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Board of Professional Responsibility, Wyoming State Bar v. Van Vleet

Supreme Court of Wyoming

July 18, 2013

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
Cynthia K. VAN VLEET, WSB #6-4385, Respondent.

Attorney's violation of rule of professional conduct prohibiting concurrent conflicts of interest warranted public censure, in light of aggravating factors of deceptive practices during disciplinary process and refusal to acknowledge wrongful nature of conduct, and mitigating factors of absence of prior disciplinary record, absence of dishonest or selfish motive, and inexperience in the practice of law.

ORDER OF PUBLIC CENSURE

MARILYN S. KITE, Chief Justice.

[¶ 1] This matter came before the Court upon a " Report and Recommendation for Public Censure," filed herein June 12, 2013, by the Board of Professional Responsibility for the Wyoming State Bar. The Court, after a careful review of the Board of Professional Responsibility's Report and Recommendation and the file, finds that the Report and Recommendation should be approved, confirmed

Page 1043

and adopted by the Court, and that Respondent Cynthia K. Van Vleet should be publicly censured for her conduct, which is described in the attached Report and Recommendation. It is, therefore,

[¶ 2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's Report and Recommendation for Public Censure, which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further

[¶ 3] ADJUDGED AND ORDERED that Cynthia K. Van Vleet is hereby publicly censured for her conduct, which is described in the attached Report and Recommendation for Public Censure; and it is further

[¶ 4] ORDERED that, on or before December 31, 2013, Ms. Van Vleet shall complete four (4) hours of continuing legal education on the subject of ethics; and it is further

[¶ 5] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Ms. Van Vleet shall reimburse the Wyoming State Bar the amount of $4,697.43, representing the costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Ms. Van Vleet shall pay the total amount of $5,197.43 to the Clerk of the Board of Professional Responsibility on or before December 31, 2013; and it is further

[¶ 6] ORDERED that the Clerk of this Court shall docket this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, as a matter coming regularly before this Court as a public record; and it is further

[¶ 7] ORDERED that, pursuant to Section 4 of the Disciplinary Code for the Wyoming State Bar, this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

[¶ 8] ORDERED that the Clerk of this Court cause a copy of the Order of Public Censure to be served upon Respondent Cynthia K. Van Vleet.

[¶ 9] DATED this 18th day of July, 2013.

BEFORE THE BOARD OF PROFESSIONAL RESPONSIBILITY

WYOMING STATE BAR

STATE OF WYOMING

In the matter of

CYNTHIA K. VAN VLEET,

WSB No. 6-4385,

Respondent.

WSB No.2012-103

REPORT AND RECOMMENDATION FOR PUBLIC CENSURE

THIS MATTER having come on for hearing on the 8th day of May, 2012, at the Reach Foundation, 622 N. 8th W, Riverton, Wyoming, before the Board of Professional Responsibility, and the Wyoming State Bar appearing by and through Mark W. Gifford, Bar Counsel, and Respondent appearing in person, and by and through her counsel, Aaron Vincent and John Vincent, and the Board having heard the testimony of witnesses and having reviewed the exhibits received into evidence at the hearing, and being fully advised in the premises, FINDS, CONCLUDES and RECOMMENDS:

FINDINGS OF FACT

1. Respondent is a licensed attorney in the State of Wyoming, Bar # 6-4385, and maintains a practice in Riverton, Wyoming.

2. During 2010, Respondent undertook the representation of [redacted] with respect to two matters. The first was a stalking charge against the father of her employer. Respondent undertook Ms. H[redacted]'s representation in early July 2010 and concluded the matter in early September of that year. On or about December 24, 2010, Respondent " ghost wrote" a letter to the EEOC on Ms. H [redacted]'s behalf, which was mailed over Ms. H[redacted]'s signature with a date of December 29, 2010 (Exhibit 4).

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3. While Respondent was representing Ms. H[redacted], Ms. H[redacted] and her husband, [redacted] brought to Respondent's office a pro se packet from the Wyoming Supreme Court and requested Respondent's assistance in preparing an uncontested divorce. Respondent claims she explained to both parties that she could not represent them both in a divorce, and that the parties insisted that Respondent represent Mr. [redacted] On December 30, 2010, Respondent filed a divorce complaint on behalf of Mr. H[redacted] (Exhibit 5).

4. On April 6, 2011, Respondent filed a motion to withdraw as counsel for Mr. H[redacted] in the divorce proceeding on the ground that a final decree had been entered and there was nothing pending. Judge Young signed an order allowing Respondent to withdraw on April 7, 2011.

5. Meanwhile, Respondent continued with her representation of Ms. H[redacted] with respect to the EEOC claim. After the employer submitted a position statement in response to the charge, Respondent assisted with the preparation of a response which was submitted to the EEOC on or about May 1, 2011 (Exhibit 11).

6. On an undetermined date prior to June 8, 2011, Mr. and Mrs. H[redacted] reportedly had a " falling out." On June 8, 2011, Respondent wrote to Mr. and Mrs. H[redacted]:

Re: Civil Action No. [redacted] (Divorce matter)
EEOC Charge No. [redacted]
Dear [redacted] and [redacted]:
This letter is to inform you that I cannot represent either of you in the above-referenced matters and that our firm cannot represent you in your post-divorce and/or wrongful termination case. This decision was difficult as you both are good and kind people; however the Rules of Professional Conduct prohibit me from representing either of you when your positions become adverse to one another, which occurred post-divorce.
[redacted] has some important time limits regarding her wrongful termination matter, and I suggest she call Sheila and we can hopefully refer her to competent legal counsel. [redacted], if you don't proceed promptly, your legal matter may be adversely affected by a time limit.

See Exhibit 1, Addendum A.

7. Mr. H[redacted] filed a bankruptcy petition in August 2011, and his counsel submitted a complaint to ar Counsel in August 2012, claiming in part that Respondent had a conflict of interest in her representation of Mr. and Mrs. H [redacted] After reviewing the complaint, Respondent's response and documents provided by both Complainant and Respondent, Bar Counsel wrote to Respondent:

[R]epresenting [redacted] in a divorce against [redacted] while representing [redacted] in a separate, unrelated matter is a concurrent conflict of interest as set forth in Rule 1.7(a)(1), Wyoming Rules of Professional Conduct. Before proceeding with the representation, you were required by Rule 1.7(b)(4) to obtain from each client a signed waiver of the conflict. It does not appear you did that. If I am wrong, I trust you'll let me know.

In response, Respondent wrote to Bar Counsel:

With regards to obtaining from each client a signed waiver of the conflict, I did not mention this before as it was an " empty" argument; but I did, in fact, have both parties sign Waivers. [redacted] was adamant that I continue to represent his wife in her EEOC matter. My staff recalls the event, but we could never find the copies. If and/or when they are ever located ...

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