Case Summary for May 2, 2007

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Case Summary for May 2, 2007

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Wednesday, May 2, 2007

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SC88244
In re: Roderick E. Smith
Jackson County
Attorney Discipline

From 1999 to 2002, a regional disciplinary committee issued 10 admonitions to Kansas City attorney Roderick Smith. In January 2006, this Court suspended Smith's license on an interim basis. In November 2006, following a hearing on allegations raised by the chief disciplinary counsel, the disciplinary hearing panel recommended that Smith be disbarred after finding 56 violations of the Rules of Professional Conduct arising from Smith's representation of 13 different clients and his conduct in the courtroom in proceedings before two different judges. The chief disciplinary counsel asks this Court to discipline Smith's law license.

The chief disciplinary counsel argues Smith violated Rule 4.1-1 (competence) by agreeing to file a petition in the United States Supreme Court without familiarizing himself with the rules of that Court; failing to evaluate the government's case in a federal criminal prosecution when representing one client; failing to assess properly whether another client should plead guilty or proceed to trial; failing to provide a third client with necessary information to make an informed decision about how to proceed; and, in a civil case, failing to know basic tenets of the substantive law, to conduct necessary research before filing an action on behalf of a client and to prepare adequately for or represent clients during the litigation. Counsel contends Smith violated Rule 4.1-3 (lack of diligence in handling client matters) by not preparing a client's petition to the United State Supreme Court in a timely manner; failing to enter into plea negotiations in a timely manner so his client could benefit from reduced sentences by providing "substantial assistance" to the prosecution; routinely failing to appear for all types of hearings; and failing to file pleadings in civil cases in a timely manner and to keep the litigation moving along. Counsel asserts that Smith violated Rule 4.1-4 (lack of adequate client communication) by routinely refusing to take or return phone calls from clients and then not providing clients with adequate information to make informed decisions about their legal matters. The chief disciplinary counsel argues Smith violated Rule 4-1.16 (declining or terminating representation) by withdrawing from a client's case without providing the client with reasonable notice of his intention to do so and, when clients terminated Smith's services, he would not give his clients' files to the clients or their new counsel. Counsel contends Smith violated Rule 4-1.5 (requiring reasonable attorney's fees) by not performing or completing the professional representation for which fees were paid and not ensuring that the time he spent on the representation was beneficial to his clients. Counsel asserts that Smith violated Rule 4-8.1(b) (conflict of interest: prohibited transactions) by failing to cooperate with the chief disciplinary counsel's lawful request for responses to complaints made against him by clients and to a complaint by a judge. The chief disciplinary counsel argues Smith should be disbarred because he does not understand fundamental legal doctrine, has engaged in a pattern of neglect with respect to clients' matters, and knowingly has deceived a client with the intent to benefit himself and based on certain aggravating factors that suggest Smith should receive the most severe discipline.

Smith asks this Court to reinstate his law license, responding that this Court should not discipline him and that he did not engage in any conduct that violated the Rules of Professional Conduct. He contends that of the 5,500 cases he handled between 1996 and 2006, only 50 produced complaints, and only 10 of those resulted in admonitions. He argues that the attorney assigned to handle his cases while his bar license was suspended has said that Smith did all he could have done for the client petitioning the United States Supreme Court and that it was the fault of the client's former counsel that Smith did not receive the files in time. Smith contends that while he represented another client in federal court, at no point did he give that client anything that would support a reasonable belief that Smith was representing him in a state court matter. He asserts that client only paid him for representation in federal court. Smith responds that he discussed federal sentencing guidelines and potential outcomes with a third client based on the information he was provided. Smith argues he thought his paralegal sent documents to a client's new attorney until he received an order from the court requiring him to show cause why the client never received the file. Smith contends he created the opportunity for his client to get an offer for a more favorable outcome in the matter. Smith asserts he frequently communicated with this client and informed him of the available options. Smith responds that he did act on behalf of his clients and that he was in constant contact with them regarding their cases. He argues that any failure to appear was not out of line with the rest of the attorneys practicing in his area and that, in one case where he did not appear, the original pretrial conference date was changed and the date was sent to his old office, not to his new one. Smith contends there is no Missouri case in which an attorney was disbarred for allegedly failing to file an appeal, allegedly failing to inform a client to take a plea, or for any of the other allegations made against him. He asserts that he filed continuances as requested and, on one occasion when he did not attend a hearing, he was at a hearing for another client and appeared for the next hearing scheduled and apologized to the court for missing the prior hearing. Smith responds that he spoke with this client every time the client called but that in one case, it was difficult to call the client because the client was in county jail. Smith argues that, in another case, when the client complained that he was not providing sufficient communication, Smith spoke with the client about changing lawyers, but she chose to stay with him. Smith contends that in another client's case, he terminated representation because the client failed to pay him. He asserts he kept his clients advised about their cases and informed them of possible outcomes. Smith responds that the chief disciplinary counsel improperly used privileged information from three of his cases. Smith argues that several issues counsel alleges were not from clients but from cases he had with his prior law firm and that the firm sent copies to the counsel even though the firm illegally copied Smith's client's files. Smith contends he never intended to engage in fraud and did not do anything that would make disbarment appropriate. He asserts the Court has suspended licenses for no more than one year for behavior that was related to conduct deemed in violation of the professional conduct rules and that disbarment is appropriate only when the lawyer intentionally deceives a court with a false statement or document, improperly withholds material information, and causes serious or potentially serious injury to a party or adverse effect on the legal proceeding. Smith responds that the counsel cited laws from outside this Court's jurisdiction and incorrectly cites most of these cases. Smith argues that other attorney discipline decisions by this Court show that disbarment would be disproportionate to his alleged actions. Smith contends the evidence before the disciplinary panel was that he attempted to serve his clients well in each situation.

SC88298
William T. Brown, D.O. and Judith Brown v. Harrah's North Kansas City, L.L.C.
Clay County
Challenge to dismissal of suit based on expungement order

Harrah's North Kansas City L.L.C. accused William Brown of cheating at its casino in March 2000. Based on Harrah's incident report, the Missouri Gaming Commission and the Clay County prosecutor filed charges, and an arrest warrant was issued for Brown. Ten months later, after Brown spoke with its general manager, Harrah's investigated and concluded Brown did not cheat. It sent a letter of apology to Brown but did not inform the prosecuting authorities about its new findings. One year later, in March 2002, United States customers officers in Miami arrested Brown on the Clay County warrant. Brown spent three and one half days in jail, where he was beaten by another inmate, before he was allowed to return to Missouri. Upon his return, the Clay County prosecutor reviewed Harrah's apology letter and dismissed the charges against Brown. In January 2003, Brown and his wife sued Harrah's for negligence, malicious prosecution, false arrest and intentional infliction of emotional distress. In December 2003, while the first suit was still pending, Brown successfully asked the circuit court to expunge his arrest records. Harrah's subsequently moved for summary judgment, claiming section 610.126, RSMo, precludes any person who has an arrest record expunged from bringing "any action subsequent to the expungement …" thereby excluding Brown's claim. Brown asked the court to vacate and set aside the expungement order based on the pending civil action. The trial court held it lacked jurisdiction to enter the expungement order as there was a civil suit pending at the time, making the order void. Brown then responded to Harrah's motion for summary judgment, asserting the expungement had been set aside and, therefore, Harrah's no longer could support its motion for summary judgment. The trial court sustained Harrah's motion for summary judgment. Brown asked the trial court to set aside its judgment and filed his surreply (his second reply to Harrah's motion), but the trial court took no action. Brown appeals.

Brown argues the court misinterpreted or misapplied section 610.126. He contends that the statute precludes any person who has obtained expungement of an arrest record from bringing any subsequent action, but that he brought his action one year prior to the expungement. Brown asserts that the trial court failed to follow Rule 74.04(C)(6). He argues that rule required the trial court to decide the motion after the response, reply and surreply have been filed. He argues the trial court decided the motion before he could file his surreply and before his surreply was due. Brown further contends summary judgment was not appropriate because the case has a disputed issue of material fact. He asserts that Harrah's motion was premised on the alleged fact that Brown's arrest records had been expunged. Brown argues the court's act in vacating its expungement order made the expungement order void such that the arrest records in fact never were expunged.

Harrah's responds that Brown's civil suit was based on the prohibition in section 610.126.3, which it argues provides that one who obtains an expungement "shall not bring any action subsequent to the expungement … relating to the arrest described in the expunged records." Harrah's contends the statute forbids the continuation of litigation because the plain and ordinary meaning of "bring" includes advance, convey, carry or cause to come along. It asserts that interpreting section 610.126.3 to preclude the continuation of litigation is consistent with the statutory intent that expungement of arrest records and litigation about the arrest are mutually exclusive. Harrah's responds that the principles of finality and judicial estoppel preclude Brown from asserting that his action predates the expungement. It argues his expungement petition and the court's expungement order were to the contrary. Harrah's contends that the court sustaining its motion prior to Brown's surreply did not materially affect the merits of the action. It asserts Brown's evidence of "unexpungement" was already in the record and was rendered immaterial by the court's summary judgment, which also rendered immaterial any further evidence or argument regarding "unexpungement." Harrah's further responds that there was no genuine issue of material fact regarding record destruction. It argues the statutory prohibition on litigation arises from the judicial act of expungement rather than the physical destruction of records. It contends that Brown's purported evidence of non-destruction was inadmissible and insufficient.

SC88172
In re: Expungement of Arrest Records Related to William T. Brown Jr. v. State of Missouri and Missouri State Highway Patrol
Clay County
Challenge to expungement of arrest record

In December 2003, William Brown sought to expunge the record of his March 2000 arrest in Clay County for allegedly cheating at a Harrah's casino. Brown listed the state, through its Criminal Records Repository and the Missouri State Highway Patrol, as possessing records subject to expungement. In February 2004, the trial court expunged Brown's record, and the expunged records apparently were destroyed. Fourteen months later, Brown moved to vacate or set aside the expungement order, arguing the order was void because there was a civil action pending at the time the order was entered, in violation of section 610.126, RSMo. Brown did not send a copy of motion to the state, nor did he send any notice that he was requesting a hearing on his motion. The trial court subsequently vacated the expungement order. When the state learned of this decision, it moved to set aside the order vacating the expungement. The trial court overruled the state's motion, stating that Brown could seek expungement again, and ordered Brown to submit his copy of his records to the state for it to recreate its file. The state moved to stay the court's order, alleging Brown should not be allowed to determine the content of his official criminal record. The court did not rule on the motion, and the state appeals.

The state argues the trial court should not have set aside the February 2004 expungement order. It contends the expungement order was final and the trial court did not retain jurisdiction to set it aside. The state asserts there is no authority, once a judgment becomes final and conclusive as to the parties' rights, for a court to set aside a judgment that was within the trial court's jurisdiction to enter, even if the original order was based on a misrepresentation by the plaintiff. The state argues that the expungement order was not void but merely voidable and that, because Brown made the misrepresentation, he cannot use his own misrepresentation as the basis to set aside the court's order.

Brown responds that the court lacked authority to order the expungement. He argues the court's expungement order was not a final judgment and, consequently, the court retained jurisdiction over the matter and could modify or set aside the order. Brown contends that the state waived its constitutional, estoppel and laches arguments and that even if this Court considers the laches and estoppel arguments, they should be denied. He asserts that the state did not produce any evidence that it has suffered any prejudice or unfair detriment. Brown responds that the state did not intentionally mislead the court and, therefore, judicial estoppel does not apply. He argues Missouri law does not require an order of expungement be denominated an order; rather, he contends, the order must be denominated a judgment to be final and appealable. He asserts the cases on which the state relies are not applicable here.

SC88089
State ex rel. Charles Simshauser v. The Honorable Edward W. Sweeney Jr., Division 16, Circuit Court of St. Louis County, Missouri
St. Louis City
Challenge to dismissal order

A grand jury indicted Charles Simshauser in January 2006 on one felony count of first-degree tampering and one misdemeanor of driving with a revoked license. After court dates repeatedly were set and reset, Simshauser moved in May 2006 for a speedy trial, and the trial court requested that all future motions for continuances be conducted in open court in Simshauser's presence. Simshauser twice moved to dismiss the case for violation of his right to a speedy trial, first in July 2006 and again the next month. Simshauser seeks relief from this Court.

Simshauser argues he is entitled to a writ of mandamus ordering the trial court to dismiss the state's case against him because the state's failure to move forward violate his statutory and constitutional rights to a speedy trial and due process of law. He contends the trial court exceeded its jurisdiction and abused its discretion in dismissing his request for a speedy trial and motion to dismiss without an evidentiary hearing on the matter and without ruling on the merits of his claims. He further responds that he has suffered an unreasonable trial delay that is not attributable to his own actions. Using the balancing process set forth in Barker v. Wingo, 407 U.S. 514 (1972), Simshauser contends he has been prejudiced and is entitled to dismissal with prejudice of the charges against him.

The state responds that Simshauser is not entitled to an order compelling the trial court to dismiss the charges against him with prejudice. The state argues Simshauser was not denied his constitutional and statutory rights to a speedy trial or due process. It contends that, although Simshauser was represented by counsel throughout the proceeding, the record does not show any attempt by his counsel to raise a motion in open court. The state asserts that Simshauser has not suffered an unreasonable trial delay as set out in Barker. In addition, the state responds, the delay was a result of Simshauser's own actions, and he failed to provide evidence of actual prejudice as Barker requires.