Saturday, October 10, 2020

Transparency In Missouri

Two recent arguments before the Missouri Supreme Court are summarized and linked on the court's web page.

Disciplinary Counsel seeks disbarment in both matters. 

October 6

In re: John E. Tresslar
St. Louis
Attorney discipline  
 
Listen to the oral argument: SC98544 MP3 file The chief disciplinary counsel was represented during arguments by Shevon L. Harris of The Harris Law Firm in St. Louis; Tresslar was represented by Michael P. Downey of Downey Law Group LLC in St. Louis. 
 
A man retained St. Louis attorney John Tresslar to represent him in personal injury and workers’ compensation cases. In 2012, the man and his employer’s insurer settled the workers’ compensation claim and sent Tresslar notice of its subrogation claim in the personal injury case against a third party. In September 2013, Tresslar settled the man’s personal injury claim and disbursed the proceeds. He retained $51,220 to satisfy the insurer’s lien but did not disburse it. In March 2016, the insurer sued Tresslar and his former client, seeking the subrogation monies it was owed. Without the man’s knowledge or consent, Tresslar filed answers on the man’s behalf. In March 2017, the circuit court entered a judgment against them, but Tresslar did not inform the man about the judgment and did not satisfy it for two and a half years. In 2016, a father paid $8,500 to retain Tresslar to represent his daughters in separate matters. After more than a year with very little progress and Tresslar’s failure to respond timely to his inquiries, the father in June 2017 terminated Tresslar’s representation and requested his file and a refund of his retainer fees. After multiple follow-up inquiries over approximately five months, the father received a $4,500 refund check with no billing statement or invoices detailing services rendered to earn the remaining $4,000. After the father filed a complaint with the chief disciplinary counsel’s office, Tresslar sent the father an undated bill for $4,000 for services rendered, reflecting an entry for “begin draft of lawsuit.” During its investigation, the chief disciplinary counsel’s office audited Tresslar’s operating and trust accounts. The audit revealed Tresslar did not maintain individual client ledgers for the trust account, did not maintain a receipt and disbursement journal, moved funds from his trust account to his operating account without maintaining adequate records documenting the reasons for the transfers, allowed the trust fund balance to fall below the amount of necessary client funds that should have remained in the trust account, and received funds on behalf of clients but failed to make payments on their behalf or remit to them what they were owed. The chief disciplinary counsel instigated disciplinary proceedings against Tresslar. At the hearing, Tresslar testified he was experiencing emotional and personal problems during part of the time in question, including treatment for leukemia and marital problems. He also testified he ultimately paid clients or third parties the amounts they were due and had made changes to his trust accounting practice. He characterized his conduct as selfish but not reflecting a dishonest motive and testified about his pro bono and charitable work and involvement with community and legal organizations. The disciplinary hearing panel found Tresslar had violated several rules of professional conduct, had dishonest motives and was dishonest during the investigation, and had engaged in a pattern of misconduct. The panel recommended Tresslar be disbarred. Tresslar rejected the recommendation. The chief disciplinary counsel asks this Court to disbar Tresslar; Tresslar argues his conduct and mitigating evidence support no more than an indefinite suspension.
 
This case presents two questions for this Court – whether Tresslar violated rules of professional conduct and, if so, what discipline, if any, is appropriate. 
 
 
September 23
 
In re: Eric F. Kayira
St. Louis County

Attorney discipline  
Listen to the oral argument: SC98531 MP3 file
The chief disciplinary counsel was represented during arguments by Shevon L. Harris of The Harris Law Firm in St. Louis; Kayira was represented by Michael P. Downey of Downey Law Group LLC in St. Louis. 
 
In 2012, St. Louis County attorney Eric Kayira began representing a decedent’s estate. On behalf of the estate, he sued Bank of America, alleging the bank wrongfully disbursed the decedent’s funds before his death under a purported power of attorney. The estate was under the supervision of the probate division, but Kayira failed to get its authorization before filing or pursuing the lawsuit on the estate’s behalf. In 2013, all without the probate division’s authorization or knowledge, Kayira entered into a confidential settlement agreement with the bank for $12,500, deposited the settlement check – made out to Kayira’s law firm but not the estate —into his operating account, used the funds to pay personal representative expenses related to the bank case, and dismissed the case against the bank. He then petitioned the probate division to convert the estate from a supervised estate to one with independent administration without bond, stating in his petition he still was searching for assets through the lawsuit against the bank. The probate division, unaware Kayira had settled the case and deposited the settlement check, granted his petition. In 2015, Kayira moved to withdraw from representing the estate. At a hearing on his motion, the probate division advised him the settlement check was an asset of the estate and should have been deposited into the estate’s account, not Kayira’s operating account as an earned legal fee, and ordered him to pay $12,500 into the estate’s account. Kayira later canceled his motion to withdraw, and the probate division reported his conduct. The chief disciplinary counsel instituted disciplinary proceedings against Kayira. During the investigation, Kayira remitted two checks to the estate: a $12,500 check drawn on his trust account and a $3,375 check drawn on his operating account, representing interest accrued on the settlement check. He ultimately stated the source of the $12,500 was not the original bank settlement but rather his share of attorney fees from an unrelated case. An audit of Kayira’s accounts showed he had used the bank settlement proceeds in part to pay his landlord. The audit also showed he did not maintain certain trust account records, did not reconcile his trust account, deposited client funds into his operating account, and transferred money from his trust account to his operating account without proper documentation. In addition, the audit revealed issues with how Kayira had handled fees paid by a number of clients and settlement checks he received on their behalf. During a hearing, Kayira did not dispute the investigator’s testimony about his accounts and transactions and admitted he used some of the funds improperly. In mitigation, Kayira testified he was experiencing personal difficulties during the time in question, later sought treatment, had taken a trust accounting class, had incorporated new software in his law office, and was involved in the community. The disciplinary hearing panel found Kayira had violated a number of rules of professional conduct; it found several factors in aggravation of punishment but none sufficient to mitigate punishment. The panel recommended he be disbarred. The chief disciplinary counsel accepted the panel’s decision; Kayira rejects it, asking this Court to find his conduct and evidence of mitigation support imposition of an indefinite suspension.
 
This case presents two questions for this Court – whether Kayira violated rules of professional conduct and, if so, what discipline, if any, is appropriate.
 
SC98531_chief_disciplinary_counsel_brief 
 
(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/10/two-recent-arguments-before-the-missouri-supreme-court-are-summarized-and-linked-on-the-courts-web-page-disciplinary-counse.html

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