Staab, In re

• Decision Date: 18 November 1986
• Docket Number: No. 67239,67239
• Citation: 719 S.W.2d 780
• Parties: In re Roger J. STAAB, Respondent.
• Court: Missouri Supreme Court

Page 780

719 S.W.2d 780

In re Roger J. STAAB, Respondent.

No. 67239.

Supreme Court of Missouri En Banc.

Nov. 18, 1986.

John J. Kitchin, Kansas City, Informant.

Hollis H. Hanover, Kansas City, for respondent.

BILLINGS, Judge.

Disciplinary proceeding by the Bar Committee of the Sixteenth Judicial Circuit of Missouri pursuant to Rule 5. ¹ The information of July 5, 1985, and a subsequent amended information of December 9, 1985, charged that respondent Roger J. Staab violated the following Disciplinary Rules (DR) of Rule 4: DR 6-101(A)(3), and DR 1-102(A)(5) and (6). ²

This Court appointed the Honorable Ward B. Stuckey, Associate Circuit Judge, Sixth Judicial Circuit, as Master to take evidence, to make findings of fact and to reach conclusions of law. The Master's report concluded that respondent had violated the disciplinary rules as charged and recommended suspension of the respondent for a period of sixty days. After briefs and argument before this court, we agree that discipline is necessary. However, we conclude that the evidence of respondent's violations warrant a public reprimand.

The Master's findings, conclusions and recommendation, although necessary to this Court's orderly supervision of the bar, are still essentially advisory. In re Hardge, 713 S.W.2d 503, 504 (Mo. banc 1986). This Court must itself review the evidence, assign credibility to witness testimony, and make all necessary factual determinations. Hardge, at 504; In re Williams, 711 S.W.2d 518, 519 (Mo. banc 1986); In re Elliott, 694 S.W.2d 262, 262 (Mo. banc 1985). Guilt of the respondent must "be established by a preponderance of the evidence," in disciplinary proceedings. Elliott, at 263.

The Bar Committee's July 1985 information basically alleges that respondent has repeatedly failed to cooperate in its investigation of complaints against him. In its December 1985 information, the committee recounted three additional charges. It first charged that respondent had neglected a matter entrusted to him by Richard D. Fasching. Second, it detailed another count of neglect in a matter entrusted to him by Dorothy L. Lane. Finally, it contained a further allegation of non-cooperation in the Lane matter.

The facts are not in dispute. Respondent candidly admits in his brief that his handling of the claim of Dorothy L. Lane constitutes neglect in violation of DR 6-101(A)(3). ³ In summary, Mrs. Lane retained respondent in December of 1977 in an attempt to gain workers' compensation in the death of her husband. Immediate filing was required in order to file within the applicable statute of limitations. Sometime after the filing of the claim respondent became convinced that the cause was without merit. However, he did not advise Mrs. Lane of his misgivings and the case continued on the docket. In fact, Mrs. Lane was produced for her deposition in July 1981.

In an April 1982 hearing, respondent asked that the file be held while he consulted his client about a voluntary dismissal. He failed to consult Mrs. Lane and the case was eventually dismissed for want of prosecution. Thereafter, respondent falsely represented to Mrs. Lane that the case was pending and viable. In fact, he sent to her a copy of a "Motion to Set Aside Dismissal", ostensibly filed in court. He asked for a medical authorization from her as late as September 1984.

During 1983, Mr. Fasching retained respondent to represent him when his Social Security disability benefits had been terminated. Respondent initially gained a favorable result for Mr. Fasching in the administrative review process; an administrative law judge reinstated benefits after a hearing. However, the victory was short-lived as the Social Security Appeals Council reversed the award on its own motion. In early 1984, respondent filed suit in federal district court challenging the Appeals Council action.

On August 15, 1984, respondent received a show cause order from the United States District Court, Western District of Missouri, in the Fasching suit. The show cause order was issued because of respondent's failure to timely file a brief. On September 11, 1984, the federal district court dismissed the Fasching suit because of the respondent's failure to answer the show cause order.

Respondent argues that his inaction at the time was justified. He believed that Mr. Fasching belonged to a recently-certified class of denied or terminated disability claimants who would be automatically reconsidered by the Social Security Administration as required by then recent federal court order. See Polaski, et al. v. Heckler, 585 F.Supp. 997, 1003 (D.Minn.1984). Respondent argues that his belief was founded on his experience as well; another disability termination case in his practice had been automatically remanded under these decisions. That remand, however, occurred on January 22, 1985. Exh.Inf. No. 31.

Respondent misses the point. His neglect consists of his failure to properly respond to a valid show cause order of the federal district court. Respondent might have assisted the federal court by bringing recent decisions to the court's attention and noting their applicability to the Fasching case. This, he did not do.

Moreover, respondent spoke with Mr. Fasching approximately 75 times during the period of time after the case was dismissed on September 11, 1984. In April, 1985, Mr. Fasching learned on his own that his case had been dismissed. In the interim, respondent had repeatedly assured Fasching that his case was pending and that benefits were to be reinstated. Even after his client's discovery of the dismissal, respondent insisted that the case was pending in answer to an inquiry from Mr. Fasching. Respondent's personal belief that his client would be included in the Polaski class does not justify his failure to answer the federal show cause order or to notify Fasching promptly and honestly of the status of the suit.

On March 8, 1985, the informant requested that respondent respond in writing to complaints of Lisa Roach and Ronald Parker, which had been filed against him with the Bar Committee. A further request was issued on April 8, 1985 asking that he respond within the week. The second request informed respondent that the Bar Committee considered non-cooperation a violation of the disciplinary rules. When respondent failed to answer, the Committee issued a Notice of Formal charges on April 18, 1985 and set a hearing for May 9, 1985. A reply was finally received from respondent on May 8, 1985.

At the hearing, the Committee reviewed the history of prior complaints that had been filed against the respondent. The merits of these earlier complaints are not at issue here; only that information relevant to the charges of non-cooperation are recited. The Bar Committee notified respondent of a complaint filed by Mr. and Mrs. Greenfield on December 6, 1976. Included in that complaint was an allegation that respondent would not deliver their file to Greenfields' new counsel. After receiving no response, the Committee set an informal hearing for March 9, 1977. On the same date, respondent delivered the Greenfield file to their new counsel.

Nettie Mills filed a complaint against respondent in July, 1984. On August 6, 1984, the Committee wrote respondent concerning the matter. After no response, telephone contact was initiated on November 12th and December 6th of that year. Another written request was issued on February 4, 1985. The complaint was eventually dismissed.

Minnie Parker filed a complaint on March 5, 1985, against the respondent. The Committee on March 20, 1985 wrote the respondent and requested a written response within fifteen days. On April 16, 1985, the Committee wrote again. The next day respondent indicated by phone that he would respond immediately but it was not until May 14, 1985, at a formal hearing on another matter that respondent discussed the Parker case with the Committee. Ten days later, respondent did notify the Committee that the Parker case was set for a workers' compensation hearing in the fall. The disciplinary complaint was dismissed after the complainant failed to appear at later Committee hearings.

Over and above the prior problems, on May 8, 1985, the Kansas City Metropolitan Bar Association notified respondent of the complaint of Dorothy Lane and requested a written response. Subsequent letters were mailed by the Bar Committee on May 22nd, August 27th and September 18th of 1985. A member of the Committee contacted respondent by phone on October 15, 1985 and was assured of an immediate response but none had been received by October 22nd, when the Committee filed its Notice of Formal Charges.

Respondent admits in most of the instances to his failure to respond in writing to the Bar Committee. Moreover, he admits to having failed to appear at a hearing on November 14, 1985 scheduled for discussion of the Lane and Fasching matters. He says this nonappearance was inadvertent.

It is true that this Court has not previously held that failure to cooperate with the Bar Committee in disciplinary matters is itself a violation of Rule 4. See Mo. Advisory Comm. Op., Formal Op. 117, at 6-10 (1983). However, the Bar Committee has the authority of this Court in its investigation and prosecution of disciplinary complaints. Rule 5; see In re Page, 257 S.W.2d 679, 682 (Mo. banc 1953) (Committee complaint against attorney disbarred from state courts). This Court joins a growing majority of states who explicitly entertain as attorney misconduct the failure to cooperate with disciplinary authorities. See Formal Op. 117, at 6-11.

Isolated instances might be inadvertence or simple neglect. However, the well-evidenced repetition of non-cooperation on this record justifies the conclusion that respondent does not fully understand the profound duty imposed by his profession. The Bar Committee and its members "giv[e] their time and services to maintain a high standard in the legal profession and [are]...