Attorney who took client files when leaving firm asks Supreme Court for probation

A St. Louis attorney who took thousands of client files with her when she left a law firm and started her own is trying to persuade the Missouri Supreme Court that probation, not disbarment, would be the most appropriate discipline.

Chelsea Kay Merta had been an attorney at the Stange Law Firm in Clayton for two years when, a week before leaving in early 2018, she took client files without the consent of the clients or the firm. She did this, she claimed, because Stange did not always cooperate with departing lawyers to turn over files for clients staying with the lawyer.

Stange filed a lawsuit within days of Merta’s departure and obtained a temporary restraining order that included a requirement to return the files. Merta provided the flash drive to her attorney, who, however, did not return it to Stange for seven months, causing Stange to file a motion for contempt.

Following the advice of her attorney, Merta did not attend the hearing, and the St. Louis County Circuit Court held her in contempt. The court also ordered her to turn over her devices to Stange’s forensic consultant, who found that her computer still contained some of the firm’s files. This caused Stange to file a second motion for contempt, even though the TRO had also requested that Merta preserve all records related to the issue.

The circuit court asked Merta to explain why she should not be held in contempt a second time. But Merta, who had then filed for bankruptcy, did not appear for the hearing, based on the advice of her attorney. The court eventually found Merta in contempt again, ordering her to serve 48 hours in jail.

Despite the multiple offenses, the Office of Chief Disciplinary Counsel argued that Merta should be put on probation rather than be disbarred due to mitigating factors including her inexperience, her having already faced consequences including incarceration, financial sanctions and bankruptcy, her cooperation with the OCDC, her otherwise clear disciplinary record and her work with homeless and low-income clients. The Supreme Court, however, rejected a recommendation for probation, asking the OCDC and Merta to make their case to the court.

St. Louis attorney Marc Lapp, who represented the OCDC, told the Supreme Court during March 7 oral arguments that disbarment is only appropriate for willfully violating a court order if the attorney intended to benefit herself or others and caused potential serious injury or potential serious interference with a legal proceeding.

“Her downloading the document and her not making sure her lawyer returned them until seven months later was not part of a scheme to steal clients. It wasn’t part of some grand conspiracy,” Lapp said.

He noted that Merta, when incarcerated, used her skill and influence to investigate jail conditions and then advocate for improvements after her release, resulting in the St. Louis County Jail now offering menstrual products free of charge. During the next holiday season, Merta organized a book drive that collected about 1,000 books for the jail library.

Merta’s attorney, Brian Sableman of Brown & James in St. Louis, told the Supreme Court that Merta struggled to comply with the TRO because it was contradictory, ordering her to both turn over the files and preserve the files. Sableman suggested that Merta, therefore, could have made an open refusal to comply with the TRO, which would have made discipline inappropriate under the ABA standards.

“And that’s where I’m troubled about this case,” said Judge W. Brent Powell. “Your client admits that she willfully violated the order. But it sounds like you’re saying she didn’t willfully violate the order because she couldn’t have, so that’s where I’m troubled. Because it’s either, she violated these ethical rules, or she didn’t. And if she did, then it’s really hard to get out of the box that this is a disbarrable case.”

Sableman argued that, when the trial court found Merta had violated the TRO, Merta did not have the opportunity to explain herself, since her lawyer at the time had advised her not to appear. Merta had made some poor choices in hiring attorneys, Sableman said, hiring one who was less experienced than she was, and another, Eric Kayira, who was since disbarred for unrelated matters.

“Counsel, don’t we often hold people to actions that their counsel did and agreed to in situations that are even more serious than licensing, such as incarceration, removal of civil liberties, and so forth?” asked Judge Zel M. Fischer.

As for whether Merta saw a benefit from downloading the files, Chief Justice Mary R. Russell appeared not to be immediately convinced by Sableman’s or Lapp’s arguments that Merta only intended to protect her clients, not herself.

“I see it as, she was keeping the clients for herself. Maybe it was (to) protect them, but also, they were clients who were going to be paying and she was going to be making money. I mean, I can see a financial benefit there, too,” Russell said.

Merta has settled her disputes with Stange.

The case is In re: Merta, SC100236.

See also:

Supreme Court disbars three lawyers, suspends one

Chicago attorney disbarred in Missouri for deceiving partners

Attorney suspended without probation after sexual harassment of client