Nature of the Case
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Facts
P is a former officer and director of Germania Bank. D is a St. Louis-based law firm. Attorneys from D represented P personally in several matters and served as corporate counsel for Germania. P is married to Peggy Morris, an attorney who was employed at D during the events at issue in this case. D began representing P prior to P joining Germania. In 1983, Kathleen Sherby, a partner at Bryan Cave, wrote a will for P. David Slavkin, a partner at Bryan Cave, represented P in domestic relations matters in late 1989 and early 1990. P left Germania in 1988 and was then employed by Steifel Nicholas as an investment banker. In 1990, P left Steifel Nicholas. E. Perry Johnson, a partner at Bryan Cave, reviewed a severance agreement for P related to his departure from Steifel Nicholas. Peggy Morris also represented her husband during the time she was an attorney employed at Bryan Cave. In 1993, staff at D prepared living wills and durable powers of attorney for the parents of P at the request of Peggy Morris. Peggy Morris supervised a D legal assistant in completing paperwork for the incorporation of the Fortune Group Financial Corporation. P was a 50% shareholder in the corporation. John Goebel was the billing partner involved with that incorporation. Goebel testified that he was aware that D had an attorney-client relationship with P through the representation of Edward Morris by Peggy Morris, David Slavkin, E. Perry Johnson, and Kathleen Sherby. Peggy Morris further contends that P frequently discussed a variety of legal matters with her and that she advised him as an attorney. P became president and CEO of Germania in February 1986 and chairman in June 1986. Germania was seized by the Office of Thrift Supervision. P and Goebel, along with other Germania directors, were sued civilly. P was indicted on federal mail and wire fraud charges on November 19, 1992. Goebel was notified by the United States Attorney's office that he was a 'subject' of the criminal investigation. P asked D to represent him after Germania was seized. D declined, citing a conflict of interest. D then represented John Goebel and other directors of Germania. Peggy Morris states that when D declined to represent P, she was assured that D would lend friendly assistance and cooperation to P. Dan O'Neill represented Goebel. O'Neill admits discussing the S.E.C. investigation with Peggy Morris on at least one occasion. During that discussion, O'Neill advised Peggy Morris on how to file a 'Wells' submission in an effort to stop the S.E.C. investigation. O'Neill provided her with citations and with samples of a 'Wells' submission to assist in its filing. A 'Wells' submission is a document filed with the S.E.C. in which a defendant presents the evidence and legal theories he believes the S.E.C. should consider in deciding whether to file an enforcement action. He also advised Peggy that D might want to consider 'talking with the government.' O'Neill expressed some reservations about talking with Peggy during this consultation because, he stated, D was not representing Morris, but he provided legal assistance and advice nevertheless. Goebel participated in interviews with the United States Attorney's office regarding Germania. Goebel was not indicted by the United States Attorney. D and other Germania officers were indicted in the United States District Court for the Southern District of Illinois for their involvement in the 'Schnotes' offering. At the criminal trial, Dan O'Neill and Thomas Archer attended opening statements. D stated that he would rely on the assistance of counsel as a defense to the charge of mail fraud. O'Neill discussed D's opening statement with Archer and Goebel. O'Neill then drafted a highly detailed list of proposed cross-examination questions. These cross-examination questions contained detailed, specific information about the behavior of both D and Goebel. The questions were provided to the prosecutors. Peggy Morris discovered the questions on a computer at D. She copied the file and gave it to her husband's attorneys. A subpoena was issued on November 4, 1993, requiring D to produce any and all records regarding the proposed cross-examination questions and all-time records related to any representation provided by D to John Goebel. D filed a motion to quash the subpoena. O'Neill and Archer appeared before the federal district court on the matter. The matter was discussed and the subpoena was withdrawn. On the issue of whether the questions had been provided to the prosecution, O'Neill and Archer remained silent and did not answer the question. D's criminal defense attorney stated that O'Neill threatened him with federal and state prosecution and a complaint to the state bar association. O'Neill remained silent when this issue was raised. Archer denied that threats had been made to D's criminal defense counsel, but he stated to the court that O'Neill had informed D's criminal defense attorney that O'Neill would 'pursue this insofar as his rights allowed.' P was convicted on criminal charges and then sued Ds for breach of attorney-client fiduciary duties. The trial court granted summary judgment for D on the ground that no attorney-client relationship existed between the firm and D in the bank matters. P appealed.
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