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Board of Professional Responsibility v. Mears

Supreme Court of Wyoming

June 5, 2018

TRACI E. MEARS, WSB# 6-4166, Respondent.


          E. JAMES BURKE Chief Justice [*]

         [¶1] 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.

         I. BACKGROUND

         [¶2] 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.[1]

         [¶3] 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.

         [¶4] 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.

         [¶5] 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 Conduct.

         [¶6] 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. Mears with:

(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] Jackson residence.
(d) Misrepresenting what [she] did with the money she received from [Dr.] Cushner.

         [¶7] 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.


         A. Disciplinary Procedure

         [¶8] "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.

         Rule 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.

         B. Rule 8.1: False Statements

         [¶9] 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.

         1. E-mail Messages

         [¶10] 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.

         [¶11] 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.

         Dr. 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."

         [¶12] 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."

         [¶13] 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 Counsel.

         [¶14] 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.

         2. Veterinary Bills

         [¶15] 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.

         [¶16] 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.

         [¶17] 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 ...

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