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


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  •                IN THE SUPREME COURT, STATE OF WYOMING
    
    2014 WY 134
    OCTOBER 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
    1
    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.
    2
    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.
    3
    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
    4
    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
    5
    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
    6
    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
    7
    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.
    9
    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.
    10
    [¶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
    11
    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.
    12
    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.
    13
    [¶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