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Behind closed doors
Closure of attorney disciplinary hearing spurs test of new ‘open’ rules
By Melissa Meinzer
The state Supreme Court has halted one of the first lawyer disciplinary hearings under new rules to make the process more transparent — after Missouri Lawyers Weekly objected to the disciplinary panel’s closing the proceedings to the public. The newspaper filed an extraordinary writ Tuesday with the Missouri Supreme Court seeking to open the hearings about allegations of ethics violations against high-profile Clayton family law attorney Susan Hais. The court had MORE not yet ruled as of Inside press time Friday on whether Rule 5.31, TIMELINE • which it adopted last How the Hais July, allowed Hearing case has played Officer Bennett out since it Keller, of Lathrop & began in 2010. Gage, to close the entire three-day hearPAGE 11 ing at the request of the Office of Chief Disciplinary Counsel — and over the objections of not only Missouri Lawyers Weekly but also Hais. “This whole case has been rife with abuse,” Hais’ attorney Alan Mandel told the hearing panel, according to a small portion of the transcript that subsequently was released as part of court documents. “And now that we want to shine some light on the facts of the case, the Office of Chief Disciplinary Counsel wants to close it. Let’s let the public see the process.” The writ is the first challenge to define under what conditions hearing officers can close what are now deemed to be presumptively open meetings. The motion for a protective order to close the hearing, which attorney Shevon L. Harris filed for the Regional Disciplinary Committee for Region X, noted that matters in the four complaints against Hais relating to paternity and mental health had been sealed in circuit court. Lewis, Rice & Fingersh attorney Benjamin Lipman, representing Missouri Lawyers Media, wanted to address the panel Monday, but he was not allowed into the room at Lathrop & Gage, in Clayton. [ SE E D O O R S O N P AGE 1 0 ]
An attorney disciplinary panel met behind these closed doors after rejecting a request by Missouri Lawyers Media to keep the hearing open under new discipline rules. The day and place of the hearing were also kept confidential. Attorney Susan Hais wanted her hearing to be open to the public. Photo by Karen Elshout
Underlying cases have plagued Haises for years By Melissa Meinzer
Troubles for Hais, Hais, Goldberger & Coyne began in 2010. A client of the firm’s in a custody case, Maria Howard-Samples, revealed that she had been intercepting her ex-partner’s emails using a password he had given her when they were a couple. When the ex-partner, Michael Howard, learned about it, he filed a motion for sanctions, first against Howard-Samples and then against the Hais firm and attorneys Susan Hais, Samuel Hais and Elliot Goldberger. The Haises insist they never used the emails. In a meeting with Missouri Lawyers Weekly, Alan Mandel and Michael Downey, attorneys for the Hais firm, provided the newspaper with documents relating to the underlying cases in the
complaints. One, a labeled exhibit, is an exchange between Susan Hais and a paralegal at the firm from July 27, 2009. Hais: “can you please tell her to stop getting into his email and sending those to us. we are not going to use them and it is just goint to cause her trouble in her case if she keeps doing it. i’ve already told her that but she keeps sending them. thanks. susan” Paralegal: “I told her again to stop getting his e-mails and sending them to us.
She got very insistent on using them. It didn’t sound like she planned on listening to us.” A county judge, Barbara Wallace, sanctioned the firm in March 2011 and fined it $25,000 for the email matter. But the Missouri Court of Appeals Eastern District tossed the sanction a year later, in February 2012. In May, the Supreme Court declined to take another look at the issue. Meanwhile, attorney Shevon L. Harris with the Office of Chief Disciplinary Counsel’s Regional Disciplinary Committee for Region X filed disciplinary informations against the attorneys in August 2012. Those informations raised four counts: the Howard-Samples email matter; a matter relating to timely processing of child support checks by the [ SE E HAI SE S O N PAG E 11]
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April 8, 2013
M i s s o u r i L aw y e r s We e k ly
ODCD: Hearing closed ‘in good faith’ [DOORS FROM PAGE 1]
So he filed the writ with the Supreme Court. A few hours later, Supreme Court Chief Justice Richard Teitelman issued an order to stay the hearing. By the next day, OCDC had filed a response, allowing that the court should let some of the hearing be closed while opening the rest. ODCD’s response maintained that the hearing had been closed “in good faith” and that there is a compelling reason to keep some of the records sealed. “The Court should order the Respondents to continue protecting from disclosure any records sealed by other Missouri Courts. Those records should remain sealed for the same reasons that they were previously sealed,” the response said. “The attorney discipline case against Hais, Hais and Goldberger should not be used to expose the confidences of the parties in the underlying litigation.” “It’s encouraging that even they concede that at least part of this hearing was inappropriately closed,” said Richard Gard, president and publisher of Missouri Lawyers Media. “We disagree with them on how much should be closed. The protections they seek are way overbroad.”
Lewis, Rice & Fingersh attorney Benjamin Lipman, representing Missouri Lawyers Media, filed a writ with the Supreme Court, shown above, on Monday. A few hours later, Supreme Court Chief Justice Richard Teitelman issued an order to stay the hearing. Karen Elshout file photo
New rule, new day?
When Rule 5.31 was proposed, Missouri’s Office of Chief Disciplinary Counsel praised it as an effort for more transparency in the previously shrouded method of lawyer discipline in the state. “This will add to the credibility of the discipline system,” said Sara Rittman, then the state legal ethics counsel. “Any other professional licensing in Missouri is opened at the stage we’re opening it in this proposal.” Before the new rule took effect July 1, OCDC kept allegations of lawyers’ transgressions secret. The public would not know if an attorney was facing sanctions, much less what the details of the alleged misconduct might be, until OCDC had investigated, decided the allegations had merit, charged the attorney and filed its charges with the state Supreme Court. Then the proceedings would be opened — unless they were closed. Under the new rule, a document laying out an attorney’s alleged misconduct, called an “information,” became public as soon as the lawyer filed a responsive pleading. Last July, under the new rule, the OCDC released to Missouri Lawyers Weekly informations and responses for 36 attorneys facing discipline. Then, less than a year later, a hearing was slated on a disciplinary matter that had been the talk of the legal community. While the hearings are now presumptively open, the OCDC does not post when or where they are held. Missouri Lawyers Weekly learned of the Hais hearing through an anonymous telephone tip. When contacted, Melinda J. Bentley, the new legal ethics counsel for the state, insisted that the newspaper needed to have requested permission in writing five days in advance of the unannounced hearing. The five-day rule applies only to taking
photos or video of the proceedings. Bentley did not disclose the location of the hearing or the fact that the day before her office had moved to have the hearing closed to the public. The motion for protective order cited the new rule, Rule 5.31: “[A] protective order may be issued upon application of and for good cause shown in order to protect the interests Melinda J. Bentley, of a complainant, legal ethics counsel witness, third party for Missouri or respondent.” It mentions the matters in the four underlying complaints against Hais that had been sealed in circuit court. Yet most of those details are in the publicly available the Alan Pratzel, 150-page informachief disciplinary tions filed against counsel Hais in 2011 and released to Missouri Lawyers Weekly in July. Attorneys for Hais, who filed with the high court in support of the newspaper’s effort, said the allegations against their client are entirely baseless. They added that because of scheduling conflicts it will take months before the proceedings can begin again. Attorneys and staff at OCDC aren’t saying anything. Shevon Harris said she would have no comment on the matter. Chief Disciplinary Counsel Alan Pratzel did not respond to a
request for comment. Bentley refused to comment. But she wrote an email to Missouri Lawyers Weekly attorney Lipman upon closing the hearing. “This matter involves domestic relations cases with custody and other sensitive information being heard,” she wrote. “It also deals with lawyers’ personal matters and their reputations. Finally, it involves the sanctity of the legal profession and the public generally.” In his writ to the Supreme Court, Lipman wrote that OCDC’s reasons for excluding the public from the proceedings were “baseless” and that the reasons given “lack any specificity and fail to identify any particular harm that would befall an identified complainant, witness, third party or respondent.” “Rule 5.31 establishes a new era in which public access to disciplinary hearings is presumed, allowing for the transparency that affords the public confidence in the disciplinary system,” Lipman wrote. “It is patently baseless to support closure of the proceeding on grounds that the ‘lawyers’ personal matters and their reputations’ are at issue,” he wrote in the writ. “This consideration underlays all attorney disciplinary proceedings, and this reason will cause the exception to swallow the rule, as any proceeding could be closed by the subject attorney on grounds that the attorney’s ‘personal matters’ and ‘reputation’ are involved. Moreover, in this case, Ms. Hais wants the proceeding to maintain its public character.” He requested that the court void the meeting and rehear it — or give Missouri Lawyers Weekly access to the transcript of the proceedings.
Behind closed doors last Monday at Lathrop & Gage in Clayton, hearing officer Keller began the proceedings by adopting a conciliatory tone, according to a small portion of the transcript that was released as an exhibit attached to Pratzel’s response to Missouri Lawyers Weekly’s writ in the Supreme Court. “I know this stuff has been going on a long time for you guys, and I appreciate your — everyone’s patience and the like,” Keller said. “We’ll try to get this done as quickly as we can.” He gave the expected timing for the matter and discussed scheduling needs. “As you guys know who know me, I’m a corporate lawyer, not a litigator. So objections will be taken and — my mission really is to get as much of the facts out and what everybody wants to say as much as we can so we have a fair chance to figure out what we’re going to do with this.” The first matter up for discussion, according to the transcript, was the protection order. Harris made her case for it, and then Keller asked Mandel if he objected. “Absolutely,” Mandel replied, according to the transcript. He said that the Haises wanted to use the hearing as a platform to put the facts straight. “And why the Office of Chief Disciplinary Counsel wouldn’t want that to happen, it’s kind of like people scurrying for the darkness when the facts are going to be exposed,” Mandel said. Keller said that he was closing “the whole file” because of concerns about confidentiality. There’s no indication in the portion of the transcript Missouri Lawyers Weekly obtained that the panel considered the newspaper’s objection. mo
baseless to support closure of the proceeding on grounds “thatIt isthepatently ‘lawyers’ personal matters and their reputations’ are at issue. ” Benjamin Lipman, attorney for Missouri Lawyers Weekly
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Timeline: The Hais disciplinary case
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Oct. 19, 2011
• Maria Howard-Samples, a client in a contentious cus• Attorneys Michael Downey with Armstrong Teasdale tody case, reveals to her attorneys, the Haises, that she and Alan Mandel with Mandel & Mandel file answers to ent ploymthe has accessed former partner Michael Howard’s email. informations on behalf of the Hais firm. Em A call for help or e-mail 800-451-9998
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e Clayton famBarbara Wallac promi nent y Circuit Judge plunged into — St. Louis Count ily law firm has of , inits handli ng n of the emails scanda l over ce in a conten rather than deletio to ‘hurt’ petitionemailed eviden d her own conuse the emails was dispute. ra Wallace detaile conduct when tent to s that there tious custody s’ e the Barba a consciousnes about having lawyer and becom the er, has 15 about The case cerns not right ons in a March Louis famattorsomet hing just levied the sancti ner and his y divided St. she bitterl petitio a of of sanc0 talk ct the emails e wrote in that judgment. ent. features a $25,00 erger & judgm Court is shocked at the condu Wallac ily law bar and ated of lead neys,” “The Hais, Hais, Goldb le firms sion has percol tion against prima rily that Heated discus St. Louis the highest-profi receipt of the Hais Firm, e wrote. ioners in the Wallac practit Coyne, one of in Hais,” of one-day , for being the among el Susan since a pair n oppos- couns judge went on to charac terize in the field locally family law bar er, which The of emails betwee if not necgs in Octob of hundreds s as wrong, even sanction hearin enaed testimony of his client. subpo so firm’s action . the high, ed ing counsel and g featur are runnin ce, and essarily illegal attorneys. The emotions credible eviden the on-thethree Hais firm “Clearly, the that some of response by [Susan 12] high in fact no longer specifically this IONS ON PAGE ions of a lawyer edge of [SEE SANCT printable very hersel f, indicates knowl record allegat sion, case are not Hais] emails, posses involved in the libel suit. content of the ga coM Judge the without riskin yerSMedia. y Circuit w w w. M o l aw St. Louis Count
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• Missouri Lawyers Weekly informs Missouri Ethics Counsel Melinda Bentley that it wants to know when and where the hearings are being held, so a reporter can attend.
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• Michael Howard files a motion for sanctions against Howard-Samples; the Hais firm withdraws from representing her.
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February 2012 • The Missouri Court of Appeals Eastern District tosses Wallace’s penalty against the Haises.
Sept. 29, 2010 • Howard adds the Hais firm, Susan Hais, Samuel Hais and Elliot Goldberger to his motion for sanctions.
• The Missouri Supreme Court declines to take up the sanctions case.
July 1, 2012
March 15, 2011 • St. Louis County Circuit Judge Barbara Wallace imposes sanctions the Hais, Hais, Goldberger & Coyne firm for $25,000 in the Howard-Samples matter.
Aug. 22, 2011 • Attorney Shevon L. Harris files disciplinary informations with the Office of Chief Disciplinary Counsel in the Howard-Samples matter and three other Hais divorce cases: the Holtgrewe, Praszkier and Selsor matters. Those three allege untimely processing of child support checks, making an unsupported claim for relief in a proposed judgment and withholding information from opposing counsel, respectively.
• New Supreme Court lawyer discipline rules go into effect. Before the rule, lawyer discipline records were sealed until after the OCDC recommended discipline and the case was filed in the high court. After the rule, a document called an “information” laying out the disciplinary matter from OCDC and the lawyer’s answer are public. The rule states that “all related proceedings are public unless a protective order is issued.” No mechanism for alerting the public to hearings is created.
March 29, 2013 • A tipster alerts Missouri Lawyers Media that the Hais hearing on the four counts from the 2011 informations is set to begin April 1 and should last four days. Harris files a motion with the disciplinary hearing panel to close the hearing and seal the record entirely, or to close the hearing and seal parts of the previously released informations.
April 1, 2013 • The disciplinary hearing of Susan Hais begins. The hearing, at the offices of Lathrop & Gage in Clayton, is closed by order of the disciplinary panel that morning before it begins. Bennett S. Keller, a partner at Lathrop & Gage, heads the panel, which also includes lay member Chad Engler and Frederick Switzer of Danna McKitrick. Benjamin Lipman, of Lewis, Rice & Fingersh, files a motion with the disciplinary panel asking for access on behalf of Missouri Lawyers Media. The panel denies his request without hearing from him in person.
April 2, 2013 • Lipman files a writ with the Missouri Supreme Court asking that the high court either void the two days of hearing that have elapsed and hear the case again publicly, or release the transcripts of the testimony that has already happened. Susan Hais and the firm, Hais, Hais & Goldberger, file a motion with the Supreme Court in support of Missouri Lawyers Media’s request for access. The Supreme Court halts the proceedings until it rules further. In its response to the writ, OCDC writes that it is willing to open the remainder of the hearing while having the transcripts and evidence from the two days that already took place selectively sealed and redacted at their discretion.
Haises deny guilt in all of the accusations [HAISES FROM PAGE 1]
firm; a claim that the firm made unsupported claims for relief in a proposed judgment in a divorce; and withholding information from opposing counsel in another divorce. The matter of the child support checks arose out of the Holtgrewe divorce case. In the information filed by Harris, it says that ex-husband Kurt Holtgrewe would send child support and maintenance checks to his former wife, Mary Holtgrewe, through the mail directly to the Hais law firm. Mary Holtgrewe would visit the firm and sign the checks directly over to the law firm to pay her legal fees, and occasionally days or weeks would elapse between the firm’s receipt of the checks and Ms. Holtgrewe’s arrival to endorse them. The specific charge in the information is failing to promptly deliver the checks to Mary Holtgrewe. In a letter to Harris attached to the answer in the Holtgrewe matter, a snippet of conversation between Mary Holtgrewe and her husband’s attorney appears: “Well, I believe in paying my attorney, I was supporting my child’s welfare,” she replied to
a question about using the support and maintenance money to pay her lawyers. The allegation relating to the unsupported claim for relief in a proposed judgment stems from the Praszkier divorce, where the ex-wife was represented by the Hais firm. The ex-husband, an attorney, had received a fee of a half-million dollars. The wife said it was dissipated marital assets subject to division, but the ex-husband said he spent it legitimately, on things like taxes and referral fees. Hais attorney Michael Downey said Herman Praszkier provided bank records of where the money had gone, but that the exhibits were unclear. In her answer to the information, though, Susan Hais admits that the original version of the Praszkier judgment said that the proposed findings she prepared were “misleading in many respects and not consistent with the evidence,” amended to read that they were “clearly not consistent with the evidence.” In another divorce case, Selsor v. Selsor, both sides hired psychologists to evaluate their clients to help determine their parental fitness. The Haises are accused of directing their hired doctor, Dr. Dragan
I would look at “ lawyer-on-lawyer
complaints with a grain of salt. Is there a motive?
Alan Mandel, attorney for the Haises
Skravic, to fax a shortened version of his evaluation of the wife to the opposing counsel. A note from Dr. Skravic’s staffer, though, indicates a misunderstanding. The Haises deny guilt in all of the accusations, and their attorneys find it odd that OCDC has pursued the cases for so long. “I’m not a big conspiracy freak, I’m a lawyer,” Hais attorney Alan Mandel said. “I look at the facts. The only explanation that makes sense is that they’ve expended
a ton of effort and not gotten anywhere. I have a lot of respect for [Chief Disciplinary Counsel] Alan Pratzel,” he said, noting that the two were law school classmates. “I’ve found his actions in this case to be completely out of character.” Of the four divorce cases, opposing counsel in at least part of three of the four cases was the firm Paule, Camazine & Blumenthal. Mandel said he found that curious but didn’t directly say the competitor was involved in the sanctions against the Haises. “I would look at lawyer-on-lawyer complaints with a grain of salt,” Mandel said. “Is there a motive?” A message left for Alisse Camazine was returned by Thomas Blumenthal, partner of the firm and general counsel to the firm. He said that he had advised Camazine not to discuss the matter as it was pending before OCDC, and he would not answer questions about the matter. Regarding the suggestion that Paule, Camazine & Blumenthal might be behind the allegations against the Haises, Blumenthal said, “That is untrue.” MO