Board of Professional Responsibility, Wyoming State Bar v. Stacy E. Casper, Wsb No. 6-3431
Wyoming Supreme Court2/19/2014
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IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 22
OCTOBER TERM, A.D. 2013
February 19, 2014
BOARD OF PROFESSIONAL
RESPONSIBILITY, WYOMING
STATE BAR,
Petitioner,
D-14-0003
v.
STACY E. CASPER, WSB No. 6-3431,
Respondent.
ORDER SUSPENDING ATTORNEY
FROM PRACTICE OF LAW AND ASSESSING COSTS
[¶1] This matter comes before the Court upon a Report and Recommendation for 30
Day Suspension stipulated to by Petitioner, the Board of Professional Responsibility of
the Wyoming State Bar (the Board); and Respondent, Stacy E. Casper. Although
Respondent has stipulated to the violation and discipline, and the Court accepts the
stipulated recommendation, the Court writes this opinion rather than simply adopting the
Boardâs recommendation because these are matters of considerable importance to
members of the Wyoming State Bar. Having considered the Report and
Recommendation; having reviewed the Boardâs record, including the partiesâ stipulation
and Respondentâs Affidavit of Factual Basis; and being fully advised in the matter, the
Court finds and concludes:
FACTS
[¶2] This is an attorney discipline case that arose out of Respondentâs billing excessive
legal fees and her subsequent improper attempts to collect those fees. Respondent
entered into a Legal Services Agreement (LSA) with her client in December 2011, and
thereafter entered her appearance on the clientâs behalf in a divorce and child custody
proceeding. The LSA provided:
1
MINIMUM BILLINGS: CLIENT understands that when
ATTORNEY is in the office, ATTORNEY charges a
minimum of one quarter hour (15 minutes) for CLIENTâS
case, including telephone calls, except for reviewing and
signing letters which will be billed for one-quarter hour.
[¶3] The LSA also authorized Respondent to file a lien on all property of the client to
secure fees and costs, and it permitted Respondent to âfile and record this LIEN and/or
file this Agreement.â
[¶4] The client paid Respondent a $5,000.00 retainer, and Respondent represented the
client through the first day of trial, October 12, 2012. The proceedings were adjourned
and subsequently reset for a second day of trial, April 19, 2013. In January 2013,
Respondent filed a motion to withdraw because the client had not paid her fees. That
motion was granted by the district court, and the client completed the trial without
assistance of counsel. The Decree of Divorce, entered April 30, 2013, identified certain
real property as marital property and ordered the parties to sell it.
[¶5] On May 13, 2013, Respondent caused to be filed of record with the Natrona
County Clerk a âLien Statementâ which indicated that her client owed her $18,717.05.
The Lien Statement identified the real property as being subject to the lien and it
indicated that it was being filed pursuant to Wyo. Stat. Ann. § 29-1-312 (LexisNexis
2013). Attached to the Lien Statement were a copy of the LSA between Respondent and
her client and a copy of the âClient Ledger,â which sets forth, in some detail, the tasks
completed by Respondent and her staff, the charges therefore, and the disbursements
made on the clientâs behalf.
[¶6] The clientâs ex-husband was the record owner of the property. Respondent did not
notify him or his agent of her intent to file the lien or of filing the lien. The ex-husbandâs
attorney contacted Respondent to question the propriety of the lien, but Respondent took
no action to correct it. The ex-husband then filed a Complaint with bar counsel, and this
matter was initiated. Respondent and the Board have stipulated that Respondent violated
Rules 1.5 (Fees), 1.9(c) (using confidential information to the disadvantage of a former
client), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation) of the Wyoming Rules of Professional Conduct for Attorneys at Law.
ATTORNEY DISCIPLINARY PROCEDURE
[¶7] The purpose of a state bar disciplinary procedure is to maintain âthe integrity of
the bar and to prevent the transgressions of an individual lawyer from bringing its image
into disrepute,â In re Clark, 613 P.2d 1218, 1221 (Wyo. 1980) (quoting Attorney
Grievance Commân of Maryland v. Walman, 374 A.2d 354, 361 (Md. 1977)), and to
âprotect the public and the administration of justice.â Bd. of Profâl Responsibility v.
2
Davidson, 2009 WY 48, ¶ 17, 205 P.3d 1008, 1015 (Wyo. 2009). The Wyoming
Supreme Court is charged with adopting rules of court practice having the effect of law,
Wyo. Stat. Ann. § 5-2-113 (LexisNexis 2013), and with adopting rules governing the
professional conduct of attorneys, establishing the bar association, and establishing rules
for attorney discipline. Wyo. Stat. Ann. § 5-2-118 (LexisNexis 2013).
[¶8] Membership to the bar is by petition to the Wyoming Supreme Court, Wyo. Stat.
Ann. § 33-5-104 (LexisNexis 2013), and attorneys are âsubject to the exclusive
disciplinary jurisdiction of this Court and the Board . . . .â Disciplinary Code for the
Wyoming State Bar, § 1(a). As this Court held in 1938, disciplinary proceedings are
ânecessarily incident to the inherent power of courts to control properly their own
affairs.â State Bd. of Law Examiners v. Brown, 53 Wyo. 42, 49, 77 P.2d 626, 628 (Wyo.
1938).
[T]he 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 make it clear that the Courtâs
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.
Davidson, 2009 WY 48, ¶ 8, 205 P.3d at 1012, citing Mendicino v. Whitchurch, 565 P.2d
460, 465-66, 475 (Wyo. 1977). As this Court explained in Meyer v. Norman, 780 P.2d
283, 288 (Wyo. 1989), the Board is âan ancillary body structured by the court and has no
independent power, jurisdiction, or authority other than that specifically delegated to it in
accordance with the Disciplinary Code.â1 The Court gives due consideration to the
findings and recommendations of the Board, but the âultimate judgment in these cases is
vested in this Court.â Mendicino, 565 P.2d at 466; see also Davidson, 2009 WY 48, ¶ 1,
205 P.3d at 1012; In re Disciplinary Action Against Hellerud, 714 N.W.2d 38, 41 (N.D.
2006).
DISCUSSION
Excessive fees â Wyo. R. Prof. Conduct 1.5
[¶9] Respondent has stipulated to the following facts regarding her billing in this
matter:
1
The structure that existed in Meyer has since been modified, but the rationale remains the same.
3
19. . . . the fee agreement was signed by [her client],
on December 8, 2011. Respondentâs first billing entry, on
December 12, 2011, describes .25 hours spent by Respondent
in reviewing the fee agreement. There is an identical entry on
December 14, 2011. Thus, Respondent incorrectly billed her
client .5 hours (or $100) for reviewing the fee agreement
prepared by Respondentâs staff and signed by the client
several days earlier. Respondent acknowledges that this time
should not have been billed, and certainly not billed twice.
20. Respondentâs billing practice for the case was to
write down tasks as she completed them. These tasks were
then billed pursuant to a fee schedule that billed Respondentâs
time spent on cases in minimum increments of .25 hours.
Respondent did not keep track of the amount of time she
actually spent on certain tasks performed under the minimum
billing increment.
21. The billing record contains 106 different entries
for Respondentâs one-quarter hour minimum increment.
Respondent acknowledges that few if any of those tasks
would reasonably require a quarter hour of her time. For
example, Respondent routinely billed .25 hours each to sign
such documents as subpoenas, stipulated orders and
pleadings.
22. Furthermore, of the 106 entries for Respondentâs
minimum, quarter-hour increment, 75 are for âreviewâ of
some document. Respondent routinely billed .25 hours each
for review of such things as the fee agreement, one- or two-
page pleadings, subpoenas, a one-page order for mediation, a
one-page notice of setting, and numerous one-page letters.
Respondent acknowledges that these billing practices
constituted an abuse of the minimum time increment feature
of the fee agreement.
23. There are instances in which Respondent billed
twice for the same activity. In several instances, Respondent
billed .25 hours to review a document and another .25 hours
to sign the same document.
24. In one instance, Respondent billed her client for
time spent on a motion to continue that was necessitated by
4
Respondentâs scheduling conflict. In this instance, the proper
exercise of billing judgment demanded that Respondentâs
client should not have been billed.
25. In numerous instances, the time recorded on
Respondentâs billing record came several days after the
document to which it relates, which resulted in the
appearance that Respondent was doing âafter the factâ billing
for tasks already completed. In fact, this appearance was
caused by a problem with how time was entered by
Respondentâs support staff.
[¶10] Respondent acknowledges that this conduct violated Rule 1.5 of the Wyoming
Rules of Professional Conduct.2 The stipulated facts indicate that she billed for tasks she
did not perform, billed twice for the same activity, and billed for tasks already completed
2
Rule 1.5 reads as follows:
(a) A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses. The factors to
be considered in determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment by the
lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
5
days before. Billing for work not done is a clear violation of Rule 1.5âs prohibition of
making an agreement for, charging, or collecting an unreasonable fee. â[A] lawyer who
has undertaken to bill on an hourly basis is never justified in charging a client for
hours not actually expended.â ABA Comm. on Ethics & Profâl Responsibility, Formal
Op. 93-379, at 5 (1993). In re OâBrien, 29 P.3d 1044, 1048 (N.M. 2001) (âAny fee is
excessive when absolutely no services are provided.â).
[¶11] Use of billing with minimum time increments does not necessarily result in an
unreasonable fee. The Court recognizes that use of minimum billing increments is a
useful tool which is not, in and of itself, unethical. The Task Force on Lawyer Business
Ethics has explained:
For convenience, lawyers generally keep track of the
time spent using standard increments of time, commonly six
minutes (0.1 hour), ten minutes (1/6 hour) or fifteen minutes
(1/4 hour). This approach is essential and should not be
objectionable unless the increments are unreasonably large or
are used in an abusive manner. It would not be practical to
keep track of time in constantly varying measurements, and
minimum increments serve the practical needs of both
lawyers and clients. On the other hand, the practice should
not be abused. Legitimate use of a minimum time increment
may depend on how the lawyer records the balance of the
increment. Two fifteen-minute charges for two five-minute
calls within the same fifteen-minute period seem
inappropriate; some balancing should be used.
Task Force on Lawyer Business Ethics, Statement of Principles, 51 Bus. Law. 745, 760
(1995-1996). A necessary companion to the requirement that a lawyer bill clients only
for work done is the requirement that the lawyerâs invoices accurately describe the legal
services and amounts charged to the client. ABA Formal Op. 93-379, at p. 9.3
[¶12] In this case, Respondent had specifically contracted with her client to bill in
minimum increments of fifteen minutes. This Court does not hold that such an
agreement is unreasonable. Contractual clauses for payment of attorneysâ fees are
âgenerally a matter of agreement between the lawyer and client.â In re Hellerud, 714
N.W.2d at 41. However, â[t]he reasonableness of a fee is not measured solely by
examining its value at the outset of the representation; indeed an otherwise-reasonable fee
3
Rule 1.4(b) of the Wyoming Rules of Professional Conduct requires a lawyer to âexplain a matter to the
extent reasonably necessary to permit the client to make informed decisions . . . .â This includes the
requirement that bills sent to the client contain enough information for the client to understand what he or
she is paying for. John M. Burman, Professional Responsibility in Wyoming 137 (2008).
6
can become unreasonable if the lawyer fails to earn it.â Attorney Grievance Commân of
Maryland v. Garrett, 46 A.3d 1169, 1178 (Md. 2012). Attorneysâ duties to clients can
exceed the duties of parties under contract law. This is because the attorney-client
relationship is a fiduciary relationship of trust and confidence. Lee v. LPP Mortg. Ltd.,
2003 WY 92, ¶ 21, 74 P.3d 152, 160 (Wyo. 2003); Bevan v. Fix, 2002 WY 43, ¶ 53, 42
P.3d 1013, 1029 (Wyo. 2002). Although Respondent may have billed in compliance with
the LSA terms, she failed to ensure that her charges were reasonable.
[¶13] The reasonableness of attorneysâ fees can be determined by application of the
âlodestarâ concept adopted by the United States Supreme Court in Hensley v. Eckerhart,
461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); and adopted by this Court in UNC
Teton Exploration Drilling, Inc. v. Peyton, 774 P.2d 584, 594 (Wyo. 1989). The
âlodestarâ test requires a two-step process: â(1) whether the fee charged represents the
product of reasonable hours times a reasonable rate; and (2) whether other factors of
discretionary application should be considered to adjust the fee either upward or
downward.â In re NRF, 2013 WY 9, ¶ 7, 294 P.3d 879, 882 (Wyo. 2013), citing UNC
Teton Exploration Drilling, 774 P.2d at 595.4 See also, Wyo. Stat. Ann. § 1-14-126(b)
(LexisNexis 2013), which lists factors a trial court may consider when exercising its
discretion in awarding attorneysâ fees.
[¶14] The second step requires the application of âbilling judgment,â which usually is
demonstrated âby the attorney writing off unproductive, excessive, or redundant hours.â
In re NRF, 2013 WY 9, ¶ 9, 294 P.3d at 883 (quoting Green v. Admârs of Tulane Educ.
Fund, 284 F.3d 642, 662 (5th Cir. 2002)). âBilling for legal services . . . should not be a
merely mechanical exercise. . . . A reasonable fee can only be fixed by the exercise of
judgment, using the mechanical computations simply as a starting point . . . .â Copeland
v. Marshall, 641 F.2d 880, 888 (D.C. Cir. 1980), cited in In re NRF, 2013 WY 9, ¶ 9, 294
P.3d at 883.
[¶15] Respondent in this case billed in fifteen-minute increments, in accordance with the
contractual terms, times a reasonable rate.5 However, her practice of billing fifteen
minutes for such tasks as signing subpoenas, stipulated orders, and one-page letters
demonstrated a complete failure to exercise business judgment, which would have
required her to write off unproductive, excessive, or redundant hours.
[¶16] The Court finds the record supports the stipulation; Respondentâs actions violated
Wyo. R. Prof. Conduct 1.5.
4
Although discussion of the âlodestarâ test in In re NRF and other cases arises in the context of court-
awarded fees and costs, the Court finds the reasoning equally persuasive in this case. The standard for
billing an attorneyâs own client should be no less rigorous than the standard for awarding fees from
opposing parties.
5
Respondentâs hourly rate pursuant to the LSA was $200 an hour for office time and $225 per hour for
court time. Her rates are not at issue in this matter.
7
Misrepresentation in filing the lien statement â Wyo. R. Prof. Conduct 8.4(c)
[¶17] Attorneys may have liens on certain assets of their clients. Wyo. Stat. Ann. § 29-
9-102 (LexisNexis 2013) provides:
(a) For professional services performed on behalf of a
client, an attorney shall have a lien for compensation due him
from the time of giving notice of the lien. The attorneyâs lien
attaches upon:
(i) Any papers or money of his client which have
come into his possession;
(ii) Money due his client and in the possession of an
adverse party.
(b) Notice as required by subsection (a) of this section to be
given to any person against whom the lien is asserted shall be
given by certified mail, return receipt requested.
[¶18] Respondent did not file a lien under the attorney lien statute, but instead under
Wyo. Stat. Ann. § 29-1-312, which by its terms applies to improvements to real property.
She provided no notice of the lien filing to the property owner, although such notice was
required by both statutes.
[¶19] The LSA gave Respondent a broad grant of authority to âhave a lien on all
property or assetsâ of the client.6 It did not, however, grant her authority to file a lien on
property of her clientâs ex-husband. See, e.g., Sue Davidson, P.C. v. Naranjo, 904 P.2d
354, 356 (Wyo. 1995) (âIt is a basic tenet of creditor-debtor law that, before a creditor
may attach a lien to property, such property interest must be owned by the debtor.â);
Wyo. State Treasurer ex rel. Workerâs Comp. Div. v. McIntosh, 557 P.2d 743, 747 (Wyo.
1976) (âThe right to a lien arises by contract of employment, express or implied, between
an attorney and his client and may not be extended to others who may have an interest in
the litigation but who have not employed the attorney.â). Respondent failed to make any
limitation to her interest in the marital property to exclude assets of the husband.
6
âA lien may be created only by statute or contract and the courts may not choose to recognize a lien
absent its creation through one of these enumerated ways.â Sheridan Commercial Park, Inc. v. Briggs,
848 P.2d 811, 815 (Wyo. 1993). The Revised Wyoming Statutory Lien Act specifically states that
nothing in the Act âshall affect or abridge . . . [t]he right to enforce a lien otherwise created by contract.â
Wyo. Stat. Ann. § 29-1-104(b)(iii) (LexisNexis 2013).
8
[¶20] Finally, as discussed above, see supra ¶¶ 9, 10, Respondent attached an inaccurate
and unreasonable billing to her sworn Lien Statement which was filed with the county
clerk. Respondentâs conduct in attesting to the accuracy of a patently inaccurate
document is a clear violation of Wyo. R. Prof. Conduct 8.4(c), which provides that it is
professional misconduct for a lawyer to engage in conduct involving misrepresentation.
Breach of Confidentiality â Wyo. R. Prof. Conduct 1.9(c)
[¶21] Respondent attached to the Lien Statement a copy of the LSA, as well as a copy of
her complete billing records containing confidential client information. The client had
agreed in the LSA that Respondent âmay file and record this LIEN and/or file this
Agreement;â however, she did not agree to filing the billing records. â[P]reservation of a
clientâs confidences has been described as âthe bedrock principle of the Anglo-American
legal system.ââ Bevan, 2002 WY 43, ¶ 50, 42 P.3d at 1028 (quotation omitted).
[¶22] Wyo. R. Prof. Conduct 1.9 addresses an attorneyâs duties to former clients,7 and
states:
(c) A lawyer who has formerly represented a client in a
matter . . . shall not thereafter:
(1) use confidential information relating to the
representation to the disadvantage of the former client
except as these Rules would permit or require with
respect to a client, or when the information has become
generally known, or
(2) reveal confidential information relating to the
representation except as these Rules would permit or
require with respect to the client.
Wyo. R. Prof. Conduct 1.9(c).
[¶23] Wyo. R. Prof. Conduct 1.6 pertains to the client. That rule does permit a lawyer to
reveal confidential information to the extent the lawyer reasonably believes necessary âto
establish a claim or defense on behalf of the lawyer in a controversy between the lawyer
and the client . . . .â Wyo. R. Prof. Conduct 1.6(b)(3). Comment 16 to the rule states: âA
lawyer entitled to a fee is permitted by paragraph (b)(3) to prove the services rendered in
an action to collect it.â Therefore, when collecting a legitimate fee, a lawyer may be
permitted to reveal confidential information. See, Ringolsby v. Johnson, 2008 WY 127,
7
Respondent no longer represented the client at the time she filed the Lien Statement, yet Respondent
continued to owe a fiduciary duty to her former client. Bevan, 2002 WY 43, ¶ 48, 42 P.3d at 1027.
9
¶ 23, 193 P.3d 1167, 1171 (Wyo. 2008) (Court affirms denial of attorney fee motion
because redacted billing records insufficient to allow district court to assess
reasonableness of fees).
[¶24] In this case, Respondent was not entitled to the fees that she claimed, and she did
not file her lien in accordance with the law, and therefore, her breach of client
confidentiality is not justified. The Court finds the record supports the stipulation;
Respondentâs actions violated Wyo. R. Prof. Conduct 1.9.
Determination of Appropriate Sanctions
[¶25] The Court adopts the discussion of the stipulated Report and Recommendation
regarding imposition of appropriate sanctions:
Determining the Appropriate Sanction
for Respondentâs Misconduct
8. In determining an appropriate sanction, the Board is
guided by the American Bar Associationâs âStandards for
Imposing Lawyer Disciplineâ (hereafter referred to as the
âABA Standardsâ) which state, âThe purpose of lawyer
discipline proceedings is to protect the public and the
administration of justice from lawyers who have not
discharged, will not discharge, or are unlikely properly to
discharge their professional duties to clients, the public, the
legal system, and the legal profession.â
9. 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 lawyerâs mental state;
(c) the potential or actual injury caused by the lawyerâs
misconduct; and
(d) the existence of aggravating or mitigating factors.
The First Factor: The Duty Violated
10. Respondentâs billing misconduct falls within two ABA
Standards, 4.6 (âLack of Candorâ) and 7.0 (âViolation of
Other Duties Owed as a Professionalâ). Standard 4.6, which
appears under the broad heading, âViolation of Duties Owed
to Clients,â provides:
10
Absent aggravating or mitigating circumstances, upon
application of the factors set out in Standard 3.0, the
following sanctions are generally appropriate in cases
where the lawyer engages in fraud, deceit, or
misrepresentation directed toward a client:
4.61 Disbarment is generally appropriate when a
lawyer knowingly deceives a client with the intent to
benefit the lawyer or another, and causes serious injury
or potential serious injury to a client.
4.62 Suspension is generally appropriate when a
lawyer knowingly deceives a client, and causes injury or
potential injury to a client.
4.63 Reprimand [i.e., âpublic censureâ under Section
4(a)(iii) of Wyomingâs Disciplinary Code] is generally
appropriate when a lawyer negligently fails to provide a
client with accurate or complete information, and causes
injury or potential injury to the client.
4.64 Admonition [i.e., âprivate reprimandâ under
Section 4(b) of Wyomingâs Disciplinary Code] is
generally appropriate when a lawyer engages in an
isolated instance [of] negligence in failing to provide a
client with accurate or complete information, and causes
little or no actual or potential injury to the client.
11. Standard 7.0, âViolations of Other Duties Owed as a
Professional,â provides:
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 false or misleading communication about the
lawyer or the lawyerâs services, improper
communication of fields of practice, improper
solicitation of professional employment from a
prospective client, unreasonable or improper fees,
unauthorized practice of law, improper withdrawal from
misrepresentation, or failure to report professional
misconduct.
11
7.1 Disbarment is generally appropriate when a
lawyer knowingly engages in conduct that is a violation
of a duty owed as a professional with the intent to obtain
a benefit for the lawyer or another, and causes serious or
potentially serious injury to a client, the public or the
legal system.
7.2 Suspension is generally appropriate when a
lawyer knowingly engages in conduct that is a violation
of a duty owed as a professional and causes injury or
potential injury to a client, the public, or the legal
system.
7.3 Reprimand [i.e., âpublic censureâ under Section
4(a)(iii) of Wyomingâs Disciplinary Code] is generally
appropriate when a lawyer negligently engages in
conduct that is a violation of a duty owed as a
professional and causes injury or potential injury to a
client, the public, or the legal system.
7.4. Admonition [i.e., âprivate reprimandâ under
Section 4(b) of Wyomingâs Disciplinary Code] is
generally appropriate when a lawyer engages in an
isolated instance of negligence that is a violation of a
duty owed as a professional, and causes little or no
actual or potential injury to a client, the public, or the
legal system.
12. As stated above, Respondentâs conduct in filing a false
lien statement violated Rule 8.4(c), which provides that it is
professional misconduct for a lawyer to engage in conduct
involving misrepresentation. The applicable ABA standard is
Standard 5.1, âFailure to Maintain Personal Integrity,â
which falls under the broad heading, âViolations of Duties
Owed to the Publicâ and provides:
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 a criminal act that reflects adversely on the
lawyerâs honesty, trustworthiness, or fitness as a lawyer
12
in other respects, or in cases with conduct involving
dishonesty, fraud, deceit, or misrepresentation:
5.11 Disbarment is generally appropriate when:
a lawyer engages in serious criminal conduct, a
necessary element of which includes intentional
interference with the administration of justice, false
swearing, misrepresentation, fraud, extortion,
misappropriation, or theft; or the sale, distribution or
importation of controlled substances; or the intentional
killing of another; or an attempt or conspiracy or
solicitation of another to commit any of these offenses;
or
a lawyer engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation
that seriously adversely reflects on the lawyerâs fitness
to practice.
5.12 Suspension is generally appropriate when a
lawyer knowingly engages in criminal conduct which
does not contain the elements listed in Standard 5.11 and
that seriously adversely reflects on the lawyerâs fitness
to practice.
5.13 Reprimand [i.e., âpublic censureâ under Section
4(a)(iii) of Wyomingâs Disciplinary Code] is generally
appropriate when a lawyer knowingly engages in any
other conduct that involves dishonesty, fraud, deceit or
misrepresentation and that adversely reflects on the
lawyerâs fitness to practice law.
5.14 Admonition [i.e., âprivate reprimandâ under
Section 4(b) of Wyomingâs Disciplinary Code] is
generally appropriate when a lawyer engages in any
other conduct that reflects adversely on the lawyerâs
fitness to practice law.
13. Finally, Respondentâs violation of Rule 1.9(c) falls
under Standard 4.2, âFailure to Preserve the Clientâs
Confidences,â which provides:
13
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 improper revelation of information relating to
representation of a client:
4.21 Disbarment is generally appropriate when a
lawyer, with the intent to benefit the lawyer or another,
knowingly reveals information relating to the
representation of a client not otherwise lawfully
permitted to be disclosed, and this disclosure causes
injury or potential injury to a client.
4.22 Suspension is generally appropriate when a
lawyer knowingly reveals information relating to the
representation of a client not otherwise lawfully
permitted to be disclosed, and this disclosure causes
injury or potential injury to a client.
4.23 Reprimand [i.e., âpublic censureâ under Section
4(a)(iii) of Wyomingâs Disciplinary Code] is generally
appropriate when a lawyer negligently reveals
information relating to representation of a client not
otherwise lawfully permitted to be disclosed and this
disclosure causes injury or potential injury to a client.
5.14 Admonition [i.e., âprivate reprimandâ under
Section 4(b) of Wyomingâs Disciplinary Code] is
generally appropriate when a lawyer engages in any
other conduct that reflects adversely on the lawyerâs
fitness to practice law.
The Second Factor: The Lawyerâs Mental State
14. 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
14
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.
15. Given that Respondent has acknowledged multiple rules
violations, the appropriate sanction under the Guidelines
therefore turns on whether Respondent to have acted
âknowinglyâ or âintentionallyâ as so defined. Respondent
acknowledges that she acted knowingly with respect to the
rules violations to which she has stipulated.
The Third Factor: The Potential Or Actual
Injury Caused By The Lawyerâs Misconduct
16. Under the ABA Standards, âinjuryâ is defined as âharm
to a client, the public, the legal system, or the profession
which results from a lawyerâs misconduct. The level of
injury can range from âseriousâ injury to âlittle or noâ injury; a
reference to âinjuryâ alone indicates any level of injury greater
than âlittle or noâ injury.â âPotential injuryâ is defined as
âharm to a client, the public, the legal system or the
profession that is reasonably foreseeable at the time of the
lawyerâs misconduct, and which, but for some intervening
factor or event, would probably have resulted from the
lawyerâs misconduct.â
17. Respondent concedes there was the potential for serious
injury to Respondentâs client (as the result of Respondentâs
billing misconduct) and the public (as the result of
Respondentâs conduct in filing an improper lien statement).
The Fourth Factor: The Existence Of Aggravating
Or Mitigating Factors
18. ABA Standard 9.0, entitled âAggravation and
Mitigation,â provides as follows:
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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;
(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;
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(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 respondentâs 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.
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(1) 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 nor mitigating:
(a) forced or compelled restitution;
(b) agreeing to the clientâs demand for certain
improper behavior or result;
(c) withdrawal of complaint against the lawyer;
(d) resignation prior to completion of
disciplinary proceedings;
(e) complainantâs recommendation as to
sanction; and
(f) failure of injured client to complain.
19. Respondent agrees that the failure of [her client] to
submit a complaint to the Bar is a factor that should not be
considered as either aggravating or mitigating.
20. The Board accepts the partiesâ stipulation that the
following mitigating factors are present: (1) absence of a prior
disciplinary record; (2) full and free disclosure to the Board
and Bar Counsel; (3) timely good faith effort to make
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restitution or to rectify consequences of misconduct; and (4)
remorse.
21. The Board accepts the partiesâ stipulation that the
following aggravating factors are present: (1) dishonest or
selfish motive; (2) pattern of misconduct; (3) multiple rule
violations; (4) vulnerability of victim; and (5) substantial
experience in the practice of law.
[¶26] IT IS, THEREFORE, HEREBY ORDERED:
1. That the Report and Recommendation for 30 Day Suspension filed by the
Board of Professional Responsibility of the Wyoming State Bar on January 10, 2014, is
hereby, approved, confirmed, and adopted by this Court as modified above; and
2. That Stacy E. Casper be suspended from the practice of law for a period of
thirty days, commencing August 1, 2014; and
3. That Stacy E. Casper reimburse her clientâs ex-husband for the attorneysâ fees
and costs he incurred as a result of Respondentâs improper filing of the Lien Statement;
and
4. That Stacy E. Casper pay an administrative fee of $500 and costs of this
disciplinary proceeding to the Wyoming State Bar on or before September 1, 2014; and
5. That, in conjunction with the Wyoming State Bar, Stacy E. Casper design and
teach a Wyoming CLE program on proper billing practices and techniques; and
6. That the press release stipulated to by the parties shall be issued by the
Wyoming State Bar.
[¶27] DATED this 19th day of February, 2014.
BY THE COURT
/s/
MARILYN S. KITE
Chief Justice
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