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 )
SECOND NOTICE OF VIOLATION OF RULE 55.03
========================================
COMES NOW, Plaintiff Marc Perkel to give Mr. Duncan, attorney for Wear
and Sharp notice of violation of the Rules of Professional Conduct.
1) Plaintiff hereby NOTIFIES Mr. Duncan that on March 12th it will be
30 days since he was notified of violation of rule 55.03 (c)(1)(A)
for filing a frivolous motion to dismiss.
2) Plaintiff hereby NOTIFIES Mr. Duncan that as of today the motion to
dismiss has not been withdrawn or appropriately corrected.
3) Rule 3.1 "Meritoroius Claims and Contentions" states as follows:
"A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis for doing so
that is not frivolous, ..."
The comment section section of Rule 3.1 states:
"The action is frivolous, however, if the client desires to have
the action taken primarily for the purpose of harassing or
maliciously injuring a person or if the lawyer is unable to make
a good faith argument on the merits of the action taken ..."
4) Rule 3.2 "Expediting Legislation" states as follows:
"A lawyer shall make reasonable efforts to expedite litigation
consistent with the interests of the client."
The comment section section of Rule 3.2 states:
"Dilatory practices bring the administration of justice into
disrepute. Delay should not be indulged merely for the
convenience of the advocates, for the purpose of frustrating an
opposing party's attempt to obtain rightful redress or repose. It
is not a justification that similar conduct is often tolerated by
the bench or bar. The question is whether a competent lawyer
acting in good faith would regard the course of action as having
some substantial purpose other than delay. Realizing financial or
other benefit from otherwise improper delay in litigation is not
a legitimate interest of the client."
5) Plaintiff hereby NOTIFIES Mr. Duncan that his motion to dismiss
contained a single bare alegation with no supporting law or
arguments at all and Plaintiff contends that his motion is in bad
faith and can not be supported on it's merits.
6) Plaintiff hereby NOTIFIES Mr. Duncan that his clients, Wear and
Sharp are attempting to execute on the divorce judgement that they
obtained through fraud on the court and/or conspiracy to defraud the
court and/or by a criminal act of tampering with a witness. That
they have garnished Plaintiff's checking account and listed
Plaintiff's property in Fair Grove for sale. Plaintiff is attempting
to preserve the status quo while this action is pending. Defendants
are attempting to seize and disperse the disputed assets and are
acting with malice and bad faith.
7) Plaintiff hereby NOTIFIES Mr. Duncan that his frivolous motion, that
he apparently filed for the purpose of delay, is giving his client
time to execute his ill gotten judgement against the Plaintiff. That
if his motion were withdrawn that Defendant's Wear and Sharp would
have to answer their pleading and confess their guilt. And that if
the Wear and Sharp had to answer the pleading there would be no way
they could collect on the judgement. That Mr. Duncan knows that
Plaintiff is waiting for the appointment of a special judge and that
his motion to dismiss will give his client a window of opportunity
of several months to take advantage of Plaintiff and collect on the
judgement obtained by fraud on the court.
8) Plaintiff hereby NOTIFIES Mr. Duncan that his frivolous motion is
therefore the sole reason that enables his client to execute his
judgement obtained by fraud on the court.
9) Plaintiff hereby NOTIFIES Mr. Duncan that the facts of his clients
fraud are in the record and that Plaintiff believes the facts are so
strong that he would not only prevail, but would be able to get a
summary judgement against Mr. Duncan's clients.
10) Plaintiff hereby NOTIFIES Mr. Duncan that Plaintiff knows that Mr.
Duncan knows that his client committed fraud on the court. In a
motion filed in United States District Court on October 21st 1996 by
Mr. Duncan while representing Defendants Wear and Sharp Mr. Duncan
states:
"Based on his interpretation of the Missouri Rules of Civil
Procedure, specifically Rule 61.01(a), Plaintiff thought that by
simply filing the motion to quash his deposition was effectively
canceled. Plaintiff communicated this belief by letter and
telephone to both the Court and Defendants Wear and Sharp,
requesting that he be informed if he was in error in believing
that his deposition was, in fact, cancelled by his motion. He
received no response from either the Court or Defendants Wear and
Sharp. Accordingly, he did not appear on January 4th 1995 for his
properly noticed deposition."
In the above mentioned motion Defendants Wear and Sharp through Mr.
Duncan further state:
"Nor were Defendants Wear and Sharp under a duty to telephone
Plaintiff and inquire about his absence when he failed to appear
for his deposition."
Plaintiff contends that this motion on behalf of his client proves
that Mr. Duncan has full knowledge of his clients conduct and
full understanding of what his clients did and therefore must be
aware that the judgement was obtained through fraud on the court and
is likely to be overturned.
11) Plaintiff hereby NOTIFIES Mr. Duncan that if the execution of this
ill gotten judgement is allowed to occur, that it will cause
irreversible harm to the Plaintiff. That Plaintiff believes
Defendant Stringfellow will instantly squander the money and that
the proceeds from the sale of the property will not be returned when
the judgement is voided.
12) Although it is proper for Mr. Duncan to vigorously represent his
clients position as any good attorney would do, that he must do so
by playing by the rules. But when he breaks the rules by filing
frivolous motions to create delay and allow his client to collect a
fradulent judgement, he becomes a party to the fraudulent action.
By filing frivolous motions to tamper with the administration of
justice, then Mr. Duncan is conspiring with his client to defraud
the court.
13) Rule 1.2 in the comment section under "Criminal, Fraudulent and
Prohibited Transactions" states in the relevant part:
"However, a lawyer may not knowingly assist a client in criminal
or fraudulent conduct."
Plaintiff hereby NOTIFIES Mr. Duncan that through his motion to
dismiss that he is assisting his clients in collecting a judgement
that Mr. Duncan knows was obtained by fraud on the court.
14) Rule 1.2 in the comment section under "Criminal, Fraudulent and
Prohibited Transactions" further states:
"A lawyer may not continue assisting a client in conduct that the
lawyer originally supposes is legally proper but then discovers
is criminal or fraudulent. Withdrawal from the representation,
therefore, may be required."
15) Plaintiff hereby NOTIFIES Mr. Duncan that if he doesn't withdraw his
frivolous motion to dismiss and answer the pleading, that he is
conspiring with his clients in their endeavor to defraud the court.
That if after the 30 day period has expired pursuant to Rule 55.03,
that Plaintiff Marc Perkel will file this letter in the court record
and will then amend his pleading to include Mr. Duncan and his
lawfirm as defendants and coconspirators for aiding and abetting
his client to commit fraud on the court.
16) Plaintiff is a fair man and wants to be reasonable and therefore by
this NOTICE gives Mr. Duncan WARNING that so that he can take the
remedial action to avoid suit and personal liability as a result
of the conduct of his clients. However, should Mr. Duncan not heed
this warning then this letter will be used to prove that he was
given WARNING.
Sincerely,
__________________________________________
Marc Perkel * Plaintiff * 03-04-97
|
Case Law $7/Month 50 States + Fed
I use this service.
