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Missouri’s disciplinary procedures have gone through major revision several times in recent years. They are now fairly consistent with the ABA Standards for disciplinary proceedings and with practice around the country. The relevant rules are found in Missouri Supreme Court Rule 5.
The disciplinary system is administered by the Office of Disciplinary Counsel. Complaints are filed with that Office. The Office of Disciplinary Counsel can either investigate the complaint itself or refer it to a circuit bar committee for investigation. Investigations can be initiated by disciplinary counsel even without a formal complaint. 5.08. Where counsel believes a complaint can appropriately be resolved through mediation, he may refer the complaint to the newly established Bar Mediation Program for resolution. 5.10. If a complaint is not so referred or if it cannot be satisfactorily resolved through mediation, an investigation ensues. If, after investigation, probable cause is found, counsel or the appropriate committee may offer an admonition, if appropriate. The respondent attorney then has 15 days to accept or reject the admonition. 5.11(a)(b). If an admonition is not appropriate, or if one that is offered is rejected, an information shall be drafted and served on the respondent. 5.11(c). If no probable cause is found, the complainant shall be notified within 10 days. The complainant can then seek Advisory Committee review of the determination of no probable cause. 5.12.
Once an information has been filed, respondent is to file an answer or risk default. 5.13. Respondent can request a hearing before a disciplinary hearing panel. If no hearing is requested, the information is to be filed in the Supreme Court. 5.14. Where a hearing is requested, it is prosecuted by disciplinary counsel or his designee. The hearing must determine whether the respondent is guilty of professional misconduct, and the burden of proof on disciplinary counsel is to establish a violation of Rule 4 by a preponderance of the evidence. Hearings are conducted in accordance with normal rules of court, except that discovery is more limited. 5.15. Within thirty days of completion of the hearing, the panel shall render a written decision including findings regarding each alleged act of misconduct and recommendations for discipline if violations are found. 5.18.
After hearing, the panel may find that the information should be dismissed, that a written admonition is appropriate, or that further proceedings are warranted. If an admonition is offered, the respondent has fifteen days to accept or reject it. If the panel recommends discipline, it shall file its report with the Supreme Court. If the parties concur in the written decision, they may stipulate to the report. If the Court concurs with the stipulation, discipline is imposed without further proceedings. If the parties do not concur, or if the Court does not accept the stipulation, disciplinary counsel must file the complete record before the panel with the Court. The matter is then briefed and argued by the parties. If the Court finds for the respondent, it shall dismiss the information, If the Court finds the misconduct charged, it shall impose appropriate discipline. 5.19.
The Rules also provide for proceedings where an attorney is incapacitated or disabled, 5.23, and for interim suspension for threat of harm. 5.24. In addition, an attorney may voluntarily surrender his or her license upon application to the Court, although the Court is not required to accept surrender and may require disciplinary counsel to proceed under the Rules. 5.25.
The ABA Standards for Lawyers Discipline address the issue of sanctions as follows:
DISCIPLINE TO BE IMPOSED IN A PARTICULAR CASE
7.1 Factors to be Considered. The discipline to be imposed should depend upon the specific facts and circumstances of the case, should be fashioned in light of the purpose of lawyer discipline, and may take into account aggravating or mitigating circumstances.
COMMENTARY
The nature and degree of discipline to be imposed should be determined on a case by case basis, after consideration of all relevant factors. . . .The court should avoid adoption of rules that mandate dispositions for certain forms of misconduct. Fixed penalties limit the court's ability to deal with the complexity and variety of circumstances involved in each matter.
In determining the nature and extent of the discipline the court should consider (a) the seriousness and circumstances of the offense, (b) avoidance of repetition (c) deterrent effect upon others, (d) maintenance of respect for the honor and dignity of the legal profession, and (e) assurance that those who seek legal service will be insulated from unprofessional conduct. In re Smith, 83 Wash. 2d 659, 521 P.2d 212, 215 (1974); Office of Disciplinary Counsel v. Leopold, 469 Pa. 384, 366 A.2d 227 (1976).
The respondent's lack of remorse, his failure to cooperate with the agency in its investigation, his failure to voluntarily make restitution to those injured by his misconduct, his failure to acknowledge and recognize the seriousness of his violation, the extent of his breach of trust, and his record of prior discipline, are factors which have been viewed as ‘aggravating.' The courts have imposed more severe discipline when such factors have been present than when they are absent.
Sometimes circumstances present in a case will cause the court to be lenient. A willingness to rectify the damage caused by the misconduct, contrition, inexperience, temporary mental aberrations for which the- respondent has sought treatment, and restitution prior to the filing of a grievance, have been relied upon by courts as mitigating factors warranting lesser discipline.
Following adoption of the ABA Standards for Lawyer Discipline, which did not attempt to recommend particular types of discipline for particular cases, the ABA became concerned that there was widespread inconsistency in sanctions and that this was undesirable. As a result, it formed a Joint Committee on Professional Sanctions, whose mandate was to formulate standards for the imposition of appropriate sanctions. The House of Delegates approved their proposed Standards in February 1986. These are not binding, but provide guidance in the imposition of sanction and are considered by some courts. See, e.g., In re Simmons, 757 P.2d 519 (Wash. 1988). Missouri relies heavily on the Standards in imposing discipline.
Standards 2.2-2.8 contain the available sanctions, including disbarment, suspension, reprimand, admonition, probation, and restitution. Standard 3.0 describes the factors to be considered in imposing sanctions, and Standards 4.0 - 8.0 detail what sanctions are appropriate for particular types and degrees of misconduct.
In Missouri, Rule 5.16 provides:
The recommended discipline may include a written admonition, private reprimand, public reprimand, suspension or disbarment, or a combination of the above. If a recommendation for suspension or disbarment is included, it may suggest a length of time that must elapse before the respondent is eligible to apply for reinstatement and may include other conditions precedent to consideration of an application for reinstatement.
While this rule might appear to limit the Court's authority to impose discipline, Rule 5.33 provides "[n]othing in this Rule 5 shall be construed as a limitation upon the powers of this Court to govern the conduct of its officers . . . . This Rule 5 shall not constitute an exclusive method for regulating the practice of law . . . ." A predecessor provision in Rule 5.27 was interpreted by the Missouri Supreme Court as giving it the "inherent power. . . to tailor and shape its judgment to fit the nature, character, gravity and effect of professional misconduct . . . ." Pursuant thereto, the court has developed the sanction of probation in con-junction with public reprimand, with reservation of jurisdiction if more severe disciplinary action is later deemed appropriate. In re Miller, 568 S.W.2d 246 (Mo. banc 1978) (prohibiting respondent from acting as a fiduciary for two years); In re Schiff, 542 S.W.2d 771 (Mo. banc 1976) (requiring that respondent read Code and periodically report compliance to Court during two year period).
Other jurisdictions utilize the sanction of probation with conditions where a reprimand is insufficient but suspen-sion is unwarranted. A particularly interesting case is In re Greene, 276 Or. 1117, 557 P.2d 644 (1977) where the Court found that the accused attorney "was deficient in some elementary probate procedures" and failed to recognize a conflict of interest. Accordingly, it placed the attorney on probation "until he furnishes evidence that he successfully passed, with a grade of no less than B or its equivalent, courses at a law school of this state in Professional Responsibility and the Administration of Estates. The attorney was given twenty months to do so.
In Missouri, as in other jurisdictions, disbarment is reserved for the most serious misconduct.
The purpose of attorney discipline is to protect the public and maintain the integrity of the legal profession. In re Littleton, 719 S.W.2d 772, 777 (Mo. banc 1986). This Court has reserved disbarment for persons clearly unfit to practice law and used reprimands for isolated acts not involving dishonest, fraudulent, or deceitful conduct. Id. . . .
The intermediate sanction of suspension is appropriate considering the circumstances of this case, where respondent violated his duty to the public to maintain personal integrity, but the conduct does not rise to a level indicating respondent is clearly unfit to practice law. See ABA Standards for Imposing Lawyer Sanctions Rule 5.0 (1986). Brief suspension should be sufficient to protect the public.
In re Disney, 922 S.W.2d at 15-16.
In many jurisdictions, disbarment is permanent and no re-instatement is possible. In others, reinstatement is permitted but generally requires a showing of rehabilitation and current fitness to practice. In most jurisdictions where a respondent is disbarred for conviction of crime, he or she must also show "repentance", which requires an admission of guilt. But see In re Hiss, 368 Mass. 447, 333 N.E.2d 428 (1975). In Missouri, reinstatement is permitted and is governed by Rule 5.28. Pursuant to that rule, an attorney who has been disbarred or suspended may be reinstated if the conditions set out in the Rule have been met and the Court, after reviewing a report by disciplinary counsel, finds that the applicant’s license should be restored. Among the requirements for reinstatement are that the cause for disbarment or suspension has abated, all persons injured by the lawyer’s conduct have received restitution or have been notified of the application, all special conditions imposed at the time the right to practice was lost have been met, the person has passed the MPRE within two years preceding reinstatement, and the person is of good moral character and the best interests of the public will be served by reinstatement.
Sanctions less than disbarment and suspension are also available and are used where interruption of a lawyer’s practice is not warranted. Reprimands are often imposed where the conduct is negligent or where there is an isolated act of misconduct that is not serious enough to warrant suspension. Absent aggravating or mitigating circumstances, a reprimand is generally the appropriate sanction where a lawyer has previously received an admonition. See In re Frank, 885 S.W.2d 328, 333 (Mo. banc 1994).
An attorney who has been disciplined in one jurisdiction is normally required to show cause why he or she should not be disciplined in other states in which he or she is licensed to practice law. See Rule 5.20. Since discipline in another jurisdiction is to be afforded full faith and credit, the other state’s proceedings may be attacked only for lack of jurisdiction, improper notice or fraud. In re Storment, 873 S.W.2d 227, 230 (Mo. banc 1994).
However, according the [other state’s] order full faith and credit does not require discipline in Missouri. In re Weiner, 530 S.W.2d 222, 224 (Mo. banc 1975). [The] Rule contemplates that this Court may choose not to discipline a lawyer disciplined by another state. Id. For example, the attorney's conduct may not be a ground for discipline in Missouri. In re Veach, 287 S.W.2d at 759. This Court makes its own independent judgment as to the fitness of the members of its bar. Id. at 755; Weiner, 530 S.W.2d at 224.
Storment, 873 S.W.2d at 230. In doing so, the burden of proof is on the attorney to show why the other state’s disciplinary order "should not be conclusive of misconduct for the purpose of discipline" by the Court. Id. at 230-31. If the Court accepts the finding of misconduct, it makes its own independent determination of sanction. Id.
M.R. 8.3 requires an attorney who has knowledge that another lawyer has committed a violation of the rules to report such knowledge to the relevant professional authority where the violation is one that raises a substantial question regarding the lawyer's honesty, trustworthi-ness or fitness to practice. There is no obligation if the information providing such knowledge is governed by the confidentiality requirements of Rule 1.6 or if the lawyer with knowledge gained the information while serving in an approved lawyer assistance program. Knowledge in this context means actual knowledge or a substantial basis for believing a serious violation exists. See N.M. Bar Adv. Opin. 1988-8.
Very few lawyers have been disciplined for violation of these "whistle-blowing" provisions, and generally such discipline has been minor. As a result, the reporting requirements have been largely ignored. There was some indication that courts were beginning to take these provisions more seriously when a lawyer was suspended for one year for failing to report misconduct and using such failure to report as leverage in obtaining a settlement. In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988). The incidence of lawyer reporting increased in the months following Himmel, but subsequently declined as it appeared that that case was an isolated instance of discipline rather than the beginning of a trend.
The reporting requirements are controversial and are almost universally disliked by lawyers. As noted in the Readers Digest article, however, this failure of lawyers to report each other is a source of serious concern with the general public.
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