Matter of Lowther

MORGAN, Judge,

dissenting.

I respectfully dissent for the following reasons:

As to Count I: (1) the factual findings and conclusions reached are not sustained by the evidentiary record presented; (2) the law applied, in effect, tends to disregard the long established rule that disciplinary proceedings are not designed “to punish the attorney”; and, (3) I reject the suggestion that there is something inherently wrong or ethically dangerous in an attorney participating with others, be they clients or otherwise, in legitimate business activities.

As to Count II: I do not believe that a disciplinary proceeding is an appropriate vehicle for resolution of financial disputes between law partners.

The general rule of appellate review found in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), does not apply to disciplinary proceedings. Although the “findings of fact and conclusions of law” found by the special master are helpful, they are merely *18advisory, and not binding. “[T]he ultimate responsibility for finding the facts is ours. It is our duty to make our own decision, In re Veach, 365 Mo. 776, 287 S.W.2d 753, 755 (banc 1956).” In re Weiner, 547 S.W.2d 459 (Mo.banc 1977).

I

First, we should find the facts concerning the allegation in Count I, with an outline of events made up of stipulated facts and undisputed testimony. In late 1964 or early 1965, respondent handled the legal work necessary to incorporate Founders of American Investment Corporation (hereinafter referred to as Founders), a holding company organized to form affiliated life insurance companies in states other than Missouri.

Founders was conceived and organized by W. E. “Tiny” Parker. Parker was the corporation’s largest stockholder, its president, and its chairman of the board. He selected all members of the board and was, by all accounts, a forceful and dynamic man who was the dominant figure in Founders.

Founders was a widely held corporation headquartered in Springfield, Missouri. It had an estimated 7,000 stockholders holding approximately 1,500,000 shares. “Tiny” Parker estimated that the directors owned about 190,000 to 195,000 shares. The board members at all times relevant to this inquiry were respondent, W. E. “Tiny” Parker, Lloyd Parker (Tiny’s cousin),1 Hubert Lay, Gerald Orscheln, James H. Carter, M. W. Crabtree, and Tim Murrell.

Respondent, Lay, and Murrell2 were all attorneys and handled the legal work of Founders. Lay and Murrell handled legal matters relating mainly to securities, stock issues, and the preparation of prospectuses. Respondent handled the litigation work for Founders as well as the incorporation and qualification of affiliated companies in other states.

In January 1968, a Founders shareholder, a Dr. Thomasson of Springfield, persuaded Parker to permit him to make a presentation to the board of Founders regarding certain mining claims in New Mexico and Arizona. These claims, about which Thom-asson was quite enthusiastic, were owned and controlled by U.S. Lime and Mining Corporation (hereinafter referred to as USLM) and Metals Corporation of America (hereinafter referred to as MCA). It should be noted that Thomasson was himself a shareholder and director of USLM. A Mr. E. M. Riebold owned most of the stock of USLM and was the general manager of both USLM and MCA. The Founders board became acquainted with Mr. Riebold through Dr. Thomasson, although Parker apparently already knew Riebold, both originally being from the same small town in Missouri.

After Dr. Thomasson’s presentation, the Founders board hired a highly regard geologist, Dr. William Hayes, to investigate the mining interest and to make a recommendation to the board.

In February 1968, Hayes traveled to New Mexico and Arizona to make a personal inspection of the properties involved. While there, he talked with various engineers, geologists and other knowledgeable parties and examined published geological information on the properties.

Respondent, Parker, and Crabtree accompanied Hayes on this inspection trip. Before, during, and after the trip, respondent made his own investigation concerning the proposed deal between Founders and Rie-bold’s two companies, USLM and MCA. During his investigation, respondent learned from Riebold that a joint venture was being negotiated between Riebold and Joseph Muller Corporation of Zurich, Switzerland (hereinafter referred to as Muller). Muller was to provide financing and technical assistance while Riebold, as general manager of USLM and MCA, was to supply *19the mining properties. The financing that Muller was to provide was anticipated to be “way up in the millions.” Respondent’s investigation revealed that Joseph Muller Corporation had an abundance of resources, credit and experience.

Even though Riebold owned the controlling interest in USLM, he had pledged his stock to one Harvey E. Yates as collateral for a loan in excess of $500,000. A letter dated November 15, 1967 from Muller showed concern that Riebold was not in complete control of the two companies which owned the mining claims.

On March 1,1968, at a special meeting of the Founders board, respondent made a report to the board on the results of his investigation of the proposed mining deals. He then introduced Dr. Hayes, who presented a written and oral report to the board. Hayes was glowing about the mining claims. Hayes’ report referred to the claims as being in a “strategic” location, close to operating open pit copper mines of Kennecott Copper and Phelps-Dodge, both major domestic copper mining companies. The report describes some of the land positions as “exceptional.” It spoke of a proposed $150,000,000 Phelps-Dodge project for mills and concentrating plants in the area. It made reference to another copper company, Copper Range, which had reportedly recently received $5,000,000 for sale of claims which were close to certain claims of USLM. The report mentioned a diatomite (material used in filters) area held by USLM, close to a claim of Drabo Corporation, which was supposed to be designing plant facilities with annual capacity of 25,-000 tons of diatomaceous earth, with planned future increases in 25,000 ton increments.

Hayes told the board that if he had $100,-000, he would invest $99,000 of it in the venture.

This was heady stuff and, after Hayes’ presentation, the board voted to redeem, for $250,000, Riebold’s USLM stock held by Yates and authorized Parker to negotiate with Riebold for the purchase of a 15% interest in mining land in which USLM had an interest, 15% in which MCA had an interest, and 3% and 4% interests in other holdings (the “Morenci” and “Klondike” deals, respectively) for $245,000, making a total investment by Founders of $495,000.

The next step was a trip by Parker and respondent to New Mexico, where Parker entered into negotiations with Riebold and Yates. Respondent sat in on some of the negotiations. Subsequently respondent prepared the agreement of March 6,1968 in which Founders agreed to pay $250,000 to redeem Riebold’s USLM stock which was pledged to Yates, and in addition, to pay $245,000 to USLM and MCA in consideration for undivided 15% interests in the assets of USLM and MCA as well as small interests in certain other properties. Also pursuant to the March 6, 1968 agreement, respondent was named to the board of directors of both USLM and MCA.

On March 14, 1968, the Founders board ratified the March 6, 1968 contract.

Not only was Founders enthusiastic about the chance for a quick profit; so were the Founders directors individually, so much so that seven of the eight directors decided to purchase an interest for themselves. Rie-bold had told Parker that an additional 5% interest was available.3

Parker then entered into negotiations with Riebold as to the terms of the seven directors’ investment. As a result of the negotiations, the seven individuals entered into an agreement, drafted by respondent, made with Riebold, USLM, and MCA dated March 29,1968, whereby the seven individuals agreed to and did pay $250,000, divided equally among them, for an undivided 5% interest in the mining properties of USLM and MCA, respectively, as well as smaller percent interests in certain other properties. The agreement also contained an option, good for two years, giving the seven di*20rectors, or however many of them chose to do so, right to buy an additional 2% interest for $100,000 more.

On August 17, 1968, the shareholders of Founders approved the board’s acquisition of the fifteen per cent interest for Founders. There was some evidence that after the formal meeting, the shareholders were also informed of the individual directors’ acquisition of the five per cent interest and that no objection was made.

As respondent points out, the $250,000 invested by the directors helped protect the Founders investment. In order to protect the mining claims, Riebold was required to do certain assessment work annually and provide proof of work with the state by August 31. The entire $495,000 put up by Founders for its 15% interest was used to retire the claim held by Harvey Yates against Riebold and his companies. According to the published annual report of USLM for the fiscal year ending March 31, 1968, the corporation had only $704.86 cash on hand, so the $250,000 provided badly needed working capital for Riebold.

Sometime in the spring or summer of 1968, after Founders had purchased the fifteen per cent interest and after the seven directors had purchased the 5% interest, Parker and respondent again traveled to Phoenix, Arizona on behalf of Founders to meet with Riebold and the Joseph Muller Corporation. Efforts were being made to work out the final details of the joint venture contract between Riebold and Muller. Although respondent was in Phoenix and talked with the principals, including Joseph Muller, he did not actually engage in negotiations. He left Phoenix, however, with the impression that a joint venture agreement was a foregone conclusion and that only certain details remained to be ironed out. It was of considerable importance that Muller be involved, because mining ventures and the drilling, extraction, milling and marketing of raw ore require huge amounts of money as well as technical expertise. Muller had a twenty million dollar line of credit with Chase Manhattan Bank and, as previously stated, its financing for Riebold’s ventures was to be “way up in the millions.”

In September, however, Muller began negotiating with Riebold’s brother on a different deal and by the late fall Muller had pulled out of the joint venture with Riebold. Respondent testified that he did not know the reason that Muller pulled out of the negotiations.

In any event, on October 16, 1968, the Founders board met and the board members learned that it would probably be three years before the mining operation would be developed. Founders had realized no cash flow from its investment in the mining claims. It sought other joint ventures to develop mining operations but such attempts were not successful.

On November 4, 1968, the Founders board again met and Parker announced that additional money was needed in order to get the mining facilities in New Mexico and Arizona into operation. Riebold and members of his mining engineering staff appeared in person and gave a report and stated that they needed an additional $460,-000. Riebold proposed to use the money to put into operation certain properties located in Old Mexico and expected that this would produce a substantial cash flow.4 The properties located in Old Mexico were unrelated to the mining operations located in Arizona and New Mexico in which Founders and seven individual board members had their respective interests.

Following the board meeting, the board members met informally and decided that they should not loan any more than $200,-*21000 to Riebold and his associates. That same day, Parker made arrangements for a $200,000 loan with the Empire Bank of Springfield. Riebold agreed to pledge all his interest in the mining operation as security for the loan. Riebold testified that Parker called him in Silver City, New Mexico about a week later to tell him the $200,-000 loan would go through.

Also at the board meeting of November 4,1968, the directors voted that Parker and respondent should make a trip to Old Mexico to inspect the properties for which Rie-bold wanted to use the money. They were also to visit the properties in Arizona and New Mexico and bring back their opinion as to the wisdom of the loan.

Accordingly, one or two days before Thanksgiving, 1968, respondent left for Old Mexico to investigate the mines and, on Thanksgiving Day, (November 28) Parker and Crabtree left for Old Mexico to join respondent. All three men investigated the properties in Old Mexico to determine whether Riebold’s investments were feasible. Respondent met with Mexican attorneys and with certain engineers to determine whether the leases on the mines were valid. The group that investigated the property in Old Mexico felt that it had a “lot of potential” because the price of silver was fair and the minimum wage at the site was $2.00 a day.

After inspecting the Old Mexico properties, Parker, respondent, and Crabtree went to Silver City, New Mexico where Parker and Riebold conducted negotiations regarding the proposed $200,000 loan from Founders to Riebold. Respondent was present during some of the negotiations and on the basis of those negotiations drafted an agreement sometime after his return to Springfield. This is the December 4, 1968 agreement.

A few days after negotiating with Parker in Silver City, Riebold, along with Ramon Rincon (an engineer and employee of Rie-bold’s) and Ira Long, (an officer of MCA and USLM), went to Springfield. Shortly thereafter, on December 4, 1968, Founders entered into an agreement with USLM, MCA, Riebold, Rincon and two Mexican corporations owned or controlled by Riebold. The agreement called for Founders to guarantee a loan up to $200,000 to the above-mentioned parties and for Founders to execute a promissory note for repayment of the loan. The loan was to be repaid by Riebold and his companies within one year. Founders was to receive 5% of all sums due from the smelter on both the Soyopa and Temas-caltepec properties.

It is the December 4, 1968 agreement, specifically paragraph 8 thereof, which forms the primary basis for the Advisory Committee’s allegations.5 In the last sen*22tence of paragraph 8, the $200,000 loan by Founders is conditioned on Riebold’s and the corporations’ first conveying a 2% interest to five of the Founders’ directors. This last sentence, drafted by respondent, reads as follows:

“E. M. Riebold, United States Lime and Mining Corporation and Metals Corporation of America shall immediately execute the necessary documents to convey the above mentioned two per cent (2%) interest and Founders of American Investment Corporation shall be under no obligation to arrange for the borrowing of the $200,000.00 mentioned herein, or any part thereof, until these deeds, assignments and conveyances are made and delivered.”

The “necessary documents” — namely, written assignment of interests in mining claims — were signed and acknowledged by Ira Long and lilis Harrington, Jr., each officers in both USLM and MCA on November 27, 1968. When Riebold went to Springfield to execute the December 4,1968 agreement on behalf of himself and his two mining companies, he took with him and delivered to Parker the two written assignments of the 2% interest, with the names of the grantees left blank. Apparently these assignments were delivered to Parker either December 3 or 4 and at that time Parker’s secretary typed in the names of the assignees at the direction of Parker. The five assignees were W. E. Parker, Lloyd Parker, respondent M. W. Crabtree and Hubert Lay.

It was also at this time that Riebold executed the first note guaranteed by Founders, dated December 3, 1968, and drew $152,000 on the Empire Bank of Springfield.6

There is little or no dispute that the facts are as set forth to this point. It is over the purpose and reason for the 2% assignment to respondent and his four associates that the dispute arises. For the facts on this aspect, we must retrace our steps slightly.

The reader will have noted that when Founders made its original investment, it paid a total of $495,000 for a 15% interest in the mining claims, or $33,000 per percentage point. When the seven directors bought in, however, they paid $250,000 for a 5% interest, or $50,000 per percentage point.

It also will be recalled that at the outset the plans were for a joint venture with Muller, which would supply the capital to put the claims into production. Expectations were high, but by October 1968 it became apparent that the joint venture with Muller would not materialize and that quick returns from the investment were not to be.

It is the position of respondent that because of the $17,000 difference per point between what the directors paid for their interest and what the corporation, Founders, paid for its and because Riebold had assured the directors that they would get their money back in six months or he would make up the difference in cost for them, Riebold was supposed to give the seven directors another 2%;7 that that is how the 2% came to be assigned to the directors and it was not part of the $200,000 loan at all; that the consideration for Riebold’s commitment was the extra $17,000 per point the directors had paid for their interest.

The Advisory Committee takes the position that the March 29, 1968 agreement where the directors bought their 5% interest for $250,000 says nothing about Rie-bold’s being willing to equalize or adjust their cost to that of Founders; that the *23only mention of an additional 2% is the option to purchase 2% for $100,000, good for two years; that as time went on and Rie-bold became desperate for operating capital, Parker and respondent used the leverage of the $200,000 loan Riebold was seeking from Founders to obtain the 2% interest from Riebold without paying anything for it.

Aside from the documentary evidence, discussed later herein, the evidence on the above question consists largely of the testimony of Parker, Riebold and respondent. Only respondent testified before the special master in person. The testimony of Parker and Riebold came from reading into the record excerpts from their testimony before the Advisory Committee during its formal investigation, where counsel was present on both sides. It developed during Riebold’s testimony that he was currently serving a five year sentence in a federal institution, stemming from conviction on December 19, 1975 in a federal court in New Mexico for violation of securities laws, not related, however, to any of the transactions before us.

Parker testified as follows as to what Riebold told him:

“We was also told by Riebold on the way back to the airport8 at the time that contract was executed that he was working on a deal on the Commonwealth claims, and he pointed to them right over there on the Santa Rita above the Kenne-cott pit there, which was impressive, and he was working on a deal to sell a group an interest in these claims for eight million dollars, and he said, ‘We will all have our money back when I sell this claim and we will be home free, and I will guarantee I will have it done within six months.’ ”

According to respondent Riebold told him,

“He said we would all have our money back within six months or he would make it up to us in some manner by issuing us some additional interest and he would guarantee it, it would happen in six months. If it did not, then he would treat us right. This is the words he told us.”
“ ‘We’re going to get our money back in six months because the Muller deal is going to be completed. They’re going to pay an entrance fee. Everything will be fine. And if you don’t then I’ll convey you another two percent, then that will bring your cost down to about what Founders paid for their interest’ ”

and

“ T guarantee you you’ll have your money back in six months, and if you don’t I’ll convey you another two percent to equal up your cost with what Founders paid.’ ”

Portions of Riebold’s testimony supported respondent’s position. For example, in answer to the following question:

“ ‘And your promise, as I understand it, was that if the Muller deal did not close in six months you would give these individuals another two percent so as to more equitably distribute their cost in the investment, is that correct?’ ”

Riebold replied:

“ ‘We had that general understanding at that time that I would fatten their position if we didn’t do something.’ ”

and later:

“ ‘That two percent is something that I agreed with Mr. Parker long before this contract [the loan]. I agreed that if I did not make the Muller deal I would deliver ... the two percent interest.’ ”

Riebold, referring to his negotiations with Parker, testified that,

“ he [Parker] wanted some more interest in our corporation for the deal that the officers of the company put up. He wanted to fatten his position to where they weren’t injured. Now, I don’t remember just exactly what I said or how I said it or what I did or anything else, but I do know that that is what we agreed on and I do know that I gave them the two *24percent under the same circumstances. I know that.’ ”

On the other hand, in cross-examination, Riebold said:

“ ‘QUESTION: You are saying — you got to the point where at one point in your testimony you said he didn’t directly say you wouldn’t get the loan and then you sort of paused.
“‘ANSWER: Sure. Do you want me to tell you why?
“‘QUESTION: Yes.
“ ‘ANSWER: Because even though he didn’t say it, and he may not have meant it, but you have to understand my position, and I in no way want to case [sic] any reflections against anyone, because that is going to get us nowhere. I needed the money, as I have told you before Mr. Parker was a tough negotiator, and I knew that I had to deliver that two percent one way or the other, and I felt like that I probably had better deliver it, but that was from Tiny Parker and—
“‘QUESTION: I understand, but the reason why you assigned—
“ ‘ANSWER: I don’t want to injure someone else.
“‘QUESTION: Why did you assign this two percent, because you were afraid you wouldn’t get the loan?
“ ‘ANSWER: To be perfectly honest, I didn’t feel like it was going to injure me and I felt like it would be more benevolent to everybody if I didn’t take any chance.
“ ‘QUESTION: So you just wanted to be sure you got the loan and you made the assignment to get it?
“ ‘ANSWER: I think that that would be an honest statement.’ ”

Riebold also testified as follows in a deposition in a suit brought by Founders against Riebold:

“ ‘QUESTION: On these assignments ... can you think of any reason why they should have executed ... other than compliance with the agreement?
“‘ANSWER: I don’t remember why.
“‘QUESTION: That would be your best guess as to why they were made?
“ ‘ANSWER: I usually don’t give anything away.’ ”

The special master found that Riebold had never been expressly threatened that if he didn’t convey the 2% he wouldn’t get the loan, but Riebold nevertheless “got the message.” I am not so sure that is what happened.

The fact is that much of respondent’s defense to Count I is based on hearsay — favorable testimony by him, Parker, and others as to what they said Riebold said he intended to do about the additional two per cent interest, offered to prove the truth of the matter asserted. Such hearsay is inadmissible for the purpose offered. State v. Granberry, 491 S.W.2d 528, 530 (Mo. banc 1973); State v. Healy, 562 S.W.2d 118, 125 (Mo.App.1978); cf. State v. DeGraffenreid, 477 S.W.2d 57, 63 (Mo. banc 1972); Missouri Evidence, 3rd Ed., The Missouri Bar (1980), § 8.1. Other than hearsay, what is left is the testimony of Riebold and respondent, plus the documents and surrounding circumstances. Respondent, of course, is personally involved; Riebold is not, although his credibility is subject to the fact of his conviction in federal court. Riebold’s testimony is equivocal. Some of it is to the effect that the assignment of the 2% interest was voluntary on his part, the fulfillment of what he all along said he would do; some of it, however, indicates that he arranged for the assignment of the 2% interest because it was the price of the $200,000 loan; without it, the loan would not have been made, although this latter testimony may be subject to the interpretation that regardless of the intention of Parker and respondent, Riebold was simply not going to take any chance of jeopardizing the loan. I doubt if Riebold’s testimony is sufficient to warrant a finding that respondent acted unethically. It comes close to falling in the category that when a witness says one thing on direct examination and the opposite on cross-examination, his testimony cannot be regarded as supporting either proposition. “Contradictory evidence of the same witness relied on to prove a fact does *25not warrant submission of such fact in the absence of an explanation or other circumstance tending to show which of the two versions is true.” Hamilton v. Patton Creamery Co., 359 Mo. 526, 222 S.W.2d 713, 716 (1949).

What about paragraph 8, and particularly the last sentence thereof, appearing in the December 4, 1968 contract prepared by respondent? The language is clear and direct — without the assignment of the 2% being first made, Founders is under no obligation to proceed with the loan. If Riebold had already promised to convey the 2% interest to the directors, including respondent, and if making the assignments had nothing to do with Riebold’s receiving the loan, it is most difficult to see why respondent provided for immediate execution by Riebold and his corporations of the assignments and that Founders was to be under no obligation to arrange for the $200,000 loan until the assignments were delivered. Amazingly, respondent was never asked directly and pointedly about this. Respondent’s explanation that Riebold had given them an oral promise and Parker told him (respondent), “Maybe you ought to throw something in there if somewhere on down the road we have to enforce it — and that’s —that’s what I did,” does not make very good sense. The words of the final sentence of paragraph 8 are not words of commitment on Riebold’s part by which he could later be made to perform. They are words requiring an assignment now, before Founders goes any further. In addition, an acknowledgement by Riebold that he had earlier promised or intended to convey 2% would be no more than that — it would have nothing to do with the $200,000 loan and there would be no consideration for it. It would not be enforceable. As the Advisory Committee points out in its brief, the parol evidence rule would be a serious obstacle to contending that the oral promise was part of the March 29, 1968 contract or the consideration therein recited, as tacitly admitted by respondent’s explanation of using the December 4,1968 contract to get something in writing. There is no claim of fraud or duress, so that escape from the parol evidence rule under that exception is not available. Section 432.010, RSMo 1978, the statute of frauds, would also be a bar, as there was no memorandum in writing concerning the promise to convey an interest in mining lands.

So respondent either meant exactly what he wrote, which clearly amounted to using the leverage of the badly needed loan to extract the additional 2% from Riebold for respondent and his associates, or else respondent was completely unaware of the effect and consequences of the provision he drafted. Either choice is difficult. It we take the former, it means that respondent was openly engaging in unethical conduct, something almost certain to come to light, which respondent took no pains to conceal and which was known to several others. It is almost as though respondent were indifferent to whether he was openly engaging in unethical conduct, with no regard for the consequences. This I find difficult to believe.

On the other hand, for respondent not to have realized the apparent tenor and significance of the way paragraph 8 was worded, particularly the last sentence, calls for abysmal denseness on the part of respondent. This, too, I find difficult to believe of a lawyer with respondent’s credentials.

The circumstances, too, are equivocal. The assignments of the 2% interest were dated and acknowledged November 27, 1968, which was prior to the signing of the December 4 contract, consistent with their not being a condition of the loan. On the other hand, the assignments were not delivered to Parker until on or about the day of the signing of the contract, which is consistent with their being a requirement for the loan. Parker was unable to give any explanation why, if he had the assignments prior to the signing of the December 4 contract and if the loan had nothing to do with the assignments, paragraph 8 was in the contract. The first part of the $200,000 loan— $152,000 — was formalized December 3,1968, by a note signed that date, which was actually a day before the December 4, 1968 contract. From this it might be said that *26paragraph 8 did not operate to put pressure on Riebold. But, on the other hand, the balance of the $200,000 loan was not turned over to Riebold until March 3,1969 and May 22,1969, when notes for $20,000 and $28,000 respectively, were signed, which was long after the assignments had been delivered, recorded, and in all respects put beyond recall by Riebold. But Parker and Founders agreed on November 4, 1968 to make Riebold the $200,000 loan, so it could be said that the assignment of the 2% interest was not a condition precedent at all. On the other hand, the November 4 decision was merely a declaration of intent by Founders, not a binding obligation. The money was not forthcoming until a month later, by which time the assignments were in Parker’s hands.

Out of all this, what we are left with is the conviction that there is not sufficient proof here to say with confidence that the charge is proven. “We have here a state of facts where a reasonable mind might conjecture that one thing happened, another that something else happened, and a third might not agree with either. Sound reasoning, however, does not point to the liability of the defendant to the exclusion of other causes. A verdict cannot be sustained by such evidence.” Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31, 33 (1938). The burden of proof that respondent violated any disciplinary rule rests upon the committee. The evidence and the reasonable inferences therefrom are too uncertain and equivocal to warrant our finding that respondent is guilty on Count I.

II

As initially noted, it is very questionable whether or not disputes between law partners as to the division of fees is a matter of “ethical” concern for this Court. At this moment, I do not believe that they are.

III

A proceeding such as this is not to punish an attorney but to protect the public. In re Randolph, 347 S.W.2d 91, 109[2] (Mo. banc 1961); In re O’Brien, 478 S.W.2d 310, 312 (Mo. banc 1972). I personally think that the questioned activity was an “in-house” operation, with little interest or concern by the public. Even if that thought is erroneous, whatever happened was twelve years ago and there is no present need to protect the public. Conduct of respondent as an outstanding attorney at law, otherwise, proves as much.

IV

If there must be “punishment”, certainly a reprimand would be adequate.

. Hereafter any reference to Parker means W. E. “Tiny” Parker, unless otherwise stated.

. Respondent was admitted to the Missouri bar in 1951 and Lay in 1928. Murrell practiced in Topeka, Kansas and was admitted to practice in 1949.

. Individual directors had on other occasions made investments parallel to those of Founders, pursuant to Parker’s tenet that if they could vote to invest Founders shareholders’ money in a project, they should have enough confidence to invest their own money in it.

. One of these properties was a tungsten property near Soyopa, Sonora, Mexico, about 70 miles east of Hermosillo. A partly completed mill was already in existence at the site. Rie-bold’s engineers estimated with an operation of 150 tons per day, the operation would produce net profits of $187,500 per month.

The other mine was a silver mine at Temas-caltepec, Federal District, Mexico, about 100 miles southwest of Mexico City. There was a 200 tons per day mill on the property which could be purchased advantageously. Riebold’s engineers estimated the net profits at $52,500 per month from the operation.

. Paragraph 8 of said agreement provided as follows:

“8. In consideration of the payment of Ten Dollars ($10.00) and other valuable considerations, the receipt and sufficiency whereof is hereby acknowledged, and as consideration for Founders of American Investment Corporation signing said notes not to exceed an aggregate sum of Two Hundred Thousand Dollars ($200,000.00), it is agreed that E. M. Riebold and United States Lime and Mining Corporation and Metals Corporation of America will convey and assign to W. E. Parker, Lloyd R. Parker, M. W. Crabtree, Hubert Lay and Gerald H. Howther, a two per cent (2%) interest in and to all properties now owned or hereafter acquired and in any properties or assets in which an interest is secured or maintained, legal or equitable, by E. M. Riebold, United States Lime and Mining Corporation or Metals Corporation of America. It is understood and agreed that the two per cent (2%) interest carries with it additional interest in the Morenci deal and the Klondyke deal referred to in the original contract with Founders and United States Lime and Mining Corporation and Metals Corporation of America and where they bought a fifteen per cent (15%) interest and received four per cent (4%) of the Klondyke deal and three per cent (3%) of the Morenci deal, that their interest in Morenci and Klon-dyke are increased proportionately. E. M. Riebold, United States Lime and Mining Corporation and Metals Corporation of America shall immediately execute the necessary documents to convey the above mentioned two per cent (2%) interest and Founders of American Investment Corporation shall be under no obligation to arrange for the borrowing of the $200,000.00 mentioned herein, or any part thereof, until these deeds, assignments and conveyances are made and delivered.”

. Riebold later executed two other notes: one for $20,000, dated February 28, 1969, another for $28,000, dated May 22, 1969.

. According to respondent, the reason only five of the directors got the 2% instead of all seven who had originally invested $250,000 for a 5% interest, was that two of the seven, Carter and Murrell, were unwilling to become involved any further because they feared they would be called upon to advance additional money from time to time for operating expenses. As it turned out, their apprehension was justified. While the record does not show what the others put up, respondent testified he advanced approximately an additional $30,000 for the Mexican operation. Altogether, respondent lost about $66,000 in the entire venture.

. While it is not exactly clear, apparently this conversation occurred in Silver City, New Mexico during the negotiations for the March 6, 1968 contract.