1 IN THE SUPREME COURT, STATE OF WYOMING

20 1 4 WY 134

OCTOBER TERM, A.D. 20 1 4

October 29, 2014

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR,

Petitioner,

v.

LAURENCE W. STINSON, WSB No.

6

- 2918,

Respondent. D

- 14

- 0002

ORDER OF PUBLIC CENSU RE

[¶1] This matter comes before the Court upon a Report and Recommendation by the Board of Professional Responsibility of the Wyoming State Bar (the Board) for a public reprimand of Laurence W. Stinson

. Having reviewed the Report and Recommendation

and Mr. Stinson’s objection to it, considered the oral arguments of counsel

, and performed an independent and thorough review of the Board record, the Court concludes

Mr. Stinson violated Rule 3.1(c) of the Wyoming Rules of Professional Conduct and
accepts the recommendation of the Board that Mr. Stinson be publicly reprimanded and that he pay costs in the amount recommended by the Board. We further rule that the Board properly denied Mr. Stinson’s motion for sanctions.

FACTS

[¶2] During the events which led to this disciplinary matter, Mr. Stinson was a shareholder in Bonner Stinson, P.C., in Cody, Wyoming. The disciplinary matter arose out of Mr. Stinson’s conduct during the firm’s representation of Dr. John H. Schneider, a Cody neurosurgeon, who became em broiled in a dispute with Dr. Jimmie Biles, an orthopedic surgeon in Cody. Dr. Biles accused Dr. Schneider of having a third party disseminate defamatory statements about him, and then, in the ensuing federal litigation,

Dr. Biles accused Dr. Schneider of obstructing justice, suborning perjury, and bribing a witness. Because the charges against Mr. Stinson relate in large part to his knowledge of2

his client’s actions and when he obtained that knowledge, we must first outline in some

detail the facts relat ed to the federal proceedings. We will then outline the disciplinary proceedings that resulted from Mr. Stinson’s conduct during his representation of Dr. Schneider in the federal proceedings.

A. Federal Proceedings

[¶3] On August 29, 2011, Dr. Biles fi led a complaint in Federal District Court, for the District of Wyoming, against an Indiana woman by the name of Lisa Fallon. The complaint alleged that Ms. Fallon arranged to print and direct mail a defamatory flyer about Dr. Biles to over 14,000 Wyoming residents. The flyer stated:

Alert

– my name is Rita and I was in Cody and broke my

ankle this summer and this doctor ‘ fixed it ” . (sic) He did a terrible job and I needed two more surgeries at home and I am suing him. I looked up this doctor and found this recent arrest. If this is your doctor beware and let the hospital in Cody and your state medical board know about him. He has already been investigated for drunkenness when on call at the hospital and has a dozen lawsuits that he lost! The Wyoming board of medicine told me he has several complaints from other doctors and Physician Assistants that he was drunk at work and in the operating room. Beware! How can they let someone like this practice? You can find this on line at Park County Sheriff’s department website.

[¶4] The flyer followed this statement with what was alleged to be a booking photo of Dr. Biles, arrest information related to a 2010 driving under the influence charge, and accusations connecting Dr. Biles to: “Lewd act with resistin g arrest;” “Illegal possession controlled substance;” and “Felony Investigation.” Aside from the photo and a DWUI arrest, all information in the flyer was false.

[¶5] Before filing the action against Ms. Fallon, who lives in Indiana, counsel for Dr.

Bile s investigated Ms. Fallon’s connections with Cody, Wyoming. They found that her only connection to Wyoming was her relationship with Dr. Schneider and his wife, Michelle Schneider. Through further investigation, Dr. Biles’ counsel found evidence

that con nected Dr. Schneider to the company that printed the flyers. Despite having found this connection, Dr. Biles’ counsel made the decision to first sue Ms. Fallon and seek discovery from her before proceeding against Dr. Schneider and any other potential

def endants.

[¶6] In September 2011, Dr. Schneider met with Mr. Stinson and Brad Bonner to discuss the lawsuit that Dr. Biles had filed against Ms. Fallon. Dr. Schneider told Mr.3

Stinson and Mr. Bonner that Ms. Fallon was a close family friend who could not afford an attorney to defend against the action filed by Dr. Biles. Dr. Schneider asked Mr. Stinson and Mr. Bonner to help find an attorney to represent Ms. Fallon, and he informed them that he wished to pay the fees of that attorney. Mr. Stinson and Mr. Bonner referred Ms. Fallon to an attorney who agreed to represent her, on the condition that Dr. Schneider understood that Ms. Fallon’s communications with her counsel would be privileged and that paying for Ms. Fallon’s defense did not allow him to contr ol that defense. Ms. Fallon’s attorney and Dr. Schneider executed a fee agreement to that effect.

[¶7] On October 7, 2011, Ms. Fallon, through her attorney, filed an answer to Dr. Biles’ complaint. In that answer, Ms. Fallon admitted that she created an d mailed the flyer to the over 14,000 Wyoming residents. Ms. Fallon also admitted that she did not use her own money to print and mail the flyers, but she denied that she acted at the request of a third party. Mr. Stinson received a copy of the answer.

[¶8] On October 16, 2011, Mr. Stinson received self

- executing discovery submitted by Dr. Biles’ counsel in the action against Ms. Fallon, and according to his billing invoice to Dr. Schneider, Mr. Stinson spent over one hour reviewing that discovery. The self

executing discovery included documents that showed that Dr. Schneider ordered and paid for the mailing labels used to distribute the flyer.

[¶9] On October 20, 2011, Ms. Fallon’s attorney sent her an e

- mail questioning her position that she and she a lone was responsible for mailing the defamatory flyer. He

stated:

Plaintiffs know this was not your idea. The world

knows this was not your idea. Four doctors up there had a business Schneider, Biles, Emery, and one other. They split up. The split w as horrible and because of the split they do not like each other. They proceed to do mean things to each other. No nurse in Indiana, especially a nice nurse, (remember everybody likes nurses) decides one day to spend her own money and send out a flyer be cause she does not like the way a doctor is behaving in Wyoming. A state she has

never lived. (sic) A doctor who has never treated her. She has never done this before, and now all of sudden she takes a moral crusade against Dr. Biles. Unless you are co mpletely crazy that dog don’t hunt, the boat don’t float, and that story

is not believable.

[¶10] Ms. Fallon’s attorney did not copy Mr. Stinson with this e

- mail or use these terms
to describe to Mr. Stinson his reaction to Ms. Fallon’s version of events. Ms. Fallon’s attorney did, however, sometime in October 2011, tell Mr. Stinson that he felt Ms.4

Fallon’s version was “fanciful and doesn ’ t make any sense.” On October 21, 2011, Mr. Stinson and Ms. Fallon’s attorney exchanged e

- mails regarding concerns t hat Ms. Fallon was not being truthful in responding to interrogatories. Specifically, Ms. Fallon’s

attorney e

- mailed Mr. Stinson:

We talk then she has to have a time period to think

— where I know she communicates with Schneider. I keep telling her

this i s not a game just tell the truth, but I think we will never get there on the truth level.

Mr. Stinson responded:

I think you[r] read of circumstances is likely correct. I just told Schneider yesterday to quit talking to her at all. My advice will be igno red.

[¶11] On October 31, 2011, Mr. Stinson received and reviewed Ms. Fallon’s draft interrogatory responses, which had been forwarded to him by Ms. Fallon’s attorney. In those responses, Ms. Fallon again stated that she alone created the flyer, but she also provided names of individuals who provided her information that she used in the flyer. Included among those individuals was Dr. Schneider. Ms. Fallon also stated in her interrogatory responses that Dr. Schneider responded to her plans to send the fl yer by stating, “Dr. Biles deserves it as he is a menace to the community of doctors and he was probably going to kill someone when he was drunk.” Additionally, Ms. Fallon elaborated on the details of Dr. Schneider’s providing her with the mailing list fo r the flyer:

Schneider said that they were public files that anyone can use and they did not specifically come from his patient database and were not “his patients” so he had no problem just giving me a labels database from Park County and its surrounding counties. I did not pay for them and Dr. Schneider did not ask for any payment, he just mailed them to me on a stick

drive.

[¶12] On November 17, 2011, Dr. Biles’ counsel took Ms. Fallon’s deposition. The deposition was sealed by agreement of the parti es, so Mr. Stinson was not able to review the deposition. Ms. Fallon’s attorney understood this agreement precluded him from allowing anyone to read the deposition transcript, but he also understood he was permitted to discuss the deposition with Mr. Stin son because Dr. Biles’ attorney asked him to convey to Mr. Stinson that Dr. Biles would like to resolve the matter through a financial settlement with Dr. Schneider. On November 21, 2011, Mr. Stinson met with Ms. Fallon’s attorney and discussed the deposi tion. Ms. Fallon’s attorney informed Mr. Stinson that Ms. Fallon testified that she alone was responsible for distributing the flyer5

but that she received the mailing list and the money to cover the cost of the mailing from

the Schneiders.

[¶13] On Novem

ber 22, 2011, counsel for both Ms. Fallon and Dr. Biles received a letter with enclosures from the Park County Attorney. The letter enclosed copies of documents that had been printed from a stick drive that a worker in the laundry room of the West

Park Co unty Hospital in Cody found in the pocket of a man’s surgical scrubs. Hospital administration sent the stick drive to the county attorney, who provided the aforementioned copies of the documents to both counsel and to law enforcement. The

documents found on the stick drive became known as “the laundry room documents,” or

the “LRDs.”

[¶14] The LRDs consisted of three documents. The first document was addressed to Ms. Fallon and was an eight

- page document that instructed her on how to testify in her depos ition. It included the following passages:

[Dr. Biles’ counsel] will do everything they can to intimidate as well as befriend you with one common goal

– to show this flier creation and distribution was a conspiracy directed by

Dr. Schneider and Michelle to slander Biles. As we have discussed, if you are able to withstand the heat of the deposition and ‘ take a bullet ’ , regardless of final economic damages in favor of Biles in any type of judgment, you will be taken care of far in excess of any paycheck. The amount he will get will be negligible and have no impact on your life.

* * * * * * They will obviously say many times, through various ways that “it is better for you to tell the truth about your co

conspirator”. Don’t believe any of it

– they will n ot befriend

you or help you in any way and as soon as they “turn you”, you will be treated like a prison Bitch. Please stay focused on the truths in the interrogatories and this primer. All other questions beyond what is covered here are vague

recollecti ons, influenced by your current medical condition of significant thyroid imbalance, frequent antibiotics for kidney and bladder infections and your overwhelming worry that you have cancer that they will discover when they do your surgery

next month. * * * Please read, read and re

- read these facts, as well as the interrogatory answers and use these to answer the questions they ask briefly and to the point. * * *

* * * Reading through the last email from [Dr. Biles’ counsel], they plan to demonstrate through your answers that you had no6 knowledge of Biles and therefore could not have generated the idea to develop the flier or had the motivation to do so and you must have been coerced, even by friendship with Michelle and Dr. Schneider, to take these actions. This is where you can expound and be creative in your testimony attacking him as a drunk, posing danger to the community and patients, citing your uncle being killed by a drunk driver,

etc. * * *

* * *
The details of Dr. Schneider’s involvement are in th e interrogatory answers. Just as you had spoke with the other people listed in the interrogatories, you called me and asked my knowledge about the Biles incident. Recall the interrogatory answers and it is OK to have them in front of you and simply respo nd to their questions by reading your answers that way you do not have to develop anything more

than is listed in the answers. YOU SHOULD FALL BACK

ON THE FACT THAT YOU DO NOT FEEL WELL

BECAUSE OF YOUR MEDICAL CONDITIONS THAT

INCLUDE THYROID IMBALANCE AND YOU NEED

YOUR ANSWERS IN FRONT OF YOU AS YOUR NOTES

OF THE DETAILS OF THE PEOPLE YOU HAVE

SPOKEN WITH AND THE TIMELINE SINCE YOU ARE

HAVING A DIFFICULT TIME INDEPENDENTLY

RECALLING THESE FACTS. [Emphasis in original.]

[¶15] The second document in the LR Ds was a one

- page document purporting to summarize the contacts and discussions between Ms. Fallon and Dr. Schneider regarding the flyer and the lawsuit. In regard to the lawsuit, the document closes with a statement that “Nothing specific to the claim is discussed.” The third document in the LRDs was a

four

- page document setting forth draft answers to the interrogatories that had been served

on Ms. Fallon.

[¶ 16 ] On November 22, 2011, Ms. Fallon’s attorney forwarded the Park County Attorney’s letter and the LRDs to Mr. Stinson. That same day, Mr. Stinson and Mr.

Bonner met with Dr. Schneider to discuss the LRDs. Mr. Stinson described this as a “very heated” meeting during which they asked Dr. Schneider to explain the documents and in particular whether he was paying for Ms. Fallon ’ s testimony. Mr. Stinson testified that Dr. Schneider admitted that he had typed the documents but denied that he had paid or attempted to pay for Ms. Fallon’s testimony. Dr. Schneider’s explanation was that he

was on the tel ephone with Ms. Fallon as he was typing the document and was merely helping to prepare her and typing the answers as she was providing them. Mr. Stinson testified that he did not have sufficient evidence at that time that Dr. Schneider was lying7

to him an d he resolved the doubt in favor of his client. Mr. Stinson and Mr. Bonner

instructed Dr. Schneider that he was to have no further contact whatsoever with Ms.

Fallon.

[¶1 7 ] On November 23, 2011, counsel for Dr. Biles served third party subpoenas on Dr.

a nd Mrs. Schneider, seeking communications with Ms. Fallon, forensic expert access to the Schneiders’ computers and smart phones, and records of monies paid by the Schneiders to Ms. Fallon. On December 7, 2011, Mr. Stinson, on behalf of the Schneiders, fil ed a motion to quash the subpoenas. Mr. Stinson stated as the basis for the motion to quash that the subpoenas were overbroad and unduly burdensome, that Ms. Fallon testified under oath that she acted alone in creating and disseminating the defamatory fly er, and that counsel for Dr. Biles had not shown any connection between

the Schneiders and Dr. Biles ’ claims against Ms. Fallon. On January 6, 2012, the district court denied the motion to quash and ordered that the Schneiders produce the subpoenaed

docum ents and items. In so ruling, the court explained:

The Court is satisfied that the evidence sought pursuant to this subpoena will be relevant and significant in discovering the contours of any conspiracy giving rise to plaintiff’s

defamation claims. Def

endant Fallon did not have any close connections in the Park County area other than the Schneider family. Following the deposition of Defendant Fallon, it appears that she claims she was solely responsible for the flyer and did not receive approval of it from Dr. Schneider prior to its dissemination. In contrast, among other things, plaintiff has asserted a belief that Defendant Fallon was acting as a conduit of information that was funneled to her from someone in Park County and was not the initial sourc e of the defamatory materials. The information sought by this subpoena would be relevant and necessary to the parties in attempting to ascertain the truth in this regard.

[¶1 8 ] On January 19, 2012, a hearing was held on another discovery dispute, and dur ing that hearing, the district court ordered the Schneiders to provide all subpoenaed items by February 3, 2012. On February 29, 2012, the court issued an order finding that the Schneiders had failed to make a good faith effort to comply with the subpoena , fining the Schneiders $1000.00, and directing that they provide all subpoenaed items by March 9, 2012. On March 8, 2012, the Schneiders filed their verified supplemental response to the subpoena.

[¶1 9 ] On January 28, 2012, Dr. Biles served on the Schne iders a complaint alleging RICO and defamation claims against the Schneiders and a related business entity. On8

February 21, 2012, Mr. Stinson signed and filed, on behalf the Schneiders and their related entity, an Answer and Counterclaim. In that Answer and Counterclaim, Mr. Stinson included the following statements:

[¶ 38a] Plaintiff has taken the deposition of Lisa Shaurette

Fallon in the related case of Biles v. Fallon. Ms. Fallon has testified that she, and she alone, created the flier of which

Plai ntiff complains is defamatory. Thus, Plaintiff has obtained testimony under oath that contradicts and dispels the allegations contained in Plaintiff’s complaint. As a result, the allegations contained within the complaint are known to be untrue by Plaint iff and are not made in good faith. Rather, such allegations are made as part of long

- standing animosity

Plaintiff has for John Schneider.

[¶ 43b] Plaintiff is himself responsible for negative public perceptions regarding him and his personality because

Plaintiff is known to and/or has: often consumed alcohol while driving; consumed alcohol while driving with employees while engaged in the course and scope of business;

allows or has allowed his wife

– a non

- medically trained

individual

– to provide point of contact care for his patients (and may bill Medicare, Medicaid and/or insurance companies for these services); engaged in medical decision

making while under the influence of alcohol; bad

- mouths other physicians and medical personnel; engages in

subver sive conduct toward other physicians; creates conflict with his employees and the employees of other physicians; waived a gun around his office and pointed that gun at an employee and commanded that the employee “dance”; fails to pay people who provide goo ds and services at the ranch owned by Plaintiff (or a company he controls); has failed to uphold or fulfill contractual obligations and commitments to parties connected to ranch activities and/or business ventures

and other acts which create and foster the bad reputation he

created for himself.

[¶ 54] Biles knew that his complaint was false and, despite such knowledge, recklessly published the complaint by filing the same in a public docket.

[¶ 20 ] On April 23, 2012, Dr. Biles’ counsel disclosed to Mr. Sti nson copies of e

- mail correspondence between Dr. Schneider and Ms. Fallon that had been obtained through a9

third

- party subpoena served on Ms. Fallon’s Indiana employer. The e

- mails contained communications wherein Dr. Schneider urged Ms. Fallon to avoid b eing deposed, provided a medical excuse to be signed by her physician to help her avoid being deposed, instructed her on how to answer deposition and interrogatory questions, advised her to be vague in answering questions ( “ the best answers to use are ‘I d o not have recollection of that’”), offered to destroy her computer hard drives by giving them the “microwave treatment,” and told her she should have “a 250k plus payoff for your future.”

[¶2 1 ] After receiving the disclosures from Dr. Biles’ counsel, Mr. Stinson and Mr. Bonner conferred with Mark Gifford, Bar Counsel, concerning their disclosure obligations under the Rules of Professional Conduct, and on April 25, 2012, Mr. Stinson and Mr. Bonner requested a hearing with the district court for the purpose of disclosing

the e

- mail correspondence between Dr. Schneider and Ms. Fallon. The following day, the court held the requested hearing, and Mr. Bonner summarized the e

- mail correspondence as follows:

In general, the emails concern Ms. Fallon’s answers t o interrogatories and the testimony that she would be giving in an upcoming scheduled deposition. There is considerable

communication from Dr. Schneider where

– and it ’ s to Ms.

Fallon

– where Dr. Schneider quite apparently is instructing

Ms. Fallon on wha t to say, what not to say, and how to say it, both in her deposition and in her interrogatories. There is also a document that quite ap parently appears to be

– and it’ s provided from him to her

– that appears to be his proposed text of her interrogatory a nswers. While all of that is a really, really, really bad idea, I

don ’ t know if that conduct in and of itself would necessarily motivate this disclosure. However, the emails also contain communication in which Dr. Schneider provides Ms. Fallon

with a doc tor’s note for signature by her personal physician. And the purpose of the note, it is stated in their communication, is to prevent Ms. Fallon from having to give her deposition in the litigation. Then, Your Honor, when Ms. Fallon relates in an

email to Dr. Schneider that she has secured her doctor’s commitment to sign the doctor ’ s note, thus hopefully in their mind precluding the deposition, Dr. Schneider writes in a responding email, “That should be a 250k

- plus payoff for your future. Thank you.”

[¶2 2 ] Shortly after this disclosure, Dr. Biles’ claims against Ms. Fallon and the

Schneiders were settled in a confidential settlement.10

B. Disciplinary Proceedings

[¶2 3 ] Following the disclosures to the district court, Bar Counsel appointed Special Bar

Couns el to determine whether formal charges should be filed based on the conduct of counsel during the federal proceedings. In accordance with Rule 11(d) of the Disciplinary Code, Special Bar Counsel presented the matter to the Peer Review Panel

for a determin ation of probable cause to justify filing a formal charge against Mr. Stinson. On April 5, 2013, the Peer Review Panel issued a Finding of Probable Cause,

which stated:

This matter came before the Peer Review Panel on

April 4, 2013 upon motion of Specia l Bar Counsel. A quorum of the Panel reviewed the Complaint, file materials and proposed Formal Charge and, being fully advised in this matter, finds, pursuant to Disciplinary Code Section 7(c)(iii), that probable cause exists justifying the filing of a F ormal Charge.

[¶2 4 ] On April 10, 2013, the Wyoming State Bar (the Bar), through Special Bar Counsel, filed with the Board of Professional Responsibility (the Board) a Formal Charge against Mr. Stinson. The Bar asserted two violations of the Wyoming Rules of Professional Conduct. The first charge alleged that Mr. Stinson violated Rule 3.3 by delaying disclosure to the court of his client’s scheme to obstruct justice for five months after Mr. Stinson obtained actual knowledge of the scheme. The second cha rge alleged that Mr. Stinson violated Rule 3.1(c) by: 1) signing and filing affirmative defenses and counterclaims that alleged facts Respondent knew to be false; 2) representing Fallon’s deposition testimony to the Court as a basis for relief without firs t conducting a reasonable inquiry into his client ’ s apparent bribery of Fallon to give false testimony; and 3) asserting embarrassing detailed allegations about Biles for improper purposes.

[¶2 5 ] On October 3, 2013, Mr. Stinson designated three expert wit nesses: Richard Honaker, Judge Nancy Freudenthal, and Judge Alan Johnson. The Bar filed a motion in

limine to exclude the expert testimony on ground that the testimony calls for inadmissible legal conclusions and would invade the province of the Board. T he Board granted the

motion in limine in part and denied it in part. The Board ruled that the three experts could testify, but it limited that testimony, ordering that none of the experts could testify as to the ultimate question of whether Mr. Stinson’s actions were in compliance with any Rule of Professional Conduct. We will set forth any necessary additional facts as they relate to the expert testimony in our discussion of Mr. Stinson’s challenge to the limitations placed on that testimony.11

[¶2 6 ] Begi nning on November 6, 2013, a three

- day hearing was held on the charges against Mr. Stinson. At the conclusion of the hearing, the BPR deliberated on the charges and announced its findings:

And the Board has determined by a majority of the quorum that th e Bar has proved by clear and convincing evidence that the Respondent has violated Rule 3.1[c], and the Board has determined by a majority of the quorum that a violation has not been proved by clear and convincing evidence concerning the Respondent violati ng 3.3(b). Therefore, that portion of the formal charge is dismissed.

[¶2 7 ] The Board then proceeded to hear evidence and argument on sanctions. At the conclusion of that presentation, the Board again recessed for deliberations. Following

those deliber ations, the Board announced that its recommended sanction was a public reprimand. The Board also recommended that Mr. Stinson be required to pay hearing costs and the $50 0 .00 administrative fee required by the Disciplinary Code.

[¶2 8 ] On January 3, 2014, the Board filed with the Supreme Court its Report and Recommendation for Public Reprimand. On January 21, 2014, Mr. Stinson filed a motion for W.R.C.P. 11 sanctions against the Bar, the Peer Review Panel, and against Special Bar Counsel based on the Bar’ s refusal to dismiss the Formal Charge. On January 23, 2014, Mr. Stinson filed Respondent’s Objections to Costs, Request for Allocation, and Request for Amended Report and Recommendation, along with a request for a hearing on the objections. On March 13, 2014, the Board issued orders denying both the motion for Rule 11 sanctions and the objection to costs.

ATTORNEY DISCIPLINARY PROCEDURE

[¶2 9 ] This Court considers a recommended disciplinary action according to the following principles:

The purposes of the state bar disciplinary procedure

are to maintain “the integrity of the bar,” “to prevent the transgressions of an individual lawyer from bringing its image into disrepute” and to “protect the public and the administration of justice.” Bd. of Prof’l Res ponsibility 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, 1221 (Wyo. 1980)

. Wyo. Stat. Ann. § 5

– 2

– 114 (LexisNexis 2013) charges this Court with adopting rules of “practice and procedure in all courts of this state, for the12 purpose of promoting the speedy and efficient determination of litigation upon its merits.” Wyo. Stat. Ann. § 5

– 2

– 11 8(a)(iii) (LexisNexis 2013) further charges this Court with adopting rules establishing “practice and procedure for disciplining, suspending, and disbarring attorneys.”

Pursuant to Wyo. Stat. Ann. § 33

– 5

– 104 (LexisNexis 2013) , member ship to the bar is by petition to the Wyoming Supreme Court. Pursuant to § 1(a) of the Disciplinary Code for the Wyoming State Bar , attorneys are “subject to the exclusive disciplinary jurisdiction of this Court and the
Board....” Disci plinary 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. 1938) . The Board acts as an arm of this Court in taking evidence and 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 recommendations, the “ultimate judgment in these cases is vested in the Court.” Casper , ¶ 8, 318 P.3d at 793

– 94, citing Mendicino , 565 P.2d

at 466

. See also Davidson , ¶ 1, 205 P.3d at 1012

.

In determining whether discipline is appropriate in these special proceedings, this Court must be satisfied that “substantial, clear, convincing, and satisfactory evidence” exists to sustain the findings of the Board. Mendicino , 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

.

Bd. of Prof ’ l Responsibility v. Richard , 2014 W Y 98, ¶¶ 51

- 53, ___ P.3d ___ (Wyo. 2014).

DISCUSSION

[¶ 30 ] Mr. Stinson objects to the Board’s recommended finding that he violated Rule 3.1(c), the Board ’ s limitation on the testimony of his expert witnesses, and the Board ’ s recommended sanction and award of costs. We will address each of these questions separately, and as a final matter, we will address Mr. Stinson’s Rule 11 motion.13

A. Rule 3.1(c) Violation

[¶3 1 ] Rule 3.1(c) of the Wyoming Rules of Professional Conduct provides:

The signature of an at torney 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 la w 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

.

[¶3 2 ] Comments 1 and 2 to Rule 3.1 are relevant to our consideration of Mr. Stinson’s conduct. Comment 1 provides:

The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change

.

[¶3 3 ] Comment 2 to Rule 3.1 states:

The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop v ital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ position s. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument

on the merits of the action taken or to s upport the action taken by a good faith argument for an extension, modification or reversal of existing law

.14

[¶3 4 ] The Board found clear and convincing evidence that Mr. Stinson violated Rule 3.1(c). Mr. Stinson objects to the recommended Rule 3.1(c) fin dings on the grounds that they are unsupported by expert testimony or other clear and convincing evidence. We will address first Mr. Stinson’s argument that the Bar was required to present expert testimony on the charged violations, and then we will addre ss whether the record contains clear and convincing evidence that Mr. Stinson violated Rule 3.1(c).

1. Bar ’

s Lack of Expert Testimony to Support Rule 3.1(c) Violation

[¶3 5 ] Mr. Stinson contends that because the Bar presented no expert testimony on the

qu estion of whether he violated Rule 3.1(c), no violation of the rule can be found. In so arguing, Mr. Stinson relies on Painter v. Abels , 998 P.2d 931, 939 (Wyo. 2000), wherein this Court held that a finding of unprofessional conduct by a medical doctor wa s unsupported by substantial evidence because the finding was not supported by expert testimony. Mr. Stinson’s reliance on Painter is misplaced.

[¶3 6 ] In Painter , this Court rejected the finding of unprofessional conduct unsupported by expert testimony b ecause the record left us with essentially no evidence against which to evaluate the Board of Medicine's findings. We explained:

The Board found Dr. Painter’s participation in a patient case study using an EDS machine was unprofessional

conduct “contrar y to recognized standards of ethics of the medical profession” under the American Medical Association’s Code of Medical Ethics, supra , and thus a

violation of § 33

– 26

– 402(a)(xxvii) . The Code of Medical Ethics, supra , requires that participation in any such clinical study be part of a systematic program competently designed under accepted standards of scientific research to produce scientifically valid and significant data. The Board provided no expert testimony on this count. We addressed virtually the

same issue in Devous v. Wyoming State Board of Medical

Examiners , 845 P.2d 408, 418 (Wyo. 1993) , in regard to §

33

– 26

– 402(a)(xv), (xviii), and (xxvi) :

The crux of the iss ue is whether the record must include expert testimony with respect to [the pertinent] statutory grounds, or whether we must acknowledge and accept the expertise of the Board members in establishing standards that demonstrate infringement

of the statute... . If judicial review has any purpose, it must be exercised by objectively evaluating evidence15 in the record. There is no way that a judicial review could reach the subjective determination of standards by individual members of the Board.

Painter , 998 P.2d 939.

[¶3 7 ] Our subsequent decisions have emphasized that this holding does not mean that expert testimony is required to support all findings of a professional code of conduct violation. For example, in Billings v. Wyo

. Bd. of Outfitters and Prof ’ l Guide s , 2004 WY 42, ¶¶ 51

– 52, 88 P.3d 455, 474

– 75 (Wyo. 2004) ( Billings II ), we concluded that expert testimony was not required to prove the professional standard and a breach thereof where an outfitter willfully abandoned a client on a wilderness trail . We explained:

Neither the nature of the violation, nor the facts underlying it, involves subject matter “not within our knowledge” or requiring additional expert testimony. The state of the record is such that in reviewing the issue, we are not required mere ly to accept the Board’s subjective expertise for a standard that demonstrates infringement of the statute. Contrary to Billings’ argument, it does not appear that the Board’s use of the term “abandonment” was for purposes of establishing a

formal standard of care, but was the Board’s factual characterization of Billings’ actions.

Billings II , ¶ 52, 88 P.3d 475.

[¶3 8 ] Similarly, in Penny v. State ex rel. Wyo. Mental Health Professions Licensing Bd.

, 2005 WY 117, 120 P.3d 152 (Wyo. 2005), this Court held t hat expert testimony was not required to support findings that the license applicant violated the code of conduct applicable to social workers by practicing without a license and losing a client file. We

reasoned:

We are satisfied that expert testimony w as not required under

the particular circumstances now before this Court because,

as in Billings II , the nature of the alleged violations is “within our knowledge.” For instance, accepting the Board’s credibility determinations, the evidence is such that w e are left with little if any doubt that the appellant knowingly practiced without a license and knowingly represented himself as licensed when he was not. Further, the evidence fully supports the conclusion that the appellant engaged in practices clearly identified in Wyo. Stat. Ann. § 33

– 38

– 102(a)(v) as “clinical social work,” including diagnosis and16 counseling. And in the matter underlying the second complaint, he either lost a client’s file, evidencing gross incompetence, or he refused to produce it at the Board’s request, either of which was a licensing violation. Expert testimony was not required to establish these violations

.

Penny , ¶ 32, 120 P.3d at 170

- 71.

[¶3 9 ] In so holding in Penny , we distinguished findings that require expert testimony, explaining:

Clearly, this case is wholly unlike Billings I and

Devous. Here, rather than relying upon its members’ individual standards, the Board meticulously detailed in its order the applicable statutory and ad ministrative standards, including the ethical codes adopted therein. The problem

identified in Billings I and Devous is the impossibility of judicial review where the record does not reveal the identified standard of professional care against which a licen see’s conduct is to be measured. That problem does not exist here. Once the legislature and the administrative agency have fully identified the standard of care, it does not require expert testimony, at least in the present circumstances, to establish

that standard.

Penny , ¶ 31, 120 P.3d at 170.

[¶ 40 ] Rule 3.1(c) likewise presents a clearly identified standard. The question before us, under Rule 3.1(c), is whether, to the best of Mr. Stinson’s knowledge, information, and belief, his filings in the federa l proceedings were supported by fact and not interposed for an improper purpose such as to harass or publicly embarrass. This question requires that we review the filings signed by Mr. Stinson and compare his statements in those filings

with what he knew when he signed the filings. The record contains the evidence that will allow us to complete this comparison, and we are therefore not presented with questions that require us to use subjective or undefined standards to formulate an answer. The Bar

was th erefore not required to present expert testimony on the Rule 3.1(c) question. 1

1 In relying on this Court’s analysis in Billings II and Penny , we recognize that this Court is situated differently when ruling on an attorney disciplinary ma tter. The Board is not an administrative agency, and it is not governed by the Wyoming Administrative Procedure Act. Instead, the Board is an arm of this Court, and when ruling on an attorney disciplinary matter, we are not acting in an appellate capacit y but are instead acting on a recommended ruling, with the ultimate judgment being vested in this Court. Richard, ¶ 52, ___ P.3d ___. Nonetheless, we find the analysis in Billings II and Penny helpful, because, although this Court is the ultimate decisio n

- maker in these matters, we have made it clear that our17

[¶4 1 ] Having determined that expert testimony was not required to prove the Rule 3.1(c) violation, we turn next to the question of whether the record otherwise contains clear a nd convincing evidence that Mr. Stinson’s filings in the federal proceedings violated Rule 3.1(c).

2. Evidence in Support of Rule 3.1(c) Violation

[¶4 2 ] The Board found clear and convincing evidence that Mr. Stinson violated Rule 3.1(c) and recommended t he following conclusions of law:

4. An officer of the Court owes a duty of candor that precludes a “head in the sand” response to the evidence disclosed. While in many circumstances a lawyer may reasonably rely on what a client tells the lawyer, doing o nly

that was insufficient in this matter after the LRD evidence surfaced showing the client likely conspired with a witness to obstruct justice. Instead of further informing himself about the facts of his client’s case, Respondent assisted Schneider in

de laying production of evidence of relevant facts by filing a motion to quash the subpoenas. Respondent then stood by as Schneider not only failed to timely produce the financial records and emails requested in the subpoenas, but also disobeyed the Court’s order to produce all items requested in the Subpoena by February 3, 2012. As a result, when Respondent filed the Answer and Counterclaims in the Second Federal Case, he not only failed to take independent action to obtain and review Schneider’s records pu rsuant to his duty to conduct a reasonable inquiry, he knew that Schneider had failed to comply with legitimate discovery requests for that information and had disobeyed the Court’s order to produce that information by a date certain.

5. Respondent’s pur pose in asserting the

affirmative defenses and counterclaims in the Second Federal Case was not proper. Respondent asserted the defenses and
counterclaims not in an effort to advocate Schneider’s legitimate rights, but in furtherance of Schneider’s object ive

“ determination must be made upon the evidence that was presented to the Board at the hearing .” Bd. of Prof ’l Responsibility v. Davidson , 2009 WY 48, ¶ 8, 205 P.3d 1008, 1012 (Wyo. 2009). Using the Billings II and Penny analysis to determine the need for expert evidence helps to ensure that this Court’s ruling on a disciplinary matter is based on the evidentiary record and not on a subjective evaluation of a duty or standard of care.18 to publicly embarrass and humiliate Biles beyond the harm caused by the original defamatory mailing. Respondent did so not by pleading facts bearing on Biles’ public reputation as to his professional ability or supposed criminal act

— subjects

addressed in the fliers mailed

— but instead by seeking to publish and publicize previously confidential and private

information about Biles.

[¶4 3 ] Mr. Stinson’s first two arguments concerning the sufficiency of the evidence focus on the Board’s conclusions regardin g the motion to quash that he filed on behalf of the Schneiders. Specifically, Mr. Stinson argues that there is no evidence that he violated Rule 3.1(c) by assisting his client in delaying production of evidence by filing the motion to quash or by standin g by as his client failed to timely comply with the court’s order regarding the subpoena. We do not read the Board’s recommended conclusions as holding that Mr. Stinson’s filing of the motion to quash was in itself a violation of Rule 3.1(c). The Board’s comments regarding the subpoena appear instead to be directed to the Board’s conclusion that Mr. Stinson failed to investigate his client’s connection to the dissemination of the defamatory flyer

— suggesting that under the circumstances, Mr.

Stinson would have been better served by educating himself with the subpoenaed information rather than seeking to prevent its disclosure.

[¶4 4 ] Regardless of the intention behind the Board’s conclusions of law concerning the motion to quash, however, this Court agrees with Mr. Stinson that the record does not contain clear and convincing evidence that the motion to quash was filed for an improper purpose. Judge Johnson, who heard the motion to quash and ultimately denied the motion, testified in the Board hearing that while he did not find the motion well taken, he also did not find it frivolous. From our review of the record, we likewise find that the record does not contain clear and convincing evidence that Mr. Stinson assisted his client in delaying production of i nformation, or that he stood by while his client failed to timely comply with the subpoena.

[¶4 5 ] We do, however, find that the record contains clear and convincing evidence that Mr. Stinson made allegations in the Answer and Counterclaim that he filed an d signed on behalf the Schneiders for which he did not have a good faith basis. We further find that the record contains clear and convincing evidence that Mr. Stinson made allegations in the Answer and Counterclaim that were made for the improper purpose of publicly embarrassing the other party to the action, Dr. Biles. Both of these actions violated Rule 3.1(c).

[¶4 6 ] By the time Mr. Stinson filed the Answer and Counterclaim, he had the following

information:19

-- the self

- executing discovery of Dr. Biles , which included documentation that Dr. Schneider ordered and paid for the mailing labels that Ms. Fallon used in disseminating the defamatory flyer;

-- Ms. Fallon’s interrogatory responses in which she confirmed that Dr. Schneider had provided the mailing labels and also stated that Dr. Schneider had provided her with information concerning Dr. Biles and had encouraged her to send the flyer;

-- reports of Ms. Fallon’s deposition testimony, which reports included not only her testimony that she acted alone in disseminating the flyer, but also her testimony that the Schneiders paid the costs associated with creating and mailing the flyer;

-- the expressed concerns of Ms. Fallon’s attorney that Ms. Fallon was not being truthful in her testimony and discovery resp onses in which she took full responsibility for the flyer and that she was being coached by Dr. Schneider in responding to questions concerning her involvement;

-- Judge Johnson’s order denying the motion to quash in which he acknowledged Ms. Fallon’s depo sition testimony taking full responsibility for the flyer but still found that there was enough of a question concerning Dr. Schneider’s involvement to warrant the breadth of the subpoena; and

-- the LRDs and Dr. Schneider’s admission that he had created t he LRDs.

[¶4 7 ] We are particularly troubled by the LRDs. Neither the content nor the tone of the LRDs fits with Dr. Schneider’s explanation to Mr. Stinson that in preparing the documents, he was merely acting as Ms. Fallon’s scribe and providing her gene ral instruction on what to expect when she is deposed. The LR D s instructed Ms. Fallon on how to answer deposition questions and contained assurances that she would not be hurt if she adhered to the scripted answers as well as warnings regarding the jeopar dy that she would face if she deviated from the script and allowed Dr. Biles’ counsel to “turn her.” Despite having the LRDs and the other above

- described information that implicated Dr. Schneider in flyer scheme, Mr. Stinson signed and filed the Answer an d Counterclaim with inclusion of the following statements:

[¶ 38(a)] Plaintiff has taken the deposition of Lisa Shaurette

Fallon in the related case of Biles v. Fallon. Ms. Fallon has testified that she, and she alone, created the flier of which

Plaintif f complains is defamatory. Thus, Plaintiff has obtained testimony under oath that contradicts and dispels the allegations contained in Plaintiff ’ s complaint. As a result, the allegations contained within the complaint are known to be untrue by Plaintiff and are not made in good faith. Rather, such allegations are made as part of long

- standing animosity

Plaintiff has for John Schneider. [¶ 54] Biles knew that his complaint was false and, despite such knowledge, recklessly published the complaint by filing the same in a public docket.20

[¶4 8 ] Given the LRDs and the other information available to Mr. Stinson when he prepared the Answer and Counterclaim, he had to know, at the very least, that questions remained concerning his client’s connection to the dissem ination of the defamatory flyer. We therefore find the evidence clear and convincing that Mr. Stinson did not have a good faith basis for including Paragraphs 38(a) and 54 in the Answer and Counterclaim.

[¶4 9 ] We turn then to statements contained in the Answer and Counterclaim that we find were made for the improper purpose of embarrassing Dr. Biles. In this regard, we are most concerned with Paragraph 43(b), which was included as an affirmative defense and

states:

Plaintiff is himself responsible for negative public

perceptions regarding him and his personality because

Plaintiff is known to and/or has: often consumed alcohol while driving; consumed alcohol while driving with employees while engaged in the course and scope of business;

allows or has al lowed his wife

– a non

- medically trained

individual

– to provide point of contact care for his patients (and may bill Medicare, Medicaid and/or insurance companies for these services); engaged in medical decision

making while under the influence of alcohol ; bad

- mouths other physicians and medical personnel; engages in subversive conduct toward other physicians; creates conflict with his employees and the employees of other physicians; waived a gun around his office and pointed that gun at an employee and co mmanded that the employee “dance”; fails to pay people who provide goods and services at the ranch owned by Plaintiff ( o r a company he controls); has failed to uphold or fulfill contractual obligations and commitments to parties connected to ranch activiti es and/or business ventures and other acts which create and foster the bad reputation he

created for himself.

[¶ 50 ] Mr. Stinson contends that this paragraph was included in the Answer and

Counterclaim not to cause embarrassment but rather to ensure that t he pleading complied with the specificity required in federal pleadings by the Iqbal

- Twombly standard. The Iqbal

- Twombly standard requires as follows:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, t o “state a claim to relief that is plausible on its face.” Id ., at 570, 127

S.Ct. 1955. A claim has facial plausibility when the plaintiff21 pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged. Id. , at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id ., at 557, 127 S.Ct.

1955 (brackets omitted)

.

Ashcro ft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

[¶5 1 ] We will assume for purposes of our analysis here that the Iqbal

- Twombly standard extends to the pleading of an affirm ative defense, although that is less than certain. See

, 5 Charles Alan Wright and Arthur R.. Miller, Fed. Prac. & Proc. Civ. § 1274 (3d ed.) (Supp. 2014) (courts are divided on whether Iqbal

- Twombly standard extends to pleading of affirmative defenses); M alibu Media, LLC v. Ryder , 2013 WL 4757266 * 2 (Tenth

Circuit has not addressed whether Iqbal

- Twombly standard extends to pleading of affirmative defenses). Even assuming the requirement of enhanced detail and specificity required by the Iqbal

- Twombly sta ndard applied to the pleading of Dr. Schneider’s affirmative defenses, this Court is not persuaded that compliance with that standard was the motivation behind Paragraph 43(b) of the Answer and Counterclaim. The record instead persuades us that the paragr aph was included for the purpose of embarrassing Dr.

Biles.

[¶5 2 ] We reach this conclusion and our agreement with the Board’s recommended finding for a number of reasons. First, while Paragraph 43(b) contains significant detail concerning alleged bad beh avior by Dr. Biles, it contains no detail as to how the referenced acts are alleged to be a matter of public knowledge. This is in contrast to the allegations in Paragraph 43(a), relating to Dr. Biles’ DWUI arrest, wherein the affirmative defense specifie d how the DWUI arrest was allegedly a matter of public record: “Park County, Wyoming uses a public booking system that displays photographs and charges of people arrested.” If insulating the affirmative defense from a motion to strike were truly what moti vated the detail in Paragraph 43(b), we would expect the defense to identify how the acts are publicly known, rather than just listing alleged bad acts, most of which were wholly unrelated to the acts alleged in the defamatory flyer.

[¶5 3 ] We are further persuaded that the improper purpose of embarrassing Dr. Biles motivated the pleading because of the press release that accompanied the filing of the Answer and Counterclaim. The Answer and Counterclaim was filed on February 21,22

2012. Mr. Stinson’s billin g records on the Schneider matter show that also on February 21, 2012, he spoke with Kim Sapone, an employee of Acclaim, LLP Public Relations, regarding the Answer and Counterclaim. On February 22, 2012, Ms. Sapone sent a press

release to the Cody Enterpr ise and the Billings Gazette , which stated:

Local Surgeon’s Response to Libel Allegations Cody, WY

– Dr. John H. Schneider, Neurosurgeon, filed in federal court on Tuesday in response to recent allegations of defamation of character by orthopedic surgeon, Dr. Jimmie Biles. Dr. Schneider’s response not only addresses the suit brought on by Dr. Biles but will carry with it a countersuit on

behalf of Dr. John H. Schneider as well as a suit on behalf of the People of Wyoming. Court filings hold sworn testimon y that proves Dr. Schneider had no involvement in the negative flyer distributed last

December about Dr. Biles. The individual named in disseminating the flyer testified that she, and she alone, created the flyer. Court records also indicate that Dr. Bil es has a long history of erratic, alcohol and substance abuse related behavior that has left many, including patients, the general public and Dr. Schneider, feeling victimized. “It’s a shame it had to come to this,” said Dr. Schneider. “Dr.

Biles has some personal demons to overcome, and I feel sorry for him. It’s sad to see a man lash out at others in a desperate attempt to salvage a career that is crumbling around him. I hope he is able to get healthy and in control again someday.” Attorney for Dr. Sch neider, Laurence Stinson of Bonner Stinson Law Firm, feels the suit brought on by Dr. Biles is another attempt to cause harm to Dr. Schneider “as a result of long

- standing animosity and jealousy toward Dr. Schneider, his former friend, who refused to finan ce a ranch operation owned by Dr. Biles.” Dr. Schneider continued “We look forward to getting this over with so we can get back to our purpose

– helping our patients and our community.” Dr. Schneider stated that he has tried to take the higher ground in h is dealings with Dr. Biles over the last several years, but “my personal integrity and my professional career demand that I not stand idly by any longer.”

[¶5 4 ] In the hearing before the Board, Mr. Stinson denied that he approved this press

release or tha t he provided a quote to Ms. Sapone. Mr. Stinson confirmed that he had talked to Ms. Sapone and testified that he believed he had talked to her more than once,23

stating, “Partly I was trying to get them to quit doing this.” This testimony does not change our view of the manner in which the affirmative defenses were pled. Mr. Stinson testified that he knew of his client’s animosity toward Dr. Biles. Indeed, Dr. Schneider made his intentions clear early in the federal proceedings when Ms. Fallon’s attorney informed both Mr. Stinson and Dr. Schneider, by e

- mail, that Dr. Biles’ counsel was going to argue that Dr. Schneider was Ms. Fallon’s co

- conspirator in disseminating the defamatory flyer. Dr. Schneider responded, with a copy to Mr. Stinson, “I am well a ware of the tact and Laurence is mounting a devastating counter suit against Biles.” Mr. Stinson knew of his client’s animosity, knew his client wanted to deal a devastating blow to Dr. Biles, and knew his client was working on a press release. Under the se circumstances, the utmost care should have been taken in preparing the Answer and Counterclaim to ensure its compliance with Rule 3.1(c). The pleading was not so prepared and was instead crafted to serve the improper purposes of Dr. Schneider. The

rec ord contains clear and convincing evidence that the pleading violated Rule 3.1(c).

B. Limitation on Expert Testimony

[¶5 5 ] We addressed earlier in this opinion the reasons that the Bar was not required to present expert testimony to prove the rule violat ions at issue in this matter. We now turn to the related question of whether the Board erred in limiting the expert testimony that Mr. Stinson sought to introduce.

[¶5 6 ] Our first task in ruling on this question is to determine the standard to be used in reviewing the Board’s evidentiary rulings. Typically, we review a trial court’s ruling on the admissibility of expert evidence for an abuse of discretion. Craft v. State , 2013 WY 41, ¶ 28, 298 P.3d 825, 833 (Wyo. 2013). As noted earlier, however, this Court sits in a unique posture in ruling on attorney disciplinary matters. We have described the division

of functions between this Court and the Board as follows:

In Meyer v. Norman , 780 P.2d 283, 286

– 288 (Wyo. 1989) , we described the structural relations hip between the Wyoming Supreme Court and the Wyoming State Bar, but we did not detail the procedure that this Court follows in reviewing and acting upon a disciplinary recommendation of the Board. Although the case arose under earlier versions of

the Rule s of Professional Conduct and the Disciplinary Code, the procedural holdings of Mendicino v. Whitchurch , 565 P.2d 460, 465

– 66, 475 (Wyo. 1977) remain valid; that is, the Board is an arm of this Court whose purpose is to investigate allegations of professional misconduct and to report its findings and recommendations to the Court, which is the

ultimate decision

- maker in attorney disciplinary matters. Sections 21(c)(iii) and (iv) of the current Disciplinary Code24 make it clear that the Court’s determination of ap propriate discipline is its own, but that the determination must be made upon the evidence that was presented to the Board at the hearing. That process has been described as: “All attorney discipline cases require a two step analysis. First, the Court

must determine whether the record supports the findings and recommendations, then it must independently determine the sanctions warranted by the facts of the case.” Idaho State Bar
v. Souza , 142 Idaho 502, 129 P.3d 1251, 1254 (2006)

.

Davidson , ¶ 8, 205 P.3d at 1012.

[¶5 7 ] In other words, the Disciplinary Code has structured disciplinary proceedings so it is the Board that hears evidence in the first instance and compiles the record. As part of that division of duties, the Disciplinary Code authorizes the B oard, through either a disciplinary judge or the Board chair, to rule on evidentiary matters in accordance with the Wyoming Rules of Evidence. See Disciplinary Code §§ 8(g)(vi), 9(b)(iii), 19(b). In performing this function, the Board is called upon to exercise the same discretion that a trial court exercises in ruling on the admissibility of evidence. Given the structure of our attorney disciplinary proceedings, the division of functions between this Court and the Board, and the discretion the Board mu st necessarily use in ruling on the admissibility of evidence, we see no reason to deviate from our abuse of discretion standard of review. We will thus review the Board’s limitation on Mr. Stinson’s proffered expert testimony using our abuse of discretio n standard of review and will find an abuse of discretion only

if the Board could not have reasonably concluded as it did in limiting the testimony of Mr. Stinson’s designated experts. See Stalcup v. State , 2013 WY 114, ¶ 18, 311 P.3d 104, 110 (Wyo. 2013) (“ A trial court abuses its discretion when it could not have reasonably concluded as it did .”). 2

[¶5 8 ] W.R.E. 702 governs the admissibility of expert testimony and provides that such

evidence is admissible if it “will assist the trier of fact to understa nd the evidence or to determine a fact in issue.” W.R.E. 702 (LexisNexis 2014). The Board permitted Mr. Stinson’s experts to testify subject to the following limitation:

2 We will not ad dress the limitations the Board placed on expert testimony concerning the charged Rule 3.3 violations because the Board found no violation of Rule 3.3 and therefore those charges and the evidentiary rulings related thereto are not before the Court. We lik ewise will not discuss the limitations placed on Judge Johnson’s testimony. Judge Johnson’s proposed opinion regarding Rule 3.1(c) addressed only the filing of the subpoena, and we have already concluded that the filing of the subpoena did not

violate Rul e 3.1(c). Our discussion of the limitations on expert testimony will therefore be confined to the limitations on the opinions of Judge Freudenthal and Richard Honaker concerning the Rule 3.1(c)

violations.25 Neither Mr. Honaker, Judge Freudenthal, nor Judge Johnson may testify as to whether or not any actions or inactions by the Respondent were or were not ethical; were or were not in compliance with any Rule of Professional Conduct; or whether or not any specific state of mind of the Respondent or any other attorney would or would not const itute a

violation of the Rules of Professional Conduct.

[¶5 9 ] Mr. Stinson designated Judge Freudenthal as an expert witness who would testify in keeping with the opinions stated in her expert affidavit. Concerning the charged violations of Rule 3.1(c), J udge Freudenthal offered the following opinions:

8. I also do not believe that Mr. Stinson violated Rule 3.1(c) of the Wyoming Rules of Professional Conduct by using the Fallon deposition testimony as he understood it to be to vigorously defend Dr. Schne ider.

9. In regard to the aspect of the charge against Mr.

Stinson that he should not have included the detailed allegations directed at Dr. Biles in his Answer and Counterclaim, current federal law requires more than conclusory facts to be included in a Counterclaim to avoid

dismissal under the Iqbal/Twombly line of cases.

[¶ 60 ] Judge Freudenthal was permitted to provide testimony consistent with the opinion offered in Paragraph 9 of her affidavit, so that portion of her proffered testimony is not at

is sue. With respect to the opinion offered in Paragraph 8 of the affidavit, the Board adhered to its exclusion of any opinion as to whether the Answer and Counterclaim violated a rule of conduct, but Judge Freudenthal was permitted to testify:

Q. Okay. D id you ever believe that Mr. Stinson’s use of the admissions in the Lisa Fallon deposition in his defense of the Schneiders was improper in any way? And I

don ’ t mean to ask that in regard to any ethical obligations.

A. I wasn’t surprised by his use of th ose. I didn’t consider it improper

– Q. Okay.

A.

-- in terms of what to expect in the course of that case. I expected that fight.

[¶6 1 ] The record shows that the Board took a similar approach in limiting Richard

Honaker ’ s testimony. Mr. Stinson desig nated Mr. Honaker to provide the following opinions concerning the charged Rule 3.1(c) violations:26 b. Mr. Stinson did not violate Rule 3.1(c) of the Wyoming Rules of Professional Conduct by relying upon the Fallon deposition testimony to defend Dr. Schne ider and to
assert a counterclaim on Dr. Schneider’s behalf in Biles v.

Schneider , United States District Court, District of Wyoming,

Civil No. 11

- CV

- 366

- F.

* * * (10) Nothing changed in the case for Mr. Bonner and

Mr. Stinson between late November 2011 and the afternoon of April 23, 2012, when Mr. Bonner and Mr. Stinson received documents (not the “laundry room documents”) from Plaintiff’s counsel that proved to them, for the first time, that their client had lied to them and in fact had attempted to

man ipulate the legal process through a fraudulent delay of the Fallon deposition. At that point they made the decision to withdraw from any further representation of Dr. Schneider. (11) Because the Rules did not require Mr. Bonner

and Mr. Stinson to withdra w earlier than April 23, 2012, they owed their client, Dr. Schneider, prior to that date, an ethical duty to represent him competently and effectively, abiding by his decisions concerning the objectives of representation. It

would have violated that ethic al duty, and, in addition, likely would have constituted legal malpractice, for Mr. Bonner and Mr. Stinson to ignore the single piece of sworn testimony that

existed

– the deposition of Lisa Fallon

– and to fail to use that sworn testimony to their client’ s advantage. (12) Mr. Bonner and Mr. Stinson were acting as advocates for a client within the adversary system. “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” ( Wyoming Rules of Professional Co nduct , Preamble: a Lawyer’s Responsibilities, [2]). The adversary system only works when each party has independent counsel and is well represented, and an independent, fair, and impartial tribunal decides the issues of

fact and law. As advocates for the ir client, it was not Mr. Bonner’s or Mr. Stinson’s role to weigh the evidence and to adjudicate whether or not Ms. Fallon had committed perjury in her deposition or whether Dr. Schneider, despite his protestations to the contrary, had suborned such perjur y. The

final result of these cases

– settlement of both cases well before trial settings

– bears out that the adversary system worked well, with each participant representing his or her27 client effectively, and that justice was done. Mr. Bonner and

Mr. St inson played their roles appropriately, with careful and prudent deliberation, and nothing they did resulted in any fraud upon the judicial system or miscarriage of justice. Rather than being prejudiced, it appears likely that the

Plaintiff benefitted fro m the way the process played itself out. As more facts gradually came to light, the Plaintiff’s cases became stronger, and voluntary settlements occurred. (13) With regard to the aspect of the charge against

Mr. Stinson that he should not have included such detailed allegations in his Answer and Counterclaim, the Bar admits that Mr. Stinson had a factual basis for those allegations. The Bar alleges that such detail was not necessary and was done only for “purposes of harassment and embarrassment” (Form al Charge, ¶ 77). Current federal law, however, requires detailed pleadings to avoid dismissal. See Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007) and Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937 (2009). Wyoming’s state courts are moving in the same direction. See, for example, Rule 3 of the Wyoming Rules of Civil Procedure for

Circuit Courts . The Answer and Counterclaim complied with current federal standards of pleading, demonstrating Mr. Stinson’s competence under Rule 1.1, Wyoming Rules of Professional Conduct , to represent a client in the United

States District Court.

[¶6 2 ] The hearing transcript shows that Mr. Honaker was permitted to and did testify to

all of the above

- designated opinions, subject only to the limitation that he not testi fy as to whether Mr. Stinson violated Rule 3.1(c). In particular, Mr. Honaker was permitted to testify: that an attorney “must presume the client’s being honest until proven otherwise;” that there was nothing inappropriate in the manner that Mr. Stinson p led the Answer and Counterclaim; that “the pleading was, with specificity, required by the legal precedent;” and that the detail in the pleading was “a positive thing” because it put the plaintiff on notice as to where the defendant would be coming from. Mr. Honaker was also permitted to testify:

Q. Was Laurence Stinson in any way obligated to

determine the reliabilities of the Fallon testimony before using it in his client’s defense?

A. Well, he had a responsibility as a lawyer, if he

knew it was false

– you know, a lawyer cannot present false evidence to a court. That would be a terrible thing to do. So unless he knew it was false, it was something that he owed a28 responsibility to his client to present. It was evidence that

– apparently it was favor able to his client. I think that if he reasonably believed that it was false, it still would have been proper to present it. Q. Do you believe that he would have been obligated to use it only if he knew it was true?

A. No, to the contrary. I think a la wyer is obligated to use evidence that’s favorable to their client unless they know it’s false.

[¶6 3 ] Essentially, Mr. Stinson was permitted to present the designated opinion testimony of Judge Freudenthal and Mr. Honaker almost in its entirety, with the only limitation being that neither witness was permitted provide an opinion on the ultimate question of whether Mr. Stinson violated Rule 3.1(c). We find no abuse of discretion in the Board’s ruling.

[¶6 4 ] This Court has held that a trier of fact does no t abuse its discretion when it excludes expert testimony on a question of law. Ruby Drilling Co., Inc. v. Duncan Oil
Co., Inc. , 2002 WY 85, ¶ 22, 47 P.3d 964, 971 (Wyo. 2002) (“ Contract construction is a question of law and solely within the court’s provi nce .”). In Ruby Drilling , we explained the distinction between expert testimony that may be excluded as encroaching on a question of law and that which should not be excluded:

Ruby relies on Samson Resources Company v. Quarles Drilling Company , 783 P.2d 974 , 977 (Okla.Ct.App.1989)

. The Samson Resources case involved a drilling contract with an explicit modification clause governing conditions which would trigger a change from a footage to a day work contract.

The Samson Resources trial court excluded expert testimony on the industry custom and usage regarding notice of such a change intended to apprise the contracting parties of a modification of the contract from footage to day work. The

Samson Resources appellate court found the industry

evidence was relev ant to proper construction of the contract. We agree with this result and point out the trial court in the appeal before us permitted testimony regarding industry custom and usage. However, the Samson Resources case does not support Ruby’s position that it s expert should have been permitted to testify as to the proper contract construction or which party he believed was obligated to ensure inclusion of specific clauses in the contract. Here, the trial court was absolutely correct and fully within its broad discretion when it precluded the attempt to have Ruby’s expert witness construe29 the contract. Contract construction is a question of law and solely within the court’s province

.

Ruby Drilling , ¶ 22, 47 P.3d at 971.

[¶6 5 ] The Board’s ruling on Mr. Stinson’ s proffered expert testimony tracked this approach. The Board allowed expert testimony on considerations that Mr. Stinson argued justified the manner in which he pled the allegations in the Answer and Counterclaim, including the legal requirements governi ng federal pleadings and a lawyer’s obligations to a client. This testimony, by addressing the context of the pleadings, was directed at assisting the trier of fact in understanding the evidence or determining a fact in issue

— the reasons Mr. Stinson pled the Answer and Counterclaim as he did. The expert opinions on whether Mr. Stinson violated Rule 3.1(c), on the other hand, are not opinions that assist the trier of fact in understanding the evidence or determining a fact in issue. They instead

offer a l egal conclusion, which is the province of the Board and this Court.

[¶6 6 ] Answering the question of whether Mr. Stinson’s conduct violated Rule 3.1(c) is properly left to the Board and ultimately this Court. As we discussed earlier, Rule 3.1(c)

is not a rule of professional conduct that requires definition or clarification by expert testimony because the rule sets forth an objective standard that the Board and this Court are able to apply to the facts in evidence. Importantly, our decision whether there has

been a violation of the Rules of Professional Conduct must be based on the entire evidentiary record. See Richard , ¶ 2, ___ P.3d ___, n.1 (emphasizing that this Court’s decision is based on “an independent review of the entire record”); Davidson , ¶ 8, 205 P.3d at 1012 (this Court’s “ determination must be made upon the evidence that was

presen ted to the Board at the hearing”). This highlights the deficiency in an expert opinion on the ultimate conclusion of law. In most cases, and certainly in this ca se, the expert opinions are based not on the entire evidentiary record before the Board but rather

on a narrow subset of the evidence. 3 While opinions concerning factors that must be considered in preparing competent pleadings may assist the trier of fact , in this case, a

3 That the expert opinions offered in this matte r were based on less than the entire record on which this Court must base its ultimate conclusions was clear from the expert testimony. For example, Judge Freudenthal testified that she ruled only on the particular motions that were brought before her and that she was not asked to do any further examination of other matters. Mr. Honaker testified to reviewing a broader base of documents, many described in only general terms, such as “ e

- mails produced by [Ms.

Fallon ’ s attorney], ” and “ e

- mails produced by M r. Stinson. ” It was nonetheless clear from his testimony

that the documents reviewed did not include the entire record that was before the Board or this Court. For example, the press release issued by Dr. Schneider ’ s public relations firm was neither ide ntified as a document that Mr. Honaker reviewed nor discussed in his analysis of Mr. Stinson ’ s pleadings. Finally, the experts were not present for the hearing testimony of any of the witnesses, including Mr. Stinson ’ s testimony, and that testimony theref ore was not factored into their opinions regarding whether Mr. Stinson violated a rule of professional conduct.30

legal conclusion based on less than the entire evidentiary record is not helpful. The Board thus did not abuse its discretion in limiting the expert testimony.

C. Determination of Appropriate Sanction

[¶6 7 ] In determining the appropria te sanction for an attorney’s rule violation, this Court is guided by the American Bar Association’s Standards for Imposing Lawyer Discipline (ABA Standards). See Richard , ¶ 70 ___ P.3d ___; Casper , ¶ 25, 318 P.3d at 797

- 801.

The Board identified the fol lowing applicable standards in its Report and Recommendation for Public Reprimand:

3. 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 potential or actual injury caused by the lawyer’s misconduct; and

(d) the existence of aggravating or mitigating factors.

The First Factor: The Duty Violated

4. Violations of Rule 3.1(c) fall within the

Standard 6.2 , “Abuse of the Legal Proc ess.”

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 expedite litigation or bring a meritorious claim, or failure to o bey any obligation under the rules of the tribunal except for an open refusal based on an assertion that no valid obligation exists:

6.21 Disbarment is generally appropriate when a lawyer knowingly violates 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.

6.22 Suspension is generally appropriate when a lawyer

knows that he or she is violating a court order or rule, and31 causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.

6.23 Reprimand [i.e., “public censure” under Section 4(a)(iii) of Wyoming’s Disciplinar y 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.

6.24 Admoniti on [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 rule, and causes little or no actual or potential injur y to a party, or causes little or no actual or potential interference with a legal proceeding.

The Second Factor: The Lawyer’s Mental State

5. The preamble to the ABA Standards includes the following discussion regarding mental state:

The mental states u sed in this model are defined as follows. The most culpable mental state is that of intent, when the lawyer acts with the conscious objective or purpose to accomplish a particular result. The next most culpable mental state is that of knowledge, when the l awyer acts with

conscious awareness of the nature or attendant circumstances of his or her conduct both without the conscious objective or purpose to accomplish a particular result. The least culpable mental state is negligence, when a lawyer fails to be a ware 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.

* * * The Third Factor: The Potential Or Actual Injury Caused

By The Lawyer ’s Misconduct

7. 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 r eference to ‘injury’ alone indicates any level of32 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 misc onduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer’s misconduct.”

* * * The Fourth Factor: The Existence Of Aggravating Or

Mitigating Factors

ABA Standard 9.0, entitled “Aggravation and Mitigation,”

p rovides as follows:

9.1 Generally

After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose.

9.2 Aggravation

9.21 Definition

. Aggravation or aggravating circumstances

are any con siderations or factors that may justify an increase in the degree of discipline to be imposed.

9.22 Factors which may be considered in aggravation

. Aggravating factors include:

(a) prior disciplinary offenses;

(b) dishonest or selfish motive;

(c) a pat tern 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 deceptiv e practices during the disciplinary process;

(g) refusal to acknowledge wrongful nature of conduct;

(h) vulnerability of the victim;

(i) substantial experience in the practice of law;33 (j) indifference in making restitution; and

(k) illegal conduct, in cluding that involving the use of

controlled substances.

9.3 Mitigation

9.31 Definition

. Mitigation or mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.

9.32 Factors which may be considered in mitigation

.
Mitigating factors include:

(a) absence of a prior disciplinary record;

(b) absence of a dishonest or selfish motive;

(c) personal or emotional problems;

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

co nsequences of misconduct;

(e) full and free disclosure of 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 d ependency including alcoholism or drug abuse when:

(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;

(2) the chemical dependency or mental disability caused the misconduct;

(3) the 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.34 (j) delay in discipl inary proceedings;

(k) imposition of other penalties or sanctions;

(l) remorse; and

(m) remoteness of prior offenses.

9.4 Factors Which Are Neither Aggravating nor Mitigating.

The following factors should not be considered as either aggravating or miti gating:

(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 prior to completion of disciplinary proceedings;

(e) complainant’ s recommendation as to sanction; and

(f) failure of injured client to complain.

[¶6 8 ] The Board recommended that this Court issue a public censure as the appropriate discipline in response to Mr. Stinson’s rule violations. Mr. Stinson contends that if t he Court does find a rule violation, then a private reprimand is the proper level discipline. The Bar counters that the Court should consider imposing a disciplinary suspension instead of the recommended public censure. Based on our consideration of the four factors set forth above, we agree with the Board’s recommended sanction and conclude that a public censure is the appropriate level of discipline.

[¶6 9 ] In considering the first two factors, the duty violated and the lawyer’s mental state, our goal i s to determine whether Mr. Stinson’s rule violation was committed negligently or knowingly. If the violation was committed knowingly, that weighs in favor of a suspension, whereas a negligent violation would weigh in favor of a public censure or private r eprimand. Mr. Stinson testified as to his mental state regarding the Answer and Counterclaim and the press release that immediately followed the filing:

Q. Weren’t you concerned, when you filed your answer and counterclaim and your client used this pres s release, that the purpose of the answer and counterclaims35 were just to smear Dr. Biles in every way possible, and to do

that in the media?

A. I was concerned that Dr. Schneider had thought some things were going on with Dr. Biles we weren’t able to

veri fy, so we didn’t file counterclaims on those. With regard to the other information, I thought we had good investigative sources for that. And as Becky mentioned in her openings, we did all those investigations. Did I think my client was angry at Dr. Bil es, yes. And I thought Dr. Biles was angry at my client. Q. Did you think he was using you and your law enforcement license to put things in the court files so he could issue press releases to defame Dr. Biles further?

A. Now or then? Q. When these art icles came out.

A. No, I didn’t think that then. I was too busy doing other things. Now I think it, and I wish he wouldn't have issued press releases. I don’t like it when clients do things like that.

[¶ 70 ] During the sanctions portion of the hearing before the Board, Mr. Stinson further explained:

Q. (BY BOARD MEMBER ARNEY) * * * Do

you feel that the kind of personality Dr. Schneider was, if not overwhelmed, that you were pushed, maybe, beyond your good senses? Did you feel

– and that happens to a ll of us, I realize. But did you feel pressure from him, maybe, to do things that, upon reflection, you wouldn’t do again?

A. Oh, yeah. And you know the funny thing is, Mr. Arney, is [Dr. Biles’ attorney] Dan Fleck was kind of trying to tell everybody t his, but we were

– we had such our

– you know, our adversary hats on. And litigation with The Spence Firm is tough. You ’ ve done that, and it seemed like a game. We thought we were being tricked. He kept saying like, man, you guys got to look at this, a nd we on our side

were like what ’ s this guy talking about? And I did feel that

way. * * * I felt conned by Dr. Schneider, but I also felt like I let myself be conned.36

[¶7 1 ] While Mr. Stinson arguably should have known that the allegations in the Answer and Counterclaim were not grounded in a good faith factual basis and that they were being made for an improper purpose, we accept his explanation that he did not knowingly violate Rule 3.1(c) and was instead improperly influenced by his client. For this reason, we reject the Bar’s suggestion that a suspension is the appropriate level of discipline, and we turn to the final two factors to determine whether they weigh in favor of a public censure or private reprimand.

[¶7 2 ] The third factor is the potentia l or actual injury caused by the misconduct. Mr. Stinson acknowledged in his testimony that the filing of the Answer and Counterclaim received widespread coverage in newsprint:

Q. This press release went out on February 22nd, the next day after your fil ing of the answer and counterclaim?

A. Yes.

* * * Q. It goes to the Cody Enterprise, which some people don’t read. It goes to

– A. I’m going to go with most of Cody, but . . . Q.

-- the Billings Gazette. The Powell Tribune got their hands on it. You know that because they wrote an article, right?

A. Well, I think Cody wrote

– I think everybody wrote an article. I mean, at some point Casper Star

- Tribune wrote an article, everything said in court was being reprinted. Q. Yeah.

A. The Cody Enter prise, they’re always a day behind everybody else, and the Gazette. There were articles flying. I mean, it was number one news story for a while in Cody.

[¶7 3 ] Counsel for Dr. Biles testified concerning the impact that the Answer and

Counterclaim and it s publication had on Dr. Biles:

Q. What impact did this strategic approach of the counterclaims have on your client?

A. Well, it devastated him. He was

– he was horribly embarrassed that he had a DUI to begin with. It was a low point for him, obviousl y. Then to have it brought to light was something he expected, because it was in the public. But everything that came as a result of what they did to him was certainly a horrific thing that he had happen in his life. But then to have, when he trying to vindicate himself by37 filing the defamation lawsuit and by exercising his rights to access the courts, then to be castigated again for simply filing that lawsuit, being called a drunk in press, saying that he has problems, saying that he needs help, those a re all things that were, you know, a further insult to him, at the very time when he was trying to

– rectify things.

[¶7 4 ] The Answer and Counterclaim was intended, at least by Mr. Stinson’s client, to be used as a source for a press release and further d issemination of the allegations against Dr. Biles. This improper use, which Mr. Stinson made possible, caused harm to Dr. Biles, and this harm weighs in favor of a public censure.

[¶7 5 ] The final factor we must consider is the existence of mitigating or aggravating circumstances. The Board found two mitigating factors, and from our review of the record we agree with the finding:

10. The Board finds the following mitigating factors: (1) absence of a prior disciplinary record and (2) good reputation as a competent attorney. Respondent called as witnesses at the hearing before the Board Judge Alan Johnson and Judge Nancy Freudenthal, the two federal judges who presided over the Federal Case [Biles v. Fallon] and the Second Federal Case [Biles v. Schneider ]. It was evident to the Board from their willingness to appear and from their testimony that both judges considered Respondent to be a competent attorney of good reputation.

[¶7 6 ] The Board also found two aggravating factors: 1) Mr. Stinson’s substantia l experience, eighteen years, in the practice of law; and 2) his refusal to acknowledge the wrongful nature of his conduct. Mr. Stinson contests the second aggravating factor identified by the Board, contending that the only evidence the Board could be re lying on for this finding is Mr. Stinson’s insistence on a hearing on the Formal Charge. We disagree.

[¶7 7 ] During the sanctions portion of the hearing before the Board, Mr. Stinson appeared to acknowledge the wrongful nature of his conduct, but then mom ents later, he retracted that acknowledgement and maintained that his manner of pleading the Answer and Counterclaim was proper. When asked by his counsel to discuss with the Board what he believed to be mitigating factors, Mr. Stinson testified, in part:

A. * * * I did not think you were going to find

– find me culpable on the 3.3(b), but I did think so on the 3.1(c). And I thought so because as this proceeding has38 progressed

– and I regret that. I didn ’ t like it. And if I had to go back and do it ag ain, that wouldn’t be the pleading that I drafted. And I have learned a lot from it. So I acknowledge that, and that’s kind of what I thought was going to come

back. There’s obviously a lot of things in this particular

circumstance I wouldn’t have

– wou ld do differently, but one of them is better written communication with my own client. So I acknowledge that’s a problem. And I didn’t like that pleading. And that’s not going to be the way it happens in the

future. * * *

* * * Q. (BY VICE CHAIRMAN B LUEMEL): * * * So you’ve said here that, yeah, there’s some things in the pleading that I ’ m not pleased with and I wouldn’t do it again.

A. Yes. Q. What does that

– what are you not pleased

with?

A. So I don’t

– I think you could have found either

way o n it, okay? I mean, I think I

– you know, I met legal pleading standards to do it. But when I look back on this case with hindsight, I don ’ t like how that pleading was

– it played like [Special Bar Counsel] was saying it played. I mean, that

wasn ’ t the intent of it. But when you look at it, it was like, wow, these allegations look like these two high school kids fighting over it. And I think I could have found some other way to do that. I’m not sure how, but I think I could have found some other way. Q. When did you realize it?

A. Kind of had that whole prophecy as it was going on here and we were talking about it and Dan Fleck was talking about it. I’m not trying to be duplicitous with you. I think you could have found I did just fine. I think I met legal proceeding standards. I think I had factual grounds to do it, but just realize I’d do it differently.

[¶7 8 ] Having considered all four factors

— the duty violated, Mr. Stinson’s mental state, the harm caused by the violation, and the aggravating and mitigating circumstances

— we agree with the Board that the appropriate sanction for the violation is a public reprimand.

D. Recommended Order Assessing Costs39

[¶7 9 ] As part of its recommendation, the Board recommended that the Court enter an

order reim

bursing the Bar for costs incurred in this matter in the amount of $15,613.76, as supported by the Bar’s Affidavit of Costs and Expenses. Mr. Stinson objects to the assessment of costs on the grounds that 1) the recommendation did not allow him an
opportu nity to respond to the Bar’s affidavit of costs; 2) the recommendation failed to separate costs between the Rule 3.3 and Rule 3.1 charges; and 3) the recommendation failed to consider whether the Bar’s costs were reasonable. We reject Mr. Stinson’s object ion and accept the Board’s recommendation.

1. Opportunity to Respond to Affidavit of Costs

[¶ 80 ] This Court has ruled that before costs may be assessed against an attorney in a disciplinary proceeding, that attorney must be given notice of the Bar’s inte ntion to seek

those costs.

Fundamental fairness demands that sufficient notice of

charges and their consequences must be provided to enable the Respondent to make meaningful choices with the respect to the need for, and the manner of, his defense without being subjected to any element of surprise. Mo rgan v. United

States , 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938) ; White

, 648 P.2d 528.

Meyer v. Norman , 780 P.2d 283, 290 (Wyo. 1989).

[¶8 1 ] The Formal Charge the Bar filed against Mr. Stinson provided him with the notice required by Meyer . The Formal Charge included a request in the prayer for relief that Mr. Stinson be required to reimburse the Bar for all costs and expenses of prosecuting the matter and for the disciplinary proceeding. The prayer for relief was then followed by this notice regarding the costs:

NOTICE IS HEREBY GIVEN tha t the Wyoming State Bar intends to seek recovery from Respondent of all current and future costs of the disciplinary proceeding and investigation hereof. Such costs include all costs of discovery, copying and postage, fees for subpoenas, process,

witnesse s, and mileage, and all costs of hearing, including court reporting fees, preparing a full transcript of the hearing, and travel, lodging, meals for Bar Counsel, Board members

and witnesses.

[¶8 2 ] Furthermore, the final decision on all disciplinary matter s, including the recommended sanction and cost assessments, rests with this Court. Disciplinary Code40

§ 26(c) (“The BPR may recommend to the Court the assessment of those costs and fees and, if the Court imposes discipline, the Court may assess all or any part of the certified costs and fees against respondent.”). The Board recommended the assessment of costs, and Mr. Stinson has had the opportunity to object to the costs in his submissions to this Court. We thus reject Mr. Stinson’s contention that he ha s not been provided an adequate opportunity to be heard on the assessment of costs.

2. Apportionment of Costs

[¶8 3 ] Mr. Stinson next argues that the recommended cost assessment should be rejected because the Board did not apportion the costs between the Rule 3.1(c) charge proven and the Rule 3.3 charge that the Board found had not been proved by clear and convincing evidence. We disagree.

[¶8 4 ] The Bar charged two rule violations. Both violations arose out of the same course of events, and resolution o f both charges required an understanding of what Mr. Stinson knew concerning his client’s actions and when he knew it. That being the case, there is no practical way to apportion the costs. We therefore find no basis to require an apportionment as a cond ition to assessing costs and we reject Mr. Stinson’s request to impose such a requirement.

3. Reasonableness of Costs

[¶8 5 ] Mr. Stinson contends that the recommended costs should be rejected as unreasonable because the itemized costs are not costs permit ted under Rule 501(a) of the Uniform Rules for District Courts. He further argues that the costs of room and board for the Board members should not be awarded in any case because such an award of costs “is a punitive measure that most assuredly has a chil ling effect on respondents who wish to challenge the charges brought against them.” We again reject both of these objections.

[¶8 6 ] First, the Uniform Rules for District Courts do not apply to disciplinary proceedings before the Board. Section 11(n) of the Disciplinary Code lists the provisions of the Wyoming Rules of Civil Procedure that apply in a disciplinary proceeding. That list does not include U.R.D.C. 501(a), and that rule is not otherwise referenced or incorporated in any section of the Discipl inary Code. Mr. Stinson’s reliance on Rule 501(a) is therefore misplaced.

[¶8 7 ] We are likewise not persuaded by Mr. Stinson’s argument concerning the chilling effect of an award of costs for the Board members’ lodging and meal expenses incurred

for th e hearing. We acknowledge that the potential for an award of costs may have a chilling effect on a charged attorney’s decision whether to contest the charges. We do not know, however, that the lodging and meal expenses necessarily have a greater chilling effect tha n any of the other costs, and the Disciplinary Code plainly allows for41

the assessment of costs. On the other hand, no costs may be assessed unless the Board and this Court find by clear and convincing evidence that a rule violation occurred. T his should offset at least to some degree the chilling effect associated with the cost assessment. An attorney is not penalized for defending against the charges but is responsible for the costs associated with the rule violation. We thus believe the cod e has appropriately balanced the risk of a cost assessment, and we will not make the requested adjustment.

E. Rule 11 Motion for Sanctions

[¶8 8 ] On January 21, 2014, Mr. Stinson filed a motion pursuant to W.R.C.P. 11(b)(3), alleging there was no factual basis for the Formal Charge and seeking sanctions against the Bar, the Peer Review Panel, and Special Bar Counsel. On March 13, 2014, the Board entered an order denying Mr. Stinson's Rule 11 motion. The parties disagree whether the

denial of the Rule 11 motion is before this Court, but in the interests of judicial economy and to ensure that all issues related to this matter are resolved, we will address it. Both the Board and this Court have found clear and convincing evidence that Mr. Stinson

violated R ule 3.1(c). We therefore find no basis for the Rule 11 motion and affirm the

denial of the motion.

IT IS, THEREFORE, ORDERED THAT:

1. Laurence W. Stinson is hereby publicly censured for hi s violation of Rule 3.1(c);

and

2

. By March 1, 2015

, Laurence W. Stinson shall pay costs of $ 15,631.76 associated with the disciplinary proceedings and an administrative fee of $500

. 00. 4

[¶89] DATED this 29 th day of October, 2014.

BY THE COURT*

/s/

E. JAMES BURKE

Chief Justice

*Justice Da vis took no part in the consideration of this matter. Judge Donnell participated by assignment.

4 Mr. Stinson objected to references in the Board’s Report and Recommendation to information that Mr.

Stinson contends was admitted into eviden ce subject to a stipulation that it would remain confidential. Because this Court has not adopted and incorporated the Board’s Report and Recommendation and has not otherwise referenced the confidential information, we do not address this objection furthe r.