THE SUPREME COURT, STATE OF WYOMING

2023 WY 101

 OCTOBER TERM, A.D. 2023

October 24, 2023

NORTHERN ARAPAHO TRIBE, a 

federally-recognized Indian Tribe and THE 

WIND RIVER HOTEL & CASINO, an 

enterprise wholly owned by an arm of the 

Northern Arapaho Tribe,

Appellants

(Plaintiffs),

v.

BALDWIN, CROCKER & RUDD, P.C. and 

KELLY RUDD,

Appellees

(Defendants).

S-22-0265

Appeal from the District Court of Fremont County

The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:

Lucas Buckley and JoAnna S. DeWald* of Hathaway & Kunz, LLP, Cheyenne, 

Wyoming; and Adam G. Unikowsky of Jenner & Block, LLP, Washington, DC. 

Argument by Mr. Unikowsky.

Representing Appellee:

Scott E. Ortiz and Zara S. Mason of Williams, Porter, Day, Neville, PC, Casper, 

Wyoming. Argument by Mr. Ortiz and Ms. Mason.

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

* An Order Allowing Withdrawal of Counsel was entered on August 7, 2023.

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

FENN, Justice.

[¶1] The Northern Arapaho Tribe and the Wind River Hotel & Casino (collectively the 

Tribe) filed suit against their former attorneys, Baldwin, Crocker & Rudd, P.C., and Kelly 

Rudd (collectively BCR), seeking injunctions for the return of tribal funds and documents, 

an accounting, and damages for conversion and civil theft. The district court granted partial 

summary judgment in favor of BCR on the claims for an accounting and injunctions. The 

conversion and civil theft claim proceeded to a jury trial where the jury found in favor of 

BCR. The Tribe appeals claiming the district court erred when it imposed sanctions on the 

Tribe under Rule 11 of the Wyoming Rules of Civil Procedure (W.R.C.P.) and when it 

granted summary judgment in favor of BCR on the accounting claim. The Tribe also 

asserts the district court’s admission of irrelevant racially charged evidence resulted in 

prejudice that warrants reversal of the jury’s verdict. We reverse in part and affirm in part.

ISSUES

[¶2] The Tribe raises three issues, which we rephrase as follows:

I. Did the district court err when it granted BCR’s motion 

for sanctions under W.R.C.P. 11?

II. Did the district court err when it granted BCR’s motion 

for summary judgment on the Tribe’s accounting claim?

III. Does the district court’s admission of irrelevant racially 

charged evidence warrant reversal?

FACTS

Tribal Government and History with BCR

[¶3] The Tribe is a federally recognized Indian Tribe located on the Wind River 

Reservation. The Wind River Hotel & Casino is an economic arm of the Tribe, and it is 

wholly owned by the Tribe. The Tribe has approximately 10,650 enrolled members. The 

Tribe has two main governing bodies: the Northern Arapaho Business Council (NABC) 

and the Northern Arapaho General Council (General Council). The NABC is the executive 

branch of the Tribe, and it handles the Tribe’s day-to-day affairs. The NABC is made up 

of six members, who are elected every two years. The Tribe does not have a constitution, 

and the NABC acts through passing binding resolutions. The NABC attempts to act by 

consensus, but a majority vote of four members constitutes a controlling decision. The 

NABC answers to the General Council. The General Council is the “supreme governing 

body” of the Tribe, and it is made up of all the adult members of the Tribe, who may 

convene a quorum of 150 members to consider and pass General Council resolutions.
2

[¶4] BCR and its partners, Andrew Baldwin, Berthenia Crocker, and Kelly Rudd, acted 

as counsel for the Tribe in various capacities from 1988–2019. The Tribe asked BCR to 

perform a wide variety of work. BCR became involved in housing matters, gaming issues, 

water projects, revision or creation of tribal law, custody cases, an eagle permit case, and 

many other legal matters. The Tribe has 60–70 different programs that provide services to 

tribal members. With the permission of the NABC, many of these program directors 

reached out to BCR for legal assistance. Eventually, ninety percent (90%) of BCR’s 

practice consisted of work for the Tribe.

[¶5] BCR achieved many successes on behalf of the Tribe. BCR helped the Tribe 

achieve its dream of making the Wind River Casino a Class III casino, which generates 

millions of dollars in revenue every year for the Tribe. BCR also achieved a $6.75 million 

settlement with Marathon Oil and a $1.2 million settlement with Verizon on behalf of the 

Tribe.

The Change in Billing Format

[¶6] Over the course of their approximately 30-year relationship, BCR billed the Tribe 

for millions of dollars in fees, including more than $8 million in fees and expenses between 

2012 and 2019. For many years, BCR sent detailed bills to the Tribe’s finance office. 

These bills contained confidential information including the names of some families who 

were receiving legal services. The NABC became concerned when some of this 

information leaked out into the public domain through employees in the finance office. At 

the request of the NABC, BCR stopped providing detailed bills and started giving the 

NABC a simplified “Monthly Billing Summary.” These summaries showed lump sums 

for fees incurred in general categories of cases. However, they did not show how many 

hours were being billed per legal matter, what work was being performed, which attorney 

had performed that work, or the hourly rates charged for that work. One of the BCR 

partners would present the Monthly Billing Summaries to the NABC for approval. BCR 

informed the NABC the detailed billing statements were available for them to examine at 

BCR’s offices at any time, and on the few occasions when a member of the NABC 

requested detailed billing statements, BCR provided them via email. Some members of 

the NABC also occasionally traveled to BCR’s offices to review the detailed bills.

[¶7] For most of the parties’ relationship, the Tribe paid BCR’s fees from the Tribe’s 

general fund. However, due to a downturn in the energy market, beginning in 2017, the 

NABC made the decision to pay those funds directly from BCR’s trust account which held 

the proceeds received from a lawsuit related to the restoration of the Wind River.

Breakdown of BCR’s Relationship with the Tribe
3

[¶8] Although BCR acted as lead counsel for the Tribe, the Tribe occasionally hired 

outside counsel to handle certain matters. Sometime around 2002, the Tribe asked BCR to 

help it create a policy that would ensure there was some coordination between all the 

outside attorneys who were working on special projects for the Tribe. The Tribe wanted 

to ensure these attorneys were not taking inconsistent positions before any court or agency. 

BCR helped the Tribe prepare a policy called the Legal Affairs of the Northern Arapaho 

Tribe Policies and Procedures (2002 Legal Affairs Policy). This policy required BCR to 

complete conflicts of interest checks for any outside counsel. The 2002 Legal Affairs 

Policy considered it a potential conflict of interest for outside counsel to represent clients 

with interests or positions adverse to the interests of the Tribe. Under this policy, BCR 

made recommendations to the NABC about whether or not to hire a firm, but the ultimate 

decision was always left to the NABC.

[¶9] In the fall of 2018, Roy Brown,1 Chairman of the NABC at that time, decided he 

wanted to hire a different lobbyist for the Tribe in Washington, D.C. He reached out to his 

law school friend, Craig Williams, who worked as a lobbyist with the law firm Kilpatrick, 

Townsend and Stockton, LLP (KTS). At that time, Chairman Brown only intended for 

KTS to do some lobbying for the Tribe. He did not intend for KTS to replace BCR as lead 

counsel for the Tribe. Chairman Brown was not reelected to the NABC in November 2018.

[¶10] In February 2019, with the approval of the NABC, Councilman Spoonhunter,2 who 

was Chairman of the NABC at that time, reached out to Mr. Williams and asked if KTS 

could perform an evaluation of the Casino’s CEO, Jim Conrad, whose contract was going 

to expire in June. Councilman Spoonhunter only intended for KTS to perform the 

evaluation, and he did not intend for KTS to replace BCR at this time. The NABC passed 

a resolution authorizing KTS to complete an evaluation of Mr. Conrad.

[¶11] Toward the end of April 2019, Keith Harper of KTS contacted BCR to schedule an 

interview about Mr. Conrad’s performance and to obtain documents. Through this 

communication, BCR informed Mr. Harper that KTS needed to comply with the conflicts 

of interest provision of the 2002 Legal Affairs Policy. Mr. Harper informed BCR that KTS 

had performed its own conflicts check before accepting the representation; he otherwise 

declined to cooperate with BCR.3 BCR found Mr. Harper’s response odd. It was not the 

type of response BCR typically received when vetting outside counsel, so the firm began 

looking into KTS’s potential conflicts. BCR learned KTS was associated with a named 

defendant in an opioid case the Tribe had filed. BCR also learned a KTS attorney, Larry 

1 Chairman Brown was chairman of the General Council at the time of the trial, so we will refer to him as 

Chairman Brown throughout this opinion.

2 Councilman Spoonhunter was Co-Chairman of the NABC from 2016–2018, Chairman from 2018–2020, 

and a Councilman at the time of trial. We will refer to him as Councilman Spoonhunter throughout this 

opinion.

3 Unbeknownst to BCR, the engagement letter the NABC signed with KTS contained an express waiver of 

all conflicts of interests.
4

Roberts, who was then the Principal Assistant Secretary for Indian Affairs, had signed an 

executive order that adversely impacted the Tribe’s tribal court. Both of these matters 

would have been considered potential conflicts under the 2002 Legal Affairs Policy.

[¶12] In early May, two partners with BCR met with some of the NABC members to 

discuss the conflicts issues. Councilman Spoonhunter was traveling at that time, so the 

BCR partners went to NABC chambers and discussed the issue with the three NABC 

members who were present. They advised BCR to reach out to Councilman Spoonhunter. 

After speaking with BCR, Councilman Spoonhunter believed it was the consensus of the 

other NABC members that KTS had a conflict of interest. However, Councilman 

Spoonhunter talked to the other Council members when he returned, and the majority of 

the NABC decided they wanted KTS to proceed with the evaluation. Councilman Addison 

disagreed. He wanted BCR to enforce the conflicts policy. Ultimately, KTS completed the 

evaluation with limited cooperation from Mr. Conrad and BCR.

[¶13] The NABC was surprised by the “pushback” it received on having KTS perform 

Mr. Conrad’s evaluation. Several members of the NABC felt BCR was siding with Mr. 

Conrad instead of carrying out the wishes or express instructions of the Council, and they 

started to question whether BCR was acting in the best interests of the Tribe. In response, 

the majority of the NABC voted to repeal the 2002 Legal Affairs Policy on May 20, 2019. 

That same day, the majority of the NABC sent BCR a letter terminating the firm from 

representing the Tribe on any gaming matters.

[¶14] In early June, a majority of the NABC voted to terminate BCR’s contract, and they 

passed a resolution ordering BCR to return all tribal funds and documents. On June 7, 

2019, the Tribe authorized David Clark, an independent contractor providing financial 

services to the Tribe, to provide BCR with a bank account number to facilitate the transfer 

of the tribal funds that were being held in BCR’s trust account. Over the course of the next 

five days, BCR transferred the following amounts to the Tribe from its trust account: 1) a 

payment of $879,719.48 into the Tribe’s severance tax account; 2) a payment of $49,375.85 

into the Casino’s account; and 3) a payment of $165.71 for accrued interest into the Tribe’s 

severance tax account.

[¶15] Mr. Clark proposed to the NABC that he would obtain the bank statements from 

BCR’s trust account from January 1, 2019, to the dates of the transfers and verify all the 

activity in the account between those dates.4 The NABC approved this proposal. On June 

18, 2019, Mr. Clark went to BCR’s office, reviewed the trust account bank statements, 

transactions slips, and supporting documents (from January 1, 2019, to June 2019) and

4 Mr. Clark chose these dates because for several years prior, the trust account had been audited by the 

Tribe’s external auditor, Charles Donham, and Mr. Clark did not see a need to go back and recreate those 

records because they had been presented in an audit and accepted by the NABC.
5

confirmed all the funds in the trust account were returned to the Tribe. He communicated 

this finding to BCR, the NABC, and the Tribe’s finance office.

[¶16] The Tribe filed this suit on July 29, 2019, seeking the return of tribal funds and 

documents. On July 30, 2019, the Tribe posted the agenda for the August 10, 2019, General 

Council meeting, which included resolutions to ban either BCR or KTS from representing 

the Tribe. Five days before the scheduled vote, a public meeting was held where people 

accused BCR of stealing money from the Tribe. At least some of these allegations were 

made by KTS lawyer, Keith Harper. This meeting was publicly broadcasted on YouTube. 

At the General Council meeting five days later, a majority of the General Council voted in 

favor of banning BCR from working for the Tribe in perpetuity. After the General Council 

vote, BCR returned numerous boxes of paper files and a portable hard drive containing 

tribal documents to the Tribe.

The Trial

[¶17] Most of the Tribe’s claims were resolved through summary judgment, and the only 

claim remaining to be tried was the conversion and civil theft claim. The Tribe’s theory 

was that BCR took advantage of the Tribe’s trust, failed to meet its ethical duties to 

communicate and justify its fees, and misappropriated $5.5 million in fees. The Tribe’s 

evidence consisted of the testimony from three current and former NABC members who 

each swore they reviewed the billing summaries and still had lingering questions about 

what work BCR had actually performed due to the broad and general nature of the billing 

entries. The bulk of the Tribe’s case rested on the testimony of its expert, Daniel Costello, 

who opined the quality of BCR’s bills did not meet the required standard of care. Mr. 

Costello’s largest complaint was that BCR’s bills contained vast amounts of “block 

billing.”5 Mr. Costello did not opine about whether or not BCR’s partners and associates 

actually worked the hours reflected in the bills. When asked to do so, he stated it would 

be impossible to determine whether the work had been performed due to the format of the 

bills.

[¶18] BCR presented a twofold defense. First, it argued KTS used improper methods, 

including making false and defamatory statements about BCR, to accomplish its goal of 

acquiring the Tribe’s legal work. BCR put on evidence showing KTS decided it was 

adverse to BCR before the Tribe officially retained KTS to evaluate Mr. Conrad, and KTS 

used techniques to win over the Tribe that Councilman Spoonhunter admitted were 

improper, such as playing up its political connections and manipulating tribal leaders to 

make them feel important. BCR also offered evidence showing that after KTS started 

5 According to Mr. Costello, block billing occurs when multiple distinct actions are described in a single 

entry on a bill, and he opined lawyers should create separate, distinct billable entries for each completed 

task.
6

publicly alleging BCR misappropriated tribal funds, even tribal members who had good 

working relationships with BCR became skeptical and distrustful of BCR.

[¶19] Second, BCR presented evidence that although the billing summaries may not have 

contained detailed information about the work it performed on the Tribe’s behalf, it kept 

the Tribe informed about that work in other ways, and BCR always answered any questions 

NABC members had about that work. BCR also presented evidence showing the NABC 

never asked BCR to change the format of its bills, resume sending detailed bills, or provide 

any additional details about the work it performed on behalf of the Tribe. Each BCR 

partner testified he or she worked every hour they billed, and they even rounded down the 

number of hours they billed. BCR called its own expert, Kim Cannon, who opined block 

billing did not violate any standard of care, and there was no evidence BCR overbilled the 

Tribe or that the BCR attorneys did not work every hour they billed.

[¶20] After five days of testimony, the jury ultimately determined BCR did not convert 

any tribal funds, and it returned a verdict in favor of BCR. This appeal timely followed.

DISCUSSION

I. Did the district court err when it granted BCR’s motion for sanctions under 

W.R.C.P 11?

[¶21] On appeal, the Tribe argues the district court erred by awarding sanctions under 

W.R.C.P. 11 because BCR failed to strictly comply with the procedural requirements. The 

Tribe also contends BCR’s failure to comply with these procedural requirements 

prejudiced the Tribe by precluding it from taking remedial measures that could have made 

the motion for sanctions moot. We agree.

[¶22] On September 11, 2019, BCR sent the Tribe a letter, captioned as a “Rule 11 

Notice,” claiming the allegations in ¶ 2 of the complaint, which accused BCR of 

“repeatedly and steadfastly” refusing to return tribal funds, were false and needed to be 

withdrawn within 21 days. BCR attached documents to the letter showing all the funds in 

the firm’s trust account were transferred to the Tribe in June 2019. The Tribe sent BCR a 

letter responding to the Rule 11 notice, explaining why it thought the notice was improper 

under W.R.C.P. 11 and detailing the factual underpinnings of the allegations in ¶ 2.

[¶23] BCR filed a motion for Rule 11 sanctions with the district court on October 24, 

2019. The certificate of service shows this motion was served on the Tribe on October 22, 

2019, only two days before the motion was filed with the district court. Like the Rule 11 

Notice, the motion complained about the allegations in ¶ 2 of the complaint. The Tribe 

opposed the motion, arguing BCR failed to identify a specific violation of Rule 11(b) and 

explaining why the allegations in ¶ 2 had evidentiary support.
7

[¶24] The district court held a hearing on the Rule 11 motion on March 5, 2020. Instead 

of discussing the allegations in ¶ 2, for the first time BCR asserted the allegations in ¶ 52, 

which alleged BCR was “in possession of” over $1,000,000 in tribal funds, were 

sanctionable. After taking the matter under advisement, the district court ultimately 

entered an order granting BCR’s Rule 11 motion. The district court found:

The Complaint states in ¶ 52 that “Defendants are in possession 

of, upon information and belief, over $1,000,000 in Tribal 

funds.” This is stated in the section of the Complaint regarding 

Count III – accounting. It is clear on the record to date that the 

factual underpinnings of that claim could not have been 

accurate on the date it was plead and Rule 11’s requirement of 

a factual basis was violated. This issue is a narrow one, 

whether at the time of pleading Defendants’ [sic] were or are 

currently in possession of over $1,000,000 of Tribal funds. 

When Defendants’ [sic] filed their Motion for Sanctions they 

asserted in good faith that it was not true, and that a 

representative of the Tribe’s finance office had inspected the 

trust ledgers and confirmed that all the Tribal funds that were 

in the trust had been returned to the Tribe, and that this was 

done before the Complaint was filed. That is the state of the 

evidence before the [c]ourt on the issue, and While [sic] 

Plaintiff [sic] may believe that there was some foul play by the 

Defendants over past accounting and overbilling, (which 

seems to be the implication of this claim), it was not proper to 

plead an inflammatory allegation of misuse or withholding of 

$1,000,000 in Tribal funds without evidentiary support. This 

is particularly true where the evidence was easily at hand at the 

time the Complaint was filed and under any characterization 

now argued, this could not have been true.

[¶25] The district court’s order required the Tribe to “present a motion and order striking 

the allegation in question” and to pay BCR’s fees relating to that motion. Although BCR 

filed an application seeking $15,435 in attorney’s fees, the district court did not enter an 

order awarding any of those fees.6

6 BCR argues we should not consider this issue because the Rule 11 order is either moot or is not a final 

appealable order because it does not affect the Tribe’s substantial rights. The Rule 11 order is not moot, 

because although the district court has not yet fixed the amount of fees the Tribe is required to pay, it did 

order the Tribe to pay BCR’s fees incurred in bringing the Rule 11 motion. In addition, BCR’s argument 

that the Rule 11 order does not affect the Tribe’s substantial rights is somewhat disingenuous, given that it 

repeatedly argued below the order determined certain issues on the merits, including the conversion claim,
8

[¶26] Rule 11 requires all factual contentions in a complaint to have evidentiary support. 

W.R.C.P. 11(b)(3). If the opposing party believes a factual contention lacks evidentiary 

support, Rule 11(c) sets forth a particular process to follow when filing a motion for 

sanctions:

A motion for sanctions must be made separately from any other 

motion and must describe the specific conduct that allegedly 

violates Rule 11(b). The motion must be served under Rule 5, 

but it must not be filed or be presented to the court if the 

challenged paper, claim, defense, contention, or denial is 

withdrawn or appropriately corrected within 21 days after 

service or within another time the court sets. If warranted, the 

court may award to the prevailing party the reasonable 

expenses, including attorney’s fees, incurred for the motion.

W.R.C.P. 11(c). “Rule 11 sanctions are not to be cavalierly threatened or imposed.” Edsall 

v. Moore, 2016 WY 71, ¶ 13, 375 P.3d 799, 803 (Wyo. 2016) (quoting Welch v. Hat Six 

Homes, 2002 WY 81, ¶ 19, 47 P.3d 199, 205 (Wyo. 2002)). We have recognized Rule 11 

contains a “safe harbor” provision where counsel provides a warning to opposing counsel 

by serving the motion for sanctions on “opposing counsel only.” Edsall, ¶ 13, 375 P.3d at 

803 (quoting Welch, ¶ 19, 47 P.3d at 205). Counsel cannot file the motion with the court 

until at least 21 days after serving the motion only on opposing counsel, “in order to give 

opposing counsel an opportunity to correct or withdraw any allegedly sanctionable paper.” 

Id. (quoting Welch, ¶ 19, 47 P.3d at 205) (internal citations omitted). We will reverse a 

district court’s granting of sanctions where the applicant’s papers do not meet the strict 

procedural requirements of Rule 11. See Edsall, ¶ 13, 375 P.3d at 803 (finding the district 

court did not have jurisdiction to consider a Rule 11 motion for attorney’s fees because the 

motion was filed after the case had been dismissed and therefore could not have complied 

with the requirements of Rule 11); Welch, ¶ 19, 47 P.3d at 205, overruled on other grounds 

by Matter of Mears, 2018 WY 109, 426 P.3d 824 (Wyo. 2018) (vacating an award of 

sanctions when the Rule 11 motion was filed after the case was settled); Caldwell v. 

Cummings, 2001 WY 106, ¶¶ 10–12, 33 P.3d 1138, 1141–42 (Wyo. 2001), overruled on 

other grounds by Matter of Mears, 2018 WY 109, 426 P.3d 824 (Wyo. 2018) (reversing 

an award of sanctions when the Rule 11 motion was contained in a motion for judgment 

on the pleadings and was not set forth in a separate motion as procedurally required under 

the rule).

and it argued the order had some relevance as to certain witnesses’ credibility such that it should be able to 

tell the jury about the order. We have recognized that “[g]enerally, interlocutory orders merge into the final 

order.” Kruckenberg v. Ding Masters, Inc., 2008 WY 40, ¶ 11, 180 P.3d 895, 899 (Wyo. 2008) (citing State 

Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813, 820 (Wyo. 1994)). The Rule 11 order merged into the 

final appealable order in this case and is reviewable.
9

[¶27] In this case, BCR failed to comply with Rule 11’s procedural requirements in three 

ways. First, BCR’s “Rule 11 Notice” was not a proper substitute for serving a motion 

under Rule 11. See Caldwell, ¶ 12, 33 P.3d at 1142 (holding a letter sent to counsel is not 

a proper substitute for serving a motion for sanctions under Rule 11); Rusk v. Fid. 

Brokerage Servs., 850 F. App’x 657, 659 (10th Cir. 2021) (“our precedent requires service 

of the actual motion to be filed; warning letters are insufficient.”). Second, BCR served its 

motion on the Tribe only two days before filing it with the district court, far short of the 

required minimum 21 days. W.R.C.P. 11(c)(2). Finally, at the hearing, BCR complained 

about different allegations than those it claimed were sanctionable in its “Rule 11 Notice” 

and motion. Thus, BCR did not give the Tribe a warning or opportunity to withdraw the 

allegedly sanctionable allegation prior to filing its motion. See W.R.C.P. 11(c); Edsall, ¶ 

13, 375 P.3d at 803 (quoting Welch, ¶ 19, 47 P.3d at 205) (internal citations omitted).

[¶28] The district court should not have imposed sanctions because BCR failed to comply 

with the procedural requirements of Rule 11. The district court’s order granting BCR’s 

Rule 11 motion and its award of sanctions must be reversed. See Edsall, ¶ 13, 375 P.3d at 

803; Welch, ¶ 19, 47 P.3d at 205; Caldwell, 2001 WY 106, ¶¶ 10–12, 33 P.3d at 1141–42.

II. Did the district court err when it granted BCR’s motion for summary judgment 

on the Tribe’s accounting claim?

[¶29] We review a district court’s order granting summary judgment de novo. Matter of 

Phyllis V. McDill Revocable Trust, 2022 WY 40, ¶ 16, 506 P.3d 753, 759 (Wyo. 2022)

(citing Bear Peak Res., LLC v. Peak Powder River Res., LLC, 2017 WY 124, ¶ 10, 403 

P.3d 1033, 1040 (Wyo. 2017)).

We review a summary judgment in the same light as the district 

court, using the same materials and following the same 

standards. We examine the record from the vantage point most 

favorable to the party opposing the motion, and we give that 

party the benefit of all favorable inferences that may fairly be 

drawn from the record. A material fact is one which, if proved, 

would have the effect of establishing or refuting an essential 

element of the cause of action or defense asserted by the 

parties.

Id., 506 P.3d at 759–60 (citing Bear Peak Res., LLC, ¶ 10, 403 P.3d at 1040) (internal 

citations and quotation marks omitted). We may affirm an order granting summary 

judgment on any basis appearing in the record. Cardenas v. Swanson, 2023 WY 67, ¶ 10, 

531 P.3d 917, 919 (Wyo. 2023).

[¶30] The complaint alleged the Tribe was entitled to an equitable accounting under Rule 

1.15(e) of the Wyoming Rules of Professional Conduct (W.R.P.C.) and pursuant to the 
10

Uniform Trust Code, Wyoming Statutes §§ 4-10-101 et seq. (LexisNexis 2021).

[¶31] BCR moved for summary judgment on this accounting claim, asserting Wyoming 

does not recognize an independent cause of action for an accounting, and the Tribe could 

not bring an equitable claim for an accounting unless it showed it did not have an adequate 

remedy at law. BCR asserted the Tribe could not make this showing because it was in 

possession of trust account bank statements and transaction information. In the alternative, 

BCR argued the accounting had already been completed when Mr. Clark reviewed the trust 

account documents in June 2019.

[¶32] In response, citing to the Restatement (Second) of Trusts § 172, the Tribe argued 

that as a trustee, BCR had the burden of proving the validity and propriety of any 

expenditure of trust funds, and it was liable for any funds for which it could not account. 

The Tribe also asserted Mr. Clark had not performed an accounting and had merely verified 

the bank balance held by BCR in June 2019 was returned to the Tribe.

[¶33] The district court granted BCR’s motion for summary judgment on the accounting 

claim. It found the Tribe was entitled to an accounting under W.R.P.C. 1.15(e) after it had 

terminated BCR’s representation, but it had received that accounting when Mr. Clark 

reconciled the trust account statements in June 2019. The district court also found the 

Tribe’s expert used the documents provided by BCR to prepare his report as to what sums 

BCR had allegedly converted, and the Tribe failed to provide any factual basis showing 

how BCR did not comply with its ethical obligations under W.R.P.C. 1.15(e). The district 

court also found an equitable remedy for an accounting was not cognizable where an 

adequate remedy at law exists, and the Tribe’s conversion claim was an adequate remedy.

A. Accounting Under W.R.P.C. 1.15(e)

[¶34] The Tribe asserts the district court’s conclusion the Tribe failed to explain what 

additional information BCR was required to provide under this rule was incorrect because 

the Tribe pinpointed the precise invoices that were inadequate “and made clear that if 

[BCR] could not further explain those invoices, [BCR was] obligated to reimburse the trust 

account.” The Tribe contends W.R.P.C. 1.15(e) requires BCR to provide an accounting 

for all deductions from the Tribe’s trust account, and BCR did not meet this obligation 

because the Tribe’s expert identified $5.5 million of withdrawals that were “inadequately 

documented.” BCR argues summary judgment was appropriate because it complied with 

the requirements of W.R.P.C. 1.15(e).

[¶35] We have yet to address what a “full accounting” looks like under W.R.P.C. 1.15(e). 

However, we have held “[a] violation of the rules of professional conduct does not, on its 

own, give rise to a cause of action against a lawyer.” Gowdy v. Cook, 2020 WY 3, ¶ 46, 

455 P.3d 1201, 1212 (Wyo. 2020) (citing Wyoming Rules of Professional Conduct, Scope, 

Comment 20; Bevan v. Fix, 2002 WY 43, ¶ 62, 42 P.3d 1013, 1032 (Wyo. 2002)). If the 
11

Tribe had filed a legal malpractice action, W.P.R.C. 1.15(e) might have been relevant to 

establish the proper standard of care. However, this Rule does not give rise to an 

independent cause of action for an accounting. BCR was entitled to summary judgment as 

a matter of law on this claim.

B. Equitable Accounting and Adequate Remedy

[¶36] Citing to our decision in Bear Peak Resources, LLC v. Peak Powder River 

Resources, LLC, 2017 WY 124, ¶ 76, 403 P.3d at 1056 (citing Haynes Trane Service 

Agency, Inc. v. American Standard, Inc., 51 Fed. Appx. 786, 800 (10th Cir. 2002)), the 

district court recognized a claim for an equitable accounting was not cognizable where an 

adequate remedy at law exists. The district court found BCR had produced thousands of 

pages of documents and there was no reason to require BCR to “distill [its] billing practices 

to a more digestible state[,]” and it found the Tribe’s expert had been able to use the 

information provided by BCR to draft his report. The district court ruled the Tribe could 

attempt to prove at trial that BCR’s dishonesty and misconduct resulted in conversion, and 

if it succeeded, that remedy adequately foreclosed any equitable relief.

[¶37] The Tribe asserts the district court incorrectly concluded the conversion and civil 

theft claim was an adequate remedy. The Tribe notes that its claim is “founded on [BCR’s] 

trust obligations.” The Tribe argues a “civil conversion remedy is inadequate because it 

flips the burden of proof and relieves the trustee of the burden of justifying its 

withdrawals.” The Tribe asserts BCR did not satisfy its obligation to provide an accounting 

because its expert identified $5.5 million of withdrawals from the trust account that were 

“inadequately documented.” The Tribe argues “[b]ecause [BCR] could not meet [its] 

burden to justify [its] withdrawals from the trust account, [it is] legally required to replenish 

it by the amount of the unexplained withdrawals, with all doubts resolved against [BCR].” 

BCR contends the Tribe had to show a complete absence of an adequate remedy at law, 

and the Tribe’s conversion claim was an adequate remedy.

[¶38] Whether a remedy at law is adequate depends on the circumstances of each case. 

See Watson v. Sutherland, 72 U.S. 74, 78, 18 L. Ed. 580 (1866). An adequate remedy at 

law “must be plain and adequate, or in other words, as practical and efficient to the ends of 

justice, and its prompt administration, as the remedy in equity.” Id. (quoting Boyce’s Exrs.

v. Grundy, 28 U.S. 210, 214, 7 L. Ed. 655 (1830)); see also Remedy, Black’s Law 

Dictionary (11th ed. 2019) (defining an adequate remedy as a legal remedy, such as an 

award of damages, “that provides sufficient relief to the petitioning party . . . .”).

[A] suit in equity to enforce a legal right can be brought only 

when the court can give more complete and effectual relief, in 

kind or in degree, on the equity side, than on the common-law 

side; as for instance, by compelling a specific performance, or 

the removal of a cloud on the title to real estate; or preventing 
12

an injury for which damages are not recoverable at law . . . or 

where an agreement procured by fraud is of a continuing nature, 

and its rescission will prevent a multiplicity of suits. . . .

Buzard v. Houston, 119 U.S. 347, 352, 7 S. Ct. 249, 252, 30 L. Ed. 451 (1886) (internal 

citations omitted). On the other hand, where the suit is for the judicial determination of an 

amount of monetary damages and the enforcement of its payment by the court, “the 

proceeding is essentially an action at law . . . .” Jones v. Mut. Fid. Co., 123 F. 506, 521 

(C.C.D. Del. 1903). We have repeatedly refused to grant equitable relief where monetary 

damages would provide sufficient relief to the injured party. See, e.g., Bear Peak Res., 

LLC., 2017 WY 124, ¶ 76, 403 P.3d at 1056 (holding a party could not bring an equitable 

accounting claim where breach of contract damages were sufficient); McNeill Fam. Tr. v. 

Centura Bank, 2003 WY 2, ¶ 17, 60 P.3d 1277, 1285 (Wyo. 2003) (denying equitable relief 

from a foreclosure action when plaintiffs could have purchased the certificate of purchase 

or the right of redemption); BHP Petroleum Co., Inc. v. Okie, 836 P.2d 873, 876–77 (Wyo. 

1992) (reversing a grant of partial recission where breach of contract damages were 

available); Farmers’ State Bank of Riverton v. N. Tr. Co., 270 P. 163, 166 (Wyo. 1928)

(holding rescission was not available for a breach of contract). The legal nature of a remedy 

is not lost simply because the particular circumstances of a case may make it difficult to 

achieve that remedy. Jones, 123 F. at 521. The lack of an adequate remedy and the inability 

to obtain “the fruits of a remedy are quite distinct.” Id.

[¶39] As the party seeking the benefit of equitable relief, the Tribe has the burden of 

showing its conversion and civil theft claim is not an adequate remedy at law. Spence v. 

Sloan, 2022 WY 96, ¶ 63, 515 P.3d 572, 588 (Wyo. 2022) (citing McNeill Fam. Tr., 2003 

WY 2, ¶ 17, 60 P.3d at 1285). The Tribe argues its conversion and civil theft claim is not 

an adequate remedy because it places the burden of proof on the Tribe instead of BCR. 

The Tribe contends as a “trustee,” BCR should be required to justify every penny it 

removed from the trust account rather than the Tribe having to prove BCR converted or 

stole the funds. The Tribe’s argument is misplaced.

[¶40] An accounting is “[a] rendition of an account[.]” Accounting, Black’s Law 

Dictionary (11th ed. 2019). As the Tribe points out in its briefing, an accounting explains 

withdrawals from a trust account. In this case, the Tribe authorized each withdrawal from 

the trust account that it now challenges. Importantly, there is no question where the funds 

went, and the Tribe has made no claim that it did not know to whom the funds were paid. 

In other words, the Tribe already had an adequate accounting. What the Tribe truly asserted 

in its accounting claim was that BCR was wrongfully paid the funds because it did not 

perform the work to earn them. That went beyond a claim for an accounting and was in 

essence its conversion and civil theft claim. We affirm the district court’s grant of summary 

judgment in favor of BCR on this claim.
13

III. Does the district court’s admission of irrelevant racially charged evidence 

warrant reversal?

[¶41] The Tribe argues the district court erred in admitting racially charged evidence 

because it was inadmissible under Rules 402 and 403 of the Wyoming Rules of Evidence 

(W.R.E.). The Tribe asserts:

The trial in this case related to a systematic conversion of funds 

of the Tribe by [BCR] for years while [it] acted as counsel for 

the Tribe. Despite this clearly defined and limited scope, the 

district court allowed [BCR] to introduce irrelevant and 

prejudicial evidence at trial which had no bearing on the salient 

cause of action.

The Tribe asserts BCR attempted to use this allegedly irrelevant evidence to prejudice the 

jury against the Tribe by “presenting the dispute in starkly racial terms” and by presenting 

themselves as the “white lawyers” positioned against the “Native lawyers” of KTS and by 

extension the Tribe. The Tribe argues this “narrative was crafted to encourage the jury to 

sympathize with the white lawyers [(BCR)] and decide against the Tribe. The result was 

a racially motivated trial that prejudiced the Tribe.”

[¶42] BCR contends: “The events leading up to BCR being terminated as legal counsel 

for the Tribe and the filing of this lawsuit against BCR are crucially important conte[x]t 

for the claims at issue.” BCR contends it had successfully represented the Tribe since 

1988, and its relationship with the Tribe only started to “unravel” once KTS started to inject 

“itself into all facets of the Tribe . . . .” BCR asserts the statements made by Mr. Harper at 

the meeting broadcast on YouTube influenced the General Council vote that resulted in 

BCR being banned from working for the Tribe. As such, BCR argues “motive and bias 

became the foundation of this lawsuit and were crucial topics for cross-examination of the 

Tribe’s fact witnesses.” Citing to our decisions in Lawrence v. State, 2007 WY 183, ¶ 17, 

171 P.3d 517, 522–523 (Wyo. 2007), and Hannon v. State, 2004 WY 8, ¶ 22, 84 P.3d 320, 

331–332 (Wyo. 2004), BCR further contends this evidence was relevant because the 

partiality of a witness is always relevant to discredit the witness, expose his motive for 

testifying, and shed light on issues that might affect the weight of his testimony.

[¶43] This issue requires us to review the district court’s decision on the admission of 

evidence.

We review a district court’s ruling on the admissibility of 

evidence for an abuse of discretion. We afford considerable 

deference to a trial court’s rulings on the admissibility of 

evidence, and we will not disturb the trial court’s ruling if there 

is a legitimate basis for it. Determining whether the trial court 
14

abused its discretion involves the consideration of whether the 

court could reasonably conclude as it did, and whether it acted 

in an arbitrary and capricious manner.

Jontra Holdings Pty Ltd v. Gas Sensing Tech. Corp., 2021 WY 17, ¶ 58, 479 P.3d 1222, 

1239 (Wyo. 2021) (quoting Matter of LDB, 2019 WY 127, ¶ 43, 454 P.3d 908, 921 (Wyo. 

2019) (internal citations and quotation marks omitted). Even if we determine certain 

evidence was admitted in error, the Tribe is required to show prejudice. Lyman v. Childs, 

2023 WY 16, ¶ 55, 524 P.3d 744, 760 (Wyo. 2023). “An error is deemed prejudicial if 

there is a reasonable probability that, if the evidence had not been admitted, the outcome 

would have been more favorable to the party opposing the evidence.” Id. (citing Spence v. 

State, 2019 WY 51, ¶ 11, 441 P.3d 271, 274 (Wyo. 2019); Klingbeil v. State, 2021 WY 89, 

¶ 32, 492 P.3d 279, 286 (Wyo. 2021)).

A. References to Race

[¶44] The first reference to race occurred during BCR’s opening statement when counsel 

stated:

The KTS lawyers from Washington, D.C., one of their big 

calling cards was, hey, we’re Native American. We’re from 

different tribes around the country, and you should only trust 

Native American lawyers. So there was a subtle hint that you 

can’t trust BCR lawyers because they’re not Native Americans, 

which is a tragedy given . . . what my clients did.

The Tribe did not object to this statement.

[¶45] At a conference the following morning, the Tribe asked the district court to preclude 

BCR from introducing any evidence pertaining to KTS. However, the Tribe did not 

specifically address defense counsel’s comments about race. BCR discussed race with 

three witnesses. During cross examination of Councilman Spoonhunter and Chairman 

Brown, BCR impeached both witnesses with portions of their depositions wherein they 

admitted one of KTS’s “calling cards” was that they were Native American lawyers who 

would understand the Tribe’s issues better than non-Native lawyers. In addition, Mr. Clark 

testified he believed there was a behind the scenes effort to rid the tribe of non-Native 

consultants. Due to this effort, he offered to terminate his contract and rid the Tribe of 

“one more white guy.” The email in which Mr. Clark made this offer was admitted into 

evidence over the Tribe’s objection based on relevance. The Tribe ultimately did not 

terminate Mr. Clark’s contract. Mr. Clark further testified he heard KTS was perpetuating 

the idea that the Tribe should only trust Native lawyers.

[¶46] The final reference to race occurred in BCR’s closing argument where counsel 
15

reminded the jury about Mr. Clark’s concerns that KTS was disparaging BCR, had ulterior 

motives, and was “just getting rid of all the white guys[.]” Counsel went on to argue the 

trust BCR established over 30 years was quickly undone by KTS’s disparaging and untrue 

allegations of theft and its claims tribal members could not trust white lawyers. The Tribe 

did not object to this argument. We analyze whether the Tribe was prejudiced by the 

admission of this evidence and argument.

B. Prejudice

[¶47] We have expressed a “desire to remove illegitimate references to race from judicial 

proceedings to the fullest extent possible[,]” while recognizing there are some legitimate

reasons to mention race. Carter v, State, 2010 WY 136, ¶¶ 6–10, 241 P.3d 476, 480–82 

(Wyo. 2010). Evidence of a person’s racial prejudice against a party, victim, or class of 

persons may be admissible when it reflects upon that person’s bias or motive. See Campbell 

v. State, 999 P.2d 649, 663 (Wyo. 2000) (finding evidence of victim’s mixed race was 

relevant to establish defendant’s motive in a child abuse case). The evidence set forth 

above had no bearing on any of the witnesses’ biases or motive to testify untruthfully. 

Unlike the evidence that NABC members were swayed by KTS inviting them to political 

events and making them feel important, or the evidence that members of the Tribe who had 

good relationships with BCR became skeptical about BCR after Mr. Harper’s allegations 

at the August 2019 public meeting, there was no evidence members of the Tribe were 

improperly influenced by KTS’s statements about race or that they adopted KTS’s attitudes 

towards non-Native lawyers. On the contrary, Councilman Spoonhunter and Chairman 

Brown both testified they never had any concerns that the BCR partners were not Native 

American. When Mr. Clark offered to resign, Councilwoman Calling Thunder informed 

him it was not her choice to get rid “of another white guy,” and the Tribe could not “move 

forward without [his] expertise.”

[¶48] Because there was no proper purpose for the admission of this evidence and 

argument, we must decide if the Tribe met its burden of showing there is a reasonable 

probability the outcome of the trial would have been more favorable to the Tribe if the 

evidence and argument had not been admitted. Lyman, 2023 WY 16, ¶ 55, 524 P.3d at 760 

(citing Spence, 2019 WY 51, ¶ 11, 441 P.3d at 274; Klingbeil, 2021 WY 89, ¶ 32, 492 P.3d

at 286); Singer v. Lajaunie, 2014 WY 159, ¶ 41, 339 P.3d 277, 288 (Wyo. 2014) (citing 

Proffit v. State, 2008 WY 103, ¶ 12, 191 P.3d 974, 977 (Wyo. 2008)).7

[¶49] The Tribe argues it met this burden and claims:

7 Because the Tribe did not object to the references to race in opening statements or closing arguments, we 

review for plain error. Berry v. State, 2023 WY 75, ¶ 37, 533 P.3d 474, 485 (Wyo. 2023) (citing Anderson 

v. State, 2022 WY 119, ¶ 35, 517 P.3d 583, 593 (Wyo. 2022). However, even under plain error review, the 

Tribe is required to show “it is reasonably probable [it] would have received a more favorable verdict if the 

error had not been made.” Id. (quoting Leners v. State, 2021 WY 67, ¶ 24, 486 P.3d 1013, 1018 (Wyo. 

2021)).
16

While it is true that an isolated racial comment can be 

overlooked when the offending parties can otherwise point to 

overwhelming evidence on their side of the ledger, prejudice is 

not outweighed when, as here, there is a ‘concerted effort . . . 

to create prejudice in the jurors’ minds based upon something 

other than the evidence.

The Tribe contends BCR’s evidence at trial was not overwhelming, and the Tribe presented 

“significant evidence” BCR engaged in billing practices that fell below industry standards 

and the rules of professional conduct. The Tribe contends BCR “fabricated an irrelevant 

conspiracy theory to deflect attention from [its] own behavior and focus on the racial divide 

among the parties. This orchestrated attempt to confuse the jury and encourage a decision 

on an improper basis requires reversal.”

[¶50] BCR contends when “[l]ooking at the record as a whole, there is not a reasonable 

probability the verdict would have been in favor of the Tribe had the district court excluded 

the allegedly ‘racially inflammatory evidence.’” The district court instructed the jury that 

to prove conversion, the Tribe had to prove BCR billed the Tribe and received payment for 

legal work that was not actually performed. BCR claims the Tribe did not meet this burden, 

and BCR put on evidence establishing its partners performed all of the work for which the 

firm billed the Tribe.

[¶51] We agree with BCR that the Tribe failed to meet its burden. Although certain 

NABC members expressed dissatisfaction with the format of BCR’s bills, none of these 

witnesses offered any evidence BCR was paid for work it did not perform. While the 

Tribe’s expert took issue with the format of BCR’s bills, he refused to opine about whether 

the work had actually been performed. Councilman Spoonhunter testified the Tribe needed 

two full-time in-house lawyers and outside counsel who provided services of up to $50,000 

a month to cover all of the work BCR had been performing.

[¶52] Every BCR partner testified they performed all of the work reflected in their bills. 

BCR presented evidence it regularly communicated with the NABC, frequently discussed 

ongoing legal matters and projects, and kept the NABC informed about what they were 

doing on behalf of the Tribe. BCR’s expert testified the block billing format BCR used for 

its bills did not violate any ethical obligations, and he did not see any indications BCR 

engaged in overbilling. The Tribe failed to present any evidence BCR received payment 

for legal work it did not perform.

[¶53] We continue to recognize the core principle that illegitimate references to race 

should be removed from judicial proceedings to the fullest extent possible, and this was 

not one of those cases where there was a legitimate exception to that principle. See Carter, 

2010 WY 136, ¶ 6, 241 P.3d at 480–81. Although there was no proper purpose for the
17

racially charged evidence and argument in this case, it was used to disparage KTS, not the 

Tribe. Other courts have found the interests of justice do not require reversal when race is 

not used to disparage a party, and that party otherwise received a fair trial. See State v. 

Jackson, 714 N.W.2d. 681, 695 (Minn. 2006); State v. Clifton, 701 N.W.2d 793, 800 

(Minn. 2005). When considering the record as a whole, BCR did not introduce evidence 

of KTS’s calling card in an attempt “to cause the jury to decide the case on the basis of 

passion or prejudice rather than reason . . . .” Clifton, 701 N.W.2d at 800. Given the 

evidence BCR presented at trial, which had nothing to do with KTS or the racially charged 

evidence, and that the Tribe failed to present evidence BCR received payment for work 

that was not performed, there is not a reasonable probability the outcome would have been 

more favorable for the Tribe if the evidence about KTS’s calling card had not been 

admitted.

CONCLUSION

[¶54] BCR did not comply with the procedural requirements of Rule 11, and the district 

court erred when it imposed Rule 11 sanctions on the Tribe. The district court’s order 

imposing Rule 11 sanctions is reversed, and this matter is remanded to the district court 

with direction that the order imposing sanctions be vacated. We affirm the district court’s 

order granting summary judgment on the accounting claim because the Tribe could not 

bring a cause of action for an accounting under W.R.P.C. 1.15(e), and the Tribe failed to 

show its conversion and civil theft claim was not an adequate remedy at law. We affirm 

the jury’s verdict after finding the Tribe failed to show the verdict would have been more 

favorable to the Tribe if the racially charged evidence and argument had not been admitted.