Thursday, January 14, 2021
The Missouri Supreme Court has disbarred an attorney, rejecting mitigation claims without supporting evidence
The parties agree that, over a period of approximately five years, Eric F. Kayira repeatedly failed to notify clients he had received funds belonging to them, engaged in a pattern of depleting his clients’ funds—frequently to make payments owed to other clients—and misappropriated client funds to pay for personal and firm expenses. As Mr. Kayira acknowledges, disbarment is the baseline sanction for knowingly converting client funds and is the sanction recommended by the disciplinary hearing panel (“DHP”) and the office of chief disciplinary counsel (“OCDC”).
But, Mr. Kayira argues, this case presents the kind of unusual circumstance in which consideration of mitigating factors should result in imposition of the lesser sanction of indefinite suspension. He notes that, at the time of his conduct, he had serious personal problems, including—he claims without providing any medical support—alcohol abuse and depression. He also was recently divorced. The DHP considered this information but found it did not sufficiently mitigate Mr. Kayira’s wrongful conduct so as to lessen the appropriate sanction from disbarment to suspension.
Mr. Kayira asserts the DHP was unaware he also suffered from bipolar disorder because he did not discover it himself until after his disciplinary hearing and Rule 5.285 did not permit him to raise this mental disorder as a basis for mitigation of the sanction once he had filed his answer. If he had been permitted to raise it, he argues, it would have resulted in a lesser sanction, citing In re Belz, 258 S.W.3d 38 (Mo. banc 2008).
Mr. Kayira is incorrect. Unlike in Belz, Mr. Kayira offered no medical evidence to support his claim of a mental disorder, and an unsupported allegation of such a disorder is inadequate to invoke the mitigation features of Rule 5.285. And contrary to Mr. Kayira’s assertion that one cannot offer such evidence after the answer is filed, Rule 5.285(b) expressly permits an attorney to raise the issue of a mental disorder out of time if good cause is shown. Not only did Mr. Kayira fail to provide any proof of good cause, he failed
to even seek permission to raise this defense or offer any evidence in support of it. Finally, unlike in Belz, he did not show additional mitigating factors such as self-reporting and voluntary restitution before the information was filed.
In light of Mr. Kayira’s pattern of mishandling and misappropriating client funds, and the lack of sufficient mitigation evidence, this Court disbars him.
I use the court's Belz decision in my teaching. (Mike Frisch)