In re Edgar E. LIM, Respondent, 210 S.W.3d 199

RONNIE L. WHITE, Judge. I. Respondent Edgar Lim obtained his Missouri license to practice law in 1975. The Office of Chief Disciplinary Counsel (CDC) alleges multiple violations of the rules of professional conduct in connection with Respondent’s representation of Gan-esh and Padma Krishnamurthy. The Court finds that Respondent violated Rule 4 — 1.16(

d) by withholding property to which his client was entitled upon termination of the representation. A public reprimand is ordered. II. The facts are undisputed. Respondent was admitted to the bar in 1975 and has practiced immigration law throughout his career. His disciplinary record contains an admonition in 2003 for violation of Rules 4-1.3 (diligence) and 4-3.1 (frivolous claim). At the time of the disciplinary hearing on the present matter, Respondent maintained a part-time practice in St. Louis.

In 1994, the Krishnamurthys hired Respondent to assist them to obtain a work visa and labor certification enabling Mr. Krishnamurthy to work in the United States and a residency permit for Mrs. Krishnamurthy. Respondent requested a fee of $4500. Respondent could not produce a written fee agreement but testified that one existed providing for late charges of $20 per month plus 9% per year. The Krishnamurthys paid Respondent $1000.

In October 1997, Respondent terminated representation and sent the Krishnamur-thys a letter dated November 3 advising them that “once we are paid ..., we will release your labor certification which is still our property until you pay for it” (emphasis in original). In December 2002, Respondent filed a collection action against the Krishnamurthys. In January, Respondent instructed his daughter and law partner to send a letter, on Lim & Lim letterhead, to the Krishnamurthys, threatening to report them to the United States Immigration and Naturalization Service (INS) if they faded to pay immediately.

In February 2004, Respondent sent a letter to the INS reporting that the Krishnamurthys “lack the good moral character needed to obtain immigration benefits” because they had “lied and deceived our office” and had an outstanding balance of “over $7000.” Respondent asked the INS to place the letter in the Krishnamurthys’ file “to prevent them from obtaining any further immigration benefits.” The Krishnamurthys hired Andrew Neill to represent them in Respondent’s collection action. Mr. Neill reported Respondent’s conduct to the CDC in September 2004, and the CDC filed an information against Respondent’s license.

The CDC alleged violations of Rules 4-1.16(d) (withholding client property), 4-1.6(a) (disclosure of confidential information without consent), 4-1.9 (use of information to detriment of former client), and 4-7.5 (implying partnership when none exists). Following a hearing in March 2006, the Disciplinary Hearing Panel (DHP) recommended that Respondent be suspended for six months. The CDC now seeks affirmation of the DHP’s recommendations. This Court has jurisdiction because it has the inherent authority to regulate the practice of law. III.

The findings of fact, conclusions of law, and the recommendations from the DHP are advisory. This Court reviews the evidence de novo and draws its own conclusions of law. Professional misconduct must be proven by a preponderance of the evidence before discipline will be imposed. Rule 4-1.16(

d) requires in pertinent part that “upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a Ghent’s interests, such as ... surrendering papers and property to which the client is entitled ...” The Court agrees with the CDC that Respondent’s November 3 letter to Mr. Krishnamurthy is a bald effort to coerce payment by withholding the labor certification — a document to which the client was entitled-in violation of Rule 4-1.16(d). The remaining alleged violations arise from Respondent’s letter to the INS.

While such vindictive behavior casts shame on the entire profession, the Court is not persuaded that the expression of Respondent’s personal opinion regarding the Krishnamurthys’ character constitutes a disclosure of confidential information under the rules. The cases cited by the CDC are distinguishable in that they involve situations where attorneys divulged substantive facts learned in the scope of representation as opposed to subjective opinions formed thereafter. Further, the outstanding debt was a matter of public record by virtue of the collection action.

Lastly, the law firm of Lim & Lim need not have registered with the secretary of state in order to be a valid partnership. The Court does not find a preponderance of evidence establishing violations of Rules 4-1.6(a), 4-1.9, or 4-7.5. IV. The fundamental purpose of an attorney disciplinary proceeding is to “protect the public and maintain the integrity of the legal profession.” The CDC cites Respondent’s letter to the INS as the primary basis for suspension under American Bar Association Standard Rule 4.22, which recommends suspension where a lawyer knowingly reveals confidential client information.

Having found no basis for suspension in Respondent’s letter to the INS, the Court must determine appropriate discipline for Respondent’s single violation of Rule 4-1.1.16(

d) for withholding property to which a client is entitled upon termination of representation. It is proper to consider mitigating factors, including the attorney’s previous record, when determining the appropriate discipline. Respondent has practiced law in this state for thirty-one years with only one minor prior disciplinary action. Reprimand is appropriate where an attorney’s breach does not involve dishonest, fraudulent, or deceitful conduct.

While Respondent’s overall comportment was certainly unprofessional and his letter to the INS reprehensible, his conduct does not rise to the level of fraud or deceit so as to warrant suspension. The Court orders a public reprimand for Respondent’s violation of Rule 4-1.16(d). WOLFF, C.J., TEITELMAN and LIMBAUGH,.JJ., concur; LAURA DENVIR STITH, J., concurs in part and dissents in

part in separate opinion filed; PRICE and RUSSELL, JJ., concur in opinion of LAURA DENVIR STITH, J. . In re Mid-America Living Trust Associates, Inc., 927 S.W.2d 855, 856 (Mo. banc 1996). . In re Snyder, 35 S.W.3d 380, 382 (Mo. banc 2000). . Id. . Id. . In those cases, lawyers attempting to recover their fees threatened to report information learned in the scope of representation such as a client's adultery (Lindenbaum v. State Bar, 26 Cal.2d 565, 160 P.2d 9 (1945)) and clients' misrepresentations to the Internal Revenue Service (In re Boelter, 139 Wash.2d 81, 985 P.2d 328 (1999) and In re Aydelotte, 206 A.D. 93, 200 N.Y.S. 637 (1923)). .

Section 358.060, RSMo 2000. . In re Waldron, 790 S.W.2d 456, 457 (Mo. banc 1990). . In re Cupples, 952 S.W.2d 226, 237 (Mo. banc 1997). . Id.