The opinion
FINCH, Judge
(dissenting).
I respectfully dissent.
In my judgment the principal opinion is in conflict with the case of In re Veach, 365 Mo. 776 , 287 S.W.2d 753 (banc 1956), but it neither overrules nor even attempts to distinguish that case. The short reference in the principal opinion to Vea ch indicates a view that the cases are consistent. In my judgment they are not.
In Vea ch an information was filed against respondent which in count one charged certain professional misconduct in St. Louis and in count two alleged the suspension of respondent in Illinois by reason of various acts for which the Supreme Court of Illinois ordered suspension for a period of five years. In his answer to count two, respondent admitted the suspension in Illinois but denied the sufficiency of the evidence in the Illinois hearing to support the action taken by that court.
On the basis of these pleadings, the Bar Committee filed a motion for judgment on the pleadings as to count two on the ground that respondent’s answer and his return to an order to show cause presented no defense. This court sustained the motion for judgment on the pleadings and suspended respondent in Missouri on count two for the same period for which he had been suspended in Illinois. In so holding, the court discussed at some length the Illinois judgment and its effect. In so doing, it considered and relied upon the case of Selling v. Radford, 243 U.S. 46 , 37 S.Ct. 377 , 61 L.Ed. 585 (1917), which involved proceedings to strike from the roll of the bar of the United States Supreme Court an attorney who had been disbarred in Michigan. In discussing Selling, this court said, 287 S.W.2d at 758 :
«⅜ » ⅛ court there held that the loss of the requisite qualification for membership in the Bar, by wrongful conduct wherever committed, operates everywhere and furnishes reason in every jurisdiction for a revocation of license. The court further held that the effect of the judgment of the Michigan court, In re Radford, 168 Mich. 474 , 134 N.W. 472 should be recognized unless: (1) there was a lack of due process; (2) there was such an infirmity of proof as to create a clear conviction that the conclusion should not be accepted; or (3) there appeared some other ‘grave reason’ which would indicate that the result would conflict with the court’s duty under the principles of ‘right and justice.’ In our opinion, none of those exceptions or qualifications are applicable here.”
In harmony with the ruling in Selling, the court went on to rule, 1. c. 758:
“ * ⅜ * We now hold that on the present record the judgment and opinion of the Illinois Supreme Court constitutes and is a sufficient ground for disciplinary action by this court. In so ruling we are supported, directly or in principle, by the following authorities: People ex rel. Colorado Bar Ass’n v. Lindsey, 86 Colo. 458 , 283 P. 539 ; State Board of Law Examiners v. Brown, 53 Wyo. 42 , 77 P.2d 626 ; In re Leverson, 195 Minn. 42 , 261 N.W. 480 ; In re Isserman, 345 U.S. 286 , 73 S.Ct. 676 , 97 L.Ed. 1013 ; Copren v. State Bar, 64 Nev. 364 , 183 P.2d 833 , 173 A.L.R. 284 ; In re Ulmer, 268 Mass. 373 , 167 N.E. 749 ; In re Van Bever, 55 Ariz. 368 , 101 P.2d 790 , and Selling v. Radford, 243 U.S. 46 , 37 S.Ct. 377 , 61 L.Ed. 585 , supra.”
In analyzing some of the above cited cases, the court then went on to point out that some of the cases appear to rely on a theory of comity and others recognize the foreign judgment as one entitled to full faith and credit. The court then said, 287 S.W.2d at 759 :
“ * * * Actually, the matter would seem to involve both doctrines. The judgment appears to us to be one entitled to full faith and credit in so far as it finally adjudicates that in Illinois the respondent was guilty of the misconduct *227 with which he was charged. Such being true, we cannot, in any sense, permit that issue to be relitigated here. Such a judgment is only subject to attack for: (1) lack of jurisdiction over the subject matter; (2) failure to give due notice to the defendant; and (3) fraud in the ‘concoction’ of the judgment. Howey v. Howey, Mo., 240 S.W. 450 ; Leichty v. Kansas City Bridge Co., 354 Mo. 629 , 190 S.W.2d 201 ; Kilbourn v. Kilbourn, 354 Mo. 17 , 190 S.W.2d 206 . None of these grounds appears here; and respondent appeared and contested the Illinois proceedings. We cannot and will not reinvestigate the merits of those charges.” (Emphasis supplied.)
From the foregoing it is clear that this court in Vea ch held that in the absence of the enumerated grounds for attack, namely, lack of jurisdiction, failure to give due notice or fraud in obtaining the judgment, the judgment in the foreign court with respect to the merits of the charges and the respondent’s guilt thereof will be final, not subject to reinvestigation or redetermination by this court. The court ordered suspension for the same period as Yeach had been suspended in Illinois. It is true that the court in Vea ch used the language quoted in the principal opinion, namely, “[t]here may be cases in the future where, recognizing the finality of the foreign adjudication, we may not see fit to give it effect in Missouri. * ⅜ *” 287 S.W.2d at 759 . However, that language indicates to me that the court was saying that in some future case it may decide not to impose the discipline ordered by the other state, even though it recognizes the finality of its adjudication with reference to the conduct charged. That language does not indicate to me an intention to relitigate the merits of the charges in this court. Yet, that is exactly what the principal opinion proposes in this case.
The Ohio Supreme Court found that respondent wrongfully applied to his own fee the sum of $480 deposited with him in trust for back child support. Thereafter, it declined to reopen the case on the basis of an allegedly newly discovered tape. Under Vea ch that issue should not be reinvestigat-ed or relitigated in this court unless the Ohio judgment is subject to attack on the basis of (1) lack of jurisdiction over the subject matter, (2) failure to give due notice to the defendant, or (3) fraud in the “concoction” of the judgment. None of these are found by the principal opinion. Even so, it proposes to appoint a master and to have him conduct a hearing as to the authenticity of the tape, after which he is to make findings and recommendations as to whether respondent had permission to apply the $480 as he did. In my judgment this does not entail merely listening to the tape and concluding whether it is authentic. The opinion, necessarily, directs a reinvestigation and a redetermination as to whether respondent did or did not misapply $480 of trust funds entrusted to him by his client because petitioner claims that he was authorized and that this charge should be dismissed. That means that the master must go to Ohio, take testimony from the client and others who have any knowledge as to this issue, determine when the alleged conversation took place and what prompted it, whether it was before or after application of this money to respondent’s fee, whether the consent, if given, was to excuse what already had been done or was authorization for subsequent application, check respondent’s bank accounts, if necessary, and investigate any other relevant matters pertaining to this issue. That definitely is not what Vea ch would call for or authorize. Adoption of such a rule would in future cases mean that this court on a case-by-case basis, without any specific guidelines or criteria such as those spelled out in Vea ch as exceptions, would reinvestigate and redetermine the issue of whether a lawyer is guilty of that misconduct already found by the court of another state. In my view, that amounts to overruling Yeach without saying so.
I would not redetermine the question of whether respondent improperly applied *228 trust fund money to his fee. I would accept the Ohio determination of that issue. I would proceed to determine, in the light of the testimony heard in Ohio, plus briefs and arguments in this court, whether we will apply the same discipline as Ohio imposed (as this court did in Vea ch) or whether we will impose different punishment, as we have just done in the case of Gary Max Eldredge, 530 S.W.2d 221 (Mo.), decided concurrently with this case. This would be consistent with the decision in Vea ch.