1

IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 59

APRIL TERM, A.D. 2015

April 16, 2015

BOARD OF PROFESSIONAL 

RESPONSIBILITY, WYOMING 

STATE BAR,

Petitioner,

v.

DION J. CUSTIS, WSB #6-2674,

Respondent.

D-14-0007

ORDER OF PUBLIC CENSURE

[¶1] Attorney Dion J. Custis objects to the Report and Recommendation for public

censure by the Wyoming State Bar Board of Professional Responsibility (BPR). Having 

reviewed the Report and Recommendation and Mr. Custis’s objection to it, considered 

the oral arguments of counsel, and performed an independent and thorough review of the 

BPR record, the Court concludes that Mr. Custis violated several of the Wyoming Rules 

of Professional Conduct and accepts the BPR’s recommendation that Mr. Custis be 

publicly reprimanded and that he pay costs and fees.

[¶2] Mr. Custis argued that entry of default against him violated his due process rights, 

and that there was insufficient evidence to prove the rule violations and recommended 

sanction. This Court concludes Mr. Custis’s right to due process was not violated and 

default was proper.

ISSUES

[¶3] 1. Did entry of default violate Mr. Custis’s right to due process?

2. Is there a factual basis for finding Mr. Custis violated the Wyoming Rules of 

Professional Conduct?

3. What are the appropriate sanctions?
2

FACTS

[¶4] The Formal Charge arising from Mr. Custis’s representation of Gilbert Ortiz, Jr. 

stemmed from a brief filed by Mr. Custis in the Wyoming Supreme Court appealing Mr. 

Ortiz’s convictions on three counts of second-degree sexual abuse of a minor. Ortiz v. 

State, 2014 WY 60, 326 P.3d 883 (Wyo. 2014). In his brief, Mr. Custis argued that the 

forensic interviewer, Lynn Huylar, had improperly vouched for the victim’s credibility. 

The brief included an extensive discussion, with quotes, of Ms. Huylar’s testimony. 

However, the testimony referred to was not Ms. Huylar’s testimony in the Ortiz case; 

rather, it was her testimony in a similar case, Seward v. State, 2003 WY 116, 76 P.3d 805 

(Wyo. 2003), in which this Court held that she improperly vouched for the victim’s 

credibility. No citation informed the reader that the testimony discussed had been given 

in Seward and not Ortiz. The Formal Charge contained the following allegations:

2. Respondent filed a brief with the Wyoming Supreme 

Court on behalf of the appellant in a case entitled, Gilbert 

Ortiz, Jr., Appellant, v State of Wyoming, Appellee, No. S-13-

0127. The brief contained material misrepresentations.

3. [T]he State filed a Motion for an Expedited Stay calling 

to the Court’s attention certain misrepresentations in the brief 

Respondent had filed . . . .

4. Respondent filed a response to the State’s motion . . . . 

Respondent claimed that the misrepresentations were simply 

an inadvertent, unintentional, embarrassing, typographical 

error. He asked that the State’s motion be denied. He did not 

offer or take any steps to correct the misrepresentations . . . or 

to otherwise take remedial action.

5. On September 17, 2013, the Court issued an order 

requiring Respondent to file a revised Appellee’s Brief . . . 

and sanctioned Respondent the sum of $500.00.

6. In response to Bar Counsel’s disciplinary inquiry, 

Respondent denied that he had made any “knowing false 

statement” in the brief and the misrepresentation in the brief 

“was simply a drafting error by my paralegal.” 

The Formal Charge alleged that Mr. Custis’s conduct violated Wyo. R. Prof. Conduct 

3.3(a) (candor toward the tribunal), 5.3 (responsibilities regarding nonlawyer assistants), 
3

8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), and 8.4(d) 

(conduct prejudicial to the administration of justice).

[¶5] The BPR also considered six exhibits, without objection from Mr. Custis:

● Exhibit 1: Copy of the Formal Charge in WSB No. 2013-113.

● Exhibit 2: Copy of Appellant’s Brief in Ortiz v. State.

● Exhibit 3: Copy of the State’s Motion For An Expedited Stay, in which it 

called to attention the misrepresentations in Mr. Custis’s brief.

● Exhibit 4: Copy of Mr. Custis’s Response of Attorney for Appellant to State’s 

Motion for an Expedited Stay, in which he wrote in part:

It is very clear that this quote is a quote from the 

Seward case. To suggest that counsel was deliberately trying 

to misquote a quote from an opinion that this Court wrote is 

absurd. First, the misquotes do not affect any substantive 

argument. Second, the misquotes do not make Appellant’s 

arguments any less or more persuasive. 

● Exhibit 5: Copy of the Wyoming Supreme Court’s Order on Motion for Stay, 

in which the Court imposed a $500 sanction and required filing of a corrected brief. 

● Exhibit 6: Copy of the Wyoming Supreme Court’s opinion in Seward v. State, 

2003 WY 116, 76 P.3d 805 (Wyo. 2003).

[¶6] On October 17, 2013, Mr. Custis was served the Formal Charge via certified mail 

at his address on file with the Wyoming State Bar, in accordance with § 11(e) of the 

Disciplinary Code for the Wyoming State Bar (Disciplinary Code).1 Tracking 

information from the United States Postal Service confirmed that the mailing was 

received at Mr. Custis’s address on October 18, 2013. Section 11(f) of the Disciplinary 

Code provided Mr. Custis twenty days from October 17, 2013 to serve an answer on the 

BPR and bar counsel. Mr. Custis failed to file an answer to either charge by November 6, 

2013, the expiration of the twenty-day period.

[¶7] On November 18, 2013, bar counsel filed and served a Motion for Entry of Order 

of Default against Mr. Custis. Mr. Custis opposed the motion, alleging improper service 

under W.R.C.P. 5(b)(1) for failure to serve his attorney in the matter.2 Mr. Custis also 

filed a response to the charge.

 

1 The Disciplinary Code applicable to these proceedings is in effect until June 30, 2015. 

2

In Mr. Custis’s brief, he argues that bar counsel was aware he was represented by an attorney in the 

disciplinary matters. He submitted a Motion to Modify Record to this Court along with correspondence 
4

[¶8] The BPR entered an Order of Default against Mr. Custis, and set a hearing to 

determine the appropriate form of discipline. Mr. Custis’s Motion for Reconsideration of 

Entry of Default was denied.

[¶9] At the sanction hearing, bar counsel called the deputy attorney general who 

represented the State of Wyoming in the Ortiz appeal. He explained that a lengthy 

passage from the Seward opinion was inserted into the Ortiz brief, and someone took the 

effort to replace Seward’s reference to a two- to three-year old child, with a reference to 

“a young child,” which better conformed to the facts in the Ortiz appeal. When the 

deputy attorney general was asked his reaction to Mr. Custis’s explanation that the 

misrepresentation was an inadvertent drafting error, he responded: “I don’t see how that’s 

possible. A drafting error -- I don’t see how a drafting error would contain that one 

alteration from the original in the Supreme Court’s Seward opinion.” The deputy 

attorney general concluded his testimony by explaining that addressing the issue 

demanded extra time and resources from the Attorney General’s office.

[¶10] Mr. Custis presented three witnesses: his paralegal, who assisted with the Ortiz

brief; Donna Domonkos, an appellate attorney who worked with Mr. Custis’s paralegal 

and reviewed the Ortiz brief; and Mr. Custis’s office administrator.

[¶11] Ms. Domonkos testified regarding her significant experience writing and arguing 

appeals, and then explained her specific involvement in the Ortiz briefing.

A: Mr. Custis called me and said that he had a paralegal 

working with him on this Ortiz brief, and he asked me to go 

over it and give him some suggestions. I did go over it, and 

I had quite a few suggestions. . . . I sat down with 

the paralegal, and we went through different -- different

things. . . .

And so I went through the brief. . . . And I can tell you, I 

-- I did not notice the misquote. I didn’t.

Ms. Domonkos further testified that from her interactions with the paralegal there was no 

indication that Mr. Custis intentionally directed the inclusion of the misrepresentation.

 

between bar counsel and his attorney. We deny Mr. Custis’s motion and will not consider evidence of the 

correspondence. See § 21(c)(iv) of the Disciplinary Code. (“The Court shall not receive or consider any 

evidence that was not presented to the BPR.”). In any case, the fact bar counsel knew that Mr. Custis was 

represented by counsel is not dispositive of this case.
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[¶12] Mr. Custis’s paralegal testified to his involvement in the briefing, “I was the head 

paralegal at the time, so I did a lot of the preliminary drafting and research.” He testified 

that he was responsible for the misrepresented language in the brief, and it was a result of 

a “copy and paste mistake from a clipboard on WordPerfect.” The paralegal further 

explained the insertion of the “young child” language resulted from an accidental copying 

and pasting of his “comparison notes”—facts from the Ortiz appeal that he was 

comparing to his case law research. He testified, “It was definitely inadvertently done,” 

and when Mr. Custis found out about the error from the State’s motion, he “was kind of 

freaking out.” He concluded by explaining the error: “I feel the biggest thing with the 

Ortiz thing, it was a 65-page brief, and there was [sic] so many elements and everything. 

Like [Mr. Custis] goes over my work with a fine-toothed comb, but obviously something 

slipped through it.”

[¶13] Mr. Custis’s office administrator testified to changes in Mr. Custis’s office 

administration following his sanction in Board of Professional Responsibility, Wyoming 

State Bar v. Custis, 2012 WY 142, 295 P.3d 334 (Wyo. 2012) (Custis I). She explained 

that the office now had better communication, weekly status meetings, and case files for 

every client detailing communications with the client, upcoming court dates, and client 

contact information.

[¶14] Mr. Custis testified to improvements in his office administration since his 2012 

sanction in Custis I: 

I have instructed my office, my secretary, paralegal, even my 

runner, that there’s not to be any mistakes. So I’ve tried to do 

everything I can. I’ve tried to improve my office policy by 

meeting weekly, going through, as [the office administrator] 

said, with the case log, making sure that there’s [sic] no 

mistakes made on outgoing pleadings, making sure all the 

clients are notified, making sure there’s no questions of any 

clients. 

Mr. Custis testified to his paralegal’s role in the Ortiz brief:

I’m responsible for what’s in the appellant brief. I take full 

responsibility for that.

I do not direct him to simply write the brief and then 

that’s it. I have him help me writing the brief. And that’s 

what I did in this case. So he would write certain issues. I

would write certain issues. I would give him more leeway on 

certain topics.
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. . . .

So when I read it, it read to me as a quote from Seward. I

thought that’s what he was referring to. I did not notice that 

he didn’t cite to it. 

[¶15] Mr. Custis emphasized he had no knowledge of the error prior to receiving the 

State’s motion for stay, claiming he “never would have directed anything like that.” 

Regarding his failure to immediately correct the brief upon notice from the State, Mr. 

Custis testified that his understanding of the appellate court rules was that he could not 

just submit an amended brief without leave of the Supreme Court, so he responded to the 

State’s motion and he thought the Court would tell him what to do in its order on the 

motion. Mr. Custis spent the rest of his direct examination explaining how he wished the 

Attorney General’s office would have dealt with the situation differently, and that “it was 

inappropriate for [the Attorney General’s office] to accuse me of misconduct to the 

Supreme Court in a pending case.” On cross-examination, Mr. Custis admitted he did not 

request leave of the Supreme Court to correct the brief, instead filing a seven-page 

opposition to the motion.

[¶16] Following the hearing, the BPR issued its Report and Recommendation, in which 

it found a factual basis for concluding that Mr. Custis violated Wyo. R. Prof. Conduct

3.3(a), 5.3, 8.4(c) and 8.4(d). It recommended public censure plus payment of $500.00 in 

administrative fees, and $1,827.72 for sanction hearing costs.

[¶17] Mr. Custis timely sought review of the BPR’s Report and Recommendation.

ATTORNEY DISCIPLINARY PROCEDURE

[¶18] The purposes of attorney discipline are to protect the public, maintain the integrity 

of the legal system, assure the fair administration of justice, and deter other lawyers from 

engaging in similar misconduct. Bd. of Prof’l Responsibility v. Richard, 2014 WY 98, 

¶ 51, 335 P.3d 1036, 1051 (Wyo. 2014); In re Abrams, 257 P.3d 167, 169-70 (Ariz. 

2011); In re Wiederholt, 24 P.3d 1219, 1226 (Alaska 2001). To this end, the Wyoming 

Supreme Court adopts and promulgates rules governing the professional conduct of 

attorneys, organizing the bar association, and establishing the procedure for attorney 

discipline. Wyo. Stat. Ann. § 5-2-118 (LexisNexis 2014).

[¶19] Attorneys admitted to the Wyoming State Bar are “subject to the exclusive 

disciplinary jurisdiction of this Court and the [BPR].” Disciplinary Code § 1(a).

[T]he [BPR] is an arm of this Court whose purpose is to 

investigate allegations of professional misconduct and to 

report its findings and recommendations to the Court, which 
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is the ultimate decision-maker in attorney disciplinary 

matters. Sections 21(c)(iii) and (iv) of the current 

Disciplinary Code make it clear that the Court’s 

determination of appropriate discipline is its own, but that the 

determination must be made upon the evidence that was 

presented to the Board at the hearing.

Bd. of Prof’l Responsibility v. Casper, 2014 WY 22, ¶ 8, 318 P.3d 790, 793-94 (Wyo. 

2014) (quoting Bd. of Prof’l Responsibility v. Davidson, 2009 WY 48, ¶ 8, 205 P.3d 

1008, 1012 (Wyo. 2009)). The BPR is “an ancillary body structured by the court and has 

no independent power, jurisdiction, or authority other than that specifically delegated to it 

in accordance with the Disciplinary Code.” Meyer v. Norman, 780 P.2d 283, 288 (Wyo. 

1989). While the Court “gives due consideration to the findings and recommendations of 

the Board, [] ‘the ultimate judgment in these cases is vested in this Court.’” Casper, 

2014 WY 22, ¶ 8, 318 P.3d at 794 (quoting Mendicino v. Whitchurch, 565 P.2d 460, 466 

(Wyo. 1977)). 

[¶20] The Disciplinary Code provides for a three-step process in disciplinary matters. 

First, if the Peer Review Panel makes a determination of probable cause, a formal charge 

is filed. Disciplinary Code § 7(c)(iii), (vi). Second, pursuant to § 19(c), the BPR must 

determine whether a violation of the Wyoming Rules of Professional Conduct has been 

proven by clear and convincing evidence. If so, the BPR then receives evidence of 

aggravating or mitigating factors to determine the appropriate discipline. Id. In the event 

of default, the rule violation determination need not be established by clear and 

convincing evidence. Instead, in addition to the default admissions, “[n]o order shall be 

entered . . . without the BPR being satisfied that there is a factual basis for the violation 

[of the rules of professional conduct.]” Disciplinary Code § 11(m). The BPR then holds 

a hearing “to inquire into the appropriate form of discipline.” Id. (In the event of default, 

“Respondent may only be heard by the BPR regarding the form of discipline to be 

imposed.”).

[¶21] In this case, Mr. Custis defaulted, but had entered his appearance by the time the 

sanction hearing was held, and was allowed to present evidence relevant to the sanction 

determination. We therefore weigh the evidence to determine whether there is a factual 

basis for finding Mr. Custis violated the Rules of Professional Conduct alleged. We then 

apply a clear and convincing evidence standard to the evidence regarding sanctions.

DISCUSSION

I. Did entry of default violate Mr. Custis’s right to due process?

[¶22] [Attorney disciplinary] proceedings are neither civil nor 

criminal in nature but are special proceedings, sui generis, 
8

and result from the inherent power of courts over their 

officers. Such proceedings are not lawsuits between parties 

litigant but rather are in the nature of an inquest or inquiry as 

to the conduct of the respondent. 

In re Echeles, 430 F.2d 347, 349 (7th Cir. 1970); see also State ex rel. Okla. Bar Ass’n v. 

Patterson, 28 P.3d 551, 554 (Okla. 2001) (“A bar disciplinary proceeding is sui 

generis.”).

[¶23] Nevertheless, “[d]isciplinary proceedings are adversary, adjudicatory proceedings. 

In as much as they are concerned with property rights of respondent-bar members, due 

process safeguards must be observed.” In re Thorup, 432 A.2d 1221, 1225 (D.C. 1981) 

(citing In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968)). 

As we noted in Penny v. State ex rel. Wyo. Mental Health Professions Licensing Bd., 

2005 WY 117, ¶ 51, 120 P.3d 152, 175 (Wyo. 2005):

The right to practice a licensed profession is a 

conditional property right protected by the due process 

clauses of the Constitution of the United States and the 

Constitution of the State of Wyoming. Procedural due 

process requires the applicant be given reasonable notice and 

a meaningful opportunity to be heard by the body which rules 

on his application before government action may substantially 

affect a significant property interest. 

Id. (internal citations and quotation marks omitted); see also Johnson v. Office of Prof’l 

Conduct, 342 P.3d 280, 287 (Utah 2014) (“Attorneys are entitled to due process in 

disciplinary proceedings, including adequate notice of the charges and an opportunity to

be heard in a meaningful way.” (internal quotation marks omitted)). We must therefore 

consider whether Mr. Custis was given adequate notice and an opportunity to be heard in 

this case.

A. Notice

[¶24] Section 11(e) of the Disciplinary Code provides: “Service on a respondent is 

complete upon mailing by certified mail, return receipt requested, a copy of the formal 

charge to the respondent’s last known address as shown in the records of the Wyoming 

State Bar.” The record shows that on October 17, 2013, bar counsel mailed its Formal 

Charge to Mr. Custis’s address on record with the Wyoming State Bar, and it was

received the following day.
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[¶25] Mr. Custis argues that W.R.C.P. 5(b)(1) applies to service in attorney disciplinary 

proceedings.3 Rule 5(b)(1) provides, “[s]ervice . . . on a party represented by an attorney 

is made on the attorney unless the court orders service on the party.” Mr. Custis contends 

that his attorney was not served the formal charges, and service was therefore improper. 

Rule 5(a)(1) only applies to pleadings “subsequent to the original complaint.” The 

formal charges are in the nature of a complaint and would not be served pursuant to 

W.R.C.P. 5 in any case. Bar counsel’s method of service conformed to § 11(e) of the 

Disciplinary Code, and was thus proper. 

[¶26] Mr. Custis further points out that no summons was attached to the Formal Charge

informing him of the deadline for his response as required by W.R.C.P 4(d). Section

11(e) of the Disciplinary Code does not require that a summons be attached to the Formal 

Charge, and § 11(n) does not incorporate W.R.C.P. 4(d) into the Disciplinary Code. 

“Ignorance of the law or rules of procedure do not justify relief from an entry of default.” 

Multiple Resort Ownership Plan, Inc. v. Design-Build-Manage, Inc., 2002 WY 67, ¶ 14, 

45 P.3d 647, 652 (Wyo. 2002) (citing Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 

357 (5th Cir. 1993)). This is particularly true in Mr. Custis’s case, because he is not a 

stranger to the disciplinary process. See Custis I. Service upon Mr. Custis without a 

summons was proper.

[¶27] Mr. Custis was given fair notice of the proceedings against him, in accordance 

with the service requirements of the Disciplinary Code, thus the notice prong of due 

process was satisfied. 

B. Opportunity for a Hearing

[¶28] Section 19(c) of the Disciplinary Code provides the opportunity for respondent to 

attend a hearing in which he may present evidence to the BPR. However, § 11(m) 

provides that when “the respondent fails to answer the formal charge . . . Bar Counsel 

may file a motion for entry of an order of default.”

[¶29] Mr. Custis had the opportunity for a hearing on the rule violations and waived it 

through his own actions. See Zweifel v. State ex rel. Brimmer, 517 P.2d 493, 499 (Wyo. 

1974) (“Once the default is established defendant has no further standing to contest the 

factual allegations of plaintiff’s claim for relief.” (internal citation and quotation marks 

omitted)).

 

3

 Section 11(n) of the Disciplinary Code provides: “Rules 5, 6, 7, 8, 10, 11, 15, 16, 26, 29, 30, 32, 33, 34, 

35, 36, 37, 42, 45, 46, 56, 58, 60, and 61 of the Wyoming Rules of Civil Procedure shall apply to 

disciplinary proceedings so far as the provisions in those rules are in their natures applicable and 

consistent with these rules.” 
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[¶30] Mr. Custis argues that the mere availability of a hearing when facing potential loss 

of one’s law license does not satisfy due process requirements. He cites to In re 

Williams, 464 A.2d 115, 119 (D.C. 1983), in which the District of Columbia Court of 

Appeals held that failure to hold an ex parte hearing on the charges against the defaulting 

attorney was a due process violation. However, there the court rested its decision not on 

the fact that a hearing is always required for a defaulting party, but instead on the hearing 

committee’s findings of multiple disciplinary code violations based solely on the 

unsworn charges in the petition. Id. The court concluded that a defaulting attorney 

cannot be stripped of his law license based on a default unsupported by proof. Id. It did 

not, however, declare that an evidentiary hearing is mandated in all default cases. Id.

[¶31] The same court later rejected the argument that Williams requires an evidentiary 

hearing in In re Sheih, 738 A.2d 814 (D.C. 1999), a reciprocal discipline case. In Sheih, 

the court found sufficient evidence of misconduct where the California State Bar had 

based its decision “on both the facts deemed to have been admitted by Respondent’s 

default and on the additional documentary evidence submitted by the State Bar[.]” Sheih, 

738 A.2d at 817 (emphasis in original). Contrary to Mr. Custis’s assertion, the holdings 

in Williams and Sheih do not establish that an evidentiary hearing is required in 

disciplinary proceedings when the respondent has defaulted. Instead, they stand for the 

proposition that an attorney who defaults in a disciplinary proceeding cannot be denied 

his or her license without a factual basis in addition to the allegations deemed admitted 

by virtue of the default. 

[¶32] The requirement of § 11(m) of the Disciplinary Code that upon default, “[n]o 

order shall be entered or recommendation made to the Court without the BPR being 

satisfied that there is a factual basis for the violation . . .” comports with the holding in 

Williams and Sheih. In this matter, bar counsel submitted six exhibits to support a factual 

basis for the rule violations, in addition to the allegations deemed admitted by the default. 

Mr. Custis was given an opportunity for a hearing to confront the disciplinary allegations 

made against him; however he lost that opportunity when he defaulted. We conclude the 

hearing prong of due process was satisfied.

C. Alleged Prosecutorial Vindictiveness

[¶33] Mr. Custis argues bar counsel displayed “prosecutorial vindictiveness” in pursuing 

discipline against him, citing Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 

668, 54 L.Ed.2d 604 (1978) (“To punish a person because he has done what the law 

allows is a due process violation of the most basic sort.”) In support of his argument, he 

cites facts which we will not consider because they were not presented to the BPR. See

Disciplinary Code § 21(c)(iv). Nevertheless, a brief explanation of the role of bar 

counsel in disciplinary proceedings is warranted. 
11

[¶34] Section 6(b)(i) of the Disciplinary Code gives bar counsel the power and duty 

“[t]o review and investigate any complaint to determine whether a prima facie violation 

exists[.]” “The determination of whether or not to initiate an investigation is vested 

within the sound discretion of Bar Counsel[.]” Id. at § 6(b)(iii). This discretion is limited 

by the Peer Review Panel, which provides “general supervision of, guidance to, and 

oversight of the office of Bar Counsel[,]” and ultimately “[d]etermine[s] whether 

probable cause exists, justifying the filing of a formal charge[.]” Id. at § 7(c)(iii), (vi). 

Here, the Peer Review Panel issued a Finding of Probable Cause prior to bar counsel 

filing the Formal Charge. Bar counsel adhered to the procedural rules in the Disciplinary 

Code and Mr. Custis provides no admissible support for his contentions that bar counsel 

acted vindictively. 

[¶35] We find no due process violation in the entry of default against Mr. Custis and 

therefore adopt the BPR’s entry of order of default.

II. Is there a factual basis for finding Mr. Custis violated the Wyoming Rules of 

Professional Conduct? 

[¶36] As discussed above, see supra ¶¶ 20-21 and 30-31, in disciplinary proceedings we 

do not rely on default alone to determine that a rule violation has occurred. In addition to 

the allegations deemed admitted by default, Disciplinary Code §11(m) requires us to find 

a factual basis for the violation. In the context of attorney discipline, a “factual basis” 

exists when “the record contains evidence in sufficient quantum to persuade a fairminded, rational person of the truth of a declared premise.” In re Disciplinary 

Proceedings Against Bonet, 29 P.3d 1242, 1247 (Wash. 2001) (internal citation and 

quotation marks omitted). Although this is sometimes referred to as “substantial 

evidence,” we reject bar counsel’s contention that we should apply a substantial evidence 

standard of review to the BPR’s findings and conclusions. The Court conducts a de novo

review of all aspects of attorney discipline. 

A. Violations of Wyoming Rules of Professional Conduct

1. Candor toward the tribunal—Wyo. R. Prof. Conduct 3.3(a)

[¶37] Wyo. R. Prof. Conduct 3.3(a) provides: “A lawyer shall not knowingly: (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 the lawyer;” and “(3) offer 

evidence that the lawyer knows to be false.” Comment 5 to Rule 3.3 provides in part: 

“Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows 

to be false . . . . This duty is premised on the lawyer’s obligation as an officer of the 

court to prevent the trier of fact from being misled by false evidence.”
12

[¶38] The following allegations from the Formal Charge are deemed admitted: (1) Mr. 

Custis filed a brief with the Wyoming Supreme Court in Ortiz v. State, 2014 WY 60, 326 

P.3d 883 (Wyo. 2014), containing material misrepresentations; (2) the State filed a 

motion for stay calling this Court’s attention to the misrepresentations; (3) Mr. Custis 

responded to the motion contending the misrepresentations were unintentional 

typographical errors; (4) pursuant to an order by this Court, Mr. Custis corrected the error 

and submitted a revised brief to the Court; and (5) in response to a disciplinary inquiry 

regarding the misrepresentation, Mr. Custis claimed to have no knowledge of the 

misrepresentation and explained the incident as a drafting error by his paralegal. Mr. 

Custis’s brief and the opinion of this Court in Seward provide a factual basis for these 

allegations. We agree with the BPR’s conclusion on this issue:

18. With regard to Respondent’s insistence that the 

misrepresentation contained in the Ortiz brief he signed and 

submitted to the Wyoming Supreme Court was simply a 

typographical error of which Respondent was unaware at the 

time the brief was filed, Rule 1.0(g) provides, “A person’s 

knowledge may be inferred from the circumstances.” Rule 

[3.1(c)][4]provides in relevant part, “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[.]”

There is a factual basis for concluding Mr. Custis violated Rule 3.3(a).

2. Responsibilities regarding nonlawyer assistants—Wyo. R. Prof. Conduct 

5.3

[¶39] Rule 5.3(c)(2) provides in pertinent part: 

[A] lawyer shall be responsible for conduct of such person 

that would be a violation of the Rules of Professional 

Conduct if engaged in by the lawyer if . . . 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 remedial action.

 

4

In its Report and Recommendation, the BPR mistakenly cited Rule 3.3(c).
13

Comment 1 to Rule 5.3 provides: “The measures employed in supervising nonlawyers 

should take account of the fact that they do not have legal training and are not subject to 

professional discipline.” While the record contains no basis to conclude that Mr. Custis 

had actual knowledge of his paralegal’s misrepresentations, Mr. Custis’s signature on the 

brief certified “that to the best of [his] knowledge, information, and belief, formed after 

an inquiry reasonable under the circumstances . . . [t]he . . . factual contentions have 

evidentiary support[.]” W.R.C.P. 11(b)(3). When Mr. Custis signed the brief, he took 

responsibility for knowing the accuracy of the contents of the document. Mr. Custis 

cannot simply claim ignorance to avoid his responsibility for his paralegal’s work 

product. We conclude that a factual basis exists to find Mr. Custis violated Rule 5.3(c).

3. Conduct involving dishonesty, fraud, deceit or misrepresentation—Wyo. 

R. Prof. Conduct 8.4(c)

[¶40] Wyo. R. Prof. Conduct 8.4(c) provides: “It is professional misconduct for a lawyer 

to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” It is 

undisputed that the Ortiz brief contained portions of the Seward opinion, without citation, 

which misrepresented the testimony of an important witness. We conclude there is a 

factual basis to conclude Mr. Custis violated Rule 8.4(c). See Bd. of Prof’l Responsibility 

v. Stith, 2011 WY 69, 262 P.3d 847, 851 (Wyo. 2011) (attorney violated Rule 8.4 when 

he signed discovery pleading which failed to provide required insurance coverage 

information); In re Finestrauss, 32 A.3d 978, 982 (Del. 2011) (violation of Rule 8.4(c) 

for submitting to the Court documents with misrepresentations relating to tax 

obligations).

4. Conduct prejudicial to the administration of justice—Wyo. R. Prof. 

Conduct 8.4(d)

[¶41] Wyo. R. Prof. Conduct 8.4(d) provides that it is professional misconduct for a 

lawyer to “engage in conduct that is prejudicial to the administration of justice.” Mr. 

Custis admits that he submitted a brief to this Court containing material 

misrepresentations, and the misrepresentation is apparent on the face of the brief. If this 

Court had relied on these misrepresentations it would have impacted a central issue in the 

Ortiz appeal. Furthermore, addressing the misrepresentation caused undue delay and 

wasted resources of the State and this Court. We find a factual basis for concluding that 

the misrepresentation was prejudicial to the administration of justice and Mr. Custis 

violated Rule 8.4(d).

III. What are the appropriate sanctions?

[¶42] When a respondent defaults on the charges, but appears at the sanction hearing, as 

Mr. Custis did, we determine the sanctions based on clear and convincing evidence. 

“Clear and convincing evidence is ‘that kind of proof that would persuade a trier of fact 
14

that the truth of the contention is highly probable.’” Richard, 2014 WY 98, ¶ 53, 335 

P.3d at 1052 (quoting SMH v. State, 2012 WY 165, ¶ 19, 290 P.3d 1104, 1109 (Wyo. 

2012)); see also Mendicino, 565 P.2d at 475.

[¶43] To determine the appropriate sanctions, we look to the ABA Standards for 

Imposing Lawyer Sanctions (1992) (ABA Standards). In In re Discipline of Longacre, 

122 P.3d 710 (Wash. 2005), the Washington Supreme Court explained this process:

[T]he court engages in a two-step process utilizing ABA 

Standards. First, the presumptive sanction is determined by 

considering: (1) the ethical duty violated, (2) the lawyer’s 

mental state, and (3) the extent of the actual or potential harm 

caused by the misconduct. Second, the court considers any 

aggravating or mitigating factors that may alter the 

presumptive sanction or affect the duration of a suspension.

Id. at 719 (citation omitted); see also ABA Standards 3.0 and In re Shea, 273 P.3d 612, 

622 (Alaska 2012).

1. The lawyer’s mental state

[¶44] The ABA Standards define three levels of mental states:

“Intent” is the conscious objective or purpose to 

accomplish a particular result.

“Knowledge” is the conscious awareness of the nature 

or attendant circumstances of the conduct but without the 

conscious objective or purpose to accomplish a particular 

result.

“Negligence” is the failure of a lawyer to heed a 

substantial risk that circumstances exist or that a result will 

follow, which failure is a deviation from the standard of care 

that a reasonable lawyer would exercise in the situation.

ABA Standards, III. Standards for Imposing Lawyer Sanctions: Black Letter Rules. 

[¶45] The BPR did not reach any conclusions regarding Mr. Custis’s mental state. With 

regard to Mr. Custis’s violations of Wyo. R. Prof. Conduct 3.3(a), 5.3, 8.4(c), and 8.4(d), 

we conclude Mr. Custis’s violations comport with the ABA’s definition of a negligent 

mental state: “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 from the standard of care that 
15

a reasonable lawyer would exercise in the situation.” ABA Standards, Theoretical 

Framework. The testimony of Mr. Custis, his paralegal, and Ms. Domonkos indicates

that Mr. Custis was not aware of the misrepresentation until the State filed its motion for 

stay. 

2. Potential or actual injury caused by misconduct

[¶46] The ABA Standards define “injury” as follows:

[H]arm 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.

ABA Standards, III. Standards for Imposing Lawyer Sanctions: Black Letter Rules. 

“Potential injury” is:

[H]arm 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 from some intervening 

factor or event, would probably have resulted from the 

lawyer’s misconduct.

Id.

[¶47] We find clear and convincing evidence supporting the BPR’s determination that 

Mr. Custis caused actual injury to the State and the judiciary, and adopt its finding: 

23. Based upon the clear and convincing evidence . . . 

Respondent’s misconduct caused actual injury to the judicial 

system. Because of the misrepresentations contained in the 

brief filed by Respondent, the State expended significant time 

researching, drafting and filing the Motion for Expedited 

Stay. The Court expended its resources in reviewing the 

motion, Respondent’s response and ruling on the motion.

3. Duties violated and presumptive sanction

[¶48] Mr. Custis’s violation of Rule 5.3 falls under the ABA Standards 7.0, “Violations 

Of Other Duties Owed As A Professional.” Considering Mr. Custis acted negligently and 

caused actual injury to the judiciary, our presumptive sanction is reprimand. ABA 

Standards 7.3.
16

[¶49] Mr. Custis’s violation of Rules 3.3(a), 8.4(c), and 8.4(d) fall under the heading 

“Violations of Duties Owed to the Legal System,” specifically, ABA Standard 6.1, “False 

Statements, Fraud, and Misrepresentation.” Because Mr. Custis acted negligently and 

caused actual injury to the judiciary, our presumptive sanction determination is 

reprimand.

6.13 Reprimand is generally appropriate when a 

lawyer is negligent either in determining whether 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 proceeding, or causes 

an adverse or potentially adverse effect on the legal 

proceeding.

ABA Standards 6.13.

4. Aggravating and mitigating factors warranting adjustment of 

presumptive sanction

[¶50] “Aggravating circumstances are any considerations or factors that may justify an 

increase in the degree of discipline to be imposed.” In re Johanning, 111 P.3d 1061, 

1065 (Kan. 2005). ABA Standard 9.22 lists factors which may be considered in 

aggravation:

(a) prior disciplinary offenses;

(b) dishonest or selfish motive;

(c) a pattern of misconduct;

(d) multiple offenses;

(e) bad faith obstruction of the disciplinary proceeding by 

intentionally failing to comply with rules or orders of the 

disciplinary agency;

(f) submission of false evidence, false statements, or other 

deceptive practices during the disciplinary process;

(g) refusal to acknowledge wrongful nature of conduct;

(h) vulnerability of victim;

(i) substantial experience in the practice of law;

(j) indifference to making restitution;

(k) illegal conduct, including that involving the use of 

controlled substances.

[¶51] ABA Standard 9.32 lists the following factors that may justify reduction of the 

degree of discipline:
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(a) absence of prior disciplinary record;

(b) absence of a dishonest or selfish motive;

(c) personal or emotional problems;

(d) timely good faith effort to make restitution or to rectify 

consequences of misconduct;

(e) full and free disclosure to disciplinary board or 

cooperative attitude toward proceedings;

(f) inexperience in the practice of law;

(g) character or reputation;

(h) physical disability;

(i) mental disability or chemical dependency including 

alcoholism or drug abuse . . . ;

(j) delay in disciplinary proceedings;

(k) imposition of other penalties or sanctions;

(l) remorse;

(m) remoteness of prior offenses.

[¶52] The BPR found three aggravating factors: (1) prior disciplinary record, (2) 

multiple offenses, and (3) substantial experience in the practice of law. In addition, the 

BPR found one mitigating factor, the previously imposed $500 sanction from this Court.

[¶53] There is clear and convincing evidence of Mr. Custis’s prior disciplinary record. 

In Custis I, Mr. Custis offered a $15,000 “inducement” to the mother of a sexual abuse 

victim in exchange for the mother’s agreement to recommend to the sentencing court that 

Mr. Custis’s client receive a suspended sentence and no prison time for his guilty plea to 

first-degree sexual abuse of a minor. 2012 WY 142, 295 P.3d at 336. Mr. Custis was 

publicly censured, and required to take a continuing education in ethics course as 

sanctions in that matter. Id. at 351.

[¶54] We do not agree there were “multiple offenses” in the Ortiz matter. Rather, Mr. 

Custis committed one offense which violated several rules. The Washington Supreme 

Court has explained the distinction:

Longacre’s conduct, as limited and discrete as it was, 

viewed as a whole, does not rise to the level of egregiousness 

justifying a finding of “multiple offenses.” In virtually any 

attorney discipline case, multiple counts are commonly 

charged simply because most discrete behaviors violate more 

than one [rule of professional conduct]. Surely, the ABA 

Standards and this court never intended that all attorneys 
18

charged with multiple counts of misconduct be subject to the 

“multiple offenses” aggravating factor. The test for “multiple 

offenses” must require something more.

In re Discipline of Longacre, 122 P.3d at 726 (emphasis in original). Mr. Custis filed a 

brief containing material misrepresentations. Though this conduct violated more than 

one rule of professional conduct, it does not constitute “multiple offenses.”

[¶55] Mr. Custis has been licensed to practice law since 1994, providing clear and 

convincing evidence of his substantial experience in the practice of law. See In re 

Disciplinary Proceeding Against Ferguson, 246 P.3d 1236, 1250 (Wash. 2011) 

(“substantial experience” factor applicable when lawyer has practiced 10 or more years at 

the time of misconduct).

[¶56] “[T]here is no magic formula for determining how aggravating and mitigating 

circumstances affect an otherwise appropriate sanction.” In re Disciplinary Matter of 

Friedman, 23 P.3d 620, 633 (Alaska 2001) (internal quotation marks omitted). In 

determining the appropriate sanction, we must balance the rehabilitative and deterrent 

purposes of attorney discipline. “[W]e view discipline as assisting, if possible, in the 

rehabilitation of an errant lawyer.” In re Scholl, 25 P.3d 710, 712 (Ariz. 2001). “[T]he 

discipline must be fair to the attorney, with the object of correcting the wayward 

tendency in the accused lawyer while offering . . . a fair and reasonable opportunity for 

rehabilitation.” The Florida Bar v. Cox, 794 So.2d 1278, 1286 (Fla. 2001) (internal 

quotation marks omitted). Although attorney discipline can serve to improve the 

performance of attorneys who have strayed in performing their ethical obligations, when 

an attorney continues to engage in professional and ethical misconduct in spite of 

previous sanctions, our concern weighs more heavily toward deterrence, maintaining the 

integrity of the legal system, and protecting the public. This Court’s decision in Custis I 

was published on November 7, 2012. Even assuming he made no changes in his office 

procedures until that date, some of Mr. Custis’s misconduct occurred after, he contends, 

he made improvements to his procedures to avoid any further discipline. 

[¶57] We adopt the BPR’s recommendation of a public censure for Mr. Custis’s rule 

violations. We adopt the BPR’s recommendation on fees and costs, ordering Mr. Custis 

to pay $500.00 in administrative fees and $1,827.72 in sanction hearing costs.

IT IS HEREBY ORDERED:

[¶58] 1. The Report and Recommendation for Public Censure, filed by the BPR on 

June 17, 2014, is hereby approved and adopted, as modified by this order; and

2. Dion J. Custis shall receive a public censure; and
19

3. By June 1, 2015, Dion J. Custis shall pay costs of $1,827.72 associated with 

the disciplinary proceedings and an administrative fee of $500.00. 

[¶59] DATED this 16th day of April, 2015.

BY THE COURT:*

/s/

E. JAMES BURKE

Chief Justice

*Justice Hill took no part in the consideration of this matter. Judge Timothy C. Day 

participated by assignment.