SUBPOENA FOR DOCUMENTS FROM THIRD PARTY

Transcription

1 MISSOURI ETHICS AND PROFESSIONALISM UPDATE Boone County Bar Association May 9, 2012 Sara Rittman Legal Ethics Counsel 217 E. McCarty Jefferson City, MO ; fax Topics: Subpoena for documents from a third party Professionalism reporting pro bono service Selected cases related to Supreme Court Rule 4, the Rules of Professional Conduct SUBPOENA FOR DOCUMENTS FROM THIRD PARTY PREVIOUS PROBLEMS Prior to the recent changes to discovery rules, you did not have a way to use a subpoena to obtain documents from a third party without requiring the third party to appear and produce the documents at a deposition, hearing, or trial. You were misusing the subpoena if you used it just for production of documents, even if a deposition would be held later. The subpoena, by its own terms, was only for the records to be produced at the deposition. By using it to obtain the records in advance of the deposition, you were depriving the opposing party of the opportunity to object to actual production of the records at the deposition. The Missouri rules simply did not provide for a production of documents from a third party procedure. If the third party received the subpoena and just sent you the documents, without any action or encouragement on your part or anyone else on your side of the case, you would not violate the rules. However, if you canceled the deposition for this reason, you were required to inform opposing counsel of the reason, since opposing counsel would also have been entitled to obtain the documents at the deposition. State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 343 (Mo. Banc 1998) "It is professional misconduct for a requesting attorney to review or otherwise use privileged records that a provider mails contrary to a subpoena requiring production of documents at a deposition."

2 CURRENT SOLUTIONS With the adoption of a new version of Rule and a completely new Rule 58.02, these situations have been addressed. It is still impermissible to subpoena a third party to a deposition and unilaterally waive the deposition in exchange for production of the documents. However, there is now a specific procedure for a waiver: With the agreement of all parties, the non-party may be excused from appearance at the deposition and may produce the subpoenaed items to the party responsible for issuance and service of the subpoena, who shall then offer to all other parties the opportunity to inspect or copy the subpoenaed items. It is no longer necessary to have a deposition, hearing, or trial scheduled to subpoena documents from a third party. Rule establishes a procedure to use a subpoena to simply compel production of documents by a third party without any ancillary proceeding, such as a deposition. Rule also provides for a waiver of the formal production: With the agreement of all parties, the non-party may be excused from appearance at the location specified for document production and may produce the subpoenaed items to the party responsible for issuance and service of the subpoena, who shall then offer to all other parties the opportunity to inspect or copy the subpoenaed items. In both instances, the attorney or party seeking production has certain duties in connection with a waiver. In both instances, it is possible to make the production process more convenient for all involved, if no one sees a need for the formal process. However, it will still be a violation of the Civil Procedure Rules and therefore the Rules of Professional Conduct (See Rule 4-3.4(b)), if one attorney or party seeks to use a subpoena to unilaterally obtain documents from a third party. Effective SUBPOENA FOR TAKING DEPOSITION (a) For Attendance of Witnesses; Form; Issuance. Every subpoena for a deposition shall: (1) Be issued by the officer or person before whom depositions may be taken as designated in Rule or Rule or by the clerk of the court in which the civil action is pending; (2) State the name of the court and the style of the civil action; (3) State the name, address and telephone number of all attorneys of record and selfrepresented parties; and (4) Command each person to whom it is directed to attend and give testimony at a time and place therein specified.

3 (b) For Production of Documents and Things. In conjunction with a deposition properly noticed under Rule 57.03, a subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein. The court may: (1) Quash or modify the subpoena if it is unreasonable or oppressive, or (2) Require the party who issued and served the subpoena to advance the reasonable cost of producing the books, papers, documents, or tangible things. (c) Subpoena to a Non-Party. A subpoena to a non-party pursuant to Rule for the production of documents and things shall be served not fewer than 10 days before the time specified for compliance. The party serving a subpoena on a non-party shall provide a copy of the subpoena to every party as if it were a pleading. A party objecting to the subpoena may seek a protective order under Rule 56.01(c). A party or attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a non-party subject to the subpoena. With the agreement of all parties, the non-party may be excused from appearance at the deposition and may produce the subpoenaed items to the party responsible for issuance and service of the subpoena, who shall then offer to all other parties the opportunity to inspect or copy the subpoenaed items. The party responsible for issuance and service of the subpoena is responsible for obtaining the agreement of all parties and advising the non-party in writing of the agreement, with a copy to all attorneys of record and selfrepresented parties. Absent such an agreement, the subpoenaed items shall only be produced at the deposition. Upon request by any party, the non-party shall also produce with the subpoenaed items a business records affidavit of the custodian of records. A non-party commanded to produce and permit inspection and copying may serve the party who issued and served the subpoena with a written objection to inspection and copying of any or all of the designated items. The objection shall state specific reasons why the subpoena should be quashed or modified.

4 The objection shall be served on all parties to the action within 10 days after service of the subpoena or before the time specified for compliance, whichever is earlier. If a timely and specific objection is made, the party who issued and served the subpoena shall not be entitled to inspect or copy the subpoenaed items except pursuant to an order of the court. Upon notice to the non-party commanded to produce, the party who issued and served the subpoena may move at any time for an order to compel production. (d) Service. A subpoena may be served by: (1) The sheriff or a sheriff's deputy, or (2) Any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to that person the fees and mileage the witness would have been entitled to receive for attending court pursuant to subpoena. (e) Authorization to Issue Subpoena. Proof of service of a notice to take a deposition as provided in Rules and is sufficient to authorize the issuance of a subpoena for taking a deposition. (f) Contempt. Any person who without adequate excuse fails to obey a subpoena served upon the person may be held in contempt of the court in which the civil action is pending SUBPOENA TO NON-PARTY FOR PRODUCTION OF DOCUMENTS AND THINGS (a) Scope. A party may serve a subpoena on a non-party to: All New (1) Produce and permit inspection and copying of any designated documents, or (2) Permit inspection, copying testing, or sampling of any tangible things that constitute or contain matters within the scope of Rule 56.01(b) and that are in the possession, custody or control of the non-party. (3) Every such subpoena for document production and things shall: (A) Be issued by the clerk of the court in which the civil action is pending; (B) State the name of the court and the style of the civil action;

5 (C) State the name, address, and telephone number of all attorneys of record and selfrepresented parties. (b) Time. A subpoena to a non-party shall be served not fewer than 10 days before the time specified for compliance. (c) Notice to Parties. The party serving a subpoena on a non-party pursuant to Rule 58.02(a) shall provide a copy of the subpoena to every party as if it were a pleading. A party objecting to the subpoena may seek a protective order under Rule 56.01(c). (d) Response. With the agreement of all parties, the non-party may be excused from appearance at the location specified for document production and may produce the subpoenaed items to the party responsible for issuance and service of the subpoena, who shall then offer to all other parties the opportunity to inspect or copy the subpoenaed items. The party responsible for issuance and service of the subpoena is responsible for obtaining the agreement of all parties and advising the non-party in writing of the agreement, with a copy to all attorneys of record and self-represented parties. Absent such an agreement, the subpoenaed items shall only be produced at the place, date and time specified by the subpoena for all parties to inspect or copy. The non-party shall appear and produce the subpoenaed items for copying and inspection by all parties at the place, date, and time specified by the subpoena. However, if all parties agree in writing, a non-party may comply with the subpoena by producing the subpoenaed items pursuant to that written agreement. The party responsible for issuance and service of the subpoena is responsible for advising the non-party, in writing, of the agreed upon directions, with a copy to all attorneys of record and self-represented parties. Absent such agreement, the subpoenaed items shall only be produced at the place, date, and time specified by the subpoena for all parties to inspect and copy. Upon request by any party, the non-party shall also produce with the subpoenaed items a business records affidavit of the custodian of records. (e) Protection of Non-Party. (1) A party or attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a non-party subject to the subpoena.

6 (2) A non-party commanded to produce and permit inspection and copying may serve the party who issued and served the subpoena with a written objection to inspection and copying of any or all of the designated items. The objection shall state specific reasons why the subpoena should be quashed or modified. The objection shall be served on all parties to the action within 10 days after service of the subpoena or before the time specified for compliance, whichever is earlier. (3) If a timely and specific objection is made, the party who issued and served the subpoena shall not be entitled to inspect or copy the subpoenaed items except pursuant to an order of the court. (f) Contempt. Any person who without adequate excuse fails to obey a subpoena served upon the person may be held in contempt of the court in which the civil action is pending. REPORTING PRO BONO SERVICE RULE 4 6.1: VOLUNTARY PRO BONO PUBLICO SERVICE A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations; by service in activities for improving the law, the legal system, or the legal profession; and by financial support for organizations that provide legal services to persons of limited means. COMMENT [1] The ABA House of Delegates has formally acknowledged "the basic responsibility of each lawyer engaged in the practice of law to provide public interest legal services" without fee, or at a substantially reduced fee, in one or more of the following areas: poverty law, civil rights law, public rights law, charitable organization representation, and the administration of justice. This Rule expresses that policy but is not intended to be enforced through disciplinary process. [2] The rights and responsibilities of individuals and organizations in the United States are increasingly defined in legal terms. As a consequence, legal assistance in coping with the web of statutes, rules, and regulations is imperative for persons of modest and limited means, as well as for the relatively well todo. [3] The basic responsibility for providing legal services for those unable to pay ultimately rests upon the

7 individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need. Thus, it has been necessary for the profession and government to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services, and other related programs have been developed, and others will be developed by the profession and government. Every lawyer should support all proper efforts to meet this need for legal services. (Adopted September 28, 1993, eff. July 1, 1995, Rev. July 1, 2007) Missouri Bar Pro Bono Webpage The need is great, the responsibility profound. Many lawyers feel a profound sense of responsibility to do pro bono work and most find they gain great personal satisfaction from doing so. The great majority of lawyers provide pro bono service of some nature. The need for more involvement, especially in helping those who cannot afford legal representation, is great. This page offers information and resources to help Missouri lawyers fulfil their professional obligation to render public interested legal services. Missouri Bar Asks Lawyers to Report Pro Bono Hours Annually Help Track Our Legal Profession's Commitment for Justice to All Many Missouri lawyers generously help ensure that justice extends to those less fortunate by making pro bono work an integral part of their practices. However, this honorable commitment often lacks the recognition it deserves within the legal profession and is for the most part unknown to the general public. The Missouri Bar hopes to change this by asking lawyers to voluntarily report the number of hours they commit to pro bono work annually. This reporting will provide valuable information about the collective and individual pro bono efforts of Missouri lawyers, help the Bar better recognize these efforts and inspire other lawyers to perform pro bono services. You will play a vital role in this effort by annually reporting your pro bono hours using this site. We have made it quick and easy to do. Just log in with your members-only bar number and pin and complete the brief form. SELECTED RECENT CASES RELATED TO SUPREME COURT RULE 4

8 DISCIPLINE In re Ehler, 319 S.W.3d 442 (Mo. banc 2010). Excerpt from unofficial Summary of SC90652, In re: Renae Ehler The attorney violated five ethics rules, including using money she owed to clients to pay personal expenses. Given aggravating circumstances, including the previous discipline and failure to improve while on probation, disbarment is the appropriate sanction. OPINION: PATRICIA BRECKENRIDGE, Judge. The Office of Chief Disciplinary Counsel (OCDC) seeks to discipline the law license of Renae Lynn Ehler for multiple violations of the rules of professional conduct in her representation of a client in a dissolution proceeding and another client in an unrelated civil case. The preponderance of the evidence proves Ms. Ehler violated Rule 4-1.1, Competence, by failing to correctly calculate and deliver the amount of money owed to a client and an opposing party and by failing to provide opposing counsel with requested discovery information to avoid a default judgment against her client; Rule 4-1.3, Diligence, by failing to pay money owed to a client and an opposing party in a timely fashion and by failing to provide opposing counsel with discovery information to avoid a default judgment against her client; Rule 4-1.4, Communication, by failing to communicate with clients and opposing counsel; Rule , Safekeeping Property, by misappropriating and mishandling client funds and by failing to properly maintain a client trust account; and Rule 4-8.4, Misconduct, by violating other rules of professional [319 S.W.3d 445] conduct and by engaging in conduct involving deceit and misrepresentation.1 The Court previously suspended Ms. Ehler's license for six months for prior violations of the rules of professional conduct that were of the same nature as her current violations. It stayed her suspension and imposed a two-year term of probation. She committed some of the current acts of professional misconduct while she was on probation. The effort to educate Ms. Ehler and assist her in modifying her professional behavior to comply with the rules of professional conduct has failed. In light of the severity of her acts of misconduct and this Court's progressive application of discipline, disbarment is appropriate. Therefore, Ms. Ehler is disbarred. Factual and Procedural Background Ms. Ehler was licensed to practice law in Missouri in October In October 2005, this Court disciplined Ms. Ehler for the following rule violations: 2

9 Rule 4-1.3, Diligence, for failing to act on behalf of clients and failing to return money owed to them in a timely fashion after express request by clients; Rule 4-1.4, Communication, for failing to communicate with clients regarding their cases' status; Rule , Safekeeping Property, by failing to properly maintain a client trust account and failing to deliver money when due; Rule , Declining or Terminating Representation, for failing to refund unearned fees and unused costs to former clients in a timely manner following withdrawal from representation. Rule 4-8.1, Bar Disciplinary Matters, for failing to reasonably respond to the OCDC. The Court suspended her license for six months but stayed that suspension and placed her on probation for a term of two years. As a condition of her probation, Ms. Ehler was required to consult with a practicing attorney from Columbia who was a law office practice management consultant. That attorney worked with her regularly over the two-year period on how to handle her office practices and manage her client trust account. The probation terms also required her to consult with a Moberly attorney who served as a mentor for Ms. Ehler. Ms. Ehler's term of probation ended January 28, The present disciplinary action arises out of complaints regarding Ms. Ehler's representation of R.K. in a dissolution proceeding and her representation of C.G. in a lawsuit for unpaid water bills. The Dissolution In 2007, R.K. hired Ms. Ehler to represent her in a dissolution action against H.M. Ms. Ehler filed the dissolution action as counsel for R.K. Another attorney represented H.M. The parties reached a settlement on the day the dissolution was to be tried, January 16, 2008, and that settlement was approved [319 S.W.3d 446] by the trial court after a hearing that day. As part of the settlement, the couple's real and personal property was to be sold and the net proceeds divided equally between the parties after the payment of all debts. The court also ordered that R.K.'s name be changed. Ms. Ehler was to receive the proceeds of the sales of property, pay the parties' debts and then distribute the net proceeds to them. She also was to file a proposed dissolution decree. R.K. expected to receive her dissolution decree within six weeks. When she did not receive it, she repeatedly called Ms. Ehler to inquire about the delay. Finally, R.K. obtained the assistance of Bobby Wheeler, another lawyer, and he took her over to the courthouse to get a copy of the decree. It had not been filed. The proposed dissolution decree was filed only after the court issued an order to Ms. Ehler to appear and show cause why she should not be held in contempt for failure to provide the proposed judgment. After the dissolution decree was filed, Mr. Wheeler procured a copy for R.K. It contained a scrivener's error; it misstated R.K.'s first name. Mr. Wheeler filed a motion to correct the judgment, and

10 the corrected judgment was issued July 10, 2008, almost seven months after the hearing at which the court approved the settlement and directed Ms. Ehler to file the proposed dissolution decree. Following the dissolution settlement, Ms. Ehler received several checks from the sales of the marital property and income tax refunds and deposited the checks into her trust account. On February 19, 2008, she deposited into the trust account two federal income tax refund checks totaling $1, On June 6, 2008, she deposited a check in the amount of $52, for the net proceeds from the sale of marital real property. On July 7, 2008, she deposited a check in the amount of $13, for the net proceeds from the sale of the marital personal property. The sum total of those checks is $67, On June 25, 2008, Ms. Ehler sent a letter to H.M.'s attorney outlining her distribution plan for the marital assets. She listed several creditors, including herself for attorney's fees, who needed to be paid before any money could be distributed to the parties. The sum total of the debt was $18,380.41, although Ms. Ehler's letter erroneously listed the amount as $18, In July 2008, Ms. Ehler paid herself and the creditors. At this point, the remaining balance should have been $49, for equal distribution to H.M. and R.K. However, during the dissolution proceeding, H.M. and R.K. each paid bills to creditors. Because of the difference in payment, R.K. should have received $24, from the net proceeds and H.M. should have received $24, In September 2008, Ms. Ehler mailed a $20, check to R.K. H.M. did not receive his portion of the proceeds. H.M.'s attorney repeatedly contacted Ms. Ehler in an effort to acquire his client's money. As of January 29, 2009, Ms. Ehler still owed R.K. $4, and H.M. $24, R.K. recognized a discrepancy between the amount she received and the amount she was owed. She contacted Ms. Ehler and requested an accounting of the parties' marital funds. Ms. Ehler never provided R.K. with the requested accounting. R.K. then filed a complaint with the OCDC. The C.G. Representation C.G. and his wife, D.G., hired Ms. Ehler to represent C.G. in the defense of a lawsuit involving a claim for unpaid water [319 S.W.3d 447] bills.3 C.G. wished to assert the defense that he had not lived at the property where the water bills had been generated during the relevant time period because he was living in Iowa at the time. C.G. had his wife, D.G., deliver to Ms. Ehler his employment and tax records, his son's school records, and rental receipts as documentary evidence that he had lived in Iowa during the relevant time period for which the water bills were generated. After Ms. Ehler received the documents, C.G.'s only contact with her was a telephone conversation when she told him a court date had been continued and that she would contact him with the new court date. Prior to that time, Ms. Ehler told C.G. that the opposing party had interrogatories he needed to answer and read the questions to him over the phone. He told her he easily could answer the questions,

11 and it was agreed that Ms. Ehler would send the interrogatories to him that he was required to complete. She never did so. Ms. Ehler appeared in court July 28, 2008, to respond to a motion filed by the plaintiff water district seeking sanctions for C.G.'s failure to respond to its discovery requests. In court, Ms. Ehler did not use the documentary evidence received from C.G. Ms. Ehler told the court C.G. had not provided her with the information necessary to respond to the interrogatories. As a sanction for failing to comply with discovery requests, the court entered a judgment by default against C.G. in the amount of $1,900. C.G. did not appear for the hearing when the motion for sanctions was heard because he did not know that the motion had been filed or that there was a court date. Additionally, Ms. Ehler did not inform C.G. of the default judgment entered against him, and he found out about the judgment through a Case.net search conducted by his wife. As a result of the default judgment, C.G.'s wages were garnished and his credit rating was damaged. C.G. filed a complaint against Ms. Ehler with the OCDC. OCDC Investigation After receiving complaints from R.K. and C.G., the OCDC investigated Ms. Ehler's law practices and audited her trust account for The audit revealed Ms. Ehler made 12 payments for her personal and office utility bills out of the trust account. In 2007, there were over $2,000 in utility payments withdrawn from the account. In 2008, $1, was withdrawn from the account. As of January 29, 2009, Ms. Ehler's trust account balance was $26,847.58; $ of that amount was subject to an IOLTA lien. The trust account balance was $2, less than the amount due to H.M. and R.K. After the audit, the OCDC directed Ms. Ehler to pay H.M. and R.K. the balance owed to them. The OCDC staff went with Ms. Ehler to her bank, where she obtained a cashier's check made payable to R.K. for $3, and a cashier's check made paying to H.M. for $23, She still owes H.M. and R.K. $2, The OCDC filed an information against Ms. Ehler. A disciplinary panel heard the matter and, on November 12, 2009, found R.K., H.M., and C.G. to be credible witnesses. In regard to R.K.'s complaint, the panel found Ms. Ehler violated the following rules of professional conduct: Rule 4-1.1, Competence, by failing to correctly calculate the money owed to H.M. and R.K. and by failing to deliver the correct amount to them; [319 S.W.3d 448] Rule 4-1.3, Diligence, by failing to timely deliver the money owed to H.M. and R.K.; Rule 4-1.4, Communication, by failing to communicate with R.K. about the money owed and by failing to communicate with H.M. and his attorney about the money owed; Rule , Safekeeping Property, by failing to properly maintain a client trust account and failing to deliver funds to H.M. and R.K., and, instead, utilizing portions of that money for other purposes; Rule 4-8.4, Misconduct, by engaging in conduct involving deceit and misrepresentation.

12 In regard to C.G.'s complaint, the panel found Ms. Ehler violated the following rules of professional conduct: Rule 4-1.1, Competence, by failing to provide to opposing counsel the information requested in discovery so as to avoid a judgment against her clients; Rule 4-1.3, Diligence, by failing to provide to opposing counsel the information requested in discovery so as to avoid a judgment against her clients. The panel found that aggravating factors were present, including a prior disciplinary offense, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and an indifference to making restitution. It also found the presence of mitigating factors, including Ms. Ehler's personal and emotional problems due to her ongoing divorce and her cooperation with the OCDC in the proceedings. The panel recommended disbarment. Ms. Ehler filed her rejection of the panel's recommendation, which brings the matter before this Court. Standard of Review Professional misconduct must be proven by a preponderance of the evidence before discipline will be imposed. In re Crews, 159 S.W.3d 355, 358 (Mo. banc 2005). This Court reviews the evidence de novo, independently determines all issues pertaining to credibility of witnesses and the weight of the evidence, and draws its own conclusions of law. In re Belz, 258 S.W.3d 38, 41 (Mo. banc 2008). The panel's findings of fact, conclusions of law, and the recommendations are advisory and, this Court may reject any or all of the panel's recommendations. In re Coleman, 295 S.W.3d 857, 863 (Mo. banc 2009). Violation of Rule Competence Rule requires a lawyer to represent a client competently. Competent representation includes the legal knowledge, skill, thoroughness, and preparation reasonably necessary to complete the representation. Crews, 159 S.W.3d at 359. Ms. Ehler's conduct in R.K.'s dissolution and her representation of C.G. demonstrates a lack of competence for which discipline is appropriate. The evidence shows Ms. Ehler has violated rule by failing to correctly calculate the money owed to H.M. and R.K. and by failing to deliver the correct amount to them from the proceeds of their sale of marital property. After selling the couples' marital property, Ms. Ehler was directed by the circuit court to collect the proceeds of the sale and appropriately dispense the proceeds. Ms. Ehler's failure to properly calculate the amount due the parties and then disperse the proper amount to the parties was incompetent representation of R.K. by Ms. Ehler. Ms. Ehler claims that no one ever suggested that her calculations were incorrect and that, if anyone did, she would have checked her calculations and made the correction. [319 S.W.3d 449]

13 This claim is directly contradicted by R.K.'s testimony that she noticed a discrepancy in the amount paid to her and requested an accounting from Ms. Ehler, which Ms. Ehler failed to give her. In regard to C.G.'s representation, Ms. Ehler's actions also show incompetence. Ms. Ehler failed to give C.G. the interrogatories that he was required to complete and return to opposing counsel. Her incompetence caused a default judgment to be entered against C.G. Ms. Ehler incompetently represented C.G. Violation of Rule Diligence Rule states, [a] lawyer shall act with reasonable diligence and promptness in representing a client. Ms. Ehler failed to timely deliver the money owed to H.M. and R.K., thereby violating Rule In July 2008, Ms. Ehler's client trust account contained a substantial amount of money that belonged to R.K. and H.M. Ms. Ehler presented R.K. with a check for the incorrect amount in September H.M. was not paid his portion of the proceeds until the OCDC directed Ms. Ehler to pay him in January The untimely delivery of client funds shows Ms. Ehler's lack of diligence and amounts to a violation of Rule The diligent representation of a client is particularly important because [a] client's interests often can be adversely affected by the passage of time or the change of conditions[.] Rule 4-1.3, comment 3. In some instances, the client's legal position may be destroyed. Id. Ms. Ehler's lack of diligence caused C.G. to lose the ability to defend against the lawsuit. Her failure to give the interrogatories to C.G. denied him the opportunity to put forth a defense. Her conduct destroyed C.G.'s legal position. By failing to provide opposing counsel with discovery, C.G. was not allowed to present what may have been a meritorious defense, and a default judgment was entered against him as a sanction pursuant to Rule 61.01(b)(1). Ms. Ehler's representation of C.G. and her handling of R.K.'s dissolution show a lack of diligence and violate Rule Violation of Rule Communication with a client is essential to maintain a productive attorney-client relationship. Rule requires a lawyer to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information. Ms. Ehler violated this rule throughout her representation of R.K. R.K. repeatedly contacted Ms. Ehler seeking information about her dissolution decree. She also repeatedly requested information about the sale of the marital property and when she would be receiving her portion of the proceeds. Ms. Ehler also failed to communicate with H.M.'s lawyer when he inquired about the proceeds from the marital property sales. When a client makes a reasonable request for information, Rule 4-1.4[ ] requires prompt compliance with the request... Rule 4-1.4, comment 4. When a prompt response is not feasible, the attorney or the attorney's support staff must acknowledge the information request and inform the client when he or she can expect a thoughtful response. Id. Ms. Ehler has violated Rule Violation of Rule

14 The OCDC alleges Ms. Ehler has violated Rule , Safekeeping Property, by failing to properly maintain a client trust account, failing to deliver funds to H.M. and R.K. and, instead, utilizing portions of that money for her own purposes. Rule (c) requires a lawyer to keep all client property or thirdparty property in the lawyer's possession separate from [319 S.W.3d 450] the lawyer's own property. This rule also requires that complete records of the client trust account be maintained and preserved for a period of at least five years, and an accounting must be completed promptly on a client's request. Additionally, Rule (f) requires a lawyer, on receipt of client funds, to promptly notify the client and deliver the funds to the client.4 The evidence shows that Ms. Ehler failed to properly maintain her client trust account. She admits to not regularly balancing her trust account. She admits she lost all of her financial records because of a crashed computer hard drive and that, during her probation, the consulting attorney instructed her to create a data backup system, which Ms. Ehler did not do. Ms. Ehler also did not assist the OCDC in reconstructing her financial records. Moreover, when asked by R.K. for an accounting of her trust account, Ms. Ehler did not prepare or provide the accounting. The record also shows that Ms. Ehler mishandled client funds by failing to timely deliver funds to R.K. and H.M. Ms. Ehler received proceeds from the auction of the couple's marital property in July Ms. Ehler first paid herself, along with other creditors, in July R.K. received her first installment in September At that time, H.M. did not receive his portion of the proceeds. Although Ms. Ehler claims she sent H.M. a check that was not cashed, she did not reissue a check, present any evidence of such a check or make any effort to stop payment of any check, despite repeated requests from H.M.'s attorney that H.M. be paid. Ms. Ehler only paid R.K. and H.M. the remaining money in her client trust account after the OCDC directed her to pay them in January Ms. Ehler failed to promptly deliver client funds, thereby violating Rule Ms. Ehler has also misappropriated client funds by paying her personal bills with funds from her client trust account. The OCDC's audit of the client trust account shows that in , Ms. Ehler had 12 withdrawals from the account to pay personal utility bills and office utility bills. The audit additionally shows that, as of January 2009, there should have been $2, in her trust account available to pay to H.M. and R.K. Paying personal expenses from a client trust account clearly is prohibited by Rule Ms. Ehler has not held her client's property with the care required of a professional fiduciary. Rule , comment 1. She has mishandled her client trust account and misappropriated client funds. Her repeated Rule violations alone warrant discipline. Violation of Rule Rule defines professional misconduct for which an attorney may be disciplined. Rule 4-8.4(a) states that [i]t is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct. By violating rules of professional conduct, Ms. Ehler has necessarily violated Rule 4-8.4(a). In re Caranchini, 956 S.W.2d 910, 916 (Mo. banc 1997).

15 Ms. Ehler also has violated Rule 4-8.4(c) in the handling of her client trust account. Rule 4-8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Ms. Ehler knowingly used client funds to pay [319 S.W.3d 451] for her personal expenses directly from her client trust account. Converting client funds necessarily involves deceit and misrepresentation. Therefore, she has violated Rule 4-8.4(c). Appropriate Discipline This Court finds by a preponderance of the evidence that Ms. Ehler has committed the above violations of the rules, amounting to multiple acts of professional misconduct. Having determined that Ms. Ehler has committed multiple acts of professional misconduct, the remaining issue is the appropriate disciplinary sanction. The purpose of attorney disciplinary proceedings is to protect the public and maintain the integrity of the legal profession. Coleman, 295 S.W.3d at 869. In imposing discipline, this Court considers the ethical duty violated, the attorney's mental state, the extent of actual or potential injury caused by the attorney's misconduct, and any aggravating or mitigating factors. Id. This Court looks to the ABA Standards for Imposing Lawyer Sanctions for guidance when imposing attorney discipline but considers the ABA Standards advisory. Id. The most important ethical duties are those obligations which a lawyer owes to clients. ABA Standards for Imposing Lawyer Sanctions 423 (1992). Those duties include safekeeping of client property, Rule ; the duty of diligence, Rule and Rule 4-1.4; the duty of competence, Rule 4-1.1; and the duty of candor, Rule 4-8.4(c). Id. Ms. Ehler knowingly has violated all of these rules, and her ethical violations have caused financial harm and hardship to her clients, R.K. and C.G., and to an opposing party, H.M., who had a settlement agreement with her client. Furthermore, [m]isconduct involving subterfuge, failing to keep promises, and untrustworthiness undermine[s] public confidence in not only the individual but in the bar. In re Donaho, 98 S.W.3d 871, 874 (Mo. banc 2003). To protect the public and maintain the integrity of the profession, a substantial discipline must be imposed in these circumstances. Id. When this Court finds an attorney has committed multiple acts of misconduct, the ultimate sanction imposed should at least be consistent with the sanction for the most serious instance of misconduct among the violations. Coleman, 295 S.W.3d at 870 (internal citations omitted). Ms. Ehler's most egregious act of misconduct is her misappropriation of client funds and mishandling of her client trust account. Disbarment is appropriate for misappropriation of client funds. Belz, 258 S.W.3d at 41; see also ABA standards 4.11 ( Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. ). In addition, [d]isbarment is generally appropriate when a lawyer engages in a pattern of neglect with respect to client matters and causes serious are potentially serious injury to the client. ABA Standards 4.41(c). Under these legal principles, disbarment would be the appropriate discipline for Ms. Ehler. Nonetheless, this Court will consider mitigating and aggravating factors. Belz, 258 S.W.3d at 42.

16 Factors suggested by the ABA Standards that may be considered in aggravation relevant to Ms. Ehler's conduct are prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, and an indifference to making restitution. ABA Standards Ms. Ehler has prior disciplinary offenses of violating the rules governing diligence, communication, safekeeping of property, terminating representation and bar disciplinary [319 S.W.3d 452] matters. Her current offenses involve violation of three of the ethic rules for which she previously was disciplined. Another aggravating factor is that Ms. Ehler's behavior shows a dishonest and selfish motive. She repeatedly converted client funds for her own personal use. Her current violations also evidence a pattern of misconduct and involve multiple offenses. She repeatedly has behaved with a lack of diligence and failed to provide competent representation to her clients. Regarding her representation of R.K., her failure to respond to the inquiries of her client and counsel for the opposing party shows a pattern of failure to communicate. Finally, her mishandling and misuse of her trust fund during 2007 and 2008 show a pattern of failure to properly maintain her trust account and deliver funds to clients promptly. Ms. Ehler also has shown an indifference to making restitution, which is another aggravating factor. Ms. Ehler has known that she owes over $2,000 to H.M. and R.K. since she met with an attorney and investigator from the OCDC on January 29, As of oral arguments, 15 months later, she has made no effort to make restitution. While she claims personal financial problems preclude her from paying her clients their money, it is because of her misuse of her client funds that she lacks the money to pay her clients. Ms. Ehler argues her personal problems should mitigate the severity of the punishment. Mitigating factors do not constitute a defense to a finding of misconduct. Belz, 258 S.W.3d at 42. Rather, these factors constitute factors that may justify a reduction in the degree of discipline to be imposed. ABA Standards Although this Court acknowledges that Ms. Ehler's ongoing, acrimonious divorce and single parenting could tax her emotionally and financially, these facts do not excuse or condone Ms. Ehler's misappropriation of client funds. Her cooperation with the OCDC regarding the current violations is commendable, but, again, cooperation does not minimize the gravity of her offenses or the fact that she committed repeated and multiple violations of the rules of professional conduct that were very similar in nature to those for which her license was suspended and she was placed on a two-year term of probation. Consideration of the aggravating and mitigating circumstances weigh in favor of disbarring Ms. Ehler. Moreover, the sanction of disbarment is also consistent with a progressive disciplinary scheme, which is recommended by the ABA Standards and applied by this Court previously. See generally ABA Standards. Ms. Ehler's license was suspended by this Court in 2005, her suspension was stayed, and she served a two-year term of probation. The purpose of probation is to educate, rehabilitate, and supervise the attorney in order to enable the attorney to modify his or her professional behavior. See Coleman, 295 S.W.3d at 871. Consistent with that general purpose, Ms. Ehler's two-year probation was intended to

17 teach her how to manage her law practice-particularly, how to manage her client trust account. Ms. Ehler had the opportunity to be trained by a law management consultant and to have the advice and support of a mentor. Instead of learning from these opportunities, Ms. Ehler repeated the same acts of misconduct that warranted her stayed suspension and placement on probation. Most egregiously, Ms. Ehler withdrew money from her client trust account to pay personal expenses while she still was on probation for violating the same ethical rules for which she now is being disciplined. Conclusion In 2005, Ms. Ehler received a six-month license suspension, which was stayed, and [319 S.W.3d 453] a two-year term of probation for mishandling client funds and for lacking diligence in representing of clients. During her probation, she participated in law practice management training, which included instruction on how to manage her client trust account. Although not discovered during the term of her probation, she mishandled her client trust account and misappropriated client funds while on probation. Additionally, Ms. Ehler regrettably still does not understand the basics of competent and diligent representation. Under a progressive disciplinary scheme, Ms. Ehler's inability to improve her legal practice, her now habitual acts of professional misconduct, and the severity of those acts warrant disbarment. To protect the public and restore integrity to the profession, Ms. Ehler is disbarred. All concur. Notes: 1. Ms. Ehler's current violations of the rules of professional conduct all occurred before December 31, Ms. Ehler's trust account violations occurred from January 2007 to December 2008, so they are governed by the version of Rule in effect from January 1, 2007, to December 31, Therefore, unless otherwise indicated, all citations are to the 2009 Missouri Supreme Court Rules and Rules of Professional Conduct, which contain the text of the rules in effect at the time of Ms. Ehler's conduct. The subsequent amendments to the rules do not change the essence of the rules. 2. The 2005 Missouri Supreme Court Rules and Rules of Professional Conduct applied to this disciplinary action. 3. C.G. currently is married to D.G. C.G. was married to V. at the times relevant to the water bill dispute. 4. Rule was amended in The content of Rule (f) now is found in Rule (i).

18 In re: Byron G. Stewart, 342 S.W.3d 307 (Mo. banc 2011) Excerpt from summary: Under the standards of the American Bar Association for attorney discipline, disbarment is warranted when an attorney s criminal conduct is closely related to the practice of law and poses an immediate threat to the public, whereas suspension is considered appropriate when a lawyer knowingly engages in criminal conduct that is not closely related to the practice of law, does not pose an immediate threat to the public, but that seriously and adversely reflects on the lawyer s fitness to practice law. Aggravating and mitigating factors also are considered in determining appropriate discipline. Here, Stewart s aggravating factors are his four DWI convictions and that he failed to report his criminal conduct to the chief disciplinary counsel when he was admonished for unrelated issues in His mitigating factors include his limited prior disciplinary history, his remorse, his ongoing struggle with alcoholism and his commitment to sobriety, his participation in extensive inpatient and outpatient treatment and his attendance at numerous Alcoholics Anonymous meetings, and his full compliance with the terms of his criminal probation. As such, suspension is more appropriate than disbarment. * * * * That Stewart received a lenient criminal sentence does not diminish the severity of his conduct for the purpose of assessing the proper discipline. The damage caused by drunken drivers is well documented; this Court must insist that attorneys be keenly aware of the parameters the law places on their conduct. Stewart s repeated disregard for those boundaries cannot be excused. OPINION: Attorney Byron Stewart pleaded guilty to his fourth charge of driving while intoxicated, resulting in a felony conviction. The Office of Chief Disciplinary Counsel (OCDC) seeks to discipline his law license for his violation of the rules of professional conduct. In light of Stewart s multiple instances of drunken driving and the seriousness of his felony conviction, he is suspended indefinitely from the practice of law with no leave to apply for reinstatement [342 S.W.3d 309] for six months after the mandate is issued. I. Background Stewart was licensed to practice law in Missouri in His criminal history includes four DWIs in 11 years. He pleaded guilty to his first DWI in 1997, his second in 2004, his third in 2006, and he was arrested for his fourth DWI in November 2008, when he was found passed out and intoxicated while behind the wheel of a parked vehicle. His fourth DWI was charged as a class D felony1 and resulted in a three-year suspended sentence with supervised probation. His probation terms require alcohol and drug testing and forbid him from driving or consuming alcohol. He was ordered to serve 60 days of shock time in the county jail, but during his shock time he was allowed to leave the facility on work release to practice law. 1 He originally was charged with a class C felony because he was considered an aggravated offender due to his three previous DWI convictions, but his second DWI later was removed from the information, reducing the charge to a class D felony. See sections , Unless otherwise noted, all statutory references are to RSMo 2000, as amended by Supp.2010.

19 During Stewart s shock time, OCDC moved this Court to discipline Stewart s law license pursuant to Rule 5.21(c), under which an attorney who has pleaded guilty to a felony is subject to discipline by this Court without the requirement of any other proceeding. OCDC recommends that Stewart s license be suspended without leave to reapply for three years, stayed for a three-year period of probation with terms that mirror those of his criminal probation. Stewart s only previous discipline involved an April 2009 admonition relating to diligence and communication. Although his fourth DWI was pending at the time of the admonition, OCDC apparently was unaware of his criminal history and the pending felony charge when it issued the admonition. This Court now considers the discipline warranted by Stewart s felony conviction.2 See In re Zink, 278 S.W.3d 166, 169 (Mo. banc 2009) (noting this Court s inherent authority to regulate the practice of law and administer attorney discipline). 2 Stewart declined the opportunity to file a brief or participate in oral arguments. II. Standard of Review Each disciplinary case ultimately stands on its own facts, but the ABA Standards for Imposing Lawyer Sanctions provides guidance for appropriate discipline. In re Madison, 282 S.W.3d 350, 360 (Mo. banc 2009); In re Downs, 363 S.W.2d 679, 691 (Mo. banc 1963). Following the model laid out in ABA Standard 3.0, four factors are considered in determining the appropriate discipline: (1) the duty violated; (2) the lawyer s mental state; (3) the potential or actual injury caused by the lawyer s misconduct; and (4) aggravating and mitigating circumstances. The guiding principles underlying disciplinary decisions are as follows: The purpose of discipline is not to punish the attorney, but to protect the public and maintain the integrity of the legal profession. Those twin purposes may be achieved both directly, by removing a person from the practice of law, and indirectly, by imposing a sanction which serves to deter other members of the Bar from engaging in similar conduct. In re Kazanas, 96 S.W.3d 803, (Mo. banc 2003). [342 S.W.3d 310] III. Stewart s Felony Conviction Was A Violation Of Rule 4 8.4(b) A criminal act by a lawyer that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer is considered professional misconduct under Rule 4 8.4(b). The ABA Standards point out that the injury from such misconduct can include not only harm to clients or the public but also harm to the