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Board of Prof'l Responsibility v. Argeris

Supreme Court of Wyoming

November 19, 2014

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
MARCY ARGERIS, WSB #6-2774, Respondent

Page 1031

ORDER SUSPENDING ATTORNEY FROM THE PRACTICE OF LAW

E. JAMES BURKE, Chief Justice.

[¶1] This matter came before the Court upon a " Report and Recommendation for 30 Day Suspension," filed herein October 21, 2014, by the Board of Professional Responsibility for the Wyoming State Bar, pursuant to Section 16 of the Disciplinary Code for the Wyoming State Bar (stipulated discipline). After a careful review of the Board of Professional Responsibility's Report and Recommendation, Respondent's " Request for Specific Suspension Dates," Bar Counsel's " Response to Request for Specific Suspension Dates," and the file, this Court finds the Report and Recommendation for 30 Day Suspension should be approved, confirmed and adopted by the Court and that Respondent, Marcy Argeris, should be suspended from the practice of law for a period of thirty (30) days. It is, therefore,

[¶2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's Report and Recommendation for 30 Day 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

[¶3] ADJUDGED AND ORDERED that, as a result of the conduct set forth in the Report and Recommendation for 30 Day Suspension, Respondent, Marcy Argeris, shall be, and hereby is, suspended from the practice of law for a period of thirty (30) days, beginning March 15, 2015; and it is further

[¶4] 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

[¶5] ORDERED that Respondent shall reimburse Washakie County for the $550.00 administrative fee and costs associated with her earlier private reprimand; and it is further

[¶6] ORDERED that Respondent shall pay her attorneys' fees associated with the present disciplinary proceeding; and it is further

[¶7] ORDERED that, on or before May 19, 2015, Respondent shall attend the Wyoming State Bar's " Pathways to Professional Practice" course; and it is further

[¶8] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Respondent shall reimburse the Wyoming State Bar the amount of $50.00, representing the administrative costs incurred in handling this matter, as well as pay an administrative fee of $500.00, by paying the total amount of $550.00 to the Clerk of the Board of Professional Responsibility on or before December 31, 2014; and it is further

[¶9] 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 30 Day Suspension, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

[¶10] 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 30 Day Suspension, as a matter coming regularly before this Court as a public record; and it is further

[¶11] 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, Marcy Argeris.

[¶12] DATED this 19th day of November, 2014.

BEFORE THE SUPREME COURT STATE OF WYOMING

In the matter of MARCYARGERIS, WSB#6-2774, Respondent.

WSB No. 2014-064

REPORT AND RECOMMENDATION FOR 30 DAY SUSPENSION

Jenifer E. Scoggin, Chair.

THIS MATTER having come before the Board of Professional Responsibility pursuant

Page 1032

to Bar Counsel's stipulated motion for suspension of Respondent, and the Board having reviewed the stipulated motion, the affidavit of Respondent in support thereof, and being fully advised in the premises, FINDS, CONCLUDES and RECOMMENDS:

Findings of fact

1. Respondent has been licensed to practice in Wyoming since 1994. At all times relevant to this proceeding, Respondent was the County and Prosecuting Attorney for Washakie County.

2. in October 2013, Respondent received a stipulated private reprimand from this Board. The following press release accompanied the order of private reprimand:

The Board of Professional Responsibility issued a private reprimand to a prosecuting attorney who met with several minors and their parents following an incident in which law enforcement persoimel discovered the minors after hours on school property, mixing toilet bowl cleaner with balls of aluminum foil in plastic bottles, which led to a chemical reaction that caused the bottles to burst or explode, making a loud noise. The prosecutor told the minors and their parents that they could be charged with felonies or misdemeanors and perhaps federal charges and may be subject to incarceration. The minors cooperated fully with the prosecutor and freely admitted their involvement. School district officials were contacted but declined to pursue school district discipline actions.
The attorney agreed that the conduct violated Rule 3.8(b), which provides, " A prosecutor in a criminal case shall, prior to interviewing an accused, make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining counsel and has been given reasonable opportunity to obtain counsel." The prosecutor violated this rule when the prosecutor interviewed the young men before giving them a reasonable opportunity to obtain counsel. The prosecutor agreed to pay an administrative fee of $500 and costs of $50 to the Wyoming State Bar, and to obtain an additional three hours of CLE in ethics.

3. Respondent was represented in the matter which culminated in the stipulated private reprimand by Evanston attorney, Mark Harris. At Respondent's request, the County had been paying Mr. Harris's fees at the rate of $200.00 per hour, plus expenses. Along with Respondent's Affidavit to the State Bar, Respondent asked Mr. Harris to send the $500.00 administrative fee and the $50.00 cost assessment on her behalf to facilitate an efficient and timely end to this matter. Respondent then asked him to place both items on his billing statement for submission to the County Commissioners. Mr. Harris did so and issued a billing statement dated October 31, 2013, which listed an " administrative fee" of $500.00, a " cost fee" of $50.00, long distance charges of $.23 and postage of $.46, for a total bill of $550.69. On the bottom of the billing statement was written, " Marcy, Please prepare 2 checks for this bill. One in the amount of $500.00 and the other one in the amount of $50.69." As Respondent had with Mr. Harris's other invoices, and pursuant to the manner in which Respondent had been trained to submit billing statements to the County, Respondent submitted the October 31, 2013, billing statement to the Washakie County Clerk for payment, and explained to her that it was for administrative fees associated with the grievance.

4. The Washakie County Clerk prepared two vouchers as a result of the submittal of the October 31, 2013, billing statement. The first requested payment to Harris Law Office in the amount of $500.00, which the County Clerk indicated was " legal fees" on the voucher without Respondent's knowledge. The second requested payment to Harris Law Office in the amount of $50.69, also designated " legal fees." Both vouchers were approved by the Washakie County Commissioners on October 31, 2013, and paid. Although Respondent had told the County Clerk the nature and purpose of the administrative fees and costs, Respondent did not fully and properly inform the County Commissioners of the nature or purpose of the

Page 1033

$500.00 administrative fee or the $50.00 cost assessment.

5. Given that the $500.00 administrative fee and the $50.00 in costs were monetary assessments resulting from Respondent's admitted violation of a Rule of Professional Conduct, Respondent agrees that she had a heightened duty to communicate about that matter with the County; that is, to call special attention to the fact that the assessment was a direct result of Respondent's concession that Respondent acted unethically in the underlying matter. In so acting, Respondent engaged in conduct in violation of Rule 8.4(c).[1]

6. Worland resident Mark McGarvin, the complainant in the matter which led to Respondent's private reprimand, reportedly inqtiired of the County as to what payments had been made to Harris Law Office and discovered that Mr. Harris had paid the $500.00 administrative fee and $50.00 in costs on Respondent's behalf and had been reimbursed for those expenses by the County. Mr. McGarvin reportedly took the matter up with the County Commissioners, protesting that it was an inappropriate use of public funds for the County to pay the administrative fee and costs for Respondent's disciplinary infraction.

7. During a January 7, 2014. executive session meeting of the Washakie County Commissioners at which Respondent was present, there was discussion about the propriety of the County's payment of the $550.00 administrative fee and costs. While not reflected in the minutes. Respondent explained the grievance, the stipulation and the administrative fee and costs.

8. One of the Commissioners asked Respondent whether outside counsel should be retained to advise the County on the issue. Instead of immediately answering yes as Respondent should have. Respondent asked if she could consult with other county attorneys on the issue to see what other counties did regarding the administrative fee and costs. The Commissioners agreed to allow Respondent to consult other county attorneys. Although Respondent attempted to contact other county attorneys, Respondent was unable to provide the Commissioners with an immediate answer.

9. Two of the County Commissioners thereafter approached Respondent and asked her to reimburse the County for the $550.00 it had paid for the administrative fee and costs. Respondent refused, relying upon W.S. § 18-2-111, which provides generally that judgments rendered against county officials are to be paid by the county.

10. Upon repeated requests and demands from two of the County Commissioners, on January 17, 2014, Respondent emotionally wrote to the Commissioners, declining their request for permission to seek an opinion from outside counsel. Respondent acknowledges that that refusal constituted a violation of Rule 1.7, which provides in pertinent part, " A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if. . . there is a significant risk that the representation of one or more clients will be materially limited . . . by a personal interest of the lawyer." See Rule 1.7(a)(2), W.R.P.C. Comment 7 to the Rule explains, " The lawyer's own interests should not be permitted to have an adverse effect on representation of a client. For example, if the propriety of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice." Respondent further acknowledges that her refusal to approve outside counsel also constituted a violation of Rule 1.8, because at that point there was a clearly identified conflict between Respondent's personal interests and those of the County. Respondent's duty, rather than to refuse the request for authority to engage

Page 1034

outside counsel, was to insist upon it as required by Rule 1.8.

11. In early April 2014, Mr. McGarvin submitted a second complaint to Bar Counsel in which he alleged that it was improper for Respondent to have the $550.00 administrative fee and costs associated with Respondent's private reprimand paid by the County and that it was an abuse of authority for Respondent to deny the Commissioners' request for outside counsel. Respondent retained Richard Jamieson of Casper to represent her with respect to the second complaint and entered into an agreement to pay Mr. Jamieson $350.00 hour.

12. At the June 3, 2014, executive session meeting of the Washakie County Commissioners, Respondent informed the Commissioners that a new complaint had been filed. Respondent spoke to Commission Chair Aaron Anderson on the phone regarding the new complaint when it was filed, but not formally to the full Board. Respondent informed the Commissioners that the new complaint was regarding the fee and costs, but not the specific wording of the complaint as Mr. McGarvin quoted two of the three Commissioners in the complaint. Respondent testified in her affidavit that she was " emotionally and legally concerned" that the quotes appeared to come from information that was communicated to the Commission in an executive session. Thus, Respondent explains, she did not give the specifics of the complaint, only that it involved the payment of the fee and costs. However, Respondent did state that the complaint was filed against her in her capacity as County and Prosecuting Attorney and not in her individual capacity. This last statement was materially misleading in that the thrust of Mr. McGarvin's complaint was that the County had paid $550.00 administrative fee and costs, that it should have been paid by Respondent out of her own funds and that Respondent was otherwise putting her personal interests ahead of the County's interests. In this regard, Respondent concedes that that conduct constituted a separate violation of Rule 1.4 (duty of reasonable disclosure to client).

13. During the June 3, 2014, executive session meeting of the Washakie County Commissioners, Respondent asked the County to pay the fees for counsel to represent Respondent in the second McGarvin complaint. While Respondent did communicate with one Commissioner (Aaron Anderson) by phone when the Complaint was filed, Respondent did not go to the full Board until the June 3, 2014, executive session to inform the Commissioners that she had already retained Mr. Jamieson. Additionally, at that June 3, 2014 meeting Respondent did not inform the Commissioners that Respondent had entered into an agreement to pay Mr. Jamieson $350.00 per hour, a higher hourly rate than had been paid to Mr. Harris, her attorney in the first disciplinary proceeding. Respondent concedes that that failure to disclose this information constituted another violation of Rule 8.4(c). The minutes of the June 3, 2014, meeting state, " Approval was given for County Attorney Marcy Argeris to hire outside counsel for a grievance filed against her as county attorney."

14. In the same June 3, 2014 executive session with the County Commissioners, Respondent reviewed with them the statutes on executive sessions. Soon after the meeting, one of the Commissioners (Aaron Anderson) requested outside counsel for advice on release of information discussed at executive session meetings. Respondent immediately agreed. Respondent had previously been working on a " pool" of attorneys whom she could suggest to the Commissioners when the need for outside counsel arose. Since Matt Winslow was the only person Respondent had been able to communicate with to date. Respondent suggested Mr. Winslow to Commissioner Anderson. He requested that Respondent invite Mr. Winslow to the next Commissioner meeting.

15. On June 25, 2014, Respondent wrote a letter to the Commissioners addressing the issues that Commissioner Anderson had raised and authorized the Commission to hire outside counsel for the executive session issues. This letter stated, Pursuant to W.S. 18-2-110 please consider this memo authorization to hire and counsel with [Cody attorney] Matt Winslow regarding executive sessions. . .

Page 1035

Please note that his legal services will be paid out of the county's general fund." Respondent should have recused herself from any and every issue as it related to this case upon learning of the new allegations and complaint, regardless of whether it was the payment of the original fee and costs or executive session ...


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