Weiner, In re

• Decision Date: 08 December 1975
• Docket Number: No. 58923,58923
• Citation: 530 S.W.2d 222
• Parties: In re Dan D. WEINER, Respondent.
• Court: Missouri Supreme Court

Page 222

530 S.W.2d 222

81 A.L.R.3d 1272

In re Dan D. WEINER, Respondent.

No. 58923.

Supreme Court of Missouri, En Banc.

Dec. 8, 1975.

Thomas P. Meade, Palmyra, for informants.

Steven J. Stogel, Rosenblum & Goldenhersh, Clayton, for respondent.

SEILER, Chief Justice.

This case presents the question of how far must or should we go in disciplining a Missouri lawyer who has been suspended in another state. ¹ The present disciplinary proceeding is based on our rule 5.19 which provides, in substance, that where a Missouri attorney has been adjudged guilty of professional misconduct in another jurisdiction, an order shall be served to show cause why said adjudication should not be conclusive of said misconduct for the purpose of discipline by this court. On October 16, 1974, the supreme court of Ohio entered an order suspending respondent Dan D. Weiner for an indefinite period, Dayton Bar Association v. Weiner, 40 Ohio St.2d 7, 69 Ohio Op.2d 83, 317 N.E.2d 783 (1974). Under the Ohio rules, this means suspension for at least two years (and probably longer) because not until the lapse of that period of time will the Ohio court entertain a petition for reinstatement. Rule V(21), Rules for Government of the Bar of Ohio.

The Ohio board charged respondent with, and after a hearing found him guilty of, the following misconduct: ²

1. Willful breach of Canon 1, DR 1--102(A)(5) pertaining to conduct prejudicial to the administration of justice.

2. Willful breach of Canon 2, DR 2--106(A) in regard to excessive fees. ³

3. Willful breach of Canon 2, DR 2--110(A)(2) pertaining to withdrawal of employment to the prejudice of his clients in three instances.

4. Willful breach of Canon 9, DR 9--102 in that he failed to preserve the identity of funds and property of a client.

The board found insufficient evidence to support additional charges of willful breach of Canon 1, EC 1--5, pertaining to disrespect for the legal system and the judges and willful breach of Canon 7, DR 7--106(C)(6) pertaining to conduct degrading to the court.

The Ohio supreme court affirmed the findings of the board and suspended respondent, as said. The record before us consists of the transcript before and the findings and report of the Ohio board, the information for show cause order filed in this court and respondent's answer thereto.

In his answer to the order to show cause Mr. Weiner set forth his reasons why the Ohio adjudication should not be conclusive for the purpose of discipline by this court and asked for an opportunity to be heard. In general, he maintains there was lack of due notice and a general unfairness as to one of the alleged Ohio violations; that another alleged violation did not constitute grounds for suspension; that the evidence does not justify the conclusion of the Ohio authorities that in three instances he withdrew from employment to the prejudice of his clients; that he was not guilty of the charge that he failed to preserve the identity of funds and property of certain clients and that he has important newly discovered evidence which should be heard and considered on the charge that he converted money for back child support payments to his own use. He contends that the Ohio court overreacted and that if any discipline is justified here it should be no more than a public reprimand.

This court has charge of the admission to the bar of this state and the disciplining of its members. We are not required to discipline a Missouri lawyer who has been disciplined in a sister state. Our rule 5.19 is couched in terms of the lawyer being required to show cause why we should not discipline him, which recognizes the possibility that despite discipline by a sister state, we might choose not to discipline our member here. '. . . There may be cases in the future where, recognizing the finality of the foreign adjudication, we may not see fit to give it effect in Missouri . . .' In re Veach, 365 Mo. 776, 287 S.W.2d 753, 759 (banc 1956).

A disciplinary proceeding involves the relationship between the courts and their officers. The courts of each state create, define, and control this relationship with no necessary reference to the status of its officers in the courts of another sovereign state. The fact that a person is admitted or disbarred to or from the bar of one state does not compel any other state to admit or disbar that person to or from its own bar. Missouri makes its own independent judgment as to the fitness of the members of its bar.

The matter is well put in In re Kimball, 40 A.D.2d 252, 339 N.Y.S.2d 302, 305 (1973), reversed on other grounds, 33 N.Y.2d 586, 347 N.Y.S.2d 453, 301 N.E.2d 436 (1973), as follows:

'We believe that we are not bound to give full faith and credit to the Florida judgment of disbarment in the constitutional sense . . . Reasons of policy regarded as significant in one State in their effect on the conduct of attorneys may not prevail in another State, because of differing conditions; the sensitive office of an attorney must be continually subject to the control of the courts in which the attorney practices or seeks admission. The Federal courts do not automatically disbar an attorney because he is disbarred by a State court . . . The rule which emerges from these and other cases is that high respect for the foreign determination of guilt must be accorded by the court to which the disbarred attorney applies for admission, but that the local court will make an independent judgment of the effect of that determination on the character and fitness of the applicant . . .'

What about respondent's fitness and character in light of the Ohio findings? ⁴ He was found guilty of commingling his and his clients' funds and of using a foreign trust account located in another state, but there is no evidence of any intent to defraud or that any client lost money as a result of the commingling. He was found guilty of contempt of court in failing to appear for a trial, for which he was fined $450.00, see State v. Weiner, 37 Ohio St.2d 11, 66 O.Op.2d 6, 305 N.E.2d 794 (1974), which the Ohio board said, standing alone, would merit a reprimand. He was found guilty in three instances of threatening to withdraw from employment without taking reasonable steps to protect the rights of his client. While it is not altogether clear, the Ohio board seemed to believe that if standing alone, a public reprimand would be merited in these instances.

The most serious transgression found by the Ohio board was that he applied $480.00 cash which had been deposited with him in trust for back child support to his fee without the client's consent. It is likely that this finding, more than any of the others, is what led the Ohio board to recommend suspension for an indefinite period of time rather than the public reprimand mentioned as being merited with respect to the other violations.

However, respondent asserts that after the Ohio court's decision, he, while cleaning out his office, discovered a tape recording of part of a conversation which shows that his client authorized and consented to his application of the above mentioned $480.00 to his fee.

He asserts he is entitled to a hearing on the 'authenticity and genuineness of this tape' and if it proves to be genuine and to support his contention that the client authorized the application of the money to his fee, this serious charge should be dismissed. The Ohio court declined to hear this allegedly newly discovered evidence, but we see no reason why we should not do so in deciding the important question of whether respondent has properly conducted himself as a member of our bar and whether discipline is necessary to protect the public interest. As said in Florida Bar v. Wilkes, 179 So.2d 193, 197 (Fla.1965):

'. . . In order properly to resolve this issue, this court and its agencies must, in every disciplinary proceeding, whether based upon acts of misconduct already adjudicated in another state or upon acts committed in this state, fully inform themselves concerning the nature of the misconduct and all the attendant circumstances. In doing this all available sources which can be properly utilized should be considered, including all evidence properly offered in the Florida proceeding and the record of proceeding in the sister state. Under this view Florida, although accepting the foreign determination of guilt, is left free to determine for itself the fitness of the accused attorney as affected by the acts of misconduct involved. It may accordingly order discipline which is more or less stringent than that awarded by the sister state.'

We therefore conclude that before we arrive at a final decision this cause must be remanded to a master to be appointed by this court for an evidentiary hearing and findings of fact and recommendation on the issue of whether respondent had the permission of his client to use the $480.00 to apply on his fee.

The cause is therefore remanded with directions as above for hearing and report by a master to be appointed by this court.

MORGAN, BARDGETT and DONNELLY, JJ., concur.

FINCH, J., dissents in separate opinion filed.

HOLMAN and HENLEY, JJ., dissent and concur in dissenting opinion of FINCH, J.

FINCH, Judge (dissenting).

I respectfully dissent.

In my judgment the principal opinion is in conflict with the case of In re Veach, 365 Mo. 776, 287 S.W.2d 753 (banc 1956), but it neither overrules nor even attempts to distinguish that case. The short reference in the principal opinion to Veach indicates a view that the cases are consistent. In my judgment they are not.

In Veach an information was filed against respondent which in count one charged certain professional misconduct in St. Louis and in count two alleged the suspension of respondent in Illinois by reason of various acts for which the Supreme Court of Illinois ordered suspension for a period of five years. In his answer to count two, respondent admitted the suspension in Illinois but...