IN THE CIRCUIT COURT GREENE COUNTY MISSOURI
Marc Perkel - pro se )
plaintiff, )
)
vs. ) No. 197CC0170
)
William A. Wear Jr. )
James R. Sharp )
The Law Firm of Wear and Sharp )
Vicki Stringfellow )
Donald A. Duncan )
The Law Firm of Turner, Reid, )
Duncan Loomer and Patton, P.C., )
defendants, )
SUGGESTIONS IN SUPPORT OF
MOTION TO STRIKE APPEARANCE AND ENTER DEFAULT JUDGEMENT
AGAINST DONALD A. DUNCAN AND HIS LAW FIRM
-------------------------------------------------------
Mr. Duncan appears before the court representing himself as well a four
other defendants in a case where some of his defendants are alleged to
have committed fraud and he and his firm are alleged to have conspired
with his clients/co-defendants to assist them in continued and ongoing
fraudulent behavior. However, in spite of these charges and in
deliberate violation of the Rules of Professional Conduct, Mr. Duncan
seems to contend that he can fairly and competently represent all these
clients.
I come before the court pro se and I read the rules and the rules are
very clear on the issue of conflict of interest. Quite frankly I stand
here with my mouth open in disbelief that Mr. Duncan would put his
career in jeopardy in direct violation of Rules 1.7, 3.7, and now Rule
8.4 by trying to pull a fast one on the court in hopes that the court
would be so corrupt as to allow him to succeed. His acts insult the
integrity of the justice system itself. Although my confidence in the
Missouri Courts is at an all time low, even I don't think the integrity
of the courts are compromised enough to allow violations this obvious.
Mr. Duncan seems to argue that Rule 3.7 gives him the right to
improperly represent clients before trial as long as he withdraws his
improper representation at trial. What is he suggesting here? Is he
saying that he can prepare for trial, go through discovery, charge his
clients, and then at the last minute step aside and bring in some new
attorney cold who's supposed to step in and conduct the trial? What will
it cost the other clients to change lawyers at the last minute? What
delays will these new lawyers ask for so they can prepare? What is this
massive switch in representation going to cost?
Mr. Duncan makes an argument in bad faith when he contends that Rule 3.7
applies to only the trial phase and not to all the other activity
leading up to trial. How is it possible for a lawyer to be prohibited
from being an advocate at trial and not be prohibited from being an
advocate before trial. Is it not the same conflict of interest?
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.
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/co-defendants. When Mr. Duncan speaks to the court, how will
we know when he's speaking pro se and when he's representing a client
and which of the four clients he's speaking for. Will he bring five
hats?
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."
STRIKING MR. DUNCAN'S APPEARANCE
--------------------------------
If Mr. Duncan doesn't have standing before the court to appear, then
what is the court to do with his motions and suggestions which he made
through improper appearance? How can the court hear these arguments? The
simple answer is that the court can't. If I came into court and I had
improper representation would not the court strike my appearance?
Surely it would.
Mr. Duncan is not an innocent party making an honest mistake here. Mr.
Duncan is a seasoned lawyer who has been practicing law for many years.
He has graduated from law school and passed the bar exam. One has to
assume that he has read the Rules of Professional Conduct and knows that
his representation is improper. Even his bad faith argument about Rule
3.7 violates Rule 3.3 by trying to pull a fast one on the court by
making a misleading legal argument. Mr. Duncan will read this motion
before the deadline. He still has time to comply with the rules. As if
he needs further warning this motion serves as notice and as an estoppel
that he had his chance to do the right thing and comply with the rules,
but failed to do so. I have and continue to give Mr. Duncan every chance
to comply, but it is up to him to do so.
DEFAULT JUDGEMENT
-----------------
As Mr. Duncan points out in his argument, "Accordingly, entry of an
order of default against a party is a drastic remedy which should not be
invoked unless the party has shown a deliberate and contumacious
disregard for the authority of the court." I agree with that. However, I
contend that the criteria for default judgement is met.
There are numerous cases where the court enters a default judgement for
failure to appear and these judgements are upheld by the court of
appeals unless the person who failed to appear has a real good reason.
In this case I'm going to assume that the defendants will all be there,
but the will be improperly represented. Obviously if they were
improperly represented by an honest mistake it would be appropriate for
the court to allow the defendants time to obtain proper counsel. But
what do you do when the defendants show up with improper counsel and
they already know their counsel is improper? What do you do when they
have been repeatedly warned that they have improper counsel and they do
it anyway? I would think that the only honest and fair thing to in
this situation is to rule that they failed to appear.
There's an old saying, "What's good for the Goose is good for the
Gander." If I were to show up in court and try to have a cab driver
represent me, my case would be dismissed with prejudice. It is assumed
that I know that a cab driver can't be an advocate in court. It is
presumed that I have some sense not to try to pull something that
outrageous. Just as everyone knows a cab driver isn't allowed to be a
lawyer, we also know that a witness can't be a lawyer and we know that a
codefendant can't be a lawyer. Here comes the defendants, your honor,
who are trying to do just that. They know better. This is not an honest
mistake. Shouldn't they be treated the same as the court would treat me?
I think so.
If a lawyer and sailor robbed a bank together and were caught, would the
court allow the lawyer to represent the sailor? Of course not! Well this
case is the same except the charge is fraud.
Granted that a default judgement for $5,000,000 is harsh. But these
defendants are insured. When Mr. Wear, Mr. Sharp and Ms. Stringfellow
lied to the court to steal everything I own and will ever own they
showed me no mercy whatsoever. They didn't cut me any breaks when they
abused the justice system to ruin my life. They continue to steal from
me and my company to run me out of business and wear me down so that I
can't enjoy life or defend myself legally. Here they are, breaking the
rules and undermining the judicial system and making a mockery of
justice in order to continue to collect off their fraudulently obtained
judgement. During the last six months while Mr. Duncan created delays,
Ms. Stringfellow sold my tractors, my trailor, my tools. She is still
attempting to sell my farm and has garnished my checking account and
$10,000 in receivables due to my company and a refund for $2000 due from
an accounting service.
This was made possible by Mr. Duncan's frivolous motions to create delay
and allow his clients who he knows committed fraud to collect their
fraudulently obtained judgement. Now he comes before the court breaking
the rules through improper representation and asks the court for further
delay to allow his clients even more time to break me down? Under these
circumstances how can justice deny me my rights and not grant my the
default judgement that I am due?
LEGAL MALPRACTICE
-----------------
Should the court allow the improper representation of the defendants to
continue, and should I prevail, I would think that Ms. Stringfellow
would be able to file a legal malpractice suit against Mr. Wear, Mr.
Sharp, and Mr. Duncan and collect millions of dollars from their
insurance companies. I would think that under those circumstances that
the insurance companies would have an interest in being a party to these
proceedings and should be informed, should the court decide to ignore
the rules and allow the improper representation to continue.
Mr. Wear and Mr. Sharp have already allowed their client, Ms.
Stringfellow to go into default by letting time run out without having
made an appearance in her behalf and exposing her to default judgement.
Mr. Duncan allowed his client to let Ms. Stringfellow default and is
therefore jointly liable for his clients actions.
DISBARMENT IS APPROPRIATE
-------------------------
Lawyers have been disbarred for a lot less that what these lawyers are
trying to pull.
In re: ELGENE C. VER DUGHT, Respondent 1992 MO 201
"The special master found respondent had violated Rule 3.3 of Rule 4
of the Rules of Professional Conduct. Rule 3.3 provides in part: "a
lawyer shall not knowingly: (1) make a false statement of material
fact or law to a tribunal; (2) fail to disclose a material fact to a
tribunal when disclosure is necessary to avoid assisting a criminal
or fraudulent act by the client;" and "(4) offer evidence that the
lawyer knows to be false."
"The special master found respondent had violated Rule 8.4(c) and (d)
which provide it constitutes professional misconduct for a lawyer to
"engage in conduct involving dishonesty, fraud, deceit or
misrepresentation" and "engage in conduct that is prejudicial to the
administration of justice." The special master's finding as to Rule
8.4(c) and (d) is supported by the evidence."
Certainly it can be construed that when a lawyer appears as an advocate
knowing that his appearance is improper, that his conduct is prejudicial
to the administration of justice.
In Re: William R. Murphy, Respondent 1987.MO.647
"Where an attorney has committed an act of fraud, dealt in a
purposefully dishonest manner with a client, or sought to enrich
himself dishonestly at the expense of others, disbarment is the
appropriate sanction."
In the Matter of Stephen W. Mendell, Respondent. 1985.MO.685
"Disbarment of course is the ultimate sanction and should be reserved
for a clear case. Honesty, however, is an all important quality for
an attorney. Situations in which a dishonest attorney could deceive a
trusting client arise far too often. Respondent demonstrated his
willingness to defraud his client and we have no assurance that there
will be no repeated offense: given the opportunity. The purpose of
disciplinary action is to protect the public. No lesser sanction is
consistent with this purpose, the respondent is disbarred."
Are these lawyers being purposefully dishonest with respect to the
representation of their clients? Sure looks like it to me.
Certianly a lawyer whose conduct warrants disbarrment can hardly be
relied on to represent a client and should be at least disqualified and
heavily sanctioned.
INTEGRITY OF THE COURT AT STAKE
-------------------------------
This case tests the integrity of the court and the judicial system. The
United States Supreme Court and the Missouri Supreme Court have created
the Missouri Court Rules and the Rules of Professional Conduct. The
presumption is that these rules are the real rules and that judges and
lawyers are actually supposed to follow them.
The question I bring before the court is, will the court actually follow
these rules? This is a clear case of manifest injustice. Here you have
two law firms who I see as legal insiders who have abused the judicial
system and compromised the integrity of the court before the public.
These lawyers are making a mockery of the Missouri judicial system
calling into question whether or not the word "Justice" actually means
justice, or if "Justice" is mearly a marketing slogan to create the
illusion in the mind of the public that the court system has integrity.
I'm not naturally disrespectful of the Court. I have many friends who
are judges and lawyers. I have a good understanding of how the legal
system is supposed to work. However, your honor, I have been severely
abused by the legal system. I used to be a hard working upstanding
member of society, but the court system is turning me into an outlaw. I
question if it is the intention of the legislature to punish a man who
was a good husband and a good stepfather for having a job. I question if
it was the intention of the legislature to allow crooked lawyers to use
the courts to steal everything a couple owns when their marriage breaks
up.
It looks to me, your honor, that the justice system is a self serving
members only club and the public, who the justice system was intended to
serve, is locked out. I am being locked out because I'm a pro se
litigant and therefore the court treats me like I don't exist. What I
want to know is, are you, your honor, going to ignore me to.
This case is obvious to me. Anyone can read the rule and see that Mr.
Duncan, Mr. Sharp, and Mr. Wear are breaking the rules with impunity.
These lawyers mock justice and they mock the court. Mr. Sharp has told
the real estate agent who is trying to sell my farm to ignore the Notice
of Lis Pendens because the judges hate me and I don't have a chance in
court. He's so confident in judicial corruption that he's bragging about
it. And from what I've seen, he's probably right.
What I want to know, your honor, is, are you going to give them the wink
and the nod and let them do it? Or are you going to uphold your duty to
the public and your judicial oath and uphold the rules of court?
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 3.3 Candor Toward the Tribunal
"Legal argument based on a knowingly false representation of law
constitutes dishonesty towards the tribunal."
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 ..."
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