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Board of Professional Responsibility, Wyoming State Bar v. Beduhn

Supreme Court of Wyoming

August 24, 2017

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
NICK EDWARD BEDUHN, WSB # 6-3763, Respondent.

          ORDER OF TWO YEAR SUSPENSION FROM THE PRACTICE OF LAW

          E. JAMES BURKE, Chief Justice

         [¶1] This matter came before the Court upon a "Report and Recommendation for Two Year Order of Suspension, " filed herein July 13, 2017, by the Board of Professional Responsibility for the Wyoming State Bar. This Court has carefully reviewed the Report and Recommendation, the attached "Affidavit of Costs and Expenses, " and the file. This Court notes that Respondent has not objected to the Report and Recommendation. See Rule 16(c)(2), Wyoming Rules of Disciplinary Procedure. This Court finds the Report and Recommendation should be approved, confirmed, and adopted by the Court, and that Respondent, Nick Edward Beduhn, should be suspended from the practice of law for a period of two years. It is, therefore, [¶2] adjudged and ordered that the Board of Professional Responsibility's Report and Recommendation for Two Year Order of 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 Two Year Order of Suspension, Respondent Nick Edward Beduhn shall be, and hereby is, suspended from the practice of law for a period of two years, with the period of suspension to begin on May 10, 2017, the date this Court entered its "Order of Immediate Suspension"; and it is further

         [¶4] ORDERED that, during the period of suspension, Respondent shall comply with the requirements of the Wyoming Rules of Disciplinary Procedure, particularly the requirements found in Rule 21; and it is further

         [¶5] ORDERED that, pursuant to Rule 25 of the Wyoming Rules of Disciplinary Procedure, Respondent shall reimburse the Wyoming State Bar the amount of $5, 475.18, representing the costs incurred in handling this matter, as well as pay administrative fees of $3, 750.00. Respondent shall pay the total amount of $9, 225.18 to the Wyoming State Bar on or before November 15, 2017; and it is further

         [¶6] ORDERED that Nick Edward Beduhn shall, on or before November 15, 2017, reimburse Tanner Beemer the amount of $1, 075.85, which represents amounts paid by Mr. Beemer for legal fees and transcript costs; and it is further

         [¶7] ORDERED that, pursuant to Rule 9(b) of the Wyoming Rules of Disciplinary Procedure, this Order of Two Year Suspension from the Practice of Law, along with the incorporated Report and Recommendation for Two Year Order of Suspension, 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 this Order of Two Year Suspension from the Practice of Law to be served upon Respondent Nick Edward Beduhn.

         [¶9] DATED this 24th day of August, 2017.

         Before The Supreme Court of Wyoming

         In the matter of NICK EDWARD BEDUHN, WSB No. 6-3763, Respondent.

         Doket Nos. 2016-030, 2016-038, 2016-047, 2016-056 & 2017-003

         REPORT AND RECOMMENDATION FOR TWO YEAR ORDER OF SUSPENSION

         THIS MATTER came before the Board of Professional Responsibility on the 12th day of June, 2017, for a sanction hearing pursuant to Rule 14(b)(2), W.R.Dis.Proc, and the Board having received certain exhibits from Bar Counsel and testimony of witnesses, having heard the arguments of the parties and being fully advised in the premises, FINDS, CONCLUDES and RECOMMENDS as follows:

         Procedural Background

         1. This disciplinary proceeding consolidates five complaints submitted to the Office of Bar Counsel between February 2016 and January 2017 regarding Respondent, who has been licensed to practice in Wyoming since 2003 and maintained, until an Order of Immediate Suspension was issued by the Wyoming Supreme Court on May 10, 2017, an active practice of law in Cody, Wyoming.

         2. Prior to the Court's Order of Immediate Suspension, Respondent had a Public Defender's contract which kept him quite busy with criminal matters throughout Wyoming. He also had a general civil litigation practice consisting primarily of domestic relations matters and private-pay criminal defense.

          3. The formal charge in this matter was filed and served by certified mail, return receipt requested, on March 15, 2017, The return receipt on file indicates that the formal charge was retrieved by Respondent from the Cody post office on March 23, 2017. Rule 14(a), Wyo.R.Disc.Proc, provides in relevant part, "Within 20 days after service of the formal charge, or within such greater period of time as may be approved by the BPR or a Disciplinary Judge, the respondent shall file the original of an answer to the formal charge with the BPR Clerk and shall serve a copy upon Bar Counsel." Respondent failed to file an answer or otherwise respond to the formal charge.

         4. Rule 14(b)(1), Wyo.R.Disc.Proc, provides in relevant part, "If the respondent fails to file an answer within the period provided by subsection (a) of this Rule, Bar Counsel shall file a motion for default with the BPR Clerk. Thereafter, the BPR Clerk shall enter a default and the formal charge shall be deemed admitted; provided, however, that a respondent who fails to file a timely answer may, upon a showing that the failure to answer was the result of mistake, inadvertence, surprise, or excusable neglect, obtain leave of the BPR to file an answer."

         5. When Respondent failed to answer or otherwise respond to the formal charge, default was entered pursuant to Rule 14(b)(1), Wyo.R.Disc.Proc, on April 20, 2017. The matter was thereafter set for a sanction hearing pursuant to Rule 14(b)(2), Wyo.R.Disc.Proc, on June 12, 2017, in Cody, Wyoming.

         6. Respondent did not seek an extension of time to file an answer to the formal charge nor did he contest the entry of default.

         7. The sanction hearing proceeded with opening statements by Bar Counsel and by Respondent, who was self-represented at the hearing. At the beginning of the hearing. Bar Counsel's Exhibit 1, containing Bar Counsel's investigative files in the five matters encom- passed by the formal charge and bearing Bates numbers OBC 001 through OBC 279, was received into evidence. References hereinafter to "OBC ___" are to the corresponding Bates numbered pages of Exhibit 1.

         8. Both sides called numerous witnesses to testify regarding the factors to be considered by the Board in determining the appropriate sanction for Respondent's misconduct. See Rule 15(b)(3)(D), Wyo.R.Dis.Proc. Respondent is a skilled trial lawyer who is generally well regarded by colleagues and judges, especially in his work as a public defender. Respondent called three witnesses to establish his character to practice criminal law as a public defender. Bar Counsel did not dispute this evidence. Respondent offered evidence of the dissolution of his law practice, single parenthood, workload through witness testimony in an attempt to mitigate the repeated failure to meet deadlines established by various courts and applicable in this disciplinary proceeding.

         9. As a result of Respondent's default, the following allegation of the formal charge are deemed admitted. Their factual basis is further established in the record by the referenced Bates numbered pages of Exhibit 1, and by testimony adduced during the sanction hearing.

         No. 2016-030 Darold Brown, Complainant

         10. Respondent represented Darold Brown, the defendant in a child custody and visitation modification proceeding brought in August 2015 in the Fifth Judicial District Court in Cody. The plaintiff/ex-wife was represented by George Simonton of Cody.

         11. A scheduling conference was held with Judge Cranfill on October 28, 2015. Simonton drafted a "Setting Order" following the conference and emailed it to Respondent on October 30, 2015. OBC 082. Apparently, Respondent signed the order Simonton sent and submitted it to Judge Cranfill's assistant, Rusty Hughes. Ms. Hughes contacted Simonton on Novem- ber 3, 2015, and asked him to redo the order to conform to Judge Cranfill's format. OBC 080. Simonton prepared a revised order, this one titled, "Scheduling Order" and emailed it to Respondent on November 3, 2015. OBC 084. Both orders required Respondent to produce discovery by November 10, 2015; to list witnesses and exhibits by November 13, 2015; and set pending motions for hearing on November 17, 2015; with a trial to follow beginning December 7, 2015.

         12. On November 16, 2015, having heard nothing from Respondent, Simonton sent a strong email expressing frustration with Respondent's lack of responsiveness in the case. OBC 088. On November 17, 2015, the Scheduling Order- with pertinent deadlines now expired and unmet by Respondent - was signed by Judge Cranfill and filed. OBC 005. Thereafter, Judge Cranfill signed and filed the original "Setting Order" that had been prepared by Simonton and submitted by Respondent to Judge Cranfill's assistant in early November. OBC 008.

         13. On December 2, 2015, a hearing was held on multiple motions for sanctions filed by Simonton as a result of Respondent's failure to produce discovery and to comply with the Court's deadlines. Judge Cranfill ruled that Respondent "may not offer any witnesses or exhibits at trial, but may fully cross examine any of Plaintiffs witnesses." Simonton's request for attorney's fees was taken under advisement. OBC 276.

         14. The trial went forward, with Judge Cranfill issuing a 10-page decision letter on January 14, 2016. OBC 010. On January 19, 2016, Simonton emailed a proposed order on the decision letter to Respondent. OBC 038. On February 2, 2016, having heard nothing from Respondent, Simonton submitted the proposed order to Judge Cranfill. OBC 036.

         15. Darold Brown, Respondent's client, submitted a complaint to the Office of Bar Counsel on February 17, 2016. OBC 001. Brown alleged that he had provided Respondent with a financial affidavit and other documents, but that Respondent had neglected to provide them to

          Simonton. Brown alleged, "My lawyer cost me any chance I had for a [reasonable] outcome." OBC 002. Bar Counsel sent a copy of the complaint to Respondent and asked him to respond by March 3, 2016. Respondent asked for an additional week to respond. Bar Counsel granted Respondent an extension to March 10, 2016. OBC 045. While awaiting Respondent's response, Bar Counsel began receiving emails from Brown complaining that Respondent refused to withdraw from his case so that Brown could communicate with Simonton directly. OBC 046. On March 10, 2016, Bar Counsel received an email from Respondent asking for another extension. Bar Counsel responded with the following email: Nick:

I am very concerned about the state of your practice. I received an email from Mr. Brown late yesterday. He says he terminated your representation several weeks ago but cannot get you to withdraw from the case. Until you withdraw, George Simonton will not talk to him. He is anxious to move his case along but is stalemated by your failure to withdraw. According to Mr. Brown, your assistant told him the papers are ready for you to sign. Please get the motion filed today and, if possible, obtain Judge Cranfill's signature on the order. Please provide me with an electronic copy of the file-stamped motion and the order, and provide an electronic copy to both George Simonton and Mr. Brown. Mr. Brown's email address is DaBrown@.FirstBankof Wvoming.com. Please do this today.
I have a new complaint from Jennifer Ribera which will go out to you in today's mail. In the past two weeks, I have received calls from Judge Cranfill and Judge Fenn regarding your neglect of client matters. It is my understanding that both judges intend to submit formal reports to me. When I have them, I will open new investigations.
I strongly encourage you take immediate steps to rectify these problems, which appear to be bad and getting worse. I will grant you an extension until Monday to answer Mr. Brown's complaint, but please attend to withdrawing from his case today.
Mark

OBC 047.

         16. Respondent complied with Bar Counsel's demand, filing a motion to withdraw on March 11, 2016. OBC 051. On March 15, 2016, Bar Counsel received Respondent's response to Brown's complaint. OBC 057. Respondent contended that he delivered Brown's financial information to Simonton. He viewed Judge Cranfill's decision to prohibit him from offering witnesses and exhibits as harsh and unwarranted, but said he did an outstanding job at trial, concluding, "I would submit that I excelled under the unique circumstances of this case, the odd orders, and the Court's rulings. I do not believe my performance in this case arises to a violation of our rule of professional conduct." OBC 059.

         17. Bar Counsel sent a copy of Respondent's response to Brown and invited further comments from him. OBC 073. Brown acknowledged that Respondent had done a good job in the courtroom, but complained again about his lack of responsiveness, including, most recently, his foot-dragging on the motion to withdraw. OBC 093.[1]

         No. 2016-038 Jennifer Ribera, Complainant

         18. Beginning in 2012, Respondent represented Jennifer Ribera, who had been involved in never-ending post-decree motions and petitions following her 2006 divorce in Park County. See Knopp v. Knopp Docket Sheet, OBC 125 - OBC 132. Respondent eventually filed a motion for modification of child custody, child support and visitation on Ribera's behalf in August 2013. OBC 129. By that time, the case had been assigned to Judge Skar. George Simonton represented the defendant/ex-husband. The case limped along for three years, with Respondent voluntarily dismissing the 2013 petition in April 2014 and refiled it as a petition for modification of child support in July 2014. Respondent was non-compliant with discovery which led to several motions to dismiss, motions to compel and for sanctions. When Respondent failed to appear at an August 17, 2015, motion hearing, Judge Skar dismissed Ribera's petition with prejudice and awarded sanctions in the amount of $4, 161.58 to Simonton's client. Simon-ton then filed motions for contempt, which resulted in an order of contempt being issued against Ribera in March 2016.

         19. Ribera's complaint against Respondent was received by the Office of Bar Counsel on March 7, 2016. OBC 113. Ribera complained that Respondent failed to keep her informed of the status of the case, and that she did not learn about the August 17, 2015, hearing until August 14, 2015, when Ribera received emails from Respondent's office manager requesting that Ribera complete an updated financial affidavit and transmitting interrogatories and requests for production that Ribera had not seen before. Ribera spoke with Respondent later on August 14, who told her that he had obtained a continuance of the August 17 hearing due to a scheduling conflict on his part. Ribera reported that after the August 17, 2015, telephone conversation with Respondent, she had no further contact with him until January 2016, when Ribera received a copy of Simonton's motion for contempt. During that five-month period, Ribera says she made countless attempts to contact Respondent in the form of phone calls, scheduled phone appointments and emails, all to no avail, with the exception, of a brief, unhelpful telephone conversation on November 25, 2015, described in more detail below. OBC 115.

         20. Unable to connect with her lawyer, Ribera contacted the Court on November 24, 2015, and obtained a copy of the docket sheet, which provided limited information about the case. Ribera had a brief conversation with Respondent on November 25, 2015: "[H]e said he had not had a chance to review my file was 'clueless as to any developments' and that he would call me with answers by the end of business that day ... he did not. I have not heard from him since." Ribera also received an email from her ex "referencing a punitive judgment of over $4100.00 that was 5 days past its due date. It was the first I had heard of any judgment against me." OBC115.

         21. In February 2016 Ribera (with her mother's help, as Ribera resides in Virginia) was able to obtain copies of portions of the Court file. Ribera learned that Respondent's last-minute request for a continuance of the August 17, 2015, hearing was not granted, that her case was dismissed and that sanctions were awarded against her. She noted several missed deadlines by Respondent, and that an additional $700 in sanctions had been assessed and paid by Respondent. Ribera learned that a hearing had been set on Simonton's motion for a finding of contempt for March 7, 2016. In her March 7, 2016, complaint against Respondent, Ribera reported, "Mr. Beduhn has not answered several emails and specifically this week missed phone appointments March 3 and March 4. The office secretary had communicated to me that he knew that I had called, that there was a hearing on Monday March 7 and ensured that he had promised to call me. 1 did not receive any call." OBC 115 - OBC 116.

         22. With her complaint, Ribera submitted several pages of emails demonstrating her unsuccessful efforts to communicate with Respondent over a period of many months. See OBC 116-OBC 124.

         23. On March 11, 2016, Bar Counsel sent a copy of Ribera's complaint to Respondent and asked him to respond by March 25, 2016. OBC 135. On the afternoon of March 25, 2016, Bar Counsel received an email from Respondent requesting an extension to April 8, which Bar Counsel granted. OBC 139. The month of April passed with nothing from Respondent. Meanwhile, two more complaints were received, both from District Court Judges. On May 4, 2016, Bar Counsel sent the following email:

Nick:
I am writing to follow up with you on several matters in which your response is overdue, including two complaints initiated by district court judges who were so concerned about your conduct they felt they had a duty to report it to my office. These include:
1. 2016-038 - by email dated March 25, 2016, you asked for an extension until April 8, 2016. The extension was granted, but I cautioned you not to request any more extensions. We have not received your response.
2. 2016-047 - your response was due on April 20, 2016. We have not received it.
3. 2016-056 - your response was due on May 2, 2016. We have not received it.
From my perspective, your conduct is harming your clients. There may be adequate explanations to some of these concerns, but you are not communicating with me. You clearly are not cooperating with my requests in multiple complaints against you. If I do not have full responses from you in the above-listed matters by 5:00 p.m. tomorrow, May 5, 2016, 1 will file a motion for your immediate suspension with the Wyoming Supreme Court pursuant to Rule 17 of the Wyoming Rules of Disciplinary Procedure.

OBC 140. Upon receipt of the foregoing email, Respondent called and asked if he could have until Monday, May 9, 2016, to respond. Bar Counsel acquiesced. Id.

         24. In his response, Respondent complained about Judge Skar's refusal to continue the August 17, 2015, hearing due to a conflict with a hearing scheduled in a criminal matter that was pending in another court. He acknowledged he should have followed up to make sure the motion for continuance was granted. Respondent concluded his two-page response with the following:

Ms. Ribera and myself have worked together since 2012, and it is difficult and disappointing that this case was dismissed as it had been ongoing for months. As a result I may have violated Rule 1.1, 1.3 and 1.4 of the Rules of Professional Conduct. My communication with my client was attempted to be handled through my office without my personal oversight, and I believe I may have caused prejudice to my client. Additionally, because discovery requests were not responded to in a timely manner, and were received by opposing counsel, there was a payment of approximately $700 in legal fees. I have done everything I can at this point to assist Ms. Ribera including paying these fees, the new attorney's fees, and by setting her up with Basin Child Support to continue to pursue her modification for child support. The only thing that I can do to assist her is what I have done to this point.

OBC 142.

         25. Bar Counsel sent a copy of Respondent's response to Ribera, who replied that though Respondent indicated in his response that all sanctions were paid out of his own pocket, Respondent did not actually pay the $4, 161.58 judgment until after the date of Respondent's response to the bar complaint. Ribera complained that although everything was Respondent's fault and Respondent eventually paid the judgment, it is Ribera's name that appears on the contempt order. She wonders whether that finding will haunt her in future proceedings. OBC 144.

         26. At this point, Bar Counsel was also investigating two complaints received from district court judges.

         No. 2016-047 Hon. John G. Fenn, Complainant

         27. On April 6, 2016, Bar Counsel received a letter from Judge Fenn reporting Respondent's failure to appear at a scheduled pretrial conference in a criminal matter on March 10, 2016. Judge Fenn called Respondent, who "took full responsibility and I accepted his explanation." Judge Fenn's complaint continues:

Ordinarily, I would not necessarily find these events to be reportable, and I am hesitant to do so under these circumstances. However, this is the second instance in which this has happened in the past year. The first was a nearly identical situation. Pursuant to the Rules of Professional Conduct Rule 8.3 comment 1, this may indicate a pattern that only a disciplinary investigation may uncover. In reporting to you, I would like to emphasize that Mr. Beduhn took full responsibility, was very respectful, and there was no detriment or prejudice to his client. I have had Mr. Beduhn appear before me on several occasions and other than these two instances, I have always found him to be adequately prepared and competent.

OBC 151.

         28. In his response, Respondent said his failure to appear resulted from his staffs failure to get the scheduling conference on the calendar, which was the problem with his first missed appearance as well. He took full responsibility for missing both court appearances. OBC 159.

         No. 2016-056 Hon. Steven Cranfill, Complainant

         29. On April 12, 2016, Bar Counsel received a letter from Judge Cranfill reporting Respondent's conduct in two cases. The first was Darold Brown's case (see No. 2016-030 above). The second was a different custody dispute, Northen v. Beemer, in which Respondent represented Tanner Beemer, the father. Judge Cranfill summarized his concerns as follows:

Both Park County cases involved divorces. Both divorces involved disputed custody. In both cases, Mr. Beduhn represented the father. In both cases, Mr. Beduhn failed to timely file a pretrial memorandum. In both cases, Mr. Beduhn was sanctioned by not allowing any witnesses other than his client to testify and no introduction of evidence. In one case, a motion to compel evidence was also pending and Mr. Beduhn consented to pay opposing counsel's fees for having to bring the motion.
During both trials, I believe Mr. Beduhn did a good job of presenting his client's position; however, both cases resulted in primary custody being granted to the opposing party.

OBC 171.

         30. In response, Respondent protested that Judge Cranfill was overly harsh in assessing sanctions in both cases. Respondent indicated that he was pursuing an appeal of the Northen v. Beemer decision on behalf of Beemer. As he did in Darold Brown's case, Respondent argued that he represented Beemer competently and effectively. OBC 175 - OBC 177.

         31. After receiving Respondent's response, Bar Counsel obtained copies of relevant pleadings from the Court and looked in to the status of the Northen v. Beemer appeal. As in the Brown v. Brown case, Judge Cranfill had entered an order precluding Respondent from calling witnesses or offering exhibits. OBC 231. Judge Cranfill also awarded sanctions to the opposing party in the amount of $575.85. OBC 244. Respondent filed a notice of appeal on April 28, 2016, in which he stated, "Plaintiff has ordered and made proper arrangements for payment of the transcript to be prepared in this matter." OBC 258. The file also contained an affidavit dated June 29, 2016, from court reporter Barbara Morgenweck, which described her efforts to obtain a $500 down payment from Respondent to prepare the transcript, Respondent's assurance that the money was on its way and Respondent's failure to deliver on any of those assurances. OBC 260.

         32. Respondent failed to follow through on paying the transcript cost, resulting in a delay in the docketing of the appeal. When the Clerk of the Wyoming Supreme Court finally docketed the matter, a due date of August 24, 2016, was established for Respondent's brief. OBC 262. On August 23, 2016, Respondent filed a motion for stay, requesting additional time for the court reporter to prepare a transcript. OBC 264. However, Respondent again failed to pay the cost of the transcript. On September 7, 2016, Chief Justice Burke issued an order denying Respondent's motion for stay, stating, "This Court finds any delay in production of the transcript at issue was caused by [Respondent], who failed to timely follow through on paying the court reporter for the transcript." Respondent was ordered to file h ...


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