Ethics: Admonitions: Examples of the most common disciplinary sanction
Vol. 78, No. 3 / May - June 2022
Cecilia Young is staff counsel for the Office of Chief Disciplinary Counsel in Jefferson City.
In 2021, the Office of the Chief Disciplinary Counsel received 1,692 complaints against lawyers and issued 70 admonitions – the most common and lowest form of sanction in the disciplinary process.
The Rules of Professional Conduct allow the OCDC, Regional Disciplinary Committee, or a division thereof to issue an admonition following an investigation when there is a determination that there is probable cause to believe that the lawyer committed professional misconduct.2 If the Chief Disciplinary Counsel, a majority of the Regional Disciplinary Committee, or a majority of a division finds that the lawyer’s conduct is of such nature that further proceedings are not warranted, a written admonition may be administered to the respondent.3 Admonitions do not restrict a lawyer’s ability to practice and are for minor rule violations that do not warrant formal discipline by the Supreme Court of Missouri. Like other sanctions, once the admonition is accepted, it is a public document and part of the lawyer’s record.4
Many lawyers are aware of the problems that arise when they don’t provide clients with adequate communication or procrastinate and fail to act with diligence on client matters. Of the 1,692 complaints OCDC received in 2021, 328 complaints were opened based on Rule 4-1.4 Communication violations, and 259 were opened based on Rule 4-1.3 Diligence. However, failing to promptly return phone calls and communicate with clients or act with diligence on client matters are not the only behaviors that lawyers need to avoid. There are numerous other actions, and in some cases inactions, that are in violation of the Rules of Professional Conduct and can lead to admonitions.
The following admonition summaries are intended to provide information and guidance to lawyers to avoid conduct that could result in the issuance of an admonition.
Secretly recording conversations with clients
A lawyer recorded conversations with clients without notifying them that they were being recorded and/or without obtaining the clients’ consent. The lawyer received an admonition for failing in their duty of loyalty to their clients and violation of Rule 4-1.4. This rule provides that a lawyer shall keep the client reasonably informed about the status of a matter. In addition, Missouri Advisory Committee Formal Opinion 123 further explains that if an attorney is recording a conversation with a current client, “the attorney must give some notice to the client that the attorney is, or may be, recording the conversation.” The notice could be given at the onset of the recording or the lawyer could have previously informed the client that the lawyer records conversations from time to time, which would eliminate the need to notify the client each time.
Unauthorized practice of law due to CLE suspension
A lawyer’s Missouri license was suspended for failing to complete the required continuing legal education credit hours or file an exemption. The lawyer was not practicing in Missouri and did not timely report CLE hours or an exemption for two reporting years. Because the lawyer was not practicing in Missouri, the lawyer was not required to complete or report credit hours to The Missouri Bar’s MCLE department. The lawyer was, however, required to report an exemption from the reporting requirement. Had the lawyer changed their classification to Category 3, they would not have had to report even the exemption.
The lawyer received an admonition for violation of Rule 4-5.5(a), which states “a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so.”
Communication with a minor without the presence of the guardian ad litem
While representing a father in a custody dispute, the lawyer met privately with a minor outside of the presence of the guardian ad litem. The lawyer received an admonition for violation of Rule 4-4.2, which states that a “lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
Respect for rights of third persons
While representing a client in a domestic matter and responding to an email from the lawyer’s client, the lawyer inadvertently also sent the message to the opposing party. When the opposing party replied to the email telling the lawyer not to email them, the lawyer responded directly to the opposing party by crudely insulting the opposing party.
The lawyer received an admonition for violation of Rule 4-4.4, which states, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or use methods of obtaining evidence that violate the legal rights of such a person.”
Commission of a criminal act
The lawyer pled no contest to a misdemeanor marijuana possession charge for an incident that occurred in another state. The lawyer received an admonition for violation of Rule 4-8.4(b), which identifies as professional misconduct commission of a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
Duties to former clients
The lawyer represented a client in a criminal matter stemming from the client selling illegal cannabinoids. The United States’ Attorney’s Office filed a motion to disqualify the lawyer alleging that the lawyer had a conflict of interest. The US Attorney’s Office advised the court that the lawyer had previously represented four individuals who had supplied the synthetic cannabinoids to the lawyer’s client. The US Attorney’s Office also advised the court that the four suppliers might testify against the lawyer’s client at trial as they had entered into cooperation agreements with the government. The lawyer had not obtained the consent of his four former clients to represent the current client. The court found that a conflict did exist and removed the lawyer from the case.
The lawyer received an admonition for violation of Rule 4-1.9(a) that provides “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interest are materially adverse to the interest of the former client unless the former client gives informed consent, confirmed in writing.”
Conduct prejudicial to the administration of justice
During the representation of a client on a criminal matter and an administrative proceeding resulting from a motor vehicle accident, the lawyer served subpoenas – issued by the Missouri Department of Revenue in connection with the administrative proceeding – on several police officers. The subpoenas “commanded” the police officers to appear before the DOR “to testify” on behalf of the client in “an administrative hearing.” The police officers were to appear at the lawyer’s office. The lawyer did not provide notice to DOR’s counsel regarding the subpoenas served on the police officers. In fact, the subpoenas were not issued for the police officers to testify in an administrative hearing before the DOR. The true purpose of the subpoenas was to have the police officers appear at the lawyer’s office for depositions.
The lawyer received an admonition for violation of Rule 4-8.4(d) which states, “[i]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.”
Returning client files upon terminating representation
In a complaint to the OCDC, the client claimed that he sent his lawyer a letter requesting that the lawyer provide the client with his file. In the lawyer’s response to the complaint, the lawyer denied receiving the client’s letter and advised the OCDC that he would not return the file to the client unless the client paid the lawyer in advance to have the file copied.
The lawyer received an admonition for violation of Rule 4-1.16(d), providing that upon termination of representation a lawyer shall take steps to protect a client’s interests such as surrendering papers and property to which the client is entitled. In addition, Missouri Advisory Committee Formal Opinion 115 further explains that, per Rule 4-1.16(d), the file belongs to the client except for those things contained in the file for which the lawyer had borne out-of-pocket expenses, such as transcripts. The formal opinion further provides that if the lawyer wishes to retain a copy of the file, the lawyer, not the client, must bear the cost of copying the file.
Failing to respond to disciplinary counsel
The OCDC made numerous requests for information to the lawyer by telephone calls, emails, and letters. The lawyer did not have a telephone conversation with the OCDC until nine months after the initial request. After the telephone conversation, the lawyer took another 11 months to send a letter responding to the request for information.
The lawyer received an admonition for violation of Rule 4-8.1(c), which provides that a lawyer in connection with a disciplinary matter shall not “knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.”
Failing to act with reasonable diligence and expedite litigation
A client hired the lawyer to represent them in a slip-and-fall incident. During the representation, the lawyer did not respond to repeated requests from the insurance company to make a demand. The lawyer filed suit approximately four years after the client retained him, and the lawyer admitted that he failed to prosecute the case in a timely manner. In addition, because the lawyer failed to promptly serve the defendants, he had to seek dismissal without prejudice two years later. One year after the dismissal, the lawyer refiled the petition, but court records showed return information on defendants’ summonses were not on file.
The lawyer received an admonition for violating Rule 4-1.3, for failing to act with reasonable diligence and promptness in representing a client, and Rule 4-3.2, which states “[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”
Trust accounts and overdraft notifications
The lawyer’s bank notified the OCDC regarding the lawyer’s client trust account had been overdrawn. Review of the lawyer’s client trust account and additional discussions with the lawyer revealed that the lawyer was not maintaining a general ledger and the account was properly reconciled. In addition, it was discovered that the lawyer maintained a small balance of $100 in personal funds in the client trust account. The lawyer’s records also revealed that funds were disbursed from the account prior to allowing a “reasonable time” to pass to ensure the deposited funds were both “collected” and were “good funds.”
The lawyer received an admonition for violation of Rule 4-1.15, which requires a lawyer to maintain separate and adequate record-keeping of all client funds. The lawyer should have created systems to assure that client funds were protected. In addition, while a lawyer may deposit limited funds in the client trust account for the sole purpose of paying known bank service charges, the lawyer may not hold additional personal funds in the trust account for any other reason.
An admonition establishes a disciplinary history and may also be used to assist in evaluating the lawyer’s future conduct. Admonitions should be viewed as informative and as a warning to the lawyer that he or she may need to be more careful to ensure compliance with the Rules of Professional Conduct in the future.
1 Cecilia Young is staff counsel for the Office of Chief Disciplinary Counsel in Jefferson City.
2 Supreme Court Rule 5.11(a).
3 Supreme Court Rule 5.11(b).
4 Supreme Court Rule 5.31(b)(3).