejudicial to the administration of justice." Mr. Eisenstein's e-mail to Ms. Jones clearly implied that Ms. Jones would suffer professional retribution if she further discussed the issue. Threatening opposing counsel during the course of litigation or to avoid an ethics complaint constitutes conduct prejudicial to the administration of justice. Mr. Eisenstein's...
To continue reading
Request your trial
-
Raymond v. Spirit Aerosystems Holdings, Inc.
...notified opposing counsel); Burt Hill, Inc. v. Hassan, No. CIV.A. 09-1285, 2010 WL 419433 (W.D. Pa. Jan. 29, 2010); In re Eisenstein, 485 S.W.3d 759, 762 (Mo. 2016) (en banc) (granting sanctions where counsel did not promptly reveal receipt of personal information). Cf. Chesemore v. Allianc......
-
Raymond v. Spirit Aerosystems Holdings, Inc.
...recently, in 2016 the Missouri Supreme Court addressed a party's procurement and use of the opposing party's privileged information. In re Eisenstein120 was a disciplinary proceeding before the Missouri Supreme Court arising from a divorce case. In the divorce action, attorney Joel Eisenste......
-
Handling Electronic Documents Purloined by a Client
...voluntarily"), www.cobar.org/ Portals/COBAR/repository/ethicsOpinions/ FormalEthics0pinion_69_2011.pdf. [12] In re Eisenstein, 485 S.W.3d 759 (Mo. 2016). [13] Id. at 761. [14] Id. at 762. [15] Id. at 763. [16] Id. [17] Id. at 764. [18] In addition, to support its conclusion regarding Missou......