IN THE SUPREME COURT, STATE OF WYOMING

2023 WY 110

 OCTOBER TERM, A.D. 2023 

November 16, 2023

BOARD OF PROFESSIONAL 

RESPONSIBILITY, 

WYOMING STATE BAR,

Petitioner,

v.

GAYLA K. AUSTIN, WSB #6-4397,

Respondent.

 D-23-0004

Original Proceeding for Attorney Discipline 

Representing Petitioner: 

Melinda S. McCorkle, Deputy Bar Counsel, Wyoming State Bar. 

Representing Respondent: 

Bill G. Hibbler, Bill G. Hibbler, P.C., Cheyenne, Wyoming. 

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are 

requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of 

any typographical or other formal errors so that correction may be made before final publication in the 

permanent volume.
1

GRAY, Justice. 

[¶1] The Wyoming State Bar (Bar) charged attorney Gayla K. Austin with violations of 

Rules 1.6, 3.3, and 1.16 of the Wyoming Rules of Professional Conduct for Attorneys at 

Law. After a hearing, the Board of Professional Responsibility (BPR)1 submitted its report 

to this Court and recommended a sixty-day suspension for violations of Rules 3.3(a)(1) 

and 1.6 and dismissal of the charges alleging violations of Rule 1.16.2 Ms. Austin objects 

to the BPR’s conclusion she violated Rules 1.6 and 3.3, as well as the proposed sanctions. 

After review of the record, including the exhibits and depositions admitted into evidence, 

and consideration of the arguments of Ms. Austin and Deputy Bar Counsel, we suspend 

Ms. Austin from the practice of law in Wyoming for sixty days and dismiss the formal 

charge under Rule 1.16. 

ISSUES 

[¶2] The issues are:

1. Does the record contain clear and convincing evidence that 

Ms. Austin violated Rule 1.6(a) of the Wyoming Rules of 

Professional Conduct? 

2. Does the record contain clear and convincing evidence that 

Ms. Austin violated Rule 3.3(a)(1) of the Wyoming Rules 

of Professional Conduct? 

3. If the charges are supported by clear and convincing 

evidence, is a sixty-day suspension appropriate discipline 

for Ms. Austin’s actions under Wyoming Rules of 

Disciplinary Procedure Rule 15(b)(3)(D)? 

STATEMENT OF THE CASE

A. Ms. Austin’s Representation of Ms. Johns

[¶3] Ms. Austin was licensed to practice law in Wyoming in 2009. In November 2018, 

Ms. Austin agreed to represent Janet Johns, an Arizona resident, following the death of her 

father, Robert Lockman, a resident of Wheatland, Wyoming. In his will, Robert Lockman 

left a four-plex in Wheatland, Wyoming, to Ms. Johns and her brother, Kevin Lockman. 

Ms. Johns retained Ms. Austin to assist her with complaints regarding Kevin Lockman’s 

1 Pursuant to W.R.D.P. 15(a)(2), the BPR assigned a panel to hear this matter.

2 Ms. Austin does not object to the dismissal of the Rule 1.16 charge. We dismiss this charge and do not 

discuss it here.
2

handling of their father’s affairs including his failure to administer the estate. In December

2018, Ms. Austin filed a suit against Kevin Lockman for negligently failing to administer 

the Robert Lockman estate. Janet S. Johns v. Kevin L. Lockman, CV-2018-112, Eighth 

Judicial District Court, Platte County, Wyoming. 

[¶4] In March 2019, Kevin Lockman and his wife Brenda Lockman executed a quitclaim 

deed conveying any joint interest they had in the four-plex to Brenda Lockman. About a 

month after the transfer to Brenda Lockman, Ms. Austin filed a motion in Johns v. Lockman

requesting Ms. Johns be appointed executor of the Robert Lockman estate. The district 

court granted the motion on the day it was filed. Shortly thereafter, Kevin Lockman filed 

a Petition for Filing a Will Without Probate or Administration. In the Matter of the Estate 

of Lockman, PR-2019-10, Eighth Judicial District Court, Platte County, Wyoming 

(Probate Case). The Johns v. Lockman case was voluntarily dismissed, and the claims 

from that lawsuit were taken up in the Probate Case. Ms. Johns was named as the personal 

representative of the estate in the Probate Case. 

[¶5] In the meantime, Brenda Lockman filed a separate suit requesting the partition of 

the four-plex. Brenda Lockman v. Janet Sue Johns, CV-2019-97, Eighth Judicial District 

Court, Platte County, Wyoming (Partition Case). Ms. Austin represented Ms. Johns in 

this case. In February 2021, the parties stipulated to an order for sale of the four-plex at a 

sheriff’s auction and requiring the proceeds be deposited with the district court. The sale 

occurred in June 2021. A bench trial was set for September 2021 to resolve disagreements 

affecting the distribution of the sale proceeds. 

[¶6] On April 29, 2021, Ms. Johns filed a complaint with the BPR against Ms. Austin 

(Bar Complaint). The Bar Complaint begins: “On several occasions Gayla Austin has 

threatened me that she wanted to resign from this case. I tell her that I have given her over 

$27,225.00 and she needs to finish the case.” Ms. Johns’ complaint discusses her

dissatisfaction with Ms. Austin’s representation, her confusion over the necessity for a sale 

of the four-plex by sheriff’s auction instead of through a realtor, and a request for the return 

of her attorney fees. The final paragraph of the Bar Complaint states, “This estate is not 

that big . . . it should never have taken this long and [there are] so many unanswered 

questions just leaving me hanging out there.” 

[¶7] On May 10, 2021, shortly after Ms. Johns filed her Bar Complaint, Ms. Austin filed 

similar motions to withdraw from representation of Ms. Johns in the Probate and the

Partition Cases.

3

 The Partition Case motion alleged: 

 Pursuant to the Uniform Rules for District Courts in the 

State of Wyoming, the Defendant, Janet Sue Johns, wishes to 

3 The only difference in the motions is that the probate case motion did not include the statement that Ms. 

Johns failed to provide discovery in the case.
3

continue pro se or with other counsel. Defendant will not 

provide information for the required discovery for the case[,] 

will not return telephone calls, will not keep appointments and 

otherwise comply with requirements for the case to go forward. 

The [D]efendant has contacted a realtor to sell the property at

issue in this case, which is directly contrary to this Court’s 

stipulated order dated February 22, 2021. 

 Counsel has made multiple attempts by telephone calls 

and emails to Defendant, with the last contact being April 20, 

2021, but Defendant is nonresponsive. 

 The Motion to Withdraw as Attorney of Record has 

been mailed to the [D]efendant. 

The district court granted this motion the day it was filed. 

[¶8] The motion to withdraw filed in the Probate Case stated: 

 Pursuant to the Uniform Rules for District Courts in the 

State of Wyoming, the Defendant, Janet Sue Johns wishes to 

continue pro se or with other counsel. Defendant will not 

provide information for the case[,] will not return telephone 

calls, will not keep appointments and otherwise comply with 

requirements for the case to go forward. The [D]efendant has 

contacted a realtor to sell the property at issue in this case,

which is directly contrary to this Court’s stipulated order dated 

February 22, 2021, in the case CV-2019-97. 

 Counsel has made multiple attempts by telephone calls 

and emails to [Defendant], with the last contact being April 20, 

2021, but [Defendant] is nonresponsive. 

 The Motion to Withdraw as Attorney of Record has 

been mailed to [the Defendant]. 

The district court did not rule on this motion. Additional facts will be presented as relevant 

in the discussion. 

B. Disciplinary Proceeding

[¶9] Deputy Bar Counsel (Bar Counsel) investigated Ms. Johns’ Bar Complaint and the 

State Bar Review and Oversight Committee authorized a formal charge. Bar Counsel 
4

charged Ms. Austin with violations of Rule 3.3 (Candor Toward the Tribunal), Rule 1.6 

(Confidentiality of Information), and Rule 1.16 (Declining or Terminating Representation). 

Ms. Austin denied the charges and filed a motion for summary judgment. The BPR denied 

her motion. Following the hearing, the BPR determined Ms. Austin violated Rules 

3.3(a)(1) and 1.6, and recommended a sixty-day suspension for the violations. Ms. Austin 

objected, arguing that the recommendation was not based on clear and convincing 

evidence. 

STANDARD OF REVIEW 

[¶10] This Court is charged with establishing the “practice and procedure for disciplining, 

suspending, and disbarring attorneys.” Bd. of Pro. Resp., Wyo. State Bar v. Hinckley, 2022 

WY 18, ¶ 2, 503 P.3d 584, 592 (Wyo. 2022) (quoting Wyo. Stat. Ann. § 5-2-118(a)(iii) 

(LexisNexis 2021)). 

[The Wyoming Rules of Disciplinary Procedure, Rule] 16(b) 

provides our standard of review: “The Court will give due 

consideration to the findings and recommendations of the 

Hearing Panel, but the ultimate judgment in proceedings under 

these rules is vested in the Court. Accordingly, the Court will 

examine the evidence, make findings, determine whether there 

has been an infraction of the Wyoming Rules of Professional 

Conduct, and impose the discipline which the Court considers 

appropriate.” The Bar must prove violations of the Rules of 

Professional Conduct by clear and convincing evidence. 

W.R.D.P. 15(b). “The Court conducts a de novo review of all 

aspects of attorney discipline.” [Bd. of Pro. Resp. v. Custis,

2015 WY 59, ¶ 36, 348 P.3d 823, 832 (Wyo. 2015)]. Because 

the Court conducts a de novo determination in attorney 

discipline cases, it should not “adopt” BPR reports but make 

its own findings based on the record. We bear the ultimate 

responsibility for deciding whether misconduct has occurred 

and, if so, what discipline is warranted. Neither the BPR’s 

findings of fact nor its view of the evidence or the credibility 

of witnesses binds this Court, although we give due 

consideration to those findings, if any. The same is true when 

the parties stipulate to misconduct and a recommendation for 

discipline. 

Hinckley, ¶ 4, 503 P.3d at 593.

[¶11] Our review is limited to the formal charge and those charges where an attorney was 

provided notice of the facts, the alleged misconduct, and rules violated. Hinckley, ¶¶ 7–9, 
5

503 P.3d at 594–95; W.R.D.P. 13(a) (“[A] formal charge . . . shall set forth clearly and with 

particularity the grounds for discipline with which the respondent is charged and the 

conduct of the respondent which gave rise to those charges.”). Bar counsel must prove an 

alleged violation of the rules by clear and convincing evidence. W.R.D.P. 15(b). “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.’” Bd. of Pro. Resp., Wyo. State Bar v. Stinson, 

2014 WY 134, ¶ 29, 337 P.3d 401, 409 (Wyo. 2014) (quoting Bd. of Pro. Resp., Wyo. State 

Bar v. Richard, 2014 WY 98, ¶ 53, 335 P.3d 1036, 1052 (Wyo. 2014), reinstatement 

granted, 2017 WY 80, ¶ 53, 397 P.3d 201 (Wyo. 2017)). Our review is conducted with a 

focus on “safeguarding the interests of the public, the courts, and the legal profession.” 

Hinckley, ¶ 3, 503 P.3d at 593. 

DISCUSSION OF THE CHARGES

[¶12] We begin with a review of the record to see if it contains clear and convincing 

evidence establishing the charges. We then turn to the appropriateness of the 

recommended sanction. 

I. Does the record contain clear and convincing evidence that Ms. Austin violated 

Rule 1.6(a) of the Wyoming Rules of Professional Conduct? 

[¶13] Ms. Austin was charged with a violation of her duty to protect Ms. Johns’ client 

confidentiality under Rule 1.6(a). The BPR determined Ms. Austin “reveal[ed] 

confidential information for which disclosure was not authorized” in violation of Rule 

1.6(a) based on two assertions made in her motions to withdraw. First, Ms. Johns failed to 

assist in discovery and, second, Ms. Johns contacted a realtor to sell the home in violation 

of the district court’s order. It did not address the disclosure of missed appointments and

unreturned telephone calls. We limit our discussion to those disclosures which form the 

basis of the BPR’s recommendation. 

[¶14] Rule 1.6. Confidentiality of Information, provides: 

(a) A lawyer shall not reveal confidential information 

relating to the representation of a client unless the client gives 

informed consent, the disclosure is impliedly authorized in 

order to carry out the representation or the disclosure is 

permitted by paragraph (b). 

W.R.P.C. 1.6. “‘Confidential information’ is information provided by the client or relating 

to the client which is not otherwise available to the public.” W.R.P.C. 1.0(b). Comment 3 

to Rule 1.6 states: 
6

The rule of client-lawyer confidentiality applies in situations 

other than those where evidence is sought from the lawyer 

through compulsion of law. The confidentiality rule, for 

example, applies not only to matters communicated in 

confidence by the client but also to all confidential information 

relating to the representation, whatever its source. A lawyer 

may not disclose such information except as authorized or 

required by the Rules of Professional Conduct or other law. 

W.R.P.C. 1.6 cmt. 3. 

A. Statement Regarding Failure to Cooperate in Discovery 

[¶15] Addressing Ms. Austin’s disclosure that Ms. Johns failed to cooperate with 

discovery, the Hearing Panel said: 

[T]he [Hearing] Panel was deeply troubled by [Ms. Austin’s] 

assertions to the Court, in a public filing, about [Ms.] Johns’ 

alleged failure to cooperate in discovery (the documents seem

to belie the assertion) and by [Ms. Austin’s] assertion that this 

was already disclosed to the Court by opposing counsel (the 

documents clearly belie the assertion). At most, the motion to

compel discovery filed by opposing counsel indicated a failure 

by Ms. Johns and her counsel to properly respond to the 

discovery at issue. Presumably opposing counsel did not know 

the cause of the failures—and he certainly did not reveal them 

to be [Ms.] Johns’ failure to cooperate or assist [Ms. Austin]. 

Ms. Austin admits she did not seek or receive consent from Ms. Johns to disclose 

information prior to filing her motions to withdraw. She argues her disclosures regarding 

Ms. Johns’ failure to comply with the requirements for the case to go forward, were not a 

violation of Rule 1.6 because the district courts regularly require this information and 

disclosure was acceptable under the general standards of Wyoming courts. Ms. Austin’s 

argument is directly addressed in Rule 1.16, which states in pertinent part:

(d) Upon termination of representation, a lawyer shall take 

steps to the extent reasonably practicable to protect a client’s 

interests, such as giving reasonable notice to the client, 

allowing time for employment of other counsel, surrendering 

papers and property to which the client is entitled and 

refunding any advance payment of fee or expense that has not 
7

been earned or incurred. The lawyer may retain papers relating 

to the client to the extent permitted by Rule 1.15A or other law. 

W.R.P.C. 1.16(d). 

[¶16] Comment 3 to Rule 1.16 states: 

When a lawyer has been appointed to represent a client, 

withdrawal ordinarily requires approval of the appointing 

authority. See also, Rule 6.2. Similarly, court approval or

notice to the court is often required by applicable law before a 

lawyer withdraws from pending litigation. See Rule 102, 

Uniform Rules for District Courts of the State of Wyoming. 

Difficulty may be encountered if withdrawal is based on the 

client’s demand that the lawyer engage in unprofessional 

conduct. The court may request an explanation for the

withdrawal, while the lawyer may be bound to keep

confidential the facts that would constitute such an 

explanation. The lawyer’s statement that professional 

considerations require termination of the representation 

ordinarily should be accepted as sufficient. Lawyers 

should be mindful of their obligations to both clients and

the court under Rules 1.6 and 3.3. 

W.R.P.C. 1.16 cmt. 3 (emphasis added). 

[¶17] Ms. Austin produced several of her own and other attorney’s motions to withdraw 

containing statements regarding failure to keep appointments and difficulty in 

communications with the client. The propriety of the other motions is not before the Court. 

The statements in Ms. Austin’s motion were not made in response to a court’s request for 

information but were preemptively provided. 

[¶18] Ms. Austin argues the BPR did not state what specific documents it relied upon in

reaching its conclusion that Ms. Johns’ alleged failure to cooperate was not public. She

asserts this Court should not guess as to what that evidence might be. We need not guess. 

Two motions to compel discovery in the Partition Case and the associated pleadings are 

in the record. These public documents do not discuss the lack of cooperation by Ms. Johns. 

Instead, they contain general allegations of deficiencies in Ms. Johns’ discovery responses. 

Motions to compel discovery do not equate to a public statement about an individual 

litigant’s failure to cooperate with his or her attorney. The district court’s order granting 

the motion to compel did not address Ms. Johns’ role, if any, in discovery failures. The 

order stated, “Counsel presented argument which established she had used good faith in

[an] attempt to obtain the answers to the Interrogatories.” If the discovery failures were 
8

attributable to Ms. Johns, that information was confidential because it had not been

previously disclosed to the public. 

[¶19] Ms. Austin’s disclosure of Ms. Johns’ alleged failures to cooperate with discovery 

were not required by the court. They were not public. Ms. Austin violated Rule 1.6(a) in 

motions by making statements about Ms. Johns’ failure to cooperate with her and/or with 

discovery. 

B. Statement That Ms. Johns Contacted a Realtor to Sell the Property 

[¶20] Addressing Ms. Austin’s statement that Ms. Johns “contacted a realtor to sell the 

property” in contravention of the stipulated order, the BPR said: 

 [Ms. Austin] admitted that [Ms.] Johns did not consent 

to her revealing any of the information contained within these 

statements. Rather, at least with respect to the statement about 

[Ms.] Johns contacting a realtor to sell the property at issue, 

[Ms. Austin] testified that she was required to inform the Court 

about the sale of property because a sale, if it occurred, would 

violate a court order. [She] further asserted that, as the attorney 

for the estate, she was required to protect the estate’s assets. 

. . . 

[Ms. Austin] admitted that [Ms.] Johns did not inform her that 

she was going to sell the four-plex. [Ms. Austin] made no 

attempt to independently verify whether [Ms.] Johns contacted

a realtor to sell the four-plex. [Ms. Austin] acknowledged her 

statement that [Ms.] Johns contacted a realtor was known to 

her only through communications with [Ms.] Johns and related 

to her representation of [Ms.] Johns. Finally, despite [Ms. 

Austin’s] assertion that she revealed this information, in part, 

to protect the estate, she made no effort to remove [Ms.] Johns 

as the personal representative of the estate. 

[¶21] Ms. Austin argues this disclosure did not violate Rule 1.6(a) for three reasons. First, 

it was allowed by W.R.P.C. 1.6(b)(2) (prevent the client from committing a fraud) and 

(prevent substantial injury to property of another). Second, it was required to be revealed 

to the Court by W.R.P.C. 3.3 (lawyer who knows a client intends to engage in fraudulent 

conduct shall take reasonable remedial measures). Third, it was not confidential because 

it was already available to another member of the public, the real estate agent, Phyllis 

Gapter. 
9

[¶22] Rule 1.6(b) states in relevant part: 

(b) A lawyer may reveal such information to the extent the 

lawyer reasonably believes necessary: 

. . . 

(2) to prevent the client from committing a fraud that 

is reasonably certain to result in substantial injury to the 

financial interests or property of another and in 

furtherance of which the client has used or is using the 

lawyer’s services;[4]

(3) to prevent, mitigate or rectify substantial injury 

to the financial interests or property of another that is 

reasonably certain to result or has resulted from the 

client’s commission of a crime or fraud in furtherance 

of which the client has used the lawyer’s services;[5]

. . . 

(6) to comply with other law or a court order[.] 

4

 Comment 6 to W.R.P.C. 1.6 states: 

Paragraph (b)(2) is a limited exception to the rule of confidentiality that 

permits the lawyer to reveal information to the extent necessary to enable 

affected persons or appropriate authorities to prevent the client from 

committing a fraud, as defined in Rule 1.0(d), that is reasonably certain to 

result in substantial injury to the financial or property interests of another 

and in furtherance of which the client has used or is using the lawyer’s 

services. Such a serious abuse of the client-lawyer relationship by the 

client forfeits the protection of this Rule. The client can, of course, prevent 

such disclosure by refraining from the wrongful conduct. Although 

paragraph (b)(2) does not require the lawyer to reveal the client’s 

misconduct, the lawyer may not counsel or assist the client in conduct the 

lawyer knows is criminal or fraudulent. See Rule 1.2(d). See also Rule 

1.16 with respect to the lawyer’s obligation or right to withdraw from the 

representation of the client in such circumstances, and Rule 1.13(c), which 

permits the lawyer, where the client is an organization, to reveal 

information relating to the representation in limited circumstances.

W.R.P.C. 1.6 cmt. 6. 

We note the “Comments do not add obligations to the Rules but provide guidance for practicing in 

compliance with the Rules.” W.R.P.C. Scope cmt. 14.

5 Paragraph (b)(3) addresses the situation in which the lawyer does not learn of the client’s crime or fraud 

until after it has been consummated. W.R.P.C. 1.6(b)(3).
10

W.R.P.C. 1.6(b) (emphasis added). Rule 3.3(b) provides: “A lawyer who represents a 

client in an adjudicative proceeding and who knows that a person intends to engage, is 

engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall 

take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” 

W.R.P.C. 3.3(b) (emphasis added). 

[¶23] Ms. Austin contends the Rules of Professional Conduct required her to act on her 

reasonable belief that Ms. Johns planned to sell the four-plex in violation of a court order. 

Rule 1.0(a) defines “‘Belief’ or ‘believes’ [as] denot[ing] that the person involved actually 

supposed the fact in question to be true. A person’s belief may be inferred from 

circumstances.” Rule 1.0(i) defines “‘Reasonable’ or ‘reasonably’ when used in relation 

to conduct by a lawyer [as] denot[ing] the conduct of a reasonably prudent and competent 

lawyer[,]” and Rule 1.0(j) states “‘Reasonable belief’ or ‘reasonably believes’ when used 

in reference to a lawyer denotes that the lawyer believes the matter in question and that the 

circumstances are such that the belief is reasonable.” In contrast, Rule 1.0(g) states 

“‘Knowingly,’ ‘known,’ or ‘knows’ denotes actual knowledge of the fact in question. A 

person’s knowledge may be inferred from circumstances.” 

[¶24] Ms. Austin testified that she believed Ms. Johns planned to violate a court order by 

selling the four-plex. She asserted that Ms. Johns told her that she had contacted a realtor 

after Ms. Austin suggested contacting a property manager to determine the value of the 

four-plex. When asked if Ms. Johns ever said she was going to sell the property, Ms. 

Austin, testified: 

 Of course not. She just had a hearing. She just signed 

a stipulated order. Is she going to say, Oh, yeah, never mind. 

I’m just going to go out there and sell that now. Heck no. No

one ever does. No personal representative has ever done that. 

Not one time. Not one time. I’ve never had that happen, not 

one time. Now they may well have stolen something or had 

the intent to sell it, or, according to the estate planning section 

that I’m on, yeah, they take off with it all the time. Do you 

think they’re going to make a statement “I’m going to go sell 

this?” Never. 

When asked again if Ms. Johns ever told Ms. Austin she planned to sell the property, Ms. 

Austin replied: 

She kept asking me to do it. Haranguing me to do it. 

There’s a difference, maybe. To me, there’s not. That shows 

the intent of it. Again, no [personal representative] is going to 

make a statement. I’m just going to go sell those guns now. 

That never happens. That’s completely unrealistic even, to 
11

even ask that question or have that requirement. No. That’s 

not what happens ever. It just simply does not. What do they 

do instead? They hound you. They ask you. They try to get 

you to do it. 

[¶25] Ms. Austin testified she never contacted the realtor prior to filing her motion to 

withdraw because she “wasn’t sure” which realtor Ms. Johns had contacted. Addressing 

her reasonable belief that Ms. Johns violated the court order, Ms. Austin stated, “I wasn’t 

sure what she was doing, because she wasn’t telling me all what she was doing. But it . . . 

did appear to me, based on experience and observation, that, yes, that’s what she was doing. 

Or going to do.” 

[¶26] Ms. Austin called realtor Phyllis Gapter as a witness in support of the 

reasonableness of her belief that Ms. Johns planned on selling the four-plex. Ms. Gapter 

testified she had several telephone conversations with Ms. Johns after her father died. Ms. 

Gapter stated she was an experienced realtor in the Wheatland area and had sold “a couple 

of [the] same type—same four-plex buildings there in that same area.” She summarized 

her interactions with Ms. Johns: 

[S]he just asked me if I was familiar with the area, and that if 

she did decide to list it, she wanted to work with me, if she 

could, but she was wanting to know was I—my opinion as far 

as what the property was worth. And what kind of rents do 

they get out of those properties. 

. . . 

[S]he told me . . . it was going to be Brenda [Lockman] and her 

were the owners of the property. . . . I did tell her at the time 

that I’d be able to list the property. If it was in both their names, 

of course, they both had to agree. And I would have to have 

signatures of both, because they were the sellers. And so . . . 

that was really as far as that went, as far as listing that. 

. . . 

[E]very time she called me, she was asking basically the same 

information, and that she wanted me to send information to her 

attorney. . . . I did tell her what—she wanted to know what 

rents were for a property like that. And I know that I did give 

her that information, as far as something in writing . . . and if 

she wanted to give that to her attorney, she could do that. 
12

Ms. Gapter stated Ms. Johns never asked her to list the four-plex and Ms. Lockman never 

communicated with her. 

[¶27] The record contains evidence of Ms. Johns’ frustration that the property could not 

be sold quickly by a realtor. However, Ms. Austin presented no evidence to support her 

belief that Ms. Johns was planning to sell the four-plex or that it would lead a reasonably 

prudent and competent lawyer to the same conclusion. Ms. Johns’ contacts with Ms. 

Gapter in October 2020 appear to be an attempt to collect the information that Ms. Austin 

had requested. These contacts occurred months before the entry of the February 2021 

stipulated order to sell the property through a sheriff’s auction. According to the record, 

Ms. Austin assumed Ms. Johns was up to no good based on her unfortunate experience 

with prior clients. This is simply not enough to support a reasonable belief under Rule 

1.6(b). See People v. Braham, 470 P.3d 1031, 1044 (Colo. O.P.D.J. 2017) (“Respondent 

presented no evidence that the Kellys were committing fraud on the bankruptcy court other 

than his own suspicions, which appear to be unfounded. . . . Accordingly, we determine 

that Respondent violated Colo. RPC 1.6(a).”). Ms. Austin’s unsupported belief that Ms. 

Johns intended to sell the property through a realtor did not justify her disclosures. 

[¶28] Ms. Austin also claims that Rule 1.6 does not apply because the information was 

public. She asserts Ms. Johns had contacted a real estate agent about selling the four-plex 

and this was known to the real estate agent, Ms. Gapter. Even if we were to put aside our 

conclusion that there is no evidence to support a reasonable belief that Ms. Johns was 

attempting to sale the four-plex, knowledge by “a” member of the public does not make 

confidential information public. As the Massachusetts Court stated: 

Comment 3A to rule 1.6 explains that whether 

information is “confidential” turns, in part, on whether it is 

“generally known.” According to that comment, 

“‘[c]onfidential information’ does not ordinarily include . . .

information that is generally known in the local community or 

in the trade, field or profession to which the information 

relates.” The comment then explains that whether information 

is “generally known” depends primarily on how widespread 

the information has become: 

. . . 

That the information is available in a public record is not 

dispositive; rather, the focus is on how many people in the 

relevant community, trade, field, or profession actually have 

learned the information. 

Matter of Kelley, 182 N.E.3d 949, 953 (Mass. 2022). 
13

[¶29] Even if Ms. Johns intended to sell the property and Ms. Gapter knew of this intent, 

Ms. Gapter’s knowledge does not make the information generally known to the public. 

[¶30] The record contains clear and convincing evidence that Ms. Austin violated Rule 

1.6(a). 

II. Does the record contain clear and convincing evidence that Ms. Austin violated 

Rule 3.3(a)(1) of the Wyoming Rules of Professional Conduct? 

[¶31] Ms. Austin is charged with violating the rule by filing motions to withdraw falsely 

asserting, “Pursuant to the Uniform Rules for District Courts in the State of Wyoming, the 

Defendant, Janet Sue Johns, wishes to continue pro se or with other counsel.” Rule 

3.3(a)(1) of the Wyoming Rules of Professional Conduct states: “A lawyer shall not 

knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false 

statement of material fact or law previously made to the tribunal by the lawyer[.]” We

recently examined Rule 3.3(a) in Hinckley. There, we said:

The requirement of honesty is foundational to our judicial 

system and to our society. “Our adversary system for the 

resolution of disputes rests on the unshakable foundation that 

truth is the object of the system’s process which is designed for 

the purpose of dispensing justice. . . . Even the slightest 

accommodation of deceit or a lack of candor in any material 

respect quickly erodes the validity of the process.” In re Liotti, 

667 F.3d 419, 429 (4th Cir. 2011). 

The first half of this rule proscribes knowingly making 

a false statement of fact to the court. Rule 1.0(g) states 

“knowingly” “denotes actual knowledge of the fact in 

question.” Actual knowledge is more than constructive 

knowledge. The “rule does not permit a violation based on 

constructive knowledge” or what the attorney “should have 

known.” In re Kline, 298 Kan. 96, 125, 311 P.3d 321, 343 

(2013). 

In the criminal context, we recognize “the ordinary 

meaning of ‘knowingly’ is ‘with awareness, deliberateness, or 

intention’ as distinguished from inadvertently or 

involuntarily.” Butz v. State, 2007 WY 152, ¶ 20, 167 P.3d 

650, 655 (Wyo. 2007), abrogated on other grounds by Granzer 

v. State, 2008 WY 118, ¶ 20, 193 P.3d 266, 272 (Wyo. 2008). 

That definition applies to “knowingly” as used in Rule 
14

3.3(a)(1) as well. An attorney violates the rule only when clear 

and convincing evidence shows he provided false facts to the 

court with awareness of their falsity. Att’y Grievance Comm’n 

of Md. v. Dore, 433 Md. 685, 703, 73 A.3d 161, 171 (2013). 

The second half of the rule requires an attorney who 

learns that facts he previously presented to the court were false 

to correct those facts if they are material. The duty to “correct” 

arises only when an attorney knows that his prior factual 

statements were false, and they are material to the issue being 

considered by the court. 

Hinckley, ¶¶ 36–39, 503 P.3d at 602. 

[¶32] Ms. Austin concedes that Ms. Johns did not verbally terminate her representation. 

Ms. Austin asserts the allegations in Ms. Johns’ Bar Complaint “clearly rejected future 

representation by Ms. Austin, indicating her ‘wish’ to proceed in an alternate direction.” 

She argues any reasonable attorney would believe that the Bar Complaint was intended to 

terminate the attorney-client relationship. She asserts Ms. Johns’ only options going 

forward would be to proceed pro se or with another attorney, she informed the court that is 

what Ms. Johns wished to do. She maintains she did not “knowingly” mislead the courts 

because “[t]he statement was made in good faith, in the context of all the circumstances 

and not for improper purposes.” 

[¶33] The BPR rejected these explanations and found that the evidence clearly 

demonstrated Ms. Austin knew Ms. Johns did not want her to withdraw and did not 

terminate her representation. 

[¶34] The record contains a series of emails between Ms. Johns and Ms. Austin which 

reflect that Ms. Johns did not want Ms. Austin to withdraw from representing her. Email 

chains from November 2020 to March 2021 contain the following exchanges. 

November 20, 2020 

Ms. Austin to Ms. Johns: 

I don’t understand your attitude and responses toward me, 

which are disrespectful. I will be pleased to resign. 

Ms. Johns to Ms. Austin: 

I will not allow you to resign from this case. I am sorry about 

you thinking I am disrespectful towards you . . . . 
15

Ms. Austin to Ms. Johns: 

It is entirely up to me whether or not I resign; you don’t have 

any control over that. 

. . . 

We will be picking up the probate case—there is no choice 

about that, unless you would like to proceed with it on your 

own. 

Three Days Later

Ms. Johns to Ms. Austin: 

I would really appreciate it if you would please finish these 

cases.

Ms. Austin to Ms. Johns: 

If I decide to resign from the case, I will send a Motion and 

Order to the court with a copy to you. 

I am very busy; I have clients who cooperate, who are not 

disrespectful, and who pay their bills. Frankly, there is no 

motivation to continue to work with you. This email from you 

is an example of that. . . . 

March 24, 2021 

Ms. Austin to Ms. Johns: 

This tone of this message is unacceptable. If you wish me to 

resign, I am pleased to do that. 

. . . 

I am not interested in being disrespected, again, by you in this 

process. I am ready to resign and you can proceed with this 

case pro se. 
16

There is no evidence that Ms. Johns ever accepted Ms. Austin’s offer to withdraw or that 

she indicated a desire to proceed pro se or with other counsel. To the contrary, Ms. Johns’ 

emails clearly reject Ms. Austin’s offers to resign and ask her to continue. 

[¶35] Ms. Johns’ Bar Complaint alleges: “On several occasions Gayla Austin has 

threatened me that she wanted to resign from this case. I tell her that I have given her over 

$27,225.00 and she needs to finish this case.” There is no allegation she “wished” to 

terminate Ms. Austin, employ other counsel, or proceed pro se. Despite Ms. Johns’ 

dissatisfaction, she specifically asserted that Ms. Austin needed to finish the case.

[¶36] Eleven days elapsed between the filing of Ms. Johns’ Bar Complaint and Ms. 

Austin’s filing of the motions to withdraw. During this time, Ms. Austin did not attempt 

to contact Ms. Johns or take any action to clarify whether Ms. Johns intended the Bar 

Complaint to terminate Ms. Austin’s representation. Prior to the filing of the motions to 

withdraw, she did not seek Ms. Johns’ consent or provide Ms. Johns notice of her decision. 

[¶37] After Ms. Austin filed the motions to withdraw, Ms. Johns emailed Ms. Austin 

asking: 

Gayla, 

Have you been allowed to withdraw from my cases? I need 

your representation until further notice. Please finish this case

up with . . . Brenda Lockman and Janet Johns. 

Ms. Austin responded the same day, stating: 

I informed you on April 23, 2021 and several times after that 

that because you insist on selling the property via a realtor, that 

I would resign and I did resign. The court order allowing me 

[to] resign was sent to you by me and by the court. I have 

closed my file. 

You should contact other counsel for your representation. 

(Emphasis added.) 

[¶38] When Ms. Austin filed the motions to withdraw, she told the district court, 

“Defendant, Janet Sue Johns wishes to continue pro se or with other counsel.” Rule 3.1(b) 

provides in relevant part, “The signature of an attorney constitutes a certificate by him that 

he has read the pleading, motion, or other court document; that to the best of his knowledge, 

information, and belief, formed after reasonable inquiry, it is well grounded in fact[.]” 

W.R.P.C. 3.1(b) (emphasis added). When Ms. Austin asserted that Janet Sue Johns wishes 
17

to continue pro se or with other counsel, she knew this statement was false. In the email 

exchanges between Ms. Austin and Ms. Johns, Ms. Johns repeatedly rejected Ms. Austin’s 

offers to withdraw. Ms. Johns’ Bar Complaint declared that Ms. Austin needed to finish 

the case. And after Ms. Austin moved to withdraw, Ms. Johns sent an email asking Ms. 

Austin to continue as her lawyer. In Ms. Austin’s response, she told Ms. Johns that she 

had resigned (“I did resign”). Ms. Austin’s argument—that she had a good faith belief Ms. 

Johns fired her—is sophism. 

A lawyer who makes false statements, tells half-truths, and 

otherwise attempts to mislead harms the legal system and the 

legal profession. The essential aim of our legal system is to 

seek truth in the pursuit of justice; for a lawyer, all other duties 

and responsibilities are secondary. Thus, a lawyer who 

subordinates truth to obtaining a successful outcome for a 

client or to avoiding personal responsibility undermines the 

rule of law and erodes public trust and confidence in the legal 

system. We must demand better from each other. 

Harris v. Bd. of Pro. Resp. of Supreme Ct. of Tennessee, 645 S.W.3d 125, 139 (Tenn. 2022)

(quoting Matter of Dixon, 2019-NMSC-006, ¶ 35, 435 P.3d 80, 88). 

[¶39] We conclude clear and convincing evidence demonstrates Ms. Austin violated her 

duty of candor under Rule 3.3. 

III. If the charges are supported by clear and convincing evidence, is a sixty-day 

suspension appropriate discipline for Ms. Austin’s actions under Wyoming Rules

of Disciplinary Procedure Rule 15(b)(3)(D)? 

[¶40] Ms. Austin maintains the BPR incorrectly applied aggravating circumstances and 

failed to apply pertinent mitigating circumstances when it recommended suspension. 

When the BPR recommends public censure, suspension, or disbarment, the Court reviews 

the BPR’s report and recommended sanctions under the standard provided in W.R.D.P. 

15(b)(3)(D) (Rule 15). That rule states: 

(D) In imposing a sanction after a finding of misconduct by 

the respondent, the Hearing Panel shall consider the following 

factors, as enumerated in the ABA Standards for Imposing 

Lawyer Sanctions [(ABA Standards)], which standards shall be 

applied by the Hearing Panel in determining the appropriate 

sanction: 
18

(i) Whether the lawyer has violated a duty owed to 

a client, to the public, to the legal system, or to the 

profession; 

(ii) Whether the lawyer acted intentionally, 

knowingly, or negligently; 

(iii) The amount of the actual or potential injury 

caused by the lawyer’s misconduct; and 

(iv) The existence of any aggravating or mitigating 

factors. 

W.R.D.P. 15(b)(3)(D) (emphasis added). See also ABA Annotated Standards for Imposing 

Lawyer Sanctions, Standard 3.0 at 125 (Ellyn S. Rosen ed., 2nd ed. 2019); Bd. of Pro. 

Resp., Wyo. State Bar v. Mears, 2018 WY 58, ¶ 43, 418 P.3d 829, 839 (Wyo. 2018). 

[¶41] Rule 15 requires the Court to apply four factors as enumerated in the ABA 

Standards to determine appropriate sanctions for violations of the Rules of Professional 

Conduct. The first Rule 15 factor is a violation of a duty owed to a client, to the public, to 

the legal system, or to the profession. Ms. Austin violated the Rules of Professional 

Conduct. See supra ¶¶ 13–39.

[¶42] When considering sanctions, we look to the second Rule 15 factor—whether the 

lawyer acted intentionally, knowingly, or negligently, and the third factor—the actual or 

potential injury caused by the lawyer’s misconduct—and to the ABA Standards. The ABA 

Standards define intent, knowledge, and negligence as: 

“Intent” is the conscious objective or purpose to accomplish a 

particular result. 

“Knowledge” is the conscious awareness of the nature or 

attendant circumstances of the conduct but without the 

conscious objective or purpose to accomplish a particular 

result. 

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

risk that circumstances exist or that a result will follow, which 

failure is a deviation from the standard of care that a reasonable 

lawyer would exercise in the situation. 

ABA Annotated Standards for Imposing Lawyer Sanctions, supra at xxi. 
19

[¶43] The ABA Standards define “injury” 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 or ‘little or no’ injury[.]” “Potential injury” is “the harm to a client, 

the public, the legal system or the profession that is reasonably foreseeable at the time of 

the lawyer’s misconduct, and which, but for some intervening factor or event, would 

probably have resulted from the lawyer’s misconduct.” Id.

[¶44] ABA Standard 4.2 addresses the “Failure to Preserve the Client’s Confidences” and 

provides: 

Absent aggravating or mitigating circumstances, upon 

application of the factors set out in [Standard] 3.0, the 

following sanctions are generally appropriate in cases 

involving improper revelation of information relating to 

representation of a client: 

4.21 Disbarment is generally appropriate when a lawyer, 

with the intent to benefit the lawyer or another, knowingly 

reveals information relating to representation of a client not 

otherwise lawfully permitted to be disclosed, and this 

disclosure causes injury or potential injury to a client. 

4.22 Suspension is generally appropriate when a lawyer 

knowingly reveals information relating to the representation of

a client not otherwise lawfully permitted to be disclosed, and 

this disclosure causes injury or potential injury to a client. 

4.23 Reprimand [i.e., “public censure” under Rule 9(a)(3) of 

the Wyoming Rules of Disciplinary Procedure] is generally 

appropriate when a lawyer negligently reveals information 

relating to representation of a client not otherwise lawfully 

permitted to be disclosed and this disclosure causes injury or 

potential injury to a client. 

4.24 Admonition [i.e., “private reprimand” under Rule 

9(a)(4)] is generally appropriate when a lawyer negligently 

reveals information relating to representation of a client not 

otherwise lawfully permitted to be disclosed and this 

disclosure causes little or no actual or potential injury to a 

client. 

Id., Standards 4.2–4.24 at 162–71. 
20

[¶45] The presumptive sanctions for a violation of Rule 3.3 are set out in ABA Standard 

6.1 (False Statements, Fraud and Misrepresentation):

6.1 False Statements, Fraud, and Misrepresentation 

Absent aggravating or mitigating circumstances, . . . the 

following sanctions are generally appropriate in cases 

involving conduct that is prejudicial to the administration of 

justice or that involves dishonesty, fraud, deceit, or 

misrepresentation to a court: 

6.11 Disbarment is generally appropriate when a lawyer, 

with the intent to deceive the court, makes a false statement, 

submits a false document, or improperly withholds material 

information, and causes serious or potentially serious injury to 

a party, or causes a significant or potentially significant 

adverse effect on the legal proceeding. 

6.12 Suspension is generally appropriate when a lawyer 

knows that false statements or documents are being submitted 

to the court or that material information is improperly being 

withheld, and takes no remedial action, and causes injury or 

potential injury to a party to the legal proceeding, or causes an 

adverse or potentially adverse effect on the legal proceeding. 

6.13 Reprimand is generally appropriate when a lawyer is 

negligent either in determining whether statements or 

documents are false or in taking remedial action when material 

misinformation is being withheld, and causes injury or 

potential injury to a party to the legal proceeding, or causes an 

adverse or potentially adverse effect on the legal proceeding. 

6.14 Admonition is generally appropriate when a lawyer 

engages in an isolated instance of neglect in determining 

whether submitted statements or documents are false or in 

failing to disclose material information upon learning of its 

falsity, and causes little or no actual or potential injury to a 

party, or causes little or no adverse or potentially adverse effect 

on the legal proceeding. 

Id., Standards 6.1–6.14 at 310–35. 

[¶46] Ms. Austin knowingly disclosed confidential information relating to her 

representation of Ms. Johns when she filed her motions to withdraw claiming Ms. Johns 
21

would not cooperate with discovery and planned to sell the property. By asserting that Ms. 

Johns wished to proceed pro se or with other counsel, Ms. Austin knowingly submitted a 

false statement to the court that caused injury or potential injury to Ms. Johns. As directed 

by Rule 15, we apply the ABA Standards. Because Ms. Austin’s violation of Rule 1.6 did 

not cause injury or potential injury to Ms. Johns, ABA Standard 4.24 applies. The 

presumptive consequence of Ms. Austin’s violations is a private reprimand. Because Ms. 

Austin knowingly submitted a false statement to the court in violation of Rule 3.3 which 

caused injury or potential injury to Ms. Johns and this action had an adverse or potentially 

adverse effect on a legal proceeding, the presumptive consequence is suspension under 

ABA Standard 6.12. 

[¶47] We next consider the fourth Rule 15 factor, aggravating or mitigating 

circumstances. The ABA Standards address generally accepted standards for aggravation 

and mitigation of punishment in lawyer disciplinary cases “[a]fter misconduct has been 

established[.]” Id., Standards 9.0–9.1 at 444.

[¶48] Aggravation: “Aggravation or aggravating circumstances are any considerations or 

factors that may justify an increase in the degree of discipline to be imposed.” Id., 

Standards 9.2–9.21 at 451. 

[¶49] Aggravating factors include: 

(a) prior disciplinary offenses; 

(b) dishonest or selfish motive; 

(c) a pattern of misconduct; 

(d) multiple offenses; 

(e) bad faith obstruction of the disciplinary proceeding by 

intentionally failing to comply with rules or orders of the 

disciplinary agency; 

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

deceptive practices during the disciplinary process; 

(g) refusal to acknowledge wrongful nature of conduct; 

(h) vulnerability of victim; 

(i) substantial experience in the practice of law; 
22

(j) indifference to making restitution; 

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

controlled substances. 

Id., Standard 9.22 at 451. 

[¶50] Mitigation: “Mitigation or mitigating circumstances are any considerations or 

factors that may justify a reduction in the degree of discipline to be imposed.” Id., 

Standards 9.3–9.31 at 487. Mitigating factors which may be considered 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 

consequences of misconduct; 

(e) full and free disclosure to disciplinary board or 

cooperative attitude toward proceedings; 

(f) inexperience in the practice of law; 

(g) character or reputation; 

(h) physical disability; 

(i) mental disability or chemical dependency including 

alcoholism or drug abuse 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 
23

(4) the recovery arrested the misconduct and 

recurrence of that misconduct is unlikely. 

(j) delay in disciplinary proceedings; 

(k) imposition of other penalties or sanctions; 

(l) remorse; 

(m) remoteness of prior offenses.

Id., Standard 9.32 at 487. 

[¶51] Factors which are neither aggravating nor mitigating are: 

(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; 

(f) failure of injured client to complain. 

Id., Standard 9.4 at 547. 

[¶52] The BPR applied the following aggravating factors: 

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

during the disciplinary process); 

(g) (refusal to acknowledge wrongful nature of conduct); 

(i) (substantial experience in the practice of law); and 

(j) (indifference to making restitution) applied to Ms. Austin’s actions. 
24

[¶53] It applied one mitigating factor, 9.32(a) (absence of a prior disciplinary record). We 

address Ms. Austin’s objections to these findings in turn. 

[¶54] Ms. Austin does not object to the applicability of aggravating factor 9.22(i), 

conceding she has substantial experience in the practice of law. She does object to the 

applicability of the remaining aggravating factors applied by the BPR. We address the 

remaining factors separately beginning with factor 9.22(f) (submission of false evidence, 

false statements, or other deceptive practices during the disciplinary process). The BPR 

found: 

In the Panel’s judgment, [Ms. Austin] was repeatedly and 

alarmingly untruthful in her testimony before the Panel during 

her testimony in the two-day hearing, including with respect to 

when and why she reached the decision to file her Motions to 

Withdraw and regarding the extent of her communications 

with [Ms.] Johns during the months leading up to her Motions 

to Withdraw. 

[¶55] Ms. Austin argues: 

Presumably 9.22(f) was applied based upon the Panel’s 

opinion that Ms. Austin provided false and contradictory 

testimony during the hearing. The only testimony pointed to 

in the BPR Report was related to Ms. Austin testifying about 

two reasons for filing her Motions to Withdraw: 1) 

Complainant Johns’ continual push for selling the 4-plex 

contrary to the Stipulated Order and contacting a Ms. Gapt[e]r; 

and 2) Complainant Johns’ termination of Ms. Austin via the 

content of the Bar Complaint. Those two reasons have been 

consistently advanced by Ms. Austin during the entire Bar 

Complaint investigation up through the hearing.[6]

 Ms. 

Austin’s bases for filing the Motions to Withdraw have never 

wavered. But, the BPR report holds that Ms. Austin was not 

credible because she testified that she had two bases for filing 

the Motions to Withdraw. 

[¶56] Contrary to Ms. Austin’s assertion, it was not the nature of her defenses but the 

substance of those defenses that served as the BPR’s basis for applying this aggravating 

6 Throughout the majority of the investigation, Ms. Austin advanced only one reason for her withdrawal

from Ms. Johns’ cases—her belief she had a duty to withdraw based on Ms. Johns’ alleged plan to defy a

court order. Ms. Austin’s email on April 23, 2021, stated she had terminated her representation on that 

basis. She did not allege that Ms. Johns “fired” her until nine months after the investigation began. 
25

factor. The BPR found that the evidence offered was either not credible or false. See supra

(Ms. Austin had no basis to believe Ms. Johns intended to sell property, and she knew that 

Ms. Johns wanted her to continue as counsel). 

[¶57] The record fully supports the application of factor 9.22(f) to Ms. Austin’s conduct. 

[¶58] Ms. Austin disputes the application of aggravating factor 9.22(g) (refusal to 

acknowledge wrongful nature of conduct). She concedes she has refused to acknowledge 

her conduct was, in any way, wrongful. She argues the application of this factor by the 

BPR penalizes her for defending the allegations against her and thus violates her due 

process and first amendment rights. Ms. Austin makes no further argument and does not 

cite to any authority for this proposition. 

[¶59] “[A]n attorney has the right to defend herself in an attorney disciplinary proceeding 

without automatically increasing her sanction through the application of Standards std. 

9.22(g).” In re Disciplinary Proceeding Against Ferguson, ¶ 69, 246 P.3d 1236, 1250 

(Wash. 2011) (citations omitted). However, “Standards std. 9.22(g) applies to an attorney 

who admits he engaged in the alleged conduct with a client but denies the conduct was 

wrongful or who ‘rationalize[s] improper conduct as an error.’” Id. ¶ 70, 246 P.3d at 1250 

(quoting In re Disciplinary Proceeding Against Holcomb, ¶ 58, 173 P.3d 898, 911 (Wash. 

2007) (citing In re Disciplinary Proceeding Against Kronenberg, 117 P.3d 1134 (Wash. 

2005); In re Disciplinary Proceeding Against Dynan, 98 P.3d 444 (Wash. 2004), as 

amended on denial of reconsideration (Nov. 30, 2004))). 

[¶60] Here, Ms. Austin does not deny the statements made in her motions to withdraw. 

She argues these statements were appropriate despite significant evidence to the contrary. 

Factor 9.22(g) applies in this case. 

[¶61] Next, Ms. Austin argues that the final decision as to whether she violated any rule 

remains with this Court and the application of this aggravating factor—failure to 

acknowledge the wrongful nature of her conduct—should not occur prior to a final decision 

on whether her actions were wrong. We dispose of Ms. Austin’s second argument by 

pointing out that the BPR is statutorily authorized to present a report and recommendation 

determining, in the first instance, the existence of a violation of a rule and then to determine 

the appropriate sanction if such a violation exists. See W.R.D.C. 15(b)(3)(D). 

[¶62] Ms. Austin objects to the application of aggravating factor 9.22(j) (indifference to 

making restitution). She asserts restitution was never requested or ordered and relies on 

our holding in Hinckley, where we said: 

The record does not support the BPR’s finding that Mr. 

Hinckley was indifferent toward making restitution, as no 

restitution from Mr. Hinckley was requested or ordered. The 
26

BPR made no effort to explain how it was appropriate to assign 

that aggravating factor when it did not make a restitution order. 

Hinckley, ¶ 93, 503 P.3d at 616. We need not determine whether our statements in Hinckley

go so far as to hold this aggravating factor can be considered only when the BPR has issued 

a restitution order. Here, Ms. Austin paid a $5,000.00 settlement in a separate fee 

arbitration. In other words, Ms. Austin was compelled to repay some of her fees. ABA 

Standard 9.4(a) states “forced or compelled restitution” is “neither aggravating nor 

mitigating.” The application of 9.22(j) is not warranted. 

[¶63] Ms. Austin claims the BPR should have applied three mitigating factors 9.32(d), (e), 

and (g). 

[¶64] Ms. Austin claims the mitigating factor found in 9.32(d) (good faith effort to make 

restitution or to rectify consequences of misconduct) applies because “Ms. Austin 

unilaterally reimbursed [Ms.] Johns approximately $5,000.00, even though restitution was 

not an issue in this matter.” The BPR responds that this mitigating factor does not apply 

because Ms. Austin agreed to pay $5,000.00 only after Ms. Johns filed a petition for fee 

arbitration. 

[¶65] Ms. Austin is not entitled to mitigation for restitution. See supra ¶ 62. 

[¶66] Ms. Austin claims the BPR should have applied factor 9.32 (e) (cooperative attitude 

toward proceedings) because there is no evidence she did not cooperate through the entire 

proceeding. Ms. Austin does not address her attitude toward the proceeding. The BPR 

acknowledges that Ms. Austin supplied responses and documentation pursuant to the 

BPR’s request. Throughout the investigation and hearing, Ms. Austin provided 

contradictory statements and testimony. She openly expressed outrage at having to respond 

to the investigation stating, “This [BPR Complaint] is an unmitigated attack on me[,]” Ms. 

Johns’ allegations are “flat out lie[s]” and “blatant falsehood[s,]” and “I believe [Ms. 

Johns’] complaints constitute slander and libel against me because there is no basis in fact 

on any of her allegations, yet she is being allowed to continue to complain and no rule 

violation is cited.” This mitigating factor does not apply. 

[¶67] Ms. Austin argues mitigating factor 9.32(g) (character or reputation) should be 

automatically applied in any case where “there [is] no evidence . . . that place[] 

[Respondent’s] character or reputation into question.” She asserts there was no such 

evidence here, and therefore, this mitigating circumstance should have been applied. We 

find no support for the “automatic” application of a mitigating standard in the law and Ms. 

Austin provides none. We reject this contention. The record is devoid of evidence—

positive or negative—on Ms. Austin’s character and reputation. This factor does not apply 

on the record before us. 
27

[¶68] Ms. Austin knowingly violated Rules 1.6 and 3.3 of the Wyoming Rules of 

Professional Conduct. Her false statements to the court in violation of Rule 3.3 caused 

injury or potential injury to Ms. Johns and to the legal system. Three of the aggravating 

factors and one of the mitigating factors identified by the BPR and set out in the ABA 

Standards apply to her actions—submission of false evidence, false statements, or other 

deceptive practices during the disciplinary process; refusal to acknowledge wrongful 

nature of conduct; substantial experience in the practice of law; and the mitigating absence 

of a prior disciplinary record. Suspension is the appropriate sanction. 

DISCIPLINARY ORDER 

[¶69] Ms. Austin violated Rules 1.6 and 3.3 of the Wyoming Rules of Professional 

Conduct. The formal charge under Rule 1.16 is dismissed. The aggravating factors under 

ABA Standards 9.22(f), (g), and (i) apply to Ms. Austin’s conduct while 9.22(j) is not 

applicable. The mitigating factors under ABA Standards 9.32(d), (e), and (g) do not apply. 

Ms. Austin is suspended from the practice of law for sixty days beginning January 1, 2024. 

Ms. Austin shall comply with the requirements of the Wyoming Rules of Disciplinary 

Procedure during her suspension and reimburse the Wyoming State Bar $4,316.06 in costs 

and $750.00 in administrative fees, for a total of $5,066.06 to be paid on or before March 

1, 2024. A copy of this Opinion shall be published in the Wyoming Reporter and Pacific 

Reporter, and the Clerk of Court shall cause a copy of this opinion to be served on Gayla 

K. Austin.