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In re McMillin

Supreme Court of Missouri, En Banc

June 27, 2017

IN RE: RYAN J. MCMILLIN, Respondent.

         ORIGINAL DISCIPLINARY PROCEEDING

          ZEL M. FISCHER, JUDGE

         The Office of Chief Disciplinary Counsel ("OCDC") filed an information in eight counts charging Ryan J. McMillin with numerous violations of the Rules of Professional Conduct. Following an evidentiary hearing, a disciplinary hearing panel recommended McMillin's law license be suspended indefinitely with no leave to apply for reinstatement for one year. The OCDC rejected the panel's recommendation and requested this Court suspend McMillin's license indefinitely with no leave to apply for reinstatement for three years or, alternatively, disbar McMillin. After briefing, argument, and de novo review of the record, this Court concludes McMillin has committed professional misconduct by violating Rules 4-1.3, 4-1.4(a), 4-1.5(a), 4-1.15(a)(5), 4-1.15(b), 4-1.15(c), 4-1.15(f), 4-1.16(d), 4-8.1(c), 4-8.4(a), 4-8.4(c), and 4-8.4(d). Considering the egregious nature of McMillin's misconduct, as well as both mitigating and aggravating factors, this Court orders McMillin disbarred.

         I. Findings of Fact and Conclusions of Law

         "Professional misconduct must be proven by a preponderance of the evidence before discipline will be imposed." In re Coleman, 295 S.W.3d 857, 863 (Mo. banc 2009) (internal quotations omitted). "This Court reviews the evidence de novo, independently determines all issues pertaining to credibility of witnesses and the weight of the evidence, and draws its own conclusions of law." Id. "This Court treats the panel's findings of fact, conclusions of law, and the recommendations as advisory." Id. "Moreover, this Court may reject any or all of the panel's recommendations." Id. The following findings and conclusions are based on this Court's review and McMillin's stipulations.

         A. Trust Account Misuse

         McMillin was admitted to the Missouri bar in 1998. In May 2013, the OCDC received notice that McMillin's client trust account was overdrawn. The OCDC commenced an investigation, but McMillin failed to respond to the OCDC's initial request for bank records. After a second request, McMillin provided records. The OCDC received additional overdraft notifications in June 2013, and requested McMillin meet with the OCDC. The OCDC was concerned McMillin had a gambling addiction based on his transaction history. Believing McMillin needed monitoring to correct his trust account practices, the OCDC entered into a diversion agreement with him in September 2013. However, McMillin soon violated the terms of his agreement, as he failed to provide a quarterly report of his financial information and failed to respond to the OCDC's inquiries. The OCDC received additional overdraft notices in May and July 2014, and terminated the diversion agreement in August 2014. The OCDC continued to receive overdraft notices in September, November, and December 2014.

         The OCDC's investigation discovered McMillin was misusing three different trust accounts-essentially using them as personal accounts. He routinely made personal deposits to the trust accounts, thereby commingling personal funds with client funds; he made hundreds of cash withdrawals from the trust accounts, many of which occurred near gambling facilities; and he failed to keep trust account records, making it nearly impossible to determine whether he had earned advanced fees paid by clients before withdrawing the funds. Moreover, the further the investigation proceeded, the less McMillin cooperated. Despite this hampering of the OCDC's efforts, client complaints revealed that, on several occasions, McMillin indeed withdrew client funds he had not yet earned or never earned. In February 2014, he even paid his attorney enrollment fees from a trust account, which resulted in an overdraft. McMillin described his trust account practices as "awful" and "really horrible."

         McMillin stipulates he has committed professional misconduct[1] in that he violated Rule 4-1.15 by commingling personal funds and client funds in his trust accounts, by making premature withdrawals from the trust accounts for earned fees, by making cash withdrawals from his trust accounts, and by failing to keep complete and accurate trust account records.[2] He also stipulates he violated Rule 4-8.1(c) by failing to respond to the OCDC's lawful demands for information. In addition to his stipulations, this Court concludes McMillin violated Rule 4-8.4(c), which prohibits "engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation, " because his misuse of the trust accounts included the misappropriation of client funds. See In re Farris, 472 S.W.3d 549, 557-58 (Mo. banc 2015). "When an attorney deposits the client's funds into an account used by the attorney for his own purposes, any disbursement from the account for purposes other than those of the client's interests has all the characteristics of misappropriation, particularly when the disbursement reduces the balance of the account to an amount less than the amount of the funds being held by the attorney for the client." In re Schaeffer, 824 S.W.2d 1, 5 (Mo. banc 1992). Misappropriation of "client funds necessarily involves deceit and misrepresentation." In re Ehler, 319 S.W.3d 442, 451 (Mo. banc 2010).

         B. Neglect of Clients

         At the same time McMillin was misusing client trust accounts, he also failed to fulfill other substantial duties owed to several of his clients. Natalie Toney hired McMillin in February 2012 for representation in a domestic relations matter and paid him $3, 000 in advanced fees. She was then unable to consistently communicate with him as he repeatedly either canceled scheduled meetings or refused to come out of his office to meet with her. Much of McMillin's limited interaction with Toney consisted of text messages he sent late at night containing inappropriate comments referring to Toney as "hot stuff" and "baby." McMillin admitted the majority of Toney's complaint "was probably true as far as me putting her off and not doing whatever, setting meetings and canceling." Toney eventually terminated McMillin and had to hire another attorney for an additional $3, 000 to complete the matter. This Court concludes McMillin violated: (1) Rule 4-1.3 by failing to act with reasonable diligence and promptness in representing Toney; (2) Rule 4-1.4(a) by failing to keep Toney reasonably informed about the status of her matter and failing to promptly comply with reasonable requests for information; and (3) Rule 4-1.5(a) by charging a fee unreasonable in relation to the work he did for Toney.

         Jill Havenhill hired McMillin in December 2013 for representation in a domestic relations matter and paid him $1, 000 in advanced fees. Havenhill thereafter attempted to contact McMillin. He responded in January 2014, apologizing for failing to contact her in a timely manner and promising to work on her case. After Havenhill did not hear from McMillin over the next several months, she terminated him and requested a refund of her fees because he had not done any work for her. McMillin did not oblige. This Court concludes McMillin violated: (1) Rule 4-1.3 by failing to act with reasonable diligence and promptness in representing Havenhill; (2) Rule 4-1.4(a) by failing to keep Havenhill reasonably informed about the status of her matter; (3) Rule 4-1.5(a) by charging a fee unreasonable in relation to the work he did for Havenhill; and (4) Rule 4-1.16(d) by failing to refund the fee paid by Havenhill upon termination of his representation.

         Charles White hired McMillin in February 2013 for representation in a domestic relations matter and paid him $3, 000 in advanced fees. White then had little to no communication with McMillin, and White eventually discovered via Case.Net that his case was dismissed in June 2014. McMillin told White he would refile the case, but then failed to get the case reinstated. When White filed a complaint with the OCDC, McMillin did not respond to the OCDC's request for a response. McMillin stipulates he violated Rule 4-1.3 by failing to act with reasonable diligence and promptness in representing White, as well as Rule 4-8.1(c) by failing to respond to the OCDC's lawful demand for information. In addition to McMillin's stipulations, this Court concludes McMillin violated Rule 4-1.4(a) by failing to keep White reasonably informed about the status of his matter, and Rule 4-1.5(a) by charging a fee unreasonable in relation to the work he did for White.

         Larry Oliphant hired McMillin in February 2014 for representation in a domestic relations matter and paid him $750 in advanced fees. Following an important development in his case, Oliphant attempted to speak with McMillin by calling him "every day for two weeks." McMillin did not respond. After Oliphant filed a complaint, McMillin called Oliphant "screaming and hollering, cussing at [Oliphant], using a lot of profanity, told [Oliphant] he made $600 an hour, [and] that he didn't have to talk to [Oliphant]." McMillin then failed to appear at a hearing set for Oliphant's matter, and failed to notify Oliphant he was not going to appear. This Court concludes McMillin violated: (1) Rule 4-1.3 by failing to act with reasonable diligence and promptness in representing Oliphant; (2) Rule 4-1.4(a) by failing to keep Oliphant reasonably informed about the status of his matter and failing to promptly comply with reasonable requests for information; (3) Rule ...


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