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Board of Professional Responsibility v. Knudsen

Supreme Court of Wyoming

July 3, 2019

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
GREGORY L. KNUDSEN, WSB # 5-2664, Respondent.

          ORDER OF DISBARMENT

          MICHAEL K. DAVIS, CHIEF JUSTICE

         [¶ 1] This matter came before the Court upon the Board of Professional Responsibility's "Report and Recommendation for Order of Disbarment Effective July 15, 2019," filed herein June 20, 2019, pursuant to Rule 12 of the Wyoming Rules of Disciplinary Procedure (stipulated discipline). The Court, after a careful review of the Report and Recommendation and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent Gregory L. Knudsen should be disbarred. It is, therefore, [¶ 2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's "Report and Recommendation for Order of Disbarment Effective July 15, 2019," 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 Order of Disbarment, Respondent Gregory L. Knudsen shall be, and hereby is, disbarred, effective July 15, 2019; and it is further

         [¶ 4] ORDERED that Respondent shall comply with the requirements of the Wyoming Rules of Disciplinary Procedure, particularly the requirements found in Rule 21 of those rules. That rule governs the duties of disbarred and suspended attorneys; and it is further

         [¶ 5] ORDERED that, pursuant to Rule 25 of the Wyoming Rules of Disciplinary Procedure, Respondent shall pay the Wyoming State Bar the amount of $50.00, which represents the costs incurred in handling this matter, as well as pay the administrative fee of $750.00. Respondent shall pay the total amount of $800.00 to the Wyoming State Bar on or before September 30, 2019. If Respondent fails to make payment in the time allotted, execution may issue on the award; and it is further

         [¶ 6] ORDERED that the Wyoming State Bar may issue the stipulated press release contained in the "Report and Recommendation for Order of Disbarment Effective July 15, 2019"; and it is further

         [¶ 7] ORDERED that the Clerk of this Court shall docket this Order of Disbarment, along with the incorporated "Report and Recommendation for Order of Disbarment Effective July 15, 2019," as a matter coming regularly before this Court as a public record; and it is further

         [¶ 8] ORDERED that, pursuant to Rule 9(b) of the Wyoming Rules of Disciplinary Procedure, this Order of Disbarment, along with the incorporated Report and Recommendation for Order of Disbarment Effective July 15, 2019, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

         [¶ 9] ORDERED that the Clerk of this Court cause a copy of this Order of Disbarment to be served upon Respondent Gregory L. Knudsen.

         [¶ 10] DATED this 3rd day of July, 2019.

         REPORT AND RECOMMENDATION FOR ORDER OF DISBARMENT EFFECTIVE JULY 15, 2019

         THIS MATTER came before the Board of Professional Responsibility ("Board" or "BPR") on the 18th day of June, 2019, for consideration of the parties' Stipulation for disbarment effective July 15, 2019 ("Stipulation"), submitted pursuant to Rule 12 of the Wyoming Rules of Disciplinary Procedure. The Board having reviewed the Stipulation, the accompanying Affidavit of unconditional admission ("Affidavit") and being fully advised in the premises, FINDS, CONCLUDES and RECOMMENDS as follows.

         Findings of Fact

         1. Respondent has been licensed to practice law in Wyoming since 1989 and maintains an active practice of law in Torrington, Wyoming, During the period relevant to the above-captioned disciplinary proceeding, Respondent also served as municipal court judge for the City of Torrington. 2. This matter arises from a sexual relationship between Respondent and a female divorce client ("Wife"). Wife originally engaged a different lawyer to represent her in the divorce. On March 5, 2018, Wife's first lawyer filed a divorce complaint on Wife's behalf against her husband ("Husband").

         3. Wife and Husband were married in 2001 and had two minor children, one bom in 2003 and the other born in 2008. The younger child was nine years old when the divorce action was filed. Child custody and visitation were at issue in the divorce, which was a contested matter that was not resolved until mid-September 2018, when a divorce decree was entered approving the parties' agreement that they would have shared custody of their minor children.

         4. Shortly after Wife's first lawyer filed the divorce complaint on her behalf, Wife decided to change counsel. Wife requested a refund of the unearned portion of a retainer she had paid to her first lawyer. On March 30, 2018, the sum of $1, 574.50 -reportedly, the unearned portion of the retainer Wife paid to her first lawyer - was deposited in Respondent's lawyer trust account.

         5. Respondent first met with Wife on April 9, 2018. Respondent did not enter into a written fee agreement with Wife but told Wife that he would try to keep the legal fees down because Wife was a close friend of Respondent's municipal court clerk. On April 10, 2018, Respondent filed an entry of appearance in the divorce case. Wife's first lawyer requested and was granted leave to withdraw on April 18, 2018.

         6. On or about May 10, 2018, Respondent began communicating with Wife via text messages which included frequent transmission of Graphics Interchange Format (GIF) images. Over the next six months, Respondent exchanged more than 11, 000 text messages and GIF images with his client.

         7. Within a few days after the two began texting, the content of their text exchanges, and the GIF images being sent by Respondent to Wife, included many that were explicitly, sexually suggestive. Initially, Wife expressed concern that her husband might discover the communications. Respondent texted, "You do erase our texts, right?" When it became clear to Wife that Respondent was proposing a sexual relationship with her, she texted, "You need to think of the consequences for me." Nonetheless, Respondent continued to send texts and GIF images that made clear his desire to have a sexual relationship with his client.

         8. The sexual relationship between Respondent and Wife began on or about May 20, 2018, during an evening visit by Wife to Respondent's residence. Within a few days, Respondent was sending texts to Wife urging her to visit Respondent's residence again. She responded, "I'm a big chicken and scared of getting caught." Respondent reassured her, texting, "I know. We will be careful. Your phone is the most dangerous thing. Always keep it clean and we will be fine."

         9. Respondent was aware that it was unethical to engage in a sexual relationship with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. Nonetheless, Respondent persisted in urging Wife to have sex with him, often in texts. Respondent was aware that Wife's nine-year-old child had frequent access to his mother's phone. Therefore, Respondent encouraged Wife to erase their texts.

         10. Beginning in late May 2018 and continuing through the settlement of the divorce and entry of a stipulated decree in mid-September 2018, Wife made frequent visits to Respondent's residence for the purpose of engaging in sex with him. Occasionally, Wife expressed anxiety that their sexual relationship would be discovered and would be detrimental to her divorce case. Nonetheless, Respondent did not relent in his efforts to carry on a sexual relationship with his client.

         11. Initially, Respondent kept records of his time on Wife's case. He prepared one billing statement, dated June 4, 2018, which was itemized as to the date, description of activity and amount of time spent on each activity. The billing statement reflected that from April 10, 2018, through May 29, 2018, Respondent spent 7.65 hours working on Wife's case, for which he billed her at the rate of $200.00 per hour, for a total of $1, 430.00.

         12. On June 4, 2018, Respondent withdrew the sum of $ 1, 430.00 from his lawyer trust account in payment of the June 4, 2018, billing statement, leaving a balance of $144.50 held in trust for Wife's account. (Respondent refunded this remaining balance to Wife in April 2019, shortly after Husband filed a complaint with the Wyoming State Bar). Respondent did not bill Wife for any time he spent on her case after May 29, 2018, which included preparing and serving written discovery requests; preparing and serving Rule 26 initial disclosures; preparing and filing a motion for protective order; representing Wife at a mediation; preparing and filing a property settlement and child custody agreement; preparing and submitting a decree of divorce; and preparing and filing a post-divorce motion for a QDRO order. However, Respondent's sexual relationship with Wife continued throughout his representation of her in the divorce action.

         13. Early in his representation of Wife, Respondent told her that he and the presiding judge assigned to the case were close friends and would have occasional, ex parte communications about the divorce case. For instance, on May 20, 2018, Wife texted Respondent, "I did say hello to [the presiding judge] today ... trying to brown nose a bit... ha ha ... I'm not sure if he knows me or not." Respondent texted back, "He knows you. I've made sure of that. He and I were talking about you briefly when we were standing outside the post office." Respondent elaborated, "We really were talking about your hearing. Just don't tell that to anyone. We aren't supposed to talk about cases outside the courtroom. But [the presiding judge] and I are very good friends." Wife responded, "I know you have said that... makes me feel better ..." In his Affidavit of unconditional admission submitted in support of the Stipulation, Respondent testified that his statements to Wife regarding ex parte communications with the presiding judge were untrue and made for the purpose of reassuring Wife. Respondent further stated, "[The presiding judge] takes his job very seriously and would never do that." 14. On March 21, 2019, Husband submitted a complaint regarding Respondent to Bar Counsel. Husband alleged that Respondent had violated Rule 1.8fl), W.R, Prof.Cond., by entering into a romantic relationship with Wife while Husband and Wife were still married.

         15. By letter dated March 28, 2019, Bar Counsel mailed a copy of Husband's complaint to Respondent, citing a possible violation of Rule 1.80 and requesting Respondent's written response. In his April 8, 2019, response to Bar Counsel's letter of inquiry, Respondent stated, "At no point through September 2018 did I have any sort of romantic relationship with [Wife]." Respondent stated that he had begun "dating" Wife during the period from October to December 17, 2018, and that he was not representing Wife at that time. Respondent stated, "I am well aware Rule 1.8 prohibits 'sexual relations' with a client unless such a relationship existed prior to representing the client. At no time did I violate Rule 1.8 of the Rules of Professional Conduct." In his Affidavit, Respondent unconditionally admitted that these statements were untrue and were made for the purpose of protecting himself from disciplinary sanctions and to protect Wife.

         16. On or about April 23, 2019, the Wyoming Division of Criminal Investigation ("DCI") executed a search warrant at Respondent's office and residence and obtained copies of Respondent's electronic communications with Wife. Both the warrants and the supporting Affidavits remain under seal, and the parties to the Stipulation are uncertain as to the basis for the issuance of the warrants. A DCI special agent provided Bar Counsel with more than 11, 000 text exchanges between Respondent and Wife. Bar Counsel provided Respondent and his counsel with copies of these electronic communications. Negotiation of the present, stipulated resolution ensued.

         17. Pursuant to Rule 12 of the Wyoming Rules of Disciplinary Procedure, Respondent has unconditionally admitted to violations of Rule 1.7(a) (conflict of interest), Rule l.8(j) (sex with client), Rule 1.16 (failure to withdraw from representation of client), Rule 3.4(a) (destruction or concealment of evidence), Rule 8.1(a) (knowingly making false statement of material fact to disciplinary authority), Rule 8.4(d) (conduct prejudicial to administration of justice) and Rule 8.4(e) (lawyer suggesting ability to improperly influence judge) of the Wyoming Rules of Professional Conduct. More specifically, Respondent has unconditionally admitted the following:

• Respondent violated Rule 1.7(a) by initiating and maintaining a sexual relationship with his client despite the obvious conflict between the interests of Wife in the divorce litigation and Respondent's personal interests in having sex with his client.
• Respondent violated Rule 1.80) by engaging in a sexual relationship with Wife when no consensual sexual relationship existed between them when the client-lawyer relationship commenced.
• Respondent violated Rule 1.16(a) by failing to withdraw from Wife's representation promptly upon commencement of a sexual relationship between them.
• Respondent violated Rule 3.4(a) by encouraging Wife to destroy or conceal their text exchanges and to conceal their sexual relationship despite their potential evidentiary value in the contested divorce case.
• Respondent violated Rule 8.1 (a) by knowingly making a false statement of material fact to Bar Counsel in his response to Husband's complaint.
• Respondent violated Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice as set forth herein. Respondent further admits that his conduct posed an immediate threat to the administration of justice.
• Respondent violated Rule 8.4(e) by suggesting or implying to Wife that Respondent had an ability to improperly influence the presiding judge on the case.

         18. Based upon the Stipulation and the Affidavit, the Board finds clear and convincing evidence of Respondent's violation of each of the foregoing Rules of Professional Conduct.

         19. In his Affidavit, Respondent expressed genuine remorse about his conduct and professed horror at his behavior in this matter. Respondent offered various explanations for his conduct in this matter, none of which is particularly germane to the Board's findings or recommendation.

         20. Prior to the present matter, Respondent has never been the recipient of professional discipline, 21. The parties stipulate, and the Board so finds, that Respondent's conduct violated several ABA Standards for Imposing Lawyer Discipline as set forth below.

         22. Specifically, Respondent's violations of Rules 1.7(a) (conflict of interest) and l.8(j) (sex with client) implicate ABA Standard 4.3, "Failure to Avoid Conflicts of Interest." Respondent violated this standard by fostering and engaging in a sexual relationship with Wife, knowing that Respondent's personal interests were adverse to Wife's interests in the divorce action, with the potential for serious injury to Wife should evidence of the sexual relationship come to the Court's attention in determining child custody and visitation issues as well as an equitable division of the marital estate.

         23. Respondent's violations of Rule 3.4(a) (destruction or concealment of evidence) and Rule 8.5(e) (lawyer suggesting ability to improperly influence judge) implicate ABA Standard 6.2, "Abuse of the Legal Process." Respondent violated this standard by encouraging Wife to destroy or conceal their text exchanges and to conceal their sexual relationship despite the potential evidentiary value of that information in the contested divorce case, and by stating or implying an ability to improperly influence the presiding judge.

         24. Respondent's conduct in violating Rule 8.1 (a) and other conduct set forth above also implicates ABA Standard 5.1, "Failure to Maintain Personal Integrity." Respondent violated this standard by engaging, on several levels, in intentional conduct involving dishonesty, deceit and misrepresentation that seriously adversely reflects on Respondent's fitness to practice.

         25. Respondent's violations of Rule 1.16 (failure to withdraw from representation) and Rule 8.1(a) (knowingly making false statement of material fact to disciplinary authority) implicate ABA Standard 7.0, "Violations of Other Duties Owed as a Professional." Respondent violated this standard by failing to withdraw from Wife's representation promptly upon fostering and entering into a sexual relationship with her, and in knowingly making a false statement of material fact to Bar Counsel regarding the existence of such sexual relationship.

         26. The parties stipulate, and the Board so finds, that under each of these ABA Standards, the presumptive sanction for Respondent's misconduct is disbarment.

         27. The parties stipulate, and the Board so finds, that Respondent's misconduct as set forth above was, at all times and in all respects, intentional.

         28. The parties stipulate, and the Board so finds, that Respondent's misconduct as set forth above caused actual or potential injury to Wife, ...


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