Facts

Please see the note below from BarExec. The grant of immunity for all involved in the attorney discipline process, including bar counsel, has been part of the Disciplinary Code for more than 10 years. In addition, Rule 6 of the Rules Governing the Wyoming State Bar grants immunity from suit to officers, commissioners, employees, and any other agents of the Wyoming State Bar for all conduct in the course of their official duties. In other words, the grant of immunity to Bar Counsel is not new.

markgiffordwybar:

COMMENT RECEIVED
“no other attorney in Wyoming enjoys such a benefit. Wyoming judges, prosecutors, and attorneys of all types remain answerable and accountable for their conduct. ” and so should Mark. this is a hired position not an appointment to omnipotence.

COMMENT RECEIVED
Absolute immunity should not be given to Bar Counsel or any other public official. Prosecutors do have absolute immunity in many jurisdictions, and the facts of cases like Pottwattamie County (Iowa) v. McGhee show what a bad idea that is. In that case McGhee served 25 years in prison based a conviction obtained with evidence fabricated by the prosecution. When he found out about the prosecutors’ misconduct and tried to gain his freedom the prosecutor claimed absolute immunity and several years of litigation ensued focusing mostly on the immunity issue and less on the misconduct.
There are plenty of other examples of this sort of thing. We should always remember the wise words of Montestquieu who said in The Spirit of Laws, Book XI, Chapter 4, page 150 (Cosimo Classics edition, 2011): “…political liberty exists only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.”
Everyone who abuses power proceeds until they find the limits. Absolute immunity results in their being no limits.

COMMENT RECEIVED
Please remove me from this email list unless and until the authors are no longer anonymous and there is some semblance of something reminiscent of due process.

COMMENT RECEIVED

Absolute power corrupts absolutely. No person, position or authority should be above the law or the people. I may be wrong, but I believe the framers of the Constitution sought to prevent any single entity, authority or person from having no oversight or check again their authority. Giving Bar Counsel about immunity is akin to absolute power. I beg the Supreme Court to consider the proposed amendment as being g offensive to this great state and the will of the people.
Best regards,

COMMENT RECEIVED

Please show me where Mark Gifford has absolute immunity in the new rules he proposes, please. Thank you.

Please see the note below from BarExec. The grant of immunity for all involved in the attorney discipline process, including bar counsel, has been part of the Disciplinary Code for more than 10 years. In addition, Rule 6 of the Rules Governing the Wyoming State Bar grants immunity from suit to officers, commissioners, employees, and any other agents of the Wyoming State Bar for all conduct in the course of their official duties. In other words, the grant of immunity to Bar Counsel is not new.

markgiffordwybar

Facts

markgiffordwybar:

markgiffordwybar:

Let’s find out more.  Post a comment or a question.

How much is Gifford paid for being Bar Counsel

The current Disciplinary Code (in effect since 2003) includes an immunity provision in Section 10:

Any person, official, institution, or agency participating in good faith in any act required or permitted under these Rules, is immune from any civil or criminal liability that might otherwise result by reason of the action and no action thereon may be filed against such entity. For the purpose of any civil or criminal proceeding, the good faith of any person, official or institution participating in any act permitted or required by these rules shall be presumed.

The immunity provision that appears as Rule 26(a) in the new Rules of Disciplinary Procedure currently under consideration by the Wyoming Supreme Court reads as follows:

Privileges and Immunities.  Communications to Bar Counsel, the ROC, or the BPR relating to lawyer misconduct or disability and testimony given in the proceedings shall be absolutely privileged, and no lawsuit predicated thereon may be instituted against any complainant or witness.  Members of the BPR, members of the ROC, Bar Counsel, monitors, or any person acting on their behalf, and staff shall be immune from suit for any conduct in the course of their official duties.

The proposed immunity provision was borrowed from Colorado’s rule which has been in place for many years:

Persons performing official duties under the provisions of this chapter, including but not limited to members of the Committee and its staff; the Regulation Counsel and the Regulation Counsel’s staff; the members of the Bar and enlistees working under the direction of the Committee; and the hearing masters, shall be immune from suit for all conduct in the course and scope of their official duties.

The process of drafting the new rules consumed the first six months of this year.  The objective was to retain (but locate more sensibly) provisions of the Disciplinary Code that are working, and augment them with sensible procedures that are simply missing from the current rules.  The first draft was vetted with the Board of Professional Responsibility ( (BPR) and the Peer Review Panel (PRP) in early August.  Changes were made and presented to the Wyoming State Bar Board of Officers and Commissioners, who approved putting the rules out for comment to all members of the Wyoming State Bar in mid-August, with the comment period to close September 30, 2014.  Through August and into September, very few comments were received, despite the fact that a reminder email was sent to all members on September 15, 2014.  A September 29, 2014, expression of concern by a few attorneys prompted the decision to extend the comment period to October 24, 2014.  On October 16, 2014, Bar Counsel, Mark Gifford, presented a free, one-hour webinar on the new rules, for which nearly 500 members registered.  Following the webinar, numerous comments were submitted. 

On October 31, 2014, the BPR and the PRP (renamed the Review and Oversight Committee in the proposed rules) met by telephone conference call and reviewed all comments received in response to the proposed Rules of Disciplinary Procedure.  Several revisions were made in response to constructive comments from members.  With those changes, all members of the BPR and the PRP unanimously endorsed the final draft, and directed Bar Counsel to request that the Board of Officers and Commissioners forward the final draft to the Court with a recommendation for its adoption.  At their meeting held November 8, 2014, the Board of Officers and Commissioners approved sending the proposed rules to the Court with a recommendation for their adoption.  They are before the Court at this time.

markgiffordwybar