Board of Professional Responsibility, Wyoming State Bar , 2014 Wyo. LEXIS 157 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 134OCTOBER TERM, A.D. 2014
October 29, 2014
BOARD OF PROFESSIONAL
RESPONSIBILITY, WYOMING STATE
BAR,
Petitioner,
D-14-0002
v.
LAURENCE W. STINSON, WSB No.
6-2918,
Respondent.
ORDER OF PUBLIC CENSURE
[¶1] This matter comes before the Court upon a Report and Recommendation by the
Board of Professional Responsibility of the Wyoming State Bar (the Board) for a public
reprimand of Laurence W. Stinson. Having reviewed the Report and Recommendation
and Mr. Stinson’s objection to it, considered the oral arguments of counsel, and
performed an independent and thorough review of the Board record, the Court concludes
Mr. Stinson violated Rule 3.1(c) of the Wyoming Rules of Professional Conduct and
accepts the recommendation of the Board that Mr. Stinson be publicly reprimanded and
that he pay costs in the amount recommended by the Board. We further rule that the
Board properly denied Mr. Stinson’s motion for sanctions.
FACTS
[¶2] During the events which led to this disciplinary matter, Mr. Stinson was a
shareholder in Bonner Stinson, P.C., in Cody, Wyoming. The disciplinary matter arose
out of Mr. Stinson’s conduct during the firm’s representation of Dr. John H. Schneider, a
Cody neurosurgeon, who became embroiled in a dispute with Dr. Jimmie Biles, an
orthopedic surgeon in Cody. Dr. Biles accused Dr. Schneider of having a third party
disseminate defamatory statements about him, and then, in the ensuing federal litigation,
Dr. Biles accused Dr. Schneider of obstructing justice, suborning perjury, and bribing a
witness. Because the charges against Mr. Stinson relate in large part to his knowledge of
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his client’s actions and when he obtained that knowledge, we must first outline in some
detail the facts related to the federal proceedings. We will then outline the disciplinary
proceedings that resulted from Mr. Stinson’s conduct during his representation of Dr.
Schneider in the federal proceedings.
A. Federal Proceedings
[¶3] On August 29, 2011, Dr. Biles filed a complaint in Federal District Court, for the
District of Wyoming, against an Indiana woman by the name of Lisa Fallon. The
complaint alleged that Ms. Fallon arranged to print and direct mail a defamatory flyer
about Dr. Biles to over 14,000 Wyoming residents. The flyer stated:
Alert – my name is Rita and I was in Cody and broke my
ankle this summer and this doctor ‘fixed it”. (sic) He did a
terrible job and I needed two more surgeries at home and I am
suing him. I looked up this doctor and found this recent
arrest. If this is your doctor beware and let the hospital in
Cody and your state medical board know about him. He has
already been investigated for drunkenness when on call at the
hospital and has a dozen lawsuits that he lost! The Wyoming
board of medicine told me he has several complaints from
other doctors and Physician Assistants that he was drunk at
work and in the operating room. Beware! How can they let
someone like this practice? You can find this on line at Park
County Sheriff’s department website.
[¶4] The flyer followed this statement with what was alleged to be a booking photo of
Dr. Biles, arrest information related to a 2010 driving under the influence charge, and
accusations connecting Dr. Biles to: “Lewd act with resisting arrest;” “Illegal possession
controlled substance;” and “Felony Investigation.” Aside from the photo and a DWUI
arrest, all information in the flyer was false.
[¶5] Before filing the action against Ms. Fallon, who lives in Indiana, counsel for Dr.
Biles investigated Ms. Fallon’s connections with Cody, Wyoming. They found that her
only connection to Wyoming was her relationship with Dr. Schneider and his wife,
Michelle Schneider. Through further investigation, Dr. Biles’ counsel found evidence
that connected Dr. Schneider to the company that printed the flyers. Despite having
found this connection, Dr. Biles’ counsel made the decision to first sue Ms. Fallon and
seek discovery from her before proceeding against Dr. Schneider and any other potential
defendants.
[¶6] In September 2011, Dr. Schneider met with Mr. Stinson and Brad Bonner to
discuss the lawsuit that Dr. Biles had filed against Ms. Fallon. Dr. Schneider told Mr.
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Stinson and Mr. Bonner that Ms. Fallon was a close family friend who could not afford
an attorney to defend against the action filed by Dr. Biles. Dr. Schneider asked Mr.
Stinson and Mr. Bonner to help find an attorney to represent Ms. Fallon, and he informed
them that he wished to pay the fees of that attorney. Mr. Stinson and Mr. Bonner referred
Ms. Fallon to an attorney who agreed to represent her, on the condition that Dr. Schneider
understood that Ms. Fallon’s communications with her counsel would be privileged and
that paying for Ms. Fallon’s defense did not allow him to control that defense. Ms.
Fallon’s attorney and Dr. Schneider executed a fee agreement to that effect.
[¶7] On October 7, 2011, Ms. Fallon, through her attorney, filed an answer to Dr.
Biles’ complaint. In that answer, Ms. Fallon admitted that she created and mailed the
flyer to the over 14,000 Wyoming residents. Ms. Fallon also admitted that she did not
use her own money to print and mail the flyers, but she denied that she acted at the
request of a third party. Mr. Stinson received a copy of the answer.
[¶8] On October 16, 2011, Mr. Stinson received self-executing discovery submitted by
Dr. Biles’ counsel in the action against Ms. Fallon, and according to his billing invoice to
Dr. Schneider, Mr. Stinson spent over one hour reviewing that discovery. The self-
executing discovery included documents that showed that Dr. Schneider ordered and paid
for the mailing labels used to distribute the flyer.
[¶9] On October 20, 2011, Ms. Fallon’s attorney sent her an e-mail questioning her
position that she and she alone was responsible for mailing the defamatory flyer. He
stated:
Plaintiffs know this was not your idea. The world
knows this was not your idea. Four doctors up there had a
business Schneider, Biles, Emery, and one other. They split
up. The split was horrible and because of the split they do not
like each other. They proceed to do mean things to each
other. No nurse in Indiana, especially a nice nurse,
(remember everybody likes nurses) decides one day to spend
her own money and send out a flyer because she does not like
the way a doctor is behaving in Wyoming. A state she has
never lived. (sic) A doctor who has never treated her. She
has never done this before, and now all of sudden she takes a
moral crusade against Dr. Biles. Unless you are completely
crazy that dog don’t hunt, the boat don’t float, and that story
is not believable.
[¶10] Ms. Fallon’s attorney did not copy Mr. Stinson with this e-mail or use these terms
to describe to Mr. Stinson his reaction to Ms. Fallon’s version of events. Ms. Fallon’s
attorney did, however, sometime in October 2011, tell Mr. Stinson that he felt Ms.
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Fallon’s version was “fanciful and doesn’t make any sense.” On October 21, 2011, Mr.
Stinson and Ms. Fallon’s attorney exchanged e-mails regarding concerns that Ms. Fallon
was not being truthful in responding to interrogatories. Specifically, Ms. Fallon’s
attorney e-mailed Mr. Stinson:
We talk then she has to have a time period to think—where I
know she communicates with Schneider. I keep telling her
this is not a game just tell the truth, but I think we will never
get there on the truth level.
Mr. Stinson responded:
I think you[r] read of circumstances is likely correct. I just
told Schneider yesterday to quit talking to her at all. My
advice will be ignored.
[¶11] On October 31, 2011, Mr. Stinson received and reviewed Ms. Fallon’s draft
interrogatory responses, which had been forwarded to him by Ms. Fallon’s attorney. In
those responses, Ms. Fallon again stated that she alone created the flyer, but she also
provided names of individuals who provided her information that she used in the flyer.
Included among those individuals was Dr. Schneider. Ms. Fallon also stated in her
interrogatory responses that Dr. Schneider responded to her plans to send the flyer by
stating, “Dr. Biles deserves it as he is a menace to the community of doctors and he was
probably going to kill someone when he was drunk.” Additionally, Ms. Fallon elaborated
on the details of Dr. Schneider’s providing her with the mailing list for the flyer:
Schneider said that they were public files that anyone can use
and they did not specifically come from his patient database
and were not “his patients” so he had no problem just giving
me a labels database from Park County and its surrounding
counties. I did not pay for them and Dr. Schneider did not
ask for any payment, he just mailed them to me on a stick
drive.
[¶12] On November 17, 2011, Dr. Biles’ counsel took Ms. Fallon’s deposition. The
deposition was sealed by agreement of the parties, so Mr. Stinson was not able to review
the deposition. Ms. Fallon’s attorney understood this agreement precluded him from
allowing anyone to read the deposition transcript, but he also understood he was
permitted to discuss the deposition with Mr. Stinson because Dr. Biles’ attorney asked
him to convey to Mr. Stinson that Dr. Biles would like to resolve the matter through a
financial settlement with Dr. Schneider. On November 21, 2011, Mr. Stinson met with
Ms. Fallon’s attorney and discussed the deposition. Ms. Fallon’s attorney informed Mr.
Stinson that Ms. Fallon testified that she alone was responsible for distributing the flyer
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but that she received the mailing list and the money to cover the cost of the mailing from
the Schneiders.
[¶13] On November 22, 2011, counsel for both Ms. Fallon and Dr. Biles received a letter
with enclosures from the Park County Attorney. The letter enclosed copies of documents
that had been printed from a stick drive that a worker in the laundry room of the West
Park County Hospital in Cody found in the pocket of a man’s surgical scrubs. Hospital
administration sent the stick drive to the county attorney, who provided the
aforementioned copies of the documents to both counsel and to law enforcement. The
documents found on the stick drive became known as “the laundry room documents,” or
the “LRDs.”
[¶14] The LRDs consisted of three documents. The first document was addressed to
Ms. Fallon and was an eight-page document that instructed her on how to testify in her
deposition. It included the following passages:
[Dr. Biles’ counsel] will do everything they can to intimidate
as well as befriend you with one common goal – to show this
flier creation and distribution was a conspiracy directed by
Dr. Schneider and Michelle to slander Biles. As we have
discussed, if you are able to withstand the heat of the
deposition and ‘take a bullet’, regardless of final economic
damages in favor of Biles in any type of judgment, you will
be taken care of far in excess of any paycheck. The amount
he will get will be negligible and have no impact on your life.
***
* * * They will obviously say many times, through various
ways that “it is better for you to tell the truth about your co-
conspirator”. Don’t believe any of it – they will not befriend
you or help you in any way and as soon as they “turn you”,
you will be treated like a prison Bitch. Please stay focused on
the truths in the interrogatories and this primer. All other
questions beyond what is covered here are vague
recollections, influenced by your current medical condition of
significant thyroid imbalance, frequent antibiotics for kidney
and bladder infections and your overwhelming worry that you
have cancer that they will discover when they do your surgery
next month. * * * Please read, read and re-read these facts, as
well as the interrogatory answers and use these to answer the
questions they ask briefly and to the point. * * *
***
Reading through the last email from [Dr. Biles’ counsel], they
plan to demonstrate through your answers that you had no
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knowledge of Biles and therefore could not have generated
the idea to develop the flier or had the motivation to do so and
you must have been coerced, even by friendship with
Michelle and Dr. Schneider, to take these actions. This is
where you can expound and be creative in your testimony
attacking him as a drunk, posing danger to the community
and patients, citing your uncle being killed by a drunk driver,
etc. * * *
***
The details of Dr. Schneider’s involvement are in the
interrogatory answers. Just as you had spoke with the other
people listed in the interrogatories, you called me and asked
my knowledge about the Biles incident. Recall the
interrogatory answers and it is OK to have them in front of
you and simply respond to their questions by reading your
answers that way you do not have to develop anything more
than is listed in the answers. YOU SHOULD FALL BACK
ON THE FACT THAT YOU DO NOT FEEL WELL
BECAUSE OF YOUR MEDICAL CONDITIONS THAT
INCLUDE THYROID IMBALANCE AND YOU NEED
YOUR ANSWERS IN FRONT OF YOU AS YOUR NOTES
OF THE DETAILS OF THE PEOPLE YOU HAVE
SPOKEN WITH AND THE TIMELINE SINCE YOU ARE
HAVING A DIFFICULT TIME INDEPENDENTLY
RECALLING THESE FACTS. [Emphasis in original.]
[¶15] The second document in the LRDs was a one-page document purporting to
summarize the contacts and discussions between Ms. Fallon and Dr. Schneider regarding
the flyer and the lawsuit. In regard to the lawsuit, the document closes with a statement
that “Nothing specific to the claim is discussed.” The third document in the LRDs was a
four-page document setting forth draft answers to the interrogatories that had been served
on Ms. Fallon.
[¶16] On November 22, 2011, Ms. Fallon’s attorney forwarded the Park County
Attorney’s letter and the LRDs to Mr. Stinson. That same day, Mr. Stinson and Mr.
Bonner met with Dr. Schneider to discuss the LRDs. Mr. Stinson described this as a
“very heated” meeting during which they asked Dr. Schneider to explain the documents
and in particular whether he was paying for Ms. Fallon’s testimony. Mr. Stinson testified
that Dr. Schneider admitted that he had typed the documents but denied that he had paid
or attempted to pay for Ms. Fallon’s testimony. Dr. Schneider’s explanation was that he
was on the telephone with Ms. Fallon as he was typing the document and was merely
helping to prepare her and typing the answers as she was providing them. Mr. Stinson
testified that he did not have sufficient evidence at that time that Dr. Schneider was lying
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to him and he resolved the doubt in favor of his client. Mr. Stinson and Mr. Bonner
instructed Dr. Schneider that he was to have no further contact whatsoever with Ms.
Fallon.
[¶17] On November 23, 2011, counsel for Dr. Biles served third party subpoenas on Dr.
and Mrs. Schneider, seeking communications with Ms. Fallon, forensic expert access to
the Schneiders’ computers and smart phones, and records of monies paid by the
Schneiders to Ms. Fallon. On December 7, 2011, Mr. Stinson, on behalf of the
Schneiders, filed a motion to quash the subpoenas. Mr. Stinson stated as the basis for the
motion to quash that the subpoenas were overbroad and unduly burdensome, that Ms.
Fallon testified under oath that she acted alone in creating and disseminating the
defamatory flyer, and that counsel for Dr. Biles had not shown any connection between
the Schneiders and Dr. Biles’ claims against Ms. Fallon. On January 6, 2012, the district
court denied the motion to quash and ordered that the Schneiders produce the subpoenaed
documents and items. In so ruling, the court explained:
The Court is satisfied that the evidence sought pursuant to
this subpoena will be relevant and significant in discovering
the contours of any conspiracy giving rise to plaintiff’s
defamation claims. Defendant Fallon did not have any close
connections in the Park County area other than the Schneider
family. Following the deposition of Defendant Fallon, it
appears that she claims she was solely responsible for the
flyer and did not receive approval of it from Dr. Schneider
prior to its dissemination. In contrast, among other things,
plaintiff has asserted a belief that Defendant Fallon was
acting as a conduit of information that was funneled to her
from someone in Park County and was not the initial source
of the defamatory materials.
The information sought by this subpoena would be
relevant and necessary to the parties in attempting to ascertain
the truth in this regard.
[¶18] On January 19, 2012, a hearing was held on another discovery dispute, and during
that hearing, the district court ordered the Schneiders to provide all subpoenaed items by
February 3, 2012. On February 29, 2012, the court issued an order finding that the
Schneiders had failed to make a good faith effort to comply with the subpoena, fining the
Schneiders $1000.00, and directing that they provide all subpoenaed items by March 9,
2012. On March 8, 2012, the Schneiders filed their verified supplemental response to the
subpoena.
[¶19] On January 28, 2012, Dr. Biles served on the Schneiders a complaint alleging
RICO and defamation claims against the Schneiders and a related business entity. On
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February 21, 2012, Mr. Stinson signed and filed, on behalf the Schneiders and their
related entity, an Answer and Counterclaim. In that Answer and Counterclaim, Mr.
Stinson included the following statements:
[¶ 38a] Plaintiff has taken the deposition of Lisa Shaurette
Fallon in the related case of Biles v. Fallon. Ms. Fallon has
testified that she, and she alone, created the flier of which
Plaintiff complains is defamatory. Thus, Plaintiff has
obtained testimony under oath that contradicts and dispels the
allegations contained in Plaintiff’s complaint. As a result, the
allegations contained within the complaint are known to be
untrue by Plaintiff and are not made in good faith. Rather,
such allegations are made as part of long-standing animosity
Plaintiff has for John Schneider.
[¶ 43b] Plaintiff is himself responsible for negative public
perceptions regarding him and his personality because
Plaintiff is known to and/or has: often consumed alcohol
while driving; consumed alcohol while driving with
employees while engaged in the course and scope of business;
allows or has allowed his wife – a non-medically trained
individual – to provide point of contact care for his patients
(and may bill Medicare, Medicaid and/or insurance
companies for these services); engaged in medical decision-
making while under the influence of alcohol; bad-mouths
other physicians and medical personnel; engages in
subversive conduct toward other physicians; creates conflict
with his employees and the employees of other physicians;
waived a gun around his office and pointed that gun at an
employee and commanded that the employee “dance”; fails to
pay people who provide goods and services at the ranch
owned by Plaintiff (or a company he controls); has failed to
uphold or fulfill contractual obligations and commitments to
parties connected to ranch activities and/or business ventures
and other acts which create and foster the bad reputation he
created for himself.
[¶ 54] Biles knew that his complaint was false and, despite
such knowledge, recklessly published the complaint by filing
the same in a public docket.
[¶20] On April 23, 2012, Dr. Biles’ counsel disclosed to Mr. Stinson copies of e-mail
correspondence between Dr. Schneider and Ms. Fallon that had been obtained through a
8
third-party subpoena served on Ms. Fallon’s Indiana employer. The e-mails contained
communications wherein Dr. Schneider urged Ms. Fallon to avoid being deposed,
provided a medical excuse to be signed by her physician to help her avoid being deposed,
instructed her on how to answer deposition and interrogatory questions, advised her to be
vague in answering questions (“the best answers to use are ‘I do not have recollection of
that’”), offered to destroy her computer hard drives by giving them the “microwave
treatment,” and told her she should have “a 250k plus payoff for your future.”
[¶21] After receiving the disclosures from Dr. Biles’ counsel, Mr. Stinson and Mr.
Bonner conferred with Mark Gifford, Bar Counsel, concerning their disclosure
obligations under the Rules of Professional Conduct, and on April 25, 2012, Mr. Stinson
and Mr. Bonner requested a hearing with the district court for the purpose of disclosing
the e-mail correspondence between Dr. Schneider and Ms. Fallon. The following day,
the court held the requested hearing, and Mr. Bonner summarized the e-mail
correspondence as follows:
In general, the emails concern Ms. Fallon’s answers to
interrogatories and the testimony that she would be giving in
an upcoming scheduled deposition. There is considerable
communication from Dr. Schneider where – and it’s to Ms.
Fallon – where Dr. Schneider quite apparently is instructing
Ms. Fallon on what to say, what not to say, and how to say it,
both in her deposition and in her interrogatories. There is
also a document that quite apparently appears to be – and it’s
provided from him to her – that appears to be his proposed
text of her interrogatory answers.
While all of that is a really, really, really bad idea, I
don’t know if that conduct in and of itself would necessarily
motivate this disclosure. However, the emails also contain
communication in which Dr. Schneider provides Ms. Fallon
with a doctor’s note for signature by her personal physician.
And the purpose of the note, it is stated in their
communication, is to prevent Ms. Fallon from having to give
her deposition in the litigation.
Then, Your Honor, when Ms. Fallon relates in an
email to Dr. Schneider that she has secured her doctor’s
commitment to sign the doctor’s note, thus hopefully in their
mind precluding the deposition, Dr. Schneider writes in a
responding email, “That should be a 250k-plus payoff for
your future. Thank you.”
[¶22] Shortly after this disclosure, Dr. Biles’ claims against Ms. Fallon and the
Schneiders were settled in a confidential settlement.
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B. Disciplinary Proceedings
[¶23] Following the disclosures to the district court, Bar Counsel appointed Special Bar
Counsel to determine whether formal charges should be filed based on the conduct of
counsel during the federal proceedings. In accordance with Rule 11(d) of the
Disciplinary Code, Special Bar Counsel presented the matter to the Peer Review Panel
for a determination of probable cause to justify filing a formal charge against Mr.
Stinson. On April 5, 2013, the Peer Review Panel issued a Finding of Probable Cause,
which stated:
This matter came before the Peer Review Panel on
April 4, 2013 upon motion of Special Bar Counsel. A
quorum of the Panel reviewed the Complaint, file materials
and proposed Formal Charge and, being fully advised in this
matter, finds, pursuant to Disciplinary Code Section 7(c)(iii),
that probable cause exists justifying the filing of a Formal
Charge.
[¶24] On April 10, 2013, the Wyoming State Bar (the Bar), through Special Bar
Counsel, filed with the Board of Professional Responsibility (the Board) a Formal Charge
against Mr. Stinson. The Bar asserted two violations of the Wyoming Rules of
Professional Conduct. The first charge alleged that Mr. Stinson violated Rule 3.3 by
delaying disclosure to the court of his client’s scheme to obstruct justice for five months
after Mr. Stinson obtained actual knowledge of the scheme. The second charge alleged
that Mr. Stinson violated Rule 3.1(c) by: 1) signing and filing affirmative defenses and
counterclaims that alleged facts Respondent knew to be false; 2) representing Fallon’s
deposition testimony to the Court as a basis for relief without first conducting a
reasonable inquiry into his client’s apparent bribery of Fallon to give false testimony; and
3) asserting embarrassing detailed allegations about Biles for improper purposes.
[¶25] On October 3, 2013, Mr. Stinson designated three expert witnesses: Richard
Honaker, Judge Nancy Freudenthal, and Judge Alan Johnson. The Bar filed a motion in
limine to exclude the expert testimony on ground that the testimony calls for inadmissible
legal conclusions and would invade the province of the Board. The Board granted the
motion in limine in part and denied it in part. The Board ruled that the three experts
could testify, but it limited that testimony, ordering that none of the experts could testify
as to the ultimate question of whether Mr. Stinson’s actions were in compliance with any
Rule of Professional Conduct. We will set forth any necessary additional facts as they
relate to the expert testimony in our discussion of Mr. Stinson’s challenge to the
limitations placed on that testimony.
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[¶26] Beginning on November 6, 2013, a three-day hearing was held on the charges
against Mr. Stinson. At the conclusion of the hearing, the BPR deliberated on the charges
and announced its findings:
And the Board has determined by a majority of the
quorum that the Bar has proved by clear and convincing
evidence that the Respondent has violated Rule 3.1[c], and
the Board has determined by a majority of the quorum that a
violation has not been proved by clear and convincing
evidence concerning the Respondent violating 3.3(b).
Therefore, that portion of the formal charge is dismissed.
[¶27] The Board then proceeded to hear evidence and argument on sanctions. At the
conclusion of that presentation, the Board again recessed for deliberations. Following
those deliberations, the Board announced that its recommended sanction was a public
reprimand. The Board also recommended that Mr. Stinson be required to pay hearing
costs and the $50.00 administrative fee required by the Disciplinary Code.
[¶28] On January 3, 2014, the Board filed with the Supreme Court its Report and
Recommendation for Public Reprimand. On January 21, 2014, Mr. Stinson filed a
motion for W.R.C.P. 11 sanctions against the Bar, the Peer Review Panel, and against
Special Bar Counsel based on the Bar’s refusal to dismiss the Formal Charge. On
January 23, 2014, Mr. Stinson filed Respondent’s Objections to Costs, Request for
Allocation, and Request for Amended Report and Recommendation, along with a request
for a hearing on the objections. On March 13, 2014, the Board issued orders denying
both the motion for Rule 11 sanctions and the objection to costs.
ATTORNEY DISCIPLINARY PROCEDURE
[¶29] This Court considers a recommended disciplinary action according to the
following principles:
The purposes of the state bar disciplinary procedure
are to maintain “the integrity of the bar,” “to prevent the
transgressions of an individual lawyer from bringing its
image into disrepute” and to “protect the public and the
administration of justice.” Bd. of Prof’l Responsibility v.
Casper, 2014 WY 22, ¶ 7, 318 P.3d 790, 793 (Wyo. 2014);
Bd. of Prof’l Responsibility v. Davidson, 2009 WY 48, ¶ 17,
205 P.3d 1008, 1015 (Wyo. 2009); In re Clark, 613 P.2d
1218, 1221 (Wyo. 1980). Wyo. Stat. Ann. § 5–2–114
(LexisNexis 2013) charges this Court with adopting rules of
“practice and procedure in all courts of this state, for the
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purpose of promoting the speedy and efficient determination
of litigation upon its merits.” Wyo. Stat. Ann. § 5–2–
118(a)(iii) (LexisNexis 2013) further charges this Court with
adopting rules establishing “practice and procedure for
disciplining, suspending, and disbarring attorneys.”
Pursuant to Wyo. Stat. Ann. § 33–5–104 (LexisNexis
2013), membership to the bar is by petition to the Wyoming
Supreme Court. Pursuant to § 1(a) of the Disciplinary Code
for the Wyoming State Bar, attorneys are “subject to the
exclusive disciplinary jurisdiction of this Court and the
Board....” Disciplinary proceedings are “necessarily incident
to the inherent power of courts to control properly their own
affairs.” State Bd. of Law Examiners v. Brown, 53 Wyo. 42,
49, 77 P.2d 626, 628 (Wyo. 1938). The Board acts as an arm
of this Court in taking evidence and making findings and
recommendations to this Court. Mendicino v. Whitchurch,
565 P.2d 460, 475 (Wyo. 1977). Although we give due
consideration to the Board’s findings and recommendations,
the “ultimate judgment in these cases is vested in the Court.”
Casper, ¶ 8, 318 P.3d at 793–94, citing Mendicino, 565 P.2d
at 466. See also Davidson, ¶ 1, 205 P.3d at 1012.
In determining whether discipline is appropriate in
these special proceedings, this Court must be satisfied that
“substantial, clear, convincing, and satisfactory evidence”
exists to sustain the findings of the Board. Mendicino, 565
P.2d at 475. Clear and convincing evidence is “that kind of
proof that would persuade a trier of fact that the truth of the
contention is highly probable.” SMH v. State, 2012 WY 165,
¶ 19, 290 P.3d 1104, 1109 (Wyo. 2012); Meyer v. Norman,
780 P.2d 283, 291 (Wyo. 1989). The clear and convincing
standard must be applied consistently to each and every
charge against the attorney. Id.Bd. of Prof’l Responsibility v. Richard, 2014 WY 98, ¶¶ 51-53, ___ P.3d ___ (Wyo.
2014).
DISCUSSION
[¶30] Mr. Stinson objects to the Board’s recommended finding that he violated Rule
3.1(c), the Board’s limitation on the testimony of his expert witnesses, and the Board’s
recommended sanction and award of costs. We will address each of these questions
separately, and as a final matter, we will address Mr. Stinson’s Rule 11 motion.
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A. Rule 3.1(c) Violation
[¶31] Rule 3.1(c) of the Wyoming Rules of Professional Conduct provides:
The signature of an attorney constitutes a certificate by him
that he has read the pleading, motion, or other court
document; that to the best of his knowledge, information, and
belief, formed after reasonable inquiry, it is well grounded in
fact and is warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law;
and that it is not interposed for any improper purpose such as
to harass or to cause unnecessary delay or needless increase
in the cost of litigation.
[¶32] Comments 1 and 2 to Rule 3.1 are relevant to our consideration of Mr. Stinson’s
conduct. Comment 1 provides:
The advocate has a duty to use legal procedure for the fullest
benefit of the client’s cause, but also a duty not to abuse legal
procedure. The law, both procedural and substantive,
establishes the limits within which an advocate may proceed.
However, the law is not always clear and never is static.
Accordingly, in determining the proper scope of advocacy,
account must be taken of the law’s ambiguities and potential
for change.
[¶33] Comment 2 to Rule 3.1 states:
The filing of an action or defense or similar action taken for a
client is not frivolous merely because the facts have not first
been fully substantiated or because the lawyer expects to
develop vital evidence only by discovery. What is required of
lawyers, however, is that they inform themselves about the
facts of their clients’ cases and the applicable law and
determine that they can make good faith arguments in support
of their clients’ positions. Such action is not frivolous even
though the lawyer believes that the client’s position
ultimately will not prevail. The action is frivolous, however,
if the lawyer is unable either to make a good faith argument
on the merits of the action taken or to support the action taken
by a good faith argument for an extension, modification or
reversal of existing law.
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[¶34] The Board found clear and convincing evidence that Mr. Stinson violated Rule
3.1(c). Mr. Stinson objects to the recommended Rule 3.1(c) findings on the grounds that
they are unsupported by expert testimony or other clear and convincing evidence. We
will address first Mr. Stinson’s argument that the Bar was required to present expert
testimony on the charged violations, and then we will address whether the record contains
clear and convincing evidence that Mr. Stinson violated Rule 3.1(c).
1. Bar’s Lack of Expert Testimony to Support Rule 3.1(c) Violation
[¶35] Mr. Stinson contends that because the Bar presented no expert testimony on the
question of whether he violated Rule 3.1(c), no violation of the rule can be found. In so
arguing, Mr. Stinson relies on Painter v. Abels, 998 P.2d 931, 939 (Wyo. 2000), wherein
this Court held that a finding of unprofessional conduct by a medical doctor was
unsupported by substantial evidence because the finding was not supported by expert
testimony. Mr. Stinson’s reliance on Painter is misplaced.
[¶36] In Painter, this Court rejected the finding of unprofessional conduct unsupported
by expert testimony because the record left us with essentially no evidence against which
to evaluate the Board of Medicine's findings. We explained:
The Board found Dr. Painter’s participation in a
patient case study using an EDS machine was unprofessional
conduct “contrary to recognized standards of ethics of the
medical profession” under the American Medical
Association’s Code of Medical Ethics, supra, and thus a
violation of § 33–26–402(a)(xxvii). The Code of Medical
Ethics, supra, requires that participation in any such clinical
study be part of a systematic program competently designed
under accepted standards of scientific research to produce
scientifically valid and significant data. The Board provided
no expert testimony on this count. We addressed virtually the
same issue in Devous v. Wyoming State Board of Medical
Examiners, 845 P.2d 408, 418 (Wyo. 1993), in regard to §
33–26–402(a)(xv), (xviii), and (xxvi):
The crux of the issue is whether the record must
include expert testimony with respect to [the pertinent]
statutory grounds, or whether we must acknowledge
and accept the expertise of the Board members in
establishing standards that demonstrate infringement
of the statute.... If judicial review has any purpose, it
must be exercised by objectively evaluating evidence
14
in the record. There is no way that a judicial review
could reach the subjective determination of standards
by individual members of the Board.
Painter, 998 P.2d 939.
[¶37] Our subsequent decisions have emphasized that this holding does not mean that
expert testimony is required to support all findings of a professional code of conduct
violation. For example, in Billings v. Wyo. Bd. of Outfitters and Prof’l Guides, 2004 WY
42, ¶¶ 51–52, 88 P.3d 455, 474–75 (Wyo. 2004) (Billings II), we concluded that expert
testimony was not required to prove the professional standard and a breach thereof where
an outfitter willfully abandoned a client on a wilderness trail. We explained:
Neither the nature of the violation, nor the facts underlying it,
involves subject matter “not within our knowledge” or
requiring additional expert testimony. The state of the record
is such that in reviewing the issue, we are not required merely
to accept the Board’s subjective expertise for a standard that
demonstrates infringement of the statute. Contrary to
Billings’ argument, it does not appear that the Board’s use of
the term “abandonment” was for purposes of establishing a
formal standard of care, but was the Board’s factual
characterization of Billings’ actions.
Billings II, ¶ 52, 88 P.3d 475.
[¶38] Similarly, in Penny v. State ex rel. Wyo. Mental Health Professions Licensing Bd.,
2005 WY 117, 120 P.3d 152 (Wyo. 2005), this Court held that expert testimony was not
required to support findings that the license applicant violated the code of conduct
applicable to social workers by practicing without a license and losing a client file. We
reasoned:
We are satisfied that expert testimony was not required under
the particular circumstances now before this Court because,
as in Billings II, the nature of the alleged violations is “within
our knowledge.” For instance, accepting the Board’s
credibility determinations, the evidence is such that we are
left with little if any doubt that the appellant knowingly
practiced without a license and knowingly represented
himself as licensed when he was not. Further, the evidence
fully supports the conclusion that the appellant engaged in
practices clearly identified in Wyo. Stat. Ann. § 33–38–
102(a)(v) as “clinical social work,” including diagnosis and
15
counseling. And in the matter underlying the second
complaint, he either lost a client’s file, evidencing gross
incompetence, or he refused to produce it at the Board’s
request, either of which was a licensing violation. Expert
testimony was not required to establish these violations.
Penny, ¶ 32, 120 P.3d at 170-71.
[¶39] In so holding in Penny, we distinguished findings that require expert testimony,
explaining:
Clearly, this case is wholly unlike Billings I and
Devous. Here, rather than relying upon its members’
individual standards, the Board meticulously detailed in its
order the applicable statutory and administrative standards,
including the ethical codes adopted therein. The problem
identified in Billings I and Devous is the impossibility of
judicial review where the record does not reveal the identified
standard of professional care against which a licensee’s
conduct is to be measured. That problem does not exist here.
Once the legislature and the administrative agency have fully
identified the standard of care, it does not require expert
testimony, at least in the present circumstances, to establish
that standard.
Penny, ¶ 31, 120 P.3d at 170.
[¶40] Rule 3.1(c) likewise presents a clearly identified standard. The question before us,
under Rule 3.1(c), is whether, to the best of Mr. Stinson’s knowledge, information, and
belief, his filings in the federal proceedings were supported by fact and not interposed for
an improper purpose such as to harass or publicly embarrass. This question requires that
we review the filings signed by Mr. Stinson and compare his statements in those filings
with what he knew when he signed the filings. The record contains the evidence that will
allow us to complete this comparison, and we are therefore not presented with questions
that require us to use subjective or undefined standards to formulate an answer. The Bar
was therefore not required to present expert testimony on the Rule 3.1(c) question.1
1
In relying on this Court’s analysis in Billings II and Penny, we recognize that this Court is situated
differently when ruling on an attorney disciplinary matter. The Board is not an administrative agency,
and it is not governed by the Wyoming Administrative Procedure Act. Instead, the Board is an arm of
this Court, and when ruling on an attorney disciplinary matter, we are not acting in an appellate capacity
but are instead acting on a recommended ruling, with the ultimate judgment being vested in this Court.
Richard, ¶ 52, ___ P.3d ___. Nonetheless, we find the analysis in Billings II and Penny helpful, because,
although this Court is the ultimate decision-maker in these matters, we have made it clear that our
16
[¶41] Having determined that expert testimony was not required to prove the Rule 3.1(c)
violation, we turn next to the question of whether the record otherwise contains clear and
convincing evidence that Mr. Stinson’s filings in the federal proceedings violated Rule
3.1(c).
2. Evidence in Support of Rule 3.1(c) Violation
[¶42] The Board found clear and convincing evidence that Mr. Stinson violated Rule
3.1(c) and recommended the following conclusions of law:
4. An officer of the Court owes a duty of candor
that precludes a “head in the sand” response to the evidence
disclosed. While in many circumstances a lawyer may
reasonably rely on what a client tells the lawyer, doing only
that was insufficient in this matter after the LRD evidence
surfaced showing the client likely conspired with a witness to
obstruct justice. Instead of further informing himself about
the facts of his client’s case, Respondent assisted Schneider in
delaying production of evidence of relevant facts by filing a
motion to quash the subpoenas. Respondent then stood by as
Schneider not only failed to timely produce the financial
records and emails requested in the subpoenas, but also
disobeyed the Court’s order to produce all items requested in
the Subpoena by February 3, 2012. As a result, when
Respondent filed the Answer and Counterclaims in the
Second Federal Case, he not only failed to take independent
action to obtain and review Schneider’s records pursuant to
his duty to conduct a reasonable inquiry, he knew that
Schneider had failed to comply with legitimate discovery
requests for that information and had disobeyed the Court’s
order to produce that information by a date certain.
5. Respondent’s purpose in asserting the
affirmative defenses and counterclaims in the Second Federal
Case was not proper. Respondent asserted the defenses and
counterclaims not in an effort to advocate Schneider’s
legitimate rights, but in furtherance of Schneider’s objective
“determination must be made upon the evidence that was presented to the Board at the hearing.” Bd. of
Prof’l Responsibility v. Davidson, 2009 WY 48, ¶ 8, 205 P.3d 1008, 1012 (Wyo. 2009). Using the
Billings II and Penny analysis to determine the need for expert evidence helps to ensure that this Court’s
ruling on a disciplinary matter is based on the evidentiary record and not on a subjective evaluation of a
duty or standard of care.
17
to publicly embarrass and humiliate Biles beyond the harm
caused by the original defamatory mailing. Respondent did
so not by pleading facts bearing on Biles’ public reputation as
to his professional ability or supposed criminal act—subjects
addressed in the fliers mailed—but instead by seeking to
publish and publicize previously confidential and private
information about Biles.
[¶43] Mr. Stinson’s first two arguments concerning the sufficiency of the evidence focus
on the Board’s conclusions regarding the motion to quash that he filed on behalf of the
Schneiders. Specifically, Mr. Stinson argues that there is no evidence that he violated
Rule 3.1(c) by assisting his client in delaying production of evidence by filing the motion
to quash or by standing by as his client failed to timely comply with the court’s order
regarding the subpoena. We do not read the Board’s recommended conclusions as
holding that Mr. Stinson’s filing of the motion to quash was in itself a violation of Rule
3.1(c). The Board’s comments regarding the subpoena appear instead to be directed to
the Board’s conclusion that Mr. Stinson failed to investigate his client’s connection to the
dissemination of the defamatory flyer—suggesting that under the circumstances, Mr.
Stinson would have been better served by educating himself with the subpoenaed
information rather than seeking to prevent its disclosure.
[¶44] Regardless of the intention behind the Board’s conclusions of law concerning the
motion to quash, however, this Court agrees with Mr. Stinson that the record does not
contain clear and convincing evidence that the motion to quash was filed for an improper
purpose. Judge Johnson, who heard the motion to quash and ultimately denied the
motion, testified in the Board hearing that while he did not find the motion well taken, he
also did not find it frivolous. From our review of the record, we likewise find that the
record does not contain clear and convincing evidence that Mr. Stinson assisted his client
in delaying production of information, or that he stood by while his client failed to timely
comply with the subpoena.
[¶45] We do, however, find that the record contains clear and convincing evidence that
Mr. Stinson made allegations in the Answer and Counterclaim that he filed and signed on
behalf the Schneiders for which he did not have a good faith basis. We further find that
the record contains clear and convincing evidence that Mr. Stinson made allegations in
the Answer and Counterclaim that were made for the improper purpose of publicly
embarrassing the other party to the action, Dr. Biles. Both of these actions violated Rule
3.1(c).
[¶46] By the time Mr. Stinson filed the Answer and Counterclaim, he had the following
information:
18
--the self-executing discovery of Dr. Biles, which included documentation that Dr.
Schneider ordered and paid for the mailing labels that Ms. Fallon used in disseminating
the defamatory flyer;
--Ms. Fallon’s interrogatory responses in which she confirmed that Dr. Schneider had
provided the mailing labels and also stated that Dr. Schneider had provided her with
information concerning Dr. Biles and had encouraged her to send the flyer;
--reports of Ms. Fallon’s deposition testimony, which reports included not only her
testimony that she acted alone in disseminating the flyer, but also her testimony that the
Schneiders paid the costs associated with creating and mailing the flyer;
--the expressed concerns of Ms. Fallon’s attorney that Ms. Fallon was not being truthful
in her testimony and discovery responses in which she took full responsibility for the
flyer and that she was being coached by Dr. Schneider in responding to questions
concerning her involvement;
--Judge Johnson’s order denying the motion to quash in which he acknowledged Ms.
Fallon’s deposition testimony taking full responsibility for the flyer but still found that
there was enough of a question concerning Dr. Schneider’s involvement to warrant the
breadth of the subpoena; and
--the LRDs and Dr. Schneider’s admission that he had created the LRDs.
[¶47] We are particularly troubled by the LRDs. Neither the content nor the tone of the
LRDs fits with Dr. Schneider’s explanation to Mr. Stinson that in preparing the
documents, he was merely acting as Ms. Fallon’s scribe and providing her general
instruction on what to expect when she is deposed. The LDRs instructed Ms. Fallon on
how to answer deposition questions and contained assurances that she would not be hurt
if she adhered to the scripted answers as well as warnings regarding the jeopardy that she
would face if she deviated from the script and allowed Dr. Biles’ counsel to “turn her.”
Despite having the LRDs and the other above-described information that implicated Dr.
Schneider in flyer scheme, Mr. Stinson signed and filed the Answer and Counterclaim
with inclusion of the following statements:
[¶ 38(a)] Plaintiff has taken the deposition of Lisa Shaurette
Fallon in the related case of Biles v. Fallon. Ms. Fallon has
testified that she, and she alone, created the flier of which
Plaintiff complains is defamatory. Thus, Plaintiff has
obtained testimony under oath that contradicts and dispels the
allegations contained in Plaintiff’s complaint. As a result, the
allegations contained within the complaint are known to be
untrue by Plaintiff and are not made in good faith. Rather,
such allegations are made as part of long-standing animosity
Plaintiff has for John Schneider.
[¶ 54] Biles knew that his complaint was false and, despite
such knowledge, recklessly published the complaint by filing
the same in a public docket.
19
[¶48] Given the LRDs and the other information available to Mr. Stinson when he
prepared the Answer and Counterclaim, he had to know, at the very least, that questions
remained concerning his client’s connection to the dissemination of the defamatory flyer.
We therefore find the evidence clear and convincing that Mr. Stinson did not have a good
faith basis for including Paragraphs 38(a) and 54 in the Answer and Counterclaim.
[¶49] We turn then to statements contained in the Answer and Counterclaim that we find
were made for the improper purpose of embarrassing Dr. Biles. In this regard, we are
most concerned with Paragraph 43(b), which was included as an affirmative defense and
states:
Plaintiff is himself responsible for negative public
perceptions regarding him and his personality because
Plaintiff is known to and/or has: often consumed alcohol
while driving; consumed alcohol while driving with
employees while engaged in the course and scope of business;
allows or has allowed his wife – a non-medically trained
individual – to provide point of contact care for his patients
(and may bill Medicare, Medicaid and/or insurance
companies for these services); engaged in medical decision-
making while under the influence of alcohol; bad-mouths
other physicians and medical personnel; engages in
subversive conduct toward other physicians; creates conflict
with his employees and the employees of other physicians;
waived a gun around his office and pointed that gun at an
employee and commanded that the employee “dance”; fails to
pay people who provide goods and services at the ranch
owned by Plaintiff (or a company he controls); has failed to
uphold or fulfill contractual obligations and commitments to
parties connected to ranch activities and/or business ventures
and other acts which create and foster the bad reputation he
created for himself.
[¶50] Mr. Stinson contends that this paragraph was included in the Answer and
Counterclaim not to cause embarrassment but rather to ensure that the pleading complied
with the specificity required in federal pleadings by the Iqbal-Twombly standard. The
Iqbal-Twombly standard requires as follows:
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face.” Id., at 570, 127
S.Ct. 1955. A claim has facial plausibility when the plaintiff
20
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Id., at 556, 127 S.Ct. 1955. The
plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that
a defendant has acted unlawfully. Ibid. Where a complaint
pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Id., at 557, 127 S.Ct.
1955 (brackets omitted).
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)).
[¶51] We will assume for purposes of our analysis here that the Iqbal-Twombly standard
extends to the pleading of an affirmative defense, although that is less than certain. See,
5 Charles Alan Wright and Arthur R.. Miller, Fed. Prac. & Proc. Civ. § 1274 (3d ed.)
(Supp. 2014) (courts are divided on whether Iqbal-Twombly standard extends to pleading
of affirmative defenses); Malibu Media, LLC v. Ryder, 2013 WL 4757266 * 2 (Tenth
Circuit has not addressed whether Iqbal-Twombly standard extends to pleading of
affirmative defenses). Even assuming the requirement of enhanced detail and specificity
required by the Iqbal-Twombly standard applied to the pleading of Dr. Schneider’s
affirmative defenses, this Court is not persuaded that compliance with that standard was
the motivation behind Paragraph 43(b) of the Answer and Counterclaim. The record
instead persuades us that the paragraph was included for the purpose of embarrassing Dr.
Biles.
[¶52] We reach this conclusion and our agreement with the Board’s recommended
finding for a number of reasons. First, while Paragraph 43(b) contains significant detail
concerning alleged bad behavior by Dr. Biles, it contains no detail as to how the
referenced acts are alleged to be a matter of public knowledge. This is in contrast to the
allegations in Paragraph 43(a), relating to Dr. Biles’ DWUI arrest, wherein the
affirmative defense specified how the DWUI arrest was allegedly a matter of public
record: “Park County, Wyoming uses a public booking system that displays photographs
and charges of people arrested.” If insulating the affirmative defense from a motion to
strike were truly what motivated the detail in Paragraph 43(b), we would expect the
defense to identify how the acts are publicly known, rather than just listing alleged bad
acts, most of which were wholly unrelated to the acts alleged in the defamatory flyer.
[¶53] We are further persuaded that the improper purpose of embarrassing Dr. Biles
motivated the pleading because of the press release that accompanied the filing of the
Answer and Counterclaim. The Answer and Counterclaim was filed on February 21,
21
2012. Mr. Stinson’s billing records on the Schneider matter show that also on February
21, 2012, he spoke with Kim Sapone, an employee of Acclaim, LLP Public Relations,
regarding the Answer and Counterclaim. On February 22, 2012, Ms. Sapone sent a press
release to the Cody Enterprise and the Billings Gazette, which stated:
Local Surgeon’s Response to Libel Allegations
Cody, WY – Dr. John H. Schneider, Neurosurgeon, filed in
federal court on Tuesday in response to recent allegations of
defamation of character by orthopedic surgeon, Dr. Jimmie
Biles. Dr. Schneider’s response not only addresses the suit
brought on by Dr. Biles but will carry with it a countersuit on
behalf of Dr. John H. Schneider as well as a suit on behalf of
the People of Wyoming.
Court filings hold sworn testimony that proves Dr. Schneider
had no involvement in the negative flyer distributed last
December about Dr. Biles. The individual named in
disseminating the flyer testified that she, and she alone,
created the flyer. Court records also indicate that Dr. Biles
has a long history of erratic, alcohol and substance abuse
related behavior that has left many, including patients, the
general public and Dr. Schneider, feeling victimized.
“It’s a shame it had to come to this,” said Dr. Schneider. “Dr.
Biles has some personal demons to overcome, and I feel sorry
for him. It’s sad to see a man lash out at others in a desperate
attempt to salvage a career that is crumbling around him. I
hope he is able to get healthy and in control again someday.”
Attorney for Dr. Schneider, Laurence Stinson of Bonner
Stinson Law Firm, feels the suit brought on by Dr. Biles is
another attempt to cause harm to Dr. Schneider “as a result of
long-standing animosity and jealousy toward Dr. Schneider,
his former friend, who refused to finance a ranch operation
owned by Dr. Biles.”
Dr. Schneider continued “We look forward to getting this
over with so we can get back to our purpose – helping our
patients and our community.” Dr. Schneider stated that he
has tried to take the higher ground in his dealings with Dr.
Biles over the last several years, but “my personal integrity
and my professional career demand that I not stand idly by
any longer.”
[¶54] In the hearing before the Board, Mr. Stinson denied that he approved this press
release or that he provided a quote to Ms. Sapone. Mr. Stinson confirmed that he had
talked to Ms. Sapone and testified that he believed he had talked to her more than once,
22
stating, “Partly I was trying to get them to quit doing this.” This testimony does not
change our view of the manner in which the affirmative defenses were pled. Mr. Stinson
testified that he knew of his client’s animosity toward Dr. Biles. Indeed, Dr. Schneider
made his intentions clear early in the federal proceedings when Ms. Fallon’s attorney
informed both Mr. Stinson and Dr. Schneider, by e-mail, that Dr. Biles’ counsel was
going to argue that Dr. Schneider was Ms. Fallon’s co-conspirator in disseminating the
defamatory flyer. Dr. Schneider responded, with a copy to Mr. Stinson, “I am well aware
of the tact and Laurence is mounting a devastating counter suit against Biles.” Mr.
Stinson knew of his client’s animosity, knew his client wanted to deal a devastating blow
to Dr. Biles, and knew his client was working on a press release. Under these
circumstances, the utmost care should have been taken in preparing the Answer and
Counterclaim to ensure its compliance with Rule 3.1(c). The pleading was not so
prepared and was instead crafted to serve the improper purposes of Dr. Schneider. The
record contains clear and convincing evidence that the pleading violated Rule 3.1(c).
B. Limitation on Expert Testimony
[¶55] We addressed earlier in this opinion the reasons that the Bar was not required to
present expert testimony to prove the rule violations at issue in this matter. We now turn
to the related question of whether the Board erred in limiting the expert testimony that
Mr. Stinson sought to introduce.
[¶56] Our first task in ruling on this question is to determine the standard to be used in
reviewing the Board’s evidentiary rulings. Typically, we review a trial court’s ruling on
the admissibility of expert evidence for an abuse of discretion. Craft v. State, 2013 WY
41, ¶ 28, 298 P.3d 825, 833 (Wyo. 2013). As noted earlier, however, this Court sits in a
unique posture in ruling on attorney disciplinary matters. We have described the division
of functions between this Court and the Board as follows:
In Meyer v. Norman, 780 P.2d 283, 286–288 (Wyo.
1989), we described the structural relationship between the
Wyoming Supreme Court and the Wyoming State Bar, but we
did not detail the procedure that this Court follows in
reviewing and acting upon a disciplinary recommendation of
the Board. Although the case arose under earlier versions of
the Rules of Professional Conduct and the Disciplinary Code,
the procedural holdings of Mendicino v. Whitchurch, 565
P.2d 460, 465–66, 475 (Wyo. 1977) remain valid; that is, the
Board is an arm of this Court whose purpose is to investigate
allegations of professional misconduct and to report its
findings and recommendations to the Court, which is the
ultimate decision-maker in attorney disciplinary matters.
Sections 21(c)(iii) and (iv) of the current Disciplinary Code
23
make it clear that the Court’s determination of appropriate
discipline is its own, but that the determination must be made
upon the evidence that was presented to the Board at the
hearing. That process has been described as: “All attorney
discipline cases require a two step analysis. First, the Court
must determine whether the record supports the findings and
recommendations, then it must independently determine the
sanctions warranted by the facts of the case.” Idaho State Bar
v. Souza, 142 Idaho 502, 129 P.3d 1251, 1254 (2006).
Davidson, ¶ 8, 205 P.3d at 1012.
[¶57] In other words, the Disciplinary Code has structured disciplinary proceedings so it
is the Board that hears evidence in the first instance and compiles the record. As part of
that division of duties, the Disciplinary Code authorizes the Board, through either a
disciplinary judge or the Board chair, to rule on evidentiary matters in accordance with
the Wyoming Rules of Evidence. See Disciplinary Code §§ 8(g)(vi), 9(b)(iii), 19(b). In
performing this function, the Board is called upon to exercise the same discretion that a
trial court exercises in ruling on the admissibility of evidence. Given the structure of our
attorney disciplinary proceedings, the division of functions between this Court and the
Board, and the discretion the Board must necessarily use in ruling on the admissibility of
evidence, we see no reason to deviate from our abuse of discretion standard of review.
We will thus review the Board’s limitation on Mr. Stinson’s proffered expert testimony
using our abuse of discretion standard of review and will find an abuse of discretion only
if the Board could not have reasonably concluded as it did in limiting the testimony of
Mr. Stinson’s designated experts. See Stalcup v. State, 2013 WY 114, ¶ 18, 311 P.3d
104, 110 (Wyo. 2013) (“A trial court abuses its discretion when it could not have
reasonably concluded as it did.”).2
[¶58] W.R.E. 702 governs the admissibility of expert testimony and provides that such
evidence is admissible if it “will assist the trier of fact to understand the evidence or to
determine a fact in issue.” W.R.E. 702 (LexisNexis 2014). The Board permitted Mr.
Stinson’s experts to testify subject to the following limitation:
2
We will not address the limitations the Board placed on expert testimony concerning the charged Rule
3.3 violations because the Board found no violation of Rule 3.3 and therefore those charges and the
evidentiary rulings related thereto are not before the Court. We likewise will not discuss the limitations
placed on Judge Johnson’s testimony. Judge Johnson’s proposed opinion regarding Rule 3.1(c) addressed
only the filing of the subpoena, and we have already concluded that the filing of the subpoena did not
violate Rule 3.1(c). Our discussion of the limitations on expert testimony will therefore be confined to
the limitations on the opinions of Judge Freudenthal and Richard Honaker concerning the Rule 3.1(c)
violations.
24
Neither Mr. Honaker, Judge Freudenthal, nor Judge Johnson
may testify as to whether or not any actions or inactions by
the Respondent were or were not ethical; were or were not in
compliance with any Rule of Professional Conduct; or
whether or not any specific state of mind of the Respondent
or any other attorney would or would not constitute a
violation of the Rules of Professional Conduct.
[¶59] Mr. Stinson designated Judge Freudenthal as an expert witness who would testify
in keeping with the opinions stated in her expert affidavit. Concerning the charged
violations of Rule 3.1(c), Judge Freudenthal offered the following opinions:
8. I also do not believe that Mr. Stinson violated
Rule 3.1(c) of the Wyoming Rules of Professional Conduct
by using the Fallon deposition testimony as he understood it
to be to vigorously defend Dr. Schneider.
9. In regard to the aspect of the charge against Mr.
Stinson that he should not have included the detailed
allegations directed at Dr. Biles in his Answer and
Counterclaim, current federal law requires more than
conclusory facts to be included in a Counterclaim to avoid
dismissal under the Iqbal/Twombly line of cases.
[¶60] Judge Freudenthal was permitted to provide testimony consistent with the opinion
offered in Paragraph 9 of her affidavit, so that portion of her proffered testimony is not at
issue. With respect to the opinion offered in Paragraph 8 of the affidavit, the Board
adhered to its exclusion of any opinion as to whether the Answer and Counterclaim
violated a rule of conduct, but Judge Freudenthal was permitted to testify:
Q. Okay. Did you ever believe that Mr. Stinson’s
use of the admissions in the Lisa Fallon deposition in his
defense of the Schneiders was improper in any way? And I
don’t mean to ask that in regard to any ethical obligations.
A. I wasn’t surprised by his use of those. I didn’t
consider it improper –
Q. Okay.
A. -- in terms of what to expect in the course of
that case. I expected that fight.
[¶61] The record shows that the Board took a similar approach in limiting Richard
Honaker’s testimony. Mr. Stinson designated Mr. Honaker to provide the following
opinions concerning the charged Rule 3.1(c) violations:
25
b. Mr. Stinson did not violate Rule 3.1(c) of the
Wyoming Rules of Professional Conduct by relying upon the
Fallon deposition testimony to defend Dr. Schneider and to
assert a counterclaim on Dr. Schneider’s behalf in Biles v.
Schneider, United States District Court, District of Wyoming,
Civil No. 11-CV-366-F.
***
(10) Nothing changed in the case for Mr. Bonner and
Mr. Stinson between late November 2011 and the afternoon
of April 23, 2012, when Mr. Bonner and Mr. Stinson received
documents (not the “laundry room documents”) from
Plaintiff’s counsel that proved to them, for the first time, that
their client had lied to them and in fact had attempted to
manipulate the legal process through a fraudulent delay of the
Fallon deposition. At that point they made the decision to
withdraw from any further representation of Dr. Schneider.
(11) Because the Rules did not require Mr. Bonner
and Mr. Stinson to withdraw earlier than April 23, 2012, they
owed their client, Dr. Schneider, prior to that date, an ethical
duty to represent him competently and effectively, abiding by
his decisions concerning the objectives of representation. It
would have violated that ethical duty, and, in addition, likely
would have constituted legal malpractice, for Mr. Bonner and
Mr. Stinson to ignore the single piece of sworn testimony that
existed – the deposition of Lisa Fallon – and to fail to use that
sworn testimony to their client’s advantage.
(12) Mr. Bonner and Mr. Stinson were acting as
advocates for a client within the adversary system. “As an
advocate, a lawyer zealously asserts the client’s position
under the rules of the adversary system.” (Wyoming Rules of
Professional Conduct, Preamble: a Lawyer’s Responsibilities,
[2]). The adversary system only works when each party has
independent counsel and is well represented, and an
independent, fair, and impartial tribunal decides the issues of
fact and law. As advocates for their client, it was not Mr.
Bonner’s or Mr. Stinson’s role to weigh the evidence and to
adjudicate whether or not Ms. Fallon had committed perjury
in her deposition or whether Dr. Schneider, despite his
protestations to the contrary, had suborned such perjury. The
final result of these cases – settlement of both cases well
before trial settings – bears out that the adversary system
worked well, with each participant representing his or her
26
client effectively, and that justice was done. Mr. Bonner and
Mr. Stinson played their roles appropriately, with careful and
prudent deliberation, and nothing they did resulted in any
fraud upon the judicial system or miscarriage of justice.
Rather than being prejudiced, it appears likely that the
Plaintiff benefitted from the way the process played itself out.
As more facts gradually came to light, the Plaintiff’s cases
became stronger, and voluntary settlements occurred.
(13) With regard to the aspect of the charge against
Mr. Stinson that he should not have included such detailed
allegations in his Answer and Counterclaim, the Bar admits
that Mr. Stinson had a factual basis for those allegations. The
Bar alleges that such detail was not necessary and was done
only for “purposes of harassment and embarrassment”
(Formal Charge, ¶ 77). Current federal law, however,
requires detailed pleadings to avoid dismissal. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009). Wyoming’s
state courts are moving in the same direction. See, for
example, Rule 3 of the Wyoming Rules of Civil Procedure for
Circuit Courts. The Answer and Counterclaim complied with
current federal standards of pleading, demonstrating Mr.
Stinson’s competence under Rule 1.1, Wyoming Rules of
Professional Conduct, to represent a client in the United
States District Court.
[¶62] The hearing transcript shows that Mr. Honaker was permitted to and did testify to
all of the above-designated opinions, subject only to the limitation that he not testify as to
whether Mr. Stinson violated Rule 3.1(c). In particular, Mr. Honaker was permitted to
testify: that an attorney “must presume the client’s being honest until proven otherwise;”
that there was nothing inappropriate in the manner that Mr. Stinson pled the Answer and
Counterclaim; that “the pleading was, with specificity, required by the legal precedent;”
and that the detail in the pleading was “a positive thing” because it put the plaintiff on
notice as to where the defendant would be coming from. Mr. Honaker was also permitted
to testify:
Q. Was Laurence Stinson in any way obligated to
determine the reliabilities of the Fallon testimony before
using it in his client’s defense?
A. Well, he had a responsibility as a lawyer, if he
knew it was false – you know, a lawyer cannot present false
evidence to a court. That would be a terrible thing to do. So
unless he knew it was false, it was something that he owed a
27
responsibility to his client to present. It was evidence that –
apparently it was favorable to his client. I think that if he
reasonably believed that it was false, it still would have been
proper to present it.
Q. Do you believe that he would have been
obligated to use it only if he knew it was true?
A. No, to the contrary. I think a lawyer is
obligated to use evidence that’s favorable to their client
unless they know it’s false.
[¶63] Essentially, Mr. Stinson was permitted to present the designated opinion testimony
of Judge Freudenthal and Mr. Honaker almost in its entirety, with the only limitation
being that neither witness was permitted provide an opinion on the ultimate question of
whether Mr. Stinson violated Rule 3.1(c). We find no abuse of discretion in the Board’s
ruling.
[¶64] This Court has held that a trier of fact does not abuse its discretion when it
excludes expert testimony on a question of law. Ruby Drilling Co., Inc. v. Duncan Oil
Co., Inc., 2002 WY 85, ¶ 22, 47 P.3d 964, 971 (Wyo. 2002) (“Contract construction is a
question of law and solely within the court’s province.”). In Ruby Drilling, we explained
the distinction between expert testimony that may be excluded as encroaching on a
question of law and that which should not be excluded:
Ruby relies on Samson Resources Company v. Quarles
Drilling Company, 783 P.2d 974, 977 (Okla.Ct.App.1989).
The Samson Resources case involved a drilling contract with
an explicit modification clause governing conditions which
would trigger a change from a footage to a day work contract.
The Samson Resources trial court excluded expert testimony
on the industry custom and usage regarding notice of such a
change intended to apprise the contracting parties of a
modification of the contract from footage to day work. The
Samson Resources appellate court found the industry
evidence was relevant to proper construction of the contract.
We agree with this result and point out the trial court in the
appeal before us permitted testimony regarding industry
custom and usage. However, the Samson Resources case does
not support Ruby’s position that its expert should have been
permitted to testify as to the proper contract construction or
which party he believed was obligated to ensure inclusion of
specific clauses in the contract. Here, the trial court was
absolutely correct and fully within its broad discretion when it
precluded the attempt to have Ruby’s expert witness construe
28
the contract. Contract construction is a question of law and
solely within the court’s province.
Ruby Drilling, ¶ 22, 47 P.3d at 971.
[¶65] The Board’s ruling on Mr. Stinson’s proffered expert testimony tracked this
approach. The Board allowed expert testimony on considerations that Mr. Stinson argued
justified the manner in which he pled the allegations in the Answer and Counterclaim,
including the legal requirements governing federal pleadings and a lawyer’s obligations
to a client. This testimony, by addressing the context of the pleadings, was directed at
assisting the trier of fact in understanding the evidence or determining a fact in issue—the
reasons Mr. Stinson pled the Answer and Counterclaim as he did. The expert opinions on
whether Mr. Stinson violated Rule 3.1(c), on the other hand, are not opinions that assist
the trier of fact in understanding the evidence or determining a fact in issue. They instead
offer a legal conclusion, which is the province of the Board and this Court.
[¶66] Answering the question of whether Mr. Stinson’s conduct violated Rule 3.1(c) is
properly left to the Board and ultimately this Court. As we discussed earlier, Rule 3.1(c)
is not a rule of professional conduct that requires definition or clarification by expert
testimony because the rule sets forth an objective standard that the Board and this Court
are able to apply to the facts in evidence. Importantly, our decision whether there has
been a violation of the Rules of Professional Conduct must be based on the entire
evidentiary record. See Richard, ¶ 2, ___ P.3d ___, n.1 (emphasizing that this Court’s
decision is based on “an independent review of the entire record”); Davidson, ¶ 8, 205
P.3d at 1012 (this Court’s “determination must be made upon the evidence that was
presented to the Board at the hearing”). This highlights the deficiency in an expert
opinion on the ultimate conclusion of law. In most cases, and certainly in this case, the
expert opinions are based not on the entire evidentiary record before the Board but rather
on a narrow subset of the evidence.3 While opinions concerning factors that must be
considered in preparing competent pleadings may assist the trier of fact, in this case, a
3
That the expert opinions offered in this matter were based on less than the entire record on which this
Court must base its ultimate conclusions was clear from the expert testimony. For example, Judge
Freudenthal testified that she ruled only on the particular motions that were brought before her and that
she was not asked to do any further examination of other matters. Mr. Honaker testified to reviewing a
broader base of documents, many described in only general terms, such as “e-mails produced by [Ms.
Fallon’s attorney],” and “e-mails produced by Mr. Stinson.” It was nonetheless clear from his testimony
that the documents reviewed did not include the entire record that was before the Board or this Court. For
example, the press release issued by Dr. Schneider’s public relations firm was neither identified as a
document that Mr. Honaker reviewed nor discussed in his analysis of Mr. Stinson’s pleadings. Finally,
the experts were not present for the hearing testimony of any of the witnesses, including Mr. Stinson’s
testimony, and that testimony therefore was not factored into their opinions regarding whether Mr.
Stinson violated a rule of professional conduct.
29
legal conclusion based on less than the entire evidentiary record is not helpful. The
Board thus did not abuse its discretion in limiting the expert testimony.
C. Determination of Appropriate Sanction
[¶67] In determining the appropriate sanction for an attorney’s rule violation, this Court
is guided by the American Bar Association’s Standards for Imposing Lawyer Discipline
(ABA Standards). See Richard, ¶ 70 ___ P.3d ___; Casper, ¶ 25, 318 P.3d at 797-801.
The Board identified the following applicable standards in its Report and
Recommendation for Public Reprimand:
3. ABA Standard 3.0 lists four factors to be
considered in imposing a sanction after a finding of lawyer
misconduct:
(a) the duty violated;
(b) the lawyer’s mental state;
(c) the potential or actual injury caused by the lawyer’s
misconduct; and
(d) the existence of aggravating or mitigating factors.
The First Factor: The Duty Violated
4. Violations of Rule 3.1(c) fall within the
Standard 6.2, “Abuse of the Legal Process.”
Absent aggravating or mitigating circumstances, upon
application of the factors set out in Standard 3.0, the
following sanctions are generally appropriate in cases
involving failure to expedite litigation or bring a meritorious
claim, or failure to obey any obligation under the rules of the
tribunal except for an open refusal based on an assertion that
no valid obligation exists:
6.21 Disbarment is generally appropriate when a lawyer
knowingly violates a court order or a rule with the intent to
obtain a benefit for the lawyer or another, and causes serious
or potentially serious injury to a party or causes serious or
potentially serious interference with a legal proceeding.
6.22 Suspension is generally appropriate when a lawyer
knows that he or she is violating a court order or rule, and
30
causes injury or potential injury to a client or a party, or
causes interference or potential interference with a legal
proceeding.
6.23 Reprimand [i.e., “public censure” under Section 4(a)(iii)
of Wyoming’s Disciplinary Code] is generally appropriate
when a lawyer negligently fails to comply with a court order
or rule, and causes injury or potential injury to a client or
other party, or causes interference or potential interference
with a legal proceeding.
6.24 Admonition [i.e., “private reprimand” under Section 4(b)
of Wyoming’s Disciplinary Code] is generally appropriate
when a lawyer engages in an isolated instance of negligence
in complying with a court order or rule, and causes little or no
actual or potential injury to a party, or causes little or no
actual or potential interference with a legal proceeding.
The Second Factor: The Lawyer’s Mental State
5. The preamble to the ABA Standards includes
the following discussion regarding mental state:
The mental states used in this model are defined as follows.
The most culpable mental state is that of intent, when the
lawyer acts with the conscious objective or purpose to
accomplish a particular result. The next most culpable mental
state is that of knowledge, when the lawyer acts with
conscious awareness of the nature or attendant circumstances
of his or her conduct both without the conscious objective or
purpose to accomplish a particular result. The least culpable
mental state is negligence, when a lawyer fails to be aware of
a substantial risk that circumstances exist or that a result will
follow, which failure is a deviation of a care that a reasonable
lawyer would exercise in the situation.
***
The Third Factor: The Potential Or Actual Injury Caused
By The Lawyer’s Misconduct
7. Under the ABA Standards, “injury” is defined
as “harm to a client, the public, the legal system, or the
profession which results from a lawyer’s misconduct. The
level of injury can range from ‘serious’ injury to ‘little or no’
injury; a reference to ‘injury’ alone indicates any level of
31
injury greater than ‘little or no’ injury.” “Potential injury” is
defined as “harm to a client, the public, the legal system or
the profession that is reasonably foreseeable at the time of the
lawyer’s misconduct, and which, but for some intervening
factor or event, would probably have resulted from the
lawyer’s misconduct.”
***
The Fourth Factor: The Existence Of Aggravating Or
Mitigating Factors
ABA Standard 9.0, entitled “Aggravation and Mitigation,”
provides as follows:
9.1 Generally
After misconduct has been established, aggravating and
mitigating circumstances may be considered in deciding what
sanction to impose.
9.2 Aggravation
9.21 Definition. Aggravation or aggravating circumstances
are any considerations or factors that may justify an increase
in the degree of discipline to be imposed.
9.22 Factors which may be considered in aggravation.
Aggravating factors include:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by
intentionally failing to comply with rules or orders of the
disciplinary agency;
(f) submission of false evidence, false statements, or other
deceptive practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of the victim;
(i) substantial experience in the practice of law;
32
(j) indifference in making restitution; and
(k) illegal conduct, including that involving the use of
controlled substances.
9.3 Mitigation
9.31 Definition. Mitigation or mitigating circumstances are
any considerations or factors that may justify a reduction in
the degree of discipline to be imposed.
9.32 Factors which may be considered in mitigation.
Mitigating factors include:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify
consequences of misconduct;
(e) full and free disclosure of disciplinary board or
cooperative attitude toward proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including
alcoholism or drug abuse when:
(1) there is medical evidence that the respondent is affected
by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the
misconduct;
(3) the respondent’s recovery from the chemical dependency
or mental disability is demonstrated by a meaningful and
sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of
that misconduct is unlikely.
33
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(l) remorse; and
(m) remoteness of prior offenses.
9.4 Factors Which Are Neither Aggravating nor Mitigating.
The following factors should not be considered as either
aggravating or mitigating:
(a) forced or compelled restitution;
(b) agreeing to the client’s demand for certain improper
behavior or result;
(c) withdrawal of complaint against the lawyer;
(d) resignation prior to completion of disciplinary
proceedings;
(e) complainant’s recommendation as to sanction; and
(f) failure of injured client to complain.
[¶68] The Board recommended that this Court issue a public censure as the appropriate
discipline in response to Mr. Stinson’s rule violations. Mr. Stinson contends that if the
Court does find a rule violation, then a private reprimand is the proper level discipline.
The Bar counters that the Court should consider imposing a disciplinary suspension
instead of the recommended public censure. Based on our consideration of the four
factors set forth above, we agree with the Board’s recommended sanction and conclude
that a public censure is the appropriate level of discipline.
[¶69] In considering the first two factors, the duty violated and the lawyer’s mental state,
our goal is to determine whether Mr. Stinson’s rule violation was committed negligently
or knowingly. If the violation was committed knowingly, that weighs in favor of a
suspension, whereas a negligent violation would weigh in favor of a public censure or
private reprimand. Mr. Stinson testified as to his mental state regarding the Answer and
Counterclaim and the press release that immediately followed the filing:
Q. Weren’t you concerned, when you filed your
answer and counterclaim and your client used this press
release, that the purpose of the answer and counterclaims
34
were just to smear Dr. Biles in every way possible, and to do
that in the media?
A. I was concerned that Dr. Schneider had thought
some things were going on with Dr. Biles we weren’t able to
verify, so we didn’t file counterclaims on those. With regard
to the other information, I thought we had good investigative
sources for that. And as Becky mentioned in her openings,
we did all those investigations. Did I think my client was
angry at Dr. Biles, yes. And I thought Dr. Biles was angry at
my client.
Q. Did you think he was using you and your law
enforcement license to put things in the court files so he could
issue press releases to defame Dr. Biles further?
A. Now or then?
Q. When these articles came out.
A. No, I didn’t think that then. I was too busy
doing other things. Now I think it, and I wish he wouldn't
have issued press releases. I don’t like it when clients do
things like that.
[¶70] During the sanctions portion of the hearing before the Board, Mr. Stinson further
explained:
Q. (BY BOARD MEMBER ARNEY) * * * Do
you feel that the kind of personality Dr. Schneider was, if not
overwhelmed, that you were pushed, maybe, beyond your
good senses? Did you feel – and that happens to all of us, I
realize. But did you feel pressure from him, maybe, to do
things that, upon reflection, you wouldn’t do again?
A. Oh, yeah. And you know the funny thing is,
Mr. Arney, is [Dr. Biles’ attorney] Dan Fleck was kind of
trying to tell everybody this, but we were – we had such our –
you know, our adversary hats on. And litigation with The
Spence Firm is tough. You’ve done that, and it seemed like a
game. We thought we were being tricked. He kept saying
like, man, you guys got to look at this, and we on our side
were like what’s this guy talking about? And I did feel that
way.
***
I felt conned by Dr. Schneider, but I also felt like I let
myself be conned.
35
[¶71] While Mr. Stinson arguably should have known that the allegations in the Answer
and Counterclaim were not grounded in a good faith factual basis and that they were
being made for an improper purpose, we accept his explanation that he did not knowingly
violate Rule 3.1(c) and was instead improperly influenced by his client. For this reason,
we reject the Bar’s suggestion that a suspension is the appropriate level of discipline, and
we turn to the final two factors to determine whether they weigh in favor of a public
censure or private reprimand.
[¶72] The third factor is the potential or actual injury caused by the misconduct. Mr.
Stinson acknowledged in his testimony that the filing of the Answer and Counterclaim
received widespread coverage in newsprint:
Q. This press release went out on February 22nd,
the next day after your filing of the answer and counterclaim?
A. Yes.
***
Q. It goes to the Cody Enterprise, which some
people don’t read. It goes to –
A. I’m going to go with most of Cody, but . . .
Q. -- the Billings Gazette.
The Powell Tribune got their hands on it. You
know that because they wrote an article, right?
A. Well, I think Cody wrote – I think everybody
wrote an article. I mean, at some point Casper Star-Tribune
wrote an article, everything said in court was being reprinted.
Q. Yeah.
A. The Cody Enterprise, they’re always a day
behind everybody else, and the Gazette. There were articles
flying. I mean, it was number one news story for a while in
Cody.
[¶73] Counsel for Dr. Biles testified concerning the impact that the Answer and
Counterclaim and its publication had on Dr. Biles:
Q. What impact did this strategic approach of the
counterclaims have on your client?
A. Well, it devastated him. He was – he was
horribly embarrassed that he had a DUI to begin with. It was
a low point for him, obviously. Then to have it brought to
light was something he expected, because it was in the public.
But everything that came as a result of what they did to him
was certainly a horrific thing that he had happen in his life.
But then to have, when he trying to vindicate himself by
36
filing the defamation lawsuit and by exercising his rights to
access the courts, then to be castigated again for simply filing
that lawsuit, being called a drunk in press, saying that he has
problems, saying that he needs help, those are all things that
were, you know, a further insult to him, at the very time when
he was trying to – rectify things.
[¶74] The Answer and Counterclaim was intended, at least by Mr. Stinson’s client, to be
used as a source for a press release and further dissemination of the allegations against
Dr. Biles. This improper use, which Mr. Stinson made possible, caused harm to Dr.
Biles, and this harm weighs in favor of a public censure.
[¶75] The final factor we must consider is the existence of mitigating or aggravating
circumstances. The Board found two mitigating factors, and from our review of the
record we agree with the finding:
10. The Board finds the following mitigating
factors: (1) absence of a prior disciplinary record and (2)
good reputation as a competent attorney. Respondent called
as witnesses at the hearing before the Board Judge Alan
Johnson and Judge Nancy Freudenthal, the two federal judges
who presided over the Federal Case [Biles v. Fallon] and the
Second Federal Case [Biles v. Schneider]. It was evident to
the Board from their willingness to appear and from their
testimony that both judges considered Respondent to be a
competent attorney of good reputation.
[¶76] The Board also found two aggravating factors: 1) Mr. Stinson’s substantial
experience, eighteen years, in the practice of law; and 2) his refusal to acknowledge the
wrongful nature of his conduct. Mr. Stinson contests the second aggravating factor
identified by the Board, contending that the only evidence the Board could be relying on
for this finding is Mr. Stinson’s insistence on a hearing on the Formal Charge. We
disagree.
[¶77] During the sanctions portion of the hearing before the Board, Mr. Stinson
appeared to acknowledge the wrongful nature of his conduct, but then moments later, he
retracted that acknowledgement and maintained that his manner of pleading the Answer
and Counterclaim was proper. When asked by his counsel to discuss with the Board what
he believed to be mitigating factors, Mr. Stinson testified, in part:
A. * * * I did not think you were going to find –
find me culpable on the 3.3(b), but I did think so on the
3.1(c). And I thought so because as this proceeding has
37
progressed – and I regret that. I didn’t like it. And if I had to
go back and do it again, that wouldn’t be the pleading that I
drafted. And I have learned a lot from it. So I acknowledge
that, and that’s kind of what I thought was going to come
back.
There’s obviously a lot of things in this particular
circumstance I wouldn’t have – would do differently, but one
of them is better written communication with my own client.
So I acknowledge that’s a problem. And I didn’t like that
pleading. And that’s not going to be the way it happens in the
future. * * *
***
Q. (BY VICE CHAIRMAN BLUEMEL): * * *
So you’ve said here that, yeah, there’s some things in the
pleading that I’m not pleased with and I wouldn’t do it again.
A. Yes.
Q. What does that – what are you not pleased
with?
A. So I don’t – I think you could have found either
way on it, okay? I mean, I think I – you know, I met legal
pleading standards to do it. But when I look back on this case
with hindsight, I don’t like how that pleading was – it played
like [Special Bar Counsel] was saying it played. I mean, that
wasn’t the intent of it. But when you look at it, it was like,
wow, these allegations look like these two high school kids
fighting over it. And I think I could have found some other
way to do that. I’m not sure how, but I think I could have
found some other way.
Q. When did you realize it?
A. Kind of had that whole prophecy as it was
going on here and we were talking about it and Dan Fleck
was talking about it. I’m not trying to be duplicitous with
you. I think you could have found I did just fine. I think I
met legal proceeding standards. I think I had factual grounds
to do it, but just realize I’d do it differently.
[¶78] Having considered all four factors—the duty violated, Mr. Stinson’s mental state,
the harm caused by the violation, and the aggravating and mitigating circumstances—we
agree with the Board that the appropriate sanction for the violation is a public reprimand.
D. Recommended Order Assessing Costs
38
[¶79] As part of its recommendation, the Board recommended that the Court enter an
order reimbursing the Bar for costs incurred in this matter in the amount of $15,613.76,
as supported by the Bar’s Affidavit of Costs and Expenses. Mr. Stinson objects to the
assessment of costs on the grounds that 1) the recommendation did not allow him an
opportunity to respond to the Bar’s affidavit of costs; 2) the recommendation failed to
separate costs between the Rule 3.3 and Rule 3.1 charges; and 3) the recommendation
failed to consider whether the Bar’s costs were reasonable. We reject Mr. Stinson’s
objection and accept the Board’s recommendation.
1. Opportunity to Respond to Affidavit of Costs
[¶80] This Court has ruled that before costs may be assessed against an attorney in a
disciplinary proceeding, that attorney must be given notice of the Bar’s intention to seek
those costs.
Fundamental fairness demands that sufficient notice of
charges and their consequences must be provided to enable
the Respondent to make meaningful choices with the respect
to the need for, and the manner of, his defense without being
subjected to any element of surprise. Morgan v. United
States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938); White,
648 P.2d 528.
Meyer v. Norman, 780 P.2d 283, 290 (Wyo. 1989).
[¶81] The Formal Charge the Bar filed against Mr. Stinson provided him with the notice
required by Meyer. The Formal Charge included a request in the prayer for relief that
Mr. Stinson be required to reimburse the Bar for all costs and expenses of prosecuting the
matter and for the disciplinary proceeding. The prayer for relief was then followed by
this notice regarding the costs:
NOTICE IS HEREBY GIVEN that the Wyoming State
Bar intends to seek recovery from Respondent of all current
and future costs of the disciplinary proceeding and
investigation hereof. Such costs include all costs of
discovery, copying and postage, fees for subpoenas, process,
witnesses, and mileage, and all costs of hearing, including
court reporting fees, preparing a full transcript of the hearing,
and travel, lodging, meals for Bar Counsel, Board members
and witnesses.
[¶82] Furthermore, the final decision on all disciplinary matters, including the
recommended sanction and cost assessments, rests with this Court. Disciplinary Code
39
§ 26(c) (“The BPR may recommend to the Court the assessment of those costs and fees
and, if the Court imposes discipline, the Court may assess all or any part of the certified
costs and fees against respondent.”). The Board recommended the assessment of costs,
and Mr. Stinson has had the opportunity to object to the costs in his submissions to this
Court. We thus reject Mr. Stinson’s contention that he has not been provided an adequate
opportunity to be heard on the assessment of costs.
2. Apportionment of Costs
[¶83] Mr. Stinson next argues that the recommended cost assessment should be rejected
because the Board did not apportion the costs between the Rule 3.1(c) charge proven and
the Rule 3.3 charge that the Board found had not been proved by clear and convincing
evidence. We disagree.
[¶84] The Bar charged two rule violations. Both violations arose out of the same course
of events, and resolution of both charges required an understanding of what Mr. Stinson
knew concerning his client’s actions and when he knew it. That being the case, there is
no practical way to apportion the costs. We therefore find no basis to require an
apportionment as a condition to assessing costs and we reject Mr. Stinson’s request to
impose such a requirement.
3. Reasonableness of Costs
[¶85] Mr. Stinson contends that the recommended costs should be rejected as
unreasonable because the itemized costs are not costs permitted under Rule 501(a) of the
Uniform Rules for District Courts. He further argues that the costs of room and board for
the Board members should not be awarded in any case because such an award of costs “is
a punitive measure that most assuredly has a chilling effect on respondents who wish to
challenge the charges brought against them.” We again reject both of these objections.
[¶86] First, the Uniform Rules for District Courts do not apply to disciplinary
proceedings before the Board. Section 11(n) of the Disciplinary Code lists the provisions
of the Wyoming Rules of Civil Procedure that apply in a disciplinary proceeding. That
list does not include U.R.D.C. 501(a), and that rule is not otherwise referenced or
incorporated in any section of the Disciplinary Code. Mr. Stinson’s reliance on Rule
501(a) is therefore misplaced.
[¶87] We are likewise not persuaded by Mr. Stinson’s argument concerning the chilling
effect of an award of costs for the Board members’ lodging and meal expenses incurred
for the hearing. We acknowledge that the potential for an award of costs may have a
chilling effect on a charged attorney’s decision whether to contest the charges. We do
not know, however, that the lodging and meal expenses necessarily have a greater
chilling effect that any of the other costs, and the Disciplinary Code plainly allows for the
40
assessment of costs. On the other hand, no costs may be assessed unless the Board and
this Court find by clear and convincing evidence that a rule violation occurred. This
should offset at least to some degree the chilling effect associated with the cost
assessment. An attorney is not penalized for defending against the charges but is
responsible for the costs associated with the rule violation. We thus believe the code has
appropriately balanced the risk of a cost assessment, and we will not make the requested
adjustment.
E. Rule 11 Motion for Sanctions
[¶88] On January 21, 2014, Mr. Stinson filed a motion pursuant to W.R.C.P. 11(b)(3),
alleging there was no factual basis for the Formal Charge and seeking sanctions against
the Bar, the Peer Review Panel, and Special Bar Counsel. On March 13, 2014, the Board
entered an order denying Mr. Stinson's Rule 11 motion. The parties disagree whether the
denial of the Rule 11 motion is before this Court, but in the interests of judicial economy
and to ensure that all issues related to this matter are resolved, we will address it. Both
the Board and this Court have found clear and convincing evidence that Mr. Stinson
violated Rule 3.1(c). We therefore find no basis for the Rule 11 motion and affirm the
denial of the motion.
IT IS, THEREFORE, ORDERED THAT:
1. Laurence W. Stinson is hereby publicly censured for his violation of Rule 3.1(c);
and
2. By March 1, 2015, Laurence W. Stinson shall pay costs of $15,631.76 associated
with the disciplinary proceedings and an administrative fee of $500.00.4
[¶89] DATED this 29th day of October, 2014.
BY THE COURT*
/s/
E. JAMES BURKE
Chief Justice
*Justice Davis took no part in the consideration of this matter. Judge Donnell participated by
assignment.
4
Mr. Stinson objected to references in the Board’s Report and Recommendation to information that Mr.
Stinson contends was admitted into evidence subject to a stipulation that it would remain confidential.
Because this Court has not adopted and incorporated the Board’s Report and Recommendation and has
not otherwise referenced the confidential information, we do not address this objection further.
41