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The Missouri Supreme Court Aug. 27 suspended a lawyer for at least six months as reciprocal discipline for pursuing frivolous claims as a represented litigant suing his former clients (In re Hess, Mo., No. SC92923, 8/27/13).
In the court's principal opinion, Judge Zel M. Fischer said the lawyer violated Missouri Rule of Professional Conduct 4-3.1, which prohibits lawyers from pressing baseless claims, and Rule 4-8.4(d), which forbids conduct prejudicial to the administration of justice, by taking an active role in a lawsuit seeking fees from former clients for work that he performed as an associate employed at a firm.
The lawyer could not escape his duties under those rules by getting another attorney to represent him, Fischer declared. His opinion was joined by Chief Justice Mary R. Russell and Judge Paul C. Wilson.
But the authors of the lead opinion did not convince a majority of the court to join the decision as to Rule 3.1. In a concurring opinion, Judge Patricia Breckenridge agreed that the lawyer violated Rule 8.4(d), but did not agree that Rule 3.1 is applicable when a lawyer acts as a litigant rather than an advocate for a client.
Judges Richard B. Teitelman, Laura Denvir Stith and George W. Draper III dissented, arguing that neither rule applied in this situation.
While employed as an associate at Kanoski & Associates in Illinois, Lawrence J. Hess was assigned to work on a medical malpractice case. He did most of the work on the case before he was terminated from his employment, but when he and the firm parted ways the clients chose to stay with the firm and have another attorney represent them.
Hess contended that Kanoski & Associates owed him compensation, and he hired an attorney, Bruce Carr, to represent him. Carr filed an attorneys' lien and complaint on Hess's behalf against the clients he had represented in the medical malpractice case as an associate at the Kanoski firm. The trial court ultimately dismissed Hess's claims with prejudice as lacking any valid legal basis, and awarded sanctions to the former clients. See Hess v. Loyd, 964 N.E.2d 699, 28 Law. Man. Prof. Conduct 58 (Ill. App. Ct. 2012).
The Illinois Supreme Court suspended Hess's Illinois law license for six months for violating the Illinois professional conduct rules against frivolous claims and conduct prejudicial to justice.
Similarly, in this reciprocal discipline proceeding the Missouri Supreme Court suspended indefinitely Hess's license to practice in that state with no leave to apply for reinstatement for six months.
In the court's lead opinion, Fischer said that Hess violated Rule 3.1 by knowingly and deliberately participating in bringing frivolous claims in violation of Rule 3.1. He also violated Rule 8.4(d) through that conduct, Fischer said, because the litigation was designed to burden the former clients so as to pressure his former firm into a settlement.
The two rules Hess violated do not distinguish between a lawyer acting as an advocate and a lawyer who is a party to litigation, Fischer said. “The plain language of Rule 4-3.1 indicates that the rule is intended to apply to lawyers regardless of whether they are acting as an advocate or bringing a lawsuit as a litigant,” he wrote.
Rule 3.1 expressly refers to “a lawyer,” Fischer said, but unlike some other rules does not limit its applicability to attorneys acting in their representative capacity on behalf of a client. The comments to the rule, which discuss a lawyer's obligations as an advocate, should not be used to add ambiguity to an otherwise unambiguous rule, he said.
Rule 8.4(d) likewise is not explicitly limited to contexts in which a lawyer is acting in a representational capacity on behalf of a client, Fischer said.
In addition, Fischer said, the preamble to the rules states that lawyers must act ethically both in professional services to clients “and in the lawyer's business and personal affairs.”
“Whether an attorney or a litigant, Hess was always an officer of the court and had an obligation to conduct his business and personal affairs in accordance with the law,” Fischer wrote. That Hess hired another attorney to file the frivolous claims on his behalf does not relieve him of that obligation, he said.
In her concurring opinion, Breckenridge agreed with the conclusion in the principal opinion that Hess violated Rule 8.4(d). Although the rule is rarely applied outside the context of representing a client, its wording does not limit application to that context, she said.
However, Breckenridge did not agree that Rule 3.1 applies to a lawyer who is acting as a client and not as an advocate.
Rule 3.1, she said, clearly references acts of an attorney as an advocate, not actions undertaken in the lawyer's business or personal affairs. The rule is placed before and after other rules that address a lawyer's actions as an advocate, she pointed out.
The dissenters insisted that Rule 3.1 applies only to a lawyer in his representative capacity and not to actions undertaken as a client. This limitation is clear from the comments to the rule, which discuss the duties of an advocate in handling a client's case and make no reference to a lawyer who is a client, Teitelman said.
Moreover, he said, Missouri case law indicates that professional discipline for personal misconduct is generally reserved for cases in which the attorney has committed a crime that reflects adversely on his fitness as a lawyer or has engaged in severely dishonest or destructive personal misconduct.
Neither disciplinary counsel nor independent research uncovered any other case in which Rule 3.1 has been applied to a lawyer who was acting not as an advocate but as a client, Teitelman said.
Because the Rule 8.4(d) charge was based on Hess's alleged violation of Rule 3.1, that charge too should fail, he added.
Lawrence Hess, St. Louis, represented himself. Alan D. Pratzel and Sharon K. Weedin, Office of Chief Disciplinary Counsel, Jefferson City, Mo., represented their office.
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