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Board of Professional Responsibility, Wyoming State Bar v. Davidson

April 7, 2009

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, PETITIONER,
v.
SUE DAVIDSON, RESPONDENT.



The opinion of the court was delivered by: Barton R. Voigt Chief Justice*fn10

ORDER SUSPENDING ATTORNEY FROM PRACTICE OF LAW AND ASSESSING COSTS

[¶1] This matter comes before the Court upon a Report and Recommendation for Discipline filed on September 19, 2008, by the Board of Professional Responsibility of the Wyoming State Bar (the Board). Having duly considered that Report and Recommendation, having reviewed the Board's record and the transcript of the hearing before the Board, having read the parties' briefs and heard oral argument, and being fully informed in the premises, the Court finds and concludes as set forth below.

FACTS

[¶2]This is an attorney discipline case that arose out of three separate formal charges brought against Respondent by Petitioner. We will only briefly outline two of those charges, and their status to date, inasmuch as they do not remain contested. We will discuss the third matter in detail.

[¶3] In its first charge, Petitioner alleged that Respondent had violated Rule 4.2 of the Wyoming Rules of Professional Conduct for Attorneys at Law by communicating directly with a person she knew to be represented by counsel.*fn1 Because of disputed facts, the Board found that Petitioner had failed to prove this charge by clear and convincing evidence. This charge, therefore, is not now before the Court.

[¶4] In its second charge, Petitioner alleged that Respondent had violated Rule 1.3 of the Wyoming Rules of Professional Conduct for Attorneys at Law by failing timely to file a client's pleading in a domestic relations case.*fn2 During her testimony before the Board, Respondent admitted this rule violation. Consequently, this violation contributed to the Board's sanction recommendation, which is now before the Court.

[¶5] We have concluded that the simplest way to present the somewhat complicated facts of the third formal charge is to set forth verbatim several paragraphs from the Board's Report and Recommendation:

11. In the fall of 2007, Respondent was representing a client petitioner in regard to a confidential domestic proceeding. The matter was filed in the First Judicial District, Laramie County, Wyoming, and had been assigned to Judge Peter Arnold. (Trans. p. 142.) Based on a standing order, the matter was then given to Circuit Judge Tom Campbell. (Trans. p. 42.) A subsequent motion for protective order between the same two parties was filed in circuit court so that it was handled by Judge Campbell. (Trans. p. 42.)

12. The protective order petition was heard by Judge Campbell on October 3, 2007. (Trans. p. 43.) The following day, opposing counsel filed a Motion for Reassignment of Judge, asking that the domestic matter be sent back to Judge Arnold. (Trans. p. 43.) On October 8, 2007, Judge Campbell signed an Order Reassigning Judge, and the order reassigning Judge Arnold to the case was filed on October 9. (Trans. p. 129, Exh 12.) Respondent, on behalf of the petitioner client, also filed a Resistance and Objection to Motion for Reassignment of Judge on the same day the Order Reassigning Judge was filed. (Trans. p. 128, Exh 12.) An order setting a hearing in the matter on November 6, 2007 was also entered by Judge Arnold on October 9. (Exh 12.)

13. After learning that the case had been reassigned to Judge Arnold, Respondent's petitioner client told Respondent to ―do what you have to do‖ because she did not want Judge Arnold as her judge. (Trans. p. 118.)

14. Thereafter, Respondent prepared Petitioner's Motion for Reassignment of Judge and [Motion to] Vacate Trial Date. (Exh 12.) In the Motion, Respondent alleged that opposing counsel and Judge Arnold had engaged in an improper ex parte communication in order to set the trial in the matter. Respondent further alleged that Judge Arnold was ―rumored‖ to afford favoritism to members of opposing counsel's firm, and that such ―favoritism was at play‖ in connection with Judge Arnold's reassignment and trial setting.

15. Prior to filing the Motion on October 23, 2007, Respondent discussed with her client petitioner that if she filed the pleading with those particular accusations, it was going to be pretty clear that Judge Arnold would take himself off the case due to the nature of the allegations against him. (Trans. pp. 120-21.)

16. On November 1, 2007, Judge Arnold conducted a ―status hearing‖ where Respondent appeared together with opposing counsel and their respective clients. (Exh 20.) Respondent was represented by [counsel] at the hearing. During the hearing, Judge Arnold asked [R]espondent what investigation she did, pursuant to Rule 11 of the Wyoming Rules of Civil Procedure, prior to filing the Motion which accused Judge Arnold and opposing counsel of ethical misconduct.*fn3 Respondent refused to answer the question.

Thereafter, when asked specific questions by Judge Arnold as to what she did to verify the allegations in the subject Motion, Respondent repeatedly refused to answer any of them.

17. Judge Arnold subsequently recused himself from the matter, and it was again reassigned, this time to District Court Judge Edward Grant. (Trans. p. 116.) However, Judge Arnold did file a complaint with the Wyoming State Bar in connection with Respondent's conduct, which led to the Formal Charge upon which the disciplinary hearing has proceeded. (Trans. pp. 85-86.)

18. Rule 8.2(a) of the Wyoming Rules of Professional Conduct states: ―A lawyer shall not make a statement that the lawyer know[s] to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.‖

19. It has been proved by clear and convincing evidence that Respondent violated Rule 8.2(a) by the [sic] making the allegation in the subject Motion that Judge Arnold had engaged in an improper ex parte communication with opposing counsel when she knew it to be false or with reckless disregard to its truth or falsity.

20. It has been proved by clear and convincing evidence that Respondent violated Rule 8.2(a) by making the allegation that Judge Arnold afforded favoritism to attorneys in opposing counsel's law firm when she knew it to be false or with reckless disregard to its truth or falsity.

21. Rule 8.4(d) of the Wyoming Rules of Professional Conduct states: ―It is professional misconduct [for a lawyer] to: (d) engage in conduct that is prejudicial to the administration of justice.‖

22. It has been proved by clear and convincing evidence that Respondent violated Rule 8.4(d) by making the allegation in the subject Motion that Judge Arnold had engaged in an improper ex parte communication with opposing counsel for the purpose of having him recuse himself due to the nature of that allegation.

23. It has also been proved by clear and convincing evidence that Respondent violated Rule 8.4(d) by making the allegation that Judge Arnold afforded favoritism to attorneys in opposing counsel's law firm for the purpose of having him recuse himself due to the nature of that allegation.

[¶6] After reviewing several of the Standards for Imposing Lawyer Sanctions of the American Bar Association, including Standard 9.1, which provides for consideration of both aggravating and mitigating circumstances, the Board recommended to this Court that Respondent be suspended from the practice of law for a period of two months, that she comply with Section 22 of the Disciplinary Code for the Wyoming State Bar, that she pay the costs of the proceedings in the amount of $6,676.67, and that she pay an administrative fee of $1,000.00.*fn4 The Board found no mitigating circumstances, but found the following aggravating ...


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