Bd. of Prof'l Responsibility v. Doe

536 P.3d 1197

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,

v.Attorney DOE, Respondent.

D-19-0001

Supreme Court of Wyoming.

October 10, 2023

Representing Petitioner: Mark W. Gifford, Bar Counsel, Wyoming State Bar.

Representing Respondent: Attorney Doe, pro se.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

BOOMGAARDEN, Justice.

[¶1] Attorney Doe seeks to reinstate his license to practice law after a period of disability inactive status.¹ The Board of Professional Responsibility (BPR) recommends we deny Doe's request for reinstatement. Doe objects to that recommendation. After reviewing the record, including the exhibits and hearing transcript, and after considering the briefing by Doe and Bar Counsel, we deny Doe's petition for reinstatement.

[¶2] The primary issue presented is whether Doe met his evidentiary burden to show, by clear and convincing evidence, that he recovered from the infirmity that led to his transfer to disability inactive status. Case law and commentary from other states illustrate the scope of evidence courts typically evaluate in disability reinstatement decisions. The testimony and documentary evidence presented in this case was limited, and the standard of proof was not met. We have no reason to doubt Doe's veracity or his accomplishments outside the practice of law during his period of inactive status, but we are not able to reinstate him on the limited evidence presented. The rules allow him to reapply for reinstatement and this order offers some guidance for future proceedings.

JURISDICTION

[¶3] All attorneys practicing in Wyoming are subject to the disciplinary and disability jurisdiction of this Court. W.R.D.P. 1(b). Proceedings under the disciplinary rules, inclusive of disability proceedings, are "incident to the inherent power of courts to control properly their own affairs." Bd. of Prof'l Resp. v. Hinckley , 2022 WY 18, ¶ 2, 503 P.3d 584, 592–93 (Wyo. 2022) (citations omitted). We have "the power, the duty, and the corresponding jurisdiction to supervise the conduct of all Wyoming attorneys, each of whom is an officer of the court." Id. The disciplinary and disability procedures are used to maintain the highest standards of professional conduct, to maintain the integrity of the bar, to protect the public, and to protect the administration of justice. W.R.D.P. 1(a); Hinckley , 2022 WY 18, ¶ 3, 503 P.3d at 593 (quoting Bd. of Prof'l Resp. v. Richard , 2014 WY 98, ¶ 51, 335 P.3d 1036, 1051 (Wyo. 2014) ).

[¶4] Accordingly, this Court enacted the rules for disciplining, suspending, and disbarring Wyoming attorneys. See Wyo. Stat. Ann. § 5-2-118(a)(iii) (LexisNexis 2023). One of those rules, Rule 20(a), permits the transfer of a licensed attorney to disability inactive status when "it is shown that an attorney is unable to fulfill professional responsibilities competently because of physical, mental or emotional infirmity or illness[.]" W.R.D.P. 20(a). A transfer to disability inactive status is not a form of discipline. Id. It is a mechanism to protect the public, and to protect lawyers from committing disciplinary violations if allowed to continue in practice; but disability proceedings are not discipline for wrongdoing. A. Greenbaum, Lawyer Transfers to Disability Inactive Status—A Comprehensive Guide , 2017 J. of Prof. Lawyer 1, 7–8 (2017). Disability decisions are, however, governed by many of the same procedures used in disciplinary proceedings. See In re Dwyer-Jones , 470 Mass. 582, 24 N.E.3d 566, 569 (2015) ("Although ‘disability proceedings are not disciplinary proceedings,’ we recognize that they have procedural similarities." (citations omitted)); In re Diamondstone , 153 Wash.2d 430, 105 P.3d 1, 4 (2005) ("Disability proceedings are not disciplinary proceedings, but they are conducted under the same procedural rules unless otherwise noted ....").

[¶5] After an attorney is transferred to disability inactive status, an attorney may request reinstatement by filing a verified petition for reinstatement. W.R.D.P. 23(b)–(d). If the attorney and Bar Counsel do not reach a stipulation for a return to active status, then the matter proceeds to a hearing before the BPR as it would for disciplinary proceedings. W.R.D.P. 23(h)(3) (referencing W.R.D.P. 15). If the BPR does not recommend reinstatement, the attorney may object and proceed to this Court. W.R.D.P. 16, 23(h)(5). The BPR recommends against the reinstatement of Doe. He timely objected, placing the matter before this Court.

STANDARD OF REVIEW

[¶6] Our authority in disciplinary and disability proceedings is plenary. See W.R.D.P. 1(d). The ultimate judgment in disciplinary and disability proceedings is ours. Accordingly, we are not required to adopt the BPR's report and recommendation, nor are we bound by the BPR's findings of fact, view of the evidence, or credibility determinations, although we give due consideration to those findings and determinations. Bd. of Prof'l Resp. v. Manlove , 2023 WY 27, ¶¶ 2–7, 527 P.3d 186, 194–96 (Wyo. 2023) (quoting Hinckley , 2022 WY 18, ¶ 3, 503 P.3d at 593 ). We conduct a de novo review and may make our own findings based on the record before us. Id. ; Hinckley , 2022 WY 18, ¶ 4, 503 P.3d at 593 (quoting Bd. of Prof'l Resp. v. Custis , 2015 WY 59, ¶ 36, 348 P.3d 823, 832 (Wyo. 2015) ).

[¶7] The burden of proof in a reinstatement proceeding is on the attorney to show by clear and convincing evidence:

that the attorney [1] has sufficient recovery from the physical, mental or emotional infirmity or illness giving rise to the transfer to disability inactive status, [2] has complied with all applicable orders and with all provisions of these rules, [3] has not engaged in the unauthorized practice of law, and [4] is fit to practice law.

W.R.D.P. 23(g). Our review is therefore to determine whether Doe met that burden and standard of proof. 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." Manlove, 2023 WY 27, ¶ 6, 527 P.3d at 195 (citing Bd. of Prof'l Resp. v. Stinson , 2014 WY 134, ¶ 29, 337 P.3d 401, 409 (Wyo. 2014) ); see also, e.g. , Evans v. Sharpe , 2023 WY 55, ¶ 16, 530 P.3d 298, 302 (Wyo. 2023).

STATEMENT OF THE CASE

Prior Disciplinary Proceedings and Transfer to Disability Inactive Status

[¶8] In 2017, three disciplinary grievances were filed against Doe. Special Bar Counsel was appointed to investigate the grievances, and the three cases were ultimately consolidated into one disciplinary matter. The grievances alleged, in short, a lack of competence and diligence, conflict of interest issues, inadequate supervision of staff, failure to respond to or cooperate with Bar Counsel during the disciplinary investigation, making arguments without a basis in law, and other issues. With the assistance and advice of counsel, Doe agreed to the alleged violations, conditioned on the approval by the BPR of a stipulated motion to transfer him to disability inactive status and for a concurrent thirty-month suspension as a disciplinary action.

[¶9] Initially, the BPR rejected the stipulated agreement. However, after further deliberation and a hearing at which Doe struggled to testify, the BPR agreed to reconsider the stipulation if Doe agreed to "obtain a qualified evaluation of his mental and emotional health" and "to follow up on any treatment recommendation before seeking reinstatement." Doe agreed to obtain an evaluation but had concerns about the cost. The bar agreed to pay for the evaluation, and the BPR promptly ordered it. A qualified psychologist conducted the evaluation and provided her report to the parties and the BPR in September 2018.²

[¶10] The psychologist's report acknowledged Doe's intelligence and aptitude but also identified a distinct emotional trigger, with corresponding emotional and mental behaviors, when asked to discuss the practice of law and the disciplinary proceedings. The psychologist included three express diagnoses in her report and included some treatment recommendations. She concluded Doe's emotional infirmity was preventing him from functioning well enough to fulfill his professional responsibilities but that "[i]f he can reduce his level of depression and anxiety related to practicing law, he may be reevaluated to see whether he can return to active status."

[¶11] After receiving the evaluation, Special Bar Counsel and Doe reached a stipulation. It was signed by Doe on November 18, 2018, but fully executed and filed on November 29, 2018. They jointly moved the BPR to accept that stipulation to resolve the several grievances. The stipulation had the effect of bifurcating the proceedings into a disability proceeding with a related disciplinary proceeding. The stipulation included an agreement to transfer Doe to disability inactive status. Doe also signed a disability affidavit affirming that he was "unable to fulfill professional responsibilities competently because of mental or emotional infirmity." The stipulation included an affirmation of the requirements for reinstatement after the transfer to disability inactive status, including his burden to prove recovery from the infirmity and that Bar Counsel be able to conduct an investigation. For the disciplinary matter, the parties also stipulated to a 30-month suspension as a disciplinary sanction. Despite expressing that neither party wanted to defer that disciplinary action or public censure, they also stipulated that the suspension and censure would be entered at a later date, retroactively, upon reinstatement or disbarment if reinstatement was not sought.

[¶12] The BPR heard the motion to adopt the stipulation on December 11, 2018. It adopted the parties’ new stipulation and found a variety of facts to support its recommendation that Doe be transferred to disability inactive status. It noted Doe's statements explaining that he "had been overwhelmed in private practice, had not been coping well,...