Missouri Supreme Court stays attorney suspension, orders probation

The Missouri Supreme Court imposed an indefinite suspension for an attorney but stayed the discipline in favor of a one-year probation in a ruling issued Jan. 13.

Kansas-based business law attorney Mark W. Arensberg was accused of violating Rule 4-8.4(d), which prohibits conduct prejudicial to the administration of justice, for his role in preparing and handling business and loan documents connected to a divorce case.

The attorney had created Missouri LLCs for a family beginning in 2010. During the 2017 divorce of the patriarch’s son, a dispute arose over whether the son’s LLC interests were marital property. As the case progressed, the attorney drafted and backdated loan and security documents despite acknowledging such actions could be viewed as a fraudulent conveyance. A marital settlement agreement later stated the son had not encumbered his business interests, though the attorney subsequently disclosed that one interest had been pledged. The circuit court ultimately dissolved the marriage in 2021 and questioned the timing and credibility surrounding the documents.

The chief disciplinary counsel initiated proceedings in July 2024. A disciplinary panel found a violation and recommended a reprimand, but the Supreme Court rejected that recommendation and heard oral arguments in the case Dec. 10. The Office of Chief Disciplinary Counsel was represented at arguments by Cheryl Nield of the counsel’s office in Jefferson City, while Arensberg was represented by Daniel F. Church of Morrow Willnauer Church in Kansas City.

During oral arguments, Arensberg’s counsel emphasized that the parties had stipulated during the disciplinary process that his conduct was negligent rather than knowing, arguing the OCDC should be bound by that agreement. In its Jan. 13 opinion, the state’s highest court rejected that position, holding that while factual stipulations are binding on the parties, the Supreme Court exercises independent, de novo review in attorney discipline cases and is not bound by the stipulation when determining intent or appropriate discipline.

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The court further found that Arensberg acted knowingly and that suspension was appropriate.

“Arensberg was fully aware of Son’s pending dissolution case and Client’s desire to minimize Wife’s claim to marital assets. The record also shows Arensberg was increasingly aware that any lawful interest Client had in legitimate asset protection was, in practice, giving way to fraud. That is why, beginning in early January 2020, Arensberg expressly advised Client on multiple occasions that adding Son’s interest … as collateral to secure Son’s loan from the Family Trust could lead to a fraudulent conveyance claim by Wife,” the opinion, authored by Judge Zel M. Fischer, stated. “Nonetheless, in response to Client’s request to prepare the security interest ‘asap,’ Arensberg suggested backdating the document ‘[t]o be consistent with any prior discovery responses … related to the loan.’”

Arensberg argued his case was comparable to Iowa Disciplinary Board v. Ouderkirk, in which that state’s Supreme Court found insufficient evidence that an attorney knowingly assisted a fraudulent conveyance. The Missouri court rejected the comparison, concluding that “unlike Ouderkirk, this Court’s de novo review of the record shows Arensberg acted knowingly.”

The court said suspension was the appropriate discipline and ordered an indefinite suspension with no leave to apply for reinstatement for six months. It stayed the discipline and placed Arensberg on probation, finding that he is unlikely to harm the public, can be adequately supervised, is able to practice law without causing the courts or the profession to fall into disrepute, and has not committed acts warranting disbarment.

The suspension is stayed as long as Arensberg successfully completes the one-year probation.

The case is In re: Mark W. Arensberg, Case No. SC101157.