Case Summary for January 11, 2011

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Case Summary for January 11, 2011

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. Tuesday, Jan. 11, 2011

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SC90983
In re: Mindy J. Morse
Jackson County
Attorney discipline
Listen to the oral argument:

The office of chief disciplinary counsel was represented during arguments by Chief Disciplinary Counsel Alan D. Pratzel of Jefferson City, and Morse was represented by H.A. "Skip" Walther of Walther, Antel, Stamper & Fischer, P.C. in Columbia.

In December 2006 and April 2008, Kansas City attorney Mindy Morse sent a letter to two potential clients, soliciting representation in bankruptcy matters. Morse marked neither letter “ADVERTISEMENT,” nor did she include in the solicitations the language required by the rules of professional conduct.

In February 2007, a man retained Morse to represent him in a bankruptcy proceeding. The attorney-client agreement provided that the total of costs and fees would be $2,324 $1,324 to commence the bankruptcy filing and $1,000 to be collected after the filing. By June 2007, the man had paid $1,324 to Morse, the amount necessary to commence the bankruptcy. Morse did not file the bankruptcy petition. In January 2008, the man terminated the attorney-client relationship with Morse and requested a refund of the $1,324. Morse offered to refund $324, claiming she had earned $1,000 in fees. As Morse did not keep complete time records, she did not provide the man with a complete written accounting of her time spent on the matter.

In November 2005, Morse entered into a contract with a company providing credit counseling sessions to consumer debtors in bankruptcy. Under the contract, Morse agreed to collect a fee from her clients for the counseling and hold the money in trust for the benefit of the counseling company. In June 2008, the company claimed Morse owed it $1,460.

In March, April, June and July 2008, disciplinary authorities notified Morse of complaints against her and requested a response and cooperation with their investigation. Morse did not respond to any of the complaints. She previously had been admonished for two violations of rules of professional conduct related to retaining an unreasonable fee and failing to cooperate with disciplinary authorities. This Court suspended her license in 2008, and again in 2009, for delinquency in completing or reporting required continuing legal education hours. She continued to practice law during these periods of suspension.

In November 2009, the chief disciplinary counsel and Morse entered into a joint stipulation recommending a 12-month suspension for the issues involving the client solicitation letters, bankruptcy fee, credit counseling contract and the unauthorized practice of law while under suspension. They jointly recommend that the suspension be stayed and that Morse be placed on probation for 18 months. A disciplinary hearing panel also recommended the stipulated discipline, but this Court rejected it. The chief disciplinary counsel asks this Court to discipline Morse’s law license.

The chief disciplinary counsel argues this Court should suspend Morse’s law license, stay the suspension and place her on probation for 18 months. He contends Morse violated Rule 4-7.3(b) by sending client solicitation letters because the letters did not incorporate the required language and caveats. He asserts Morse violated 4-1.4(a) by failing to communicate adequately with her client in the bankruptcy proceeding. The chief disciplinary counsel argues Morse violated Rule 4-1.15(b) by breaching her written agreement to treat fees earmarked for credit counseling as trust funds and by failing to deliver the funds promptly. He contends Morse violated Rules 4-8.1(b) and 4-8.4(d) by failing to cooperate and comply with disciplinary authorities. He asserts Morse violated Rules 4-5.5(b), 4-1.16(a)(1) and 6.05(c) by engaging in the unauthorized practice of law while under administrative suspension. The chief disciplinary counsel argues that none of Moore’s conduct warrants disbarment and that a probation following a stayed suspension is appropriate because her conduct can be corrected if monitored or limited.

Morse agrees with the chief disciplinary counsel’s recommendation that this Court suspend her law license, stay the suspension and place her on probation for 18 months. She concedes that she violated the rules of professional responsibility as argued by the chief disciplinary counsel but contends her conduct does not warrant disbarment. She asserts it is appropriate to suspend her law license, stay the suspension and place her on probation because her conduct can be corrected if monitored or limited.

SC91200
In re: Kathryn R. Persley
Jackson County
Attorney discipline
Listen to the oral argument:

The office of chief disciplinary counsel was represented during arguments by Deputy Chief Disciplinary Counsel Sam S. Phillips of Jefferson City, and Persley was represented by James C. Wirken of McDowell, Rice, Smith & Buchanan in Kansas City.

In December 2008, Kansas City attorney Kathryn R. Persley began representing a client relating to traffic tickets in Missouri and Kansas. After the client paid her, Persley missed a court appearance in Kansas. The chief disciplinary counsel claims this caused the authorities to issue a warrant for the client; Persley denies this claim. Although Persley later agreed to reimburse the client, she failed to do so. At the time of her representation of the client in the Kansas case, Persley’s Kansas license was not in good standing because she failed to pay her professional dues. In late 2008 and early 2009, when Persley was suffering from emotional and other health problems, she also used client funds for herself, deposited her own money in her client trust account and failed to maintain records of her client trust account. She previously received two admonitions for four violations of the rules of professional conduct related to competence, diligence and communication.

The chief disciplinary counsel and Persley entered into a joint stipulation recommending that Persley’s law license be suspended, that the suspension be stayed and that Persley be placed on probation. In April 2010, a disciplinary hearing panel recommended that Persely’s license be suspended, without the stay or probation. Persley rejected the panel’s recommendation. The chief disciplinary counsel asks this Court to discipline Persley’s law license.

The chief disciplinary counsel argues this Court should suspend Persley’s license, stay the suspension and place her on probation. He contends Persley violated Rule 4-1.15(c) by using client funds for herself, depositing her own money in her client trust account and failing to maintain records of her client trust account. He asserts Persley violated Rules 4-1.3 and 4-1.4 by failing to appear on her client’s behalf and by failing to inform the client that she did not appear. The chief disciplinary counsel argues Persley violated Rule 4-5.5(a) by accepting fees to represent her client in Kansas when she was not licensed to do so. He contends the proposed discipline will allow her to improve her practice while protecting her future clients.

Persely agrees with the chief disciplinary counsel’s recommendation that this Court suspend her license, stay the suspension and place her on probation. Persley admits her accounting procedures violated Rule 4-1.15(c). She argues that she did not make an appearance for her client’s Kansas case because she was ill and that her efforts to contact her client were unsuccessful. She concedes these actions violate the violated Rules 4-1.3, 4-1.4 and 4-5.5(a). She asserts that “she has already initiated to improve her practice and protect her clients” and that the proposed discipline will allow her to improve her practice while protecting her future clients.

SC90807
Ricky C. Ross v. State of Missouri
Greene County
Challenge to constitutional validity of statute
Listen to the oral argument:

Ross was represented during arguments by Craig A. Johnston of the public defender's office in Columbia, and the state was represented by Daniel N. McPherson of the attorney general's office in Jefferson City.

During the spring of 2007, 33-year-old Ricky Ross knowingly had sexual intercourse with a 16-year-old. The state charged Ross as a prior and persistent felony offender with one count of second-degree statutory rape under section 566.034, RSMo. In June 2008, Ross pleaded guilty. Three months later, the trial judge sentenced Ross to 10 years in prison. Ross subsequently filed a post-conviction motion, alleging section 566.034 violates article III, section 23 of the Missouri Constitution. After an evidentiary hearing, the circuit court overruled Ross’s motion. He appeals.

Ross argues the court clearly erred in overruling his motion. He contends the senate bill containing section 566.034 violates the single-subject and clear-title provisions of article III, section 23. Ross asserts that although the title of the senate bill “said it was to repeal and enact in lieu thereof” certain sexual offenses, the body of the bill enacted legislation unrelated to sexual offenses. He argues the portions of the bill unrelated to sexual offenses cannot be severed because it cannot be presumed that the legislature would have enacted one portion of the bill without the others. Ross contends, therefore, that the entire bill is unconstitutional because it cannot be determined, beyond a reasonable doubt, that one of the bill’s multiple subjects is its controlling purpose.

The state responds that the circuit court did not clearly err in rejecting the constitutional challenge raised in Ross’s post-conviction motion. It argues Ross waived this claim by pleading guilty. It contends the equitable doctrine of laches (the failure to assert one’s rights in a timely manner) should be applied to bar the claim because section 566.034 has been in force for 15 years with no previous challenge to the procedure by which the legislature enacted it. It asserts all provisions of the senate bill fall within the single, controlling purpose of “crime and punishment.” The state responds that even if the bill’s subject is construed narrowly to relate only to sexual offenses, all provisions of the bill fairly relate to that subject and promote the bill’s purpose of deterring future sexual offenses. Finally, the state argues any unconstitutional provisions found in the legislation can be severed from the remaining provisions, including section 566.034.