Mirabile, In re

• Court: Missouri Supreme Court
• Writing for the Court: BENTON; HOLSTEIN; PRICE and LIMBAUGH, JJ., concur in separate opinion of HOLSTEIN; HOLSTEIN
• Citation: Mirabile, In re, 975 S.W.2d 936 (Mo. 1998)
• Decision Date: 22 September 1998
• Docket Number: Nos. 77815,77816,s. 77815
• Parties: In re Salvatore J. MIRABILE, Respondent. In re James P. MORONEY, Respondent.

Page 936

975 S.W.2d 936

In re Salvatore J. MIRABILE, Respondent In re James P. MORONEY, Respondent.

Nos. 77815, 77816.

Supreme Court of Missouri En Banc.

Sept. 22, 1998.

Sam S. Phillips, Office of Chief Disciplinary Counsel, Jefferson City, for Informant in both cases.

Sylvester James, Jr., Kenner & James, P.C., Kansas City, for Respondent Mirabile.

Robert G. Russell, Wesner, Kempton, Russell & Dominique, Sedalia, for Respondent Moroney.

BENTON, Chief Justice.

The Chief Disciplinary Counsel charged that respondents James P. Moroney and Salvatore J. Mirabile filed a fraudulent petition for legal separation, and a sham stipulation, in order to avoid a child support obligation. Each information charged respondents with violating Rules of Professional Conduct 4-3.1, 4-3.3, 4-8.4(b) and (c). The informations request that both respondents be disbarred. Because this Court cannot find by a preponderance of the evidence that these respondents committed professional misconduct, the informations are dismissed.

I.

The Master's findings of fact, conclusions of law and recommendations are advisory. In re Oberhellmann, 873 S.W.2d 851, 852-53 (Mo. banc 1994). This Court reviews the evidence de novo, determines independently the credibility, weight, and value of the testimony of the witnesses, determines the facts and draws its own conclusions of law. In re Gray, 813 S.W.2d 309, 310 (Mo. banc 1991).

This Court finds the following facts. In 1992, Joseph Leahy retained his close friend, respondent Moroney, to represent him in a child support modification action brought by his ex-wife in Jackson county circuit court. At that time, Leahy, a self-employed voice artist, was the president and sole shareholder of Jovial, Inc., a corporation that had as its sole business the sale of Leahy's voice. At trial, Leahy submitted a Form 14 presumed child support worksheet, signed by Moroney, listing his monthly income as $7,000. ¹

On June 16, 1992, the Jackson county circuit judge (since deceased) met with respondent Moroney and opposing counsel in chambers. The Jackson county judge advised that he was imputing income of $16,250 per month to Leahy and intended to raise Leahy's child support obligation from $500 per month to $2,080 per month. Moroney immediately stated that his client would appeal. He angrily stated to the judge that his client would be better off if he and his present wife, Joyce Leahy, were divorced, and that if he had created the corporation, Joyce Leahy would have owned all the stock.

Moroney left the judge's chambers and immediately met with Joyce Leahy in the hall nearby; Joseph Leahy was not in Missouri that day. Upon hearing that the judge planned to increase the child support for the child of Joseph's first marriage, she also became angry. She asked Moroney to recommend an attorney to represent her in filing for divorce. Moroney recommended his friend, respondent Mirabile, among other attorneys. That day Joyce Leahy called Mirabile and asked him to represent her.

That night, Moroney and Joseph Leahy met with Mirabile at Mirabile's family's restaurant in Kansas City. Mirabile was serving as maitre d' and, throughout a three-hour period, stopped at the Moroney-Leahy table to discuss the legal separation, child support, maintenance, and control of assets. Joyce Leahy was not present. By the next day, Moroney and Mirabile had prepared a petition for legal separation, a joint stipulation and a joint motion for temporary order. Joyce Leahy, who had not yet met in person with her attorney Mirabile, appeared with opposing counsel Moroney in Ray county circuit court to file the petition.

Joyce Leahy later testified by deposition, but not in person, before the Master. She stated that her purpose for filing the petition was to protect herself and her five children's financial interests. She testified she wanted a legal separation, and was angry with her husband for not having resolved the problems with his ex-wife.

Joyce Leahy verified the petition for legal separation, which alleged that the parties had separated the previous day. The joint stipulation provided that Joyce Leahy would receive $5,000 per month maintenance and that their five children would receive $2,000 per month child support, for a total of $7,000--exactly the amount of the monthly income claimed on the Form 14 filed in the Jackson county case. The stipulation provided:

Petitioner and Respondent are jointly agreed, that pending a final hearing in the matter herein, all corporate assets in a certain entity known as Jovial, Inc., a corporation organized and lawfully operating in the State of California, shall be in the exclusive custody and control of Petitioner wife. Respondent further agrees forthwith, to do any and all things necessary to effectuate possession and control of corporate assets to Petitioner wife, upon execution of this Stipulation by counsel for the respective parties herein.

Petitioner and Respondent jointly agree, pending final disposition and hearing in the matter herein, that all joint checking, savings and financial accounts shall be immediately transferred to Petitioner wife. Respondent agrees to such transfer, forthwith, upon the execution of this Stipulation by counsel for the respective parties.

The petition was filed in Ray county on June 18, 1992. Seven days later, on June 25, the judge entered a temporary order implementing the stipulation.

Two days earlier, on June 23, the Jackson county judge had entered his order, in accordance with his previous conference with the attorneys. On June 26, the Jackson county judge met with Mirabile, Moroney and the opposing attorney in chambers. The judge told the respondents that he had learned about the Ray county filings and order, and that something "smelled." The respondents denied any wrongdoing.

The attorney for Leahy's ex-wife filed a complaint against Moroney based on this sequence of events. The Circuit Bar and Advisory Committees, after testimony by all involved counsel, found probable cause. Joseph Leahy refused to pay the Jackson county child support order until he was held in contempt in October 1992, four months after the Ray county order and while it was in effect.

On April 14, 1993, nearly nine months after issuing the order - and after the disciplinary hearings began - the Ray county court, on its "own motion for the reason that there is some suggestion that there was impropriety in the issuance of the Temporary Order," rescinded its order. The Leahys neither appealed this Ray county decision nor took any further action in that case. The Leahys reconciled and now live together in the state of California.

II.

Respondents allege that their prior testimony under oath before the Circuit Bar Committee and the Supreme Court Advisory Committee in this case may not be used against them. The Master admitted the prior testimony, over the respondents' objection, after respondents had testified and were cross-examined before the Master.

Respondents object to admission of the prior testimony as a whole. They argue that the statements constitute hearsay, lack a proper foundation for impeachment, and do not constitute admissions of a party-opponent. The CDC argues that the prior testimony was properly admitted as admissions of a party-opponent.

A statement by a party-opponent is admissible if it meets the following requirements: (1) a conscious or voluntary acknowledgment by a party-opponent of the existence of certain facts; (2) relevant to the cause of the party offering the admission; and (3) unfavorable to, or inconsistent with, the position now taken by the party-opponent. Nettie's Flower Garden, Inc. v. SIS, Inc., 869 S.W.2d 226, 229 (Mo.App. E.D.1993).

The respondents' prior testimony meets this three-part test. First, their testimony described the circumstances surrounding the filing of the petitions, thereby acknowledging the existence of certain facts. As for parts two and three of the test, key details of the prior testimony were inconsistent with respondents' testimony before the Master, which inconsistency is clearly relevant in an attorney discipline case. See Egelhoff v. Holt, 875 S.W.2d 543, 551 n. 4 (Mo. banc 1994). Respondents' point is denied, and this Court will consider the prior testimony.

III.

The Master found that respondents initiated a frivolous, sham proceeding for legal separation, with the actual purpose of avoiding collection of a child support judgment in violation of Rules 4-3.1, 4-3.3 and 4-8.4(b) and (c). Under Rule 4-3.1, it is professional misconduct for an attorney to bring a frivolous proceeding. Rule 4-3.3 details a lawyer's duty of candor toward a tribunal, and Rule 4-8.4 provides that conduct involving dishonesty, fraud, deceit or misrepresentation is professional misconduct. The respondents counter that they had a duty to follow their clients' instructions.

Attorneys generally must follow their clients' instructions, but only within the limits of the law. Jarnagin v. Terry, 807 S.W.2d 190 (Mo.App. W.D.1991). "The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations." Comment, Rule 4-1.2. The knowing failure to pay child support without good cause is a crime. Section 568.040 RSMo 1994 ; cf. In re Warren, 888 S.W.2d 334, 336 (Mo. banc 1994). Fraudulent conveyances of assets are void. Section 428.020 RSMo 1986 (repealed Aug. 28, 1992). The Rules of Professional Responsibility prohibit other improper conduct. Rule 4-8.4. An attorney may not assist or induce a client to engage in criminal or fraudulent or other improper conduct, Rule 4-8.4(a), but a lawyer may discuss the legal consequences of any course of conduct with a client. Rule 4-1.2.

The Master concluded that the respondents crossed this line, finding only the complainant's testimony credible, and finding unbelievable most of the other witnesses ...