In Re Coe

COVINGTON, Judge,

dissenting opinion.

I must dissent. I cannot join the principal opinion because it condones abuse of the motion for rehearing, undermines the entire disciplinary process, gives credence to an apology extracted under duress, and applies an inadequate sanction.

Respondent’s conduct giving rise to the present proceeding occurred in 1990. On November 22, 1994, this Court handed down an opinion, in which I joined, suspending respondent from the practice of law for six months as a sanction for her unprofessional conduct. Judge Benton concurred in the opinion, writing:

To date, Respondent has made no sincere public apology for her conduct before Judge Stevens. In fact, Respondent’s brief blames Judge Stevens for the conduct. ... Respondent has never indicated that she will not engage in future disruptive conduct before a court_ [A] sincere public apology by Respondent during the fifteen days after this opinion as well as some indication that she is committed not to engage in such conduct in the future (referenced in an appropriate motion for rehearing) might well lead me to reconsider imposing a six-month suspension. However, in the present posture, I concur with the Court.

On November 30, 1994, respondent sent a letter of apology to Judge Stevens.1 This *921Court granted respondent’s motion for rehearing on December 20, 1994.

To position itself to consider respondent’s post-opinion apology, the principal opinion completely disregards precedent and makes a mockery of the purposes of rehearing. “The purpose of a motion for rehearing is to call attention to material matters of law or fact overlooked or misinterpreted by the court, as shown by its opinion. Reargument of issues determined by the court will be disregarded.” Rule 84.17. New issues raised for the first time in a motion for rehearing are not to be considered. Phippin v. Missouri Pac. R.R., 196 Mo. 321, 93 S.W. 410, 418 (1906) (“To recognize the practice of injecting into a case for the first time after a final judgment and opinion by the Supreme Court a new proposition would be subversive to all our rules of practice and directly in the teeth of all our rules.”). Refusal to address new issues on a motion for rehearing has been the consistent practice of Missouri courts. Ford v. Wabash Ry., 318 Mo. 723, 300 S.W. 769, 778 (1927); Allen v. Globe-Democrat Publishing Co., 368 S.W.2d 460, 467 (Mo.1963); Graf v. Wire Rope Co. of America, 861 S.W.2d 588, 592 (Mo.App.1993). Respondent sought rehearing based on matters not in the record that occurred after the Court’s opinion was handed down. I cannot join the principal opinion because it casts aside this Court’s rules and precedents without justification.

The principal opinion disregards precedent in another significant respect and undermines the disciplinary process. The opinion sets the stage for respondents in subsequent disciplinary proceedings to come forward as supplicants after the fact. There is ample opportunity prior to a lawyer’s arrival in this Court for the lawyer to take steps to mitigate the effect of the lawyer’s misconduct. This Court’s lawyer-discipline decisions should be final. To set a different precedent invites laxity in lawyer conduct, one of the very problems the Court is attempting to address in its efforts to improve the public confidence in the profession and in the legal system.

Questions regarding the sincerity of respondent’s apology compound the injury to the process. Respondent has more than once flaunted her disrespect for the courts and the legal process. In 1988, respondent disrupted a criminal trial, at which she represented the defendant, by making disrespectful comments to the court. Respondent abruptly left the proceedings, taking with her the case file and leaving her client without adequate representation. Respondent was admonished for violating nine disciplinary rules. Undaunted, respondent declared that she would, if she thought it necessary, engage in the same misconduct in the future.

True to her word, if not to the ethical requirements of her profession, respondent disrupted another trial. Respondent was cited for contempt four times during the course of the Dowdy trial in 1990. She was released from the custody of the United States Marshal only after apologizing to the trial court. Her brief before this Court, however, revealed that respondent was anything but contrite. Respondent maintained that her outbursts were justified by the improper conduct of the trial court. At oral argument, respondent’s counsel endeavored to defend respondent’s conduct as justified in the “heat of battle.”

Only after this Court rendered its opinion suspending respondent and Judge Benton suggested in his concurrence that he might *922reconsider the sanction if respondent apologized did she conclude that her actions had been “unprofessional,” “unnecessary,” and “wrong.” Respondent is now eager to have the Court believe that she “will never engage in conduct of this nature again....” Her sudden about-face is entirely inconsistent with her attitude in the four years between the Dowdy trial and this Court’s original judgment. After four years during which she had ample time to reflect on her conduct, only the spectre of suspension induced respondent to proclaim her contrition.

Respondent has a history of refusing to apologize unless under duress. In the 1988 incident, respondent returned to represent her client only after the trial court issued a subpoena ordering her to return the ease file. Respondent apologized to the trial court after her fourth contempt citation in the Dowdy trial only in order to secure her release from custody. In view of respondent’s past actions and the circumstances under which it was rendered, I cannot accept as sincere an apology extracted on pain of suspension.

Finally, I cannot join in the principal opinion because reprimand is an insufficient sanction. This Court has turned to the ABA Standards for Imposing Lawyer Sanctions (1986) for guidance in its most recent disciplinary opinions. See In re Warren, 888 S.W.2d 334 (Mo. banc 1994); In re Frank, 885 S.W.2d 328 (Mo. banc 1994); In re Oberhellmann, 873 S.W.2d 851 (Mo. banc 1994); In re Griffey, 873 S.W.2d 600 (Mo. banc 1994). The first reported case to apply the ABA Standards was In re Storment, 873 S.W.2d 227 (Mo. banc 1994).

There is no basis for deviation in this case. Rule 6.22, ABA Standards, provides that suspension is the appropriate sanction when a lawyer knowingly interferes with a legal proceeding. Reprimand is appropriate in this context only when the lawyer negligently causes interference. Rule 6.23, ABA Standards. There can be no doubt, as noted by the principal opinion, that respondent “intentionally disrupted the trial.” Indeed, as noted by Judge Benton in his original concurrence, respondent’s position when this cause was first submitted was that her actions were appropriate under the circumstances. Suspension is the appropriate sanction.

As the principal opinion notes, reprimand is generally appropriate, absent aggravating circumstances, when a lawyer has received an admonition for the same or similar conduct in the past. Rule 8.3(b), ABA Standards. Respondent has been admonished for similar misconduct. In addition to the clear applicability of Rule 6.22, ABA Standards, calling for suspension, several aggravating factors appear in the present case rendering reprimand inappropriate under Rule 8.3(b), ABA Standards: prior disciplinary offenses, Rule 9.22(a), ABA Standards; a pattern of misconduct, Rule 9.22(c), ABA Standards; multiple offenses, Rule 9.22(d), ABA Standards; respondent’s refusal, until coerced, to acknowledge the wrongful nature of her conduct, Rule 9.22(g), ABA Standards; and substantial experience in the practice of law, Rule 9.22(i), ABA Standards. Two potential mitigating factors are timely good faith efforts to rectify the consequences of the misconduct, Rule 9.32(d), ABA Standards, and remorse, Rule 9.32(1), ABA Standards. Both are notably absent in this case.

I would suspend respondent from the practice of law for six months.

. The letter reads in full:

Dear Judge Stevens:
Sir, I would like to take this opportunity to apologize for my conduct that constituted disrespect for your position as United States District Court Judge during the Gilbert Dowdy trial. I further apologize for the inconvenience, embarrassment, time and expense this may have cost the Court. My behavior was unprofessional and most importantly unnecessary in achieving a fair trial.
Upon reflection, I sincerely feel that I was wrong to engage in my confrontations with you during this lengthy jury trial, and to place our profession in a negative light to the general public and other jurist [sic].
I can assure you that this kind of disruptive confrontation with a trial judge will not again occur during my career as an attorney. I am sorry that my behavior has brought us to this point. This apology should have been made a long time ago to you and the Judges in the Federal Court. I have learned my lesson from this experience and will never engage in conduct of this nature again; that is disruptive to any judge I appear before.
I further assure you that I will never again publicly cast negative comments on your rulings as I did during the Dowdy trial and upon the disciplinary ruling made pertaining to that case by the Missouri Supreme Court. I regret making any public statements that would seem negative upon the judiciary and the justice system. I am wholeheartedly committed not to engage in such conduct or make any statements, in the future, that seek to define or bring about distrust of the public to our profession or the judicial system. *921I further apologize to my colleagues and fellow members of the bar for any embarrassment that my conduct has brought to our chosen profession. I will strive to represent those standards that are required of all of us that practice law and to respect them.
Once again, Judge Stevens, I regret this unfortunate incident and can assure you it will not happen again in Court. I ask your acceptance of this apology for my behavior, my disrespect, and my poor choices of conduct during the trial.
I am making available a copy of this letter of apology, in this matter, to the Chief Disciplinary Counsel, the President of the Missouri Bar Association, President of the Kansas City Bar Association, the Kansas City Star and the Daily Record. I am requesting, under a separate letter, that the Kansas City Star and the Daily Record publish this letter.
I am available at your convenience, should you wish to discuss this matter personally.
As always, I remain,
Very truly yours,
/s/ Carol A. Coe