IN THE MISSOURI COURT OF APPEALS
SOUTHERN DISTRICT
)
Marc Perkel ) Greene County Case: 197CC0170
Relator, )
) Cause Number: 21784
vs. )
)
HONORABLE, William Syler )
Special Judge )
Circuit Court, Greene )
County Missouri )
)
Respondent )
PETITION FOR WRIT OF PROHIBITION
================================
COMES NOW Relator, Marc Perkel, to Petition the Court for Writ of
Prohibition, pursuant to Supreme Court Rule 97, to challenge the
decision of the lower court to allow one defendant to represent another
defendant, and to challenge the decision of the lower court to allow a
lawyer to act as an advocate when he is going to be a necessary witness.
In support of this writ, the Relator states:
1) Relator, Marc Perkel, (hereafter referred to as I or Me) is the
plaintiff in Greene County lawsuit #197CC0170 filed on 01-15-97 and
amended of 06-02-97. In this case I named Vicki Stringfellow, William
A. Wear, James R. Sharp, and the law firm of Wear and Sharp as
defendants. The suit alleged that the above defendants committed
fraud, fraud on the court, and fraudulent conspiracy and asked that
the underlying divorce judgement be overturned as an action in equity
and asked for actual and punitive damages as an action at law. The
suit challenged the behavior of all parties, including the lawyers,
and alleged that each of their behaviors constituted fraud.
2) Respondent, the Honorable William Syler, special judge, is a duly
appointed acting judge who was appointed by the Missouri Supreme
Court to hear this case.
3) This proceeding in prohibition is brought and maintained to determine
whether the respondent has acted in excess of his jurisdiction by
suspending or misinterpreting the Rules to allow defendants in the
underlying case to act as counsel for other defendants and to
determine if a defendant, who will be called as a witness, will be
allowed to act as counsel for a codefendant.
4) Although Mr. Wear, Mr. Sharp and their law firm are defendants, they
nonetheless entered an appearance as counsel for Ms. Stringfellow. I
filed a motion at that time to dismiss counsel, however, the case
lacked a judge and a hearing was not convened until 07-14-97.
5) At the hearing on 07-14-97 Judge Syler considered the issue of one
defendant representing another and decided to allow it. He questioned
Ms. Stringfellow extensively and she made it clear to the court that
she was consenting to the representation in spite of the apparent
conflict of interest. The judge asked Mr. Sharp if he intended to be
a witness and he said he didn't intend to. However, since this case
involves Mr. Sharp's behavior, since it was he who committed fraud on
the court I can certify that I will definitely call him as a witness.
6) I objected and asked for an immediate appeal to allow the Court of
Appeals to certify the question. Judge Syler granted my request and
entered an order in the docket (attached) to allow the higher court
to rule on the issue. Judge Syler has recessed all further
proceedings in this case until this court makes a ruling in this
matter.
7) I respectfully contend that the judge erred in allowing one defendant
to represent another. That this is the very definition of conflict of
interest. That such a precedent should not be set, and that to allow
this would result in a manifest injustice. I contend that it is in
the interest of the public and the law for the Court of Appeals to
rule on this question and to make it's rulings public so as to
enhance and extend existing case law.
8) I respectfully contend that the decision of the Honorable Judge Syler
is in violation of Rules 1.7 and 3.7 and should be overturned.
WHEREFORE, Relator prays:
1) That the Court pursuant to Article V section 4 exercise and assume
jurisdiction herein.
2) That the Court pursuant to Rule 97.04 make and enter a permanent
order prohibiting one defendant in a civil suit from representing
another defendant.
3) That the court make a finding that it is a conflict of interest,
pursuant to Rule 1.7, and therefore improper for one defendant to
represent another defendant in the same cause of action.
4) That the court make a finding, pursuant to Rule 3.7, that it is a
conflict of interest and therefore improper for a lawyer to
represent a client when he knows he is going to be called as a
witness.
5) That court costs be taxed to the defendants.
6) That the Court grant me other orders and relief that the Court deems
just and necessary.
Respectfully Submitted,
________________________________
Marc Perkel * Relator * 07-16-97
IN THE MISSOURI COURT OF APPEALS
SOUTHERN DISTRICT
)
Marc Perkel ) Greene County Case: 197CC0170
Relator, )
) Cause Number:
vs. )
)
HONORABLE, William Syler )
Special Judge )
Circuit Court, Greene )
County Missouri )
)
Respondent )
SUGGESTIONS IN SUPPORT OF
PETITION FOR WRIT OF PROHIBITION
================================
To me it seems that the idea of one defendant representing another is
the very definition of conflict of Interest. 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 by 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 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 if 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."
Because Ms. Stringfellow is represented by Mr. Sharp and Mr. Wear, I am
denied the opportunity to settle this case with the separate defendants
individually.
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.
This is all fairly simple logic here. Rule 3.7 "Lawyer as Witness" says,
"A lawyer shall not act as an advocate at trial in which the lawyer is
likely to be a necessary witness ..." Mr. Sharp and Mr. Wear are
defendants. The are defendants because of they are the ones who I say
lied to the court. Obviously I'm going to question them and call them to
testify about what they did. They will be a witness, therefore they can
not be an advocate. This looks pretty simple to me.
Judge Syler relies on Ms. Stringfellow's consent to the conflict of
interest. At the July 14th hearing Judge Syler asked Ms. Stringfellow
several questions to establish consent. Ms. Stringfellow agreed to waive
conflict of interest. However, I still don't think the consent was
really informed consent. Judge Syler should have asked, "Ms.
Stringfellow, you realize that by agreeing to the representation that
you could end up being found jointly liable for damages resulting from
the misconduct of your attorney's actions which could result in a
judgement against you for $5,000,000?"
Pursuant to Rule 1.7 (below) consent isn't always good enough. This is
made clear in the case of State of Missouri ex rel., v. The Honorable
Frank Conley which I have attached. This case had consent but the court
ruled that the dual role of lawyer and witness were incompatible. Here
in this case we have a triple role of Mr. Sharp and Mr. Wear being
lawyer, witness, and defendant.
In my electronic search of all 50 states I could find not a single case
where such representation was allowed. I couldn't even find a case where
one defendant even tried to represent another defendant. As far as I can
tell this will be the first time this has been permitted. That's why I
think it's important for this court to set the right precedent.
Two Conflicts
-------------
Mr. Wear and Mr. Sharp have two separate situations which should prevent
them from representing Ms. Stringfellow. The first is that they are
codefendants, the second is that they are witnesses. I ask the court to
rule on both of these individually.
The pro se factor
-----------------
I respectfully contend that these lawyers would not be attempting this
unusual pattern of representation and that the judge wouldn't have
allowed it if not for the fact that I am representing myself. I'm not
you're typical pro se litigant and I would like at some point to get a
fair hearing. I would like to get out of court some day and get on with
my life. I suggest to the Court of Appeals that the issue of
discrimination against pro se litigants should be addressed.
The Rules
---------
Rule 1.7 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 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 ..."
Case Law
--------
In STRICKLAND, SUPERINTENDENT v. WASHINGTON 466 U.S. at 687 says:
"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."
What this means is that if the court were to allow the improper
representation, even now, the defendants will be able to make a claim
that the decision should be overturned based on the Strickland
doctrine. The trial would have no meaning if this were allowed to
continue. A Court of Appeals would have to reverse the decision and
remand the cause for new trial with appropriate counsel.
In MICHAEL NUNN, v. STATE OF MISSOURI, 1989.MO.936
"Counsel was caught between the obligation to do his best for movant
and the need to justify his own conduct as legal and ethical. An
accused is entitled to representation which is uncluttered by
counsel's efforts to vindicate his own conduct. A conflict of
interest resulting in ineffective assistance of counsel may arise
from an interest adverse to the accused or an interest simply
personal to the attorney. Maddox v. State, 715 S.W.2d 10, 11 (Mo.
App. 1986); Douglas v. State, 630 S.W.2d 162, 164 (Mo. App. 1982)."
"The only issue which should have been before the jury was
defendant's conduct, not that of his attorney. Counsel's actions
which injected his credibility as an issue during movant's trial
undoubtedly adversely affected his client's interests. Counsel's
prior conduct was completely irrelevant to movant's case and could
only detract from his defense. That the jury unintentionally imputed
the alleged improprieties of defense counsel to his client is a very
real possibility. Counsel could have avoided this possibility by
adhering to the ethical prohibitions."
It is clear to me that a jury would be confused by the multiple roles of
the lawyers as advocates, witnesses, codefendants. When Mr. Sharp
speaks to the court, how will we know when he's speaking as lawyer,
witness, or defendant. Perhaps he should be required to bring three hats
so that the jury knows what part he is playing.
I am attaching the case of State of Missouri ex rel., v. The Honorable
Frank Conley. This case makes the whole issue of the dual role of
lawyer/witness very clear. It explains in detail what Rule 3.7 really
means. In this case a lawyer was to testify against his client. The
client understood the conflict of interest and waived his rights to
accept his lawyer. He was questioned on the stand extensively to make
sure he knew and fully appreciated the choice he was making. He claimed
he did. It was also pointed out that the defendant had waited in jail
for a long time and that he was broke and that changing counsel would be
a hardship on him. The questioning went as follows:
Q. It is your desire to waive the conflict of interest issue, is it
not?
A. Yes, sir, it is.
Q. That is, it is your desire having been advised of the potential
problems, it is your desire to ask this Court not to disqualify
your retained counsel and to permit you to waive the conflict of
interest problem and have Mr. Almond and Ms. Brady continue as
your retained counsel of choice in this capital murder case; is
that correct?
A. Yes, sir, that's correct.
Q. And in making that decision you have been advised by me that there
is a potential problem and a potential, if not real conflict of
interest between your lawyer's duty to you and his potential
interest in protecting himself and in his confusion perhaps of
roles as an attorney as well as the potential appearance of your
counsel a witness in the case in which he both represents you and
will appear to testify himself; isn't that correct?
A. Yes, sir, that's correct.
Q. And knowing of the potential problems, you are still willing to
waive that conflict of interest?
A. Yes, I am.
Q. I have advised you that in the event the Court sees fit to accept
your waiver that you may be precluded from later contending in a
post-trial motion that you were entitled to a fair trial without
cluttered representation which may be complicated because of your
trial attorney's appearing both as a witness and as an advocate
for you; isn't that correct?
A. Yes, sir, that's correct.
Nonetheless the court denied him the choice to continue with his counsel
based on Rule 3.7. The court reached the following conclusion:
"The reasons underlying this rule are set forth in Ethical
Consideration 5-9 of Missouri's Code of Professional Responsibility.
First, a lawyer who serves as both trial counsel and witness is open
to impeachment on the basis of an apparent interest in the outcome of
the trial and is thus rendered less effective as a witness. Second, a
lawyer who assumes both of these roles in a single case makes it more
difficult for opposing counsel to conduct effective cross-examination
and creates an awkward scenario in which one advocate must challenge
the credibility of his legal adversary. Third, the lawyer who assumes
the role of a witness must argue his own credibility, which may serve
to weaken his credibility and effectiveness as an advocate. Finally,
the two roles are said to be simply inconsistent. These reasons have
greatest purpose when the witness and advocate are one and the same."
WHEREFORE, in order to maintain the integrity of the judicial process
this improper representation must be denied.
________________________________
Marc Perkel * Relator * 07-16-97
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