Schiff, In re, 59011

• Citation: 542 S.W.2d 771
• Decision Date: 08 November 1976
• Docket Number: No. 59011,59011
• Parties: In re Jack B. SCHIFF, Respondent.
• Court: United States State Supreme Court of Missouri

Page 771

542 S.W.2d 771

In re Jack B. SCHIFF, Respondent.

No. 59011.

Supreme Court of Missouri, En Banc.

Nov. 8, 1976.

Norman A. Selner, Clayton, for informants.

Daniel J. McAuliffe, Clayton, for respondent.

SEILER, Chief Justice.

This is a disciplinary proceeding instituted by the Circuit Bar Committee of the 21st Judicial Circuit against a St. Louis County lawyer. After a formal hearing by the bar committee and the finding of probable cause, an information was filed in this court to which respondent filed an answer. A hearing was held before special master, Honorable Richard C. Jensen, a former circuit judge of the 16th judicial circuit, now retired. The special master, upon findings of fact and conclusions of law, recommended suspension of respondent Jack B. Schiff from the practice of law for two years. Mr. Schiff is 68 years of age and has practiced for approximately 38 years. His practice is largely in the magistrate courts. He files approximately 100 suits per week.

The matter is before us on respondent's exceptions to the findings of the special master, together with the evidence taken before the circuit bar committee and the special master. The case involves the charge that respondent is guilty of certain sharp practices in his dealings with fellow lawyers and certain individual defendants. Respondent appeared before the special master and testified, in effect, that in some instances he could not recall the facts, in other instances the facts were not as other witnesses presented them, and that the agreements upon which some of the violations were based did not in fact exist. Moreover, he maintained that any hardship worked upon the clients of opposing counsel was due to counsel's own negligence.

The findings and conclusions of the special master are these:

1. In the case of Ivan L. Mullenix v. Karen Fischer, Ellsworth Cundiff, Jr., entered his appearance as attorney for the defendant. Respondent was sent a memorandum of Mr. Cundiff's appearance, and the two men discussed possible defenses in the case. Subsequently, Mr. Cundiff requested a jury trial and both attorneys were notified that the case would be set on the docket for the week of June 5, 1972, with the docket call to be held June 2. A week prior to June 2, respondent told Mr. Cundiff that he (Schiff) would appear at the docket call and inform Mr. Cundiff of the date and time of trial, and therefore, Mr. Cundiff would not have to appear. Consequently, Mr. Cundiff did not appear. Respondent obtained a setting for June 8, but did not inform Mr. Cundiff of the date, contrary to their agreement. When Mr. Cundiff did not appear on June 8 for trial, respondent took a default judgment against Mr. Cundiff's client and did not notify Mr. Cundiff that a default judgment had been taken.

The special master concluded that by failing to notify defendant's attorney either prior to or subsequent to the taking of the default, respondent violated Rule 4 and DR 7--106(C)(5) by failing '. . . to comply with known local customs of courtesy or practice of the bar . . ..' In this case, the local custom, as found by the special master, required notice to opposing counsel that a default would be taken and/or notice after the default judgment that a default had been taken.

The special master found further that respondent's failure to honor his agreement to notify opposing counsel in advance of the date and time of the court setting in this contested case amounted to deceit in violation of DR 1--102(A)(4) which provides that a lawyer shall not '. . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.' Also, the special master concluded that respondent's failure to give notice of the default after the fact demonstrated a malicious intent to prevent a disputed case from being heard on the merits in violation of DR 7--102(A)(1) which prohibits actions taken to '. . . harass or maliciously injure another.' The special master found, moreover, that these events perverted the adversary system, prevented the court from performing its proper function, and weakened public confidence in the administration of justice in violation of DR 1--102(A)(5).

2. In the case of Ivan Mullenix v. John D. Downes and Carol Lynn Downes, Harry Ritchey entered his appearance as attorney for the defendants on June 10, 1971. On that same date, a memorandum of Mr. Ritchey's appearance was placed in the court file. Subsequently, respondent and Mr. Ritchey discussed possible defenses. Mr. Ritchey requested that the case be continued at the next setting on June 24, 1971, because he would be unable to attend court. Respondent led Mr. Ritchey to believe that the case would be continued on June 24, but respondent appeared and took a default judgment against Mr. Ritchey's clients. Respondent did not inform Mr. Ritchey that a default had been taken. The special master found respondent's behavior violated the above mentioned disciplinary rules.

3. In the case of Ira E. Berry, Inc. v. Fred P. and Shirley J. Snyder, E. A. O'Rourke entered his appearance as attorney for the defendant Shirley Snyder and obtained a change of venue to St. Charles, Missouri. The court gave all attorneys notice that the case was set on the docket of March 30, 1973. Respondent by letter dated March 29 gave notice to Mr. O'Rourke that the case had been continued until April 4. Mr. O'Rourke then requested a jury trial and the case was set for trial on April 24. Respondent appeared at the setting of April 4 and when he learned of the request for a jury trial, he prevailed upon the judge to enter a default judgment. Even though he had further correspondence with Mr. O'Rourke, respondent did not notify Mr. O'Rourke of the default. Again, the special master found this conduct to be in violation of the above named disciplinary rules.

4. In the case of Woodson Holding Company, Inc. v. Ken Strelow, the defendant was served with pleadings stating that rent was due for August and September 1973. Mr. Strelow met with respondent on the morning of the setting of the case to discuss complaints Mr. Strelow had about the premises. Furthermore, Mr. Strelow informed respondent that the August rent had been paid by check. Mr. Strelow also gave respondent a check for the September rent which respondent forwarded to his client. Respondent then had the case continued for one week until October 4, 1973. Respondent told Mr. Strelow that in the meantime he would determine if the August rent had been paid and if it had, the case would be dismissed. In fact, Mr. Strelow had paid his August rent by a check dated August 10 which was cleared by his bank on September 12. On October 4, knowing Mr. Strelow maintained that his rent payments were not due until the fifteenth of each month and that the plaintiff had demanded the rent payments by the tenth of each month, respondent took a default judgment against Mr. Strelow for October's rent plus attorney's fees and did not notify Mr. Strelow of the default judgment.

The special master found that by this conduct respondent knowingly allowed Mr. Strelow, a layman, to rely upon his misrepresentations as to settlement and kept his client's cause of action alive until he was able to increase the amount claimed and procure a judgment for additional money without notice to Mr. Strelow of any intention to do so. Therefore, concluded the master, respondent engaged in deceit and misrepresentation prejudicial to the administration of justice reflecting on his fitness to practice law in violation of DR 1--102(A) generally and DR 1--102(A)(4), (5), and (6) and gave advice to a person not represented by a lawyer where the interests of such person might conflict with the interests of his client in violation of DR 7--104(A)(2).

5. Subsequent to the above mentioned default judgment in Woodson Holding Company, Inc. v. Ken Strelow, respondent requested an execution and garnishment directed to the First National Bank of St. Peters, Missouri, as garnishee in that case. The bank made its return by forwarding to respondent its cashier's check number 18002 payable to the magistrate court. In the meantime, Mr. Strelow obtained the services of an attorney, Michael Turken, who filed motions to set aside judgment and to quash the execution and garnishment. A copy of the motions and notice of a hearing on them were mailed to respondent. On December 6, 1973, Mr. Turken filed an amended motion to quash and on that same date he, respondent, and Judge O'Neil discussed the pending motions which were continued for argument until December 20. It was also agreed and made a court order that no disposition would be made of the proceeds of the garnishment pending the outcome of the motions. Later the motions were continued again until January 17, 1974. On January 17, 1974, Mr. Turken presented to the court a copy of the First National Bank of St. Peters cashier's check number 18002 which bore the stamped endorsements 'Magistrate Court First District' and of Woodson Holding Company. The check was paid by the First National Bank of St. Peters on January 3, 1974. The court stamp on the check was one used to stamp the court's library books. Neither the judge nor court personnel gave respondent permission to place the stamped endorsement on the check pending the outcome of the motions, and regardless of who placed the endorsement on the check, it was done at a time when respondent knew of the pendency of the motions.

Additionally, by a letter dated December 12, 1973, respondent wrote the First National Bank of St. Peters...