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■ Volume 27

Number 52

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December 30, 2013 ■ $8.50

Expertly focused. Widely acclaimed. 2013 state and national General Excellence winner

{Practice, Practice}

Court’s ruling could bolster restrictions on sex offenders

PAY PERIL

By Scott Lauck

scott.lauck@molawyersmedia.com

Attorneys can run into trouble when fee payers try to get creative

By Heather Cole

O

heather.cole@molawyersmedia.com

n a chilly November day, Missouri Supreme Court Judge Paul Wilson told a Jefferson City ballroom full of lawyers his views about the problems plaguing the practice of law. Among them: the growing gap between the need for legal services and people’s ability to afford them. Six blocks away, lawyer Samuel Trapp spent his day in the boardroom at The Missouri Bar — fighting a discipline case against him that iln MORE lustrates a problem that Practice, can erupt because of Practice that gap. Trapp is a midLegal technology Missouri attorney with predictions a two-office practice for 2014. PAGE 8 that became chaotic because of expansion, his attorney James “Doug” Barding said at the hearing. Trapp has offices in Jefferson City and Lake Ozark. Part of the discipline case against Trapp has to do with his record-keeping and his response to state disciplinary authorities’ inquiries. But another part arose from a client’s potent cocktail of desperation and a lack of money, leading the mother of a man facing up to 52 years in prison to offer a lien against her Versailles house as collateral for Trapp’s fees. [SEE P AY O N P AGE 6 ]

Attorney Samuel Trapp, top right, confers with his attorney, James “Doug” Barding, as Kelly Dillon, foreground, provides testimony during Trapp’s disciplinary hearing at The Missouri Bar’s headquarters in Jefferson City. Dillon is an investigative examiner-paralegal at the Office of Chief Disciplinary Counsel. Photos by Karen Elshout

It has been harder and harder in recent years for Missouri lawmakers to regulate the conduct of convicted sex offenders. But a new ruling from the Missouri Supreme Court could turn the tables. The high court ruled last Tuesday that a 2009 law meant to keep sex offenders away from parks passes muster under a provision of the Missouri Constitution that bars retrospective laws. The 4-3 ruling is counter to two of the court’s prior cases that struck down similar sex offender restrictions as unconstitutionally retrospective. Although the court didn’t completely overrule the previous decisions, the significant change in course might explain why the issue has taken the court more than a year of internal debate to resolve. The law at issue bars convicted sex offenders from being within 500 feet of a park with a playground or swimming pool. Three prior offenders — Jason Reece Peterson, Michael Wade and Edwin Carey — separately challenged the law. Judges in Carroll and Greene counties had dismissed the cases against Peterson and Carey, while a St. Louis County judge allowed the case against Wade to proceed.

Three strikes

Until recently, the constitutional case against such a restriction was relatively straightforward. In a 2006 ruling, Doe v. Phillips, the Missouri Supreme Court said the state couldn’t force sex offenders onto a registry based on offenses that occurred before the registration law went into effect in 1995. In a 2008 opinion, R.L. v. Department of Corrections, the court struck down a law that barred sex offenders from residing [ SE E RE ST RI CT I O N S O N PAG E 10]

n MORE from the Missouri Supreme Court • The court will not hear an appeal from a woman who lost her son while she was in the U.S. illegally. Part of the discipline case against Trapp stems from a a lien against Debra Burris’ Versailles house as collateral for Trapp’s fees. The woman’s son, Joshua, faced up to 52 years in prison over a 2007 home invasion where police say he stabbed a World War II veteran.

• A new trial is ordered for a man convicted of the 1999 rape of a 14-year-old girl. stories on PAGE 3

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Best of 2013

THE YEAR IN

PHOTOS See pages 12-13


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December 30, 2013

M i s s o u r i L aw y e r s We e k ly

Practice, Practice { } The business of law made practical

Samuel Trapp said he was reluctant to accept the lien arrangement, telling Debra Burris he wanted money, not her Versailles home, above. “Looking at the pictures, I knew it was not worth much,” Trapp said. Photo by Karen Elshout

‘Getting paid is a chronic problem’ [PAY FROM PAGE 1]

Conflicts of interest (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. Source: Missouri Supreme Court Rule of Professional Conduct, 4-1.8

The practice of attorneys taking an interest in property they don’t want to ensure fees are paid is widespread, Barding said at the November hearing. Now a disciplinary panel, and later the Missouri Supreme Court, must decide if such arrangements with defendants’ relatives fall under the same conflict-of-interest rule as similar deals with the clients themselves. In Trapp’s case, the criminal representation went well, but the lien deal — and Trapp’s relationship with the mother — went south. Ultimately, it helped lead Trapp to a hearing in the bar’s wood-paneled boardroom, where he faced questions about how he took an ownership interest in a house he didn’t want. Many people can’t afford legal representation and are forced to go without or accept the services of a public defender who achieves “abysmally inadequate results,” Barding, a Jefferson City attorney, said at the hearing. Kimberly Benjamin, president of the Missouri Association of Criminal Defense Lawyers, said most people need time to come up with the money to handle a felony charge and often don’t get that time from judges. Clients can get “creative” with how they try to pay their attorneys, said Benjamin, an attorney with the Benjamin Law Firm in Belton. She is not

involved with the Trapp case. “Getting paid is a chronic problem across the country,” Benjamin said in a phone interview. Trapp’s hearing raised the question of whether attorneys must tell bill payers they should get a separate lawyer to represent them in fee deals that could lead to the loss of a house, car or other property.

Conflicts of interest

A Missouri Supreme Court rule on conflicts of interest requires attorneys to encourage clients to get independent legal advice on deals “adverse to a client.” That includes deals that would give the lawyers an interest in their clients’ property. Under that rule, Trapp should have encouraged his client and his client’s mother to get independent legal advice before Trapp prepared a quit-claim deed transferring ownership of the house to himself, Office of Chief Disciplinary Counsel attorney Sam Phillips said in a Dec. 12 brief filed in the state Supreme Court. The client had lived in the house and therefore had an interest in it, the brief said. If that argument is extended, every thirdparty payment agreement to dip into a trust or hock a car requires the client’s “informed consent” called for under the rule, Barding said. The client could say he had an interest in the trust as someone who would inherit less, or in the title of the car as the person whose legal bills the relative is hocking it for. “You may have some concerns about that practice, but it’s not reached by the [Missouri Supreme Court] rule” on conflicts of interest, Barding told the threemember disciplinary hearing panel. In its brief, the OCDC urged a suspension of Trapp’s license for at least six months for the Burris case and other issues, including allegedly refusing to refund unearned fees to another client and mingling client money with his firm’s operating money. Or, if the suspension is stayed, Trapp should be put on probation for two years with monitoring and other conditions, the brief said. Barding said Trapp should be allowed to continue to practice without a suspension. The panel had not issued a recommendation by press time.

‘15 wild’

Joshua Burris was in dire straits when Trapp signed up to represent him in fall 2009. With a public defender’s representation, Burris had reached a plea deal earlier that year for charges stemming from a November 2007 home invasion. Burris was charged after an intruder broke into a World War II veteran’s house in Morgan County while the man slept, according to news reports. Police said Burris stabbed the man in the chest and hands after Burris demanded money and the man said he didn’t have any. The victim was in good condition and recovering, television station KRCG reported at the time. Burris’ deal was for “15 wild,” sentences of 15 years each, possibly consecutive, on three charges, and seven years on a fourth, Barding said. The Burrises feared the sentences would be consecutive because the seriousness of the crime. “I had a pretty good idea I could improve upon it,” Trapp said of the plea deal. Debra Burris shopped around for other attorneys before finding Trapp, who told her it would cost from $30,000 to $35,000 to represent Joshua. Another attorney had cited the same amount; the others would have charged more, Debra Burris said at the hearing. Neither Burris had the money, nor the $5,000 immediate payment that Trapp requested. So Debra Burris parceled out 10 checks for $500 each. Joshua Burris’s sentencing was coming up, “and I was desperate to have a different outcome for my son,” she said. Debra Burris didn’t have $30,000 in cash, but she did have a house. She’d gotten the land with joint access to the Lake of the Ozarks from a friend Burris had helped while the friend was in the hospital, she said. With her then-husband, she’d drilled a well, put in sewers and put up the fourbedroom, two-bath house, she said. The property also had a trailer. In September 2009, she listed the house for $52,000, later dropping the price to $45,000. The house didn’t sell. Burris asked if Trapp would accept a deed of trust that would give him a lien against the property. [ SE E PAY O N PAG E 7]


{Practice, Practice}

December 30, 2013

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M i s s o u r i L aw y e r s We e k ly

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[PAY FROM PAGE 6]

“I felt if he didn’t receive a large sum of money, he might not fight for my son as hard as I wanted him to,” Burris said. Burris wanted him to agree to $500-amonth payments with no security, and he wouldn’t, Trapp said. But Trapp said he was reluctant to accept the lien arrangement, telling Burris he wanted money and did not want her house. “Looking at the pictures, I knew it was not worth much,” Trapp said at his hearing. “Maybe what she was asking, but not likely.” Benjamin, president of the criminal defense association, said clients have approached her with similar proposals, offering jewelry or a lien on a car. Benjamin says she tells them to go to a bank and get a loan with the asset as collateral. “I’ve never personally done it,” Benjamin said. “I don’t want to follow up on civil lawsuits if I don’t get paid.” Debra Burris did get a loan against the house to begin paying Trapp’s fees, according to a brief from the OCDC. She had a $12,400 bank lien against the house. Trapp put together the deed of trust, which named himself as both beneficiary and trustee, meaning he alone could decide whether and when to take over Debra Burris’ property, according to the brief. At the November hearing, the OCDC’s Phillips asked if the fact that Trapp was both trustee and beneficiary bothered him. Trapp said he didn’t know real estate law well and someone in his office had drafted the document. “It was not my intent to do anything other than guarantee a payment,” Trapp said. The “normal rule” for criminal defense attorneys is to always get paid up front, Michael Downey, a partner at Armstrong Teasdale with a focus on attorney ethics, said in a phone interview. Downey is not involved in the Trapp case. “Many clients may not be in a position to pay you later, and many may not want to pay you later,” Downey said. Criminal defense attorneys take on more risk than lawyers in other practices, Benjamin said. “It’s the only area of law where if we’re not getting paid and want to get out, they [judges] say no,” she said.

‘Right path’

Joshua Burris withdrew his guilty plea in October 2009. Trapp started preparing for a trial that eventually was delayed until July 2010. The day the trial was to start, Burris took a new plea deal. He was sentenced to three

Attorney Sam Phillips, foreground, of the Office of Chief Disciplinary Counsel, questions attorney Trapp and Trapp’s attorney, James “Doug” Barding, during a Nov. 22 hearing at The Missouri Bar’s headquarters in Jefferson City. Court reporter Sue Schroeter is at left, and disciplinary panel members Donald Alberti, Associate Circuit Judge Ben Burkemper and attorney Donna White sit at the head of the table. Photo by Karen Elshout

15-year sentences and one 7-year sentence for assault, armed criminal action and burglary, according to online court records. All are to be served concurrently. Joshua Burris agreed that Trapp did a good job. At the disciplinary hearing, Burris testified by phone from the South Central Correctional Center in Licking, his mother smiling at the sound of his voice. “He gave me good advice,” Joshua Burris said. “He led me on the right path.” But the comparative pleasure at the outcome of the criminal case curdled into anger, resentment and guilt about the feepaying deal. Joshua Burris said he learned about the fee-paying deal about a week after his first meeting with Trapp. “I was tossed up about it because I didn’t want to cause my mother to lose the only place she could live because of something I did,” Burris said. Debra Burris and Trapp gave head-butting accounts of what happened after Joshua Burris’ plea. After negotiations on the fee payment, Trapp prepared a quit-claim deed that would transfer ownership of Burris’ property to himself, according to the brief. Debra Burris recounted Trapp saying during negotiations, “You know your property is mine, don’t you?” He also said that he

wanted the property for his daughter, Burris said. Trapp told Burris the opposite, he testified. “I said, ‘I do not want your house,’ ” Trapp said. On the road after a meeting with Trapp about giving up her property, Burris said, she was angry. “It just suddenly hit me that he didn’t deserve my property,” she said. She came up with the idea to ask Trapp if she could keep the property if she came up with $500 a month, and he said yes. Burris figured she could get the money if she left the house and rented it out. She also asked Trapp for $3,000 for moving expenses, but she did not say if he gave it to her. No written agreement for a rental arrangement was signed. After two $500-a-month payments on top of the original $5,000, Burris quit paying and got another lawyer to represent her in the deal with Trapp. In December 2011, Burris signed an agreement with Trapp to pay $500 a month for two years. With the $6,000 she had paid earlier, that would bring the total amount she would end up paying to about $18,000; Trapp’s fee agreement had called for $30,000. At the hearing, she said she was

sure of the status of the ownership of her house, but the OCDC brief said by then she had only one payment remaining before getting it back and “completing her obligations.” Trapp said he didn’t believe there was any obligation to tell Burris to get independent counsel. “It’s based on the fact that she was not my client,” he said. The Missouri Supreme Court Rule on Professional Conduct that addresses conflicts of interest begins, “A lawyer shall not enter into a business transaction with a client,” ethics attorney Downey pointed out. The rule’s “third-party payer” focus is on ensuring the payer doesn’t control the case, Downey said, not on business arrangements. It would be frustrating to have disciplinary issues when “even if I had read the rule, I would never have known that it applied,” Downey said. Benjamin said Trapp’s situation with the Burrises sounded more like a warning to lawyers on a business, rather than a discipline, issue. “You may not ever get paid if you choose to work under this arrangement,” Benjamin said. “It’s kind of a business lesson learned.” mo


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