State Supreme Court suspends Dunfield

by Johannes Brann jbrann.ndm@gmail.com

Nevada Daily Mail (used with permission)

Tuesday afternoon, Sept. 26, the Missouri Supreme Court announced it had found Nevada lawyer, Dustin Dunfield, guilty of professional misconduct. The quick ruling came just six days after arguments were presented before this state’s highest judicial tribunal.

The court suspended Dunfield’s license indefinitely with no allowance for reinstatement to be considered for one year.

At press time, Lynn Ewing III had not returned a call while Dunfield simply said, “No comment.”

Both the attorney representing the Office of Chief Disciplinary Counsel (OCDC), Kevin Rapp of Springfield – known as the Attorney for Informant, equivalent to a prosecutor – as well as Dunfield opened their written briefs to the Supreme Court by saying, “this is an honesty case.”

The punishment stems from the differing statements he made over time about his criminal background which culminated in an attempt to run for public office.

In 1996, Dunfield entered an Alford Plea to a charge of statutory rape. Missouri treats an Alford Plea as a guilty plea. He was issued a two-year sentence, whose imposition was suspended (SIS) and placed on probation for two years.

On his Jan. 2007 application for law school in Arkansas, Dunfield answered, “yes” in response to the question of whether he had been charged with or convicted of any felony. In an addendum to his application, he did not challenge his 1996 guilty plea or assert he was not guilty but wrote, “I was arrested and later plead guilty on the advice of my public defender to an SIS plea of two year’s probation.”

Dunfield graduated from law school in Dec. 2009 but the next month failed the Arkansas bar exam.

In April 2010, Dunfield applied for admission to the Missouri Bar. Again he disclosed his statutory rape SIS on the application and was admitted to the Missouri Bar.

In Feb. 2014, when filing to run as Vernon County Prosecutor, Dunfield signed a candidate declaration form upon which he swore he had “not been convicted of or found guilty of or pled guilty to a felony under the laws of the state of Missouri.”

Missouri law forbids anyone who has been convicted, found guilty, or pleaded guilty to a felony from qualifying for public office.

On July 23, 2014, Dunfield filed two petitions in Cedar County Circuit Court: one to exempt him from filing as a sex offender and a second to remove from his closed record a 1996 felony plea to statutory rape.

Shortly after Dunfield filed his candidacy, a member of the public alerted the incumbent prosecutor, Lynn Ewing III, of the 1996 felony charge. Ewing, who was running for re-election, filed a petition through his attorney, J. Lee Guthrie, challenging Dunfield’s candidacy.

On July 25, Dunfield told the Nevada Daily Mail, “I was never convicted, I never pleaded guilty to and was never found guilty of a felony.”

The filings by Dunfield and Ewing were handled at a single hearing in Cedar County, on Aug. 29, 2014, before Judge Timothy Perigo.

In his Sept. 3 ruling, Perigo wrote, “contestee Dunfield was found guilty of the [sic] statutory rape in the second degree on December 13, 1996.”

From that, Perigo found Dunfield “was an ineligible candidate for Vernon County Prosecuting Attorney” and ordered his name removed from the ballot.

No appeal was made to Perigo’s judgment.

Prosecutor Ewing then filed to have Dunfield punished before the state’s Office of Chief Disciplinary Counsel. On June 25, 2015, “a two count Information” was filed by the OCDC.

Count one had to do with misconduct due to falsely filing a candidate declaration form. Count two charged misconduct for “failure to register as a sex offender.”

A regional three-person Disciplinary Hearing Panel (DHP) was held in Dec. 2016. The almost 18-months between the filing and hearing occurred because Dunfield requested time to try to get his 1996 guilty plea thrown out. He hired a private attorney but he “offered no assistance in setting aside his guilty plea.”

Dunfield’s and Rapp’s written briefs to the high court describe the DHP’s lengthy questioning. Referring to his 1996 case, Dunfield told the three-member panel, “Today, after seeing everything, and over the last couple of years, everything that’s transpired, I would say I did plead guilty on that day.”

In Dec. 1996, the DHP “determined Dunfield had broken rules by stating he had not been found guilty in his candidate declaration form.” The panel recommended that he be suspended from practicing law for six months, with the suspension stayed, and Dunfield placed on probation for a period of two years.

In his June 15, 2017, written brief to the State Supreme Court, Dunfield wrote he “did not file a notice of rejection of the DHP decision because he was ready to put this behind him and move on for both himself and his family.”

While Dunfield indicated his desire to accept the judgment of the three-person disciplinary panel, the Office of Chief Disciplinary Counsel thought the punishment too lenient and filed an appeal to the state Supreme Court.

Among the aggravating circumstances, Rapp wrote: Dunfield “has neither conceded that he committed any ethical violations nor taken any responsibility for his behavior.”

Further, in his brief, Rapp asked the court to consider what might have transpired had Dunfield been elected and the “guilty plea been discovered after election.”

Citing the 2006 Duke University lacrosse team rape investigation, when the prosecutor in the case was disbarred for dishonest conduct, there followed a great many court challenges alleging prosecutorial misconduct or fraud.

Rapp asked the court to consider how likewise, those convicted by Dunfield as Vernon County prosecutor would then come into court “to collaterally attack their sentences after his removal from office on the basis of prosecutorial misconduct or fraud.”

For all of these reasons, the Informant argued, “probation is not appropriate in this case.”

Dunfield, representing himself, admitted he was wrong to have said he had not pleaded guilty when filing for office but contended he did so under good faith because he’d been advised by a local judge, his former public defender and by a contact with the Missouri Ethics Commission that he would not be breaking any rules.

In its Tuesday decision, the Supreme Court sided with the state’s Chief Disciplinary Counsel. In addition to his suspension, Dunfield will also have to pay a $1,000 fine. After one year, he can apply for reinstatement.