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.
