Don't Courts Decide Contract Disputes?

The Asay discipline, issued yesterday, reveals two problems with Mark Gifford in the role of bar counsel.  Mark Gifford is choosing who is right and wrong in a dispute that at its center is a contract dispute which should be decided by the court.  Gifford is forcing lawyers to litigate a bar dispute that should be a court dispute.  A lawyer like any citizen should be entitled to having  a court decide a contract dispute and not Gifford and a board picked by Gifford.  In the Asay discipline as well as several other cases it is clear that Mark Gifford is deciding who is right and wrong in a dispute that should be settled by the court.  Asay's client contended that the fee agreement for both cases was a contingency agreement.  Asay disagreed.  This is the very nature of a contract dispute and courts are to resolve contract disputes, or at least they were until Mark Gifford became bar counsel.  

Problem two is the high salary we as bar members are paying for precious little work by Gifford.  I recall that we are paying Gifford $150,000 a year plus retirement plus medical plus vacation ultimately meaning we the bar are subsidizing a salary of $180,000 or more for a job that does not require part time effort.  Gifford is handling less than a dozen cases a year and that is part time work at its most.  It is  time we return to an as needed bar counsel and pay for only what is required.   Paying Gifford $180,000 or more a year is costing every bar member money.  

The attorneys I know, including some judges, are concerned that legitimate misgivings with Gifford are being ignored or swept under the rug.  The Bar did not publicly address that members of the bar soundly expressed dismay with the office of bar counsel in the annual 2015 survey.  This all seemed swept under the rug.  I am dismayed with our bar and our Supreme Court.

     

Multiple Inconsistencies in Handling Bar Discipline

Multiple Inconsistencies in Handling Bar Discipline.

On February 24, 2016, the Wyoming Supreme Court issued a 9-month suspension of Cody attorney Laurence Stinson.   Rather than providing guidance to practitioner's, the bar's handling of this case and the court's approval raises troubling questions.  

Stinson reportedly offered to stipulate to discipline to avoid the imposition of significant  costs.  The Bar presumably rejected the offer and forced the matter to a hearing where substantially similar discipline was imposed but the bar was able to assess the fine in excess of $37,000.00.  This money goes directly to the bar and is used to pay, in part, bar counsel.  This is troubling because the prosecution of attorneys should not be a tactic used to increase the coffers of the state bar.  Since Mark Gifford ( #MarkGifford) assumed the duties of full-time bar counsel there have been many complaints that his tactics are directed more to justifying his extraordinary salary than seeking fairness in a result.   The BPR now appears to have taken a similarly misguided approach in rejecting a settlement, forcing a matter to hearing, and then imposing costs.  There should be a method for resolution outside of a full hearing that includes a conversation between a respondent and a hearing office.  According to reports of attorneys traversing the disciplinary system there is not such a method presently.  

Also concerning and discussed in summary in the decision is that bar counsel ( Mark Gifford #MarkGifford ) advanced allegations against Stinson unsupported by the evidence in the case and allegations that, according to the decision, no member of the BPR was capable of following. In making such allegation, Gifford undoubtedly forced Stinson to incur time and expense defending allegations unsupported by the evidence. There is no mention in the decision that  Gifford was sanctioned by the bar as any other attorney would have been.  This is particularly troubling.  Gifford has taken an extreme approach to discipline where any mistake, no matter how slight, is culpable and prosecutable.  Yet Gifford's approach to discipline, especially as revealed in the recent Stinson decision, is to allege a broad range of misconduct in hopes the BPR will find some allegation meritorious.  Shotgun allegations are disfavored by courts and should not be acceptable from bar counsel.  

Troubling is that the notification sent to bar members by the bar, undoubtedly written by Gifford.  The notification failed to state that the bar found the complainants, a Cody couple who ran a construction company, were unbelievable and their testimony discredited.  This is the first time that the bar has found a complainant untruthful and such a fact is remarkable and should have been noted by the bar.  There is little  explanation in the decision as to why the bar imposed discipline when the complainants were untrustworthy.  This incongruity has Wyoming attorneys further confused and distrustful of the disciplinary system.  

The decision further omitted any discussion as to why Stinson meted 9-months of suspension whereas the worse conduct by Ed Moriarity meted a public censure.  Attorneys are seeking reform in attorney discipline and significant inconsistency is one more troubling aspect of the attorney discipline.   The Wyoming State Bar ( #WyomingStateBar ) and the court need to to a better job in providing consistency.  As one commenter posted on Wyoming Bar Watch ( #WyomingBarWatch ), unexplained inconsistencies in discipline cause attorneys to question the purpose and value of discipline.  The Wyoming Supreme Court ( #WyomingSupremeCourt ) repeatedly asserts that the purpose of attorney discipline is to reform and not to punish.  That statement is unbelievable given the disciplinary history since Gifford assumed the job.  

For updated information, please visit wyomingbarwatch.blogspot.com.

NOTE FROM EDITOR:  Wyoming Bar Watch has received several recent articles and comments and will publish those articles at www.wyomingbarwatch.blogspot.com.   Also received were requests seeking clarification as to how to deal with investigations by bar counsel.  Wyoming Bar Watch has solicited information / articles and will publish when received.  

COMMENT:  Gifford should be fired.  His handling of discipline may be misguided and is certainly extreme, but his personal treatment of women is why he deserves to be fired.  He is a misogynist.

Fire Gifford

Comment:  Gifford should be fired but every lawyer is afraid to speak.

An Open Letter to the Wyoming Supreme Court

An open letter to the Wyoming Supreme Court from the Cheyenne Bar.

The Wyoming Supreme Court and each of you, it justices, should be ashamed at the present state of the Wyoming State Bar and your poor reasoning in administering attorney punishment.  To give Stinson 9 months of suspension for conduct that is admittedly less severe and less extensive than the conduct of Ed Moriarity is shameful and reveals that the Wyoming Supreme Court is not motivated by reason or justice or fairness, but by expediency and good old boy politics.   Stinson bucks the Wyoming State Bar and thinks the suit wearing and attorney self-importance is nonsense.    But since when were you justices so narrow-minded that you are afraid of difference.  Each of you know Mark Gifford  and each of you personally know he is a clever lawyer but a bad person abusing the system.  Attorneys are speculating as to what dirty hold over the Wyoming Supreme Court Mark Gifford has that you turn a blind eye to what is right and adopt that which is wrong.  

You know that Ed Moriarity received a public censure for conduct that is far, far more extreme than that of Stinson.  But Ed Moriarity's partner's wife (Marilyn Kite) was on the Wyoming Supreme Court when it decided to give Moriarity a public censure.  That is now the precedent of discipline in Wyoming and it is logically absurd that you would give Stinson 9 months following the Moriarity decision.  You have made every attorney in this state rightfully question your integrity.  

Redux - More Problems with the Bar

Ah, Wyoming Bar Watch, welcome to Stinson Redux.  

When is the Wyoming Supreme Court going to wake up?  For that matter, when are lawyers going to decide enough is enough?  It is apparent and obvious that #MarkGifford goes after lawyers he has a grudge against and that he makes allegations that have no merit. Lawyers like Marcy Argeris, Dion Cusis, and Laurence Stinson are all victim to this over-aggressive approach.  Bar counsel should not be using a shotgun style of pleading in discipline cases.  Bar counsel should plead only allegations with clear and convincing merit.  But #MarkGifford throws every allegation possible into the complaint full well knowing the Board of Professional Responsibility will do just what juries do, split the baby.  To make all of this worse, once discipline is issued (or rubber stamped) by the Wyoming Supreme Court then the bar (a/k/a #MarkGifford) writes a one-sided notice of suspension to be published for bar members.  That notice is presumably picked up by  media.  The notice yesterday (in the Stinson case) conveniently failed to mention the court approved the finding by the BPR that the complainants were not credible but #MarkGifford relied on these same people; that #MarkGifford made many allegations that were unsupported by the evidence but he was not sanctioned for doing so; and that the Board found #MarkGifford's approach untrustworthy, in part, because he willfully attempted to introduce irrelevant evidence.   No surprise the notice failed to mention this when #MarkGifford wrote it.  The stated  purpose of lawyer discipline is to correct behavior and not to humiliate and punish.  The #WyomingStateBar and the #WyomingSupremeCourt are completely missing the mark.  Let this Stinson case serve as a wake up call for better supervision of the bar offices.  

Time to Reform the Wyoming State Bar Disciplinary System

Wyoming Bar Watch please publish our article:  It is Time to Reform State Bar Discipline.  

The present attorney disciplinary system is thought by many to be wasteful, inefficient, and extravagant costing lawyers in excess of $300,000.00 a year in our small lawyer population state.  Yet, according to #MarkGifford, only a small percentage of complaints, reportedly less than 5%, result in discipline.  Because of these statistics, the public likely believes complaints are being whitewashed.  On the other hand, the #WyomingStateBar, the BPR, and the #WyomingSupremeCourt, well aware of public perception and ABA criticism of too little lawyer discipline, either consciously or subconsciously overreact by developing a mindset that reverses the normal burden of proof and by imposing harsh(er) sanctions.  Lawyers essentially have to prove their innocence by clear and convincing evidence and small mistakes result in a finding of several violations.  As a result, lawyers often refer to the #WyomingStateBar disciplinary system as one where, "no deed goes unpunished."  In addition, the disciplinary system focuses on small practitioners and ignores transgressions by friends of bar counsel #MarkGifford and also by large law firms.  It is well documented that #MarkGifford overlooks mistakes by those he views as friends and seeks excessive punishment of others.

  

To restore the public and attorney confidence in the disciplinary system, investigative functions should be turned over to a independent commission.  The function of this commission, staffed by lawyers and non-lawyers sitting by appointment, should be to determine if a complaint has merit and, if so, refer the complaint to independent bar counsel.  This transfer of the intake and investigative functions of the disciplinary process would not diminish the authority of the #WyomingSupremeCourt because the court's decision making authority would remain intact.  At the same time, it would likely save the sate bar several hundred thousand dollars a year in bar counsel costs and that money could provide needed funding for legal services for the poor.  If such a process were to be adopted, the public and the attorneys will have a great deal more confidence in the attorney disciplinary system.  At the same time, attorneys will be relieved of being squeezed by an overcompensating disciplinary system.

For additional information and investigation, go to www.wyomingbarwatch.blogspot.com.

Gifford Teaches CLE on Dishonesty - What Irony

Gifford Teaches Dealing With Dishonesty:  What Irony  

Wyoming Bar Watch, are you aware Mark Gifford is going to teach a CLE for dealing with dishonest lawyers?   He is the perfect person to teach this CLE because Mark Gifford is the most dishonest lawyer, in my opinion.   Gifford tells outright lies or white lies when you deal with him.  As an example, he arbitrarily creates deadlines for responses and tells those of us dealing with him this is a drop dead deadline after which matters will get worse.  These are not real deadlines and his stating they are is a lie.  As another example, he alleges and has charged at least one Wyoming lawyer for representing his own interests at a hearing when Gifford represented himself in his latest divorce.  His divorce records are on file in Laramie County.  This is dishonest conduct.  

He is fully conscious of the power he holds as bar counsel and he uses this power to intimidate lawyers far less knowledgeable of the system.  How does the Wyoming State Bar tolerate Mark Gifford teaching a CLE on honesty while being aware that the same Mark Gifford has reportedly lied to and cheated on three prior wives and reportedly engaged in an affair with a Wyoming State Bar employee?  I say reportedly but Gifford has never denied that he cheated on his former wives or affiliated sexually  with a Wyoming State Bar employee while she was married.  Maybe the bar takes the position that it takes a thief to catch a thief and so the biggest liar  is qualified to teach a course on dishonest lawyers.  There is more dishonest conduct.  Mark Gifford had the disciplinary code changed so he could investigate lawyers without complaint and uses the professional rules for his own vendettas and dislikes; reportedly has had lawyers who represented other lawyers investigated for challenging the ethical charges; intimidates lawyers who represent other lawyers into bad deals; misrepresents the severity of (mis)conduct; breaches confidentiality by talking about lawyers in the system; and overcharges lawyers hoping (as has been true) the BPR will figure some charges should stick.  Don't forget that Gifford can investigate and charge members of the BPR and so fairness is really impossible.  

These are not the acts of an honest person in my opinion.   Beyond all of those bad acts, Mark Gifford terrorizes lawyers he pulls into the disciplinary system with the threatened loss of their license.  I've talked to people who have gone through discipline  and so should you.

I just cannot get past the almost unbelievable fact that this unethical lawyer - Mark Gifford - is bar counsel.  What a poor choice from the state bar and judiciary.