Pine, Matter of

• Decision Date: 13 February 1979
• Docket Number: No. 60460,60460
• Citation: 576 S.W.2d 538
• Parties: In the Matter of Gayles R. PINE, Respondent.
• Court: Missouri Supreme Court

Page 538

576 S.W.2d 538

In the Matter of Gayles R. PINE, Respondent.

No. 60460.

Supreme Court of Missouri, En Banc.

Feb. 13, 1979.

Wayne H. Hoecker, Stephen B. Sutton, Kansas City, for informant.

Newton R. Bradley, Robert L. Langdon, Lexington, for respondent.

WELLIVER, Judge.

This is a disciplinary proceeding instituted by the Advisory Committee of the Missouri Bar Administration against Gayles R. Pine, who had engaged in the general practice of law in Warrensburg for forty-three years and in September, 1977, retired at age seventy. A hearing was held before special master, David A. McMullan, retired circuit judge. The special master made findings of fact and conclusions of law, and recommended respondent be discharged on all counts. However, in a disciplinary proceeding it is our duty to review the evidence, the credibility, weight and value of the witnesses, and to determine for ourselves all fact issues necessary to a decision. In re Schiff, 542 S.W.2d 771, 774 (Mo. banc 1976). Accordingly, we have made an independent review of the evidence before the master.

The information is in four counts. Count IV charged respondent with illegal conduct involving moral turpitude, with conduct prejudicial to the administration of justice, and with conduct reflecting adversely on his fitness to practice law in that, on March 4, 1977, respondent did "flourish a deadly weapon and did point said weapon at one Ernest R. Williams, then and there threatening to kill the said Ernest R. Williams, contrary to the provisions of DR 1-102(A)(3), (5) and (6), Missouri Supreme Court Rule 4.

The master found that the allegations of Count IV were not sustained by the evidence, that respondent "did not verbally threaten to kill Mr. Williams and had no intention of committing an act of violence against him," and that Count IV was effectively abandoned by failure of informants to either mention or support the charges in their post-trial brief. While Count IV was briefed in this court, it was again abandoned by informants in oral argument, and we consider it no further.

We now examine the other three counts. Count I charged respondent with failing to timely file a transcript of appeal in the Missouri Court of Appeals, Western District, on behalf of his clients, Mr. and Mrs. Guy Willcockson, contrary to the provisions of DR 6-101(A)(3), DR 7-101(A)(1), (2) and (3), Missouri Supreme Court Rule 4.

This case involved a suit for specific performance brought by respondent on behalf of the Willcocksons (buyers) against the Garrison brothers (sellers). Buyers paid $100 down on a contract to purchase 520 acres, contingent upon securing full financing within 90 days. Buyers remained in possession of this property as tenants throughout the approximately 31/2 years of the litigation, and sellers counterclaimed for the unpaid rent which accrued during this time. The case was tried before the court and resulted in a judgment against the Willcocksons on the specific performance and a money judgment for rent against the Willcocksons on the counterclaim, which does not appear to have been paid.

While the Willcocksons were unhappy because they failed to get the farm, this was not the fault of their attorney. The record abounds with evidence that the contingent financing was not timely obtained. The master found that the "failure to file a transcript" on appeal, (or the intentional non-filing of the transcript) was after consultation with the clients and with the clients' consent.

Count II charged respondent with failing to file a brief in the Missouri Court of Appeals, Western District, on behalf of Mrs. LaDorna McRoberts, contrary to the provisions of DR 6-101(A)(3), DR 7-101(A)(1), (2) and (3), Missouri Supreme Court Rule 4. This charge arose out of a divorce proceeding wherein Mrs. McRoberts had been represented by a Kansas City attorney and was unhappy with the results of the trial. The court had awarded Mrs. McRoberts an attorney's fee of $240, but then required this to be deducted from the sale proceeds of marital property, thereby resulting in a splitting of the attorney's fee between the parties. The court also had charged the costs against Mrs. McRoberts, and had entered a decree of divorce instead of the decree of legal separation which she had requested. Mrs. McRoberts' mother requested respondent to advise her daughter. He filed after-trial motions which were overruled, and requested a transcript. Both he and Mrs. McRoberts examined the transcript, after which they discussed the appeal.

The record is clear that respondent advised Mrs. McRoberts that she could probably win the other one-half of the $240 attorney's fee on appeal. He expressed doubts about whether she could secure reversal of the trial court's refusal to enter a decree of legal separation. At that time the applicable statute, § 452.305.2, ¹ RSMo Supp.1975 had not been construed by any appellate court. After the appeal was dismissed for failure to file a brief, Mrs. McRoberts obtained another attorney who reinstated the...