Disciplinary hearing for former circuit attorney offers low stakes, high intrigue

At a Clayton courthouse yesterday it was as if a game of legal musical chairs had gone off the rails: a former circuit attorney sitting at the equivalent of the defendant’s table, a federal prosecutor at the witness stand, a TV judge behind the bench. 

Former St. Louis Circuit Attorney Kim Gardner was the one in the hot seat facing ethics violations alleged by the Office of Chief Disciplinary Counsel for the Missouri Supreme Court that stem from her tapping public coffers to pay fees for previous ethics violations stemming back to 2018. The most severe consequence she could possibly face would be disbarment—which would have little practical bearing, as Gardner appears to be neither living in Missouri nor practicing law. (She had nursing ambitions, readers may recall.) 

Gardner is represented by Harvard law professor Ronald Sullivan, as well as her longtime friend and former contract employee Maurice Foxworth, who was recently re-admitted to the bar. The federal prosecutor on the witness stand was Assistant U.S. Attorney Hal Goldsmith, who brought a case against Gardner over the same set of facts at the heart of the current ethics violations. Gardner signed a diversion agreement in that case in which she avoided charges but admitted responsibility to the underlying conduct. 

That seemingly unambiguous written record may lead one to wonder what’s left to be adjudicated now. One court watcher noted the proceeding as being more about “principles” for Gardner, who another described as above all stubborn. 

The presiding officer of the three-person ethics panel overseeing the case was none other than Keith Cutler, a Kansas City-area trial attorney best known for starring on the syndicated television program Cutlers Court, which has run for three seasons. Prior to that he starred on Couples Court with the Cutlers along with his wife, Dana, also an attorney, in which the Cutlers use their legal expertise along with the knowledge accrued from a long marriage to sort out lovers’ quarrels. 

On the topic of quarrels: A key tenet of Gardner’s defense was a letter from attorney ​​Michael Downey to Gardner indicating she could pay those ethics fees from an office account. But Goldsmith testified that Downey indicated to him that the letter was essentially just a draft. “I took it from the horse’s mouth,” said Goldsmith. Replied Sullivan, quickly, “I am not asking you to engage in hearsay.”

After Goldsmith finished his testimony, Sullivan called himself as a witness and Foxworth began questioning the Harvard law professor, who proceeded to lecture about how state of mind can affect one’s culpability in a wide range of crimes from statutory rape to punching someone in the face. He asserted that had Gardner not signed the diversion agreement, he could have won her case at trial, though he later qualified that he could not say this with complete certainty. He referred multiple times to the prosecutor, Goldsmith, as “Mr. Smith.” 

Ironically, when Downey later took the stand, Sullivan objected to nearly every question asked of him, many on grounds of attorney-client privilege. 

Downey testified that he did indeed draft and send to Gardner an opinion on the legality of her using money from a Circuit Attorney Office account to pay for ethics violations fees. Sullivan objected to the follow-up question, which focused on whether the letter was intended to be a draft or a final opinion. Cutler ultimately allowed the question. 

After much back and forth, Downey first said that he couldn’t recall one way or another. He later said he sent the letter for “review and comment.” He also said it is his custom to provide clients with a draft legal opinion ahead of a final one. 

The three-person disciplinary panel will at a later date make its recommendation to the Missouri Supreme Court, which will determine if Gardner indeed violated professional conduct rules and what, if any reprimand, she should face.