Supreme Court of Missouri
en banc

In re:

(1) Adoption of a new subdivision 5.245, entitled “Suspension for Failure to Pay Tax,” of Rule 5, entitled “Complaints and Proceedings Thereon.”

(2) Repeal of subdivision (e) and subdivision (h) of subdivision 5.28, entitled "Reinstatement," of Rule 5, entitled "Complaints and Proceedings Thereon," and in lieu thereof adoption of a new subdivision (e) and a new subdivision (h) of subdivision 5.28, entitled "Reinstatement."

(3) Repeal of subdivision 6.05, entitled "Unauthorized Practice by Stricken or Inactive Lawyers," of Rule 6, entitled "Fees to Practice Law," and in lieu thereof adoption of a new subdivision 6.05, entitled "Unauthorized Practice by Suspended, Stricken or Inactive Lawyers."  
1.  It is ordered that effective January 1, 2007, subdivision 5.245 of Rule 5 be and the same is hereby adopted to read as follows:

5.245  SUSPENSION FOR FAILURE TO PAY TAX
(a) If the director of revenue reports to the clerk of this Court under section 484.053, RSMo, that a lawyer is delinquent on a tax or failed to file tax returns, the clerk shall notify the lawyer that the lawyer’s license to practice law will be automatically suspended unless the matter is satisfactorily resolved within 30 days of the date of the last notice sent by the clerk.
(b) The notice shall be sent by first class mail to the lawyer in the manner provided by Rule 5.18.  If the mail is returned, notice shall be given by any other method reasonably calculated under all the circumstances to apprise the lawyer of the pending suspension.  The first notice shall be sent within 30 days after the clerk receives the lawyer’s name from the director.
(c) The matter is satisfactorily resolved if the lawyer files with the clerk of this Court an affidavit attesting that the lawyer:

(1) Has fully paid all taxes due to the state director of revenue, or
(2) Is contesting the tax liability administratively or judicially.  

The affidavit shall not be notarized by the lawyer, any relative of the lawyer within the third degree of relationship by consanguinity or affinity, or any person employed by the lawyer or the lawyer’s law firm.
The lawyer shall attach to the affidavit a statement from the director of revenue affirming the factual accuracy of the affidavit.  
(d)  If an affidavit is filed under Rule 5.245(c)(2), the director of revenue shall include the lawyer on the annual list reported to the clerk of this Court if the administrative or judicial proceedings are completed and the lawyer fails to pay any taxes assessed in a timely manner.  
(e) The clerk shall notify the chief disciplinary counsel of every lawyer automatically suspended under this Rule 5.245.

2.  It is ordered that effective January 1, 2007, subdivisions 5.28(e) and 5.28(h) of Rule 5 be and the same are hereby repealed and a new subdivision 5.28(e) and a new subdivision 5.28(h) adopted in lieu thereof to read as follows:

5.28  REINSTATEMENT


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(e) Except for good cause shown, no application for reinstatement for a person who is:

(1) Suspended, except a person suspended under Rule 5.245, shall be considered until after six months of the date discipline is imposed unless the Court provides by order for a longer time; or
(2) Disbarred shall be considered until after five years of the date discipline is imposed; or
(3) Notwithstanding Rule 5.28(e)(1) and Rule 5.28(e)(2), suspended or disbarred because the person has pleaded guilty or nolo contendere to or been found guilty of any felony of the United States, this state, any other state or any United States territory, whether sentence is imposed or not, shall be considered until five years after the date of successful completion of any sentence or period of probation as a result of the conviction, plea, or finding of guilt.

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(h) All applications for reinstatement shall be referred to the chief disciplinary counsel for report and recommendation.  The report shall be served by the chief disciplinary counsel on the applicant for reinstatement as provided in Rule 5.18.  The applicant may file a written response to the report with the chief disciplinary counsel within 15 days of the date of the mailing of the report.
The report, recommendation, and response, if any, shall be filed by the chief disciplinary counsel with this Court upon receipt of the response or the expiration of the time for making a response.  The Court shall make a determination whether to reinstate the license of the applicant on the basis of the report, recommendation and response.
If the applicant has been suspended:

(1) Indefinitely with leave to reapply in a period of six months or less and is not on probation under Rule 5.225, or
(2) Under Rule 5.245 for three years or less,
the license shall be reinstated as a matter of course 30 days after the  application for reinstatement is referred to the chief disciplinary counsel  for report and recommendation.  If within this 30-day period the chief disciplinary counsel files a motion to respond to the application for reinstatement, the license shall not issue and the matter shall proceed as otherwise provided in this Rule 5.28(h).  Any lawyer automatically suspended under Rule 5.245 for three years or less who is reinstated under this Rule 5.28(h) is retroactively reinstated if the lawyer is then in compliance with Rule 6.01 and Rule 15.

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3.  It is ordered that effective January 1, 2007, subdivision 6.05 of Rule 6 be and the same is hereby repealed and a new subdivision 6.05 adopted in lieu thereof to read as follows:

6.05  UNAUTHORIZED PRACTICE BY SUSPENDED, STRICKEN OR
         INACTIVE LAWYERS

A lawyer who engages in the practice of law or who does a law business in this state and who:
(a) Is stricken from the roll of attorneys pursuant to Rule 6.02;  
(b) Elects to become inactive pursuant to Rule 6.03; or
(c) Is suspended for failing to comply with Rule 15 or Rule 5.245;
is guilty of professional misconduct and of the unauthorized practice of law.  The chief disciplinary counsel or any regional disciplinary committee may institute proceedings under Rule 5 against any lawyer violating the provisions of this Rule 6.05 and may seek temporary or permanent injunctive relief in any court of competent jurisdiction.

4.  It is ordered that notice of this order be published in the Journal of The Missouri Bar.

5.  It is ordered that this order be published in the South Western Reporter.
Day – to – Day

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MICHAEL A. WOLFF
Chief Justice