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Board of Professional Responsibility v. Pearce

Supreme Court of Wyoming

August 14, 2019

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
MICHAEL J. PEARCE, WSB # 7-4838, Respondent.

          ORDER OF ONE-YEAR SUSPENSION

          MICHAEL K. DAVIS Chief Justice

         [¶ 1] This matter came before the Court upon the Board of Professional Responsibility's "Report and Recommendation for One-Year Suspension," filed herein July 30, 2019, pursuant to Rule 12 of the Wyoming Rules of Disciplinary Procedure (stipulated discipline). After a careful review of the Report and Recommendation and the file, the Court finds the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Michael J. Pearce should be suspended from the practice of law for one year. It is, therefore, [¶ 2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's "Report and Recommendation for One-Year 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 One-Year Suspension, Respondent Michael J. Pearce shall be, and hereby is, suspended from the practice of law for one year, with the period of suspension to begin August 22, 2019; 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 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 reimburse the Wyoming State Bar the amount of $100.00, which represents the costs incurred in handling this matter, as well as pay an administrative fee of $1, 500.00. Respondent shall pay the total amount of $1, 600.00 to the Wyoming State Bar on or before January 1. 2020. 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 is authorized to issue the stipulated press release contained in the "Report and Recommendation for One-Year Suspension''; and it is further

         [¶ 7] ORDERED that the Clerk of this Court shall docket this "Order of One-Year Suspension," along with the incorporated "Report and Recommendation for One-Year Suspension" 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 One-Year Suspension," along with the incorporated "Report and Recommendation for One-Year Suspension" 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 One-Year Suspension" to be served upon Respondent Michael J. Pearce.

         [¶ 10] DATED this 14th day of August, 2019.

         In the matter of Michael J. Pearce, WSB#7-4838 Respondent

         WSB No. 2018-073 & WSB No. 2019-039

         REPORT AND RECOMMENDATION FOR ONE-YEAR SUSPENSION

         THIS MATTER came before the Board of Professional Responsibility ("Board" or "BPR) on the 22nd day of July, 2019, for consideration of the parties' stipulation for a one-year suspension 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 conditional 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 2012 and maintains a solo practice in Laramie, Wyoming. Respondent is the subject of two disciplinary complaints, one from a client and one in the form of a report submitted by the presiding judge in a different matter.

         2. In the underlying matter involved in No. 2018-073, Respondent's failure to exercise competence and diligence in representing a client in a personal injury matter resulted in the client's case being dismissed with prejudice. Respondent admits that he violated Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication with client), and 8.4(c) (misleading statements) in representing the client.

         3. In the underlying matter involved in No. 2019-039, Respondent was issued a written reprimand by the presiding district court judge for violation of numerous provisions of a scheduling order and for numerous violations of Rule 801 (standards of professional behavior) of the Uniform Rules for District Courts of the State of Wyoming. Respondent admits that he violated Rules 1.1 (competence), 1.3 (diligence), 3.4(c) (failure to follow the rules of the tribunal) and 8.4(c) (misleading statements) in the conduct for which the presiding judge reprimanded him.

         4. In WSB No. 2018-073, Respondent represented the plaintiff in a personal injury matter against parties allegedly responsible for a motor vehicle accident.

         5. Defense counsel moved to dismiss the case without prejudice after learning that most of the plaintiffs medical expenses arising from the motor vehicle accident were paid by workers' compensation. Defense counsel's motion was based upon Respondent's failure to provide notice of the lawsuit to the Workers' Compensation Division Director and to the Attorney General as required by W.S. § 27-14-105(b).

         6. Respondent did not contest the motion and on September 28, 2017, an order dismissing the case without prejudice was entered. The order expressly provided, "Plaintiff shall have one year to re-file the action, pursuant to W.S. § 1-3-118."

         7. The complaint Respondent's client submitted to the Office of Bar Counsel in late June 2018 stated, "Hired Mike Pearce a couple years ago to handle my personal injury case. I can't get him to answer the phone, return calls, letters or emails for over a year. I'd like him to either get to work or withdraw and return my file, preferably withdraw. He's a poor excuse for an attorney."

         8. Respondent filed a reply to the client's complaint with the Office of Bar Counsel in which he stated:

I am responding to the allegations put forth to you against me by [Respondent's client]. I have attempted to reach him several times. The last we spoke, I provided him with an update on his case, and there have been no more updates. I am sorry that he feels I have not been responsive, though I have given him all necessary and timely information. I have sent messages to [email address]. I am happy to reach out to him ASAP again to move forward in whatever way he wishes.

         Respondent did not disclose in his initial response that the lawsuit had been dismissed in September 2017.

         9. Upon receipt of a copy of Respondent's reply to the complaint, Respondent's client wrote to Bar Counsel and insisted that he had received no updates on the case after its initial filing in February 2017 and had "no idea of where this case stands, what deadlines may or may not have been met, etc."

         10. Following receipt of the client's response, Bar Counsel prevailed upon Respondent to contact his client and get the case back on track.

         11. On July 18, 2018, Respondent sent the following email to his client:

My apologies we have missed each other. However, I understand you would like your file back, and though I am happy to send it to you, sorry it came to this.
I explained to you or your wife several months ago that due to procedural conditions I was not aware of at the time of filing, we had to dismiss the claim but have one year to refile. That runs in September. My suggestion would be for me to refile and allow you to substitute another attorney if you would like. That would ensure that time is honored and not rush another attorney. Of course, I would be happy to see it through at that point, too, but I will leave that up to you.
Please advise your intention on how you would like to handle the matter.

         12. Upon receipt of Respondent's email, the client forwarded it to Bar Counsel, insisting that he was unaware that the case had been dismissed.

         13. At this juncture, Bar Counsel contacted the court and obtained a copy of relevant pleadings - the complaint, the motion to dismiss and the order of dismissal. Upon review of those documents, Bar Counsel learned that the reason for the dismissal was Respondent's failure to notify the Director of the Workers' Compensation Division and the Attorney General's office of the lawsuit as required by W.S. § 27-14-105(b).

         14. On October 17, 2018, Respondent sent his client an email indicating that the case had been refiled. On October 18, 2018, Respondent refiled the same complaint as the one Respondent had filed in early 2017. The new case was assigned a new civil action number. Unfortunately, the refiling was accomplished after the September 28, 2018, refiling deadline.

         15. On October 31, 2018, the Court granted defendants' motion to dismiss the first lawsuit with prejudice. The motion had been filed October 4, 2018. Respondent did not inform his client of defendants' motion to dismiss the first case with prejudice, nor of the order of dismissal with prejudice.

         16. Service of the complaint in the new case was not obtained upon the defendant until March 29, 2019. On April 11, 2019, defense counsel filed a motion to dismiss the new action with prejudice. Respondent did not inform his client of the defendant's motion to dismiss the new case with prejudice.

         17. On April 25, 2019, the client sent Respondent the following email:

Mike:
I've been trying to reach you regarding the lawsuit, the court tells me [the defendant] filed a motion to dismiss. Have you or are you doing anything about that? Let me know please, I think by now you know I'm not going to let it go. I realize you have some personal problems but I have problems as well which is why I hired you in the first place. This accident changed my life Mike and not in a good way, I've got 5 kids I'm raising and am doing it with permanent back and nerve damage. Please get your act together and take care of this!

         18. Respondent responded, "The response is due Tuesday and I am working on it now." Respondent filed the response to the defendant's motion to dismiss on May 1, 2019. At this time, the motion is pending and has not been set for hearing.

         19. In WSB No. 2019-039, Respondent represented the plaintiff in an action in district court. On March 18, 2019, the presiding judge issued a reprimand to Respondent based upon Respondent's failure to comply with filing deadlines in the case and his failure to make proper service of pleadings if filed upon defense counsel. The presiding judge sent a copy of the reprimand to Bar Counsel, who initiated an investigation and subsequently filed a formal charge.

         20. The Board finds, with respect to the two matters encompassed by the Stipulation and Affidavit, that there is clear and convincing evidence of Respondent's to violations of Rule 1.1 (competence) Rule 1.3 (diligence), Rule 1.4 (communication with client), Rule 3.4(c) (failure to follow ...


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