This article advocates formally adopting the ABA Standards for Imposing Lawyer Sanctions (the “Standards”) in Missouri attorney ethics discipline cases. Since the Standards have not been adopted in Missouri, the Missouri Supreme Court is essentially left with total discretion in the rules for ethics punishment. Review of the Court’s case In Re Sanford P. Krigel, 480 S.W.3d 294 (Mo. Banc 2016) (“Krigel”) shows how the lack of formal rules increases the possibility for a poor decision.

The case of Krigel is generally interesting due to the difficulty of explaining the extreme divergence between the two stages of the case: 1) Judgment of violations and findings of fact, and 2) punishment. The two phases of judgment and sentencing are familiar to many practitioners of criminal, administrative and other types of law.

In Missouri, the judgment phase starts with Missouri’s version of the ABA model rules (the “Rules”) regarding what constitutes a violation. Every state has adopted some version of the Rules. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/alpha_list_state_adopting_model_rules/ retrieved 4/13/2020.

Missouri did so in 1985 with Missouri Supreme Court Rule 4. See Id.

For the second phase, determining the level of sanction, Missouri has not formally adopted the ABA model: the Standards. Instead, the Court is merely “guided” by two sources of law: 1) The Standards, and 2) the Court’s own caselaw. So, in effect, any time the Court wants to, it can rely on its own words instead of the Standards.

Krigel had many law professors as advocates in the case. The Court erred in Krigel by seeming to assume that the law professors’ arguments for Krigel were relevant even after the Court made its factual findings. Krigel’s advocates stated that Krigel ethically secured an uncontested adoption for his client (the natural mother) through execution of the “passive strategy.” They argued he did nothing wrong.

However, the Court made factual findings that the law professors assumed were not true when they advocated for Krigel. The Court’s findings detailed four ethics rules violations.  Most importantly, the Court found that Krigel falsely told the natural father’s attorney that he would not proceed to an uncontested adoption hearing. This resulted in Krigel submitting fraudulent statements and documents to the trial court, since Krigel did not make Father part of the proceedings despite knowing that his own deceit could have caused Father to not claim custodial rights.

Krigel’s advocates never said that he could lie to his opponent and the trial court in such a manner. In fact, the law professors’ amicus brief makes it clear on page 57 that such a finding would be a real game changer:”Significantly, the hearing panel did not find that any of the father’s inaction was caused by the respondent’s fraud, dishonesty or misrepresentation.”

Full consideration of the actual factual findings was necessary to determine Krigel’s state of mind during his violations in the case. Given that the Court acknowledges Krigel knowingly made false statements throughout the case, a reader is reasonably very likely to conclude that the facts describe fraud. It is the Court’s job to communicate to the bar and the public why the factual findings do not describe fraud. Instead, the Court offers virtually no explanation. This failure leaves readers too likely to assume that the Court either does not understand how severe Krigel’s actions were or does not care.

The decision in Krigel was criticized from the moment it was entered. The case was heavily split, 4-3, with the dissent author favoring disbarment. The majority ordered a six-month suspension and stayed the execution of the suspension under two years of probation. Instead of the punishment being akin to one for fraud, there effectively there were zero days of suspension. The passive theory of the law professors was inapplicable to the factual findings of the Court, but the punishment was partially based on viewing his actions through the lens of the passive theory.

He lost the facts, yet still won the case.

As the dissent saw fit to mention, after Krigel’s actions, the trial court set aside the original trial court judgment due to fraud, stating,”The facts of this case shock the justice system that the people of Missouri enjoy. The Court finds the actions of officers of this Court [referring to Krigel] to be at minimum disturbing to the administration of justice.” The dissent rightfully stated that the integrity of the legal profession and the public were not protected by the Court’s decision.

It seems that the Supreme Court has not relied on Krigel for anything other than the most general of standards. However, the case has received attention in many secondary sources, including the generally excellent criticism by Bradley Craigmyle, Picking Winners and Losers: The Subjectivity of Missouri Disciplinary Decisions, 82 Mo. L. Rev. (2017).

The Missouri Supreme Court’s “Guides” for Determination of Sanctions

The Missouri Supreme Court has stated it has the inherent power of discipline. In re Gardner, 565 S.W.3d 670, 675 (Mo. Banc 2019). This is much like trial courts are said to have the inherent power of contempt: Courts have the power to enforce their own rules. The Missouri Supreme Court is the final arbiter of attorney ethics decisions and review de novo all recommendations of a disciplinary hearing panel involving serious violations. Id., at 675 (Mo. Banc 2019). There is no direct review of the Court’s decisions. The proceedings are sui generis, meaning they are their own type of proceeding. In re Mills, 539 S.W.2d 447, 450 (Mo. Banc 1976). Thus, the decisions are not governed by criminal, administrative or any other area of law.

The general standard that the Court applies is to protect judicial integrity and the public. In re Forck, 418 S.W.3d 437, 441 (Mo. Banc 2014). The Court states that it is “guided” by two sources for sanctions: 1) the ABA Standards and 2) the Court’s own caselaw. In re Gardner, 565 S.W.3d 670, 675 (Mo. Banc 2019). Thus, the Court can cite to the Standards as it sees fit. However, there is nothing to prohibit the Court from veering away from the Standards and relying on its own interpretation of its own words as the determinative guideline.

Essentially, given this discretion, there are no “rules” in a traditional judicial sense. Although the case in many ways is not typical, the Court’s decision in Krigel can be reviewed to see some of the problems with not adopting the Standards.

In Re Krigel, 480 S.W.3d 294 (Mo. Banc 2016)

Krigel represented a young unmarried, pregnant mother-to-be. He executed a plan to fulfill his client’s desires to have her child adopted after the birth. Krigel was found to have misled the Court and the father’s attorney through his representation of the mother in a case that ended in an uncontested adoption.

At issue was Krigel’s implementation of a “passive strategy” to help achieve the uncontested adoption. He and his client planned to not actively recruit the father in preserving his rights. He would “actively do nothing” to communicate with birth father or his attorney; they would not advise them of their plans.

At a termination of rights hearing preceding an adoption, a party must affirm that all parties claiming custodial rights have been made part of the case.

The passive theory suggests that, as a starting point, a party can assert that no other party is claiming custody rights simply because: 1) No one has registered as a potential parent on the putative father registry and 2) There is no known pending paternity action.

Krigel’s argument was that the passive strategy is a generally accepted practice among local practitioners and the Judge he appeared before in the case. The emphasis on non-communication makes the strategy naturally run closer to the edges of ethical limitations. However, Krigel argued that he believed that his actions were permissible under the strategy.

Many great law professors were heavily involved in the case. Their roles included co-counsel for Krigel, expert witness and as amicus brief authors. They affirmed that it is commonly accepted that an ethical passive strategy can be achieved. In practice and in the classroom the passive strategy is accepted. It was argued that placing an attorney in a position of having to affirmatively reveal information to their opponent, places tension between an attorney’s duties to their client and their other ethical obligations. They cautioned that one must be careful in not unduly limiting a lawyer’s ability to zealously represent their client.

Krigel also disputed many facts in the case.

The Violations and Factual Findings

Initially, it should be noted that in no way did the Court generally rebuke the validity of the passive strategy. It was not rejected as a theory written in textbook. It was said to be legitimately possible to execute in practice.

However, the Court did determine in its decision that Krigel’s actions resulted in four ethics violations. His interaction with the father’s attorney and his actions in the adoption case resulted in unfairly depriving the father of his potential parental rights. He did not execute the passive strategy in a correct, acceptable manner. The Court even explicitly found that his actions were not “passive.”

Generally, Krigel was found to have:

  1. Knowingly, falsely told Father’s attorney that the child would not be adopted without Father’s consent.
  2. Hindered the administration of justice, by submitting two documents, including the signed Petition, that knowingly, falsely claimed that no one, not a party to the proceeding, claimed custodial rights.
  3. Pursued a course of action that disregarded the rights of Father.
  4. Designed his questioning at the adoption hearing to omit essential information and mislead the Court regarding Father pursuing his custodial rights.

Because they are important, the Court’s findings are reprinted in full below, with all bold being placed by the author. The Court’s findings of the four violations were:

“Violation of Rule 4-3.3(a)(3)

Rule 4-3.3(a)(3) requires a lawyer shall not knowing “offer evidence that the lawyer knows to be false ….” Krigel’s questioning of Birth Mother at that hearing was designed to mislead the trial court as to the actual circumstances between Birth Mother and Birth Father.

Prior to the April 2010 hearing, Krigel and Birth Mother discussed his intended examination of her. Krigel’s questioning of Birth Mother at that hearing, while technically truthful, omitted essential information. While representing there was a belief Birth Father may not actively pursue opposition to the adoption, there was no indication that Birth Father stated his acquiescence to adoption. Krigel knew Birth Father was uninformed about the child’s birth, his name was omitted from the child’s birth certificate, and his attorney had contacted Krigel to work cooperatively on the child’s future placement and prevent adoption. Birth Mother’s testimony further indicated that Birth Father was able to be in continuous communication with her, which Krigel knew was untrue. Birth Mother also stated that Birth Father had not visited the hospital after the birth, which was true, but Krigel failed to clarify that Birth Father was not informed of the time or place of the child’s birth. Krigel’s representation to the trial court via his questioning, by permitting false and misleading testimony to be presented, was designed to portray the false impression that Birth Father was not interested in the child or in asserting his parental rights.

Violation of Rule 4-4.1(a)

Rule 4-4.1(a) specifies that when representing a client, a lawyer shall not knowingly “make a false statement of material fact or law to a third person ….” Krigel violated this rule in his communication with Zimmerman, indicating the child would not be adopted without Birth Father’s consent. Further, at the time Krigel spoke with Zimmerman, Krigel knew that he advised Birth Mother not to communicate with Birth Father regarding any information about the child, including the child’s birth or subsequent adoption proceedings.

Violation of Rule 4-4.4(a)

Rule 4-4.4(a) requires that in representing a client, a lawyer “shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person ….” By actively concealing factual information from Birth Father and his counsel so that his client’s position would prevail, Krigel violated this rule. Comment one to this rule provides, in pertinent part: “Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons.”

Krigel advised Birth Mother and her family to have no contact with Birth Father and to not divulge any information to Birth Father regarding the birth of their child. Krigel communicated with Zimmerman, indicating that the child would not be adopted without Birth Father’s consent. Further, Krigel advised Birth Mother and Birth Father to receive “counseling” from Merryfield, who was actively working with Birth Mother to place the child in an adoptive home. Despite actual knowledge that Birth Father wanted to raise the child, Krigel pursued a course of action that disregarded the parental rights of Birth Father and the best interests of the child in remaining with a natural parent. Krigel’s actions served no substantial purpose other than to impair and delay Birth Father’s assertion of his parental rights.

Violation of Rule 4-8.4(d)

Rule 4-8.4(d) provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice….” Krigel signed and submitted two documents to the trial court, which hindered the administration of justice.

Krigel signed and submitted a “Petition to Approve, Consent, and Transfer of Custody” to the trial court, stating that Birth Mother did not know of any “other person not a party to these proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.” This was not a true statement in that Krigel knew the name, address, and attorney for Birth Father. Birth Father was not a party to the proceedings, but one who had a claim of child custody or visitation.

The opportunity for Birth Father to assert his parental rights actively was thwarted by Krigel’s violation of this rule.” (all emphases added)

Chief Justice Breckenridge concurred in the Opinion, but found insufficient evidence for a violation of 4-4.4(a).

At this point things looked bad for Mr. Krigel. However, after this point the standard rules no longer necessarily apply. It is there that things take a dramatic turn in his favor.

The Standards

Attorneys understand how caselaw operates. But, many may not be familiar with the other source that the Court can choose to rely on: the ABA Standards for Imposing Lawyer Sanctions.

They are very accessible. They are about 12 pages in total (about the same length as one Supreme Court case). Additionally, they are well-organized according to specific pattern, so the general nature of the rules can be understood, even without prolonged, slow scrutinizing.

The Standards are based on presumptive punishments, based on the Respondent’s state of mind and the level of harm. The severity of presumed punishment usually follows this pattern: 1) Disbarment is the presumed punishment for intentional conduct with potential for significant harm. 2) Suspension is presumed for knowing conduct with potential for harm. 3) Reprimand is presumed for negligent conduct with potential for harm. 4) Admonition is presumed for negligent conduct with little chance of harm.

Many cases involve several violations. The Standards state that the Court’s starting point for the presumed punishment should at least correspond to the worst of the violations.

When finding the worst violation, the harm or potential harm of the violation and the state of mind should be reviewed.

Once the worst violation (worst presumptive punishment) is found, the Court should review any aggravating or mitigating factors to see if there are special enough circumstances to reduce or increase the level of punishment from the presumed one. The Standards have specific lists for potential aggravating or mitigating factors.

Finally, after finding the applicable level of punishment, the Court tailors the specific punishment.

During this process, a key resource is the annotated Standards. The Court can look to see other Courts’ analysis of similar cases, and also see if its decision making is in line with punishments under comparable circumstances.

The Court’s Process To Determine Krigel’s Punishment

The Court started by listing the aggravating and mitigating factors, which is the last step under the procedure for the Standards. The Court found in mitigation Krigel’s practice of over 30 years and his previous lack of ethics violations. The aggravating factors were that he had multiple violation findings in the present matter and did not understand the severity of what he did wrong. No analysis was made.

Since there were four violations, the Court had to choose the worst violation to begin its analysis. The Court did not analyze the facts, did not review the different violations, did not determine Krigel’s state of mind, did not offer a citation and did not offer any explanation or analysis. Regardless, after reviewing the record, the Court simply designated a worst violation: Krigel’s communications with the court needed more candor.

Neither did the Court review the harm of the violations. The trial court ended up setting aside the adoption and Father was eventually granted custody.Father was deprived of his custody rights for just under one year, and risked permanently losing his rights to his child. The child’s life was almost certainly thrown into turmoil. Krigel’s client’s goals were not achieved. Krigel was paid approximately $22,000 for around ten hours of work. Father incurred over $50,000 of attorney’s fees to undo the fraud.

Eventually, the Court found that suspension, and not disbarment, was the most appropriate standard for the violation being analysed. However, the Court never returned to the other three violations to see if a disbarment presumption would be appropriate for any of them.

The dissent correctly describes the majority’s unusual analysis to be an “about face” on normal standards. When stripped of factual and legal recitations, the majority’s Opinion may be said to only contain a total of four sentences of actual legal analysis when choosing the presumed level of punishment.

The Court Brushes Aside the Disbarment Standard:

The facts directly related to the violation being analyzed involved Krigel’s client falsely testifying about Father not claiming custodial rights.

The Court cited the general disbarment standard for lack of candor towards the tribunal: “when an attorney, with an intent to deceive the court, submits a false document, makes a false statement, or withholds material information, disbarment is the appropriate sanction.”

First, the Court states that disbarment is “reserved for clear cases of gross misconduct, those in which the attorney is demonstrably unfit to continue in the profession” by citation of  In re Ver Dught, 825 S.W.2d 847, 851 (Mo. banc 1992). This is a mere general principle that it is not helpful. It does not appear that the Court has listed which types of offenses meet this standard. Contrarily, the ABA Standards are organized in a manner that clearly lists which offenses have a presumption of disbarment.

Instead of finding a similar suspension case, the Court points to factual distinctions from one disbarment case: In re Oberhellmann, 873 S.W.2d 851 (Mo. banc 1994). Through its first observation, the Court may have granted itself the power to double the requirement for the normally presumed sanction. The Court implies that disbarment may be inapplicable in Krigel because Oberhellmann involved two, separate unrelated violations.  It is likely impossible for any particular member of the bar to catch someone cheating twice in a few months. Thus, attorneys are bound by duty to report violations, while knowing the Court can easily brush aside the presumed standard at its discretion. The Court expresses no concern about the impact of such a power being available to them. Instead, one is left to wonder whether the Court understands how the concept of “deterrence” operates.

Furthermore, the reference to Oberhellmann’s multiple violations is not wholly convincing, given that Krigel also committed multiple violations, only as part of the one scheme.

The Court does not produce a suspension case where an attorney underwent Krigel’s wide-ranging, consistent plan to deceive. Nor does the Court produce a case that rebuts the disbarment standard due to the Respondent not being caught in two separate incidents. A comparable suspension case should generally be required for a rebuttal.

The Court Speciously Adopts the Suspension Standard

Furthering its shift, the Court cites to Caranchini, 956 S.W.2d 910 (1997) and the Standards for part of the general rule for suspension involving a lack of candor to the court: “Generally, the Court moves to suspension on the ground that the standard is appropriate when an attorney merely knows that a false statement is being submitted and takes no remedial action.”

Caranchini involved a forged document of unknown origin. That case noted the suspension standard because upon discovery that the document was forged, Caranchini had a duty to take remedial measures. Caranchini did not take remedial measures, and instead used the document in the case, so the standard was found by the Court to be too low.

The case illustrates the purpose of the suspension standard including a reference to taking remedial actions: typical application of the standard assumes that the false evidence came as surprise to the attorney.

Yet, the Court finds the standard applicable by stating that Krigel did not remedy the false testimony of his client. The Court seems to fail to fully evaluate Krigel’s intent by:  1) Focusing on whether it was possible that Krigel’s client independently intended the false testimony, and  2) segmenting its analysis of Krigel’s actions into separate violations.

Unlike the Oberhellmann case, there is no factual finding by the Court that Krigel specifically instructed his client to perjure herself. Thus, the Court may believe that absent specific instructions, there is still room to treat Krigel’s client’s false assertions as unexpected false evidence that came as a surprise to Krigel. Requiring a factual finding of specific instructions for perjury would seem to create a dangerously stringent standard for proving an attorney’s intent to create false testimony.

Regardless of such a standard of proof, the Court’s analysis fails to focus on Krigel’s intent. The Court already found that Krigel’s questioning was designed to produce misleading answers regarding essential information of which he was already personally aware. Moreover, for Krigel to remedy the false answers that he was intentionally in the process of producing, would have resulted in undoing all the work that he put in actively thwarting father’s rights, falsely communicating with father’s attorney, and knowingly submitting false documents to the court.

Who would remedy their own fraudulent plan? What attorney would remedy their client’s testimony that was being produced as part of the attorney’s strategy to create deceptive, false statements?

By segmenting Krigel’s actions into separate, discrete decisions, it is almost as if the Court views Krigel’s mind as being wiped clean at the start of each new violation.

Both factors: 1) state of mind and 2) failure to remedy, weigh against Krigel. The most cynical explanation for the incorrect analysis would be that the Court is maliciously playing a two-factor version of the “shell game” con. By stating that Krigel did not remedy, an observer may temporarily assume that the other factor (intent) holds the correct answer. However, Krigel’s intent also explicitly weighs against him. The trick is that neither factor benefits Krigel. The observer is just led to believe that the correct answer was always the other option. That would be a very skewed view of how the Court operates.

The Court makes the failure to remedy effectively a mitigating factor for Krigel, when his intentional fraud explains the failure to remedy the false testimony. The Court seems to act as if Krigel’s passivity in failing to remedy the false testimony was the result of Krigel being surprised by it.

This results in the Court choosing knowingly/suspension as the appropriate general level of punishment. When tailoring the specific punishment, the Court quickly jumps to treating Krigel as if he merely made a mistake.

Ver Dught’s Implication of  a Mistake

It may be that the greatest insight into the Court’s maneuver to the lower standard is found by its parenthetical summary of In Re Ver Dught, 825 S.W.2d 847 (Mo. banc 1992). After using the case to state that only the unidentified grossest violations can result in disbarment, the Court parenthetically summarizes the case as “ (suspending the attorney for his belief that the law did not require him to disclose facts that he believed were not material and no material fact was falsified).” Id., at 851.

Although the Court’s analysis and rule citation focus on the failure to remedy false evidence, the Ver Dught summary references an attorney not knowing that certain facts were material or that there was a duty to disclose them. So, unlike the failure to remedy analysis, this citation appears to reference a mistake.

The case predates the Court’s first usage of the Standards. So, attempting to apply the case presents the problem of the Court using two “guides.” The case focuses merely on whether false evidence was “material.” However, under the Standards, at least some minimal materiality is required to even reach the lowest punishment level: admonition. The old material/immaterial analysis is essentially replaced by analysis of the extent of harm. There are three levels of possible harm under the Standards (basically high, medium and small).

In Ver Dught, an attorney intentionally had his client mislead the hearing officer regarding her marital status during a Social Security (SSI) benefits hearing. This affected the total amount of the benefit, but did not affect the client’s eligibility for some amount of benefits. By the time the factual falsification was discovered, the client had received $4,112.04 of invalid benefits over the course of 19 months. The harm was that taxpayers were required to pool their resources for $216 of extra monthly benefits for an impoverished, disabled widow. Sensibly, the Court did not find the fact to be material under those circumstances.

A six month suspension resulted. The case seems to demonstrate that even when intent is clear, disbarment is not appropriate when there is little harm.

Relevant application of the case in Krigel seems particularly difficult. The Court’s findings already state that Krigel knew it was false to assert that no one else claimed custodial rights, thus the intent of Krigel is made explicitly clear. Moreover, the materiality of the false statement in Krigel is far greater than in the Ver Dught case. Having all the necessary parties to a case is clearly material to a Court being able to reach a valid decision. There was not even an opposing party in the Ver Dught case. Denying a parent their rights to a child is immeasurably more significant than than a small overpayment of Social Security benefits. If taking someone’s child is insufficient harm for a disbarment presumption, it is difficult to imagine facts that would meet the standard.

It appears that both: 1) state of mind and 2) materiality/harm, weigh against Krigel. However, given that the Court ends up treating Krigel as if he made a mistake, the case may have played a role in the decision. Does Ver Dught or the hint of a mistake come into play during the downgrade to the state of mind, and if so, how? Otherwise, what happened? The Court only offers about four sentences of actual legal analysis prior to choosing its presumed level of punishment. This leaves open too many questions.

Tossing Out Guesses

Court decisions generally can be underexplained. Likewise, flexible legal standards can obscure the law’s meaning. The unclear legal standard, poor justifications, scant explanation and extremely divergent findings and sanction leave one to wonder what is not potentially malleable in the current system.

Under such circumstances, uncovering the rules can be like trying to determine the size and shape of a mountain hidden behind cloud cover. The only option may be to throw rocks and hope to gather information based on how they bounce back. When guesswork is at hand, simply tossing out possibilities may be the only tool. I list some of the possible interpretations of Krigel, from worst case scenario to best:

  1. The most cynical and nightmarish interpretation would be that regardless of how much the facts show you committed fraud, the Court can fraudulently let you get away with it by concluding you just made a mistake.

The Court made actual factual findings that seemingly could only be considered fraudulent. Krigel defrauded the Judge and the opposing party. This is so bad, that no explanation is even necessary to conclude that it is the worst of the four violations. However, although contrary to the state of mind in the Court’s findings, Krigel said he thought he was doing nothing wrong, so the Court can just claim to believe him and basically let him go during the discipline phase. The false justification by the Court could take many forms, but all would ultimately be explained by a nightmarishly malicious intent by the Court to permit fraud.

Traditionally, fraud has been accomplished in a somewhat covert manner. However, the walls of the judicial hotel are literally paper thin: anyone can read the Court’s Opinions.

This openness is good, since it is contrary to the method of accomplishing fraud. Openness is still only a start towards reaching a correct result, though.

Suspecting the Court of fraud would likely be the result of an incorrect assumption. A person may mistake a Court error as being the Court’s intent. Everyone makes mistakes, so even a decision that protects harm is quite possibly a simple mistake. Even if something looks bad at a glance, one cannot just assume that the most cynical explanation is true.

A similar mistaken assumption may be that the Court is “trapped” into fraud by being forced to uphold its mistake in the future, since there is no direct method to change the ruling for the particular parties involved. This is also incorrect. Our entire judicial process is predicated on giving parties an opportunity to have their arguments heard by the judiciary. Even if the normal time to directly reopen a case elapses, the judicial process of correcting mistakes and ensuring that a Court’s decisions correspond with the rules, continues. From entry of a decision, and ongoing indefinitely into the future, the judicial process presents opportunities to amend, set aside, void, reverse, clarify, limit, render moot, or otherwise correct decisions. So long as the judicial process of rule interpretation continues, the evaluation of a decision’s justifications continue, and a Court cannot be “trapped” by a mistake for future cases.

It would be stunningly backwards if the Court is not bound by rules, but is still bound by its own errors.

In general, to the extent a judicial record yields a plausible alternate explanation in a decision, the possibility of fraud is diminished.

We can find a better explanation than fraud.

  1. The Court has to legitimately believe that Krigel made a mistake, but still now has the power to contradict itself

Under this scenario the Court believes it can make factual findings regarding a state of mind, and then explicitly alter the factual findings regarding the state of mind during the discipline phase (e.g. he “zealously, fraudulently stole” exhibits from the courtroom, being openly changed to he “negligently took” exhibits from the courtroom). This would be troubling, contradictory nonsense that factually protects fraud.

  1. The mistake must be a reasonable mistake of ethics law to be eligible for the downgrade during sentencing, but the factual findings can still be entirely contradicted

Krigel thought what he did was lawful, and experts said it was reasonable to misjudge the boundary line of ethics law, so although his mistake was fraud according to the Court, it was a mistake of law that is understandable and therefore his state of mind can be changed during the discipline phase. In this particular case, this would mean that there is a specialized meaning of “fraud” in ethics law.

This is entirely contrary to the Rules. Fraud is measured by the applicable substantive or procedural law. Rule 4-1.0(d). Fraud is fraud. There is no category for something explicitly being called “fraud,” but then “not fraud” as a matter of ethics.

This would be a pointless, extra layer of obfuscation.

  1. The mistake must be a reasonable one regarding an ethics theory

Though I strongly disagree with the reasoning, this was my initial guess as to what the Court intended, and still likely led to the specific error the Court made in the case. The Court got distracted by the law professors and the passive theory. They already found that Krigel crossed the line, but they mistakenly thought,”Surely it cannot be that the law professors are mostly talking about this theory in abstractions and generalities! The passive theory must have some application to this case.” So, the Court decides there must be some credence to the idea that Krigel made a reasonable misinterpretation. He made a mistake regarding the limits of the passive theory, and though his interpretation was very likely different from his colleagues and judges, it was a reasonable one to some degree.

This could offer a hint as to why the Court did not review the other violations (even though it still would be troubling to not review them). The Court believed he thought that the passive theory protected all his actions as being ethical.

The theory is problematic. As stated above, fraud is measured by the standards of the applicable procedural or substantive law. It would appear this would be a new theory to suggest otherwise.

Furthermore, to the extent it provides a valid partial defense, it would only tend to show that our ethics rules are poorly communicated, with meanings only available to experts. Such a result would be even more dangerous when those experts are primarily only viewing things from one side of the case.

The Court seems to mistakenly treat the conflict between the passive theory and the ethics rules as an ongoing conflict after it already resolved it. The Court needed to directly judge the factual findings in accordance with the Standards. Instead, the Court reviews Krigel’s knowledge and  actions, but then implicitly layers the opinion of the law professors on top of the findings by concluding that Krigel’s actions do not merit severe punishment.

  1. Factual findings cannot be changed, but the Court erred

This ended up being my top guess as to the error. However, over reliance on the law professors likely played a significant role in this mistake occurring.

It would be nice to be able to read the case at least clearly enough to have things decided down to this possibility by itself: The Court has no power to change factual findings during the discipline phase; there is no separate definition of “fraud” under ethics law; the Court in operates in accordance with binding rules and procedure, instead of total discretion; and the Court’s duty of applying the law to the facts cannot be outsourced to experts.

However, under this explanation, there is no room to go from the Court’s factual findings to the lowered state of mind. So, the Court erred in determining that its findings left room for the reduction.

The factual finding that leaves the least amount of room for the result is the violation of 4-4.1(a): falsely communicating with father’s attorney. Krigel knowingly told father’s attorney that there would not be an adoption without father’s consent.

The passive theory suggests that, as a starting point, a party can assert that no other party is claiming custody rights simply because: 1) No one has registered as a potential parent on the putative father registry and 2) There is no known pending paternity action.

However, if an attorney had sufficient contacts with the other parent’s attorney and/or knows of their client having sufficient contacts with the other parent, the attorney may have gained knowledge of another person claiming custodial rights. This is where the clean theory of the law professor starts to be dirtied by the facts of real cases. Experts have a high level of knowledge of the law. However, in addition to such beneficial knowledge, expert attorneys can gain knowledge that requires them to alter their actions during a case. This can be thought of as “detrimental” knowledge. If the expert does not adjust their actions in accordance with their detrimental knowledge, then their actions may result in ethics violations.

This knowledge can be cumulative throughout a case. Thus, it may not be appropriate to act as if an expert attorney had their state of mind wiped clean upon the commission of each new violation. Otherwise, an attorney would essentially have the power to become an automatically reloading, rapid-firing false statement/evidence weapon, immune from ever obtaining an “intentional” state of mind. It would absurd to assume the Court intended to permit such a result. The Krigel case purports to focus on whether Krigel obtained detrimental knowledge of Father claiming custodial rights, but its analysis is flawed because does not evaluate Krigel’s knowledge as potentially being cumulative.

However, it may be largely unnecessary to carefully comb through the details of an attorney’s detrimental knowledge of the opposing party claiming custodial rights. This is because, heavily implicit in an attorney facilitating and/or making claims of no one else claiming custodial rights, is the assumption that the attorney did not fraudulently induce the other parent (or his attorney) into not preserving his rights.

It cannot be an acceptable passive strategy for an attorney to essentially tell their opponent,”Do not worry about protecting against the passive theory, because I am not going to use it against you.” This is the equivalent of Krigel’s knowingly false statement to father’s attorney, since Krigel indicated he would not unilaterally obtain an uncontested adoption.

It cannot be that ethics law professors are telling students to open their books to the chapter on the passive theory, with the lesson remotely resembling the following: “Step 1: Falsely tell your opponent you will not use the passive theory. Even better, say you will not do anything to proceed to an uncontested hearing. Step 2: Use the passive theory. Step 3: Proceed to an uncontested hearing without telling the Judge you falsely told your opponent that you would not be proceed to an uncontested hearing and also falsely submit any documents necessary along the way.” That is fraud, not expertise. The passive theory is nothing more than window dressing for deception under the Court’s factual findings.

The law professors did not think it was fine for an attorney to facilitate claims of no one claiming custodial rights when the situation might have been affected by the attorney’s strategy to deceitfully will those facts into existence. They were arguing that a correct execution of the passive theory would make those statements true.

To my knowledge, the record does not indicate that anyone claims that such an active, fraudulent inducement would be part of a legitimate passive strategy. This makes all the difference in the world: the case becomes clear, cheap fraud.

The determination of whether Krigel lied to father’s attorney regarding pursuing an uncontested adoption is absolutely essential in determining the significance of Krigel’s statements to the Court,  such as,”…we’re of the belief there’s a real high likelihood that [Father] may not actively pursue any opposition to this adoption.” Based on the Court’s findings of facts and violations, the case indicates that Krigel believed there was a REAL HIGH  likelihood that Father would not protect his rights. His trial judge could not have possibly known that Krigel lied to his opponent. Instead, Krigel made the judge believe he was merely talking about the passive strategy. Despite this deception, Krigel was effectively not even suspended.

This factual dispute is quite possibly why Krigel did not know the severity of what he did wrong: Krigel denied lying to father’s attorney; Krigel always assumed that this factual finding would be fatal to his case and did not argue otherwise. There does not seem to be any indication that Krigel’s advocates believed the Court could essentially reach the same factual findings as the trial court that overturned the case due to fraud, while also tacitly permitting the behavior. Yet, somehow this is the Court’s result.

Instead of arguing that such active fraud would be permissible, Krigel’s advocates argue: 1) an attorney has a duty to zealously represent his client’s interests and 2) an attorney generally has no duties to their opponent or third parties. This is true, but the existence/absence of these duties is not a license to commit fraud.

This common sense distinction is necessary to protect the integrity of our adversarial system.

The Court’s job is to draw lines. After fraud is clearly detailed and no other state of mind can legitimately be found, crediting Krigel with a lowered state of mind no longer protects a legitimate purpose. It protects fraud, not a lawyer’s ability to zealously represent his client. The law professors’ abstract standard of zealousness will never be met. More importantly, the limit has already been factually found and made by the Court. It makes no sense for the Court to reward attorneys for attempts to turn their zealousness dials up to level 11. Any zealousness that is also fraud is not legitimate, especially since fraud means that the attorney knew it was wrong.

In seemingly ignoring the crucial factual finding of Krigel lying to father’s attorney, it may be that the Court shifted its focus to father’s attorney. The case already dubiously seemed to indicate that the supposedly independent fraudulent testimony of Krigel’s client cancelled Krigel’s own fraudulently designed questioning. Similarly, it may be that the Court mistakenly decided that there was “no harm, no foul” from Krigel fraudulently inducing father’s attorney.

Krigel’s advocates accused father’s attorney of not protecting his client against the passive theory. Krigel positioned himself as the attorney with greater expertise, and the Court took notice:”[Krigel] did not believe [Father’s attorney] typically handled adoption or paternity matters.” The Court may have focused on whether father’s attorney took a course of action that increased the chances of a negative outcome. If Krigel had correctly executed the passive strategy or if the trial court would not have believed that Krigel lied to father’s attorney, then the result might have still been the same.

It may be that the Court decided that no fraud exists because the result would clearly have been the same even absent the fraud (paradoxically, since father’s attorney said he took the statement to be one of fact, and the Court found the statement to be a violation). This would be an error, because even if Father’s attorney could have taken different steps to protect his client’s rights, the Court still needed to evaluate whether Krigel illicitly intended to cause Father’s attorney to not take those actions (actual reliance on Krigel’s statement is not required, pursuant to 4-1.0, comment 5).

If Father’s attorney had instead received no affirmation from Krigel regarding an uncontested hearing, then he may have immediately taken different steps. Much like an attorney’s detrimental legal knowledge is not static, neither is his “beneficial” legal knowledge.  Father’s attorney might have typed keywords into a search engine and researched what he needed to do. He might have called a colleague that he trusted to see what actions he needed take. He might have taken the common step of filing a paternity action prior to the child’s birth, instead of bothering with the uncommon step of using the putative father registry. He might have protected his client’s rights and beaten Mr. Krigel’s passive strategy.

He had a right to be given a fair opportunity to present his arguments. The Judge should have been given a fair opportunity to consider all the arguments. However, the Court’s decision seems to implicitly (and perhaps entirely unintentionally) discount the harm because Krigel’s advocates treated Krigel as an expert, while criticizing Father’s actions under the assumption that Krigel did not lie to him. 

The Court was not necessarily required to believe that Krigel falsely communicated with Father’s attorney. However, once the factual finding was included in the judgment, the Court was required to consider the finding in its decision.

Of course, even attorneys that take imperfect actions deserve protection, especially since all attorneys sometimes make mistakes. Otherwise, the Court would preposterously be incentivizing fraudulent attorneys to shop for victims/dupes that are essentially “fraud proof” due to a lack of competence. Even if for some unusual reason one would view a mistake-prone attorney as deserving an attack from a victim-shopping fraudulent attorney, encouraging such a practice might be the result of underestimating the odds of: 1) A fraudulent attorney being slick enough to trick a competent attorney; and/or 2) An attorney having the inconvenience of having to clean up the mess created by being mistaken as someone incapable of executing their duties.

If Krigel wanted his client’s interests to be zealously represented through the passive theory, then once he fraudulently communicated with father’s attorney, Krigel should have withdrawn from the case. This would have given another attorney a chance to correctly complete the passive theory. Krigel had no duty to see that father’s interests were protected, but still was not permitted to defraud father. His failure resulted in the case becoming a ticking time bomb, since the judgment was voidable. Ironically, Krigel’s advocates disparage the efficacy of father’s attorney, while Krigel botched the entire case by injecting it with fraud.

  1. The Court was correct, but merely negligent in its explanation

This would mean that the finding of a knowledgeable state of mind is supported under the law and the Court’s factual findings. A rewording of the explanation would help more people understand. The Court still cannot contradict its own factual findings regarding state of mind, however. The very strong finding of facts still only prove mere knowledge, but the case citations and explanation were lacking.

This would be a correct result, but still a general failure in messaging to everyone else.

  1. Good Job

This would mean that the trial judge, dissent and commentators just do not understand the clear, cogent explanation for choosing knowledgeable as the state of mind. No unusual powers regarding changing facts exist. No further explanation is necessary, and the ruling’s detractors just lack comprehension of it. There is no issue that needs to be addressed.

Poorly and underexplained cases leave open too many bad possibilities.

In other areas of law, cautious judicial restraint is fairly common. This is partially explained by the fact that the Court generally keeps its rulings to the matter in front of it: the parties’ dispute. Moreover, given that most areas of law have binding rules, those narrow decisions are less reckless.

In ethics cases the Supreme Court, with no backing rules to support it, is supposed to maintain the judiciary’s integrity. There is even more of an interest is sending clear, general messages regarding the rules. Being restrained and preserving judicial options is not optimal in an ethics system, when greater clarity can be achieved. Straightforward, candid explanations are even more important in the current ethics system since the messages in the Court’s Opinions are the rules. Yet, sometimes the judiciary’s general tendency towards nonexplanation can leave unrebutted many unwanted, unintentional possible messages. This is a mistake.

The Discipline

Despite Krigel committing four serious violations and not understanding the severity of what he did wrong, the Court stayed any suspension because he had no disciplinary history and had practiced for more than thirty years.

The Court’s weighing of the mitigating and aggravating factors, though certainly not unremarkable, is generally beyond the scope of this article.

Suffice it to say that Krigel was treated more like an attorney that made a mistake, than one that fraudulently executed a plan that partially included one of the worst possible violations.

Advantages of the Standards

Many advantages exist to adopting the Standards, but only some are reviewed here:

  1. The judicial system would look more ethical if it operated according to identifiable rules. Having no rules is frequently synonymous with questionable ethics. It seems odd that one of the areas of the judicial system with no discernable rules is the area where the rules of fair play are enforced. Judges frequently remind people that they just interpret, not make, the rules. But, in this area, the Court makes the rules with no oversight. It just does not look as good as having rules.
  2. Procedure helps results. The Court seems sloppy with the steps that is uses to analyze cases. In Krigel the Court simply designates the worst violation before analysis, and after rejecting the disbarment standard, never returns to the other three violations. If the Court adopted the Standards, a standard procedure would come with it, and in theory, better decisions. There needs to be order in the Court.
  3. It decreases the chances of conflict between the two guides of the Court. In Krigel, the Court seems to suggest that the disbarment standard can be brushed aside, if the Court chooses, simply because Krigel was not caught in two separate incidents. This is a doubling of the standard, and a clear conflict between the two guides that the Court uses.
  4. It should increase the bar’s trust in and knowledge of the ethics system. The 12 page Standards are accessible, with an easily understood organization. It is difficult for the typical attorney to identify a list of the Court’s variations from the Standards, or to be well-versed in Court caselaw. Identifiable rules might make fewer attorneys so uncertain about what will happen.
  5. A fresh start would undo the uncertainty created by Krigel. The most powerful and unique tool for the Court is disbarment. Suspensions are generally three years or less, it seems, so disbarment can be a multitude more severe. Krigel makes the punishment of disbarment cases difficult to differentiate from others by resulting in effectively no suspension. The Court essentially goes from fraud to mistake and from disbarment to no suspension. Erasing the unique distinction of disbarment seems to be the quickest way to collapse the system into a chaotic, unpredictable lack of differentiation.
  6. The intellectual vigor and consistency of the Court’s decisions may increase. If the Court has full discretion, then there may not be much true debate. Lines can be drawn and redrawn at will if you are the final arbiter with no binding rules. The Court only offers around four sentences of actual legal analysis while brushing aside the possibility of Krigel having an “intentional” state of mind. Having an objective measuring point raises the standard for justification of decisions, and therefore should make for more consistently high quality decisions. The Court’s unquestionably admirable legal skills would be utilized to build the law in a more cogent way.

Conclusion

The mistake of Krigel shows the needs for adoption of the Standards as sanctions rules. The Court skips steps of procedure, points to irrelevant factual distinctions, easily brushes aside the presumed level of punishment, contradicts its own factual findings and leaves too little explanation for its decision. Too many troubling explanations have not been ruled out by the Court. The public can toss out possibilities and try to find the contours of the meaning, but the lack of clarity is still harmful.

In the end, to fix the problem, the public, academia and the bar should advocate for formal adoption of the Standards. Having clearly identifiable, thoughtfully developed rules would be a valuable tool for the Court in its mission to protect judicial integrity.

General References

  1. The Standards for Imposing Lawyer Sanctions https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/sanction_standards.pdf as amended 1992, retrieved 4/13/2020.
  2. The ABA Model Rules for Professional Conduct retrieved on 4/13/2020. https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_migrated/mcpr.pdf

 

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