Kueter, In re, 58277

• Decision Date: 28 November 1973
• Docket Number: No. 58277,58277
• Citation: 501 S.W.2d 486
• Parties: In re David J. KUETER.
• Court: Missouri Supreme Court

Page 486

501 S.W.2d 486

In re David J. KUETER.

No. 58277.

Supreme Court of Missouri, En Banc.

Nov. 28, 1973.

James E. Dearing, Clayton, for Appellant.

Busch, Baine & McEnery, Robert P. Baine, Jr., Clayton, for Respondent.

PER CURIAM:

This is a disciplinary proceeding filed in the Circuit Court of St. Louis County by the 21st Judicial Circuit Bar Committee, as informants, against David J. Kueter, a duly licensed attorney at law, as respondent.

Informants alleged, in substance: (1) that respondent, on May 7, 1971, entered a plea of guilty in the United States District Court for the Eastern District of Missouri to a charge of willfully and knowingly failing to make an income tax return for the calendar year 1967, in violation of Int.Rev.Code, § 7203; (2) that the crime involves moral turpitude; and (3) that respondent should be disciplined.

Respondent filed an answer admitting the fact of the conviction.

On March 2, 1973, a hearing was held before the Honorable Robert Lee Campbell. On March 6, 1973, Judge Campbell ordered respondent 'suspended from the practice of law for a period of eight months, beginning April 1, 1973, and ending November 30, 1973.' Informants filed exceptions which were overruled. Informants then filed petition for review in this Court under the provisions of Rule 5.11, V.A.M.R. Respondent asked that supersedeas not be granted and his suspension has been in effect since April 1, 1973.

In 1972, this Court reaffirmed that willfully and knowingly failing to make a federal income tax return is an offense involving moral turpitude. In re Douglas C. MacLeod, 479 S.W.2d 443 (Mo. Banc 1972).

The judgment of the trial court is ordered modified, and respondent is suspended indefinitely from the practice of law with leave to apply to this Court for reinstatement after the expiration of eighteen months from April 1, 1973, upon a showing that he is a person of good moral character and fully qualified to be licensed as a member of the bar of Missouri. It is so ordered.

Judgment modified to impose indefinite suspension.

SEILER, MORGAN, HOLMAN, HENLEY and FINCH, JJ., concur.

BARDGETT, J., concurs in part and dissents in part in separate opinion filed.

DONNELLY, C.J., concurs in part and dissents in part and concurs in opinion of BARDGETT, J.

BARDGETT, Judge (concurring in part and dissenting in part).

I respectfully dissent. The proceedings against the respondent were instituted by the 21st Judicial Circuit Bar Committee in the Circuit Court of St. Louis County pursuant to the provisions of the then existing Supreme Court Rule 5.03. This rule has since been amended (effective January 1, 1974) and the new rule permits the information against an attorney to be filed only in this court. Consequently this court will no longer be reviewing on appeal the orders of circuit courts in disciplinary matters. Therefore this case has no precedential value with respect to appellate review of circuit court judgments in disciplinary matters.

Nevertheless, Rule 5.03 as it existed at the time of this proceeding not only vested the circuit court with the authority to adjudicate the matter, but required that the information be filed in circuit court, and only permitted it to be filed here by leave of this court.

Rule 5.10, prior to amendment, vested the circuit court with power to dismiss the complaint if the court found for the accused and '(i)f the finding be that the charges are true the Court shall render a judgment finding the accused guilty, and shall either reprimand the accused or suspend him from the practice for a time fixed in the discretion of the Court, or permanently disbar him, as shall to the Court seem proper.' (Emphasis added.) Thus it is clear that the extent of discipline is contemplated by the rule to fall within the discretionary power of the court in which the information is filed.

In the case of In re Conner, 357 Mo. 270, 207 S.W.2d 492 (1948), this court reviewed on appeal a judgment of the circuit court in a disciplinary matter. The appeal in Conner was taken by the circuit bar committee, as in the instant case. In discussing the right of the circuit bar committee to take an appeal, this court said, at 207 S.W.2d p. 497: 'The attorney informed against has the right of review. This is as it should be. That being true, his right to have reviewed by the Supreme Court any claimed unreasonable exercise of discretion, or any claimed irregularity or unfairness of the court below, can be no greater than the right of the public and the courts to have those matters reviewed.' (Emphasis added.) And at 207 S.W.2d p. 498, this court said, 'The above brings us to the question of whether the trial court's...