dissenting.
Given the holding in Bates and O’Steen v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), it may border on the ridiculous to speak of the practice of law as a profession and not a business.
However, being somewhat old-fashioned, I must express the view that a lawyer does not inevitably violate his obligation to seek the lawful objectives of his client when he treats opposing counsel with courtesy and consideration.
The position of The American Law Institute is that if “the party obtaining the judgment was on notice of facts indicating the neglect of the attorney * * *, that is a factor weighing in favor of relief.” Restatement (Second) of Judgments § 67 (1982).
In this case, attorney for plaintiff took a default judgment in the amount of $1,500,-000 on March 11, 1985. He was on notice of facts indicating the neglect of opposing counsel on March 29, 1985, when discovery motions were filed but was instructed by *894his client “to protect his judgment.” On April 22, 1985, after time had run under Rule 75.01, he advised opposing counsel of the default judgment. On May 3, 1985, motions to set aside the default judgment were filed. See Robinson v. Clements, 409 S.W.2d 215, 220 (Mo.App.1966). The trial court, in its discretion set aside the default judgment and, in my view, corrected what must be considered a miscarriage of justice.
“The action of a trial court in sustaining or overruling a motion to set aside a default judgment is generally within the trial court’s sound judicial discretion. * * * [And] it has been said that an appellate court is less apt to interfere when a judgment is set aside than when it is not. This is because, when the judgment is set aside, the case is reopened and justice will yet be done by a trial on the merits. * * Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116 (Mo.1955).
If I may conclude with a personal observation:
Judges at times become so enamored of jargon in codes of “professional” responsibility that they forget what it was like to practice law. Here, the attorney for plaintiff was directed by his client to conceal the taking of the default judgment from his brother lawyer. What was he to do in such circumstance? Should he have invited the wrath of his client and risked a claim of malpractice? Had he acted as a professional and not as a hired representative who did solely the bidding of his client, would/could this Court have protected him?
Of course, the equity due the parties, not the attorneys, is at issue here. And it was plaintiff Sprung who insisted on concealment and gained the advantage. In my view, equity demands that we affirm and require the parties to resolve their controversy by a trial on the merits.
I respectfully dissent.