Poor records pin attorneys in the hot seat

Poor records escalated two attorney discipline cases into recent Missouri Supreme Court oral arguments.

Four clients reported violations by St. Louis personal injury attorney Lorenzo Hester. An audit of his trust account revealed that Hester failed to keep proper records of client ledgers and receipts, and that Hester had a practice of delivering clients less than a third of their settlement. Hester also had forged client signatures on checks.

A hearing panel had previously recommended Hester’s disbarment. His attorney, Mike Downey, appealed for an indefinite suspension with an opportunity to apply for probation in three years.

Gail Vasterling from the Office of Chief Disciplinary Counsel in Jefferson City said during September 20 oral arguments that it would be impossible for Hester to provide full restitution for hundreds of impacted clients because of the state of his records.

“It really is a terrible thing that we cannot say how much money is owed to clients, and we can’t even say how to make restitution here,” Vasterling said.

The court en banc asked multiple times how much Hester withheld from his clients. Downey claimed the number was at least $10,000, while Vasterling claimed that while his records were too amorphous to determine a true number, it was closer to six figures — at least half a million dollars.

Downey said that Hester has made efforts to provide restitution to some clients in spite of this. An audit revealed that Hester’s habit of not removing funds from his trust account left a surplus that could be used to pay back shortchanged clients. He has continued to negotiate with other known lienholders, according to Downey.

Downey also claimed that Hester’s contracts stated that some settlement funds would be paid to providers and the law firm, though Downey said it used unclear language that clients would not have understood and did not describe how it would be calculated.

“There was an attempt to disclose that,” Downey said.

Downey cited four cases involving attorneys with trust violations who were granted suspensions. Vasterling countered that Hester’s sheer amount of violations supersedes any case law history in support of Hester’s appeal.

Downey also said that after completing additional trust account training, Hester has started using modern trust account software and now has few settlements going into his trust account. According to Downey, Hester also has worked out lien reductions with clients so the involved insurance company doles out the settlement amount to the client and his firm, rather than Hester manually processing the funds.

Bonne Terre family law attorney and solo practitioner Kimberly D. Tyler was in the hot seat during September 21 oral arguments, represented by Martin J. Buckley of Buckley & Buckley in St. Louis.

Tyler had entered her attorney appearance in a divorce case for which she was not representing either party, though one party was related to the minor child embroiled in a custody case that Tyler was involved in years earlier. In a prior hearing, Tyler testified that she sought non-public filings to update her daughter on the case.

Tyler also had another client sign a contract with a non-refundable retainer fee, and had testified that she regularly used this language in contracts but provided refunds anyway. An audit revealed that Tyler deposited 100 percent of flat fees from clients into her operating account, used her own funds in a client trust account and failed to maintain account ledgers.

A disciplinary hearing panel recommended three years of probation for Tyler, and Alan Pratzel from OCDC appealed to seek suspension for Tyler’s alleged negligence. Buckley is seeking probation for Tyler.

“Because the baseline sanction for respondent’s misconduct in this case is disbarment, she should not be eligible for probation,” Pratzel said. 

The case law that Buckley cites in Tyler’s brief, Pratzel said, did not involve misappropriation of funds like Tyler’s case does.

“Usually it’s a state suspension with a period of probation. Is that a stance you’re willing to fight over?” Chief Justice Paul Wilson said.

The case law history goes both ways, according to Buckley’s claims in his brief and during oral arguments. Earlier case law, however, favors Tyler’s request for probation.

“The fact is that in those prior cases, they had given probation,” Buckley said.

The cases are In re: Lorenzo Antoine Hester, SC99550 and In re: Kimberly D. Tyler, SC99622.

See also:

Prosecutor faces discipline for texts to women on his cases

DWIs, abandoned clients result in two attorneys disciplined