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. 

Gifford intimidation

COMMENT:  I was investigated by Gifford and I could not find an attorney to really represent my interests.  I called attorneys who advertise they represent professionals in disciplinary complaints.  I called attorneys my attorney friends recommended.  These attorneys all said or implied the same thing:  There is no fairness in this system and my two options were to do whatever Gifford said or represent myself because these folks were too afraid to buck Gifford.  I hung up the phone from talking to the last of these lawyers and it hit me.   Gifford created a system, and the Wyoming Supreme Court stood idly by, where we cannot get fair treatment.

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Bar Counsel Should Seek Fairness Not Wins

Wyoming Bar Watch:  No one is talking about the most appalling part of Gifford's conduct.  His desire to win above any attempt at fairness.  

For those paying attention you will read that Gifford takes extreme positions.  Gifford pleads many rule violations when the evidence supports far fewer violations.  Gifford seeks extreme punishments for most when the evidence is not so.  This is what he has done in both Custis cases.  Gifford alleged multiple rule violations and reportedly sought disbarment.    This is an old tactic Gifford used when he was a lawyer in Casper.  He would ask for far more than he should and allege far worse conduct but the jury, like the Board of Professional Responsibility, would split the baby.  This same tactic is sometimes used by criminal prosecutors.

Criminal prosecutors are intended to take this role.  They prosecute, defense attorneys defend, and a neutral as possible jury decides.  Bar counsel is not a prosecutor.  Bar Counsel is supposed to evaluate the case fairly and not for a win.  But that is not what Gifford is doing.  I've known Gifford for years and he wants only the win.  The facts are secondary or irrelevant.  When I read on Wyoming Bar Watch that Gifford helps pick members of the BPR my jaw hit the floor.  Not only does he work with these people day in and day out, he picks or nominates some of them.  Outrageous!  

Wyoming needs bar counsel who can be fair.  This job is not a win at any cost job but that is how Gifford treats it.  Think how stressful and intimidating this process must be on the lawyers and their families caught in the process.  For most lawyers the process is new.  Different rules apply.  Gifford and the BPR deal with these every day but the accused does not.  The accused is already at a disadvantage.  In my part of the state lawyers will not represent other lawyers in the disciplinary grievance process because of Gifford's small-mindedness and fear he will prosecute them.  

It makes more sense for Wyoming to appoint volunteer lawyers to do this job.  Or have a rotating group of lawyers.  To let one lawyer use this post to assert his view and position over the rest of us is flat out crazy.  The BPR needs more frequent rotation too.  To have one bar counsel and one set group of BPR members creates the very appearance of impropriety.



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The extreme punishments of the BPR.

The Board of Professional Responsibility recently issues a report and recommendation for the public censure of Frank Jones, a Wheatland attorney.  The underlying facts of leading to the censure are that:

- Jones was contacted by folks with a property dispute.  
-  The dispute was with a prior client of Jones and Jones thinks he told the new folks that he represented the other side but he offered to help and see if litigation could be avoided.  
-  Jones did not get any conflict waiver in writing.
-  After working for a way to resolve the dispute, Jones wrote the new folks that he could not represent them, that he had a conflict in that regard, and that he was in the role of negotiator.  
-  The injury to the new folks was delay.  The opinion does not say whether Jones billed the new folks but implies he did not.  You can read the BPR report at:  www.courts.state.wy.us/documents/opinions/2015WY114.pdf.  

Jones has a history of discipline.  He was disbarred in 1995, admitted to practicing law while disbarred, and later reinstated in 2004.  

The confusion for anyone paying attention is how did Jones deserve a public censure under these facts.  First of all, these so called ethical violations are what Wyoming attorneys do.  It does not appear Jones billed the new folks and he tried to peacefully negotiate a resolution for folks.  Jones might have needed to do a better job of disclosure and timeliness but, at worst, this conduct is a private reprimand.

The hard facts at this point are that the Ed Moriarity bar complaint and public censure had defined what conduct merits a public censure.  The short list is this:

1.  Filing more than one frivolous complaint; 
2.  litigating those frivolous complaints for years; 
3.  in a very public forum with lots of newspaper coverage;
4.  lying to bar counsel;
5.  misrepresenting the facts to bar counsel and to the court; 
6.  forcing the state to spend millions of dollars in defense and costs;
7.  admitting to multiple rule violations including 1.2, 3.1, 3.3, 4.4, 5.1, and several counts of Rule 8;  and 
7.  being unrepentant about this conduct 

EQUALS A PUBLIC CENSURE IN WYOMING.  Note:  you can read the Moriarity complaint in Arizona at:  www.scribd.com/doc/234055407/Ed-Moriarity-Bar-Complaint.

Its time for bar counsel, the BPR, and the Wyoming Supreme Court to issue consistent discipline.  If Ed Moriarity deserved the public censure then Frank Jones deserved nothing or at worse a private reprimand.  The high water mark for a public censure has been set in the Ed Moriarity case.  Other Wyoming attorneys deserve equal treatment to Mr. Moriarity.  The members of the BPR have clearly forgotten what it is like for small practitioners to practice law and are holding bar members to impractical and heightened standards.

RESPONSE:  Bonner is not the problem. The problem is Gifford.  And the BPR.  Gifford is, well, overly interested in female attorneys or all females. I don't know any other way to nicely describe it. The way he leers at me makes my skin shiver.  This is a man not at all fit for his role or for leadership.

Is Bonner the problem?

COMMENT:  Brad Bonner is part of the problem. He and Gifford were partners when I was in Casper. Bonner left because he knows Gifford's personality. But Bonner did nothing to find decent bar counsel when he was bar president. Maybe the new bar president can do better. Doubtful. All of us seem scared.

COMMENT:  The problem is not just Gifford, its also the Board of Professional Responsibility.  The lawyers on that board are guilty of the same things for which they punish others.  Hypocrisy for sure.  Gifford is a liar and dishonest and sneaky, but his masters overlook it.

A Broken Bar Counsel

The appearance of an ethically broken Mark Gifford at the Wyoming Annual Bar Meeting re-reminded me that somebody at the wheel better get the balls to shut his rampage down.  The man is out in public with Sharon Wilkinson and the entire bar and anyone paying attntion - like the press might someday -  knows the Wyoming State Bar not only tolerates a cheater but appoints him as the leading lawyer on ethics.

Information we receive is also posted to WyomingBarWatch.Blogspot.com 

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I am writing to add to the comments of the poster who discussed costs of defense.  Every attorney I have spoken with is concerned about Gifford's power.  One of those abuses of power is to harass attorneys over small, going nowhere claims until he decides not to pursue the complaint.  I have represented and consult with lawyers in the disciplinary process.  I know of at least three instances where bar counsel received or initiated a complaint that ultimately went nowhere and Gifford knew it when he initiated the complaint.  Still, he forced these attorneys to spend hours responding to his demands.  Any competent attorney would have known these  claims were going nowhere. But each of these attorney respondents had rubbed Gifford the wrong way in the past and he was out to punish them.  So punish Gifford did.  These claims never went to the Office of Bar Counsel oversight committee, the BPR, or anyone else.  Just Gifford with no supervision causing lawyers to expend hours explaining conduct that needed no explaining.

The other way Gifford is increasing costs of defense in disciplinary matters, and because of that encouraging settlement versus exoneration, is by demanding excessive penalties as the other poster noted.  Gifford demands an excessive penalty and then states he will not negotiate.  While the penalty is unfair and extreme for Wyoming, the attorney respondent cannot afford the approximate $50,000 cost of defense and takes the penalty.  


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Wyoming Bar Watch.  Whatever happened to the Wyoming State Bar survey about Gifford?  I heard those responding were very concerned about Gifford's abusive conduct and his power.  The state bar never published the results of the survey.  Several attorneys I know were unable to complete the survey.  



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Dear Mr. Duncan:  I want to thank Wyoming Bar Watch for having the dedication to monitor what is happening in the Wyoming Bar.  I thought some proof of Mr. Gifford's misconduct would be illustrative.  I'd ask you to publish my email to the bar.

Last month, July 2015, a private sanction was issued to an attorney for representing himself and his wife in front of a zoning board and at the circuit court.  The attorney stipulated that he violated Rule 3.7 and Rule 8.4(d).  Rule 3.7 says a lawyer shall not act as an advocate at trial in which the lawyer is likely to be a necessary witness.  Rumor on the street is that Gifford initiated this action on his own.  Whether true or not, the greater point is that Rule 3.7 does not apply to pro se litigants, including attorney's who are pro-se.  The ABA Center for Professional Responsibility says: The advocate-witness rule would not prevent a pro se litigant (even a lawyer who represents himself pro se) from testifying and representing himself.  Look it up yourselves bar members.  Bar counsel knows this rule.   This lawyer did nothing wrong.  I submit bar counsel has engaged in unethical conduct by duping a lawyer into taking a penalty the ABA says does not fit.  I guess we know now why bar counsel wanted, and the Supreme Court gave him, immunity for his own misconduct.  C'Mon BPR, wake up!  Start protecting lawyers from bar counsel.  


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I am retired and have not practiced in Wyoming for 20 years but I wish you luck in your quest for justice.



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Thank the lord that someone has taken it upon themselves to watch Gifford.  Here is one that no one has mentioned.  Gifford asks his friends to be on the Board of Professional Responsibility.  Wait.  How can that be right?  Do lawyers get to choose they judge and their jury?  They sure do if they are Gifford.  Becky Lewis never chose members of the BPR.  Lewis has, what's the word I am searching for......ethics.  But Gifford thinks its fine to nominate and facilitate the nomination of his friends to the BPR.  Which way do you think those folks lean when choosing between some soul accused of wrongdoing and their buddy?

Worse yet, Gifford can investigate and punish members of the BPR and the new oversight panel for their misconduct.  He can also investigate and prosecute judges for their misconduct.  The very people that are supposed to serve as the balance to Gifford's check can be prosecuted by him.  How did the Wyoming Supreme Court ever approve such an inherently corrupt system?


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Take me off your list. I think Gifford does a great job. I've talked to him on the phone and he seems very down to earth, savvy and compassionate all at the same time. I'd have a hard time finding fault with what he does, knowing as I do that nobody likes him much for it. So go bark elsewhere.



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You must be young.  What you are talking about is the justice system in America.  Our prisons are full of innocent people who copped to a plea rather than risk a trial and a harsher sentence.  Those with money, connections and power can and do get away with all sorts of wrong-doing.  There is nothing fair or equitable about it, but it is the way it is.  You're spitting into the wind and if you don't watch out, you will end up as jaded as I am. 
 

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I think you should be more ethical and worry about yourself. Mr. Gifford is of the finest quality lawyer Wyoming has. I tried my first jury trial against him 15 years ago. There is not a more gentleman lawyer that I have ever practiced against. If you don't like the power his office has, then focus on the office and not the gentleman.


E-mail (We did write back to this gentleman that we just publish what we get so there is little value in this level of vitriol.  He did respond nicely.  We do appreciate his point of view.)

Bar "Watch", the person who continues to hide behind a hateful little mask:

It is easy to just nakedly gouge someone when you are "cloaked".  If you were not a coward, you would identify yourself.  We have discussed this before.  Your identity goes to your motivations when levelling such serious charges.  These are not just minor accusations but vituperative ad hominem attacks on an individual.  Such accusations should not be made while wearing a mask, like those in the world who now assassinate innocents.

So sorry that your spirit may have been crushed unfairly in the past, but when it finally grew back, it was made only of wood.  A lawyer, if that is what you are or were, primarily engages in helping people, not helping themselves or anonymously hating and attacking one of my fellow bar members.  If you are or were a lawyer, especially a Wyoming lawyer, I am hopeful you are no longer.  We don’t need or want you in our profession.

I have always preferred a disciplinary counsel that lets no lawyer off easily.  I have worked with bar counsel in Colorado and Wyoming to tighten bar disciplinary rules on multiple occasions.  As I earlier explained when I first requested you remove your childish mask, I have never met Mark Gifford but was impressed that his office called multiple meetings to get more attorney involvement in the recent updates to our disciplinary rules.  In participating in these meetings, I found Mr. Gifford to be bright, courteous, patient and professional.  That personal knowledge is the basis of my judgment of any man or woman; it would never be made on the hearsay of unproven accusations from behind petty little masks like yours. 

Short story—In the early 90s, I joined the Colorado Bar Association (non-integrated bar) Grievance Policy Committee to continue trying to rid our profession of bad practitioners and unprofessional lawyers.  I resigned after the second meeting when I learned that 95% of the lawyers on the Committee were attorneys with prior discipline histories that were only on the Committee to loosen the rules and allow for further shenanigans.  Following and “living” the ethical and disciplinary rules is the natural act of a good lawyer, but when it does not happen, we need strong and impartial methods to force either compliance or a hasty exit for outliers.

As far as specifically commenting on your latest circulation, I clearly agree with e-mail # 1.  Feel free to publish my comment in your blog.  I suggest re-naming your silly, little operation, “the Wyoming Bar Gawker.”  It is far more fitting for the malodorous spittle that churns from your mouth.

Note again that I have appended my name and continue to take pride in being a Wyoming lawyer.

To

rdmail1122@yahoo.com

May 27

I see that Mark Giffold is at it again with favoring select attorneys. In 2012 attorney Custis, a state public defender, bribed a victim/witness and received only a public censure. In 2015 Custis lied to the Supreme Court and again received only a public censure. Gifford's treatment of Custis and Moriarty (as recently commented upon) seems to be quite favorable and lenient compared to the treatment of other attorneys, particularly female attorneys. Are these two maybe friends and buddies of Gifford's and therefore afforded special treatment? Or do they receive special treatment simply because they are male? It will be interesting to see what Gifford does with the state's attorney charged with taking county property. That attorney is male, influential, and from one of the larger Wyoming communities. But, on the other hand, he is a prosecutor and Gifford appears to dislike those people. How will that attorney fare in Gifford's "Court of Favoritism For Those He Likes"? And, one of his BFFs is now a prosecutor; how will that male attorney fare if ever grieved? Will Gifford call conflict upon himself in that matter? Likely not!

Gifford's tactics and results are not consistent, nor fair. Is this the guy you attorneys want judging you? Be done with him and implement a fair system where more than just one guy has all the power.

• Design a system where attorney actions are actually investigated by an independent attorney/investigator and then brought to the state bar counsel for yet another independent review.
• Look to a system where there are three to five people who serve as start bar counsel, not just one guy.
• State bar counsel should have an oversight committee - but not one he hand-picks and/or only sometimes consults.
• The appellate court should not pay his salary. How is that system unbiased towards any attorney charged with misconduct? Even criminal defendants have a better system than the attorneys.

Does it take a non-attorney to see these conflicts and the impropriety? State bar counsel should be fair, not swayed by friends or those in power. State bar counsel should be held to a higher standard; Gifford is definitely not. He has shown his preferential treatment toward certain attorneys or firms and his obvious disdain for female attorneys. He should not be allowed to wreak this havoc on attorneys in our state. From an outsider's viewpoint, it appears the state bar association leadership is also somewhat corrupt, both morally and ethically, to condone such behavior from one of its own. The rank and file attorneys of the association have to pay more attention to the overall management of the State's legal system. Right now it would be awfully difficult to claim Wyoming's bar association has a sound reputation - or the public's faith and trust.

Your situation as seen by an outsider,

SomeOldGuy

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.  

COMMENT RECEIVED

An interesting Web Site has been put up and references this site.  It is www.tyrannyofthebar.org  The gentleman from California is a practicing attorney who helped his sister prepare a case wherein she was representing herself in a case in Wyoming.  The ever vigilant Gifford is now proceeding to charge him with practicing law in Wyoming without a license.  This is tantamount to me saying to my Mom regarding a traffic ticket I think you should plead not guilty.  It would be giving legal advice by Mr. Gifford’s standard.  The interesting question Mr. Poul posed is Mr. Gifford trying to justify his $150,000 salary by running up the number.

And here is another one from Mr. Gifford’s book.  Moriarty, his personal friend is disbarred in Arizona but not what is sought in Wyoming.  And yet I know of cases in Wyoming where a lawyer was censured and Gifford went out of his way to initiate a call to Bar Counsel in another state to seek to influence punishment there of the individual who held a license there as well as Wyoming.

This guy is not fit for his job and whoever appointed him ought to be ashamed.

COMMENT RECEIVED

Mr.Tieg is responsible for some oversight of what Mark Gifford does but when you look at some of the stuff put before the board you have to ask if he is really paying attention or just rubber stamping it.  It should be noted that Mr. Gifford is responding to complaints filed but apparently with little judgment. The issue is that this encourages people including attorneys to file complaints for trivial personal reasons.

COMMENT RECEIVED
It seems to me Mr. Gifford is doing what he supposed to do in responding to bar 
complaints.

NOTATION

A few letters have been received either making threats or using inappropriate language.  Please be reminded that items of this nature will not be posted.  And please note also that all e-mails received are vaporized after receipt.  There is no record kept of who sent information in. Thank you,

It is good that the State Bar responded and advised the membership of Mark Gifford's salary.   Wyoming Bar Watch hopes the State Bar is prepared to justify the need to pay Mark Gifford $150,000.   The State Bar did not offer any explanation or rationale for the extraordinary salary.  District court judges are paid $150,000 a year and supreme court justices a reported $165,000.  Why would a part time prosecutor job with the State Bar merit the same salary as a disctrict court judge?  The job of Wyoming Supreme Court Justice and Wyoming District Court Judge is rigorous. The job of bar counsel has always been part time, there has been no significant increase in the attorney population, and most targeted Wyoming lawyers appear to take stipulated discipline.  Other lawyers have suggested the willingness to stipulate to discipline in questionable circumstances stems from a lack of due process in the process.  Perhaps it stems from the Board of Professional Responsibility's refusal to reject the approach of Mark Gifford, even when that approach is overly agressive.

It makes more sense to have one lawyer investigate the alleged misconduct and another lawyer to prosecute that misconduct -- on a case by case basis. This is the system that Colorado employs.  Wyoming Bar Watch mentions the Colorado system as Mark Gifford points to that state's system as one after which Wyoming should model itself.

The idea that no other qualified candidates applied for the job is not believable for the reason that every Wyomign attorney knows one or two other attorneys that applied for the job and were willing to take a lesser salary.  Something is definitely fishy.

Finally, if the Wyoming State Bar is going to offer explanations to questions raised about the conduct of Mark Gifford, it may wish to do so through someone other than Ms. Sharon Wilkerson.  The scandal surrounding their relationship removes credibility from any response.  Perhaps that scandal is rumor, but it exists.

The Wyoming State Bar did respond to the latest inquiry to advise that Mark Gifford's salary is $150,000.  The bar failed to explain any expense accounts or benefits.  It is noteworthy that the salary of Mr. Gifford is the same as a sitting district court judge and only $15,000 less than a supreme court justice.  The need for a  prosecutor of Wyoming lawyers to receive such an extraordinary salary was not addressed by the bar.  The fact that his salary and the need, or lack of need, for full time bar counsel was not submitted to the membership in advance creates the appearance of sneakiness.