Comment Received
We
are a group of Wyoming attorneys that are troubled by the recent state
of discipline in Wyoming. We are also troubled by the decision to
appoint Mark Gifford to handle discipline, and more troubled by the
decision to retain him in that position after real concerns regarding
his conduct have been raised. In addition to local anecdotal incidents
shared by members of the bar, the conduct and allegations cataloged in
the website, www.tryrannyofthebar.org,
have pushed us to write this email and collectively ask you to fix the
problems with the Wyoming State Bar Disciplinary System before those
problems increase, which they are bound to do.
We are a small
state with a small attorney population. Despite that, we fear that
Justices on the Wyoming Supreme Court, volunteer attorneys on the Board
of Professional Responsibility, and volunteers on the Peer Review Panel
may be out of touch with the prevailing concern of Wyoming bar members
over bar counsel's behavior and the escalating spectrum of attorney
discipline. We say out of touch, but we do not believe the court, the
BPR, and the PRP are ignorant of the problem. The last three issues
of the Wyoming Lawyer have all offered articles defending the conduct of
bar counsel and offering explanations for why the rapid increase in
attorney discipline makes sense. The bar issued a response to the
anonymous emails sent to the bar members regarding Gifford, there are
two blogs dedicated to airing concerns with bar counsel, and now the
latest concern comes from www.tyrannyofthebar.org.
The explanations of the state bar and the over-explaining by the court
of the reasons to assert jurisdiction over out of state lawyers in the
latest disciplinary case, BPR v. Brimley, will not remove the concerns
Wyoming attorneys have with discipline and with bar counsel because
their concerns are valid.
The incidence of discipline has
increased. That alone would garner the attention of most attorneys.
The increase in frequency of discipline is not the only or greatest
concern. More troubling is the increase in severity of discipline along
with the increase in inconsistency of discipline. The discipline of Ed
Moriarity proves this point. According to the Arizona decision,
Moriarity intentionally engaged in fraud, knowingly filed pleadings
without a basis in fact, and caused opposing parties to needlessly spend
$185,000 on legal fees which he and his firm were ordered to repay.
Moriarity agreed to disbarment in Arizona. In response to Moriarity's
admission of this conduct, the BPR and the Wyoming Supreme Court
imposed a public censure. We share the view that Arizona disbarment was
too severe. But in relation to the recent discipline meted out by
Gifford and BPR, and then approved by the Wyoming Supreme Court the
public censure of Moriarity is irreconcilable. Sheridan attorney Clay
Jenkins appeared in court under the influence of alcohol. He admitted
his conduct and received a one year suspension. Casper attorney Stacy
Casper admitted to overcharging a client who failed to pay her and
received a thirty day suspension. Cheyenne lawyer William Bagley was
found to have engaged in six rule violations, none of which caused
financial harm near that caused by Moriarity and received a 90 day
suspension. In contrast, Moriarity engaged in willful misconduct,
fraud, caused phenomenal disruption of people's lives, caused $185,000
in needless fees and received a public censure. Moriarity's discipline
may be appropriate, but if so the other discipline was wildly severe.
The
point of this being that bar counsel can guide and control the
discipline process. Moriarity was charged by bar counsel with a single
violation of Rule of Professional Conduct 3.1. A lawyer not on good
terms with Gifford would have also been charged with a violation of Rule
3.3 (Candor to the Court) and 8.4(c) (misconduct and fraud.) If you
actually read the Arizona opinions and news stories, you will conclude
the conduct of Moriarity was no less severe in many regards than that of
Andrea Richard. Richard received a 3-year suspension. The only way to
reconcile these diverse impositions of charging and punishment is that
Gifford favors certain respondents and disfavors others. The truth is
likely that Gifford simply does not charge those he favors. Attorney
discipline should be designed to be consistent, provide guidance, and
return the attorney to practice if that is their wish. Attorney
discipline should generally not be severe as most cases are cases where a
mistake was made. A mistake in process or judgement that any attorney
could make. At present, Wyoming attorney discipline suggests a police
like state where lawyers turn in each other over conduct that should be
corrected with a phone call and good and bad lawyers alike fear the
power and personality of Gifford. With the exception of Joe Teig's
article, we have not heard one lawyer state the system is fair. This is
the system you have allowed to be created.
While
Joe Teig takes great effort to explain the supervision of bar counsel
in the recent edition of the Wyoming Lawyer, you must acknowledge that
the PRP is a volunteer organization with remote oversight. Each member
of the PRP, and the BPR, is subject to inquiry and scrutiny in their law
practice by Gifford and for that reason their ability to engage in
genuine oversight of Gifford is circumspect. That the PRP approved the
filing of the formal charge against California lawyer Andreas Pour
proves the lack of actual oversight. To condone bar counsel's filing of
this formal charge is misguided. Mr. Pour is alleged to have counseled
his sister on.... who knows what. The essence of the charge is that he
assisted. He is not alleged to have signed any filing or pleading. He
did not confirm, in response to bar counsel's letters asking for
information, that he undertook any act. Pour told Gifford that his
interaction with his sister was a private matter. In response, Gifford
filed a formal charge. If a Wyoming lawyer in general practice filed a
complaint on such thin, or possibly non-existent evidence, his complaint
would be met with a Rule 11 motion, a finding of sanctions, and likely
the allegation of misconduct by bar counsel. Gifford certainly does not
understand what is meant by the legal term pleading and Pour correctly
points this out to anyone who reads his website. Gifford's conduct is
beyond any logical explanation and it is unintelligent conduct from an
intelligent attorney. We have concluded, after deliberate reflection,
that Gifford is not fit for the job of bar counsel and not likely fit
for any job as a prosecutor. He lacks the element of understanding and
compassion to do the job.
Gifford was a good civil lawyer but in
that arena he operated with checks and balances. He could throw a fit
with other counsel but a jury would not tolerate such conduct. More and
more it appears the PRP and the BPR give Gifford carte blanche to do as
he pleases. One of the commenters on the Wyoming bar watch blog said
the BPR is a rubber stamp of whatever Gifford wants and it is starting
to appear that such criticism is largely accurate. Additionally, the
attorneys who know Gifford shake their heads at the fact that a person
with such an ethically checkered background is now in charge of
supervising the ethical conduct of other attorneys. The position of bar
counsel is immensely powerful and Gifford can decide to charge or not
to charge. Gifford can craft the way he makes allegation and how he
paints the conduct. For Moriarity, he does so in a positive light. For
others, in the worst light possible. Gifford takes the shotgun
approach to charging respondents. There are no checks and balances to
who he decides not to charge and the conduct he finds unethical by one
attorney he overlooks in another.
The inconsistency of
discipline, the favoritism offered friends, the extreme punishment given
to others, the stories and rumors of the misery bar counsel is causing
in his investigations, and his targeting of those lawyers who do not
subscribe to his viewpoint is appalling, shameful, and downright
embarrassing to our state bar and nothing is being done by the BRP, the
PRP, or the Wyoming Supreme Court to solve this problem. The attorneys
and public of Wyoming are not well served by ignoring the problems with
discipline and bar counsel. The outing of his conduct will increase and
so will its publicity. You are out of touch if you do not know that
Wyoming attorneys are discussing the absurdity of wasting resources on
charging Pour. Attorneys will be dissuaded from practicing in Wyoming
and the value of discipline will be lost because it will be viewed as
nothing more than bar counsel's vindictive conduct. If this conduct is
not fixed, the Wyoming Supreme Court will lose credibility.
We
are writing anonymously. There was much debate amongst us, and to a
measurable distance beyond our small group, with the penning an
anonymous letter. We dislike it. We also, to the person, recognized
Gifford's capability of vindictive conduct. All of us know him.
Several of us have worked with and against him and we have witnessed
what could be charitably described at petty conduct when he is
challenged. Our first version of this email had each of our names
attached at the bottom. That is the way we should be able to speak.
But it is clearly not the way anyone can speak about Gifford if they
intend to remain free of the disciplinary process.
The Wyoming State Bar is in trouble and it is not the time for you to ignore it.
