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Board of Prof'l Responsibility v. Bagley

Supreme Court of Wyoming

December 4, 2013

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
WILLIAM D. BAGLEY, WSB#4-0956, Respondent

OPINION

MARILYN S. KITE, Chief Justice.

Order Suspending Attorney From the Practice of Law

[¶1] This matter came before the Court upon a " Report and Recommendation for Suspension," filed herein October 29, 2013, by the Board of Professional Responsibility for the Wyoming State Bar. After a careful review of the Board of Professional Responsibility's Report and Recommendation for Suspension, Respondent's " Appeal; Response to Report and Recommendation; Appeal and Request that the Court Calendar the Matter for Briefs and Argument Pursuant to Section 21(c)(iv) of the Disciplinary Code," and the file, this Court first finds that Respondent's appeal and request for briefing and argument should be denied. Pursuant to Section 21(c)(i), " [a] response shall state explicit reasons for the exceptions to the report together with a brief prepared in accordance with Rule 7.01, W.R.A.P." The response filed herein does not comply with subsection (c)(i), so this Court finds that the appeal and request for briefing and argument should be denied.

[¶2] Second, this Court finds that the Report and Recommendation for Suspension should be approved, confirmed and adopted by the Court; and that the Respondent, William D. Bagley, should be suspended from

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the practice of law for a period of ninety (90) days. It is, therefore,

[¶3] ORDERED that Respondent's Appeal and Request that the Court Calendar the Matter for Briefs and Argument Pursuant to Section 21(c)(iv) of the Disciplinary Code be, and hereby is, denied; and it is further

[¶4] ADJUDGED AND ORDERED that the Board of Professional Responsibility's Report and Recommendation for Suspension, 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

[¶5] ADJUDGED AND ORDERED that, as a result of the conduct set forth in the Report and Recommendation for Suspension, Respondent William D. Bagley shall be, and hereby is, suspended from the practice of law for a period of ninety (90) days, beginning December 16, 2013; and it is further

[¶6] ORDERED that Respondent shall comply with Section 22 of the Disciplinary Code for the Wyoming State Bar. That Section governs the duties of disbarred and suspended attorneys; and it is further

[¶7] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, William D. Bagley shall reimburse the Wyoming State Bar the amount of $5,831.92, representing the costs incurred in handling this matter, as well as pay an administrative fee of $500.00, by paying the total amount of $6,381.92 to the Clerk of the Board of Professional Responsibility on or before April 1, 2014; and it is further

[¶8] ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the Wyoming State Bar, this Order Suspending Attorney from the Practice of Law, along with the incorporated Report and Recommendation for Suspension, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

[¶9] ORDERED that the Clerk of this Court shall docket this Order Suspending Attorney from the Practice of Law, along with the Report and Recommendation for Suspension, as a matter coming regularly before this Court as a public record; and it is further

[¶10] ORDERED that the Clerk of this Court cause a copy of the Order Suspending Attorney from the Practice of Law to be served upon Respondent William D. Bagley.

[¶11] DATED this 4th day of December, 2013.

BEFORE THE SUPREME COURT OF THE STATE OF WYOMING

In the matter of WILLIAM D. BAGLEY, WSB # 4-0956, Respondent.

WSB No. 2011-133

REPORT AND RECOMMENDATION FOR SUSPENSION

Jenifer E. Scoggin, Chair

THIS MATTER having come for hearing on the 30th day of August, 2013, at the Wyoming State Bar Office, 4124 Laramie Street, Cheyenne, 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, pro-se, 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 has been licensed to practice law in the State of Wyoming since 1964, and practices in Cheyenne, Wyoming.

2. In 2009, Respondent filed a petition to probate the estate of Cheyenne resident Walter R. Roberts, Jr., deceased, in the First Judicial District Court, Laramie County, Wyoming (hereinafter, " the Roberts probate" ). The decedent died in November 2009 from injuries sustained in an automobile accident. The decedent was survived by five adult children, all of whom resided out of state except

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for decedent's son, Brandon, who resided in a house owned by the decedent in Cheyenne, Wyoming (hereinafter, " the Roberts house" ). Other assets of the estate included cash, personal effects and a recreational vehicle.

3. As the sole heir residing in Wyoming, Brandon Roberts had first priority to serve as personal representative of his father's estate. Respondent, however, deferred to the wishes of the other heirs and petitioned for the appointment of the decedent's brother, Juan Roberts, as personal representative. As Juan Roberts resided in Ohio, and given the requirement of Wyoming law that someone serving as personal representative of an estate be a Wyoming resident, Respondent petitioned for the appointment of himself as co-personal representative, along with Juan Roberts. An order appointing Juan Roberts and Respondent to serve as co-personal representatives was entered January 5, 2010.

4. At the time Respondent established the Roberts probate, he failed to do the following:

a. Respondent failed to provide for a personal representative's bond as required by W.S. § 2-3-102, and failed to obtain the heirs' waiver of such requirement.
b. Respondent failed to publish a notice of probate once a week for three weeks as required by W.S. § 2-7-205 et seq.
c. Respondent failed to file an affidavit of mailing of notice of probate pursuant to W.S. § 2-7-206(b).
d. Respondent failed to inform Juan Roberts of the requirement that a timely inventory and appraisal be filed.

5. Though Respondent was a fiduciary, Respondent failed to take reasonable steps, such as opening an estate checking account on which Respondent's signature was required, at the outset in order to guard against misappropriation of estate funds.

6. During 2010, Respondent brought an action to evict Brandon Roberts from the Roberts house. Respondent billed and received payment for these services from Juan Roberts, in violation of the requirements of W.S. § § 2-7-804(b) and 2-7-805(a) that all such fees be approved by the probate court.

7. During the early months of 2010, Brandon Roberts informed Respondent that his uncle, Juan Roberts, had received insurance proceeds belonging to the Roberts estate. Respondent failed to take timely action on this information, or to otherwise attend to his duties as co-personal representative and counsel for the Roberts probate.

8. On July 8, 2010, Respondent wrote to Juan Roberts, Respondent's co-personal representative, and told him, " We should now proceed immediately with the estate inventory and probate process." Respondent wrote to Juan Roberts again four months later, on November 24, 2010, telling him, " Unless we get this matter tracking in the next two weeks it will be necessary that I withdraw." It was not until December 2010 that Juan Roberts provided Respondent with a rudimentary inventory for the estate.

9. Respondent failed to complete the administration of the estate within one year as required by W.S. § 2-7-801 (c), or to obtain property insurance. Had he done so, substantial expenses for roofing and siding repairs to the house following a hail storm in July 2011 would have been avoided.

10. Respondent sent Juan Roberts a copy of a letter dated March 23, 2011, asking for more information regarding the inventory. Respondent wrote again several weeks later, telling Juan Roberts, " I feel that it is necessary for me to withdraw unless we get something going in the next 20 days." Finally, in June 2011, Respondent wrote to Juan Roberts and the heirs and said, " Perhaps I should be working with Brandon, because he seems to be the only heir with a real interest in what is going on." Respondent threatened to withdraw from the case in 14 days.

11. In July 2011, the Roberts house sustained damage to the roof and siding as the result of a hailstorm.

12. In July 2011, Respondent wrote to Geico (at Brandon's urging) inquiring about insurance proceeds relating to the auto accident in which Walter R. Roberts Jr., the decedent, was killed in November 2009. Brandon had first told Respondent about the

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insurance in the early months of 2010, but Respondent failed to follow up at that time. By the time Respondent did inquire (more than a year later), Juan Roberts, Respondent's co-personal representative, had received the insurance proceeds and spent them, paying most of the money to himself and four of the five heirs, excluding Brandon.

13. On August 23, 2011, Respondent wrote to Juan Roberts and Yolanda McGhee, one of the heirs, and told them the money needed to be accounted for and that Respondent needed to have an accounting to file with the Court.

14. On August 24, 2011, Respondent filed an " Amended Petition and Report" in the Roberts probate in which Respondent disclosed the payment to Juan Roberts of more than $7,500, the payment to Respondent of $1,350 in legal fees, and unauthorized distributions to four of the five heirs. With the amended petition, Respondent was attempting to convert the Roberts probate to a summary probate, available to estates with less than $150,000 in assets. However, such a summary proceeding is only available where all of the heirs are petitioners, and the only remedy is distribution of the estate. In this case, Respondent was the only petitioner, and the amended petition sought an order allowing sale of the house and awarding attorney's fees, relief which is unavailable under Wyoming's summary probate statute, W.S. § 2-1-205.

15. In September 2011, Brandon Roberts complained to Bar Counsel about Respondent's handling of the Roberts probate. Respondent responded to the complaint on September 16, 2011, telling Bar Counsel that if Respondent could obtain an accounting for the Geico insurance proceeds within 10 days, Respondent would be willing to complete the probate. Otherwise, Respondent would ask the Court for leave to withdraw.

16. Upon receipt of a copy of Brandon Roberts' complaint (which was brought more than 20 months after the Roberts probate was opened), Respondent began to attend to the Roberts estate. Respondent discovered that the Roberts house was in need of repairs before it could be listed for sale (largely due to the July 2011 hail storm), and the recreational vehicle had been removed from Wyoming and taken to Ohio.

17. On September 27, 2011, Respondent wrote to the heirs and Juan Roberts and asked for a valuation on the motorhome and asked again for an accounting.

18. On December 20, 2011, Respondent wrote to the heirs and Juan Roberts and told them that if Respondent did not receive the accounting and other information by the end of the month, Respondent would withdraw from the case.

19. Respondent received a response from Juan Roberts dated December 29, 2011, enclosing an " accounting" which showed receipts into the estate of $31,968.24, and money paid out in the amount of $30,241.87 as follows:

Beneficiaries

$16,000.00

Attorney Fees

1,385.00

Employees

2,248.44

Expenses

7,923.85

Utilities

2,344.65

Supply Stores

273.93

Miscellaneous

66.00

Total paid out

$30,241.87

20. The " accounting" submitted by Juan Roberts told Respondent (1) Juan Roberts had made payments to himself totaling $6,853.42, (2) there was $1,726.37 left in the estate and (3) Juan Roberts was owed an additional $4,791.71.

21. On January 9, 2012, ten days after the estate's second birthday, Respondent wrote to Juan Roberts and again demanded an accounting no later than January 25, 2012. Juan Roberts responded with a letter dated January 19, 2012, to which was attached a more detailed accounting. Contrary to the accounting provided with his December 29, 2011, letter, the new accounting showed that Juan Roberts had received funds belonging to the estate totaling $32,048.54 and had made disbursements totaling $30,549.78, including $20,000 Juan had distributed to himself and four of the five heirs (excluding Brandon) in July and August 2010. The new accounting showed that Juan Roberts had made payments to himself totaling $8,094.76. Despite Respondent's involvement both as a

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fiduciary and as an officer of the court, Respondent did not act promptly to bring these improprieties to the Court's attention.

22. On January 30, 2012, the Court issued an Order to Show Cause to Respondent and Juan Roberts to explain why administration of the estate had not been completed.

23. On February 24, 2012, Respondent filed two documents -- the first since the estate was opened more than two years before. One was a response to the Order to Show Cause in which Respondent advised the Court for the first time (though Respondent had known about it for two months at that point) that improper distributions had been made. The other was an " Amended Petition: Report of Co-Administrators and Application for a Decree Pursuant to Wyo. Stat. § 2-1-205." In that document Respondent represented to the Court (among other things) that probate was not necessary and that " the original of this Notice of Application is being published once a week for two (2) consecutive weeks in compliance with W.S. 2-1-205." No such publication was ever made. Respondent attached to the " Amended Petition" portions of the two accountings Respondent had received from Juan Roberts, but failed to call the discrepancies between the two accountings or the full extent of the improprieties contained therein to the Court's attention. Respondent failed to serve either the " Response to Order to Show Cause or the " Amended Petition" on the heirs.

24. Upon review of the Court file, Bar Counsel sent Respondent a letter dated April 17, 2012, in which Bar Counsel pointed out several inadequacies and irregularities in Respondent's handling of the estate. Bar Counsel cautioned Respondent against proceeding with a summary distribution, which under Wyoming law Respondent could not do without all the heirs joining in the petition. Bar Counsel criticized Respondent's action in billing the estate and receiving payment of fees without Court approval. Bar Counsel demanded that Respondent act promptly to get the estate concluded.

25. On May 16, 2012, Bar Counsel wrote to Respondent and expressed concern about Respondent's persistence in proceeding with a summary probate and Respondent's impropriety in receiving fees from the Roberts probate without court approval, in response, Respondent wrote a letter dated May 29, 2012, in which Respondent indicated that he would start publication of a notice to creditors (nearly 30 months after the probate was opened), that he had repaid the fees received, and had opened a new checking account for the estate that would, according to Respondent, " be a source for funds to pay for advertising, filing the appraisal and expenses needed for preservation of the property." Respondent requested that Bar Counsel hold off on filing any disciplinary charges " until you see how quickly and successfully we can close this probate proceeding."

26. In early June 2012, Respondent opened a checking account for the estate with Central Bank and Trust in Cheyenne, funding it with a $1,385.00 deposit which represented a refund of the fees Respondent had received, without Court approval, from the estate. The estate checking account constituted a lawyer trust account within the meaning of Rule 1.15 of ine Wyoming Rules of Professional Conduct. At no time did Respondent attempt to recover from Juan Roberts any remaining estate fund in Juan Roberts' possession.

27. On June 6, 2012, Respondent filed an Estate Inventory and an unverified Report of Appraisal.

28. On June 13, 2012, more than 30 months after the estate was opened, Respondent filed Proof of Publication of the Notice of Probate and a Verified ...


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