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Bd. of Prof'l Responsibility v. Pearce
Citation: 446 P.3d 717Docket: D-19-0008
Court: Wyoming Supreme Court; August 14, 2019; Wyoming; State Supreme Court
The Court approved and adopted the Board of Professional Responsibility's "Report and Recommendation for One-Year Suspension" for attorney Michael J. Pearce, following a review of the filed report dated July 30, 2019. Pearce is suspended from practicing law for one year, effective August 22, 2019, due to his conduct, which included failing to competently and diligently represent a client, leading to the dismissal of the client's case. He admitted to violating multiple professional conduct rules. During the suspension, Pearce must comply with the Wyoming Rules of Disciplinary Procedure, particularly Rule 21, which outlines the responsibilities of suspended attorneys. He is also ordered to reimburse the Wyoming State Bar $100 for costs and pay a $1,500 administrative fee, totaling $1,600, by January 1, 2020. Failure to pay may result in enforcement actions. The Wyoming State Bar is authorized to issue a stipulated press release, and the Court's order and the report will be publicly recorded and published. A copy of the order will be served to Pearce. The order is dated August 14, 2019, and signed by Chief Justice Michael K. Davis. Respondent received a written reprimand from the district court judge for breaching a scheduling order and multiple provisions of Rule 801 regarding professional conduct. He admitted to violations of Rules 1.1 (competence), 1.3 (diligence), 3.4(c) (failure to follow tribunal rules), and 8.4(c) (misleading statements). In a separate case (WSB No. 2018-073), Respondent represented a plaintiff in a personal injury claim stemming from a motor vehicle accident. Defense counsel moved to dismiss the case without prejudice due to Respondent's failure to notify the Workers' Compensation Division and Attorney General, as mandated by W.S. 27-14-105(b). Respondent did not contest this motion, leading to a dismissal order on September 28, 2017, allowing the plaintiff one year to re-file. In June 2018, the plaintiff complained to the Office of Bar Counsel about Respondent's lack of communication over the past year. Respondent replied, asserting he had attempted to update the client but failed to mention the case dismissal. The client countered, stating he had received no updates or information regarding the case status. Following this, Bar Counsel urged Respondent to reconnect with his client. On July 18, 2018, Respondent emailed the client, expressing his willingness to return the file and suggesting re-filing the case, but the client maintained he was unaware of the dismissal. Bar Counsel subsequently obtained court documents confirming the dismissal was due to Respondent's failure to provide the required notifications. On October 17, 2018, Respondent notified his client via email that a case had been refiled, and the following day, he refiled the complaint from early 2017 under a new civil action number. This was done after the September 28, 2018, refiling deadline. On October 31, 2018, the court dismissed the first lawsuit with prejudice, but Respondent failed to inform his client about the dismissal or the motion leading to it. The new complaint was not served on the defendant until March 29, 2019, and on April 11, defense counsel filed a motion to dismiss this new case with prejudice, which Respondent also did not communicate to his client. On April 25, 2019, the client expressed frustration in an email regarding the lack of communication and progress on the lawsuit, highlighting personal hardships and urging Respondent to take action. Respondent replied that he was working on a response to the defendant's motion, which he filed on May 1, 2019; however, the motion remained pending without a hearing set. In a separate matter (WSB No. 2019-039), Respondent received a reprimand from the presiding judge on March 18, 2019, for failing to comply with filing deadlines and proper service of pleadings, which led to a formal investigation by Bar Counsel. The Board found clear evidence of violations of several rules, including competence, diligence, communication, and misleading statements. Respondent admitted to a pattern of neglect that harmed his client and acknowledged that his mental state could not be considered mere negligence. The Board determined that a suspension is the presumptive sanction for the violations of Rules 1.1, 1.3, and 1.4, while a public censure is appropriate for the violation of Rule 3.4(c). For the violation of Rule 8.4(c), disbarment is the presumptive sanction, indicating serious misconduct resulting in delays and costs for the court and defendants. Aggravating factors identified in the case include a pattern of misconduct, multiple offenses, failure to respond timely to Bar Counsel's inquiries, and a history of prior discipline. In relation to WSB No. 2018-073, Respondent's dishonesty with his client is noted as an additional aggravating factor. The only mitigating factor acknowledged is Respondent's personal or emotional problems. The parties, along with the Board, agree that a one-year suspension is appropriate given these considerations. Respondent has a prior disciplinary record, including a private reprimand in 2018 for violations of diligence, lack of candor to the court, and failure to adhere to tribunal rules. If the Stipulation is approved and the Court issues a one-year suspension, a press release will announce the suspension of attorney Michael J. Pearce due to failures in compliance with Wyoming statutes, misleading his client, and missing court deadlines, along with an order for him to pay an administrative fee and costs associated with the disciplinary complaints. Relevant rules of professional conduct are cited, including requirements for competent representation, diligence, client communication, and prohibitions against dishonesty and rule violations. The Board is instructed to consider various factors when imposing sanctions, including the duty violated, intent, potential injury caused, and any aggravating or mitigating factors present. Respondent's violations of Rules 1.1, 1.3, and 1.4 invoke Standard 4.4 of the ABA Standards for Imposing Lawyer Sanctions, which outlines consequences based on the severity of the violation and resulting harm to clients. Disbarment is warranted for abandonment of practice or knowing failure to perform services leading to serious client injury. Suspension applies when a lawyer knowingly fails to perform, causing injury, or engages in a neglect pattern resulting in potential injury. Reprimand is suitable for negligence without reasonable diligence, causing injury or potential injury, while admonition is appropriate for isolated negligence causing minimal harm. Additionally, Respondent's violations of Rule 3.4(c) pertain to duties owed to the legal system under ABA Standard 6.2. Disbarment is appropriate for knowing violations of court orders that cause serious injury or interfere with legal proceedings. Suspension applies for knowing violations causing injury or interference. Reprimand is appropriate for negligent noncompliance with court orders resulting in potential harm, and admonition is for isolated negligence with little or no harm. Respondent's violation of Rule 8.4(c) relates to Standard 5.1 concerning the failure to maintain personal integrity. In the absence of aggravating or mitigating factors, the sanctions for criminal acts reflecting negatively on a lawyer's honesty include: - **Disbarment** (Standard 5.11) is appropriate for serious criminal conduct involving intentional interference with justice, fraud, or similar offenses. - **Suspension** (Standard 5.12) applies when a lawyer knowingly engages in criminal conduct not outlined in Standard 5.11 that nonetheless impacts their fitness to practice law. - **Reprimand** (Standard 5.13) is warranted for knowingly engaging in dishonest conduct that adversely affects fitness. - **Admonition** (Standard 5.14) is suitable for conduct that reflects negatively on a lawyer's fitness but does not reach the threshold of a reprimand. The ABA Standards define mental states in misconduct as follows: - **Intent** indicates a conscious objective to achieve a result (most culpable). - **Knowledge** reflects a conscious awareness of conduct or circumstances, without a specific intent to achieve a result. - **Negligence** denotes a failure to recognize a substantial risk, indicating a deviation from reasonable care (least culpable). Additionally, "injury" is characterized as harm resulting from a lawyer's misconduct, with varying degrees from serious to minimal. "Potential injury" refers to foreseeable harm that could result from misconduct, contingent on intervening factors. ABA Standard 9.0 outlines the considerations of aggravation and mitigation in disciplinary actions against attorneys. After misconduct is established, both aggravating circumstances, which may justify harsher sanctions, and mitigating circumstances, which may warrant reduced sanctions, are evaluated. Aggravating factors include: - Prior disciplinary offenses - Dishonest or selfish motives - Patterns of misconduct - Multiple offenses - Obstruction of disciplinary proceedings - Submission of false evidence - Refusal to acknowledge wrongful conduct - Victim vulnerability - Substantial legal experience - Indifference towards restitution - Illegal conduct, including substance abuse. Mitigating factors include: - Absence of prior disciplinary record - Absence of dishonest motives - Personal or emotional issues - Timely restitution efforts - Cooperation with the disciplinary process - Inexperience in law - Positive character or reputation - Physical or mental disabilities, including substance dependency under specific conditions - Delays in proceedings - Other penalties already imposed - Demonstrated remorse - Remoteness of past offenses. Certain factors, such as forced restitution or withdrawal of complaints, are not considered aggravating or mitigating. Based on the findings, the Board recommends the Wyoming Supreme Court suspend the respondent for one year, impose a $1,500 administrative fee and $100 costs to the Wyoming State Bar, and direct the issuance of a stipulated press release. This recommendation is dated July 24, 2019, and signed by Christopher H. Hawks, Vice Chair of the Board of Professional Responsibility of the Wyoming State Bar.