Friday, December 18, 2015
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.
Sunday, September 20, 2015
E-MAIL RECEIVED
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.
E-MAIL RECEIVED
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.
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.
E-MAIL RECEIVED
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.
Thursday, September 17, 2015
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.
Sunday, August 16, 2015
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E-mail
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.
E-mail
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.
E-mail
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.
E-mail
I am retired and have not practiced in Wyoming for 20 years but I wish you luck in your quest for justice.
E-mail
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?
E-mail
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.
E-mail
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.
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.
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.
I am retired and have not practiced in Wyoming for 20 years but I wish you luck in your quest for justice.
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?
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.
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.
E-mail
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.)
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.
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