### IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 98

APRIL TERM, A.D. 2014

August 1, 2014

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR,

Petitioner,

v.

ANDREA RICHARD, WSB No. 5

- 2848

,

Respondent. D

- 14

- 000 1

ORDER SUSPENDING ATT ORNEY

FROM PRACTICE OF LAW AND ASSESSING COSTS

[¶1] This matter comes before the Court upon a Repo rt and Reco mmendation by Petitioner, the Board of Professional Responsibility of th e Wyoming State Bar (the Board) for a thre e year suspension of Andrea L. Richard’s l icense to practice law

. Having review ed the Report and Recommendation and Ms. Richard ’s objection to it,

considered the oral arguments of counsel and performed an independent and thorough

review of the Board record , t he Court concludes Ms. Richard violate d numerous provisions of the Wyoming Rules of Professional Conduct in many instances and adopts

the recommendation of the Board to suspend Ms. Richard from the practice of law for three years

.

FACTS

[¶2 ] This is an attorney discipline cas e that arose out of Ms. Richard ’s alleged

violations of the Wyoming Rules of Professional Conduct in se ven different court proceeding s between 2006 and 2012

. We present the facts of each of the underlying

case s separately

. 1

1 We emphasize that our recitation of the facts is based upon an independent review of the e ntire record in this matter and is not simply a repetition of the findings of the Board.1. Fields v. Waterhouse

[¶ 3 ] Ms. Richard repres ented the Fields in this action filed in district court in Teton County, Wyoming , involving interior decorating services the defendants provided for the

Fields ’ condominium in Jackson. The defendants served w ritten discovery request s on the Fields on Augu st 11, 2006. In October 2006, d efendants filed a motion to compel and

for sanctions. B y order entered in November 2006 after a hearing, Judge Guthrie required the Fields to provide specific detailed answers to interrogatories and to produ ce specified doc uments to defendants wit hin thirty days. Judge Guthrie also stated: “

. . . the matters relating to discovery and the discovery disputes between the parties are complicated, time consuming, and cause d significant undue expenditure of time (and

therefore e xpense) by the parties, their counsel

, and this Court. ” “ In the interest of judicial economy and to reduce the time required by [the] Court and expense to the parties ,” Judge Guthrie appointed a special master for discovery. Although she denied

the motio n fo r sanctions, Judge Guthrie did so without prej udice, expressly stating that

the motion could be renewed if the Fields failed to fully comply with the order.

[¶ 4 ] Seven months later, i n June 2007, defendants filed a motion for sanction of

dismissal

, claiming the Fields had violated Judge Guthrie ’s November 2006 order requiring them to respond to discovery requests. After briefing by the parties a nd a hearing, Judge Cranfill , to whom the case had been re

- assigned, issued a decision letter in Septembe r 2007, again ordering the Field s to provide specific detailed answers to t he same interrogatories and produce the same documents identified in the earlier order. The September 2007 decision letter a lso ordered the Fields to produce a document referenced in their complaint and any DVDs relating to the matter s alleged in their complaint. Although recognizing that the Fields had continued to ignore the court’s orders, Judge

Cran f ill denied the motion for sanction of dismissal. He stated, however :

The Cour t is deeply concerned with the discovery matters that have come to light. It appears that Plaintiffs and Plaintiffs’ counsel have formed a pattern regarding discovery that this

Court will not tolerate

. . . if Plaintiffs’ refusal to take part in meaningfu l discovery continues, Defendants may file another motion. Any and all sanctions will be considered in the

future if such a motion is made by Defendants.

[¶ 5 ] In November 2007, defendants again m oved for dismissal claiming the Field s had

violated the t wo earlier orders requiring them to respond to discovery requests. After a hearing , Judge Cranfill issued a dec ision letter and order granting the mo tion and dismissing the case. In his decision letter, Judge Cranfill stated: “ Plaintiffs have egregiousl y failed to follow this Court’s orders, and this pattern of behavior has continued after the Court warned that this behavior would result in ‘any and all ’ sanctions

2being imposed upon them.” He concluded the severe sanction of dismissal with prejudice

was appropriate , stating further, “Plaintiffs ’ complete disregard of this Court’s orders has been blatant and egregious.” For her work on the case, Ms. Richard billed her clients
over $300 ,000 in fees and costs.

[¶ 6 ] As a consequence of Ms. Richard ’s fa ilure to comply with the discovery requirements of the Wyoming Rules of Civil Procedure and the district court ’s orders, bar counsel charged her with violating Rules 3.1, 3.2, 3.4 and 8.4(d) of the Rules of

Professional Conduct

. 2 After a hearing, the Boar d concluded bar counsel proved by clear

2 Those rules provide in relevant part as follows:

Rule 3.1. Meritorious c laims and c ontentions.

(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

. . . . (c) 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.

Rule 3.2. Expediting l itigatio n.

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the

client.

Rule 3.4. Fairness to opposing p arty and c ounsel

.

A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or unlaw fully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an ind ucement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery requ est or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

Rule 8.4. Misconduct

.

It is professional misconduct for a lawyer to:

. . . .

3and con vincing evidence that Ms. Richard violated Rules 3.1, 3.2 and 3.4. The Board

concluded bar c ounsel did not prove by clear and convincing evidence that she violated Rule 8.4(d) and dismissed that charge . The Board further conclude d that as a result of

Ms. Richard ’s violations , the parties were exposed to unnecessary expense and delays, and opposing counsel was forced to put in substantial time resulting in higher legal fees in attempting to obtain discovery

. The Board also concluded Ms. Richard ’s clients

suffered because their claims were dismissed with prejudice and they incurred substantial attorney fees and co sts

.

2. Centennial v. AECOM

[¶ 7 ] Ms. Richard represented AECOM in this breach of contract action filed in federal

dis trict court in 2009. Centennial sought to collect payments allegedly due from

AECOM under the contract. It alleged that AECOM had approved extra costs Centennial

i ncurred in performing under the contract . When a change order was sub mitted after the extra costs had been incurred, the project owner did not approve them. AE COM asserted it did not have to pay Centennial because Centennial did not obtain a change order in

advance. Centennial alleged the parties’ prior course of dealing demonstrated the practice was to comp lete the work first and obtain approval for the excess costs later

. Ms. Richard filed an answer on behalf of AECOM asserting the exact opposite

— the prior course of dealings showed that AECOM required change order appro val before excess

costs were incurred. Ms. Richard also claimed Centennial had advised AECOM repeatedly that the cost overrun would be around $50,000.

[¶8] Centennial provided documentation to AECOM showing the parties’ prior course of dealing and sou ght to obtain similar documentation from AECOM. Despite having asserted prior course of dealing in its answer, AECOM refused to produce the documentation on the ground that it was not relevant. AECOM also refused to produce

other information Centennial h ad requested on the ground that it was privileged or prepared in anticipation of litigation. Ms. Richard filed an affidavit supporting the

refusal to produce the information, stating that she had review ed the documentation and it, in fact, fell within the exceptions.

[¶ 9 ] In October 2009, Centennial took the deposition of AECOM’s program manager. He testified that the $50,000 cost overrun fig ure asserted in AECOM’s pleadings came fro m him, not from Centennial. Despite this testimony refuting the a ssertion, Ms. Richard subsequently included the assertion in her pretrial memorandum and submitted a jury instruction c ontaining the assertion.

(d) engage in conduct that is prejudicial to the admin istration of justice;

4[¶ 10 ] In January 2010, AECOM filed a brief in opposition to a summary judgment

motion filed by Centennial

. Although the brief cited to an affidavit and exhibits , no affidavit or exhibits were attached. When the affidavit was later filed, unsigned and after

the deadline , it did not contain the statements the brief represented it contained. The same day t he u nsigned affidavit was filed AECOM also filed a motion for extension of time to file the exhibits missing from the brief. In response, Centennial filed a reply brief in which it identified sixteen misrepresentations of fact made in AECOM’s brief.

[¶11 ] On March 1, 2010, Centennial sought an order compelling production or an in

camera review of the documentation withheld as privileged or prepared in anticipation of litigation and , on March 29, 2010, M agistrate Beaman ordered AECOM to submit the

documen tation fo r his review. On April 12, 2010, the magistrate entered an order finding that none of the documents at issue were prepared in anticipation of litigation and directing AECOM to produce them. With regard to the documents AECOM contended were privi leged, the magistrate concluded most of them were in fact privileged but

identified a number of them that were not and o rdered AECOM to produce those identified as not pr ivileged . T he magistrate ordered AECOM to produce the documents by April 16, 2010.

[¶ 12 ] Meanwhile, on March 26, 2010 , Centennial had filed a motion for sanctions to compel AECOM to produce course of dealing discovery. After a hearing, the magistrate entered an order on the motion. Addressing the parties’ discovery history, the mag istrate found in relevant part:

The parties submitted their initi al disclosures on July 31,

2009.

Centennial’s initial disclosure named a number of potential witnesses, identified the discoverable information each witness possessed and contained an exten sive list of documents, compilations, tangible evidence and its computation of damages.

AECOM submitted a “barebones” initial disclosure, “which simply provided the names of three individuals and ‘identified’ general documents it stated it might rely on, such

as ‘correspondence’ and ‘invoices’. ”

On October 21, 2009, Centennial submitted its responses to AECOM’s first discovery request, in which, with the exception of two objections, it fully answered each interrogatory and r equest for production and iden tifi ed nine

5projects where AECOM had paid extra cost s without advance change orders.

On October 26, 2009, AECOM submitted its responses to Centennial’s first discovery request, in which it objected to

“ every single interrogatory, request for production an d request for admission ”, provided “vague and inexact” responses, pointed to approximately 2000 possible documents where answers might be found and objected to the request for evidence concerning the parties’ prior course of dealing.

On November 21, 2009, AECOM submitted its response to Centennial’s second discovery request, again failing “to provide any solid answer” to the request con cerning prior course of dealing , objecting “in each and every response to written discovery on the s pecious grounds of rel evance”, and, in responding to interrogatories concerning prior course of dealing , directing Centennial to the deposition of an AECOM employee who testified he had no firsthand knowledge of the parties’ history concerning change orders.

On March 23, 2010, the Court entered an order denying summary judgment in which it stated that evidence of the parties’ prior course of dealing would be permitted at trial.

AECOM thereafter submitted its second disclosure statement

which suffered “from the same defects” as the prior

disclosure statements.

After Centennial filed its motion for sanctions to compel discovery, AECOM submitted a third initial disclosure statement which “still does not provide any information regarding course of dealing” and, once again, contain s “evasive,” “vague and imprecise” responses.

[¶ 13 ] The magistrate concluded Centennial had made multiple good faith attempts to get AECOM to adequately respond to its discovery requests and AECOM had “ hinder ed those attempts at every turn,” “ made the routine discovery process in this case anything

but routine” and continued to refuse to provide “ any substantive discovery of course of dealing ” even though the issue had existed since July 2009. The magistrate further

stated:

The Court finds prejud ice is palpable in this matter. The record lays [bare] a pattern of dilatory behavior on the

6part of [AECOM]. The discovery issue at bar was originally

ge nerated in July 2009. [AECOM] ’s scant

. . . initial disclosure set the stage for the course of disc overy in this case and, from that time forward, [AECOM] has consistently

avoi ded producing any documentation based on its unilateral and conclusory assertions of lack of relevancy.

. . . [AECOM] has thwarted the discovery process at every turn and has d one so for months and months. . . .

. . . .

[AECOM]’s actions further create financial burdens on [Centennial] since [Centennial]’s counsel is forced to repeatedly follow up

. . . to request information that should have been provided as a part of the ordinar y course of discovery. Moreover, the tortured discovery history in this case has made it close to impossible for [Centennial] to

effect ively prepare its trial strateg y. [AECOM] has failed to provide any substantive discovery, therefore, [Centennial] is

l eft to speculate as to defenses that may be presented at trial.

[¶ 14 ] Despite these findings, the magistrate denied Centennial’s motion for sanctions and ga ve AECOM another chance to provide proper disclosures. The magistrate ordered AECOM to fully resp ond by May 11, 2010. Ms. Richard appealed to U.S. District Court Judge William F. Downes, who affirmed the magistrate’s order.

[¶ 15 ] Meanwhile, after receiving AECOM’s responses to some discovery requests on April 16, 2010, Centennial filed a motion for leave to amend its complaint to add four

new ca uses of action it had been unaware of prior to receiving the responses . Finding that the amendment just before trial was attributable to AECOM’s late disclosures, t he

m agistrate granted the motion. AECOM again appealed to Judge Downes , who affirmed

the order

.

[¶ 16 ] On June 4, 2010

, Centennial filed a motion to compel AECOM to cooperate in depositions and answer written discovery and a motion for sanctions in which it alleged that AECOM was continuing not to cooperate with discovery in violation of the Court’s

orders

. Judge Downes entered an order granting the motion to compel but did not award

sanctions at that time

.

[¶ 17 ] AECOM filed a motion to continue the trial which was scheduled to commen ce on June 22, 2010 . Judge Downes denied the motion, stating that the record reflected a “complete lack of diligence and cooperation” by AECOM ; AECOM had “misdirected significant time and precious resources” of its own, the Court and Centennial in the las t weeks before trial with “wasteful and unsupported motions and appeals ” ; and AECOM

7should not be allowed to benefit from further delay “caused by its own dilatory

behavior.”

[¶ 18 ] On June 17, 2010, less than a week before trial, Judge Downes entered an order on

Centennial’s motion for sanctions. Th e order states in relevant part:

From a review of the pleadings and record in this matter, it appears that [Centennial] may have good grounds justifying an award of substantial sanctions. [AECOM]’s

patte rn of conduct is an egregious violation of the rules governing discovery obligations. There must be a biting sanction to such dilatory and obstructive conduct.

. . . [AECOM] is forewarned that a monetary sanction is likely to be imposed.

[¶ 19 ] The case proceeded to trial, resulting in a jury verdict for Centennial. O n August 6, 2010, Centennial filed an additional motion for sanctions against AECOM. T he Court entered an order gran ting the motion , finding:

Ms. Richard ’s April 16, 2010 certification tha t AECOM has produced the documents specified in the magistrate’s April 12, 2010 order was not accurate in that one particular document was not produced; althoug h Centennial notified

Ms. Richard that the docum ent had been omitted, Ms.

Richard let more than a month go by before she produced it even though “it would have taken [AECOM] but a few minutes to verify that the item had not been produced and to

cure this violation of the Court’s Order.”

Ms. Richard failed to comply with the April 27 order in that the responses to Centennial’s second discovery request

contained evasive and bad faith denia ls of four requests to admit, failed to identify any course of dealing evidence

, willfully disregarded the magistrate’s order to identify specific documents respons ive to the document request and withheld responsive documents for months

.

Ms. Richard failed to show the failure to produce responsive documents was inadvertent; rather, the record showed “a complete disregard of her obligation to act with care and in good faith.”

8Ms. Richard ’s belated production in June 2010 of handwritten notes of AECOM’s lead witness precluded a fair opportunity for Centennial to investigate or discover the true facts, prejudicing three of its claims on which it did not succeed at
trial.

Ms. Richard ’s belated and evasive responses to discovery requests relating to Centennial’s interference with contract claims caused unfairness to the latter’s ability to present that

claim ; “[h]aving failed to cooperate fairly in responding to

. .

. discovery, [AECOM] then infused corporate representatives/trial witness with partial knowledge of partial facts, seeking and obtaining tactical advantage in the limited time to prepare brought by its own dilatory behavior.”

[¶ 20 ] The Court c oncluded:

[AECOM]’s pattern of obstructive behavior has been pervasive and persistent throughout the entire course of written discovery and detrimental to the function of the judicial process. [AECOM] has evinced a cavalier disregard for the rights of th e Plaintiff, the Rules of Civil Procedur e governing discovery, and the O rders of this Court seeking to enforce those rules, and similar behavior continued even after the April 12 O rder and the April 27 Order spe l le d out viv idly the previ ou s departures by [ AECOM] from acceptable standards of conduct and provided further opportunities for [AECOM] to cure the inadequacies and alter the behavior.

Taking into account the willfulness of the discovery misconduct and the prejudice to Centennial, the Court ordered AECOM to pay attorney fees in the amount of $58,361.51.

Ms. Richard appealed the order imposing sanctions to the Tenth Circuit Court of Appeals, which affirmed the order.

[¶ 21 ] As a consequence of what occurred in AECOM , counsel for Centennial file d a grievance against Ms. Richard with the Board. After conducting an investigation , bar

c ounsel filed a charge against Ms. Richard for violating Rules 3.1, 3.2, 3.3, 3.4, 5.1, 5.3, 8.4(c) and 8.4(d). 3 After the hearing, t he Board concluded bar c ounsel pr oved by clear

3 Rule 3.3. Candor t oward the t ribunal

.

(a) A lawyer shall not knowingly:

9(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by t he lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows t o be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the trib unal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person

inten ds to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enabl e the tribunal to make an informed decision, whether or not the facts are adverse.

Rule 5.1. Responsibilities of p artners, m anagers, and s upervisory l awyers

.

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers

poss esses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules

of Professional Conduct.

(b) A lawyer having d irect supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional

Con duct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct superviso ry authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial

action.

Rule 5.3. Responsibilities regarding n onlawyer a ssistants

.

With respect to a nonlaw yer employed or retained by or associated with a lawyer:

(a) a partner and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effec t measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

1 0and convincing evidence that Ms. Richard violated Rules 3.1, 3.2, 3.3, 3.4, 8.4(c) an d 8.4(d). The Board concluded bar c ounsel did not prove by clear an d convincing evidence

that Ms. Richard violated Rules 5.1 and 5.3 and dismissed those cha rges. The Board

concluded Ms. Richard ’s conduct resulted in unnecessary expense and delay and

AECOM incurred over $250,000 in fees and expenses.

3. Big

- D v. Starrett

[¶ 22 ] Ms. Richard represented Starrett Properties, LLC and Morris Starrett (Starrett) in

this breach of contract case filed in 2008 in t he district court in Teton County, Wyoming

. Big

- D sought to recover costs it had incurred in constructi ng a home on Lot 81. Ms.

Richard filed a counterclaim on behalf of her clients claiming Big

- D breache d the

contract for the ho me on Lot 81 as well as two other contracts on different lots.

[¶ 23 ] In February 2011, the district court entered an order of partial summary adjudication in which it ruled that Starrett was barred from brin ging claims relati ng to the

two lots covered by different contracts. During the deposition of Starrett ’s expert witness, which was taken after the February 2011 ruling, the following exchange occurred during counsel for Big

- D’s questioning:

Q. Do you know how much Big

- D is claiming in

escalation costs?

A. If you combine lot 81 and lot 85, around a quarter

million.

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Rule 8.4. Misconduct

.

. . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

11Q. Are you aware that the judge has ruled that there are

no claims on lot 85 allowed in this lawsuit?

Ms. Richards: And I’m going to object because i t calls for a legal conclusion.

I think the judge has rule d there are promissory estoppel

cla ims in this case. The judge has ruled that the consequential damage clause bars claims on 81 and 85, but I don’t think he’s excluded all promises on 81 and 85, so we’ll just agree to disagree.

. . .

. . . .

Q. [By Big

- D’s counsel] Have you read the M otion for

Partial S ummary J udgment and the order that the judge issue d

on that motion?

A. No.

Q. So you’re not aware that he

– one of his orders was,

and I t hink this is verbatim, “claims related to lot 75 and 85

are barred”?

Ms. Richards: And, [counsel], I’ll just say again that, you know, my hope was you can explore all of his opinions and knowledge, then the legal issues will be left for you and I to

work out.

[¶ 24 ] The following exc hange occurred during Ms. Richard ’s questioning of the witness:

Q. When you looked at documents

– now, I guess I understood you to say that you looked at project documents for all three projects; 81

–

A. Actually, not 75

--

Q.

-- 75 and 85.

A.

-- to much extent; yeah.

Q. Okay, so you spent most of your time on 81 and 85?

12A. That’s correct.

[Big

- D’s counsel]: And I’m going to object because 85 is

irrelevant

–

Ms. Richard : And you can state your objection.

[Bid D’s coun sel]: Yeah, and I’m going to move for a

mistrial if evidence

– and sanctions if evidence regarding 85

is introduced.

Ms. Richard : And you can make your motion, but I think you have to wait until he rules on Monday.

. . . .

Q. [By Ms. Richard] : So, were there any patterns that you were able to correlate or notice between 81 and 85 in terms of how the projects were managed by Big

- D?

[Big

- D’s counsel]: I’m going to make a standing objection on the record to any questions and any testimony and evidence pro vided regarding lot 85. It’s irrelevant. It’s been excluded by the judge.

[¶ 25 ] Two days later, Ms. Richard went to opposing counsel’s office. She related what had occurred at the deposition to Big D’s co

- counsel, who had not been present. She

inform ed him that she was not going to accept being threatened with sanctions and said

she wanted to see if he was involved in his co

- counsel’s threat. When asked why she was in his office, Ms. Richard said she wanted t o make it clear what the limit wa s so that he

would unders tand the boundaries. Ms. Richard tape recorded the confrontation without counsel’s knowledge. Counsel sent a letter to bar counsel describing what had occurred

and stating that Ms. Richard verbally threatened him.

[¶ 26 ] Meanwhile, in late February of 2011, the parties submitted the ir pret rial

memoranda. Ms. Richard ’s memorandum listed exhibits A through Z , AA through NN, BB through LL and OO through VV

. On March 7, 2011, one week before trial and three days after the pre

- trial confe rence, Ms. Richard submitted an amended pre trial

memoran dum re

- list ing exhibits A through Z, re

- lettering exhibits AA through NN as R1 through R14 and adding different exhibits as AA through ZZ. On March 11, 2011, at 4:56 p.m. the Friday before trial wa s to begin the following Monday, Ms. Richard filed a revised exhibit list adding exhibits AAA through HHH. Ms. Richard sent the revised

13exhibit list to opposing counsel the following day, Saturday, Marc h 12, two days before

trial.

[¶ 27 ] On the first day of trial, opposing cou nsel informed Judge Sanderson that Ms.

Richard’s latest revised exhibit list included exhibits she had neve r seen. Ms. Richard told the judge t he only new exhibits were deposition transcripts. In fact, in addition to deposition tra nscripts, the late filed revised list included the following categories of exhibits that had not been previously listed:

DDD Big D Emails

EEE Sterrett Defendants Emails

FFF Lot 85 Pay Applications and Change Orders

GGG Lot 81 Change Orders

HHH Bi g D Project Files, Lots 75, 81 and 85.

[¶ 28 ] On March 15, 2011, Judge Sanderson continued the trial indefinitely so that a

numbe r of matter s raised by Ms. Richard could be briefed, considered and ruled upon. After further consideration, the judge declared a mistrial and released the jury. The trial

was re

- scheduled for October 2011. Subsequently, pretrial motions were filed and the judge ente red orders precluding Ms. Richard from amending her counterclaim to add a promissory estoppel claim in regard to Lo t 85; introducing any claims or evidence relating to Lot 75 or 85 (this was the second time the Court made this ruling) ; bringing claims for quality or defective work relating to Lot 81; and, in light of the waiver provision in the contract, claiming conse quential or delay damages.

[¶ 29 ] Big

- D then filed a motion for partial summary judgment in regard to the amount due under the prime contract and two change orders. The court g ranted the motion, finding there was a valid, unambiguous contract for Lot 8 1; the contract was properly modified by the two change orders; the total contract price after the change orders was $1,509,811.00 ; Sterrett paid $1,194,425.04 of the amount owed and, therefore, breached the contract by failing to pay the remaining $315,38 6.42 ; Sterrett also owed interest in the amount of $126,225.99; the only issues remaining for trial were Big

- D’s breach of contract and unjust enrichment claim s related to two additi onal change orders and

Sterrett s ’ counterclaim for breach of contract rela ted to delay. C oncerned that the remaining c laims were not viable, Judge Sanderson asked the parties to present briefs defending the remaining claims. After c onsidering the briefs, he dismissed the remaining claims with prejudice.

[¶ 30 ] In his decis ion letter issued prior to the o rder of the dismissal, Judge Sanderson

stated:

The Court has made a continual and repeated effort in pretrial conferences (note the plural) and summary judgment motions

14to get the Defendant to simpl if y the issues by stating exactly what is being claimed and on what legal theory it relies. The Court needed to get the case simplified so it could make proper evidentiary rulings and proper jury instructions so the jury could decide the case. The Court believes it is an

attorne y’s duty as an officer of the court to assist in this while still representing her/his client’s interests.

. . .

The Court has ruled on motions for partial summary adjudication

. . . only to see the same claims dressed differently raised again. At last instance the Court even raised the point that the contract appeared to cover all of the disputes and constituted the entire agreement of the parties and gave the parties the time they requested to point out where the Court was wrong. The only thing that c ame up at this hearing where there may be a dispute that fell within a breach of contract was that a stainless steel range hood was used rather than a more expensive copper one and that there were going to be fancier garage doors. This being the only

appa rent dispute, Ms. Richard did not state what the amount of the damage was at the hearing. Counsel has the duty of making sure that the counterclaim meets the subject matter jurisdiction of this Court.

The other matters, i.e. the interest calculation and other

credits were either not raised at all or not with sufficient particularity for the Court to conclude there was a genuine dispute.

The Court agrees that the pleadings filed after November 10, 2011 are simply an effort to revive or

reconsider what has already been ruled upon. The Motion to

Strike [filed by Big

- D] is granted.

As to [Big

- D’s] motion for sanctions, the Court believes the granting of [the] motion to strike pleadings adequately resolves the matter [

. ]

In summary, the court acknowledges th at the Defendant may have lost a legitimate basis for an offset somewhere, but it was the Defendant’s responsibility to state it clearly and cogently within the times previously set. The

15C ourt can only rule on what is presented, not on what is brought up afterward.

[¶31 ] Both parties appealed the order of dismissal. One of the issues presented on appeal

was whether Mr. Ste rrett was individu ally liable for the amount award ed in the partial summary judgment. Big

- D Signature Corp. v. Sterrett Properti es , 2012 WY 138, ¶¶ 27

- 28, 288 P.3d 72

, 79 ( Wyo. 2012). Based upon Ms. Richard’s concession during oral argument, this Court concluded the contract bound him individually. During her argument, Ms. Richard told th e Court a particular affidavit was include d in t he appellate record; in fact , the affidavit was not in the record. This Court found in favor of Big

- D on all other substantive issues presented, including Sterrett’s counterclaim and whether Big

D was entitled to relief under the two additional chan ge orders on the basis of an oral

contract. The latter issue was remanded to the district court.

[¶32] Back in district court, Big

- D moved for dismissal of the case, stating that it had analyzed the costs and benefits of pursuing the claims arising fro m the two additional change orders and was electing not to pursue them. Sterrett v. Big

- D , 2013 WY 154, ¶ 6,

314 P.3d 1155, 1156

- 57 (Wyo. 2013). Ms. Richard filed an objection to the motion asserting that final judgment was not appropriate until her coun terclaim had been adjudicated. The district court granted the motion to dismiss, finding that the counterclaim had been dismissed in the original action and that dismissal had been affirmed by this Court on appeal. After the district court entered the or der of dismissal, Ms. Richard filed a motion for costs and attorney fees, even though judgment had been entered against her client for $441,612.41 in the original action. The district court denied the motion and, on Big

- D’s motion, awarded sanctions again st Ms. Richard.

[¶33] Meanwhile, Ms. Richard appealed the order s dismissing Big

- D’s claims on the two additional change orders and denying her claim for a ttorney fees. This Court held that no

counterclaims rem ained for trial after we affirmed the dist rict cour t’s order dismissing them in the first appeal and any other claims were moot upon the district court’s subsequent order dismissing them on Big

- D’s motion. We further held that the district court properly denied Ms. Richard’s motion for attorney f ees, stating “it would be absurd to classify [her clients] as the ‘prevailing party’” given that a judgment of over $400,000.00 was entered against them in the litigation.

[ ¶ 34 ] As a consequence of Ms. Richard ’s actions, counsel for Big

- D filed a grievan ce against Ms. Richard with the Board. After investigating , bar c ounsel filed charges against Ms. Richard claiming she vi olated Rules 3.2, 3.3, 3.4, 5.1, 5.3, 8.4(c) an d 8.4(d).

The Board concluded bar c ounsel proved by clear and convinci ng evidence tha t Ms.

Richard violated Rules 3.2, 3.3, 3.4, 8.4(c) an d 8.4(d). The Board concluded bar c ounsel did not prove by clear and con vincing evidence that Ms. Richard violated Rules 5.1 and 5.3 and dismissed those charges. The Board concluded Ms. Richard ’s conduct exposed

16the parties to unnecessary expense and delay and her clients incurred over $125 ,000 in fees and expenses.

4. Haden v. Bontecou Construction

[¶ 35 ] Ms. Richard represented Bontecou Construction in this dispute between a

homeowner and a builder over the cost of construction of a house in Teton County, Wyoming. A series of emails contained in the record reflects that coun sel for Haden requested that a computer be produced at a deposition scheduled on November 4, 2009. The computer was not produced and it was not until December 10 , 2009

, that Ms.

Richard produced documents obtained from an inspection of the computer. Ms. Richard did not produce the privilege log showing what documents she withheld until December 22, 2009.

[¶ 36 ] On February 9, 2010, counsel for Haden filed a request for inspection of other computers containing Bontecou’s files on the construction. Ms. Richard objected, asserting the request was overly broad and burdensome. Judge Guthrie granted the

request on Ma rch 24, 2010 , noting that the scope of the request was identical to an earlier

request made by Ms. Richard for comput e r inspection and was not, therefore, overly

broad or burdensome. When the inspection still did not occur, Haden filed a motion for

forens ic inspection of Bontecou’s computers on May 6, 2010.

[¶ 37 ] On May 13, 2010, counsel for Haden also filed a motion to compel production of the privilege log for Mr. Bontecou’s electronic files and for sanctions for discovery

abuses. Ms. Richard filed an opposition to the motion and counsel for Haden submitted a reply brief to which he attached the April 12, 2010

, and April 27, 2010

, discovery orders issued by the federal magistrate in Centennial v. AECOM

. Counsel sought to show a pattern of discovery abuse by Ms. Richard . Two weeks late r, Ms. Richard arrived at the offices of Haden’s counsel and demanded to speak with opposing counsel. When she

was told he was on the phone, Ms. Richard proceeded to his office, ordered him to get off the p hone, deman ded to know where he got the AECOM orders and told him “you have

no idea who you’re messing with” and “I will bring the full weight of this upon you

. ”

Ms. Richard followed up the confrontation with a letter threatening to seek W.R.C.P. 11

sanctions if cou nsel did not withdraw his reply brief.

[¶ 38 ] In early June 2010, counse l for Haden contacted Ms. Richard about setting up a time for his forensic computer inspector to have access to the Bontecou computers. After

several e mails back and forth, Ms. Ri chard stated the inspection could be scheduled “for any day the following week.” Counsel for Haden replied that his inspector could be there June 16, at 9:00 a.m. and reiterated an earlier request for specific information about the

computers so the inspec tion could be performed

. On June 14 and 15, counsel for Haden followed up with emails informing Ms. Richard that the inspector would arrive for the inspection by 10:30 at the latest and needed the information requested earlier

. On June

1716, 2010, the ins pector arrived at Bontecou’s offices and was not allowed inside.

Coun sel for Haden emailed Ms. Richard at 10:40 that morning, asked when he would be

allowed in and reiterated that time for the in spection was limited because his inspector

was scheduled to fly out at 5:40 that evening. Counsel sent a second email at 11:30 a.m. stating that if the inspector was not allowed in by noon, he might not be able to complete the inspection. Ms. Richard replied that she would be at Bontecou’s offices at noon and

the inspection could take place then. Upon being allowed in , Haden’s inspector was presented with a modified copy of the inspection protocol the court had approved. The original protocol allowed inspection of an external hard drive containing time capsule

i nformation; the modification did not allow inspection of the hard drive. Ms. Richard told the inspector that opposing counsel had agreed to modify the protocol. Opposing counsel knew nothing about the modification until the inspector informed him.

[¶ 3 9 ] In order to complete the inspection, Haden’s forensic computer inspector rescheduled his departure time to the following afterno on. Counsel informed Ms.

Richard and stated that if access was not provided to the external hard drive, he would

ask for an emergency hearing. The following day, Ms. Richard wrote a letter to opposing counsel stating that he had unilaterally scheduled the inspection, the inspection took longer than expected due to the inspector’s software and Mr. Haden would have to bear

that expense as well as the expense associated with disrupting Bountecou’s business during the inspection. She requested payment in the amount of $1

, 375.00 by June 25,

2010.

[¶ 40 ] Haden’s counsel file d a grievance against Ms. Richard . A fter investigating the claims, bar c ounsel charged Ms. Richard with violations of Rules 3.1, 3.2, 3.4, 8.4(c) an d 8.4(d). The Board concluded bar c ounsel proved by clear and convincing e vidence that

Ms. Richard violated Rules 3.2, 3.4 and 8.4(c) but did not meet his burden of proving violations of Rules 3.1 and 8.4(d).

5. Shindell v. Shindell

[¶ 41 ] This was a divorce action filed in district c ourt in Teton County . The divorce decree entered in 2004 awarded primary custody of the parties’ two minor chi ldren to the

mother and liberal visitation to the father. Seven years later, i n 2011, Ms. Richard filed a petition on behalf of the mother to modify visitation by either suspending father’s visitation until the Department of Family Services (D FS) could in vestigate or requiring visitation to occur in Jackson, Wyoming. The petition alleged: “ A licensed professional counselor has concerns that [father] is abusive to the children both emotio nally and, at times, physically ” and “does not appear to have the ab ility to provide adequate care for

ea ch child” during visitation. The petition further alleged that counsel “is of the opinion that [father]’s interaction and communication with the children has deteriorated and is increasingly abusive and destructive.”

18[¶ 42 ] In sup port of the petition, Ms. Richard presented an affidavit from the licensed profession al counselor which stated:

1. I am a licensed Professional C ounselor in the State of Wyoming.

2. I have interviewed the Shindell children.

3. It is my opinion th at [father]’s behavior towards his

children creates concerns th at [he] is abusive to the children both emotionally and physically.

4. In my opinion, it d oes not appear that [father] has the ability to provide adequate care for each child throughout each pe riod of responsibility and visitation.

5. I believe that [father]’s interaction and communication

with the children has deteriorated and is increas ingly

abusive and destructive.

[¶ 43 ] At a hearing on the petition, the counselor testified that he had not tr eated the Shindell children since 2002 or 2003; his only meeting with them since 2003 was for

about a half

- hour when he met with them to explain the legal process for the hearing; he

had never diagnosed, tested or had anyone else test the children ; he was not qualified to perform a formal psychological assess ment and had not done so with the children ; and virtually everything he had to say at the hearing was based on what the mother told him

. Upon questio ning by Judge Tyler , the following exchange occurred :

Court:

. . . Are you a counselor for these girls or not ?

Witness: No, not at present.

Court: And in what capacity are you coming forward with opinions if you’re not their counselor ?

Witness: As their former counselor and as a trusted

ad visor to their mother.

Court: Is the manner in which you conducted this interview with the girls on that one occasion for however long it was on whatever date it was your normal way of conducting your professional services?

19Witness: No.

Judge Tyler ruled the testimony was inadmissible.

[¶ 44 ] Counsel for the father file d a grievance against Ms. Richard . After investigating

, bar c ounsel filed charges against Ms. Richard for violations of Rules 3.1, 3.3, 3.4, 8.4(c) and 8.4(d). After th e heari ng, the Board concluded bar c ounsel met his burden of proving all of the violations except the alleged violation of Rule 3.4 , which it dismissed

.

6. Miller v. Henderson

[¶ 45 ] Ms. Richard represented the plaintiff in this proceeding filed in district court in Teton County. On August 23, 2012, Ms. Richard served notice of t he video deposition testimony of a witness to take place the following day. During opposing counsel’s cross

examin ation of the witness, Ms. Richard interrupted and asked to be allo wed to proceed

with re

- direct e xamination, saying that she had to leave. Opposing counsel objected and

Ms. Richard proceeded to question the witness. When Ms. Richard continued her questioning over counsel’s repeated objection, counsel called the judge a nd a telephone

h earing was conducted. Judge James ruled that opposing counsel would be allowed to complete his cro ss

- examination before Ms. Richard conducted re

- direct examination and declined to impose a time limit on cross

- examination

. A fter Judge Jame s ’ ruling , Ms.

Richard continued to ask her to impose a time limit on cross

- examination. When the telephone hearing conc luded, Ms. Richard persisted in her demand that she be allowed to question the witness and that opposing counsel limit his cross

- examin ation to a specified

time.

[¶ 46 ] As a result of her conduct dur ing the video tape deposition, bar c ounsel cha rged

Ms. Richard with violating Rule 3.1, 3.3, 3.4, 3.5 , 8.4(c) and 8.4 (d ). 4 After deliberating,

the Board concluded there was clear and convinc ing evidence of violations of Rules 3.4, 3.5 and 8.4(d), but dismis sed the charges under Rules 3.1, 3.3 and 8.4(c)

.

7. Dorf v. City of Evansville

[¶ 47 ] Ms. Richard represented the plaintiff in this action filed in federal district court against the Cit y and two individuals under 42 U.S.C. § 1983

. Judge Skavdahl granted the individual defendants’ motion for judgment on the pleadings on April 22, 2012, finding

4 Rule 3.5 . Impartiality and decorum of the t ribunal

.

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

20that the complaint failed to allege sufficient fact s to state a plausible claim for relief. On September 7, 2012, the court likewise dismissed the complaint against the City. In the later order, Judge Skavdahl described the following events:

T h e day before the deadline for responding to the City’s motion for judgm ent on the pleadings, Ms. Richard

filed a motion for extension of time. She did not indicate she would be asking the court to reconsider its ruling [as to the individual defendants] or that she would be seeking leave to amend the complaint. At 11:52 p.m. on the day her response was due, Ms. Richard filed a motion for reconsideration, opposition to the City’s motion and motion to amend the amended complaint . The following day, she filed a revised motion for reconsideration and opposition to the City’s motion. An hour later, she filed a mo tion seeking additional

time to file the revised motion and opposition, stating that the revision was necessary to correct typographical e rrors and

add additional authority and s ubsequent history of cited case s and an extension should be granted in the int erests of justice

.

After the c lerk’s office advised Ms . Richard that filing two separate documents in a single submission violated the court’s electronic case filing procedures and she needed to file her motion for reconsideration and response to the Cit y’s

motion a s separate documents, Ms. Richard re

- filed the same exact document twice, stating that the authority and argument supporting both pleadings was the same. Ms. Richard did not separate the facts, supporting authority and argument relating

to her motion to reconsider from those relating to her response to the City’s motion.

[¶ 48 ] Judge Skavdahl expressed uncertainty a bout which version of Ms. Richard ’s brief

he should properly consider

— the one filed at 11:52 p.m. on the date to which the origin al

deadline had been extended or the revised motion filed the following evening

. Consid ering the reasons Ms. Richard gave f or the revised motion, the judge concluded she had filed a rough draft of the motion and response on the due date and sought to file a corrected version the following evening. Citing a previous order he had entered striking a supplemental pos t

- deadline memorandum Ms. Richard had filed under substantially

similar circumstances and for which she failed to establish either good cause or excusable neglect , Judge Skavdahl stated “[t]his practice illustrates a troubling and unmistakable pattern in counsel’s approach to briefing.”

21[¶ 49 ] Jud g e Skavdahl acknowledged that striking the revised brief was warranted, but

declined to do so. He recog nized Ms. Richard ’s “ongoing failure to adhere to the

deadlines of the Court” and the difficulties presented to the d efendants faced with reading, comparing and responding to multiple versions of the same brief; he concluded, however, that Ms. Richard ’s fa ilings should not work a hardship on her client. Judge

Skavdahl considered the late filed revised motion a nd response and granted judgment on the pleadings for the defendants.

[¶ 50 ] B ar c ounsel charged Ms. Richard with violating Rules 1.1, 3.1, 3.4(c) a nd 8.4(d). 5
After hearing the evidence and del iberating, the Board concluded bar c ounsel had proved by clear and convincing evidence violations of Rules 3.1, 3.4(c) and 8.4(d) but not a

violation of Rule 1.1 and dismissed the latter charge

.

ATT ORNEY DISCIPLINARY PROCEDURE

[¶ 51 ] The purposes of the state b ar disciplinary procedure are to maintain “the integrity

of the bar ,” “ to prevent the transgressions of an individual lawyer from br inging its image into disrepute ” and to “protect the public and t he 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, 122 1 (Wyo. 1980 )

. Wyo. Stat. Ann. § 5

- 2

- 114 (LexisNexis 2013) charges this Court with adopting rules of “ pra ctice and procedure in all courts of this state, for the purpose of promoting the speedy and efficient determination of litigation upon its merits

. ” Wyo. St at. 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

. ”

[¶ 52 ] Pursuant to Wyo. Stat. Ann. § 33

- 5

- 104 (LexisNexis 2013), m embership to the bar is by petiti on t o the Wyoming Supreme Court . Pursuant to §1(a) of the Disciplinary

Code fo r the Wyoming State Bar, attorneys are “subject to the exclusive disciplinary jurisdiction of this Court and the Board . . . .” D isciplinary 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. 19 38). The Board acts as an arm of this Court in taking evidence an d 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

5 Rule 1.1. Competence

.

A lawyer shall provide competent representation to a clie nt. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

22re com mendations

, the “ultimate judgment in these cases is vested in the Court.” C asper , ¶ 8, 318 P.3d at 793

- 94, citing Mendi cino , 565 P.2d at 466. S ee also Davidson

, ¶ 1, 205

P.3d at 1012

.

[¶ 53 ] In determining whether discipline is appropriate in these special proceeding s , this

Court must be satisfied that “ substantial, clear, co nvincing, and satisfactory evidence ”

exists to sustain the findings of the Board. Mendici no , 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

.

DISCUSSION

[¶ 54 ] M s. Richard conceded generally at the hearing before the Board that she failed to

adhere to the rules of the tribu nal in Fields

, AECOM

, Sterrett

, Miller and Dorf

. Through counsel, she admitted during oral arg ument before this Court that her conduct probabl y violated in many instances the Code of Professional Conduct

. Counsel specifically

conceded that Ms. Richard ’s attempts to comply with the magistrate’s discovery ord ers in

AECOM fell short and were improper. Despite these general concessions and

admissi ons, we find it appropriate to address the specific rules Ms. Richard’s is alleged to have violated and the conduct supporting our con clusion that she violated those rules

.

Meritorious Claims and Contentions

– Wyo. R. Prof. Conduct 3.1

[ ¶ 55 ] A s ref lected in footnote 1, Wyo. R. Prof. Conduct 3.1(a) and (c)

, respectively

, prohibit a lawyer from asserting f rivolous claims and provide that by his or her signature

an attorney certifies that a court document is not submitt ed for an improper purpose, such

as unnecessar y delay or to increase the cost of litigation. In Fields

, after service of discovery requests on he r clients in August of 2006, Ms. Richard still had not provide d adequate responses three mont hs later when Judge Guthrie entered the first cour t order requiring her to participate in mea ningful discovery. Despite Judge Guthrie’s order, Ms. Richard still had not provided complete discovery responses nearly a year later when in Septemb er 2007, Judge Cranfill issued his decision letter again orderi ng her clients to provide detailed answers to the same discovery requests indentified in the earlier order

. After a hearing in January 2008, nearly a year and a half after ser vice of the discovery requests and after a third motion to compel , Judge Cranfil l in March of 2008 dismissed the case with prejudice based solely on the egregious failure by Ms. Richard and her clients to comply with the court’s orders to provide meaningful discovery

.

[ ¶ 56 ] In the three orders entered over the course of nearly a yea r and a half, two distric t judges concluded that Ms. Richard ha d not participate d in meaningful discovery and

23disregarded their or ders to do so. By her conduct, Ms. Richard caused unnecessary delay

and increased the cost of litigation. Clear and convinci ng evidence supports the

conclusion that in Fields Ms. Richard violated Wyo. R. Prof. Conduct 3.1

.

[ ¶ 57 ] As noted above, counsel for Ms. Richard conceded in oral argument that his client failed to comply with the magistrate’s discovery orders in AECOM

. The record also

shows that rather than complying with one of those orders, M s. Richard appealed the

order to Judge Downes. Even after orders from the magis trate and Judge Downes required her to provide proper discovery responses, Ms. Richard conti nued to with hold discovery resulting in another motion to compel and order granting the motion. Ms.

Richard also made frivolous claims in AECOM

. F irst, after pleading the parties prior course of dealings in her answer, she claimed that evidence of the parties’ p rior dealings

was not relevant and would not be produced . Second, after incorrectly attributing the $50,000 cost overrun figure to Centennial in her answer, she continued to make the same

assertion in court documents even after her witness testified the f igure was not Centennial’s, but his

. Ultimately, Judge Downes concluded Ms. Richard’s obstructive behavior was willful, detrimental to the judicial process and departed from acceptable standards of conduct and imposed sanctions of n early $60,000. Consist ent with her

earlier behavior in the case , Ms. Richard appealed the order imposing sanctions to the

Tenth Circuit Court of Appeals. T he order was affirmed . As in Fields , Ms. Richard ’s

actions in AECOM caused unnecessary delay and increased t he cost of li tigation. Clear and convincing evidence supports the conclusion that Ms. Richard violated Wyo

. R. Prof.

Conduct 3.1 in AECOM

.

[ ¶ 58 ] Wyo. R. Prof. Conduct 3.1 (a) prohibits a lawyer from asserting an issue unless

there is a basis in law and fact for do ing so that is not frivolous

. Rule 3.1 (c) contemplates that by his or her signature, a lawyer certifies that a pleading is well grounded in fact and warranted by good faith argument. In Shindell , Ms. Richard drafted and signed a pleading in 2011 asserti ng the father was physically and emotionally abusive to his children, lacked the ability to provide adequate care for them during

visitation and was increasingly abusive and destructive. When Ms. Richard made these

asser tions in the pleading, the counselo r upon whose opinions she was relying was not

the children’s counselor and had not been their counselor since 2002 or 2003

. Under these circumstances, the assertions in her 2011 pleading concerning the father were not well grounded in fact and were not wa rranted by good faith a rgument. Clear and convincing evidence supports the conclusion that Ms. Richard violated Wyo. R. Prof.

Conduct 3.1 in Shindell

.

[ ¶ 59 ] In Dorf , after obtaining an extension of time to file a responsive brief, Ms. Richard signe d and filed a few minutes before midnight on the due date a rough draft of the brief containing ty po graphical errors and in complete citation s to legal authority. In the same document, she requested leave to amend her complaint and asked the court to recon sider a prior ruling

. She attempted to correct the errors in the brief by filing revisions the

24following evening after the deadline. Still later, she filed a motion for an extension of the already extended deadline to allow her to file the revisions

. Up on being informed the

rules did not allow her to submit two documents in one submission and she would need to

re

- file her brief and motion to amend separately, Ms. Richard re

- filed the same document twice, stating that the same argumen t and authority appli ed to both. Ms. Richard’s request for an extension of time to fix typographical errors and provide complete legal authority to what amounted to a rough draft did not constitute a good faith argumen t for the extension. Clear and convincing evidence suppor ts the conclusion that in Dorf Ms.

Richard violated Rule 3.1

.

Expediting Litigation

– Wyo. R. Prof. Conduct 3.2

[ ¶ 60 ] Wyo. R. Prof. Conduct 3.2 , set out in footnote 1, requires a lawyer to make reasonable efforts to expedite litigation. As ref lected in the facts and discussion above

, Ms. Richard by her actions did the exact opposite in Fields and AECOM

. Discovery that

should have b een provided earlier was not provided, nor was it provide d after court
orders to produce it . Rather than expediti ng the litigation, Ms. Richard’s refusal res ulted in dismissal of the complaint in Fields and delay and significant monetary sanctions in

AECOM

. Clear and convincing evidence supports the conclusion that in Fields and

AECOM Ms. Richard violated Wyo. R. Pr of. Conduct 3.2. The record likewise supports

that conclusion in Starrett and Haden

.

[ ¶ 61 ] In Starrett

, Ms. Richard persisted in at tempting to discover evidence concerning

two lots after the district court barred claims concerning those lots . Addit ionally, after submitting he r pre trial memorandum listing Starre tt’s exhibits and after the pre trial conference, Ms. Richard submitted an amended exhibit list one week before trial in

which she re

- numbered previous exhibits and added new one s . T wo days be fore trial she

submitted yet another revised exhibit list adding differentl y numbered and new exhibits. Judge Sanderson ’s orders also reflect difficult y in getting Ms. Richard to simplify the

issues so the co urt could make evidentiary rulings and delay ca used by motions to revive or reconsider matters previously decided

. After Judge Sanderson dismissed her

counterclaim , Ms. Richard appealed and this Court affirmed his decision . After Judge

Sanderson dismissed the remaining claims on remand, Ms. Richard f iled a second appeal claiming again that the counterclaim survived. She also claimed error in the denial of her motion for attorney fees, even though her client clearly was not the prevailing party in the litigation. Contrary to Rule 3.2, these actions b y Ms. Richard unnecessarily delayed rather than expedited the litigation.

[ ¶ 62 ] The record in Haden likewise reflects a course of action on Ms. Richard’s part that delayed and obstructed the litigation. Despite opposing counsel’s repeated efforts to

o btain discovery, Ms. Ri chard unreasonably delayed in producing computer s for inspection, documents obtained from computer inspection s and privilege log s identifying

documents that were withheld

. Her actions with regard to the inspection when it finally

25di d occur were obstructionist and caused further expense and delay . Clear and convincing evidence supports the conclusion that she violated Rule 3.2

.

Candor Toward the Tribunal

– Wyo. R. Prof. Conduct 3.3

[ ¶ 63 ] Wyo. R. Prof. Conduct 3.3 (a) prohibits a l awyer from making a false statement of

fact or law to a tribunal and, when such a statement is made, requires a lawyer to correct

it

. Rule 3.3(c) prohibits a lawyer from offering evidence that h e or she knows to be false

and requires the lawyer to take re medial measures if such evidence is offered . In

AECOM , evidence was presented that Ms. Richard said she would disclose informati on and then did not disclose it . She also filed an affidavit stating that she had reviewed all

the documents she was withholdi ng and they were privileged or prepared in anticipation of litigation when many of the documents clearly were not privilege or prepared in anticipation of litigation

. In addition, Ms. Richard made an allegation in h er counterclaim that was not true; then, even after a witness testifi ed it was not true, Ms.

Richard submitted a pretrial memorandum and jury instruction to the court containing the same false allegation. She stated facts in her brief in response to a summary judgment motion that were not suppo rte d by the referenced affidavit. Clear and convincing evidence supports the conclusion that Ms. Richard’s actions in AECOM violated Wyo. R.

Prof. Conduct 3.3.

[ ¶ 64 ] Ms . Richard likewise violat ed Rule 3.3 when in Starrett she represented to the

court that her re

- revised exhibit list submitted two days before trial added only depositions when, i n fact, her final exhibit list identified other exhibits that had not been listed previo usly

. Finally, the statement in her 2011 petition in Shindell that a counselor

who had not seen the children since 2002 and 2003 believed their fath er was “increasingly abusive” supports the conclusion that Ms. Richa rd violated Rule 3.3. The statements are particularly troubling given that they were made in a case involving children where candor before the tribunal is especially critical.

Fairness to Opposing Party and Counse l

– Wyo. R. Prof. Conduct 3.4

[ ¶ 65 ] Wyo. R. Prof. Conduct 3.4 prohibits a lawyer from obstructing ano ther party’s

access to evidence or k nowingly disobeying an obligation under the rules of the tribunal

and requires a lawyer to make reasonably diligent efforts to comply with proper discovery requests. As discu ssed above

, Ms. Richard obstructed another party’s access to

evidence and failed to make reasonable efforts to comply with proper discovery requests

in Fields

, AECOM

, Starrett and Haden by refusing to produce discoverable information, forcing opposing counsel to file repeated motions to compel and disobeying court orders to produce the requested information.

[ ¶ 66 ] Additionally, Ms. Richard knowingly disobeyed an obligation under the rules of

the tribunal in Miller whe n after Judge James ruled that opposing counsel would be

26allowed to finish his c ross examination and no time limit woul d be set , she continued to insist on setting a time limit. Our review of the video tap e confirms that she acted in deliberate indifference to fundamental discovery rules, the judge’s order, the rules of prof essional conduct and basic professionalism. Ms. Richard also knowingly disobeyed an obligation under the rules of the tribunal in Dorf when she filed a rough draft of a brief and then, after the filing deadline had passed , filed a corrected version and, still later,

filed a motion to file the corrected version. Clear and convincing evidence exists in these

six cases that Ms. Richard violated Rule 3.4.

Impartiality and Decorum of the Tribunal

– Wyo. R. Prof. Conduct 3.5

[ ¶ 67 ] Rule 3.5(d) prohibits a lawyer from engaging in conduct intended to disr upt a tribunal. Comment [5] specifies that the duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. In Miller , Ms. Richard engaged in disruptive conduct when, during the video

- tape trial deposition, she interrupted opposing counsel’s cross examination of the witness and insisted that she be allowed to finish her questioning so that she could leave. When opposing counsel objected, Ms. Richard questioned the witness over his efforts to stop her. After a phone call to the district court judge, who ruled that opposing counsel was allowed to complete his cross

examination before Ms. Richar d resumed questioning and no time limit would be set on

the examination , Ms . Richard continued to argue that time limits be set. When the phone

call concluded, Ms. Richard ignored the judge’s ruling and demanded that opposing counsel limit his questioning to a specific t ime . The record demonstrates that Ms. Richard violated Wyo. R. Prof. Conduct 3.5 in Miller

.

Misconduct involving dishonesty, fra ud, deceit or misrepresentation

– Wyo. R. Prof. Conduct 8.4(c)

[ ¶ 68 ] Rule 8.4(c) provides that a lawyer commits professional misconduct when he or she engages in conduct involving dishonesty, fraud, deceit or misrepresentation. The

evidence in AECOM

, Starrett

, Haden and Shindell demonstrates t hat Ms. Richard made repeated misrepresentations concerning discovery and other matters and proves clearly and convincingly that she violated Rule 8.4(c).

Misconduct

– conduct prejudicial to administration of justice

– Wyo. R. Prof. Conduct 8.4(d)

[¶ 69 ] Rule 8.4(d) provides that a lawyer commits professional misconduct when he or she engages in conduct that is prejudicial to t he administration of justice. Ms. Richard’s

conduct i n AECOM, Starrett, Shin dell, Miller and Dorf was prejudicia l to the

administration of justice . The evidence clearly and convincingly shows that she violated Rule 8.4(d).

27Determination of Appropriate Sanctions

[¶ 70 ] In its Report and Recommendation regarding impo sition of appropriate sanctions

, the Board found in pertinent part as follows :

267

. In determining an appropriate sanction, the Board is guided by the American Bar Association’s “Standards for Imposing Lawyer Discipline” (hereafter

referred to as the “AB A Standards”) which state, “The 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.”

268

. 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 poten tial or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.

The F irst Factor: The Duty Violated

269

. Much of Respondent’s misconduct falls within

the heading “Violation of Duties Owed to the Legal System,”

which the ABA Standards subcategorize as “False Statements, Fraud and Misrepresentation” ( Standard 6.1 ) and “Abuse of the Legal Process” ( Standard 6.2 ). These standards apply to situations in which lawyers are found to have violated Rules 3.1, 3 .2, 3.3, 3.4 and 3.5.

270. Standard 6.1

, “False Statements, Fraud, and Misrepresentation, ” provides:

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropr iate in cases involving conduct that is prejudicial to the administration of

28justice or that involves dishonesty, fraud, deceit, or misrepresentation to a court:

6.11 Disbarment is generally appropriate when a lawyer , with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.

6.1 2 S uspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a p arty to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.

6.1 3 Reprimand [i.e., “public censure” under Section 4(a)(iii) of Wyoming’s Disciplinary Code] is generally appropriate when a lawyer is negligent eit her in determining whether the statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal system, or causes an adverse or potentially adverse eff ect on the legal proceeding.

6.1 4. 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 neglect in determining whether the

submitted statements or documents are false or in failing to disclose material information upon learning of its falsity, and causes little or no actual or potential injury to a party, or causes little or no adverse or potentially adverse effect on the legal proceeding.

271. [S tandard] 6.2 , “Abuse of the Legal Process,” 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 failure to expe dite litiga tion or bring a meritor ious

29claim, 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 :

6.2 1 Disbarmen t is generally appropriate when a lawyer knowingly violate s 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.

6.2 2 Suspension is generally appropriate when a lawyer knows that he or she is violating a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.

6.2 3 Reprimand [i.e., “public censur e” 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.

6.2 4 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 rul e, 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.

272

. Standard 5.1 sets for th the sanction guidelines for lawyers who demonstrate a failure to maintain pers onal integrity and is applicable to situations in which lawyers have committed a violation of Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation):

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases [. . . ] with conduct involving dishonesty, fraud, deceit, or misrepresentation :

5.11 Disbarment is generally appropriate when : (a) [criminal act]

30(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.

5.1 2 [Criminal conduct]

5.1 3 Reprimand [i.e., “public censure” under Section 4(a)(iii) of Wyoming’s 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 lawyer’s fitness to practice law

. 5.14 Admonition [i.e., “private reprimand” under

Section 4(b) of Wyoming’s Disciplinary Code] is generally appropriate when a lawyer engages in any other conduct that reflects adversely on the lawyer’s fitness to practice law.

The Second Factor: The L awyer’s Mental State

273

. 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 wi th 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 th e 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.

274

. Given that the Board has found multiple

violations of each of these categories of the Rules , the appropriate sanction under the Guidelines therefore turns on

whether the Board finds R espondent to have acted “knowingly” or “intentionally” as so defined. There is no

31question under the clear and convincing evidence presented at the hearing but that Respondent’s misconduct was intentional.

The Third Factor: The Potential o r Actual Injury C aused by

t he Lawyer’s Misconduct

275

. 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 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.”

276

. As is demonstrated by the Board’s detailed findings

. . . with respect to Respondent’s misconduct, in each of the seven cases Respondent’s misconduct inflicted actual, substantial injury on the parties, their counsel and the court. Taken together, these acts of misconduct demonstrate contempt on the part of Respondent for the legal process, the rules gove rning that process, and the administration of justice. The actual costs in terms of increased expenses, delays and burdens on the parties, their counsel and the courts are incapable of being fully measured.

The Fourth Factor: The Existence Of Aggravating

Or Mitigating Factors

277

. 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 impos e.

9.2 Aggravation

329.21 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 F actors which may be considered in aggravation

. Aggravating facto rs 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 discip linary 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 prac tice of law; (j) indifference in making restitution; and (k) illegal conduct, including that involving the

use of controlled substances.

9.3 Mitigation

9.3 1 Definition . Mitigation or mitigating circumstances are any considerations or factors that may jus tify a reduction in the degree of discipline to be imposed.

9.32 F actors 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 emotiona l 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;

33(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 depende ncy 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. (j) delay in disciplinary proceedings; (k) imposition of other penalties or sanctions; (1) remorse; and (m) remoteness of prior offenses.

9.4 F actors Which Are Neither Aggravating nor Mitigating

.

The foll owing factors should not be co nsidered 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 pr ior to completion of disciplinary proceedings; (e) complainant’s recommendation as to sanction; and (f) failure of injured client to complain.

278

. The Board finds that Respondent’s payment of the $58,000 sanction award in [ AECOM ], which Respondent

testi fied was a requirement of AECOM in order to gain its consent for Respondent to pursue the appeal of Judge Downes's order, is a factor that should not be considered as either aggravating or mitigating.

34279

. The Board finds the following mitigating

factor s : (1) absence of a prior disciplinary record and (2) personal or emotional problems

. Respondent testified that during a portion of the period during which the misconduct

. .

. occurred, she was going through a divorce and dealing with its consequences. Respondent also offered testimony of her background that resulted in her responding to challenges in a dysfunctional and not constructive manner. Witnesses for respondent described therapy modalities that would benefit Respondent to deal with her responsi ve mechanism when challenged.

280. The Board finds the following aggravating

factors : (1) substantial experience in the practice of law (2)

di shonest motive; (3 ) a pattern of misconduct; (4) multiple offenses; (5 ) vulnerability of the victim; (6 ) refusa l to acknowledge the wrongful nature of her conduct; and (7) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the Disciplinary Code

and the orders of the Board

.

281. The Board’s finding of vulnerability of the victim in this matter encompasses several “victims.” As discussed above, the parties, their counsel, the courts and the legal profession generally have all suffered as a result of Respondent’s actions.

282. With respect to Respondent’s refusal to

acknow ledge the wrongful nature of her conduct, the Board finds that although Respondent expressed remorse near the end of the hearing, at every prior stage of the disciplinary proceeding Respondent was defiant and emphatic in her denial of any wrongdoing on her part, as she was in each of the underlying litigation matters.

283. The pleadings filed by the Respondent that were repeated and re

- argued after having been denied, is evident upon review of the transcript of the final pretrial

conference. [ 6 ] Those act ions in this proceeding are further

6 Among the documents Ms. Richard filed in the disciplinary process were the following: Petition for Investig ation into Breaches of Confidentiality in the Matter of Andrea Richard; Motion to Disclose

35evidence of the Respondent’s conduct and how she repeated in this matter, the same conduct that was found in the

different matters to be a violation of the Rules of Professional

Conduct. Such conduct includes intentiona lly failing to comply with the Disciplinary Code and the orders of the Board. To not be caught up in the unnecessary generation of words and pages any more than it already has, the Board simply refers to the record in this matter as the pleadings

evidence the Respondent’s conduct of disregarding the rules. The record further exhibits the same inability or unwillingness to comply with the orders of the tribunal as with different courts, and the same behavior appears to be calculated to obstruct the process

.

284. Suffice it to say that the record is replete with evidence of Respondent’s conduct in this disciplinary proceeding of her intentional failure to comply with the Disciplinary Code the orders of the Board, just as she has

with the different courts. Such conduct is found to be evidence of obstruction of the process

285. In light of the foregoing fin dings, the appropriate sanction is a three

- year suspension of Respondent’s right to practice law in Wyoming. While the Board is unable to require couns eling, it urges Respondent to seek assistance in order to avoid repetition of past practice.

[¶71] Although the Board recommended a three

- year suspension from the practice of law

as the appropriate sanction, bar c ounsel urges this Court to disbar Ms. Ri chard from

Exculpatory and Impeachment Evidence; Reply to Bar Counsel’s Response to Motion to Disclose Exculpatory and Impeachment Evidence; Request for and Memorandum in Suppo rt of Special Bar Counsel; Opposition to Bar Counsel’s Motion for Leave to File Second Amended Formal Charge; Withdrawal of Request for Special Bar Counsel; Response to Motion for Order Directing Respondent to Cease and Desist [in filings with officers and commissioners of the State Bar]; Opposition to Bar Counsel’s Motion to Compel; Motion for Summary Judgment; Opposition to Bar Counsel’s Motion for Leave to File Fourth Amended Formal Charge; Opposition to Bar Counsel’s Motion for Protective Order; Reply B rief in Support of Motion for Summary Judgment; Supplemental Witness and Exhibit List; Motion to Bifurcate; Opposition to Bar Counsel’s Motion for Sanctions; Request for Additional Time to File Motion to Expand Board’s Protective Order; Motion for Individu al Trials and Separate Decisions on Each Charge; Motion to Dismiss for Bar Counsel’s Usurpation of the Judicial Oversight Function; Motion for Dismissal and Disqualification of Current Bar Counsel; Objections to Order on Final Pretrial Conference; Proposed Report and Recommendation; Exhibits to Proposed Report and Recommendation; Supplemental Exhibits to Proposed Report and Recommendation; Supplemental Proposed Report and Recommendation; Opposition to Bar Counsel’s Motion to Strike Respondent’s Post Hearing Filings.

36practicing law in the State of Wy oming

. Addressing the first factor to be considered in imposing a sanction, the duty v iolated, bar c ounsel asserts that disbarment is the

approp riate sanction under the S tandards the Board found applicable to Ms . Richard’s

misconduct. Under Standard 6.1, bar c ounsel argues di sbarment is appropriate because Ms. Richard made false statements and improperly wi thheld material information with

the in tent to deceive the court, causing serious injury to the parties and adversely affecting the lega l proceeding. Sanction 6.11. Bar c ou nsel contends disbarment is

likewise appropriate under Standard 6.2 because Ms. Richard time and again knowingly violated court orders and rules, causing injury to the parties and interferi ng with the legal proceedi ngs. Sanction 6.12. Bar c ounsel also contends disbarment is appropriate under

Standard 5.1 because Ms. Richard engaged in intentional conduct involving dishonesty, deceit and misrepresentation which seriously reflects adversely on her fitness to practice

law. Sanction 5.11.

[¶ 72 ] In addition to the Standards the Board found applicable to Ms. Richard’s conduct,

bar c ounsel asserts Standard 4.5 is applicable. Standard 4.5 concerns lawyers who display a lack of competence and re commends disbarment “when a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to the

client. ” Sanction 4.51

. Bar coun sel contends that Ms. Richard’s conduct in the seven underlying cases and the disciplinary proceeding demonstrates that she does not

understand even the most basic aspects of the legal process.

[¶ 73 ] Turning to the second factor to be considered in impo sing a sanction, the lawyer’s mental state, bar counsel asserts the Board correctly concluded Ms. Richard’s misconduct

was intentional

— her conscious objective was to withhold discovery, ignore court orders and rules, obstruct the legal proces s and gain adv antage for herself and/or her client. Bar

counsel further asserts the record is clear that Ms. Richard’s misconduct satisfied the third factor for imposing a s anction in that it caused serious injury to the parties, opposing counsel, the courts, the judic ial process and the public’s confidence in the administration of justice.

[¶ 74 ] Given the Board’s findings on the aggravating and mitigating factors under the fourth factor, bar counsel asserts the recommendation for a three year suspension is not sustainable. Rather, each of the duties Ms. Richard violated point s to disbar ment

— she acted intentionally and caused seri ous injury. She satisfied most of the eleven aggravating factors

— she has substantial experience in the practice of law, she acte d dishonestly or with a selfish motive, there was a pattern of misconduct, there were multiple offenses, she acted in bad faith to obstruct the disciplinary process by intentionally failing to comply with the rules, she refused until the very end of the pr ocess to acknowledge the wrongfulness of her conduct and the victims were vulnerable. Bar counsel contends all of the evidence taken together demands disbarment as the only appropriate sanction.

37[¶ 75] In contrast, b efore this Court, Ms. Richard characte rizes her conduct as negligent.

She asked in her brief that the Court reject the Board’s report and recommendation and

rever se and vacate the matter. Alternatively, she asked the Court to enter summary judgment in her favor. As yet another alternative

, she asked the Court to impose a sanction such as a public or private reprimand. In oral argument, her counsel suggested imposing a period of suspension, deferring the suspension and requiring Ms. Richard to meet specified conditions, such as attending con tinuing legal education classes, having her work monitored by another member of the Bar and obtaining psychological counseling.

[¶ 76 ] We conclude none of the sanctions the parties have requested are appropriate in

this case. The cases bar counsel cites from other jurisdictions in support o f disbarment

involve more serious misconduct . In State v. Godlove , 318 P.3d 1086

, 1090 (Okla. 2013), disciplinary proceedings were commenced after a lawyer filed six cases and more than twenty pleadings collaterally at tacking a final order entered in another case confirming other parties as trustees of a trust , filed more documents after the state supreme court recognized the finality of the order, filed documents on behalf of her client after he was enjoined from filin g such documents, and filed three actions against the confirmed trustees and their counsel for “jurisdictional fraud” in obtaining the trusteeship. On seventeen occasions, she also sought the recusal of the assigned judge after an adverse ruling. Althoug h she did not comply with the recusal rule by presenting her motion to the chief or presiding judge, she argued the assigned judge had no jurisdiction to act in the proceedings until the recus al motion was decided. She even filed an application asking the state supreme court to assume jurisdiction. After the disciplinary proceedings commenced, the lawyer failed to respond to the board’s inquiries, did not file an answer, did not appear at the hearing and filed no documents.

Id

. at 1088. The Oklahoma cour t imposed a sanction of disbarment, p ointing in large part

to the attorney’s repeated filing of frivolous lit igation

. Id

. at 1095.

[¶ 77 ] In re Caranchini , 956 S.W.2d 910 , 915

- 918 (Mo. 1997)

, in addition to discovery abuses, the lawyer filed a wrong ful discharge claim al though she knew h er clients had

released their employer from employment

- related claims; pursued a slander claim even

after an affidavit showed there was no factual basis for the claim; disregarded well

esta blished state law; advanced claims by threatening to contact the media and government agencies; used a forged document to support a sexual harassment claim long after learning it was a forgery; made unsupported allegations that a manager had been the subject of prior sexual harassmen t charges; affirmatively represented that she did not know a party had relocated in support of a motion to join the party whe n she in fact knew of the relocation a year earlier ; intentionally withheld the name of a significant witness in

an attempt to surp rise the opposing party at trial; called witnesses to testify at trial when she could not connect their testimony to her client, knowing that the court had ruled she could present the testimony only if she connected it to her client; and filed a frivolous

38motion for sanctions against opposing counsel and an appeal from the denial of the motion based solely upon her personal animosity toward the lawyer. Based in large part on the evidence showing the lawyer intentionally submitted a false document,

intentio nally made false statements and intentionally withheld material information, the

Missouri court disbarred her.

[¶78 ] This Court does not agree with Ms. Richard’s characterization of her conduct as neglige nt. In case after case, she has de monstrated an intentional, willful refusal to respond appropriately to discovery requests, comply with court orders and follow the rules of procedure. She has also repeatedly demonstrated a total lack of concern for honest communication with opposing coun sel and the courts. Looking at each case individually , w ithout considering the other six cases, Ms. Richard’s conduct might be

seen as an isolated event, resembling behavior members of the bar have seen from some other lawyer in some other case . Taken to gether, however, Ms. Richard’s conduct in the

seven cases clearly shows not an isolated event but a consistent pattern of misbehavior affecting many, many people. Eight judges sitting in seven districts and lawyers in five

different law firms have strugg led with Ms. Richard’s obstructionist tactics. The cli ents
of those five law firms as well as Ms. Richard’s clients have incurred unnecessary expense and been subjected to needlessly prolonged litigation because of her mi sconduct.

T he vide o

- tape deposit ion in Miller clearly shows the witness in that case was also a

victim of Ms. Ri chard’s unacceptable behavior.

[¶ 79 ] Ms . Richard’s actions bring her perilously close to disbarment. However, no

accusatio n has been made that she repeatedly filed frivolou s lawsuits , as occurred in

Godlove

, or that she k nowingly used a forged document or filed multiple lawsuits for which she knew there was no basis, as occurred in Caranchini

. Although we view Ms. Richard’s conduct as unacceptable, extremely serious and an abuse of the judicial system,

we are not persuaded that disbarment is the appropriate sanction. Neither do we agree that a public or private reprimand is sufficient. Ms. Richard’s repeated violation of the rules and court orders demonstrates that a peri od of time away from the practice of law i s warranted and necessary. A lthough disbarment is within the range of possible sanctions

for the violations that occurred in the seven cases, the Board decided a fter hearing the testimony of all the witnesses not to recommend disbarment

. Given the Board’s recommendation and the fact that Ms. Richard has no prior disciplinary record, this Court concludes based upon this record and these facts that a three year suspension from the practice of law is an appropriate sa nction. H owever, given her multi

- year pattern of behavior, there is a probability that other complaints may come before the Board, and in

that event this Court may have no alternative but to impose a sanction of disbarment.

[¶80] Our duty in cases of la wyer misconduct is to protect the public. Despite court orders to comply with the rules, stern words from respected judges, dismissals of her cases, and the imposition of sanctions, Ms. Richard h as continued to demonstrate behaviors in litigation that are simply not acceptable. E ven in this matter, Ms. Ri chard’s

39actions unnecessarily thwart ed

, obstruct ed and delay ed the disciplinary process . Other

than the bela ted statements of her counsel during this appeal, there is not hing in this

record to indicate that Ms. Richard has learned anything from any of the seven cases or this proceeding. The judicial system must respond in a manner that protects the public from Ms. Richard’s extensive pattern of behavior that has aff ected so many people. A three year su spension from practicing law provides that protection

. In accordance with § 24 of the Wyoming Disciplinary Code, Ms. Richard may petition the Board for

reinstatement ninety days pri or to the expiration of the three year period. If she hopes to

return to the practice of law at that point

, Ms. Richard must use those three years to inform herself as to the duties and responsibilities of members of the Wyoming Bar, basic legal proc edure and the rules of practice applicable in Wyoming courts.

[¶81] IT IS , THEREFORE, ORDERED THAT:

1. Andrea L. Richard shall be suspended from the practice of law for a period of three years, commencing August 1 , 2014;

2. Within 15 days of the date of the final order of suspension, Andrea L. Richard shall comply with all requirem ents of Rule 22 of the Disciplinary Code;

3. By January 30 , 20 15 , Andrea L. Richard shall pay costs of $41,770.76 associated with the disciplinary proceedings and an administrative fee of $500;

4. Prior to seeking reinstatement to the practice of law in Wy oming, Andrea L. Richard shall complete the continuing legal education course required for new admittees to the bar specified in Continuing Legal Education Rule 4(b)(1) and (2).

[¶82] DATED this 1st day of August , 2014.

BY THE COURT * †

/s/

E. JAMES BURKE

Chief Justice

* Justice Hill took no part in the consideration of this matter. Judge Waldrip participated by assignment.

† WALDRIP, D.J

., dissents from the sanction imposed by the majority for the following

reasons:

40[¶83] T he sanction imposed by the majority in this case is a close call. I firmly agree with the reasoning of the well

- written Order and particularly the statement that:

[ o ] ur duty in cases of lawyer misconduct is to protect the public. Despite

court orders to comply with the rules, stern words from respected judges, dismissals of her cases, and the imposition of sanctions, Ms. Richard has continued to demonstrate behaviors in litigation that are simply not acceptable.

As a result, I must disagree with the san ction of a three

- year suspension. I would disbar Ms. Richard. She has, from the beginning of this procedure until the very end, shown no sincere remorse. Even in argument before this Court, she blamed others for her misconduct rather than recognize her inappropriate behaviors. Under these circumstances, I believe this tribunal’s obligation to protect the public requires the

ultimate sanction of disbarment.

41