STATE OF MISSOURI )
) SS.
COUNTY OF MONROE )
IN THE CIRCUIT COURT OF THE COUNTY OF MONROE
STATE OF MISSOURI
In re: The Marriage of: )
Charles Michael Haynes and )
Cynthia Kay Haynes )
)
CHARLES MICHAEL HAYNES, )
SSN: XXX-XX-8343 )
)
Petitioner, ) Case No. ______________________
) (Ripley) 13RI-CV00554
)
v. ) CIVIL DIVISION
)
CYNTHIA KAY HAYNES, )
SSN: XXX-XX-1203 )
)
Respondent. )
MARITAL SETTLEMENT AGREEMENT
This settlement agreement is set forth herein under the Preamble of the State of Missouri, and hereby do recognize that as “We, the people of Missouri, with profound reverence for the Supreme Ruler of the Universe, and grateful for His goodness, do establish this” MARITAL SETTLEMENT AGREEMENT under the 1798 Constitution of the united states of America and the “Constitution for the better government of the state”. (http://www.moga.mo.gov/internethtmls/preamble.htm)
WHEREAS, Petitioner and Respondent were married to each other on May 23, 2008, in Ripley County, Doniphan, MO; and
WHEREAS, Petitioner and Respondent separated on or about the December 01, 2013, and are currently living separate and apart; and
WHEREAS, the parties are natural parents of the following minor child(ren): Mikaela Ann Haynes, born August 30, 2004, Sara Mae Haynes, born February 24, 2009, and no other children are expected or anticipated in this marriage, the child(ren) hereinafter collectively referred to as the “minor child”; and
This Marital Settlement Agreement (this “Agreement”) is made and entered into as of this ____ day of ___________, 2018, (the “Effective Date”) by and between Charles Michael Haynes, residing at RR 1 Box 2312, Doniphan, MO 63935 in Ripley County (“Petitioner” in case no. 13RI-CV00554, and respondent in case no. 14RI-CV00038 (See Exhibit B) and 13RA-CV01291 (See Exhibit A)) and Cynthia Kay Haynes, residing at RR 3 Box 7833, Doniphan, MO 63935 in Ripley County (“Respondent” in case no. 13RI-CV00554 and Petitioner in case no. 14RI-CV00038 and 13RA-CV01291).
A Dissolution of Marriage was first filed by Cynthia in case no. 11RA-CV00606 on May 11, 2011 in Randolph County after Charles broke Cynthia’s nose and fractured her cheek bones under both eyes in May of 2011. The ER doctor NAME, told Cynthia she was lucky to be alive after Charles hit her with a open upward swing and open palm upward on her nose and face. See Deputy Sheriff’s photographs and hospital reports as Exhibits ? and ?. After repeatedly begging for forgiveness by Charles, Cynthia dropped the criminal charges in Ripley County and forgave him.
Charles Michael Haynes punched pregnant Cynthia in the stomach over and over after pushing her down the stairs, causing her to miscarry on or about GET DATE - see Dr. Patty’s notes.
The Dissolution of Marriage was again instituted between Cynthia and Charles on December 10, 2013 in Randolph County case no. 13RA-CV01291, after Cynthia discovered that Charles Michael Haynes had repeatedly sexually assaulted and molested the parties’ minor child after a note (See Exhibit C, which was given to Cynthia by Melissa S. Hogg early Sunday morning on December 1, 2013). Ripley County Assistant Prosecuting Attorney Theodore ? filed child molestation charges (13RI-CR00907-01, See Exhibit B) against Charles Michael Haynes after a forensic interview (See Exhibit D) under the direction of Matt Maness (Husband and wife Attorney Randy Maness and Attorney Siegrid Maness son) at Ozark Family Resource Agency (OFRA). See Exhibit E and Exhibit F.
Cynthia learned of Charles Michael Haynes, the alleged perpetrator in case no. 13RI-CR00907-01 pending release from the Ripley County jail late on December 3, 2013. Cynthia filed for an ex parte (case no. ?) on December 2, 2013, and then decided to flee from the area to protect her children and herself (prompted in part because of case #CV501-325DR where no action was taken against Paul Daniel Hogg, a suspected pedophile) who had repeatedly sexually assaulted and molested the parties’ minor child (See Exhibit G, which was delivered to Cynthia by the child’s second grade teacher, Mrs. Judy Fish, the mother of Doniphan, Missouri R1 District Public School Principal Dr. Jay Fish). Ripley County Prosecuting Attorney Christopher J. Miller never filed child molestation charges against Paul Daniel Hogg even though there was probable cause (See Exhibit H).and filed for a Dissolution of Marriage action no. (13RA-CV01291, See Exhibit A) in Randolph County on December 10, 2013, where her immediate family is located.
Cynthia’s former attorney Randy Maness from 1997-2011 entered his appearance as criminal attorney for Charles Michael Haynes (13RI-CR00907-01, See Exhibit B). Attorney Randy Maness was also the father of Matt Maness who was in charge of the forensic interview case for Melissa S. Hogg at the (OFRA) Ozark Family Resource Agency on December 1, 2013 (See Exhibit E and Exhibit F). Attorney Randy and Attorney Siegrid Maness loaned approximately $5,000 of their personal funds to Charles Michael Haynes because his Mother Bernice Haynes was out of town in New Jersey to obtain his release for 10% of $50,000 cash bond on December 3, 2013.
Cynthia’s former attorney Siegrid Maness from 1997-2011 filed case no. 13RI-CV00554 on behalf of Charles Michael Haynes a dissolution of marriage against her former client Cynthia Haynes on December 17, 2013, failing to mention in her (13RI-CV00554) Petition case no. 13RA-CV01291 that Cynthia had already filed on December 10, 2013 in Randolph County.
WHEREAS on January 03, 2014 Cynthia (Petitioner) stated to the court in case number 13RA-CV01291 that "5. The best interests of the children would be compromised should this matter be transferred to Ripley County.", (See Exhibit I).
WHEREAS on January 10, 2014, the 14th Judicial Court grants Charles Michael Haynes motion (instigated by Cynthia’s former attorney Siegrid Maness now working against her former client Cynthia Haynes) to transfer venue to Ripley County. Cause transferred to Ripley County Circuit Court and assigned case no. 14RI-CV00038. On September 22, 2015, without notice or due process of hearing, Former Judge William J. Clarkson (Melissa S. Hogg’s brother’s uncle by marriage) and Judge in conflicting child support (50985239) case numbers 13BT-PR00384, CV501-325DR and 36V050100325-01 regarding child support arrears over $163,355.71 in Missouri child support case number case # 50985239 for Cynthia with Attorney Siegrid Smith Maness (Cynthia’s former attorney from 1997 to 2011 who became opposing counsel in several case numbers relating to this divorce case: 13RI-CV00554, 14RI-CV00038, 13RA-CV01291, 17RI-JU00011, 17RI-JU00012, 17RI-JU00033, 14RI-JU00017, 14RI-JU00016, 14RI-JU00015, and her son Matt Maness was in charge of forensic interview case for Melissa S. Hogg at Ozark Family Resource Agency in Doniphan, Mo.) and without notice of hearing and due process to Cynthia disposed of 14RI-CV00038 and took up case number 13RI-CV00554 where Cynthia Kay Haynes became the Respondent instead of the Petitioner filed by her former attorney Siegrid Maness.
Petitioner Cynthia Haynes in case no. 14RI-CV00038 did not receive any notice of the hearing filed by Respondent's counsel (Petitioner's former attorney Siegrid Maness case no.14RI-CV00038) at all. In so doing Judge William Clarkson did on September 22, 2014 violate one of the most important fundamental rights of the parties, to wit the right to "Notice and opportunity" see Rule 44.01 of the Missouri Rules of Civil Procedure ( Rule 44.01(d) requiring a five days notice before any hearing on a motion), because it an established fact that "Courts do not tolerate the entry of a judgment without proper notice in cases involving money or property. Jones v. Flowers, 547 U.S. 220, 234 (2006). [and] It is unconscionable to tolerate the lack of basic process when parental rights hang in the balance.." (see opinion SC91141, issued January 25, 2011); see also Rule 2-2 of the Missouri Supreme Court Rules, including but not limited to the requirements of Rule 2-2.6, particularly entitled "Ensuring the Right to Be Heard", which particularly declares that:
"(A) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.
(B) A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement.
Comment
[1] The right to be heard is an essential component of a fair and impartial system of justice. Substantive rights of litigants can be protected only if procedures protecting the right to be heard are observed.
[2] The judge plays an important role in overseeing the settlement of disputes, but should be careful that efforts to further settlement do not undermine any party’s right to be heard according to law. The judge should keep in mind the effect that the judge’s participation in settlement discussions may have, not only on the judge’s own views of the case, but also on the perceptions of the lawyers and the parties if the case remains with the judge after settlement efforts are unsuccessful. Among the factors that a judge should consider when deciding upon an appropriate settlement practice for a case are: (1) whether the parties have requested or voluntarily consented to a certain level of participation by the judge in settlement discussions, (2) whether the parties and their counsel are relatively sophisticated in legal matters, (3) whether the case will be tried by the judge or a jury, (4) whether the parties participate with their counsel in settlement discussions, (5) whether any parties are unrepresented by counsel, and (6) whether the matter is civil or criminal.
[3] Judges must be mindful of the effect settlement discussions can have, not only on their objectivity and impartiality, but also on the appearance of their objectivity and impartiality. Despite a judge’s best efforts, there may be instances when information obtained during settlement discussions could influence a judge’s decision making during trial, and, in such instances, the judge should consider whether recusal may be appropriate. See Rule 2-2.11(A)(1)."
On September 22, 2014 William J. Clarkson, then acting as Judge in case #14RI-CV00038 and acted against Cynthia and her offspring in case #13BT-PR00384 (Judge William J. Clarkson (as Uncle by marriage to one of Paul Daniel Hogg’s children (Silas Clarkson) which came about because Judge Clarkson’s brother Tommy Clarkson and Paul Daniel Hogg shared Tommy Clarkson’s then wife and Paul Hogg begat Silas Clarkson) Tommy Clarkson blackmailed his wife using this (Silas Clarkson) as a ploy to gain an advantage in THEIR divorce years ago), incapacitated Paul Daniel Hogg so he could avoid commitment over non-support of child support his family obligations, [Paul Daniel Hogg has been playing this shell game of hiding assets for a long time with the help of his old cronies. He was apprehended and put on probation for claiming to be unable to be gainfully employed [to sick to work and now, case (13BT-PR00384) using “incapacitated” as a ploy in case number CV501-325DR to avoid contempt of court and an application for a order of commitment] while defrauding the Federal government claiming to be disabled and unable to be gainfully employed when he was NOT DISABLED and was able to work.
The Daily American Republic newspaper in Poplar Bluff, Missouri front page headline on Sunday, October 10, 2010 stated that “Hogg gets probation” by Michelle Friedrich, Associate Editor “CAPE GIRARDEAU, Mo. - A federal judge placed a former Poplar Bluff, Mo., and Doniphan, Mo., businessman on probation Friday morning for defrauding the Social Security Administration and ordered he pay more than $150,000 in restitution. Paul Daniel Hogg, 67, was placed on five years probation by U. S. District Judge Stephen Limbaugh Jr., according to Assistant U.S. Attorney Keith Sorrell. Hogg pleaded guilty in June to the felony of failure to disclose an event to the Social Security Administration. He was accused of receiving disability benefits when he was not entitled to them since he was NOT DISABLED.Paul Daniel Hogg’s self-admitted ploy now in case # CV501-325DR and 13BT-PR00384 to avoid child support by falsely claiming he is INCAPACITATED.] ) and case #36V050300313 where he ruled against Cynthia did therefore commit an "unconscionable lack of basic process" when he then on September 22, 2014 in case number 14RI-CV00038 issued an order declaring that:
"Counsel Maness appears. Separate dissolution filed (13RI-CV00554) and this case (14RI-CV00038) to be dismissed. So ordered and file to be closed. WJC
Associated Entries: 07/16/2014 - Case Review Scheduled
Scheduled For: 09/22/2014; 9:00 AM ; WILLIAM JOSEPH CLARKSON II; Ripley"; and that: Counsel Maness was Cynthia’s former attorney from 1997-2011 and now acted against Cynthia by filing case number 13RI-CV00554 and acting against Cynthia at the September 22, 2014 hearing when Cynthia was not given notice nor due process of hearing and action taken against her that caused her position as Petitioner in case numbers 13RA-CV01291 and 14RI-CV00038 to become Respondent in case number 13RI-CV00554.
Because case 13RA-CV01291 (which became case number 14RI-CV00038) was transferred to Ripley County, and in the dead of winter during an Ex Parte case no. ? hearing on January 13, 2014 (not a marital asset division hearing where acting Judge Swindle ordered Cynthia to give Charles certain marital assets compromising her position and endangering her children’s welfare and finances in the dead of winter) (Judge David Swindle told Cynthia to move her things in a sleigh since the gravel roads were so icy from her marital home to another home and he did not want to hear of a box truck loading things up to move) (Exparte was set for first case on docket and was reordered to the end of Docket so giving Cynthia’s former Attorney’s Randy and Sigrid Maness and Devin Kirby time to badger Cynthia into giving Charles marital assets (tractors and marital home and other equipment) when the hearing was NOT about the division of marital assets but rather protection from alleged perpetrator Charles Haynes (child molestation, beating wife Cynthia until she lost baby, and breaking her nose and both cheek bones in May of 2011), Cynthia was forced to negotiate with the perpetrator to get him to move out of their marital home where they had lived for the past four years and where Cynthia had all her furniture from her former marriage. Charles agreed to move to his Mother’s home and Cynthia and the girls moved back into their marital home in Ripley County. Minor child, Sara Haynes 5th birthday was coming up and Charles wanted to attend the birthday party. He came with his Mother and was supervised by Cynthia and his Mother for the party. He started to passively say threatening things to Melissa Hogg who was at the birthday party, like “you better be careful because I don’t have anything to lose”. Charles was asked to leave the birthday party and he did. He was only there for like ½ hour before he was asked to leave. Cynthia did not know and was not notified of his bond conditions nor given a copy of them. So she did not know that it was against the law (his bond conditions) for him to be around his victim Melissa Hogg. (She was remembering Judge Paul McGhee’s divorce judgement from her former husband Paul Daniel Hogg in case number CV501-325DR where the Judge had appointed Paul Daniel Hogg’s daughter to supervise visits with Mindy and Melissa in that case and believed this was a similar situation and how the “law” worked - that “family” could supervise visitations with alleged perpetrators).
Without anyone talking to Cynthia about it at all, the next thing she knows is that Charles is rearrested and she has criminal child endangerment charges filed on her (case no. 14RI-CR00134) taking all three of her children away (case numbers 14RI-JU00017, 14RI-JU00016, 14RI-JU00015) because of allowing Charles Haynes to spend ½ hour at a birthday party for their 5 year old daughter Sara that was supervised by Cynthia and his Mother. (Cynthia was remembering Judge Paul McGhee’s divorce judgement from her former husband Paul Daniel Hogg in case number CV501-325DR where the Judge had appointed Paul Daniel Hogg’s daughter to supervise visits with Mindy and Melissa in that case and believed this was a similar situation and how the “law” worked - that “family” could supervise visitations with alleged perpetrators. See Exhibit ? of Paul Hogg having probable cause as suspected pedophile that Prosecutor Chris Miller never charged in Ripley County) Devin Kirby tricked her into signing a paper giving Jeff Johnson’s relative or employee or friend (Brandon and Charissa Armstrong See Exhibit ? Melissa Petition 4-23-14) of Jeff Johnson (whose father handles the finances for Cynthia’s former attorney Sigrid Maness’s campaign to run for Judge in Ripley County), custody of her minor daughter Melissa Hogg for one year. Not until June of 2015 did anyone ever talk to Cynthia to ask for her side of the story. No one offered nor attempted to help try to keep the girls and their Mother together at all during this traumatic time of divorce and upheaval from a child molester and domestic violent person.
Judge Michael Pritchett was assigned the three Juvenile cases 14RI-JU00017, 14RI-JU00016, 14RI-JU00015 and the criminal case 13RI-CR00907-01 against Charles M. Haynes; and Cynthia case no.?, Judge?; and Juvenile cases 14RI-JU00017, 14RI-JU00016, 14RI-JU00015. June 2, 2014 Judge Pritchett decided to take all three girls and put them into State of Missouri’s system of foster care. Judge Michael Pritchett was also the Judge assigned to Charles criminal case #13RI-CR00907-01, and the three Juvenile cases 14RI-JU00017, 14RI-JU00016, 14RI-JU00015, a conflict of interest for which he later recused himself after Chuck’s lawyer Yarbro brought up the conflict in Juvenile court at the Juvenile Center in Poplar Bluff, Missouri on GET DATE.
Judge Michael Pritchett is also the Judge assigned to credit card case no. 16RI-CV00175, a credit card with a $52,000 balance that was normally paid off monthly in Cynthia’s name that was used to run the business owned by Charles BUREAU OF PRESCRIPTION HEALTH, INC., which credit card in Cindy’s name which ran the expenses through every month for the business for the most part. So when Charles was arrested on December 1, 2013, the business called BUREAU OF PRESCRIPTION HEALTH, INC., was closed due to Charles confiscating the computer server (the brains of the business) and other equipment and by his actions of closing the Post Office boxes and sending all of the unprocessed orders back to the customers to the tune of hundreds of thousands of dollars. (Judge David Swindles orders to give marital assets back to Charles on January 13, 2014 hindered and hampered Cynthia’s financial and marital housing for her children and herself, the victims of Charles Haynes actions in this case forcing her to try to negotiate with perpetrator to have a home for herself and daughters - along with being forced to move back to Ripley County by the 14th Circuit Court because of Cynthia’s former attorney Siegrid Maness behind the scenes work in getting divorce case #13RA-CV01291 which became # 14RI-CV00038 in Ripley County. Cynthia’s former attorney then worked to get #14RI-CV00038 dismissed on September 22, 2014. The following case was transferred from Randolph County to Ripley County in case numbers 13RA-CV01291 and 14RI-CV00038 which has as Cynthia stated on January 03, 2014 in case number 13RA-CV01291 that "5. The best interests of the children would be compromised should this matter be transferred to Ripley County.", (See Exhibit I).
Charles Michael Haynes also failed to pay the payment on a US BANK note for a piece of commercial property on PP HWY in Poplar Bluff that had over $300,000 in equity in it. Because of the repercussions of his heinous crime, Charles allowed US BANK to repossess the one acre tract of prime location commercial property with over $300,000 equity in it and it was sold at the courthouse steps to the highest bidder further damaging Cynthia’s asset she received from her prior marriage. Cynthia was precluded from doing anything with this note at US BANK because it was in Charles Haynes name at US Bank and they would not discuss anything with her about this asset. This 1 acre commercial piece of property on the corner of TRCC’s entrance and PP HWY was a valuable asset which only had approximately $238,000 owed against it and was appraised for $525,000 in 2011. See Exhibit ?. Charles Michael Haynes egregious actions disseminated this valuable asset and compensation should be awarded to Cynthia for his neglect to care for a family obligation. This was also caused in part by Judge David Swindle and Judge William J. Clarkson and Judge John H. Shock because they allowed Attorney Jasper Edumundson representing Paul Daniel Hogg to avoid a order of commitment for over $163,355.71 in back child support while falsely claiming Paul Daniel Hogg was/is incompacisted in case numbers 13BT-PR00384, CV501-325DR and 36V050100325-01 (Judge John Shock acting as Cynthia’s attorney - see docket sheet Exihibt ?) regarding child support arrears over $163,355.71 in Missouri child support case number case # 50985239 and to avoid Federal and State taxes for 2002 and 2001 as ordered in case no. CV501-235DR. [Paul Daniel Hogg’s self-admitted ploy now in case # CV501-325DR and 13BT-PR00384 to avoid child support by falsely claiming he is INCAPACITATED. See Exhibit (what I filed in 17SL-DR01516)] This caused Cynthia to attempt to protect her assets in April of 2011 by putting her husband Charles M. Haynes in charge of protecting this asset from creditors and log house known as the “office” in Ripley County. Charles M. Haynes refuses to this date not to pay the County annual taxes on the Log house in Ripley County which because this case has been strung out for over four years - was causing these valuable assets of several hundred thousand dollars to come to the courthouse steps in a tax sale action against Cynthia. Cynthia had received this assets in a divorce action (CV501-325DR) from her prior marriage to Paul Daniel Hogg. See Exhibit ?
WHEREAS, Judge John H. Shock (Cynthia’s former attorney in case no. 36V050100325-01 - HOGG V HOGG) along with others like Attorney Jasper Edmundson are hiding or have hidden assets of and for Paul Daniel Hogg (see docket sheets for case numbers including, but not limited to 36V050100325-01 - HOGG V HOGG), regarding assets in divorce case for Paul Hogg and Marissa Hogg (17SL-DR01516, on December 18, 2017; See Exhibit ?) and case numbers CV501-325DR, 13RI-CV00554, 14RI-CV00038 and 13BT-PR00384); 13BT-PR00384; also affected by these case numbers 15RI-TJ00001, 36V050100325; 36V050100325-01; 09RI-TJ00100; CV501-325DR, 13RI-CV00554, 17RI-JU00011, 17RI-JU00012, 17RI-JU00033, 13RI-CR00907-01, 16RI-CV00175, 14RI-CV00703, 14RI-CV00234, 14RA-CV00478, 14RA-CV00476, 11RA-CV00606, 13RA-CV01291, 14RI-JU00017, 14RI-JU00016, 14RI-JU00015, 36V050400440, 36V050300313, 14RI-CV00038, and Missouri business charter number 00440330 filed with the Missouri Secretary of State and James O. Barks management company called “Barks Management” - see depositions taken April 21, 2011 (See Exhibit K and Exhibit L); HOGG INVESTMENT PROPERTIES, Doing Business As, and HOGG JAMES ROGER TRUSTEE, and to submit those findings of criminal conspiracy to the Attorney General of this State of Missouri for prosecution (See Exhibit M).
WHEREAS, a full and complete financial disclosure has been made by the parties to each other of all their respective assets, both joint and separate, the accuracy and truthfulness of which forms the basis of this Agreement; and
WHEREAS, both parties have given much thought and careful consideration to a settlement of their differences and have determined that they are irreconcilable; and
WHEREAS, it is the desire and intention of the parties that their relations with respect to property and financial matters be finally fixed by this Agreement.
NOW THEREFORE, as Petitioner and Respondent have not been able to freely and fully discuss the provisions, terms and conditions hereof and in consideration of the promises and mutual covenants herein contained as well as for other good and valuable considerations not herein specifically set forth, the respondent does hereby propose the following:
1. Spousal Support. It is expressly agreed by the parties herein that each party relinquishes or waives any right or interests they have had as alimony, support or maintenance from the other, except as provided within the terms of this Agreement. This Agreement will replace any and all previous agreements between the parties which may have been entered into between said parties, and supersedes any temporary orders of any court which may be in effect.
Petitioner shall pay to Respondent periodic or rehabilitative spousal support in the sum of $5,500.00 USD per month beginning December 01, 2013 and continuing to be paid on the first day of each month thereafter for a total period of ten (10) years. Such spousal support payments shall automatically terminate upon the final payment hereunder, and is not terminated upon Respondent remarriage or the death of either party. The spousal support shall be taxable to Respondent and deductible by Petitioner. The spousal support shall be non-modifiable.
To guarantee a portion of the spousal support, Petitioner will obtain and maintain at his/her sole expense a term life insurance policy insuring his/her life in the amount of $500,000.00 USD with Respondent being the beneficiary. This policy shall be in full force and effect for as long as Petitioner is obligated to pay spousal support under this Agreement, after which time Petitioner shall have no further obligation to maintain such policy and may terminate such policy as deemed appropriate.
2. Custody of the Minor Child. The parties agree that Respondent shall have sole legal and physical custody of the minor child and shall be free to make all decisions in all matters pertaining to the upbringing of the minor child, including health, medical and dental care, education, religion, vacations, travel and welfare.
3. Minor Child’s Medical Insurance. Petitioner shall maintain medical insurance for the minor child. Respondent shall be entitled to receive confirmation of the status of the insurance annually directly from the insurance carrier. Any and all reasonable expenses not covered shall be paid by Petitioner.
4. Child Support. The parties agree that Petitioner shall pay to Respondent the sum of $2,000.00 USD per month as and for child support. The child support shall be paid directly to Respondent retroactive beginning December 01, 2013 and shall be paid on the first day of each month thereafter. The amount of child support has been determined in accordance with the applicable state child support guidelines, attached hereto as Exhibit A. The parties acknowledge that the child support arrangement shall not be legally binding until approved in a court order.
5. Minor Child’s Tuition Expenses. In the event Respondent believes that it is in the best interests of the minor child to attend private school, the parties agree that Petitioner shall be responsible for all reasonable expenses of such private school. The parties agree Petitioner will be responsible for the costs of tuition, reasonable room, board, travel, and any reasonable agreed upon loans associated with the college education of the minor child. This obligation shall continue until the child completes his/her undergraduate education at the college selected and all debts have been paid in full, or the expiration of five (5) years, whichever first occurs.
6. Waiver of Payment Through Clerk. Both parties waive participation in any applicable Central Depository Payment Program or the payment of child support or spousal support through any clerk of court, direct deposit program or other third party entity (the “Central Depository”); and accordingly, payments need not be made through the Central Depository and shall be made directly to the party entitled thereto. In the event of the tardiness of payments or other difficulty experienced by the receiving party, either party may subsequently apply to the Central Depository to activate participation and have child support payments directed through the Central Depository in the event that it becomes necessary to secure or obtain payments made hereunder.
7. Distribution of Real Property. The petitioner currently own the real property located at RR 1 Box 2312, Doniphan, MO 63935 (the “Marital Residence”). It is agreed that Petitioner has vacated the Marital Residence or shall vacate the Marital Residence. It is further agreed that Respondent shall assume sole ownership of the Marital Residence, and Petitioner will transfer and release any right, title, claim or interest he/she may have in or to such Marital Residence. (Petitioner bought this house and 16 acres for approximately $105,000.00 in 1997-1998. He divorced in 2005 owing approximately $60,000.00 to Southern Bank and $50,000 to his former wife Kimberly Lynn Haynes (Murphy). Respondent paid his house off his ex-wife and put a new roof on ($6,000); a new air conditioner (1,350); Further, Respondent shall be solely responsible for all other expenses associated with the maintenance and upkeep of the Marital Residence such as utilities, lawn care and routine repair of appliances, etc.
The parties currently own the real property located at RR 1 Box 2315, Doniphan, MO 63935, which shall become the sole property and responsibility of Respondent. Petitioner will transfer and release any right, title, claim or interest he may have in or to such property.
The petitioner currently owns the real property located at RR 3 Box 7833 (Log House - Cindy received this property in her prior divorce and had put in Chuck's name to protect from creditors because Paul Daniel Hogg her previous husband, did not take care of his family obligations in regard to child support or his court ordered 2002 and 2001 Federal and State tax obligations (of over one million dollars) and in Missouri child support case # 50985239 with arrears over $163,355.71 and case #CV501-325DR, 13BT-PR00384, 36V050100325-01), Doniphan, MO 63935, which shall become the sole property and responsibility of Respondent which was her’s prior to this marriage. Petitioner will transfer and release any right, title, claim or interest he may have in or to such property.
8. Personal Property. The parties agree to divide all of the personal property owned by them together, including household furnishings and furniture, not otherwise already divided (“Marital Property”), as provided below:
A. Petitioner shall retain the following item(s) of Marital Property as his sole and exclusive property:
• Black Ford Pickup, $3,000.00.
• Ford F350 Blue, dually, $21,000.00.
• Gooseneck trailer, $5,000.00.
• Horse Pal no papers, $3,000.00.
• 2 horse blankets, $100.00.
• 2 bridles, $200.00.
• Halter horse, $25.00.
• Tractor w/loader, $4,500.00.
• Tractor needs fixed up, $2,000.00.
• File Cabinet 4 drawer letter size, $129.00.
• Dressor, Queen Bed, Chest, nightstand, $3,500.00.
• Honda fourwheeler 2001, $7,000.00 (Cindy paid for prior to this marriage).
• John Deer zero turn mower, $13,000.00.
• Dressor/mirror, $250.00 (Chuck owned prior to this marriage).
• Full Size Mattress/Head/foot board, $800.00 (Chuck owned prior to this marriage).
• Table and 4 chairs, $500.00 (Chuck owned prior to this marriage).
• Dressor/Mirror (at Gert house), $25.00.
• Full Size Mattress/Head board, $300.00.
B. Respondent shall retain the following item(s) of Marital Property as her sole and exclusive property:
• Generator PTO/box/entrance wire, $5,000.00.
• $50,000 cash to pay off Ex-wife, $50,000.00. See Exhibit ?
• $58,000 cash to pay off Chuck's house, $58,000.00.
• $40,000 for boat ramp at Chuck's house, $40,000.00.
• Power wash/calk/stain/seal Chuck's house, $4,500.00.
• New Air Condition unit (2011?), $1,300.00.
• New Roof on Chuck's house (2011?), $6,000.00.
• 963 Cat Loader, $30,000.00 (Cindy owned prior to this marriage).
• John Deere Tractor Bought used, $23,000.00.
• 15' bat wing bush hog bought used, $5,000.00.
• Big Screen TV, $4,500.00.
• 8' Kitchen Table to match cabinets, $1,200.00.
• 8 Chairs that go with Kitchen table, $1,500.00.
• Ivory Sectional with footstool and chair, $3,500.00.
• Leather Couch and Chair, $2,000.00.
• Cab Kabota Tractor, $38,000.00.
• Forks, loader, hay bale spike aftermarket, $2,000.00.
• Stainless Steel Refrigerator, $2,300.00.
• Large BBQ Grill Stainless Steel, $300.00.
• King Size foam Mattress and box springs, $2,000.00.
• King size head board/foot/side rails, $3,000.00.
• Matching dresser/mirror, $2,000.00.
• Matching Armoire, $2,000.00.
• Matching Nightstand with marble top, $1,000.00.
• 20 Cattle Panels, $1,500.00.
• Horse Phil papers, $1,500.00.
• Child's Saddle, $850.00.
• Cindy's Saddle, $650.00.
• Graco Airless Sprayer, $650.00.
• Graco Airless Sprayer tips, $100.00.
• King pillow top mattress/box springs, 2 nightstands, $3,500.00 (Cindy owned prior to this marriage).
• Melissa four wheeler, $7,000.00.
• Yamaha four wheeler 2009? Mikaela Blue, $8,000.00.
• 2014 Boat/Motor/Trailer, $30,000.00.
C. The following item(s) of Marital Property shall be sold, and the net profits shall be divided __________% to Petitioner and __________% to Respondent:
D. Except as otherwise set forth above, the parties shall each keep and retain sole possession and ownership of all personal property, including jewelry, they currently possess. Each party shall waive any interest in the other’s property.
E. The parties represent that there is are no other items of Marital Property to be distributed.
9. Vehicles. The parties agree to divide all vehicles as provided below:
A. Petitioner shall retain all of his/her right, title and interest in the following leased/owned vehicle(s):
• Make: Ford Pickup, Model: F350 , Color: Blue, Year: 2001.
• Make: Ford, Model: F150, Color: Black, Year: 1996?.
He/she shall be solely responsible for and hold Respondent harmless from the balance of any lease/finance payments on said vehicle. Respondent shall transfer all of his right, title and interest in said vehicle, if any, to Petitioner.
B. Respondent shall retain all of his/her right, title and interest in the following leased/owned vehicle(s):
• Make: Ford, Model: F150, Color: Gem Green, Year: 2013.
• Make: Dodge, Model: Dart, Color: Black, Year: 2016.
He/she shall be solely responsible for any balance of lease/finance payments on said vehicle. Petitioner shall transfer all of his/her right, title and interest, if any, in said vehicle to Respondent.
C. Each party shall be solely responsible for the expense, upkeep and maintenance, including insurance as to each vehicle he/she shall receive as a result of this section, and each shall indemnify and hold the other harmless as to any claim, demand or cause of action arising out of the use or possession of such vehicle.
10. Outstanding Debts, Charge Accounts and Credits. The parties agree to divide all debts and liabilities of the parties as provided below:
A. Petitioner will assume and hold harmless Respondent from the following debt(s):
• Debtor: Cynthia K. Haynes for Bureau of Prescription Health and personal, Creditor: Citibank/AADVANTAGE, Description: Monthly Business charges, Account number: 0000000, Amount: $52,000.00.
• Debtor: Charles Haynes, Creditor: US BANK, Description: PP HWY LOT, Account number: 00000, Amount: $238,000.00.
B. Respondent will assume and hold harmless Petitioner from the following debt(s):
• Debtor: Cynthia K. Haynes, Creditor: Ally, Description: Dodge Dart, Account number: 00000, Amount: $18,000.00.
• Debtor: Cynthia K. Haynes, Creditor: US Bank Credit Card, Description: Personal , Account number: 0000, Amount: $2,500.00.
• Debtor: Cynthia K. Haynes, Creditor: Capital One, Description: Personal, Account number: 00000, Amount: $2,500.00.
C. Except as otherwise set forth above, each party shall be solely responsible for his/her own charge accounts, debts, obligations as currently in his/her own name and fees and costs arising therefrom.
D. Each of the parties hereto represents that he/she has not contracted and will not hereafter contract any debts, charge or liability in the name or upon the credit of the other or for which the other or the estate of the other might or could become liable and agrees.
11. Pension and Retirement Plans and Annuities. The parties agree to divide all retirement plans, pension plans, 401(k) plans, individual retirement accounts, defined contribution or benefit plans, or other employer-sponsored plans (“Retirement Accounts”) as provided below:
A. Petitioner has the following Retirement Accounts:
• Financial institution: American Dredging, Account name: pension fund 1, Account number: 00000.
Respondent shall have fourteen (100)% of the vested interest in the above account.
B. Except as otherwise set forth above, each party hereby waives and relinquishes any right he/she may have in the others Retirement Accounts.
12. Income Tax. Except as set forth herein, each party shall be responsible for his/her own income tax liabilities together with interest, penalties and fees, if any and shall file individually beginning with the year 2013. Any additional tax assessments, penalties and interest to be paid on any and all prior joint income tax returns files by the parties shall be paid by Petitioner.
13. Former Name. Respondent shall be known by his/her former name of Randolph and does hereby request any court considering this Agreement to order restoration of that name.
14. Waiver of Dower and Inheritance Rights. Each of the parties releases and waives any and all homestead, dower, curtesy, community property, equitable distribution and any other rights, title or interest either party has or may claim to have against the other arising out of or in any way connected to the marriage or the dissolution of the marriage. The parties acknowledge that this Agreement substantially has equitably distributed all such marital assets appropriately. Each of the parties releases and waives any and all right to receive any property or rights from the estate of the other party, unless such right is created under a will or codicil to will dated subsequent to the effective date of this Agreement.
15. Bankruptcy. The rights, obligations and responsibilities provided in this Agreement shall not be dischargeable in bankruptcy.
16. Legal Representations. Each party has had the opportunity to have independent counsel and legal advice of his/her own selection in the negotiation of this Agreement. Each party fully understands the facts and has been fully informed as to his/her legal rights and obligations.
17. Fees and Costs. Each party shall be solely responsible for his/her respective attorney’s fees and costs incurred as a result of the negotiation of this Agreement or the dissolution of marriage proceeding. However, in the event that either party shall retain or engage an attorney or attorneys to collect or enforce or protect his/her interest with respect to this Agreement, the prevailing party shall be entitled to receive payment of all costs and expenses of such collection, enforcement or protection, including reasonable attorneys' fees.
18. Full Disclosure. Each party hereby represents that there has been a full, complete, current and accurate disclosure of all financial matters by each party to the other. The parties understand that these representations are material to this Agreement and that the other party is relying upon the representations made by them. Both parties acknowledge that this Agreement is based upon such full, complete, current and accurate disclosure. By executing this Agreement, each party acknowledges that this is a fair Agreement and it is not the result of any fraud, duress, or undue influence exercised by either party upon the other or by any other person or persons upon either.
19. Free and Voluntary Execution. The parties hereto declare that they have fully read and fully understand the provisions contained in this Agreement and believe this Agreement to be fair, just and reasonable. Each party is signing this Agreement freely and voluntarily, without undue influence, fraud, collusion or misrepresentation, and intend to be bound by it.
20. Living Apart. Upon the execution of this Agreement, the parties may and shall live separate and apart from each other the remainder of their natural lives in all respects as if and as though their said marriage had never existed and neither party shall have the right to control the personal actions or conduct of the other party, nor to interfere with the manner of living of the other as fully and to the same extent as if such party were single and unmarried, except where otherwise mandated by this Agreement.
21. Reconciliation. In the event the parties reconcile and do not live apart for any period of time, this Agreement and the obligations of the parties hereunder will remain in full force and effect unless expressly revoked or terminated by the parties in writing.
22. Further Assurances. Each party shall execute, acknowledge or deliver any instrument, paper or document, furnish any information or take such other actions as reasonably may be necessary in connection with the performance of the obligations set forth in this Agreement.
23. Modifications and Amendments. This Agreement may only be amended or modified or deemed amended or modified by an agreement in writing duly signed by the parties or by any court of competent jurisdiction.
24. No Waiver. Any non-written waiver by either party of any provision of this Agreement or any right or option hereunder shall not be controlling, nor shall it prevent such party from thereafter enforcing such provision, right or option. The failure of either party to insist in any one or more instances upon the strict performance of any of the terms or provisions of this Agreement by the other party shall not be construed as a waiver or relinquishment for the future of any such term or provision, but the same shall continue in full force and effect.
25. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of Missouri. The parties agree that in the event it shall become necessary to enforce this Agreement or any term hereof, the parties shall first attempt to mediate the issue with a certified mediator to be mutually agreeable to each. In the event that the parties are unable to mediate the issue, either party shall thereafter be free to seek the enforcement of this Agreement in the applicable court of competent jurisdiction.
26. Admissibility. This Agreement or a copy of the same may be introduced in evidence by either party to this cause, and the court is requested to make the same a part of any final order or final judgment entered in this cause. This Agreement will be construed as being jointly prepared and written by all parties hereto.
27. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement.
28. Mutual Release. Except as provided in this Agreement, each party releases the other from all claims, demands due, debts, rights, or causes of action in contract, tort or otherwise up to the date of this Agreement.
29. Headings. The section headings herein are for reference purposes only and shall not otherwise affect the meaning, construction or interpretation of any provision of this Agreement.
30. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, heirs, administrators, executors, successors and permitted assigns.
31. Entire Agreement. This Agreement contains the entire understanding of the parties, who hereby acknowledge that there have been and are no representations, warranties, covenants, or understandings other than those expressly set forth herein.
32. Miscellaneous. If this proposed divorce agreement is changed then child support and spousal support through state collection center is not waived.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
Petitioner Signature
Charles Michael Haynes
Petitioner Full Name
Respondent Signature
Cynthia Kay Haynes
Respondent Full Name
Signed in the presence of:
First Witness
Second Witness
NOTARY ACKNOWLEDGEMENT
State of Missouri
County of Ripley
)
) (Seal)
)
The foregoing instrument was acknowledged before me this _______ day of __________________, 20_____, by the undersigned, Charles Michael Haynes, who is personally known to me or satisfactorily proven to me to be the person whose name is subscribed to the within instrument.
_____________________________________
Signature
_____________________________________
Notary Public
My Commission Expires: ________________
State of Missouri
County of Ripley
)
) (Seal)
)
The foregoing instrument was acknowledged before me this _______ day of __________________, 20_____, by the undersigned, Cynthia Kay Haynes, who is personally known to me or satisfactorily proven to me to be the person whose name is subscribed to the within instrument.
_____________________________________
Signature
_____________________________________
Notary Public
My Commission Expires: ________________
EXHIBIT A
* Consider the comments to Rule 4-1.7 which provide the steps a lawyer must take to address a conflict of interest problem:
(1) clearly identify the client or clients;
(2) determine whether a conflict of interest exists;
(3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and
(4) if so, consult with the clients affected under Rule 4-1. 7(a) and obtain their informed consent, confirmed in writing. The clients affected under Rule 4-1.7(a) include both of the clients referred to in Rule 4-1.7(a)(1) and the one or more clients whose representation might be materially limited under Rule 4-1.7(a)(2).[2]
Step three is critical, yet often skipped by many practitioners.
Conflicts of interest arising from a lawyer’s former representation of a client are consentable if that consent is informed and confirmed in writing.[3] But, not all conflicts of interest arising from the representation of current clients are consentable. The operative Rule of Professional Conduct is 4-1.7. It provides:
(a) Except as provided in Rule 4-1.7(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under Rule 4-1.7(a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Conflicts that are not consentable, therefore, are (1) conflicts in which the lawyer cannot reasonably believe he can provide competent and diligent representation to each affected client, (2) conflicts in which the representation is prohibited by law, and (3) conflicts in which the representation involves assertion of a claim by one client against another client in the same litigation or other proceeding.[4] If any one of the three is present, the issue of consent is not reached, i.e., that conflict cannot be waived by the clients.
Client loyalty, of course, is the basis for prohibiting conflicts of interest. “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.”[5] The Missouri Supreme Court has emphasized “that ‘the nature of a lawyer’s profession necessitates the utmost good faith toward his client and the highest loyalty and devotion to his client’s interests.’”[6] Recently, the Missouri Court of Appeals wrote: “The lawyer-client relationship is grounded in the fundamental understanding that a lawyer will give his or her complete and undivided loyalty to the client, fully applying the lawyer’s professional training, ability, and judgment.”[7]
Whether a conflict is prohibited by applicable law is a simple concept.[8] Also, it is easy to understand why lawyers may not represent opposing parties in the same litigation, regardless of the clients’ consent.[9] “Representation of clients whose interests are directly adverse in the same litigation constitutes the ‘most egregious conflict of interest.’”[10]
Other nonconsentable conflicts, however, may not be so obvious. In State ex rel. Horn v. Ray [11], the Missouri Court of Appeals recently analyzed whether a conflict was consentable where the lawyer sought to represent both the defendant and the alleged victim in the State’s prosecution of that defendant for second-degree domestic assault. The alleged victim was the defendant’s wife. The lawyer obtained affidavits executed by the clients purporting to waive “any conflict of interest” and asserting that neither client would testify at the trial.[12] The county prosecutor moved to disqualify the lawyer. When the trial court denied the motion to disqualify, the prosecutor petitioned the court of appeals for a writ of prohibition.[13]
The court of appeals found that the lawyer could not reasonably believe that he would be able to provide competent and diligent representation to both the defendant and alleged victim in the criminal prosecution.
Counsel’s duty of loyalty to the defendant … prevents counsel from fairly presenting to the victim all possible courses of action because some of those options – most notably testifying against the defendant – would be detrimental to the defendant. Counsel’s duty of loyalty to the defendant thus plainly forecloses alternatives that otherwise might be recommended to the victim. … Likewise, counsel’s duty of loyalty to the victim prevents counsel from fairly presenting to the defendant all possible courses of action because some of those options – such as testifying that the victim lied about events leading to the instant charges or claiming self defense – would be detrimental to the victim. Thus, counsel’s duty of loyalty to the victim forecloses alternatives that would otherwise be available to the defendant….[14]
“In our circumstances, counsel’s duty of loyalty to one client naturally compromises his duty of loyalty to the other.” [15]
Rule 4-1.7(b)(1) specifies an objective test as to whether the lawyer “reasonably believes” he can provide competent and diligent representation to both clients. Rule 4-1.0(h) provides: “‘Reasonable’ or ‘reasonably’ when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.” One commentator succinctly explained: “Unless each client has the same opportunity to achieve a good result with the ‘conflicted’ lawyer as she would with an independent lawyer, the lawyer cannot represent both clients.” [16]
The court of appeals also found that counsel in State ex rel. Horn v. Ray could not meet subsection (b)(3) of Rule 4-1.7. Remember, all requirements of 4-1.7(b) must be met. Rule 4-1.7(b)(3) prohibits representation by a lawyer of two clients in the same litigation, or other proceeding before a tribunal, where one client is asserting a claim against the other. The lawyer argued that because the alleged victim had chosen not to testify, the clients’ interests were the same. The court of appeals was not persuaded.
Looking to the plain language of the rule, the court found that Rule 4-1.7(b)(3) applied to “clients” in the same litigation or proceeding, not only to opposing parties.[17] The court found that the alleged victim in State ex rel. Horn v. Ray, at least initially, had asserted a claim when she reported allegations against the defendant to the police and sought the State’s protection. [18] The court held that the defendant and alleged victim could not, therefore, consent to the conflict of interest.[19]
Also, sometimes conflicts are not consentable because “informed consent” cannot, in a practical sense, be obtained. Rule 4-1.0(e) defines informed consent:
“Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
Informed consent, therefore, requires the lawyer to disclose to the affected clients the pros and cons of consenting to the representation despite the conflict of interest. “Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct, and a discussion of the client’s or other person’s options and alternatives.”[20] Any consent obtained must be “knowing, intelligent, and voluntary.”[21]
The client must be capable of giving consent. In In re Schaefer, Client A was so obsessed with Client B that the Missouri Supreme Court found that the lawyer reasonably should have known that Client A’s judgment was impaired and that he could not give knowing consent to any transaction involving Client B.[22] “The client must be of sufficiently sound mind to assent to the conflict, to understand the consequences of consent, and to exercise judgment in the matter.”[23] The client must not be unduly influenced by another person.[24] “Consent purportedly given by a client whom the lawyer should reasonably know lacks capacity to give consent is ineffective.”[25]
There also may be situations where the lawyer simply cannot obtain informed consent because, for example, he cannot disclose information to one client because it is confidential information the lawyer has obtained from another client. Rule 4-1.6(a) prohibits lawyers from disclosing confidential information of a client unless the client gives informed consent, the disclosure is impliedly authorized, or it is permitted by Rule 4-1.6(b). If the lawyer must disclose confidential information from Client A to Client B in order for Client B to have adequate information to decide whether to consent to the conflict, the lawyer will have to obtain Client A’s informed consent to disclose that confidential information, per Rule 4-1.6(a). Again, the lawyer would have to fully disclose to Client A all the material risks of and reasonable alternatives to that disclosure by Client A of confidential information to Client B.
Finally, if a lawyer does jump all the hurdles and obtain informed consent to a conflict of interest, that informed consent must be confirmed in writing. “’Confirmed in writing,’ when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.”[26]
While it might seem easier to skip over the more involved steps and go straight to seeking informed consent to a conflict of interest, the analysis cannot start there. Attorneys must first analyze the facts of the case and the nature of the representation to determine, objectively, whether they will be able to give impartial and candid advice to both clients, and to advance the interests of both clients. If the conflict is consentable, that prior thorough analysis of the requirements in Rule 4-1.7(b) will better equip attorneys to make the disclosures necessary to obtain truly informed consent.
Many tools are available to help lawyers analyze potential conflicts. Rule 4-1.7 and its comments provide helpful and rather extensive guidance. Some concerned lawyers analyze potential conflicts by brainstorming about all the things that could go wrong in a joint representation. Others take it a step further and try to consider all the arguments a plaintiff’s malpractice attorney reasonably could make in a case against them. Others seek advice from their insurance carrier’s risk managers and/or from the Legal Ethics Counsel. Whatever tools attorneys use, they should not assume that consent cures all ills.
[1] Rule 1.7 cmt. [14].
[2] Rule 4-1.7 cmt. [2].
[3] Rule 4-1.9.
[4] Rule 4-1.7(b)(1) – (3).
[5] Rule 4-1.7 cmt. [1].
[6] In re Oliver, 285 S.W.2d 648, 655 (Mo. banc 1956), quoting In re Thomasson’s Estate, 144 S.W.2d 79, 83 (Mo. 1940).
[7] State ex rel. Horn v. Ray, 325 S.W.3d 500, 507 (Mo.App. 2010).
[8] “For example, in some states substantive law provides that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client. In addition, decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest.” Rule 4-1.7 cmt. [16].
[9] Rule 4-1.7(b)(3); Rule 4-1.7 cmt. [23].
[10] State ex rel. Horn v. Ray, 325 S.W.2d at 509, quoting Nunez v. Lovell, Civil No. 2005-7, 2008 WL 4525835, *3 (D.V.I. Oct. 3, 2008).
[11] 325 S.W.3d 500 (Mo.App. 2010).
[12] No evidence was presented as to what information, other than the right not to testify, was explained to the clients about the conflict of interest posed by the joint representation, or how the conflict might affect the lawyer’s representation of each client. Id. at 503-04.
[13] Id. at 504.
[14]Id. at 508.
[15] Id.
[16] W. Bradley Wendel, Professional Responsibility: Examples & Explanations 296 (2d ed. 2007).
[17] Rule 4-1.7(b)(3).
[18] State ex rel. Horn v. Ray, 325 S.W.3d at 509.
[19] Id.
[20] Rule 4-1.0 cmt. [6].
[21] In re Schaeffer, 824 S.W.2d 1, 3 (Mo. banc 1992); State ex rel. Union Planters Bank, N.S. v. Kendrick, 142 S.W.3d 729, 739 (Mo. banc 2004).
[22] Schaeffer, 824 S.W.2d at 4.
[23] Id. at 3.
[24] Id.
[25]Id.
[26] Rule 4-1.0(b).
See OCDC Article: Some Conflicts Are Without A Cure, Published: Nov 15, 2011,
By: Melody Nashan, Office of Chief Disciplinary Counsel http://www.mochiefcounsel.org/newsP.htm?id=22