Picking winners and losers: The subjectivity of Missouri disciplinary decisions.

• Author: Craigmyle, Bradley
• Position: NOTE

1. INTRODUCTION

   Imagine someone close to you unexpectedly impregnates his girlfriend. He wants to raise the child and does not want to put the baby up for adoption, but the mother feels adoption is best. To facilitate the adoption process, the mother hires a lawyer. This lawyer intentionally keeps the father and the father's attorney in the dark regarding the adoption proceedings. The mother then, under her lawyer's guidance, gives false testimony at a court hearing so the child can be adopted. The father--who had been misled about the baby's due date and deprived of custody for over one year--eventually learns of the child's birth and intervenes in the adoption proceedings. Imagine further that the lawyer who orchestrated the plan to deceive the father and separate him from his child never loses his law license. Would you feel satisfied with this outcome? Would this strike you as the appropriate discipline? Or would you expect justice to take another form? While this might seem like a far-fetched hypothetical, it was a harsh reality for at least one Missourian not long ago.

   The American Bar Association ("ABA") provides a guide for state-level ethics laws known as the Model Rules of Professional Conduct ("Model Rules"). The Supreme Court of Missouri adopts ethics laws ("Missouri Rules") and disciplines lawyers who violate these laws. (1) One of a lawyer's most fundamental duties is exercising honesty toward the tribunal, and the Missouri Rules prohibit a lawyer from engaging in dishonest behavior before tribunals. (2)

   This Note traces the facts and holding of the case In re Krigel, before delving into the ABA's influential role in legal ethics. Next, it outlines Missouri's attorney discipline procedures and analyzes pertinent Missouri case law. Lastly, this Note critiques the majority opinion and argues that Krigel should have been disbarred.

2. FACTS AND HOLDING

   In response to several alleged violations of the Missouri Rules, the Office of the Chief Disciplinary Counsel ("OCDC") adopted the Disciplinary Hearing Panel's ("DHP") recommendation and sought suspension of Sanford P. Krigel's law license. (3) Krigel objected to the DHP's recommendation and asked the Supreme Court of Missouri to dismiss the OCDC's Information (Missouri's charging document). (4)

   Krigel became a member of The Missouri Bar in 1976. (5) In 1978, he began practicing law with his wife, and their firm employs eleven attorneys. (6) He specializes in adoption law and, before this incident, had no record of disciplinary action. (7) The conduct at issue stemmed from Krigel's representation of an "unmarried, pregnant, eighteen year old woman" ("Birth Mother") in 2009. (8) Initially, Birth Mother and Birth Father agreed to hide the unexpected pregnancy from their parents until Birth Mother was eight months pregnant. (9) During their meeting with both parents to discuss the pregnancy, Birth Father asserted that he wanted to raise the child and did not want to give it up for adoption. (10) The birth parents' relationship deteriorated because of this meeting, and Birth Mother's parents tried to prevent Birth Father from contacting Birth Mother. (11)

   Birth Father hired attorney Jeff Zimmerman to assist him with Birth Mother's pregnancy. (12) Concurrently, Birth Mother asked Hillary Merryfield, who runs a child placement agency, for an attorney referral. (13) Merryfield and Krigel had worked together on adoptions for around twenty years, and she recommended Krigel to Birth Mother. (14) Krigel met with Birth Mother on March 11, 2010, and Birth Mother explained that she felt it would be best to give the child up for adoption. (15) She also informed Krigel that Birth Father would not consent to an adoption. (16) Birth Mother retained Krigel to counsel her in terminating her parental rights in preparation for an adoption. (17) Krigel implemented a "passive strategy," whereby they "would actively do nothing to communicate with Birth Father or his counsel; they would not advise Birth Father or his counsel of the adoption plans, the birth of the child, and the instigation of any legal proceedings." (18)

   On March 19, 2010, Zimmerman called Krigel and suggested that the birth parents receive counseling outside their parents' presence. (19) Already knowing Birth Mother was working with Merryfield seeking an adoption, Krigel proposed the birth parents meet with Merryfield. (20) During this call, Krigel told Zimmerman the child would not be adopted without the Birth Father's consent. (21) After meeting with the birth parents, Merryfield reported to Krigel that Birth Father did not want to consent to an adoption, but she believed that Birth Father would not contest the adoption because she felt he was "quiet, sad, and passive." (22)

   Birth Mother contacted Birth Father in late March--intending to deceive him--and falsely claimed that her due date had changed from early April to early May. (23) The child was born, and neither Birth Father nor Zimmerman was informed. (24) Next, Birth Mother attended a hearing in Jackson County, Missouri, to terminate her parental rights and move forward with the adoption on April 6, 2010. (25) Both Birth Father and Zimmerman failed to attend because neither was aware of the hearing. (26) Responding to Krigel's question at the hearing, Birth Mother agreed that "Birth Father had been consulted at length about the matter." (27) Krigel also asked Birth Mother: "[E]ven though you've talked to him and his family at some length, he has not stepped forward since the birth of the child claiming any rights to the child"; and she agreed. (28) The court terminated Birth Mother's parental rights and transferred custody to the prospective adoptive parents. (29) Birth Father intervened in the adoption proceedings after learning of the child's birth, and the trial court awarded legal and physical custody to Birth Father on May 6, 2011. (30)

   The OCDC filed an Information against Krigel in 2014, and the DHP (discussed below) conducted an evidentiary hearing--it recommended suspending Krigel indefinitely, without leave to apply for reinstatement, for six months. (31) The OCDC (Missouri's investigative disciplinary body) accepted the recommendation, but Krigel did not--believing no sanctions should be imposed--and appealed to the Supreme Court of Missouri. (32) The Supreme Court of Missouri found that Krigel violated the Missouri Rules, specifically Rules 4-3.3(a)(3) (knowingly offering false evidence), 4-4.1(a) (making a false statement of material fact), 4-4.4(a) (improperly burdening or delaying a third person), and 4-8.4(d) (engaging in conduct prejudicial to the administration of justice). (33) The court stayed Krigel's suspension, subject to his completion of two years' probation, according to court-imposed conditions. (34)

3. LEGAL BACKGROUND

   Lawyers, as professionals, must exercise a high degree of skill and care, and ethical behavior is part of that skill and care. (35) This Part looks at the ABA's function in articulating and enforcing legal ethics. Next, it analyzes Missouri's legal ethics laws and synthesizes Missouri case law that deals with Rule 4-3.3(a) violations, which involve lawyers who knowingly present false evidence. The court cited all of the cases discussed below in deciding Krigel's fate.

   1. The ABA's Role in Legal Ethics

      One of the ABA's goals is to improve the legal profession. (36) A related objective is to "[p]romote competence, ethical conduct[,] and professionalism." (37) Against this backdrop, the ABA has helped develop the ethical framework governing lawyer behavior for over a century. (38) In an effort to proactively encourage lawyers to act ethically, the ABA, in 1908, promulgated the Canons of Professional Ethics ("Canons"). (39) In 1969, the ABA replaced the Canons with suggested disciplinary rules when it adopted the Model Code of Professional Responsibility ("Model Code"). (40) The ABA approved the Model Rules of Professional Conduct ("Model Rules") in 1983 to address some important problems lawyers were facing that the Model Code did not adequately address. (41) The ABA continues to revise and publish the Model Rules, and while they are not law, the Model Rules have been very influential in most states. (42)

      Lawyer discipline is meant to serve three main functions. It aims to protect the public, ensure the administration of justice, and maintain the integrity of the profession. (43) The ABA promulgated the Standards for Imposing Lawyer Sanctions ("Standards") to increase disciplinary consistency in 1986. (44) The Standards instruct courts to consider the following when disciplining a lawyer: (1) the duty violated, (2) the lawyer's mental state, (3) the actual or potential injury the lawyer's misconduct caused, and (4) any aggravating or mitigating factors. (45) Aggravating factors relevant to Krigel's case include: (1) multiple offenses, (2) a refusal to acknowledge the conduct's wrongful nature, and (3) substantial experience practicing law. (46) The only mitigating factor mentioned in Krigel's case was the absence of a prior disciplinary record. (47)

      Model Rule 3.3(a) seeks to ensure candor toward the tribunal; it instructs that a "lawyer shall not knowingly... offer evidence that the lawyer knows to be false." (48) Further, a lawyer shall take reasonable remedial measures if he, his client, or his witness offers material evidence and the lawyer later learns the evidence is false. (49) If necessary, a lawyer shall inform the tribunal about the false evidence. (50) Under the Standards, generally, a lawyer should be disbarred if he intends to deceive the court in making a false statement or withholding material information and injures a party or adversely affects the legal proceeding. (51) For less serious violations, a lawyer should generally be suspended if he knows false statements are being submitted to the court, fails to take remedial action, and a party is injured or the legal proceeding is...