In re Kayira

614 S.W.3d 530

IN RE: Eric F. KAYIRA, Respondent.

No. SC 98531

Supreme Court of Missouri, en banc.

Opinion issued January 12, 2021

The chief disciplinary counsel was represented by Shevon L. Harris of The Harris Law Firm in St. Louis, (314) 997-7700, and Alan D. Pratzel and Sam S. Phillips of the chief disciplinary counsel's office in Jefferson City, (573) 635-7400.

Kayira was represented by Michael P. Downey and Paige A.E. Tungate of Downey Law Group LLC in St. Louis, (314) 961-6644.

Laura Denvir Stith, Judge

The parties agree that, over a period of approximately five years, Eric F. Kayira repeatedly failed to notify clients he had received funds belonging to them, engaged in a pattern of depleting his clients’ funds—frequently to make payments owed to other clients—and misappropriated client funds to pay for personal and firm expenses. As Mr. Kayira acknowledges, disbarment is the baseline sanction for knowingly converting client funds and is the sanction recommended by the disciplinary hearing panel ("DHP") and the office of chief disciplinary counsel ("OCDC").

But, Mr. Kayira argues, this case presents the kind of unusual circumstance in which consideration of mitigating factors should result in imposition of the lesser sanction of indefinite suspension. He notes that, at the time of his conduct, he had serious personal problems, including—he claims without providing any medical support—alcohol abuse and depression. He also was recently divorced. The DHP considered this information but found it did not sufficiently mitigate Mr. Kayira's wrongful conduct so as to lessen the appropriate sanction from disbarment to suspension.

Mr. Kayira asserts the DHP was unaware he also suffered from bipolar disorder because he did not discover it himself until after his disciplinary hearing and Rule 5.285 did not permit him to raise this mental disorder as a basis for mitigation of the sanction once he had filed his answer. If he had been permitted to raise it, he argues, it would have resulted in a lesser sanction, citing In re Belz, 258 S.W.3d 38 (Mo. banc 2008).

Mr. Kayira is incorrect. Unlike in Belz, Mr. Kayira offered no medical evidence to support his claim of a mental disorder, and an unsupported allegation of such a disorder is inadequate to invoke the mitigation features of Rule 5.285. And contrary to Mr. Kayira's assertion that one cannot offer such evidence after the answer is filed, Rule 5.285(b) expressly permits an attorney to raise the issue of a mental disorder out of time if good cause is shown. Not only did Mr. Kayira fail to provide any proof of good cause, he failed to even seek permission to raise this defense or offer any evidence in support of it. Finally, unlike in Belz , he did not show additional mitigating factors such as self-reporting and voluntary restitution before the information was filed.

In light of Mr. Kayira's pattern of mishandling and misappropriating client funds, and the lack of sufficient mitigation evidence, this Court disbars him.

I. STANDARD OF REVIEW

"This Court has inherent authority to regulate the practice of law and administer attorney discipline." In re Gardner , 565 S.W.3d 670, 675 (Mo. banc 2019). "The DHP's findings of fact and conclusions of law are advisory. This Court decides the facts de novo , independently determining all issues pertaining to credibility of witnesses and the weight of the evidence, and draws its own conclusions of law." In re Farris , 472 S.W.3d 549, 557 (Mo. banc 2015) (citations and quotations omitted). "Professional misconduct must be proven by a preponderance of the evidence before discipline will be imposed." Id.

II. LEGAL STANDARDS GOVERNING ATTORNEY DISCIPLINE

A. General Factors Governing Baseline Level of Discipline

The purpose of discipline is not to punish the attorney, but to protect the public and maintain the integrity of the legal profession. Those twin purposes may be achieved both directly, by removing a person from the practice of law, and indirectly, by imposing a sanction which serves to deter other members of the Bar from engaging in similar conduct.

In re Kazanas , 96 S.W.3d 803, 807-08 (Mo. banc 2003).

This Court determines appropriate discipline by considering its prior cases and the American Bar Association's Standards for Imposing Lawyer Sanctions (1992) ("ABA Standards"). Gardner , 565 S.W.3d at 677. After finding a lawyer has committed professional misconduct, this Court considers four primary factors when applying ABA Standard 3.0 in imposing sanctions: "(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors." Belz , 258 S.W.3d at 42. These four key factors provide a framework for all disciplinary matters, although other ABA Standards can also "provide guidance as to appropriate sanctions for specific types of misconduct." Id.

When this Court finds a lawyer has committed multiple acts of misconduct, it imposes discipline consistent with the most serious violation. In re Ehler , 319 S.W.3d 442, 451 (Mo. banc 2010). The most serious misconduct alleged here is the misappropriation of client property. ABA Standard 4.11 provides, "Absent aggravating or mitigating circumstances ... [d]isbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client." This Court similarly has held "disbarment is most often the appropriate discipline" for the misappropriation of client funds. Farris , 472 S.W.3d at 570.

In contrast, "[s]uspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client." ABA Standard 4.12. This Court similarly has held suspension may be appropriate when an attorney does not intentionally take client property but deals with it in a way that causes injury or potential injury. See Gardner , 565 S.W.3d at 678 (involving an attorney who was suspended when, in an isolated incident, he paid himself early without permission, but his conduct "d[id] not show an intent on his part to take monies to which he ultimately would not have been entitled").

B. Aggravating and Mitigating Factors

Regardless of the baseline or presumptive discipline, the DHP, and this Court, always consider aggravating and mitigating factors. Belz , 258 S.W.3d at 42. The ABA standards list numerous types of mitigating factors, among which are the absence of prior discipline; the absence of a selfish or dishonest motive; personal and emotional problems; timely making restitution or attempting in good faith to do so; full cooperation with the disciplinary authorities; inexperience in the practice of law; good character; physical disability or mental disorder, when supported by appropriate evidence; and remorse. ABA Standard 9.32. The ABA standards also list aggravating factors, among which are prior discipline; a dishonest or selfish motive; a pattern of misconduct; multiple violations; bad faith obstruction of the disciplinary proceedings; submitting false evidence; and refusing to acknowledge wrongfulness. ABA Standard 9.22. This Court considers these same or similar factors in determining what discipline to impose. See In re Coleman , 295 S.W.3d 857, 870 (Mo. banc 2009) (applying aggravating and mitigating factors as set out in the ABA Standards); In re Stewart , 342 S.W.3d 307, 312 (Mo. banc 2011) (same).

III. THE ATTORNEY MISAPPROPRIATED CLIENT FUNDS, MISUSED HIS TRUST ACCOUNT, AND LACKED CANDOR WITH THE COURT AND OCDC

A. DHP Finding of Misappropriation of Trust Estate Funds

In 2000, Mr. Kayira was admitted to practice law in Missouri. After licensure, he worked as an associate or partner at various St. Louis area law firms before starting his own law firm, Kayira Law, LLC, in 2008. Mr. Kayira was responsible for the maintenance and administration of Kayira Law's trust account and operating account. His practice currently focuses on entertainment and media law, contracts and commercial disputes, and litigation. From 2013 to 2018, however, when the conduct in question occurred, Mr. Kayira also handled personal injury and probate matters.

Mr. Kayira's misconduct came to OCDC's attention as a result of his mishandling of a probate estate in which he and his associate attorney entered their appearances as counsel for the personal representative. As the estate was subject to supervised administration, he was required to seek the probate division's approval for settlements, attorney fee payments, and numerous other matters directly affecting the estate. See Gardner , 565 S.W.3d at 676 n.5 (explaining the hallmarks of a supervised administration). He, nonetheless, filed a lawsuit on behalf of the estate without informing the probate division or seeking court approval. He settled the lawsuit for $12,500 but failed to inform the probate division when he received the settlement check. He believed, instead, he had the approval of the estate's beneficiary to take the $12,500 as attorney fees and then paid himself by depositing those fees into his operating account, rather than the estate's account, and dismissed the lawsuit, all without notice to or approval of the probate division.

Mr. Kayira later filed a petition to the convert the estate to an unsupervised estate. In doing so, he told the probate division the estate was still searching for assets and did not disclose that he had filed a suit and settled it for a sum that belonged to the estate but that he had deposited as "earned" attorney fees. Lacking this important information, the probate division granted the petition.

Almost two years later, the probate division discovered the lawsuit and settlement when Mr. Kayira moved to withdraw, and informed Mr. Kayira the settlement check was the estate's asset. The transcript shows it verbally ordered Mr. Kayira to deposit the check into the estate's account. After two...