            SUPREME COURT OF MISSOURI
                                        en banc



IN RE: JOEL B. EISENSTEIN,                         )
                                                   )    No. SC95331
                            Respondent.            )

                      ORIGINAL DISCIPLINARY PROCEEDING

                                Opinion issued April 5, 2016

       The Office of Chief Disciplinary Counsel (OCDC) filed an information charging

Joel Eisenstein with several violations of the Rules of Professional Responsibility. A

disciplinary hearing panel (DHP) found that Mr. Eisenstein violated Rules 4-8.4(c), 4-

8.4(d), 4-3.4(a) and 4-4.4(a) by using illegally obtained evidence, including the work

product of opposing counsel. The DHP recommended an indefinite suspension with no

leave to apply for reinstatement for 12 months. Mr. Eisenstein rejected the recommended

discipline. This Court finds that Mr. Eisenstein violated the rules as determined by the

DHP and orders that he be suspended indefinitely with no leave to reapply for

reinstatement for six months.

                                           Facts

       Mr. Eisenstein was licensed as an attorney in Missouri in 1974. Mr. Eisenstein’s

license has been disciplined on five prior occasions. In 1991 and again in 1999,

Mr. Eisenstein was admonished for violating Rule 4-3.5(b) by engaging in ex parte

communications with the judge. In 1997, this Court suspended Mr. Eisenstein after he
pleaded guilty to a federal misdemeanor for willfully failing to file an income tax return.

In 2001, Mr. Eisenstein was admonished for violating Rule 4-8.1(b) by failing to respond

to the OCDC’s request for information regarding an ethics complaint. Finally, in 2004,

Mr. Eisenstein was admonished for violating Rule 4-3.3(d) for failing to inform the court

of material facts relevant to a pending issue.

       The present disciplinary matter involves Mr. Eisenstein’s representation of his

client (Husband) in an action to dissolve Husband’s marriage to Wife. Attorney

Stephanie Jones represented Wife. On multiple occasions, Husband accessed Wife’s

personal e-mail account without her permission. Mr. Husband obtained Wife’s most

current payroll documents and a list of direct examination questions Ms. Jones had e-

mailed to Wife in preparation for trial. In November 2013, Husband delivered the payroll

documents and list of direct examination questions to Mr. Eisenstein.

       On February 11, 2014, the second day of trial, Mr. Eisenstein handed Ms. Jones a

stack of exhibits that included Ms. Jones’ direct examination questions. Prior to this

time, neither Ms. Jones nor Wife was aware that Husband had improperly accessed

Wife’s e-mail account and delivered the information to Mr. Eisenstein. Ms. Jones

requested a conference with the trial judge and a hearing on the record.

       At the hearing, Husband admitted that he improperly accessed Wife’s personal

e-mail account and obtained the list of direct examination questions and the payroll

information. Husband admitted that he made notes on the list and delivered the

documents to Mr. Eisenstein.
       Ms. Jones also questioned Mr. Eisenstein on the record. Mr. Eisenstein admitted

that he had viewed the information improperly obtained by Husband and that he did not

immediately disclose his receipt of this information to Ms. Jones:

         Q. And you said you were going to object to all of my leading
         questions that are contained in the outline?

         A. Well I was teasing you, counsel, I haven’t read –

         Q. Did you say that or not?

         A. I teasingly said that to you, yes I did.
         Q. So you said that?

         A. I told you that I had read the – that at some point in time I had read
         the first portion of that and realized that it was verboten, it was
         something that I should not have.

         Q. But you never came to me and said I have your outline, however,
         you came to be in possession of it, did you?

         A. No, I didn’t counsel. I handed it to you this morning.

         Q. Thank you.

       On February 14, 2014, Mr. Eisenstein sent the following e-mail to Ms. Jones:

         Rumor has it that you are quite the gossip regarding our little spat in
         court. Be careful what you say. I’m not someone you really want to
         make a lifelong enemy of, even though you are off to a pretty good
         start. Joel.

       The OCDC filed an Information charging Mr. Eisenstein with violating Rules 4-

4.4(a) for using methods of obtaining evidence in violation of the rights of a third person;

4-8.4(c) and (d) for reviewing and using improperly obtained evidence; 4-3.4(a) for

unlawfully concealing a document having evidentiary value; and 4-3.3(a) for

misrepresenting facts to a tribunal. The DHP held a hearing and determined that

                                              3
Mr. Eisenstein violated Rules 4-4.4(a), 4-8.4(c) and (d), and 4-3.4(a). In addition to

possessing Ms. Jones’ direct examination questions, the DHP also found, based on

Ms. Jones’ testimony, that Mr. Eisenstein had used the improperly obtained payroll

information during a pre-trial settlement conference. The DHP recommended an

indefinite suspension with no leave to apply for reinstatement for 12 months. Mr.

Eisenstein rejected this recommendation. This Court has jurisdiction pursuant to its

inherent power to regulate the practice of law.

                                   Standard of Review

       The DHP’s findings of fact, conclusions of law, and recommendations are

advisory, and this Court may reject any or all of the DHP’s recommendations. In re

Coleman, 295 S.W.3d 857, 863 (Mo. banc 2009). “Professional misconduct must be

proven by a preponderance of the evidence before discipline will be imposed.” In re

Farris, 472 S.W.3d 549, 557 (Mo. banc 2015). “This Court decides the facts de novo,

‘independently determining all issues pertaining to credibility of witnesses and the weight

of the evidence, and draws its own conclusions of law.’” Id., quoting In re Snyder, 35

S.W.3d 380, 382 (Mo. banc 2000).

                                       Rule 4-4.4(a)

       The information alleged that Mr. Eisenstein violated Rule 4-4.4(a) by utilizing the

payroll information and list of direct examination questions that were improperly

procured by Husband. Rule 4-4.4(a) prohibits a lawyer from using “methods of obtaining

evidence that violate the legal rights” of a third party. Comment 1 to Rule 4-4.4(a)



                                             4
specifically notes that the rule is intended to prevent “unwarranted intrusions into

privileged relationships, such as the client-lawyer relationship.”

       The preponderance of the evidence supports a finding that Mr. Eisenstein violated

Rule 4-4.4(a). Ms. Jones testified credibly that Mr. Eisenstein had referenced

information from Wife’s payroll documents during pretrial settlement negotiations.

Further, Mr. Eisenstein admitted that he reviewed the information provided by Husband,

realized it was “verboten,” and did not immediately disclose his receipt of the

information to opposing counsel. Mr. Eisenstein’s failure to promptly disclose his receipt

of the information and return it to Ms. Jones until after the trial had commenced supports

a finding that Mr. Eisenstein utilized Husband’s improper acquisition of Wife’s personal

information, including privileged attorney client communications.

       Mr. Eisenstein argues that he did not use improper means to obtain the evidence

because it was Husband who obtained the information. The fact that Husband obtained

the information does not negate the fact that Mr. Eisenstein received the information,

realized it was “verboten,” and then failed to disclose his receipt of that information until

the second day of trial. The comment accompanying Rule 4-4.4(a) recognizes that

lawyers “sometimes receive documents that were mistakenly sent or procured by

opposing parties or lawyers.” However, when a lawyer knows that he or she has

improperly received information, “Rule 4-4.4 requires the lawyer to promptly notify the

sender in order to permit that person to take protective measures.” In this case, Rule 4-

4.4 required Mr. Eisenstein to promptly disclose his receipt of the information to



                                              5
Ms. Jones so that appropriate protective measures could be undertaken. Mr. Eisenstein

did not do so.

       Mr. Eisenstein also argues that he immediately disclosed his receipt of the

information. Mr. Eisenstein asserts that when he testified in chambers that he had

realized “at some point in time” that the information was “verboten,” he was explaining

that he had just realized that the information was improperly obtained. If Mr. Eisenstein

had just discovered the source of the information minutes before his in-chambers

testimony, he could have so stated. The DHP did not find Mr. Eisenstein’s explanation

credible and neither does this Court. Mr. Eisenstein violated Rule 4-4.4(a).

                                       Rule 4-8.4(c)

       Rule 4-8.4(c) prohibits a lawyer from engaging “in conduct involving dishonesty,

fraud, deceit, or misrepresentation.” Mr. Eisenstein’s violation of Rule 4-4.4(a) by

obtaining evidence procured through improper means and failing to immediately disclose

the same to opposing counsel demonstrates a violation of Rule 4-8.4(c).

                                      Rule 4-3.4(a)

       Rule 4-3.4(a) provides, in part, that a lawyer shall not “unlawfully obstruct another

party’s access to evidence or unlawfully alter, destroy, or conceal a document or other

material having potential evidentiary value.” Mr. Eisenstein violated Rule 4-3.4(a) by

concealing his possession of Wife’s payroll information and Ms. Jones’ direct

examination questions until the second day of trial.




                                             6
                                       Rule 4-8.4(d)

       The information alleged that Mr. Eisenstein violated Rule 4-8.4(d) by sending a

threatening e-mail to Ms. Jones. Rule 4-8.4(d) prohibits a lawyer from engaging “in

conduct that is prejudicial to the administration of justice.” Mr. Eisenstein’s e-mail to

Ms. Jones clearly implied that Ms. Jones would suffer professional retribution if she

further discussed the issue. Threatening opposing counsel during the course of litigation

or to avoid an ethics complaint constitutes conduct prejudicial to the administration of

justice. Mr. Eisenstein’s conduct violated Rule 4-8.4(d).

                        Suspension is the Appropriate Discipline

       The purpose of attorney disciplinary proceedings is “to protect the public and

maintain the integrity of the legal profession.” In re Ehler, 319 S.W.3d 442, 451 (Mo.

banc 2010). When imposing discipline, this Court considers the ethical duty violated, the

lawyer’s mental state, the extent of actual or potential injury caused by the attorney’s

misconduct, and any aggravating or mitigation factors. Id. The ABA Standards for

Imposing Lawyer Sanctions (1991) provide guidance for assessing the appropriate

discipline. Id. at 451-52.

       ABA Standard 6.12 provides that “suspension is generally appropriate when a

lawyer knows that material information is improperly being withheld, and takes no

remedial action, and causes injury or potential injury to the legal proceeding, or causes an

adverse or potentially adverse effect on the legal proceeding.” ABA Standards 6.1 and

6.12 provide that suspension is appropriate when the case involves “conduct that is



                                             7
prejudicial to the administration of justice or that involves dishonesty, fraud, deceit, or

misrepresentation to the court.” In re Madison, 282 S.W.3d 350, 361 (Mo. banc 2009).

       According to the ABA Standards, “knowledge” is the conscious awareness of the

nature or attendant circumstances of the conduct but without the conscious objective or

purpose to accomplish a particular result. ABA Standards Definitions, p. 17.

Mr. Eisenstein admitted that he reviewed the information and concluded that it was

“verboten.” Yet Mr. Eisenstein did not disclose his discovery of the improper evidence

to Ms. Jones. Mr. Eisenstein’s recognition that he should not have possession of the

information and his decision to not disclose his receipt of that information demonstrate

that he acted knowingly. Mr. Eisenstein’s retention and use of the improperly obtained

evidence warrants a suspension.

       Although suspension is the presumptive discipline, the Court must consider

mitigating and aggravating circumstances before determining whether to depart from this

discipline in a particular case. In re Belz, 258 S.W.3d at 42. Mitigating factors do not

constitute a defense to a finding of misconduct but may justify a downward departure

from the presumptively proper discipline. Ehler, 319 S.W.3d at 452. Similarly,

aggravating circumstances may justify a level of discipline greater than the presumed

discipline or confirm that the presumed discipline is appropriate for the particular case.

       Mr. Eisenstein asserts that any discipline should be mitigated by his lack of a

dishonest or selfish motive. The ABA Standards indicate that a suspension is warranted

where the lawyer knowingly and improperly withholds information. The lack of a

dishonest or selfish motive is not dispositive. As established, the preponderance of the

                                              8
evidence demonstrates that Mr. Eisenstein knowingly retained the improperly obtained

evidence and did not promptly disclose his receipt of that information so that protective

measures could be employed.

       Mr. Eisenstein also asserts that he suffers from post-traumatic distress syndrome

due to his military service in Vietnam. Mr. Eisenstein does not elaborate on how this past

military service in any way excuses the professional misconduct in this case. There are

no mitigating factors.

       Mr. Eisenstein’s four prior admonitions and previous suspension are aggravating

factors. Mr. Eisenstein’s prior disciplinary history, considered with the violations in this

case, warrant a suspension with no leave to apply for reinstatement for six months.

                                          Conclusion

       Mr. Eisenstein is suspended indefinitely with no leave to reapply for six months.

Reinstatement will be conditioned on meeting the requirements for readmission set out in

this Court’s rules.

                                              ______________________________________
                                              Richard B. Teitelman, Judge

Breckenridge, C.J., Stith, Draper and
Russell, JJ., concur; Fischer, J., dissents
in separate opinion filed; Wilson, J.,
concurs in opinion of Fischer, J.;
Wilson, J., dissents in separate opinion
filed; Fischer, J., concurs in opinion of
Wilson, J.




                                                9
                SUPREME COURT OF MISSOURI
                                              en banc
IN RE: JOEL B. EISENSTEIN,                              )
                                                        )       No. SC95331
                                Respondent.             )

                                      DISSENTING OPINION

        I respectfully dissent. I agree with the principal opinion that Eisenstein has violated

Rules 4-4.4(a), 4-8.4(c), 4-3.4(a), and 4-8.4(d), and that Eisenstein should be suspended

indefinitely. However, in my view, Eisenstein should be suspended indefinitely with no

leave to apply for reinstatement for 12 months, rather than 6 months. 1

        As noted in the principal opinion, this Court has sought guidance from the ABA

Standards for Imposing Lawyer Sanctions. See, e.g., In re Coleman, 295 S.W.3d 857, 869

(Mo. banc 2009). The principal opinion correctly concludes that Eisenstein's misconduct

warrants a suspension under Standards 6.1 and 6.12. Under the ABA Standards, six months

is the minimum period of time that a suspension should last before an attorney is allowed to

seek reinstatement. ABA Standard 2.3. That is, the recommended baseline discipline for

misconduct warranting a suspension is a suspension with no leave to apply for reinstatement

for six months. Id. Under Standard 9.1, an adjustment to the baseline discipline may then

be justified by the presence of aggravating or mitigating factors.


1
  I also agree with Judge Wilson's dissenting opinion that it was inappropriate for Eisenstein to
solicit letters of support in an effort to influence this Court, and that such letters were not part of the
record before this Court.
       Despite purporting to consider aggravating and mitigating factors, and further finding

there are no mitigating factors in this case but only aggravating factors, the principal opinion

still concludes the baseline discipline is appropriate. This creates a noticeable disconnect

between the principal opinion's purported process and its ultimate conclusion. While there

are no mitigating factors in this case, there are indeed numerous aggravating factors present

that justify an upward deviation from the baseline discipline, including: (1) prior

disciplinary offenses; (2) a dishonest or selfish motive; (3) a pattern of misconduct;

(4) multiple offenses; (5) refusal to acknowledge the wrongful nature of his conduct; and

(6) substantial experience in the practice of law. See Standards 9.22, 9.32. There were

multiple instances of misconduct and multiple rules violations by Eisenstein in this case

alone, and Eisenstein, who has continually refused to acknowledge any wrongdoing and

even threatened a fellow attorney in an attempt to quiet any accusations of wrongdoing, has

already been disciplined five times in the last 25 years, including one suspension.

Accordingly, if the lack of mitigating factors and multiplicity of aggravating factors are

truly given due consideration, something greater than the baseline discipline is warranted.

       More persuasive than the ABA Standards, this Court should be guided by its actions

in past disciplinary cases. In re Stewart, 342 S.W.3d 307, 310 (Mo. banc 2011). In the past,

this Court has not just acknowledged aggravating and mitigating factors, but actually

accounted for such factors in deviating from the appropriate baseline discipline. See, e.g., In

re Crews, 159 S.W.3d 355, 359–61 (Mo. banc 2005) (determining suspension was justified

and suspending attorney indefinitely with no leave to apply for reinstatement for one year

where there were numerous rule violations and attorney refused to recognize his

                                               2
wrongdoing); In re Donaho, 98 S.W.3d 871, 875–76 (Mo. banc 2003) (determining

disbarment could be justified, finding suspension appropriate after consideration of

mitigating factors, and suspending attorney indefinitely with no leave to apply for

reinstatement for 12 months, rather than the 9 months recommended by the OCDC, after

consideration of aggravating factors).    Moreover, this Court "adheres to a practice of

applying progressive discipline when imposing sanctions on attorneys who commit

misconduct." In re Forck, 418 S.W.3d 437, 444 (Mo. banc 2014); see also In re Ehler, 319

S.W.3d 442, 445 (Mo. banc 2010) (disbarring attorney after attorney previously received a

six-month stayed suspension with two-year term of probation and then committed further

misconduct). Notably, this Court has already once before suspended Eisenstein indefinitely

with no leave to apply for reinstatement for six months.

       "The goals of attorney discipline are to protect the public, ensure the administration

of justice, and maintain the integrity of the profession." In re Coleman, 295 S.W.3d at 869.

Eisenstein's misconduct in this particular case has been prejudicial to the administration of

justice and his continued misconduct denigrates the integrity of the profession. Following

the ABA Standards and this Court's past practices, Eisenstein's misconduct certainly

warrants a suspension.    However, the baseline discipline for misconduct warranting a

suspension is simply insufficient when considering the goals of attorney discipline, the

aggravating factors in this case, and this Court's previous discipline of Eisenstein. I would,

therefore, suspend Eisenstein indefinitely with no leave to apply for reinstatement for 12

months.


                                                      Zel M. Fischer, Judge
                                              3
            SUPREME COURT OF MISSOURI
                                        en banc

IN RE: JOEL B. EISENSTEIN,                         )
                                                   )     No. SC95331
                            Respondent.            )

                                DISSENTING OPINION

       I respectfully dissent. I agree with the discipline recommended by the disciplinary

hearing panel (“DHP”) for the reasons expressed in Judge Fischer’s dissenting opinion.

I write separately, however, to address the mistaken impression that it is appropriate for

Respondent to solicit communications from members of the bar and judiciary for the

purpose of influencing the Court’s resolution of this matter.

       On September 1, 2015, a copy of the DHP’s decision was served on Informant and

Respondent. On September 17, Respondent notified the Advisory Committee that he

would not accept the DHP’s recommendation. As a result of this rejection, the matter

was set for briefing and argument in this Court.

       Five months after the DHP’s decision, and barely three weeks before the argument

date in this Court, Respondent solicited letters of support from members of the bar and

judiciary. One of these solicitations took the form of an email titled: “I’m too old for

this xxxx!!” [Expletive deleted.] Included with this email was Respondent’s four-page

“complete history” of the charges and the DHP decision. This explanation varies greatly
from the facts found by the DHP five months earlier, misstates that only two of the three

members of the DHP found against the Respondent, and concludes by stating that

Respondent had “appealed” the matter to this Court and the argument was set for

February 24, 2016.

       As a result of Respondent’s solicitations, thirty-five attorneys and three sitting

Missouri judges sent letters to the Office of the Chief Disciplinary Counsel (“OCDC”).

None of these letters purport to offer any first-hand knowledge of the facts charged by the

OCDC and found by the DHP. Instead, the letters merely attest to Respondent’s good

character and reputation and laud his service to our country as a combat veteran. On

February 25, the day after the matter was argued and submitted to this Court,

Respondent’s counsel asked the OCDC to forward these letters to this Court. The OCDC

complied, submitting the packet of letters to the clerk of this Court under Rule 84.20.

       Respondent’s letters are not before this Court. They were not presented to the

DHP, see Rule 5.19(d) (where respondent rejects DHP’s decision, the OCDC “shall file

in this Court the complete record made before the disciplinary hearing panel”), nor did

Respondent move to supplement the record in this Court. Even if Respondent had sought

to make these letters part of the record, they likely would not have been admitted because

they lack probative value regarding either Respondent’s misconduct or the appropriate

discipline. This Court has noted:

       Evidence of good character is much more appropriate in regard to
       assessment of sanctions for discipline where the attorney has admitted to
       the misdeeds and shows some remorse. It is then helpful to fathom just
       what sanctions are most likely to preserve the integrity of the profession
       and protect the public. But where, as here, the accused stands in unbowed

                                              2
       opposition to the administration of justice, though the evidence against him
       is far greater than that required by disciplinary proceedings, and no remorse
       is shown, evidence of otherwise good character is less of an aid in
       fashioning sanctions.

       Critical to any opinion as to the appropriate sanction is a full knowledge of
       the conduct alleged and charged. The character witnesses who testified
       indicated that they were not familiar with the conduct charged in the
       information.

In re Frick, 694 S.W.2d 473, 480 (Mo. banc 1985).

       Rather than attempting to include these letters in the record before the DHP or this

Court, Respondent’s counsel merely requested that the OCDC submit them to the clerk of

the Court under Rule 84.20. 1 This does not make them part of the record, and it would no

more be appropriate for the Court to consider these letters than if the authors had sent

them directly to chambers or called individual judges in an attempt to alter the outcome

of this proceeding.

       But it is not sufficient merely to note the futility of Respondent’s letter-writing

campaign. Instead, this Court has made it plain in the past that such letters demonstrate a

lack of understanding of the process spelled out in Rule 5 and a lack of respect for the

canons of judicial ethics.

       In passing we note that in addition to those who testified, one hundred
       forty-two prominent individuals or couples and 68 lawyers affixed their
       signatures to instruments denominated to be “amicus curiae briefs,”

1
  If letters of support are not presented to the DHP or otherwise made part of the record in this
Court, it matters not how they are presented. See In re Frick, 694 S.W.2d at 480 n.4 (“In the
Application for Reinstatement of Donald M. Witte, (not reported), the Court was bombarded
with 37 letters on behalf of the applicant, 19 being from members of the judiciary itself, 8 from
lawyers, and 10 from prominent citizens in the area. In In the Matter of Kohn, 568 S.W.2d 255
(Mo. banc 1978), 32 letters were offered as an exhibit.”).

                                                3
       advocating acquittal of or leniency toward respondent. There is no
       evidence before us that any of these persons were more knowledgeable of
       the facts surrounding respondent’s conduct than the character witnesses
       previously discussed.

       It is unfortunate that recent cases, including this case, indicate that there
       may be a growing belief that the Missouri judiciary will be responsive to
       appellate practice techniques much resembling the letter writing
       bombardments and the petition signing campaigns to which legislative
       bodies are subjected. We do not believe that the citizens of Missouri either
       expect or want a judiciary which responds to such practices. Nor do we
       believe that such practices have a place in the orderly administration of
       justice under the rule of law. We have no difficulty in understanding and
       excusing what we believe to be the well-intentioned responses of those who
       are untrained in the law. It is no compliment to the Court, however, that
       there may exist within the profession those who believe that such tactics
       might influence the decision of the Court. Recognizing that there is an
       appropriate and legitimate use and function of amicus curiae briefs in
       our judicial process, we caution all that letter writing bombardments and
       petition signing campaigns are no part of that process and are not
       welcomed by the Court.

In re Frick, 694 S.W.2d at 480-81 (emphasis added and footnote omitted).

       Accordingly, it bears repeating that the type of letters solicited by Respondent

have little utility when properly offered as part of the record and no utility when sent to

this Court outside the record after the case has been argued and submitted.




                                                       Paul C. Wilson, Judge




                                              4
