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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86599
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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If I have a Suspended Imposition of Sentence in Missouri which

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If I have a Suspended Imposition of Sentence in Missouri which made the record a "closed record". According to Chapter 31.2 on closed records it states that “If the defendant successfully completes probation after receiving a SIS, the case file is closed, except for the court’s judgement or order”. Judgement was July 1993. There is nothing on casenet or a background search that turns up. If the clients attorney somehow obtained this information (guessing illegally) and passed it onto his client that I was a convicted felony and could not posses or own a gun (which is not true per MO statue 571.070 since no conviction) which the client then proceeded to tell his children (my girlfriends children, her ex) and the community in which I live in further damaging my character and a defamation based on a false allegation by the attorney. What legal action or rights do I have to take against this attorney if any? I have submitted a bar complaint by filling out the form on http://www.mochiefcounsel.org/ocdc_formFillable.pdf

Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. There may be a slight delay between your follow ups and my replies as I reply.

I am very sorry for your situation.

First of all, understand that just because your information is sealed by the Court upon completion of the Suspended Imposition of Sentence, does not mean it is unreachable. Law enforcement, government officials, and state agencies still have access to it - simply not civilians. If the attorney accessed your records, they likely did so via a manual search through the Court or via a "friend" in a position that allows access to such records. This in itself is not actionable.

What is actionable is whatever he stated to his client. If he specifically stated that you are a "convicted felon," then, this is (arguably) defamation, an action in civil court.

The elements of defamation in Missouri are: 1. publication 2. of a defamatory statement 3. that identifies the plaintiff 4. that is false 5. that is published with the requisite degree of fault, and 6. damages the plaintiff's reputation Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. 2000) (en banc).

In other words, if he called you a convicted felon (and you really are not), the attorney may be liable for defamation. However, you would have to show that he used that verbiage to a third party to prove defamation. There is also a subjective matter here - did he cross the line since he is representing the other party? Or was he simply engaging in "zealous representation?" In the end, this is a call that a JURY will make, which often times may be unpredictable.

Ergo, you may have that civil recourse along with the complaint that you have already filed. Whether or not you feel this is worth the pursuit is your decision.

I hope this helps and clarifies. Good luck.

Surely, you prefer that I tell the truth rather than what you wish to hear. Because it reflects very poorly on me unless you press one of the top three faces, keep this in mind when rating my and please do not punish me for being honest. I understand that this may not be easy to hear, and I empathize.

IMPORTANT: I hope this finds you well. Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Customer: replied 1 year ago.

The truth is what I was looking for and you answered it as such. I'll wait to see what the complaint on the bar action comes back as first. Thanks again!

Expert:  Ely replied 1 year ago.
You are very welcome. Good luck, and please don't forget to rate my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86599
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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