There is an interesting decision out of the Missouri Supreme Court where lawyer Joel Eisenstein has been suspended with leave to file for reinstatement in six months. Eisenstein used information obtained by his divorce client by guessing his wife’s email password, including confidential information given by his wife’s lawyer. It is equally incredible to see how Eisenstein was found out.
Eisenstein was able to get the wife’s payroll documents and a list of direct examination questions prepared by her lawyer for an upcoming divorce trial. He used the information during a settlement conference. Then, in February 2014, the opposing lawyer discovered his list of questions in a stack of trial exhibits from Eisenstein.
Eisenstein admitted to having and using the information. What followed the disclosure was equally troubling. Eisenstein sent an email that read: “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”
So Eisenstein first commits an unethical act of nondisclosure and then follows with a threat against the attorney who was compromised. Two dissenting justices in the opinion below insisted that Eisenstein should be prevented from reapplying for 12 months at least.
The dissenting judges also noted that Eisenstein’s effort to gather support after the charges showed unprofessional conduct:
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.
The dissenting judges take Eisenstein for his portrayal of the claims and the fact that:
“[…]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.” On that point, I tend to favor Eisenstein. He is allowed to give his side (though the error in the number of members ruling against him is problematic) and I certainly do not see anything wrong with submitting such letters on his good character or prior practice. Nevertheless, after criticizing his failure to properly make the letter part of the record, the dissenting judges note that “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.”
What do you think? Do you agree that six months is sufficient as opposed to twelve months?
Here is the opinion: Eisentein opinion