Academic journal article Missouri Law Review

Picking Winners and Losers: The Subjectivity of Missouri Disciplinary Decisions

Academic journal article Missouri Law Review

Picking Winners and Losers: The Subjectivity of Missouri Disciplinary Decisions

Article excerpt

I. 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.

II. 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. …

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