BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
DION J. CUSTIS, WSB #6-2674, Respondent
E. JAMES BURKE, Chief Justice. Justice Hill took no part in the consideration of this matter. Judge Timothy C. Day participated by assignment.
ORDER OF PUBLIC CENSURE
E. JAMES BURKE, Chief
[¶1] Attorney Dion J. Custis objects to the Report and Recommendation for public censure by the Wyoming State Bar Board of Professional Responsibility (BPR). Having reviewed the Report and Recommendation and Mr. Custis's objection to it, considered the oral arguments of counsel, and performed an independent and thorough review of the BPR record, the Court concludes that Mr. Custis violated several of the Wyoming Rules of Professional Conduct and accepts the BPR's recommendation that Mr. Custis
be publicly reprimanded and that he pay costs and fees.
[¶2] Mr. Custis argued that entry of default against him violated his due process rights, and that there was insufficient evidence to prove the rule violations and recommended sanction. This Court concludes Mr. Custis's right to due process was not violated and default was proper.
[¶3] 1. Did entry of default violate Mr. Custis's right to due process?
2. Is there a factual basis for finding Mr. Custis violated the Wyoming Rules of Professional Conduct?
3. What are the appropriate sanctions?
[¶4] The Formal Charge arising from Mr. Custis's representation of Gilbert Ortiz, Jr. stemmed from a brief filed by Mr. Custis in the Wyoming Supreme Court appealing Mr. Ortiz's convictions on three counts of second-degree sexual abuse of a minor. Ortiz v. State, 2014 WY 60, 326 P.3d 883 (Wyo. 2014). In his brief, Mr. Custis argued that the forensic interviewer, Lynn Huylar, had improperly vouched for the victim's credibility. The brief included an extensive discussion, with quotes, of Ms. Huylar's testimony. However, the testimony referred to was not Ms. Huylar's testimony in the Ortiz case; rather, it was her testimony in a similar case, Seward v. State, 2003 WY 116, 76 P.3d 805 (Wyo. 2003), in which this Court held that she improperly vouched for the victim's credibility. No citation informed the reader that the testimony discussed had been given in Seward and not Ortiz. The Formal Charge contained the following allegations:
2. Respondent filed a brief with the Wyoming Supreme Court on behalf of the appellant in a case entitled, Gilbert Ortiz, Jr., Appellant, v State of Wyoming, Appellee, No. S-13-0127. The brief contained material misrepresentations.
3. [T]he State filed a Motion for an Expedited Stay calling to the Court's attention certain misrepresentations in the brief Respondent had filed . . . .
4. Respondent filed a response to the State's motion . . . . Respondent claimed that the misrepresentations were simply an inadvertent, unintentional, embarrassing, typographical error. He asked that the State's motion be denied. He did not offer or take any steps to correct the misrepresentations . . . or to otherwise take remedial action.
5. On September 17, 2013, the Court issued an order requiring Respondent to file a revised Appellee's Brief . . . and sanctioned Respondent the sum of $500.00.
6. In response to Bar Counsel's disciplinary inquiry, Respondent denied that he had made any " knowing false statement" in the brief and the misrepresentation in the brief " was simply a drafting error by my paralegal."
The Formal Charge alleged that Mr. Custis's conduct violated Wyo. R. Prof. Conduct 3.3(a) (candor toward the tribunal), 5.3 (responsibilities regarding nonlawyer assistants), 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), and 8.4(d) (conduct prejudicial to the administration of justice).
[¶5] The BPR also considered six exhibits, without objection from Mr. Custis:
o Exhibit 1: Copy of the Formal Charge in WSB No. 2013-113.
o Exhibit 2: Copy of Appellant's Brief in Ortiz v. State.
o Exhibit 3: Copy of the State's Motion For An Expedited Stay, in which it called to attention the misrepresentations in Mr. Custis's brief.
o Exhibit 4: Copy of Mr. Custis's Response of Attorney for Appellant to State's Motion for an Expedited Stay, in which he wrote in part:
It is very clear that this quote is a quote from the Seward case. To suggest that counsel was deliberately trying to misquote a quote from an opinion that this Court wrote is absurd. First, the misquotes do not affect any substantive argument. Second, the misquotes do not make Appellant's arguments any less or more persuasive.
o Exhibit 5: Copy of the Wyoming Supreme Court's Order on Motion for Stay, in which the Court imposed a $500 sanction and required filing of a corrected brief.
o Exhibit 6: Copy of the Wyoming Supreme Court's opinion in Seward v. State, 2003 WY 116, 76 P.3d 805 (Wyo. 2003).
[¶6] On October 17, 2013, Mr. Custis was served the Formal Charge via certified mail at his address on file with the Wyoming State Bar, in accordance with § 11(e) of the Disciplinary Code for the Wyoming State Bar (Disciplinary Code). Tracking information from the United States Postal Service confirmed that the mailing was received at Mr. Custis's address on October 18, 2013. Section 11(f) of the Disciplinary Code provided Mr. Custis twenty days from October 17, 2013 to serve an answer on the BPR and bar counsel. Mr. Custis failed to file an answer to either charge by November 6, 2013, the expiration of the twenty-day period.
[¶7] On November 18, 2013, bar counsel filed and served a Motion for Entry of Order of Default against Mr. Custis. Mr. Custis opposed the motion, alleging improper service under W.R.C.P. 5(b)(1) for failure to serve his attorney in the matter. Mr. Custis also filed a response to the charge.
[¶8] The BPR entered an Order of Default against Mr. Custis, and set a hearing to determine the appropriate form of discipline. Mr. Custis's Motion for Reconsideration of Entry of Default was denied.
[¶9] At the sanction hearing, bar counsel called the deputy attorney general who represented the State of Wyoming in the Ortiz appeal. He explained that a lengthy passage from the Seward opinion was inserted into the Ortiz brief, and someone took the effort to replace Seward's reference to a two-to three-year old child, with a reference to " a young child," which better conformed to the facts in the Ortiz appeal. When the deputy attorney general was asked his reaction to Mr. Custis's explanation that the misrepresentation was an inadvertent drafting error, he responded: " I don't see how that's possible. A drafting error --I don't see how a drafting error would contain that one alteration from the original in the Supreme Court's Seward opinion." The deputy attorney general concluded his testimony by explaining that addressing the issue demanded extra time and resources from the Attorney General's office.
[¶10] Mr. Custis presented three witnesses: his paralegal, who assisted with the Ortiz brief; Donna Domonkos, an appellate attorney who worked with Mr. Custis's paralegal and reviewed the Ortiz brief; and Mr. Custis's office administrator.
[¶11] Ms. Domonkos testified regarding her significant experience writing and arguing appeals, and then explained her specific involvement in the Ortiz briefing.
A: Mr. Custis called me and said that he had a paralegal working with him on this Ortiz brief, and he asked me to go over it and give him some suggestions. I did go over it, and I had quite a few suggestions. . . . I sat down with the paralegal, and we went through different --different things. . . .
And so I went through the brief. . . . And I can tell you, I --I did not notice the misquote. I didn't.
Ms. Domonkos further testified that from her interactions with the paralegal there was no indication that Mr. Custis intentionally directed the inclusion of the misrepresentation.
[¶12] Mr. Custis's paralegal testified to his involvement in the briefing, " I was the head paralegal at the time, so I did a lot of the preliminary drafting and research." He testified that he was responsible for the misrepresented language in the brief, and it was
a result of a " copy and paste mistake from a clipboard on WordPerfect." The paralegal further explained the insertion of the " young child" language resulted from an accidental copying and pasting of his " comparison notes" --facts from the Ortiz appeal that he was comparing to his case law research. He testified, " It was definitely inadvertently done," and when Mr. Custis found out about the error from the State's motion, he " was kind of freaking out." He concluded by explaining the error: " I feel the biggest thing with the Ortiz thing, it was a 65-page brief, and there was [sic] so many elements and everything. Like [Mr. Custis] goes over my work with a fine-toothed comb, but obviously something slipped through it."
[¶13] Mr. Custis's office administrator testified to changes in Mr. Custis's office administration following his sanction in Board of Professional Responsibility, Wyoming State Bar v. Custis, 2012 WY 142, 295 P.3d 334 (Wyo. 2012) ( Custis I ). She explained that the office now had better communication, weekly status meetings, and case files for every client detailing communications with the client, upcoming court dates, and client contact information.
[¶14] Mr. Custis testified to improvements in his office administration since his 2012 sanction in Custis I :
I have instructed my office, my secretary, paralegal, even my runner, that there's not to be any mistakes. So I've tried to do everything I can. I've tried to improve my office policy by meeting weekly, going through, as [the office administrator] said, with the case log, making sure that there's [sic] no mistakes made on outgoing pleadings, making sure all the clients are notified, making sure there's no questions of any clients.
Mr. Custis testified to his paralegal's role in the Ortiz brief:
I'm responsible for what's in the appellant brief. I take full responsibility for that.
I do not direct him to simply write the brief and then that's it. I have him help me writing the brief. And that's what I did in this case. So he would write certain issues. I would write certain issues. I would give him more leeway on certain topics.
. . . .
So when I read it, it read to me as a quote from Seward. I thought that's what he was referring to. I did not notice that he didn't cite to it.
[¶15] Mr. Custis emphasized he had no knowledge of the error prior to receiving the State's motion for stay, claiming he " never would have directed anything like that." Regarding his failure to immediately correct the brief upon notice from the State, Mr. Custis testified that his understanding of the appellate court rules was that he could not just submit an amended brief without leave of the Supreme Court, so he responded to the State's motion and he thought the Court would tell him what to do in its order on the motion. Mr. Custis spent the rest of his direct examination explaining how he wished the Attorney General's office would have dealt with the situation differently, and that " it was inappropriate for [the Attorney General's office] to accuse me of misconduct to the Supreme Court in a pending case." On cross-examination, Mr. Custis admitted he did not request leave of the Supreme Court to correct the brief, instead filing a seven-page opposition to the motion.
[¶16] Following the hearing, the BPR issued its Report and Recommendation, in which it found a factual basis for concluding that Mr. Custis violated Wyo. R. Prof. Conduct 3.3(a), 5.3, 8.4(c) and 8.4(d). It recommended public censure plus payment of $500.00 in ...