Kirtz, In re
| Decision Date | 14 May 1973 |
| Docket Number | No. 58148,58148 |
| Citation | 494 S.W.2d 324 |
| Parties | In re Frank G. KIRTZ, Respondent. |
| Court | Missouri Supreme Court |
David S. Hemenway, St. Louis, for informants.
Frank G. Kirtz, pro se.
This proceeding is for disbarment of respondent Frank G. Kirtz, an attorney.
On October 26, 1972, the Circuit Bar Committee of the Twenty-Second Judicial Circuit (City of St. Louis, Missouri) filed, with leave of this court, pursuant to Rule 5.03, V.A.M.R., a four-count information in this court praying that respondent be disbarred from the practice of law in Missouri; that the costs of the proceeding be taxed against respondent, and that the court make such other and further orders as the court deems just and proper.
On that same date, October 26, 1972, this court issued its citation to respondent which, inter alia, notified respondent that he was required to plead to the information on or before November 30, 1972. The court ordered the citation and a copy of the information to be served on respondent by the sheriff of the City of St. Louis or his deputies. Service on respondent was not obtained and on November 29, 1972, this court issued a new citation to respondent returnable thirty days after date on which the citation is served on respondent.
On February 7, 1973, the sheriff of the City of St. Louis by one of his deputies made his return to this court. The return states the manner by which service was obtained on respondent in the following words:
'Executed this Citation and Information in the City of St. Louis, Missouri on the 2nd day of February, 1973, by reading said Information and Citation as furnished by the clerk of the Supreme Court of Missouri to the respondent, Frank G. Kirtz at 12:01 A.M. at the said respondents residence at 4530 Pershing St. Louis, Missouri; said respondent being inside of said residence and refusing to open the door the reading of the said Information and Citation was made by the Deputy Sheriff by reading the same in a very loud voice while standing outside the front door of said residence and then leaving a copy of the said Information and Citation by shoving said papers through the Mail slot of the front door.'
Respondent did not plead to the return nor enter his appearance. On March 9, 1973, the clerk of this court sent a letter by certified mail, return receipt requested, to respondent at respondent's home address of 4530 Pershing Avenue, St. Louis, Missouri. The letter advised respondent that the sheriff had made his return showing service on respondent on February 2, 1973; that respondent should have filed a return to the information within 30 days thereafter, and that unless respondent filed his return promptly, the court would proceed to consider the case as a default matter. This letter was returned to the clerk 'unclaimed'.
Rule 5.06 provides that the information and summons (citation) shall be served on the accused as ordinary writs of summons.
Rule 54.06(f), Refusal to Receive Copies of Process, provides: 'In all cases when the person to be served, . . ., shall refuse to receive copies thereof, the offer of the duly authorized process server to deliver copies thereof, and such refusal, shall be a sufficient service of such summons and petition.'
The sheriff's return shows on its face that service was accomplished in accordance with Rule 54.06(f) and the return of the sheriff is conclusive as to service. Rules 54.06, 54.10 (cf. §§ 506.150, 506.180, RSMo 1969, V.A.M.S.); Williamson v. Williamson, 331 S.W.2d 140, 144 (Mo.App.1960).
In the instant matter, the respondent was properly served with this court's citation together with a copy of the information on February 2, 1973, and there has been no return, pleading, nor entry of appearance filed by respondent, nor has there been any request for an extension of time within which to file a pleading.
The primary purpose of disciplinary proceedings is to protect the public and those charged with the administration of justice, In re Veach, 365 Mo. 776, 287 S.W.2d 753 (1956), and this court has the responsibility to the bar and the public to see to the enforcement of the Canons of Professional Ethics. So far as this court knows, respondent is still practicing law in Missouri by virtue of his license to do so. His qualification to practice law is seriously challenged by the information filed in this court and respondent has been duly served with that information. Nevertheless, respondent has refused and neglected to make any response to the information. This type of conduct has not, to the knowledge of this court, occurred in previous cases. Such conduct cannot be permitted to frustrate the administration of Rule 5 of this court. Rule 5.10 requires, inter alia, that if no responsive pleading be filed the court shall proceed to try the cause and if the court finds for the accused it shall dismiss the complaint. If the court finds that the charges are true it shall render a judgment finding the accused guilty and shall either reprimand the accused, or suspend him from the practice for a time fixed by the court or permanently disbar him.
The procedure usually followed by this court in disciplinary matters is, after a responsive pleading is filed by a respondent, the court then appoints a special commissioner to hold a hearing, take testimony, make findings of fact and report the same to this court. In the instant case, respondent has refused to file a responsive pleading. The court will proceed with the cause upon the information and the record of the formal hearing held by the Twenty-Second Judicial Circuit Bar Committee (hereinafter 'Committee'), including exhibits admitted at the Committee's hearing, all of which have heretofore been filed in this court on October 26, 1972. Rule 5.10.
The Committee served notice of formal hearing upon respondent pursuant to Rule 5.03 on or about February 10, 1972, which notice consisted of four counts and contained detailed allegations of misconduct together with allegations of facts in support of the claimed misconduct and direct reference to the Canons of Professional Ethics that respondent was charged with violating, and advised respondent to appear before the Committee on March 1, 1972. On March 1, 1972, the Committee convened and respondent was present. Respondent acknowledged receipt of the notice and charges, a copy of the opinion of this court in Gieselmann v. Stegeman and Kirtz, 443 S.W.2d 127 (Mo.1969), a copy of the transcript of the record on appeal in Gieselmann v. Stegeman, and a copy of the Committee's proceedings of June 16, 1971. Respondent was advised of his right to counsel but proceeded pro se.
The information filed here is practically a copy of the charges contained in the notice referred to above and does not contain any charges in addition to those contained in the notice. As indicated, respondent Frank G. Kirtz here is the same person as the Frank G. Kirtz in Gieselmann v. Stegeman and Kirtz, supra. The charges in the notice and in the information are based upon the conduct of respondent that formed the basis of the case of Gieselmann v. Stegeman and Kirtz, supra, and this court's opinion in that case.
The Committee conducted its formal hearing on March 1, 1972, April 19, and June 7, 1972. Respondent was present at all times. The transcripts of those hearings and the documentary evidence introduced at those hearings were filed in this court with the information. The Committee's exhibit 2, received in evidence, was the opinion of this court in Gieselmann v. Stegeman et al., supra, and the Committee's exhibit 3 was the transcript of the record on appeal in that case. The only witness who testified at the hearing, aside from the formal identification of the Committee's exhibit 3, was respondent.
The information contains four counts. Common to all counts is the allegation that during the period of 1965 and 1966 respondent was a stockholder, director, and officer of Med-Science Electronic Inc. (hereinafter 'corporation'), and that he was an attorney advising the corporation and an attorney advising Norbert W. Burlis and Frances F. Burlis.
The information then divides the findings of fact and conclusions with reference to respondent's conduct, as set forth in the court's opinion in Gieselmann v. Stegeman et al., supra, into four categories and alleges those facts as the four counts or charges against respondent herein. No useful purpose would be...
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...with business activities, individual or personal activities, and activities as a judicial, governmental or public official. In re Kirtz, 494 S.W.2d 324 (Mo.1973); In re Wilson, 391 S.W.2d 914 (Mo.1965); Chernoff's Case, 344 Pa. 527, 26 A.2d 335 (1942). A lawyer is bound by the Code of Profe......
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