In re Forck

ZEL M. FISCHER, Judge.

I respectfully dissent from the principal opinion. This Court suspended Nathan J. Forck’s law license, stayed the suspension, and placed him on probation in December 2007 for violating the rules of professional conduct and terms of a monitoring agreement imposed by the Missouri Board of Law Examiners for his admittance to The Missouri Bar. Following subsequent complaints filed against Forck in 2009, Forck and the Office of Chief Disciplinary Counsel (“OCDC”) entered into a joint stipulation admitting two violations of Rule 4-1.1, Competence, and three violations of Rule 4-1.5, Fees. Each of these ethical failures is a violation of Forck’s probation. Forck is before this Court to determine if probation should be revoked for these new violations of the rules of professional conduct. The principal opinion incorrectly treats these violations as if the Court should analyze the facts and circumstances to determine the appropriate discipline for new rule violations as part of an original disciplinary proceeding. Because Forck has violated the terms of his probation by engaging in conduct that violated the rules of professional conduct, I would revoke Forck’s probation and impose the previously ordered discipline suspending his license to practice law.

Statement of the Facts

A full account of Forck’s transgressions is set forth in the principal opinion. This statement of facts serves to clarify the procedural posture of this case and highlight the events that render revocation of Forck’s probation appropriate.

The Missouri Board of Law Examiners recommended that Forck be admitted to The Missouri Bar in 2006 subject to a *446monitoring agreement among the board, Forck, and the OCDC. The board had legitimate concerns about Forck’s prior excessive use of alcohol and arrests stemming from Forck’s alcohol abuse.1 The agreement required, among other things, that Forck abstain from the use of alcohol, attend group meetings for alcohol abuse, and report his attendance to an attorney monitor.

In May 2007, Forck was arrested and charged with third-degree assault following an altercation at a bar where he had been drinking alcohol. As a result, this Court indefinitely suspended Forck from the practice of law.' The Court stayed the suspension and placed Forck on probation for two years. One condition of his probation was that he would not “engage in conduct that violates the Rules of Professional Conduct.”

In January 2010, Forck moved this Court to issue an order of successful completion of his probation. The OCDC responded to that motion by stating that it had received a number of ethical complaints against Forck that were still under investigation. The OCDC indicated that, as part of its investigation, it had requested bank records from Forck. Forck failed to produce these records and even attempted to quash a subpoena issued to the bank for production of the requested documents. Due to the pending investigation, the OCDC recommended that this Court overrule Forck’s motion, which this Court did.

Despite his knowledge that he was1 under investigation by the OCDC for these additional violations of professional conduct during the period of probation, Forck filed a second motion for an order of successful completion of probation. Both motions filed by Forck attached an affidavit where he falsely swore he had not committed any violations of the rules of professional conduct during the probation term.2 In response, the OCDC indicated that Forck was to blame for any delay in the investigation, and this Court overruled Forck’s second motion.

At the conclusion of the currently pending OCDC investigation, Forck stipulated that he committed five new, separate rule violations in 2009 — two violations of Rule 4-1.1, Competence, and three violations of Rule 4-1.5, Fees. Forck also stipulated that these ethical violations caused harm to his clients. The violations are further detailed in the principal opinion.

The stipulation provides that the OCDC was acting pursuant to Rule 5.225, which governs probation in the attorney discipline context. The stipulation does not ask for any new discipline for these new violations, but rather recommends that these probation violations result in the Court extending Forck’s 2007 probation for one year. So not only does the OCDC not seek to revoke Forck’s probation, but it also does not intend to seek any discipline for these new violations of the rules of professional conduct.

*447Analysis

Based on Forck’s multiple disciplinary incidents, the multiple probation violations at issue here, his failure to comply with the OCDC’s investigation, and his two attempts to have this Court order the successful completion of his probation despite the ongoing investigation of complaints against him, this Court should revoke Forck’s probation and impose the suspension previously ordered as a result of the 2007 violations. In my view, this result is required because probation must mean something if it is to have any effect. Permitting attorneys to violate probation with little consequence sanctions bad behavior and damages the integrity of the legal profession, and, as stipulated, in this case caused harm to the public. Through his actions, Forck has demonstrated that he is no longer eligible for the probation imposed for his 2007 conduct. Accordingly, this Court should revoke probation and impose the originally ordered discipline.

To be clear, the OCDC is bringing Forck’s 2009 competence and fees violations to the attention of this Court as probation violations. The OCDC is not seeking any discipline for Forck’s 2009 conduct. Rather, the OCDC has stipulated that, despite Forck’s probation violations, this Court should extend the probation imposed for Forck’s 2007 misconduct. As such, this Court must decide whether, in light of the probation violations, Forck remains eligible for his 2007 probation— subject to an extended term as stipulated by the OCDC — or whether to revoke Forck’s probation and impose the suspension that this Court stayed in 2007, conditioned on Forck’s successful completion of probation. The principal opinion, however, does not answer this question. Instead, the principal opinion has incorrectly used the ABA Standards for Imposing Lawyer Sanctions to determine the appropriate discipline for Forck’s 2009 competence and fees violations, ultimately concluding that probation would be best.3

When examining probation violations in the attorney discipline context, Rule 5.225 guides this Court’s analysis. More specifically, Rule 5.225(f)(2) contains the procedure for probation violations and provides:

If the chief disciplinary counsel receives information during the period of probation that any condition may have been violated, the chief disciplinary counsel may file a motion in this Court specifying the alleged violation and seeking an order requiring the lawyer to show cause why the probation should not be revoked and further discipline imposed. Further discipline may include additional probation, suspension, or disbarment. The filing of the motion stays the expiration date of the period of probation until final action is taken on the motion.

Rule 5.225 dictates that, when reviewing probation violations, this Court must decide whether to revoke probation and impose the originally ordered discipline for the initial violations or whether cause has been shown why probation should not be revoked. This is typically accomplished by ordering the allegedly offending attorney *448to show cause why probation should not be revoked. Where, as here, the OCDC enters into a stipulation with the attorney, the issues before this Court are, in light of the admitted probation violations, does the OCDC’s stipulation adequately show cause why probation should not be revoked and does the recommendation adequately fulfill the purposes of attorney discipline. This Court has stated that the purpose of attorney discipline is to “protect the public and maintain the integrity of the legal profession.” In re Zink, 278 S.W.3d 166, 169 (Mo. banc 2009). Therefore, in the event Forck shows the required cause, this Court must determine whether additional probation will protect the public and maintain the integrity of the legal profession or if a suspension is necessary to serve either purpose.

Unlike when this Court imposes original discipline, there is little guidance for deciding the appropriate sanction in light of a probation violation. The ABA Standards for Imposing Lawyer Sanctions (1991 ed.) set out no standards regarding probation revocation proceedings.4 No reported case of this Court has dealt with the issue. Nor have any universal standards been developed for probation revocation in the reported cases of the other states. This increases the significance of the precedent established by the principal opinion.5

Rule 5.225, however, does provide some insight. As the principal opinion notes, Rule 5.225(a)(2) sets out the eligibility requirements for probation in the attorney discipline context. An attorney is eligible for probation if the attorney is: 1) unlikely to harm the public during the probationary period and can be adequately supervised; 2) is able to perform legal services and is able to practice law without causing the courts or profession to fall into disrepute; and 8) has not committed acts warranting disbarment. Rule 5.225(a)(2). When imposing discipline in 2007, this Court necessarily determined that, in light of these considerations, Forck was eligible for probation and the Court could stay his suspension.

It follows that, in determining whether Forck has shown cause why his probation should not be revoked through his stipulation with the OCDC, this Court should reevaluate whether Forck remains eligible for probation, taking into consideration his 2009 ethical failings. This evaluation permits the Court to examine Forck’s probation violations while still placing the proper emphasis on the procedural posture of this case. If — taking into consideration Forck’s initial 2007 conduct and his 2009 transgressions — Forck remains eligible for probation, then this Court could keep the probation in place and, as the OCDC recommends, extend the term.6 If, however, *449Forck’s conduct has rendered him ineligible for probation under Rule 5.225(a)(2), then this Court is left with little choice but to revoke probation and impose the stayed indefinite suspension.

In my view, upon his violation of the rules of professional conduct in 2009, Forck was no longer eligible for probation because he no longer could be considered “unlikely to harm the public during the probationary period” or “able to practice law without causing the ... profession to fall into disrepute.” Forck did, in fact, harm the public during his probationary period — at least five times. Forck’s violations admittedly harmed his clients, thereby showing he no longer could meet the first eligibility requirement. Forck’s violations have harmed the legal profession by undermining attorney credibility and competence in the eyes of his clients and anyone who reads the facts of this case, thereby showing he no longer could meet the second eligibility requirement.

Furthermore, Forck’s checkered disciplinary history weighs in favor of revoking probation and ordering the suspension because it shows both that Forck is likely to cause harm to the public and has caused the legal profession to fall into disrepute. Strike One: Forck was admitted to the bar under a monitoring agreement with the Missouri Board of Law Examiners because the board was concerned with a number of alcohol — related incidents that occurred prior to Forck’s application to the bar. As part of that agreement, Forck agreed to abstain from any alcohol use, attend alcohol — abuse meetings, and report his compliance with those conditions to an attorney monitor. Strike Two: Forck continued to drink alcohol and failed te verify his attendance at the meetings, and this resulted in an alcohol-related arrest and an assault in May 2007. Forck received suspension of his law license, which was stayed if he successfully completed two years of probation. Strike Three: Forck admits he committed five additional violations of the rules of professional conduct while on probation and that his elderly clients were harmed.

Forck also has stipulated that his 2009 rule violations caused harm to his clients. Forck has stipulated that, on two occasions, he failed to act with the level of competence demanded of the attorneys licensed to practice law in this state. Forck also has stipulated that, on three occasions, the fees he charged for the incompetent work that he performed violated the rules of professional conduct to the extent that he agreed to pay a total of $22,000 in restitution. Forck acknowledges that, in each instance, he caused harm to his clients.7 On one occasion, a client hired Forck to prepare estate-planning documents. He did not complete the documents until after his client was no longer competent to sign them, and the Ghent’s heir was forced to tender documents prepared by a different lawyer previously hired by the client to the probate court. Forck caused harm to one of the most vulnerable categories of clients, and admits that he has caused substantial harm. Considering the magnitude of the harm caused, Forck is, in my view, no longer eligible for probation.

Forck’s failure to comply with the ongoing investigations and his two attempts to obtain an order of successful completion of probation also weigh in favor of imposing the suspension because they have caused *450the profession to fall into disrepute. First, Forck failed to comply with the OCDC’s investigation of the 2009 violations by refusing to produce bank records and attempting to quash a subpoena for those records. This noncompliance obstructed and prolonged the OCDC’s investigation. Next, Forck filed two separate motions with this Court for an order of successful completion of probation with the knowledge that he was under investigation for rules violations. In each motion, Forck asserted that he had complied with all the conditions of his probation. Along with each motion, Forck filed an affidavit in which he falsely swore that he had complied with all the conditions of his probation. Forck now stipulates that he did not, in fact, comply with the conditions of his probation. Forck’s attempts to obtain an order of successful completion of his probation despite the ongoing investigation render him ineligible for probation and weigh in favor of imposing the suspension.

In my view, Forck is ineligible for continued probation, and his probation should be revoked. The OCDC and Forck argue, however, that Forck should be subject only to additional probation because his circumstances have changed in that he no longer abuses alcohol, he has fired the staff who allegedly led him astray, this is the first time that he caused harm to his clients, and he has begun paying restitution to the clients he harmed.

In my view, these “changed circumstances” do not justify the minimal consequence the parties request. The thrust of the argument for extended probation appears to be that Forck’s current violations are different from the cause of his original suspension. The fact that Forck’s vices have mutated from alcohol abuse to alcohol-related assault to incompetent representation of elderly clients and attorney fee abuse perpetrated on elderly clients does not instill any confidence that an extra year of probation protects the public or maintains the integrity of the legal profession.

Conclusion

This Court has an obligation to protect the public and maintain the integrity of the legal profession. Neither aim is served if attorneys face only light consequences for significant probation violations. This is particularly true where the probation violation is a violation of the rules of professional conduct that might, as the OCDC conceded at oral argument, have significant consequences if brought in an original independent proceeding. Extending probation here is effectively no consequence at all.

If probation is to have any effect or value in serving the purposes of attorney discipline, then probation violations must be met with real consequences, particularly when the probation violation is a subsequent violation of the rules of professional conduct.

In my view, the OCDC and the principal opinion have answered the wrong question. This Court is not now tasked with determining the appropriate sanction for Forck’s 2007 violations of the rules of professional conduct. It was already determined that those violations merited a suspension. Instead, the Court is tasked with the reality that staying Forck’s suspension and granting probation harmed the public and damaged the integrity of the profession. In light of the significant nature of the violations, I would revoke Forck’s probation and impose the previously ordered suspension because, in my view, Forck has demonstrated that allowing him the privilege to continue the practice of law is not worth the risk to the public or the reputation of the legal profession. This is so, particularly in light of the fact that Forck *451has not practiced law one single day in the six years since his admission to the bar without being subject to supervision.

. Historically, legitimate concerns such as are present in this case could have kept Forck from obtaining a license to practice law. The allowance of this type of agreement does serve the interest of applicants who want the privilege to practice law and who successfully complete alcohol treatment but, of course, does not necessarily protect the public or protect the integrity of the profession when treatment is not successful.

. Although not admitted in the stipulation, it is beyond dispute that Forck also violated paragraph 2 of his conditions of probation, which required Forck to submit a quarterly report which was to include "a written statement under penalty of perjury regarding whether Respondent has complied with the Rules of Professional Conduct and all conditions of probation during the preceding calendar quarter[.]”

. The principal opinion improperly treats the procedural posture of this case as if the OCDC sought the imposition of new discipline for Forck’s 2009 rule violations. The joint stipulation entered into between Forck and the OCDC, however, seeks to continue the stayed suspension and extend the term of probation entered for Forck's 2007 alcohol-related violation. The OCDC’s brief to this Court specifically states that, though it is authorized to do so, the OCDC is not seeking new discipline for the 2009 rule violations. Counsel for the OCDC conceded at oral argument that this result means Forck will, in effect, receive less discipline than an attorney who was not on probation and committed the same conduct.

. Although the commentary to the ABA Standards suggests possible consequences for a probation violation, it does not provide any standards to apply when deciding which consequence is appropriate. The latter issue is ultimately what is before the Court here.

. Prior to permitting probation, an attorney who had his or her license suspended, such as Forck, was not allowed to practice law unless reinstated. Actual suspension protected the public and maintained the integrity of the profession until the suspended attorney demonstrated rehabilitation and the competence to be reinstated.

.In a case like this one, where the OCDC does not intend to seek discipline for new rule violations that also constitute probation violations, the better question is: what would be the proper sanction if all the violations — the initial violations as well as the probation violations — had all been brought as an original matter at the same time? While the ultimate purpose for the present action is the disposition of the probation violation, the initial rules violations should not be forgotten.

. Though the OCDC’s stipulation has the rule violations listed in Counts I — III, Forck actually stipulated to five different rule violations: two violations of Rule 4-1.1 and three violations of 4-1.5. This amounts to five separate probation violations and the acknowledgement that each violation caused a client harm.