Original Proceeding - Disciplinary Proceeding Respondent Disbarred
The opinion of the court was delivered by: Welliver
The facts of this case tell the sad story of a lawyer who had an affair with a divorce client. He successfully dissolved her marriage but failed so miserably at dissolving the affair that the Advisory Committee of the Missouri Bar Administration has charged him with having engaged in conduct warranting disbarment. The Hon. Jack O. Edwards, Associate Circuit Judge, Twenty-Fifth Judicial Circuit was appointed as Special Master. A hearing was held and the master entered findings of fact and Conclusions of law and recommended that respondent be disbarred. In a disciplinary proceeding we must review the evidence, the credibility, weight and value of the testimony of the witnesses, and decide all fact issues necessary to a decision. In re Pine, 576 S.W.2d 538, 539 (Mo. banc 1979); In re Schiff, 542 S.W.2d 771 (Mo. banc 1976); In re Williams, 233 Mo. App. 1174, 128 S.W.2d 1098, 1101 (Mo. App. 1939).
The information contains three counts. In Count I, respondent is charged with anonymously engaging in a pattern of conduct designed and intended to harass his former client, "P", conduct which included writing anonymous letters to P, her friends, acquaintances, employer and others; and committing five acts of violence and vandalism against P and her property. Such conduct is alleged to be contrary to Missouri Supreme Court Disciplinary Rules DR 1-102(A)(3)(4) and (6). Count II charges respondent with disclosing confidential information received in a lawyer-client relationship, in contravention to Missouri Supreme Court Disciplinary Rules DR 4-101(B)(1) and (2). In Count III, respondent is charged with vandalism of a public building, pointing and then discharging a handgun at Security Personnel, and being found guilty of the felony of unlawful use of a weapon in violation of § 571.030(4). This conduct is alleged to be contrary to Missouri Supreme Court Disciplinary Rules DR 1-102(A)(3)(5) and (6).
On February 26, 1980, respondent met with and agreed to represent P in her dissolution proceeding. Although respondent was married, he sought to initiate an affair with P, and beginning on March 19 the couple engaged in sexual relations. In early August 1980, P moved from a central Missouri town where she formerly had resided and purchased a house in Kirksville, Missouri. On the 14th of that month, the couple met at the new house and celebrated the closing. During their celebration, P admitted to respondent that she had sexual relations with one D. This admission was apparently given in response to respondent's questions as to whether P had ever slept or had sex on a waterbed. The following week, on August 22, P's divorce settlement was finalized.
In October 1980, respondent separated from his wife, and the relationship between respondent and P warmed to the point that in November he moved into P's home in Kirksville. Respondent became friendly with P's teenage son, who was also living in the house, and took him fishing and hunting.
By late February 1981, their relationship was becoming increasingly unstable. P confessed to respondent that she had had a prior sexual encounter with another lawyer, R. As of mid-April, the affair had deteriorated to the degree that respondent was no longer living with P. During the ensuing months, respondent continued writing letters to P, P's son and to other relatives of P. He also wrote some business letters for P. Although P did not save all the letters written to her, she did save a number of the personal letters authored by respondent. These letters were admitted into evidence during the hearing before the special master. Some of the letters were mailed to P's home, while other were left under the windshield wiper of her car. Certain themes and characterizations run throughout these communications. Some of respondent's letters exhibit strong disapproval of P's dating men much younger than even herself. Respondent is approximately 30 years older than P.
We agree with the special master's finding that respondent's admitted letters went from pleasant to extremely hateful and vile as the relationship deteriorated. The master found:
[Respondent's] first letter in July, 1980, was addressed to "My dear, sweet P," and that same vein continued through February of 1981 when he opened with "My dear, sweet P." But after P terminated the relationship in March, 1981, he addressed her as "Dear P" or simply "Peggy" or "P". The only cordial greeting was in the July 8, 1981, letter to "Sweet P," but the content showed the same vile, hateful theme exhibited since March with more complaints about [her dating men younger than respondent and referring to one such person as the "kid",] a comment about the "cheap and tawdry things you have done," and prediction that in five years P's "looks will begin to go, those gorgeous breasts will begin to sag, the double chin and tenderloin will become permanent . . ." These later admitted letters are so vile and hateful the author must have intended to inflict extreme mental anguish upon the recipient.
After the March, 1981, break-up, respondent told P to leave town. In April respondent wrote: "My instincts tell me that you won't be in Kirksville much longer." There were also oral threats, including a threat against her if she reported respondent to the Bar.
Respondent's language in his letters to P also became coarser after March, 1981. In April he referred to her as a "midnite (sic) barroom pickup" and a "one hour punching bag," and said she was "debasing and degrading yourself." He reminded her of her one-night stand with D, knowing that this was an embarrassment to her.
The only positive note in respondent's letters after March, 1981, was his attitude toward P's teenage son, J. Respondent commented about J frequently in his letters to P. He wrote at least two letters directly to J.
On October 23, 1981, P received an unsigned letter. From the content of the letter, P identified respondent as the author. The letter frightened P and on October 26 she called Harold Barrick, Chairman of the Missouri Bar Administration, and told him about her affair with respondent and about the letter. Mr. Barrick called respondent and warned him against contacting or writing P. After this conversation P received a number of other "anonymous" letters. The content and tone of these letters left no doubt in P's mind that respondent was their author. She saved some of the letters, but apparently a number of them either she or her roommate burned.
The master found that these letters were either written or typed, or caused to be written or typed, by respondent. *fn1 Only respondent knew all of the personal details, events and facts described in the letters, and the anonymous letters contained nicknames and "words and topics were so much like those found in the admitted letters as to leave no doubt that respondent wrote all of the letters." The master also stressed the importance of other factors. First, P only recently had moved to Kirksville and her address was unlisted in the telephone directory. She knew only a few people in the city, one of whom was respondent, and all the letters were postmarked from Kirksville. Second, respondent often communicated with P by writing her letters. Third, the anonymous letters commenced after the letters admittedly written by respondent stopped; and the anonymous letters stopped after the police arrested respondent for a crime committed on April 13, 1982. Fourth, the anonymous letters contain themes found in the letters respondent admits to having written, such as exhibiting a concern for P's son and a preoccupation with P's dating "kids" or "boys."
Anonymous letters also were received by third parties. They contain unfriendly and debasing comments concerning P. One letter was mailed to a fraternity and it suggested that the members should call P if they wanted to have "a good time."
There can be little doubt that the same person wrote all of the anonymous letters. The master observed correctly that, in addition to common words and topics, there are references in some letters to previous anonymous letters and also references to future anonymous letters.
The special master also found that the author of these letters engaged in the acts of vandalism directed toward P. Many of the anonymous letters discussed past acts of vandalism or foretold future acts. Specifically, the master found:
of the letters referred to acts of vandalism already committed. Of even greater significance, however, is that nine of the letters predicted future acts of vandalism, and some predictions were so specific as to leave no doubt as to common responsibility (one letter predicted the vulgar word and even the color of the paint that appeared on the P house on March 3, 1982).
There are five separate reported incidents of vandalism. On November 17, 1981, the word "whore" was scratched in the paint on P's car and nails on wood blocks were placed under the tires of the car. On December 10, 1981, P's jeep was vandalized, with the word "whore" spray painted on the vehicle in various places. Eight days later the same word was spray painted on her house and a car parked in her driveway was vandalized. On March 3, 1982, the word "cocksucker" was spray painted on P's house, a rock was thrown through her bedroom window, and her porch light was painted red. Sometime thereafter, P's shrubs died from poisoning, a prediction in one of the letters. Other acts of vandalism were similarly predicted or described.
Then, on April 9, 1982, P received an anonymous letter that indicated ["there] will be a lot more advertising for you next week. Look for [it.] How are the shrubs and the roof? Be patient. Enjoy your car while you can." The following week, on April 13, 1982, a person was observed spray painting P's name on a wall of the Science Hall tunnel on the Northeast Missouri State University Campus.
A University patrol interrupted the person painting the wall, and they pursued the individual when he began to run away. He turned and faced the two security men and, while pointing a gun, told them to "stand back and give me room." One member of the patrol was within five to six feet of the person, while the other was within ten feet of the suspect. The person fled, but the pursuit continued. The individual then turned around and at a distance of fifty to sixty feet fired the pistol at his pursuers. One of the security men, a former military man, said that he knew that the gun was pointed at them when fired because he saw the circle of fire that one observes when a gun is pointed and fired in the observer's direction. The security patrol identified respondent as the culprit. Respondent was charged with and found guilty of the crime of unlawful use of a weapon, § 571.030(4), a Class D felony. The Advisory Committee moved for suspension of respondent's license pursuant to Rule 5.20. The majority ruled that conviction under § 571.030(4) was not per se conviction of a felony "involving moral turpitude" as required by Rule 5.20. The conviction was affirmed on appeal and respondent has been denied relief under his 27.26 motion.
Respondent maintains that he did not, in fact, commit the offense on April 13, 1982, although he stipulates to the fact of his conviction. He further claims that he did not commit any of the acts of vandalism or write any of the anonymous letters. Particularly, respondent argues that the special master erred in admitting into evidence the anonymous letters because they were not properly authenticated. This Court, and not the master, is the final arbiter of both the law and facts in this proceeding. We agree with the master that, in light of all of the circumstances, respondent either wrote or caused these letters to be written or typed. There can be no question as to their relevancy to this ...