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Bd. of Prof'l Responsibility v. Jones

Supreme Court of Wyoming

August 19, 2015

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
FRANK J. JONES, WSB No. 4-1050, Respondent

OPINION

E. JAMES BURKE, Chief Justice.

Page 499

ORDER OF PUBLIC CENSURE

[¶1] This matter came before the Court upon a " Report and Recommendation for Public Censure," filed herein July 27, 2015, 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). Preliminarily, this Court agrees with the Board's conclusion that this matter should be governed by the Disciplinary Code for the Wyoming State Bar, and not the newer Wyoming Rules of Disciplinary Procedure. See Rule 26(f) of the Wyoming Rules of Disciplinary Procedure (" These rules shall become effective July 1, 2015, and any discipline or disability investigation pending on that date shall proceed under these rules. Any matter then pending with respect to which a formal charge has been filed shall be concluded under the procedure existing prior to the effective date of these rules." ). 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, and adopted by the Court (with one exception), and that Respondent, Frank J. Jones, should be publicly censured for his conduct. 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, with one exception. With respect to Recommendation 3 on pages 18 and 19 of the Report and Recommendation, this Court adopts only the following: " Respondent shall, before undertaking any new matters in the future, comply fully with Rule 1.7. . . ." The Court does not adopt the remainder of that recommendation; and it is further

[¶3] ADJUDGED AND ORDERED that Frank J. Jones is hereby publicly censured for his conduct, which is described in the Report and Recommendation for Public Censure. This public censure shall include issuance of a press release consistent with the one set out in the Report and Recommendation for Public Censure; and it is further

[¶4] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Mr. Jones shall reimburse the Wyoming State Bar the amount of $50.00, representing the costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Mr. Jones shall pay the total amount of $550.00 to the Wyoming State Bar on or before October 19, 2015; and it is further

[¶5] 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

[¶6] ORDERED that, pursuant to Section 4(a)(iv) 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

[¶7] ORDERED that the Clerk of this Court cause a copy of this Order of Public Censure to be served upon Respondent, Frank J. Jones.

[¶8] DATED this 19th day of August, 2015.

Page 500

BEFORE THE SUPREME COURT STATE OF WYOMING

In the matter of Frank J. Jones WSB No. 4-1050 Respondent.

Docket No. WSB 2014-177

REPORT AND RECOMMENDATION FOR PUBLIC CENSURE

The Board of Professional Responsibility makes the following Report and Recommendation, with its findings of fact and recommendation to the Supreme Court of Wyoming:

FINDINGS OF FACT

1. Respondent is an attorney licensed to practice in Wyoming and maintains a practice in Wheatland.

2. During 2007-2008, Respondent represented Guernsey, Wyoming residents Roger A. Ganfield and Freda A Sudrla in connection with a boundary dispute they had with their neighbor to the north, David S. Cole.

3. Ganfield and Sudrla are retired University of Nebraska faculty members. They reside on property they purchased for retirement in Guernsey, Wyoming, located on the North Platte River that includes a residence and several outbuildings.

4. The property Cole occupied was separated from the Ganfield/Sudrla property in part by an abandoned railroad right of way (berm with no tracks). Outbuildings owned and used by Ganfield/Sudrla were located on portions of the abandoned railroad right of way. Cole had asserted adverse claims to that abandoned railroad right of way.

5. In about May 2007, Ganfield and Sudrla met with Respondent at his office in Wheatland, Wyoming, seeking to engage a lawyer to represent them in their boundary dispute with Cole. Ganfield and Sudrla described the situation to Respondent. Respondent told Ganfield and Sudrla that he was familiar with David Cole, did not think Cole would want to incur the expense of a lawsuit, and suggested that he would visit with Cole to see if the matter could be resolved without a lawsuit. Ganfield and Sudrla asked Respondent about fee arrangements, but Respondent said he wanted to visit with Cole to see if the matter could be resolved without litigation, before discussing fee arrangements.

6. Respondent had a substantial pre-existing relationship with Cole.

7. Ganfield and Sudrla complain that Jones did not disclose to them that David Cole was a client or former client. They complain that they were seeking to hire a lawyer who could sue Cole because they believed they had already exhausted efforts at negotiation, and that Respondent led them to believe he would represent them against Cole in litigation if necessary. Due to the passage of time, Respondent does not recall the details of his initial meeting with Ganfield and Sudrla, however, he thinks it is likely he told them Cole or his business interests had been a client of his, and, he does not believe that he would have led Complainants to believe that Respondent could represent them in litigation adversely against Cole.

8. Before he undertook to represent Ganfield and Sudrla, Respondent did not communicate to them the full nature and extent of his relationship with David Cole and his family and business interests.

9. Respondent did not fully explain to Ganfield and Sudrla the material limitations to Respondent's ability to fully represent Ganfield and Sudrla arising out of Respondent's relationship with David Cole.

10. Respondent did not obtain from Ganfield and Sudrla any written informed decision signed by them to Respondent's representation notwithstanding the conflict of interest arising from Respondent's attorney-client relationship with Cole.

11. After his initial meeting with Ganfield and Sudrla Respondent met with Cole. Cole reportedly told Respondent that if Cole had an easement from the Town of Guernsey for an access route, then Cole would be more willing to trade disputed properties with Ganfield and Sudrla. Respondent searched records for an easement in Cole's favor. He

Page 501

also communicated and met with Town representatives in efforts to resolve the issues.

12. Respondent never discussed with Ganfield and Sudrla any proposed simultaneous representation of Cole by Respondent, nor did Respondent ever propose to act as an intermediary in the negotiations between the adverse parties under then-applicable Rule 2.2(a). Respondent did not obtain informed written consent (decision) of Ganfield and Sudrla, in a writing signed by them, to his simultaneous representation of Cole or to Respondent acting as an intermediary.

13. By a letter to Jones dated April 30, 2008, Ganfield and Sudrla terminated Respondent's representation of them. They stated that they had seen no evidence of progress in resolving their boundary dispute with Cole and had been unable to communicate with Respondent after contacting his office many times in the previous ten (10) months. Respondent denies that he did not respond to Complainants' telephone calls.

14. About six weeks later, Respondent wrote a letter dated June 11, 2008 addressed jointly to both Cole and Ganfield. In this letter Respondent described the existing dispute and stated that an action would have to be filed by Ganfield and Sudrla against Cole to quiet title in Ganfield. He stated that " In my endeavors" to resolve the matter without litigation, " I have created a severe conflict of interest for myself . . . I cannot represent the parties in any of this litigation as I have put myself in a position of being a " negotiator" rather than a " litigator" in the issues."

15. The Rules of Disciplinary Procedure became effective July 1,2015 and apply to disciplinary investigations " pending" on that date. Rule 26(f), Wyoming Rules of Disciplinary Procedure. However, the Disciplinary Code remains applicable in cases where formal charges were filed before July 1, 2015.

16. Special Bar Counsel and Respondent reached agreement during April 2015 that Respondent would stipulate to public censure discipline. They proceeded to negotiate language of the stipulated motion and supporting affidavit, resulting in Respondent's June 18, 2015 execution of the Affidavit of Factual Basis and Agreement to Discipline, and the filing of their Stipulated Motion on June 22, 2015. The parties contemplated that their motion would be considered by the Board and the Wyoming Supreme Court under the procedures of Disciplinary Code Section 21(c). See Paragraph 22 of Respondent's Affidavit.

17. The Board concludes that Special Bar Counsel's disciplinary investigation in this matter was concluded on or before June 18, 2015, and was no longer pending as of July 1, 2015. If the parties had not earlier arrived at stipulated resolution, any formal charge necessary to this matter would have been filed before July 1, 2015, and would have proceeded under the previous Disciplinary Code. Therefore, in accordance with Rule 26(f) of the Rules of Disciplinary Procedure, and, the parties' stipulation, the Board concludes that the Parties' Stipulated Motion is subject to Disciplinary Code Section 21 and that the new Rules of Disciplinary Procedure do not apply.

18. Complainants were timely served with copies of the stipulated motion and Respondent's affidavit. They were afforded the opportunity to submit, and did submit, written comments. Complainants do not object to the stipulated public censure resolution.

19. Respondent was served with as-filed copies of the Stipulated Motion, Affidavit, and Special Bar Counsel's Addendum to the Stipulated Motion. Respondent agreed to submission of the matter to the Board on the papers filed. Respondent did not ask to participate in the Board's conference call to consider the stipulated motion.

20. Under Rule 1.7(a)(2), Wyoming Rules of Professional Conduct, " Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if . . . (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer." Under Rule 1.7(b), a lawyer may proceed to represent a client notwithstanding the existence of a concurrent conflict of interest if four specified

Page 502

criteria are met, including that the client " (4) gives informed consent, confirmed in a writing signed by the client."

21. Under Rule 1.4(a)(1), Wyoming Rules of Professional Conduct, " a lawyer shall promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as ...


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