BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
TRACI E. MEARS, WSB# 6-4166, Respondent.
ORDER SUSPENDING ATTORNEY FROM PRACTICE OF LAW AND
JAMES BURKE Chief Justice [*]
This matter comes before the Court upon the "Report and
Recommendation for Nine Month Order of Suspension" for
Attorney Traci E. Mears, filed with this Court by the Wyoming
State Bar Board of Professional Responsibility (BPR) on July
27, 2017. We have independently considered the report and
recommendation, Ms. Mears's objections to the report and
recommendation, the Wyoming State Bar's response to her
objections, the record compiled by the BPR, and the oral
arguments of counsel. We conclude that Ms. Mears violated the
Wyoming Rules of Professional Conduct, and suspend her from
the practice of law in Wyoming for a period of nine months.
Ms. Mears is a private practitioner with offices and
residences in Jackson and Casper, Wyoming. She was admitted
to the Washington State Bar in 2000, where she practiced law
for a few years, and was admitted to the Wyoming State Bar in
2006, where she has practiced since. This matter was
commenced when Dr. Robert Cushner filed a complaint with the
BPR asserting that Ms. Mears was his attorney, and that she
had borrowed money from him but refused to pay it back as
agreed. He indicated that she "refuses to acknowledge
her responsibility to repay the loan or the gravity of
borrowing money from a client." Responding to Dr.
Cushner's complaint, Bar Counsel sent a letter to Ms.
Mears informing her that an investigation had been commenced
on alleged violations of Rule 1.8(a) of the Wyoming Rules of
Professional Conduct, which, in broad terms, prohibits a
lawyer from entering into a transaction with a client unless
specified conditions are met.
In her response, Ms. Mears stated that Dr. Cushner "was
never a client, " although "there was a brief
period of time in which we were friends." She
acknowledged that she had reviewed and commented on a
contract he was negotiating, but asserted that this was only
"a favor to a friend." Ms. Mears did not deny that
she had received money from Dr. Cushner, but explained that
his large dog . . . severely injured my much smaller dog
necessitating more than $7, 000 in veterinarian bills before
she finally passed as a result of the injuries caused by his
dog. Additionally, [Dr.] Cushner's dog also ruined
woodwork, doors, home furnishings, carpets and décor
at my two separate homes.
Bar Counsel continued to pursue the investigation, collecting
additional responses, information, and documents from both
Ms. Mears and Dr. Cushner. Ms. Mears clarified that she and
Dr. Cushner "were involved in a personal relationship
that began in the summer of 2014 and ended in December
2014." She also referred to their relationship as
"romantic." Both Ms. Mears and Dr. Cushner provided
copies of e-mail messages they had exchanged concerning their
relationship and the breakup of that relationship.
Although Ms. Mears insisted that neither she nor Dr. Cushner
had intended to create an attorney-client relationship, she
later recognized that "an attorney-client relationship
was created" when she reviewed the contract as a favor
to him. However, that attorney-client relationship was
limited and brief, terminating before the end of October of
2014. Dr. Cushner paid the money to Ms. Mears in November and
December of 2014. Because the money was paid after the
attorney-client relationship had ended, Bar Counsel
determined that Ms. Mears had not engaged in an improper
transaction with a client, and declined to charge her with
violating Rule 1.8(a) of the Wyoming Rules of Professional
However, based on information Ms. Mears had provided during
the investigation, Bar Counsel filed a formal complaint
charging her with violations of Rule 8.1, which prohibits a
lawyer from knowingly making a false statement of material
fact in connection with a disciplinary matter, and with
violations of Rule 8.4(c), which prohibits a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation. Specifically, Bar Counsel charged Ms.
(a) Falsifying the copies of the breakup emails [she]
produced to Bar Counsel.
(b) Misrepresenting that she incurred more than $7, 000 in
vet[erinarian] bills for injuries inflicted upon [her] dog by
[Dr.] Cushner's dog.
(c) Misrepresenting the extent and cost of repairs to [her]
(d) Misrepresenting what [she] did with the money she
received from [Dr.] Cushner.
Following a hearing on June 27 and 28, 2017, the BPR found
that Bar Counsel had presented clear and convincing evidence
that Ms. Mears committed several violations of Rules 8.1 and
8.4(c). As a sanction, it recommended a nine-month
suspension. It further recommended that Ms. Mears be required
to pay a $750.00 administrative fee as provided in Rule 25(b)
of the Wyoming Rules of Disciplinary Procedure, and to pay
$8, 149.06 to reimburse the Wyoming State Bar for the costs
of the proceeding as provided in Rule 25(e) of the Wyoming
Rules of Disciplinary Procedure. The BPR transmitted its
Report and Recommendation to this Court. Ms. Mears filed
timely objections, and the Wyoming State Bar filed a response
to her objections.
"The Court conducts a de novo review of all
aspects of attorney discipline." Board of Prof'l
Responsibility v. Custis, 2015 WY 59, ¶ 36, 348
P.3d 823, 832 (Wyo. 2015).
The Court will give due consideration to the findings and
recommendations of the BPR, but the ultimate judgment in
[disciplinary] proceedings . . . is vested in the Court.
Accordingly, the Court will examine the evidence, make
findings, determine whether there has been an infraction of
the Wyoming Rules of Professional Conduct, and impose the
discipline which the Court considers appropriate.
16(b), Wyoming Rules of Disciplinary Procedure. To impose
discipline, we must be satisfied that there is
"substantial, clear, convincing, and satisfactory
evidence" supporting the findings of the BPR. Board
of Prof'l Responsibility v. Richard, 2014 WY 98,
¶ 53, 335 P.3d 1036, 1052 (Wyo. 2014) (quoting
Mendicino v. Whitchurch, 565 P.2d 460, 475 (Wyo.
1977)). Clear and convincing evidence is that kind of proof
that would persuade a trier of fact that the truth of the
contention is highly probable. Custis, ¶ 42,
348 P.3d at 833.
Rule 8.1: False Statements
Rule 8.1 of the Wyoming Rules of Professional Conduct
provides that "a lawyer . . . in connection with a
disciplinary matter, shall not: (a) knowingly make a false
statement of material fact." Comment 1 to this Rule
specifies that the "duty imposed by this Rule applies to
a lawyer's own . . . discipline as well as that of
others." We find that Ms. Mears committed several
violations of Rule 8.1.
During the investigation, both Ms. Mears and Dr. Cushner
provided Bar Counsel with their copies of an e-mail message
he sent to her on December 29, 2014. The version provided by
Dr. Cushner commented on some difficulties in their
relationship, and included this language: "I do know
that you shouldn't [have] had me help you financially
when you knew this was coming. [T]hat is wrong. Please make
arrangements to pay me back." The version provided by
Ms. Mears included the same comments on difficulties in their
relationship, but omitted the quoted language.
Ms. Mears and Dr. Cushner also provided Bar Counsel with
different versions of an e-mail message she had sent to him
earlier in the day on December 29, 2014. Ms. Mears's
version discussed aspects of her relationship with Dr.
Cushner, and informed him that she
want[ed] to continue seeing you and getting to know you. But
this needs to happen without the stressors or pressures, real
and perceived, we have already been confronted with. We need
to know each other well enough to know that facing the
challenges and stressors is worth it together. We have not
had the time or opportunity to know this about each other.
Cushner's version included the quoted language, but the
two versions of these e-mail messages end differently. The
version presented by Dr. Cushner concluded: "I think
some time to reflect and consider these thoughts is
warranted. And time to decide if and how we go forward from
here." The version presented by Ms. Mears did not
include the language, "And time to decide if and how we
go forward from here." Instead, it concluded: "I
think some time to reflect and consider these thoughts is
warranted. I cannot continue in any form of friendship with
you and I truly hope you can respect that."
In her testimony at the hearing, Ms. Mears denied altering
the e-mail messages. However, the BPR found Ms. Mears's
testimony "untenable in that it is at odds with, and
contradicted by, other evidence." We agree. In a letter
written to Bar Counsel during the investigation, Ms.
Mears's counsel admitted that Ms. Mears had deleted some
language from the copy she provided of her e-mail message to
Dr. Cushner. She stated that Ms. Mears had created several
versions of the e-mail message, including one she had sent to
her therapist. She explained that "Ms. Mears believes
she printed some variation of this e-mail and stored it in
her hard file . . . and that is the version that was provided
to you." But despite this attempt to provide an innocent
explanation for altering the e-mail message, Ms. Mears's
counsel acknowledged that the version sent to Ms. Mears's
therapist "is the same as the email provided to your
office by Dr. Cushner."
We also note that Ms. Mears's version of the second
e-mail message is internally inconsistent. The concluding
statement that she could not "continue in any form of
friendship" with Dr. Cushner is at odds with the earlier
statement in the same e-mail message that she wanted "to
continue seeing" him and "getting to know"
him. The inconsistency indicates that Ms. Mears altered her
version of the e-mail message before providing it to Bar
It is particularly troubling that Ms. Mears deleted the
sentence "Please make arrangements to pay me back"
from the first e-mail message discussed above. At the time
Ms. Mears provided this e-mail message to Bar Counsel, he was
investigating the charge that she had improperly entered into
a transaction with a client. Dr. Cushner maintained that the
transaction was a loan, while Ms. Mears contended that it was
reimbursement for damage done by Dr. Cushner's dog. The
language deleted by Ms. Mears is consistent with Dr.
Cushner's claim that he had loaned her money. As the BPR
found, this alteration indicates that Ms. Mears
"intentionally tampered with and withheld evidence that
would appear to support [Dr. Cushner's] claim that the
payments he made to [her] were loans and not
reimbursements." We find clear and convincing evidence
in this record that Ms. Mears knowingly falsified copies of
e-mail messages produced to Bar Counsel.
As set forth in ¶ 3 above, Ms. Mears claimed that Dr.
Cushner's large dog severely injured her small dog and
that she incurred more than $7, 000.00 in veterinary bills as
a result of the injury. She further claimed that her dog
eventually passed away as a result of the injuries caused by
his dog. She claimed that Dr. Cushner gave her money as
reimbursement for the damage caused by his dog. At the
hearing, she testified about these claims, and the BPR
received into evidence copies of several veterinary bills
that purported to support Ms. Mears's claims.
Having reviewed this evidence, we agree with the BPR that Ms.
Mears's claims "that she incurred more than $7,
000.00 in veterinary bills for her small dog, and that the
dog eventually succumbed to injuries inflicted by [Dr.
Cushner's] larger dog, are demonstrably untrue." All
of the veterinary bills produced by Ms. Mears bore dates in
2015, after she had broken off the relationship with Dr.
Cushner near the end of 2014. The veterinary records do not
reflect any injury inflicted by a larger dog during the
period she and Dr. Cushner were in a relationship.
Ms. Mears indicated that the stress of being around Dr.
Cushner's larger dog was causing her smaller dog to have
seizures, but the veterinary records indicate that her dog
began having seizures in May of 2014, several months before
she met Dr. Cushner. She also said that her dog died from
injuries inflicted by Dr. Cushner's dog. However, the
veterinary records provided by Ms. Mears show that her dog
did not die until May of 2015, several months after her
relationship with Dr. Cushner ended. In addition, the
veterinary bills provided by Ms. Mears total just over $2,
200.00, far less than the $7, 000.00 she claimed. Ms. Mears
asserted that there was another veterinarian who treated her
dog and lost the records, but she provided no evidence from
any other veterinarian that any records had been ...