IN THE CIRCUIT COURT GREENE COUNTY MISSOURI
Marc Perkel - pro se )
)
vs. ) No. 197CC0170
)
William A. Wear Jr. )
James R. Sharp )
The Lawfirm of Wear and Sharp )
Vicki Stringfellow )
MOTION FOR ORDER OF THE COURT
TO DISALLOW IMPROPER REPRESENTATION
===================================
COMES NOW, Plaintiff Marc Perkel to ask the court for an immediate
ruling on the issue of conflict of interest and improper representation
of defendant Stringfellow by her codefendants Wear and Sharp. Plaintiff
also seeks an immediate ruling to prevent defendant Donald Duncan from
representing his codefendant William Wear and James Sharp. In support of
his motion, Plaintiff states as follows:
1) Pursuant to Rule 3.7 the representation of Ms. Stringfellow by the
law firm of Wear and Sharp is obviously improper. Additionally, the
representation of Mr. Wear and Mr. Sharp by codefendant Duncan is
ridiculous. The idea that the court could permit one defendant to
represent another defendant is absurd.
2) If at the July 14th hearing the court were to rule in favor of the
Plaintiff on this issue, then Ms. Stringfellow would be without
counsel, as would Mr. Wear and Mr. Sharp, and the hearing would be
unable to continue until Ms. Stringfellow retained suitable counsel
This would cause a further delay allowing the defendants to continue
to execute judgement against the plaintiff.
3) By July 14th the Plaintiff will have waited six months without a
hearing and is therefore being denied due process. During this time
the defendants have had the opportunity to partially execute the
judgement that they obtained through fraud upon the court, tampering
with a witness, and legal malpractice. The fact that these lawyers,
who are defendants in this suit, are even attempting to represent
another defendant shows a lack of honesty and integrity and a total
disdain for the ethical principles in the Rules of Professional
Conduct.
4) Defendants Mr. Wear, Mr. Sharp and Mr. Duncan have made no argument
opposing Plaintiff's motion on 01-23-97 to disallow one defendant
from representing another. Defendants have made no response to
Plaintiff's Notification of Conflict of Interest on 02-10-97. They
are therefore estopped from making an argument opposing it now.
5) If the court does not prohibit the improper representation before the
hearing then the court is in effect permitting the improper
representation. There is no case law anywhere supporting the idea
that one defendant can properly represent another defendant. I would
think that it should be obvious to the court that these lawyers are
trying to undermine the administration of justice and tamper with the
judicial process.
6) One defendant representing another is the very definition of conflict
of interest. If any hearings were allowed under this kind of
representation any party would have a cause for an appeal on the
basis that the trial process was a sham. There's no point in the
court wasting it's time to even have hearing or the parties to make
arguments where the representation is so blatantly improper.
7) Plaintiff can find no case law where one defendant was ever allowed
to represent another defendant.
WHEREFORE, Plaintiff respectfully prays that the court will;
1) uphold the Rules of Professional Conduct and prohibit defendants Wear
and Sharp from representing defendant Stringfellow and prohibit
defendants Duncan and his law firm from representing their
codefendants Mr. Wear and Mr. Sharp; and
2) order the defendants to get their own lawyers; and
3) the court sanction Mr. Wear, Mr. Sharp, and Mr. Duncan for willfully
tampering with the administration of justice by ordering them to pay
$5000 each in legal expenses for Ms. Stringfellow to obtain her own
unbiased legal counsel; and
4) other relief the Court deems apropriate.
__________________________________
Marc Perkel * Plaintiff * 06-19-97
IN THE CIRCUIT COURT GREENE COUNTY MISSOURI
Marc Perkel - pro se )
)
vs. ) No. 197CC0170
)
William A. Wear Jr. )
James R. Sharp )
The Lawfirm of Wear and Sharp )
Vicki Stringfellow )
SUGGESTIONS IN SUPPORT OF
MOTION FOR ORDER OF THE COURT
TO DISALLOW IMPROPER REPRESENTATION
===================================
MR. WEAR AND MR. SHARP
----------------------
I have read the Rules of Professional Conduct and the rules are quite
clear. The issue of conflict of interest is talked about extensively.
The rules make it clear that "Loyalty to the Client" is paramount in
proper representation. That if the judicial process is to work that a
lawyer must be able to defend the interests of the client without his
own interests detracting from his duty to protect the interest of the
client who he represents. Any situation in which the interests of the
client is compromised by conflicting interests of the lawyer is
prohibited.
In my pleading I have alleged that defendants Wear and Sharp committed
fraud upon the court and the crime of tampering with a witness for the
faked deposition and that his client, Ms. Stringfellow was a party to
his acts. Although the evidence in the record clearly shows what Mr.
Wear and Mr. Sharp did, it is yet to be discovered if Ms. Stringfellow
was aware of or actively participated in the improper acts of her
lawyers. It would seem to me that Wear and Sharp would have an interest
in sharing the blame with Stringfellow, where Stringfellow would want to
distance herself from the acts of her lawyers.
In fact I believe that it is likely that Mr. Wear and Mr. Sharp are
advising Ms. Stringfellow that they did nothing wrong and Ms.
Stringfellow is relying on that advice. However, if she had her own
attorney it is likely that her new attorney would advise her to file a
cross complaint against Wear and Sharp for acting improperly on her
behalf. It is to the advantage of Wear and Sharp to limit their
liability by spreading the blame to include the other defendants. It is
to the advantage of the other defendants to distance themselves from
Wear and Sharp. This is the very definition of conflict of interest.
In addition, I have accused Ms. Stringfellow of proffering false
and fabricated evidence to the court. I have alleged that she conspired
with her lawyers Wear and Sharp and that they had full knowledge that
their client's evidence was false and that they encouraged and
participated in this fabrication. In fact, I think that in discovery
that we will find that in fact Mr. Wear and Mr. Sharp told Ms.
Stringfellow to fabricate evidence and lie about the value of things. I
think she was probably told be Wear and Sharp that is how things are
done.
The rules of professional conduct strictly prohibit this. If she were to
testify that her lawyers were aware of, or encouraged her to falsify or
fabricate evidence, they could face disbarment. So how loyal can a lawyer
be knowing that his client, if she testifies truthfully, will cause him
to be disbarred? And how loyal will a lawyer be to a client if the
client testifies against him? Don't you think this will have a chilling
effect on her testimony? I sure do!
You see the reason Mr. Wear and Mr. Sharp want to represent Ms.
Stringfellow is to control her and deny her an opportunity to be
represented by a lawyer who will be an advocate for her. A lawyer who
might file a cross claim against Mr. Wear and Mr. Sharp. I would hardly
think that Wear and Sharp would give her honest advice and recommend
that she sue them.
Ms. Stringfellow is a gullible woman who tends to trust people who would
take advantage of her. That is what is happening here. Her lawyers, Wear
and Sharp, are her enemies. This is a situation where the perpetrator
it trying to be the lawyer for one of the victims. Justice can not
permit this kind of abuse to occur. Plaintiff contends that Ms.
Stringfellow fears her attorney's and is afraid to seek independent
counsel because she fears retribution by Wear and Sharp.
If Ms. Stringfellow is represented by Sharp and Wear and she loses she
could be liable for a $5,000,000 judgement based in part on the behavior
of Wear and Sharp. If she wins she will still owe Wear and Sharp a lot
of money for legal services. However, if she retains an independent
attorney and she sues Wear and Sharp she could come out money ahead.
Thus the representation by Wear and Sharp is prohibited on the basis of
Rule 1.7 this representation "forecloses alternatives that would
otherwise be available to the client." And it is a conflict because,
"The lawyers own interests should not be permitted to have and adverse
effect on the representation of a client."
If a lawyer and a private person were caught robbing a bank, would you
let the lawyer defendant represent the private person defendant? Not
hardly! This is the same thing except the charge is fraud rather than
robbery.
Mr. Wear and Mr. Sharp obtained a judgement by fraud upon the court.
They staged a deposition that never happened and then got the plaintiff
sanctioned. They fabricated evidence. They lied to the court on numerous
occasions. Now that are again tampering with the judicial process to
deny the plaintiff and their client our due process rights. They are
trying to make sure that neither I nor my ex-wife gets our day in court.
As you can see in my Bar Complaint, these lawyers should not be
practicing law, let alone trying to represent someone who they have a
conflict of interest with.
MR. DUNCAN
----------
According to the rules Mr. Duncan should not have permitted his client,
who is also a lawyer to break the rules. Rule 1.2 in the section on
"Criminal, Fraudulent, and Prohibited Transactions" is clear on this. It
is a lawyers duty to inform the client, Mr. Wear and Mr. Sharp, that
they are not allowed to represent Ms. Stringfellow and that if they
didn't play by the rules, Mr. Duncan was obligated to withdraw from
representation. "a lawyer may not knowingly assist a client in criminal
or fraudulent conduct."
When Mr. Duncan failed to stop his client from breaking the rules, he
became a party to his client's fraud. Not only did he fail to stop his
client from breaking the rules, but he himself broke the rules. He files
a motion to dismiss claiming that his client is not a party to the
action, when in fact the client is a necessary party. Mr. Duncan made
this bare allegation for the purpose of delay so as to assist his
clients, Mr. Wear and Mr. Sharp in executing a judgement that Mr. Duncan
knows was obtained by fraud on the court. That makes him a party.
A lawyer is allowed to represent a person who's guilty. And the lawyer
doesn't share that guilt because he is defending a guilty party. But a
lawyer has to play by the rules. A lawyer can not break the rules to
assist his client in committing fraud or tampering with the
administration of justice. And that's what Duncan and his firm and Wear
and his firm are doing. A fair hearing is where everyone has their own
lawyer who does not have conflicting interests with their client. And
the State of Missouri owes me a fair hearing.
LAWYER AS WITNESS
-----------------
Rule 3.7 prohibits a lawyer from being an advocate if he is likely to be
a witness. I have already informed Mr. Wear and Mr. Sharp that they are
definitely going to be a witness. Mr. Duncan will also be deposed and
called as a witness. They are therefore prohibited by the rules from
being an advocate.
SEPARATE SETTLEMENT
-------------------
If Mr. Wear and Mr. Sharp are allowed to represent Ms. Stringfellow the
Plaintiff would be denied the opportunity to settle separately with Ms.
Stringfellow.
If Mr. Duncan is allowed to represent Mr. Sharp and Mr. Wear the
Plaintiff would be denied the opportunity to settle separately with Mr.
Duncan.
TWO HATS
--------
If the court allows defendants to represent other defendants then the
court should order that Mr. Sharp, Mr. Wear, and Mr. Duncan bring two
hats to court, one labled "lawyer" and one labeled "defendant". They
should then have to put on one of the two hats when speaking so that the
court, jury, and the plaintiff can determine when they are speaking in
their own behalf and when they are representing a client.
THE RULES
---------
Rule 1.7 covers the issue of conflict of interest. All conflicts are
evaluated on the basis of loyalty to the client. A lawyer is expected to
be an advocate for the client's position. If a conflict exists that
would prevent the lawyer from executing his duties to the client, the
lawyer is prohibited from undertaking the representation, or if
representation has begun, the lawyer is expected to withdraw.
Loyalty to a Client
"Loyalty is an essential element in the lawyers relationship to a
client. An impermissible conflict of interest may exist before
representation is undertaken, in which event the representation
should be declined. If such a conflict arises after representation
has been undertaken, the lawyer should withdraw from the
representation."
"Loyalty to a client is impaired when a lawyer cannot consider,
recommend or carry out an appropriate course of action for the
client because of the lawyers other responsibilities or interests.
The conflict in effect forecloses alternatives that would otherwise
be available to the client."
Consultation and Consent
" ... when a disinterested lawyer would conclude that the client
should not agree to the representation under the circumstances, the
lawyer involved cannot properly ask for such agreement or provide
representation on the basis of the clients consent."
Lawyer's Interests
"The lawyers own interests should not be permitted to have and
adverse effect on the representation of a client."
Conflict Charged by an Opposing Party
"Resolving questions of conflict of interest is primarily the
responsibility of the lawyer undertaking the representation. In
litigation, a court may raise the question when there is reason to
infer that the lawyer has neglected the responsibility. ..."
"Where the conflict is such as clearly to call in question the fair
and efficient administration of justice, opposing counsel may
properly raise the question."
Rule 1.16 Mandatory Withdrawal
"A lawyer ordinarily must decline or withdraw from representation if
the client demands that the lawyer engage in conduct that is illegal
or violates the Rules of Professional Conduct or other law."
Rule 3.7 "Lawyer as Witness"
"A lawyer shall not act as an advocate at trial in which the lawyer
is likely to be a necessary witness ..."
SUPPORTING SITES
----------------
In STRICKLAND, SUPERINTENDENT v. WASHINGTON 466 U.S. at 687
"The Sixth Amendment right to counsel is the right to the effective
assistance of counsel, and the benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so undermined the
proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result."
The Plaintiff contends that one defendant accused of fraud can not
represent another defendant accused of fraud without undermining the
proper functioning of the adversarial process. How can the trial be
relied on to produce a just result if Wear and Sharp, in order to save
their own hides sacrifices the hide of their client. To allow this
representation would give any party grounds for an appeal.
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