The Chernobyl of Missouri Supreme Court Attorney Ethics Cases: In Re Krigel

If I were Chief Disciplinary Counsel for the OCDC, I would have a firm policy regarding the 4-3 decision of In re Krigel (2016): It would be disregarded as support for any argument. It would count for nothing.

I reject the case because it is a nonsensical mistake unlike any other I have ever seen. No legitimate legal argument can possibly be produced from a substantive citation of the case. The case can only show that attorneys can sometimes commit horrendous violations with almost no punishment.

Any other OCDC employee would be free to sit down across

from me at my desk and show me that I am missing something in my analysis.

I doubt my policy would change. I contacted the expert witness from the case (with whom I have had the pleasure of working). She agreed that the case sends a bad message and that the Court’s findings describe an obvious lie by Krigel. The law professors would not have even advocated for Krigel under the Court’s findings.

In re Krigel is probably the most well-known legal ethics case of the past decade. Many law professors were involved in different roles: counsel for Krigel, expert witness for Krigel and as amicus brief authors. The decision has been widely reviewed in secondary sources. It was a rare 4-3 split. The Judges were miles apart on the punishment. The dissent author favored disbarment. Instead, Krigel was merely placed on probation (effectively zero days of suspension).

In Re Krigel is a sua sponte mistake- meaning no one else involved asked for this particular result. The Court’s decision flew past the analysis of the law professors. It was not supported by any OCDC argument. Krigel never even argued it was justifiable. The Court, at the request of no one, inadvertently gave fraudulent attorneys reason to celebrate.

Krigel adopted a child away from his opponent (the birth father) without giving him notice of the hearing. The law professors said Krigel could ethically do that if the birth father did not take certain actions to protect his rights. However, the law professors’ advocacy was entirely contingent upon believing that Krigel did not lie to the birth father.

Apparently not picking up on that absolutely crucial distinction, the Court found that the first thing Krigel did as part of his strategy to have an uncontested adoption hearing, was to affirm to his opponent that he was not going to proceed to an uncontested adoption hearing. Krigel had denied telling his opponent that – yet the Court did not believe him in its findings.

Then, after deceiving his opponent into not protecting his rights, he produced documents and evidence at the uncontested adoption hearing asserting that he did not know of another party claiming custodial rights. So, under the Court’s findings, he lied his way straight through the case.

He lost the facts, but still won the case by only getting probation.

The factual findings reflected the state of mind of a fraudulent liar. However, the Court treated Krigel as an expert that merely made a mistake regarding the limits of the strategy detailed by the law professors.

The MO Supreme Court failed to engage in detailed legal analysis, and therefore did not pick up on the very important difference (link) between the brain of a law professor and the very abnormal legal mind described by their own factual findings.

Now any attorney can try to argue to the OCDC that their case should be dismissed because Krigel stole someone’s child as part of a series of false statements- and did not even serve a day of suspension. Why bother with bringing any charge, when conduct of the highest severity can simply be brushed aside?

More Reasons the Krigel Case is Dangerous and Destructive

1.      It creates a divide between real Court and the world of ethics law

The trial court set aside the uncontested adoption due to fraud. The MO Supreme Court did not find any different facts – they acknowledge the false statements- and yet treat the violation as something not serious. If a trial Court finds fraud, then there absolutely must be a well-reasoned explanation from the Supreme Court as to why the same facts do not show an intentional state of mind.

Instead, we have no explanation. The fraud found by the trial Court is downgraded in a cursory manner.

The decision assumes Krigel somehow did not fully understand that what he did was wrong. However, that would be impossible in the real judicial system.

When I read the decision years ago, I thought,“If any of those law professors tried to pull that against me, I (just like many, many of my colleagues) WOULD CRUSH THEM.” Likewise, the law professors would destroy me if I tried that against them.

I could not imagine talking with other family law practitioners and explaining:“Guess what? You know Professor Abby Normal, right? Well, LOOK OUT because she is going around telling birth fathers’ attorneys that she is not going to have an uncontested adoption hearing. Then, once they let their guard down and do not protect their rights, she proceeds to an uncontested adoption hearing without giving them notice.

Then she tells the Court that she does not know of anyone else claiming custody rights. She produces documents, testimony and statements to the Judge saying she does not know of other parties claiming custody rights.

She says she is an expert and so she knows it is her duty to zealously represent her client, so she is permitted- and maybe even required by duty- to make all those false statements. She calls it the ‘passive strategy.’ She says they are teaching it in law schools and all the adoption experts know about it. She said she is not going to stop!!!”

This would never happen. The expert witness law professor from the case, my respected colleague, confirmed she would never do this. In fact, she would have never advocated for Krigel if she thought he made the false statements found by the Court. The Court somehow did not pick up on this.

This is why I am so certain no one would be able to convince me I’m wrong. No one can explain to YOU why it is understandable for an attorney to believe they were permitted to make false statements that can only be viewed as being designed to deceptively induce you into not protecting your client’s rights.

No one has ever attempted to offer an explanation as to why someone would believe such a thing would be permitted. Not even the Court in its decision.

2.      No explanation from the Court

All experienced attorneys have probably at some time received a bad decision, with the Judge giving hardly a word of explanation. This is one of those cases.

Explanations protect the integrity of the system by showing that the Court did not merely pick its desired winner. Explanations also decrease the risk of mistakes: if the Court has to spell out its reasoning, then they must have done at least some reasoning. It’s like having to show your work on a math problem!

Rules and explanations are the safeguards that prevent judicial Chernobyls.

The Court only gives two reasons for not choosing an intentional state of mind:

a. Krigel had been a practicing attorney for more than thirty years with no disciplinary history prior to this incident.

This is a mitigating factor, and thus should play no role in determining Krigel’s state of mind. Mitigating factors come after determining a state of mind and the level of harm. How can you justify mitigating something before determining how severe the violation was?

b. One part of the dissent’s analysis cited a case where the attorney was caught in two separate incidents. The majority says Krigel was not caught twice.

So, the majority implies that any time they want, they can say,“Catch him twice next time. Then maybe we will consider doing our job. In the meantime, we do not have to further evaluate his state of mind and/or consider disbarment.”

These two reasons do not show, in any way whatsoever, that Krigel did not know it would be wrong to make the false statements found by the Court.

3.      It misinterprets the dissent’s citation

The majority states that the case is not like Olbermann because it does not involve two separate incidents. However, the dissent never says the case should result in disbarment because Krigel is like that case. Instead, they cite the case to mention the general standard for disbarment (intentional conduct with great harm).

The dissent gives a good amount of other analysis to why they agree with the trial court that it is fraudulent conduct.

Everyone hates it when someone misconstrues their argument.

This lets the majority escape explaining why the violations do not involve an intentional state of mind.

4.      This might be the most important issue the Court could possibly consider

Determining whether an attorney is intentionally creating severe harm to the judicial process might be the most important issue the Court could consider. The whole judicial process is worthless if we simply allow fraud. Fraud can destroy any case or subject matter.

Furthermore, this is not just a trial court considering a single, isolated fraud case. The Court is sending messages on how it view such conduct in general. Ethics cases before the Supreme Court involving fraud, affect ALL fraud cases.

The Court fails to truly evaluate Krigel’s state of mind. The difference between an attorney “knowingly” or “intentionally” making false statements is enormous. This distinction is the difference between something very serious and something partially understandable. It is the difference between disbarment and probation.

Attorneys want serious violations sanctioned. Attorneys are also afraid of being investigated and punished for understandable mistakes. This dividing line between intentional and knowing conduct is really THE dividing line in ethics.

If an attorney “intentionally” withholds evidence, this means the attorney knew that the other side should have the evidence, they knew the Judge would want them to hand it over, they knew it was evidence that was important to the case. Then they withheld it anyway. It is pure cheating and fraud!

Contrarily, an attorney committing “knowing” conduct may genuinely believe they were doing nothing wrong.

The Court simply avoids the issue of whether this attorney was cheating and defrauding the courts.

5.      Deference to experts

No one can say with certainty what caused the mistake. However, it appears that the Court was unduly forgiving to Krigel because he had experts advocate for him. He lost the facts when the Court determine he lied. But, the Court seemed to assume,“Well, all these law professors must know what they’re talking about.”

The Court did not understand the expertise, but was likely influenced by the mere presence of the experts. Any litigant who has felt that the identity of their opponent swayed their Judge (instead of the merits of the case) knows how unfair that feels.

6.      The “explanation” could be used for nearly any case

Any attorney without an ethics history that has not been caught in two unrelated, horrible schemes can get probation, based on the Court’s analysis. That reasoning covers any violation of any imaginable severity.

How do we know that the Court will not handle another case in this manner?

7.      The basic steps of ethics analysis are not followed

The Court ominously first reviews mitigating factors, even before analyzing Krigel’s state of mind.

The “legal analysis” of Krigel’s state of mind is to merely notes that he was not caught in two separate incidents.

The harm of the violation is not reviewed at all.

These are basic steps under the ABA Standards. They are not followed. It shows why we need to adopt the ABA Standards as actual rules.

8.      The implication is that lying is sometimes understandable

No explanation is given for not finding an intentional state of mind, so we have to fill in the gaps based on the arguments made by Krigel and his advocates.

He is an expert. He wanted to zealously represent his client. It makes sense he thought he could falsely explain his plans because it helped his client.

If Krigel did not know the communication was an obvious lie, what lie is obvious enough for the Court to find intentional conduct?

9.      It plays into the stereotype of lawyers as liars that use sneaky doubletalk

For Krigel to supposedly not understand what he did wrong (according to the Court), he would have to think the law somehow allowed him to flatly tell his opponent a false statement regarding the crux of the entire case. The Court finds this plausible.

The Court’s decision inadvertently implies,“Yeah, that’s how the law works sometimes. Krigel was wrong in this scenario. But, sure, in other times, you say one thing and it could mean the opposite. It is not a lie if it is allowed. Lawyers are the ones who know when you get to do those types of things.

Everyone knows that the things said in the judiciary do not reflect reality and truth outside of the court. One thing can easily mean another in the law. He just got a little tripped up on one of those issues.

The law experts are the ones that know which contradictions and false statements are actually capable of hidden secondary meanings. That is how the system works. The real hidden meaning is known by the true experts.”

This is the exact stereotype of lawyers the vast majority of the judicial system works so hard to avoid. I believe most lawyers are actually pretty honest (including the MO Supreme Court) and the judicial system is a pretty good method for reaching the truth.

However, the Court is not doing us any favors here with our reputation, due to all the absurd, inadvertent implications of the facts and results.

That is especially ironic, because the entire goal of these ethics cases is to protect the judicial integrity and they usually do a better job and there are rules and (usually) explanations in seemingly all substantive areas of law aside from ethics - thus providing greater safeguards against such a Chernobyl.

Conclusion

I asked Alan Pratzel if it could be revealed whether the Krigel case was argued in my Complaint. His response is that it is confidential.

If the case were used, it would have been nice to have an opportunity to respond, especially since I am the one who has unleashed the sword of truth from the stone of the Supreme Court’s split decision. Also, the facts of my Complaint were oddly similar to Krigel’s actions in several ways.¹

Regardless, currently during OCDC investigations, any attorney can use the Krigel case to argue that their own actions are not worth punishing. It is currently a potentially powerful weapon for cheating attorneys in Missouri, but it would not be if I were in charge of making policies.

1. For the record, though- I was not even given the chance to be deceived in my case. I then worked for nearly two years to eventually undo every bit of harm from the denial of due process.