In re Krigel

• Decision Date: 26 January 2016
• Docket Number: No. SC 95098,SC 95098
• Parties: In re: Sanford P. Krigel, Respondent.
• Court: Missouri Supreme Court

480 S.W.3d 294

In re: Sanford P. Krigel, Respondent.

No. SC 95098

Supreme Court of Missouri, en banc .

Opinion issued January 26, 2016

The chief disciplinary counsel's office was represented by Chief Disciplinary Counsel Alan D. Pratzel and Sharon K. Weedin and Sam S. Phillips of his office in Jefferson City, (573) 635-7400, and special regional representative Kevin J. Odrowski, an attorney in Kansas City, (816) 931-4408.

Krigel was represented by Jacqueline A. Cook of Franke Schultz & Mullen PC in Kansas City, (816) 421-7100, and David J. Achtenberg, an attorney in Kansas City, (816) 523-6834.

Various law professors and practitioners of professional responsibility and family law, who filed a brief as a friend of the Court, were represented by Barbara A. Glesner Fines of the University of Missouri-Kansas City School of Law in Kansas City, (816) 235-2380.

GEORGE W. DRAPER III, JUDGE

The Office of Chief Disciplinary Counsel (hereinafter, "OCDC") seeks to discipline Sanford P. Krigel's (hereinafter, "Krigel") law license for alleged multiple violations of the Rules of Professional Conduct. This Court finds that Krigel committed violations of Rule 4–3.3(a)(3) (knowingly offering false evidence), Rule 4–4.1(a) (false statement of material fact), Rule 4–4.4(a) (using means to improperly burden or delay a third person), and Rule 4–8.4(d) (conduct prejudicial to the administration of justice). Krigel is suspended from the practice of law for six months, with execution of such suspension stayed, subject to Krigel's completion of a two-year term of probation in accordance with conditions imposed by this Court.

Factual and Procedural History

Krigel was admitted to The Missouri Bar in September 1976. He has no disciplinary history, and his license is in good standing. He is an owner, founder, and managing partner of Krigel & Krigel. Krigel has substantial experience in the practice of law and specializes in adoption law.

This matter arises from Krigel's representation of an unmarried, pregnant, eighteen year old woman (hereinafter, "Birth Mother") in 2009. Birth Mother became unexpectedly pregnant while in a monogamous relationship with her boyfriend (hereinafter, "Birth Father"). Birth Mother and Birth Father discussed various options for dealing with this pregnancy. Ultimately, they made no decision other than to hide the pregnancy from their parents until Birth Mother was approximately eight months pregnant.

Birth Mother and Birth Father both resided with their respective families. On March 5, 2010, Birth Mother, Birth Father, and both sets of their parents came together to discuss the pregnancy. During this discussion, Birth Father declared he wanted to raise the child at his home with his parents and that he did not want to place the child up for adoption. This discussion precipitated a sharp decline in the relationship between the birth parents. Birth Mother and Birth Father ended their relationship, and Birth Mother's parents initiated steps to prevent Birth Father from having further contact with Birth Mother.

Birth Father retained Jeff Zimmerman (hereinafter, "Zimmerman"), an attorney, in connection with the pregnancy. Meanwhile, Birth Mother contacted Hillary Merryfield¹ (hereinafter, "Merryfield"), seeking information regarding options available to her and requesting an attorney referral. Merryfield referred Birth Mother to Krigel; Merryfield and Krigel had worked together on adoption matters for approximately twenty years.

Krigel met with Birth Mother and her parents on March 11, 2010. Birth Mother and her parents advised Krigel of the background, pregnancy, and relationship with Birth Father and its deterioration earlier in the month. Birth Mother indicated that originally she and Birth Father discussed raising the child together, but since the deterioration of their relationship, she believed that it would be best for the child to be adopted by a family. Birth Mother provided Krigel with her April due date as well as Birth Father's name and residence. There was no doubt in Birth Mother's mind as to the actual paternity of the child. Krigel was told that Birth Mother and Birth Father were to communicate only through attorneys. Further, Krigel was informed that Birth Father would not consent to an adoption.

Krigel explained to Birth Mother her rights under Missouri law and the rights of a biological father to assert paternity. Krigel described the relevant time frames in which a biological father had to assert his parental rights to have his consent required for an adoption. Ultimately, the family retained Krigel to assist Birth Mother in terminating her parental rights in anticipation of a subsequent adoption proceeding.

Krigel employed a "passive strategy" in his representation of Birth Mother. Accordingly, Krigel and Birth Mother would "actively do nothing" to communicate with Birth Father or his counsel; they would not advise Birth Father or his counsel of the adoption plans, the birth of the child, and the instigation of any legal proceedings.

On March 19, 2010, Krigel received a telephone call from Zimmerman. Krigel knew Zimmerman practiced law primarily in Kansas, and he did not believe Zimmerman typically handled adoption or paternity matters. Krigel represented to Zimmerman that the child would not be adopted without Birth Father's consent. Zimmerman stated that he believed Birth Mother and Birth Father needed to be counseled regarding their situation without the presence of their parents. Krigel suggested Birth Mother and Birth Father meet with Merryfield, knowing Birth Mother was working with Merryfield already and pursuing an adoption for the child. Subsequently, Zimmerman contacted Merryfield to obtain an appointment for Birth Mother and Birth Father to obtain counseling and attempt to reconcile a unified course of action for the child.

On March 22, 2010, Birth Mother and Birth Father met with Merryfield. At the meeting, Birth Father stated he would not consent to an adoption, and he wanted to raise the child, preferably with Birth Mother. After the meeting, Merryfield contacted Krigel and informed him that Birth Father did not want to consent to an adoption. However, Merryfield thought that Birth Father probably would not contest the adoption because she characterized him as quiet, sad, and passive.

Birth Mother contacted Birth Father in late March. Birth Mother informed him that her expected due date had changed from early April to early May. This statement was intended to deceive Birth Father of the real due date.

The child was born. Neither Birth Father nor Zimmerman was informed of the child's birth. Birth Father's name was not indicated on the birth certificate.

On April 6, 2010, there was a "Consent to Terminate Parental Rights" hearing in Jackson County, Missouri, allowing Birth Mother to terminate her parental rights in preparation for adoption proceedings. Neither Birth Father nor Zimmerman was aware of the hearing, and accordingly, they did not appear. In response to a question by Krigel, Birth Mother agreed that Birth Father "had been consulted at length about the matter." Birth Mother also agreed when Krigel asked "even though you've talked to him and his family at some length, he has not stepped forward since the birth of the child claiming any rights to the child." Birth Mother's parental rights were terminated. Immediately thereafter, a "Motion to Transfer Custody and for Adoption" was heard. The custody of the child was transferred to the prospective adoptive parents.

At some point between May 3 and May 12, 2010, Birth Father learned of the child's birth and the deception regarding Birth Mother's expected due date. Birth Father then placed his name on the Putative Father Registry. Later in May, Birth Father learned of the adoption proceedings, and he moved to intervene. On May 6, 2011, the trial court entered its judgment in the adoption proceedings, denying the petition of the adoptive parents and awarding legal and physical custody of the child to Birth Father.

The OCDC filed an information against Krigel in February 2014. Krigel did not admit to any violation of the Rules of Professional Conduct that were alleged in the information. In December 2014, the Disciplinary Hearing Panel (hereinafter, "DHP") conducted an evidentiary hearing.

The Disciplinary Hearing Panel

Following its hearing, the DHP found Krigel violated four rules of professional conduct: Rule 4–3.3(a)(3); Rule 4–4.1(a); Rule 4–4.4(a); and Rule 4–8.4(d). The DHP did not make any findings regarding aggravating or mitigating factors. The DHP recommended Krigel be suspended indefinitely from the practice of law with no leave to apply for reinstatement for six months.

The OCDC accepted the DHP's recommendation. However, Krigel rejected the DHP's recommendation, believing that no sanction for his actions should be imposed. Krigel asks this Court to dismiss the information against him. Because Krigel rejected the DHP's recommendation, this Court must determine the appropriate discipline. Rule 5.19(d)(3).

Standard of Review

The DHP's findings of fact and conclusions of law are advisory. In re Belz, 258 S.W.3d 38, 41 (Mo. banc 2008). "This Court [in a disciplinary proceeding] reviews the evidence de novo, independently determining all issues pertaining to credibility of witnesses and the weight of the evidence, and draws its own conclusions of law." In re Snyder, 35 S.W.3d 380, 382 (Mo. banc 2000). "Professional misconduct must be proven by a preponderance of the evidence before discipline will be imposed." In re Madison, 282 S.W.3d 350, 352 (Mo. banc 2009) (quoting In re Crews, 159 S.W.3d 355, 358 (Mo. banc 2005) ).

Krigel's Conduct

Based on the record before this Court, Krigel committed multiple violations of the Rules of Professional Conduct. This Court finds Krigel to have violated the following rules:

Violation of Rule 4–3.3(a)(3)

Rule 4–3.3(a)(3) requires a lawyer shall not knowing "offer evidence that the lawyer knows to be false ...."...