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Chief Disciplinary Counsel's Brief in SC97912

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Chief Disciplinary Counsel's Brief in SC97912 Electronically Filed - SUPREME COURT OF MISSOURI June 26, 2019 09:11 AM IN THE SUPREME COURT STATE OF MISSOURI IN RE: ) ) JOHN DALE WILEY ) Supreme Court No. SC97912 P.O. Box 390 ) Crane, MO 65633 ) ) Missouri Bar No. 50240 ) ) Respondent. ) _____________________ _________________________________________________ INFORMANT’S BRIEF _________________________________________________ _____________________ ALAN D. PRATZEL #29141 CHIEF DISCIPLINARY COUNSEL SAM S. PHILLIPS #30458 DEPUTY CHIEF DISCIPLINARY COUNSEL 3327 American Avenue Jefferson City, MO 65109 (573) 635-7400 – Telephone (573) 635-2240 - Fax Email: [email protected] ATTORNEYS FOR INFORMANT 1 Electronically Filed - SUPREME COURT OF MISSOURI June 26, 2019 09:11 AM TABLE OF CONTENTS COVER PAGE .................................................................................................................... 1 TABLE OF CONTENTS .................................................................................................... 2 TABLE OF AUTHORITIES ............................................................................................... 3 STATEMENT OF JURISDICTION ................................................................................... 5 STATEMENT OF FACTS .................................................................................................. 6 STEVEN REED - COUNT I ...................................................................................... 6 TONI FOX – COUNT II .......................................................................................... 8 GORDON FUNK - COUNT III ............................................................................... 11 DONALD AND KIMBERLY BOLIN - COUNT IV .................................................... 20 POINT RELIED ON I. ......................................................................................................................... 24 II. ....................................................................................................................... 25 ARGUMENT I. ......................................................................................................................... 26 II. ....................................................................................................................... 29 CONCLUSION ................................................................................................................. 43 CERTIFICATE OF SERVICE .......................................................................................... 44 CERTIFICATION OF COMPLIANCE: RULE 84.06(c) ................................................ 45 2 Electronically Filed - SUPREME COURT OF MISSOURI June 26, 2019 09:11 AM TABLE OF AUTHORITIES CASES In re Coleman, 295 S.W. 3d 857, 870 (Mo. banc 2009) ....................................................... 31 In re Donaho, 98 S.W.3d 871 (Mo. 2003) ............................................................................ 42 In re Ehler, 319 S.W.3d 442, (Mo. 2010) ....................................................................... 40, 41 In re Farris, 472 S.W.3d 549 (Mo. banc 2015) .............................................................. 40, 41 In re Forck, 418 S.W.3d 437, 444 (Mo. banc 2014) ............................................................. 40 In re Forge, 747 S.W.2d 141 (Mo. 1988) ....................................................................... 41, 42 In re Frank, 885 S.W.2d 328 (Mo. banc 1994) ..................................................................... 38 In re Griffey, 873 S.W.2d 600 (Mo. banc 1994) ................................................................... 40 In re Vails, 768 S.W.2d 78 (Mo. banc 1989) ........................................................................ 39 In the matter of Dorsey, 731 S.W.2d 252 (Mo. banc 1987) .................................................. 38 In the matter of Striebel, 744 S.W.2d 778 (Mo. banc 1988) ................................................. 39 OTHER AUTHORITIES ABA Standards for Imposing Lawyer Sanctions 423 (1992) ............................................... 40 ABA Standard 4.12 ......................................................................................................... 30, 31 ABA Standard 4.13 ............................................................................................................... 31 ABA Standard 4.42 ............................................................................................................... 30 ABA Standard 9.22(a) ........................................................................................................... 35 ABA Standard 9.22(b) ........................................................................................................... 34 ABA Standard 9.22(d) ........................................................................................................... 34 ABA Standard 9.22(f) ........................................................................................................... 36 3 Electronically Filed - SUPREME COURT OF MISSOURI June 26, 2019 09:11 AM ABA Standard 9.32(1) ........................................................................................................... 31 ABA Standard 9.32(g) ........................................................................................................... 31 ABA Standards: Theoretical Framework .............................................................................. 31 Advisory Committee’s Formal Opinion 128 ......................................................................... 32 RULES Rule 4-1.1 ........................................................................................................................ 26, 27 Rule 4-1.3 ........................................................................................................................ 26, 39 Rule 4-1.4 .................................................................................................................. 26, 28, 39 Rule 4-1.5 .............................................................................................................................. 27 Rule 4-1.15 .......................................................................................................... 27, 30, 32, 40 Rule 4-8.4(c) .......................................................................................................................... 27 Rule 5.225 ............................................................................................................................. 38 4 Electronically Filed - SUPREME COURT OF MISSOURI June 26, 2019 09:11 AM STATEMENT OF JURISDICTION Jurisdiction over attorney discipline matters is established by Article 5, Section 5 of the Missouri Constitution, Supreme Court Rule 5, this Court’s common law, and Section 484.040 RSMo 2000. 5 Electronically Filed - SUPREME COURT OF MISSOURI June 26, 2019 09:11 AM STATEMENT OF FACTS This is an attorney discipline case proceeding under Missouri Supreme Court Rule 5. The case involves a four count Information against John Dale Wiley, Missouri Bar number 50240. Hearings were held in accord with Rules 5.13-5.19 in Springfield, Missouri, on September 17, 2018, and November 13, 2018. The Disciplinary Hearing Panel (DHP) issued its Findings, Conclusions and Recommendation on March 28, 2019. (App. 901-927). Informant accepted the Panel’s recommendation on April 1, 2019 (App. 928). On April 25, 2019, Respondent rejected the decision by notice to the Panel Chair. Steven Reed - Count I Steven Reed retained Respondent for representation in an unlawful detainer action filed against Mr. Reed. For eight years, Mr. Reed rented and occupied a house owned by another person. The house was subject to a Deed of Trust. The mortgage holder foreclosed on the house, resulting in the filing of the unlawful detainer action against Mr. Reed. (App. 517-518). Respondent entered his appearance on behalf of Mr. Reed on January 21, 2015, and filed a Request for a Jury Trial. On January 26, 2015, Respondent did not appear at a scheduled hearing. On April 4, that same year, the Plaintiff in the unlawful detainer action filed a Motion for Summary Judgment. On April 22 the Plaintiff filed a Notice of Hearing on that motion; the hearing was set for May 18, 2015, but later continued to May 20, 2015. (App. 517-518). 6 Electronically Filed - SUPREME COURT OF MISSOURI June 26, 2019 09:11 AM Respondent did not timely respond to the Motion for Summary Judgment, but on May 11, Respondent filed Defendant’s Response to Plaintiff’s Motion for Summary Judgment. (App. 518). On May 20, 2015, Respondent did not personally appear at the hearing on the Motion for Summary Judgment, but appeared by another attorney, Chad Courtney. (App. 518-519). At that hearing, Mr. Courtney appeared and acknowledged to the Court that the Motion for Summary Judgment “was ready for decision.” He made no argument related to the motion. (App. 767-779). Courtney acted pursuant to Respondent’s directions. (App. 767-779). Respondent explained to the DHP that his own failure to appear and his consent to a judgment was “the best strategy.” (App. 449). In his Amended Answer to this disciplinary Information, Respondent answered the charge contained in Paragraph 15 of the Information by saying that that he directed another attorney to appear on his behalf and consent to the judgment. (App. 518-519). Two days before the first hearing in this matter, Respondent again amended his Answer to this Information,
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