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Board of Professional Responsibility v. Dart

Supreme Court of Wyoming

May 31, 2018

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
N. JOSHUA DART, WSB # 7-4634, Respondent.

          ORDER OF PUBLIC CENSURE

          E. JAMES BURKE Chief Justice

         [¶1] This matter came before the Court upon a "Report and Recommendation for Order of Public Censure, " filed herein May 18, 2018, by the Board of Professional Responsibility for the Wyoming State Bar, pursuant to Rule 12 of the Wyoming Rules of Disciplinary Procedure (stipulated discipline). 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, and that Respondent, N. Joshua Dart, 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 Order of Public Censure, " 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 N. Joshua Dart is hereby publicly censured for his conduct, which is described in the Report and Recommendation for Order of Public Censure. The Wyoming State Bar may issue a press release consistent with the one set out in the Report and Recommendation for Order of Public Censure; and it is further;

          [¶4] ORDERED that, pursuant to Rule 25 of the Wyoming Rules of Disciplinary Procedure, Mr. Dart 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 $750.00. Mr. Dart shall pay the total amount of $800.00 to the Wyoming State Bar on or before July 31, 2018; 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 Order of Public Censure, as a matter coming regularly before this Court as a public record; and it is further

         [¶6] ORDERED that, pursuant to Rule 9(b) of the Wyoming Rules of Disciplinary Procedure, this Order of Public Censure, along with the incorporated Report and Recommendation for Order of 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, N. Joshua Dart.

         [¶8] DATED this 31st day of May, 2018.

          WSB NO. 2017- 052

          REPORT AND RECOMMENDATION FOR ORDER OF PUBLIC CENSURE

          Jason A. Neville, Chair

         THIS MATTER came before the Board of Professional Responsibility on the 8th day of May, 2018, for consideration of the Stipulation for Public Censure submitted pursuant to Rules 9 and 12 of the Wyoming Rules of Disciplinary Procedure, and the Board having reviewed the Stipulation, the accompanying affidavit of factual basis and being fully advised in the premises, FINDS, CONCLUDES and RECOMMENDS as follows.

         1. Respondent was admitted to practice in 2010 and is engaged in the active practice of law in Loveland, Colorado.

         2. In August of 2015 Respondent undertook the representation of a client in a defamation action in the Sixth Judicial District Court, Campbell County, Wyoming. The outcome of the case was largely dependent on the favorable testimony of one witness regarding an oral conversation the witness had with one of the defendants. At the time that Respondent and his client entered into a representation agreement, Respondent advised his client, verbally, that she would more likely than not lose any litigation that was brought. Respondent followed that communication with a letter in which he provided additional details about the likelihood of an unsuccessful outcome in the case. Nonetheless, the client desired to proceed with the case.

          3. After the lawsuit was filed, one of the two defendants counterclaimed against the client.

         4. In the months following commencement of the lawsuit, Respondent responded to written discovery requests from the defendants. In April 2016, one defendant filed a motion for summary judgment. Respondent advised his client to stipulate to the dismissal of claims against the moving defendant. The client reluctantly agreed, but instructed Respondent to aggressively pursue the case against the other defendant. By the end of June 2016, the client had paid Respondent more than $12, 000.00 in fees.

         5. In September 2016, the remaining defendant filed a motion to compel discovery, seeking answers to interrogatories regarding the specific defamatory statements that defendant allegedly made about Respondent's client. In October 2016, Respondent filed a response in which he stated, among other things, "Plaintiff has found that witness [sic] who would assist her in providing a more complete response persist in refusing to cooperate with her counsel and/or are claiming a lack of memory of the defamatory statements."

         6. On December 1, 2016, a telephonic hearing was held on the motion to compel. Due to a calendaring mix-up, Respondent did not attend. The judge granted the motion to compel, ordering Respondent's client to provide complete and specific answers to the interrogatories within ten working days of December 1, 2016. The judge also awarded attorney fees in the amount of $1, 291.00. Respondent did not inform the client of the attorney fee award against her.

         7. By the end of November 2016 Respondent had met with potential witnesses and by December 13, 2016, a decision with the client had been made that the necessary witness could not successfully be deposed about his oral conversation with the remaining defendant. On December 13, 2016, Respondent wrote to the defendant's counsel and told him, in relevant part, "In light of what appears to be the inability for my client to fully comply with the order on motion to compel, I have no choice but to seek permission to amend pleadings and remove the related claim." Thereafter, Respondent did not seek leave to amend the complaint to drop the defamation claim, which is what he was referring to in the letter.

         8. While Respondent conferred with the client concerning this decision and received her approval not to take the deposition of the witness, Respondent did not properly evaluate the legal significance of not being able to utilize that witness's testimony as it related to the claim for intentional interference with a business expectation. Respondent explains that his thoughts in this regard were also colored by the fact of the counterclaim against his client. Respondent failed to properly communicate with the client the significance of the motion seeking an order to show cause as to why the client had not produced the name of a corroborating witnesses in discovery. Respondent concedes that since neither the client nor Respondent ever identified a corroborating witness to support her claims, Respondent should have informed the client that the case should be dropped at that point.

         9. On January 9, 2017, the defendant filed a motion for sanctions for failure to comply with the order compelling discovery. The defendant sought dismissal of the complaint as the appropriate sanction.

         10. On March 30, 2017, an order was entered granting the defendant's motion for sanctions. The order dismissed the client's complaint. The judge also made an additional award of attorney fees in the amount of $1, 697.00. Respondent informed his client that her case had been dismissed and that the judge had found her liable for a portion of the defendant's fees, but did not tell her the amount. This was Respondent's first communication with the client since mid-December 2016. After Respondent's telephone conversation with the client, she filed a complaint against Respondent with the Office of Bar Counsel.

         11. In August 2017, the defendant filed a motion for order to show cause for the client's failure to pay attorney fees in the amount of $2, 938.00. Respondent did not inform the client of this motion.

         12. Throughout the period of Respondent's representation of the client, Respondent was experiencing severe personal difficulties and was seeking counseling from his pastor. During this period of time Respondent suffered from a number of medical issues. Respondent's pastor recommended that Respondent seek other medical treatment, and Respondent began medical treatment for depression in August 2017. Since that time, Respondent has been on a regular treatment of medication for depression. Respondent has continued counseling with a professional counselor and has entered into an agreement in which Respondent can be mentored on a monthly basis by a bankruptcy lawyer. Respondent feels that with this assistance and a focused effort to work through his personal problems he is making progress and is in a much better place psychologically and emotionally than when he was representing the complainant.

         13. Respondent is sincerely remorseful for his conduct in this matter. Looking back, Respondent realizes that his mistakes built upon one another and he could not bring himself to be honest with his client, who relied on Respondent to provide the level of representation for which she was paying Respondent and to which she was entitled. At the time these events occurred, Respondent was under tremendous personal stress and was not dealing well with his personal problems nor his practice.

          14. Respondent has restructured his practice because he recognized that he was not dealing well with the stresses of a sole practitioner litigation practice. The vast majority of ...


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