Conflict Disqualifies Entire Wyoming Bar Counsel Office

The Wyoming Supreme Court granted a motion to disqualify the entire Office of Bar Counsel and prohibited use of work product due to the conflict that it found

Andrea Richard moved the Review and Oversight Committee (ROC) to disqualify Special Bar Counsel Wes Reeves and the Office of Bar Counsel from prosecuting the pending disciplinary proceeding against her due to a conflict of interest. She sought the appointment of a new, conflict-free special bar counsel. The ROC disqualified Mr. Reeves but declined to impute his conflict of interest to the Office of Bar Counsel. After the ROC determined there was probable cause to allow Bar Counsel to file a formal charge, Ms. Richard asked the hearing panel for the Board of Professional Responsibility (BPR) to disqualify the Office of Bar Counsel due to an additional conflict of interest that was unknown to her at the time she filed her first motion and because Bar Counsel used Mr. Reeves’s work product when drafting the formal charge. The BPR denied Ms. Richard’s motion. We granted Ms. Richard’s petition to review the BPR’s order. We conclude the Office of Bar Counsel must be disqualified due to existing conflicts of interest, and we reverse with instructions to appoint a new, conflict-free special bar counsel.

Substantial relationship to prior proceeding

From 2006 through 2012, the Office of Bar Counsel investigated Ms. Richard’s alleged violations of the Rules of Professional Conduct in seven different court cases, ultimately consolidating them into a single disciplinary proceeding. Bd. Pro. Resp., Wyo. State Bar v. Richard, 2014 WY 98, ¶ 2, 335 P.3d 1036, 1039–40 (Wyo. 2014). During the investigation into one of those seven cases, Fields v. Waterhouse, Ms. Richard was briefly represented by Mr. Wes Reeves.  Mr. Reeves’s representation consisted of writing letters to then Bar Counsel, Ms. Rebecca Lewis, asserting Ms. Richard’s conduct in that matter did not constitute a violation of the Rules of Professional Conduct. Ultimately, this Court adopted the BPR’s report and recommendation finding Ms. Richard committed multiple rule violations when she forced opposing parties to file repeated motions to compel discovery, failed to comply with court orders to provide meaningful discovery, caused unnecessary delay and needlessly increased the costs of litigation, filed pleadings that were not well grounded in fact or warranted by good faith argument, made allegations in court documents that were not true, and made repeated misrepresentations concerning discovery and other matters. Id. at ¶¶ 55–69, 335 P.3d at 1052–55. In 2014, this Court suspended Ms. Richard from the practice of law for three years (the “2014 Suspension”). Id. at ¶ 81, 335 P.3d at 106.

She was reinstated in 2017; this matter involves complaints from two clients and a judge.

In November 2022, Mr. Gifford informed Ms. Richard that Mr. Reeves and Ms. Anna Reeves Olson were appointed to serve as Special Bar Counsel in the present disciplinary proceeding. This correspondence indicated Mr. Gifford was aware Mr. Reeves previously represented Ms. Richard in connection with the 2014 Suspension, but Mr. Gifford determined Mr. Reeves did not have a conflict of interest and could serve as Special Bar Counsel. Mr. Reeves did not notify Ms. Richard of any potential conflict prior to accepting the representation, nor did he seek her consent before accepting the representation.

Mr. Reeves sought leave to file charges; Respondent sought disqualification

The ROC disqualified Mr. Reeves and Ms. Olson from serving as Special Bar Counsel finding Mr. Reeves’s prior representation was “either a conflict of interest, or at the very least the appearance of a conflict of interest, such that Special Bar Counsel cannot continue on in this matter.” The ROC did not impute Mr. Reeves’s conflict to the Office of Bar Counsel.

Respondent sought review of the BPR denial

The BPR denied Ms. Richard’s motion to disqualify the Office of Bar Counsel and her motion for an order prohibiting the turnover of work product. The BPR found Ms. McCorkle did not have a conflict of interest under W.R.P.C. 1.9 reasoning: “the events that resulted in the 2014 [S]uspension and the 2017 [R]einstatement are in no way related to or in any way the same or substantially related to those at issue in this matter. The persons and the alleged facts are completely different and in no way related to earlier events.” For those same reasons, the BPR found Mr. Reeves “did not and does not now” have any conflict of interest that would require the disqualification of the Office of Bar Counsel or a restriction on access to work product.

The court held otherwise

The conclusion the current disciplinary proceeding is substantially related to the 2014 Suspension and the 2017 Reinstatement is readily apparent from the pleadings filed by Mr. Reeves and Mr. Gifford in this proceeding. These pleadings show all three proceedings involve the same client, are “relevantly interconnected,” and reveal Ms. Richard’s alleged “pattern of conduct.

Thus

Because the proceedings are substantially related, under our case law, there is an irrebuttable presumption Ms. Richard communicated confidential information to Mr. Reeves and Ms. McCorkle during the prior representations.

Imputation

Similarly, Mr. Gifford sought Mr. Reeves’s appointment as Special Bar Counsel before meeting with Mr. Reeves to discuss any potential conflicts. Once Mr. Gifford became aware of Mr. Reeves’s prior representation of Ms. Richard, rather than seeking the appointment of a new special bar counsel, Mr. Gifford unilaterally determined Mr. Reeves did not have a conflict of interest and could continue with the representation. Because Mr. Reeves was not properly screened and Ms. Richard did not consent to him serving as Special Bar Counsel, we must impute Mr. Reeves’s conflict of interest to Mr. Gifford.

Tainted work product

Once Mr. Reeves was disqualified, Mr. Gifford used Mr. Reeves’s work product to draft the formal charge he filed in this proceeding. Although we have not previously addressed whether substitute counsel can use a previously disqualified attorney’s work product, other jurisdictions have recognized once an attorney has been disqualified, transferring the work product of that disqualified attorney poses the same threat to the client’s confidential information, and it may be necessary to restrict access to the disqualified attorney’s work product in order to effectuate the purpose of disqualification. See In re George, 28 S.W.3d 511, 515 (Tex. 2000) (citing EZ Paintr Corp. v. Padco, Inc., 746 F.2d 1459, 1463 (Fed. Cir. 1984); Quark, Inc. v. Power Up Software Corp., 812 F. Supp. 178, 180 (D. Colo. 1992); Hallmark Cards, Inc. v. Hallmark Dodge, Inc., 616 F. Supp. 516, 521–22 (W.D. Mo. 1985); Reardon v. Marlayne, 416 A.2d 852, 862 (N.J. 1980) superseded by City of Atlantic City v. Trupos, 992 A.2d 762 (N.J. 2010). When deciding what work product to protect from disclosure, these courts look to see if there is work that is routine or unrelated to the prior representation. In re George, 28 S.W.3d at 516 (citation omitted). Unfortunately, in this proceeding it is impossible to determine what portion of Mr. Reeves’s work product is unrelated to the prior representation. Therefore, we find the purposes behind disqualification cannot be fully effectuated without a blanket restriction on the new special bar counsel’s use of Mr. Reeves’s and Mr. Gifford’s work product.

Back to square one

Given the numerous conflicts of interest that have occurred in this proceeding, the only appropriate remedy is to remand this matter to the ROC with instructions to appoint a new, conflict-free special bar counsel and to prohibit the Office of Bar Counsel from turning over any of Mr. Reeves’s or Mr. Gifford’s work product. This means new special bar counsel will have to begin the investigation anew based on the four complaints.

The prior case is linked here.

Jackson Hole News & Guide covered the previous disciplinary matter.

The board found two mitigating factors in the case that saved her from losing the right to practice law in Wyoming completely.

One was that Richards has no other disciplinary proceedings or history of violations, according to the board’s ruling. The other was Richards’ personal and emotional problems, stemming from divorcing her husband during some of the cases included in the proceedings. The board’s ruling also notes that Richards’ response to being challenged is “dysfunctional” and her lawyer mentioned there is therapy available to remedy that.

Aside from those two mitigating factors, the ruling largely is 41 pages of purely negative statements, but Chief Justice James Burke, writing for the four-member majority, wrote that the suspension adequately protects the public from Richards’ conduct.

“Other than the belated statements of her counsel during this appeal, there is nothing in this record to indicate that Ms. Richard has learned anything from any of the seven cases or this proceeding,” Burke wrote. “The judicial system must respond in a manner that protects the public from Ms. Richard’s extensive pattern of behavior that has affected so many people. A three-year suspension from practicing law provides that protection.”

District Judge Wade Waldrip, who presided in place of Justice William Hill, strongly disagreed and authored a dissent in favor of disbarring Richards.

“She has, from the beginning of this procedure until the very end, shown no sincere remorse,” Waldrip wrote. “Under these circumstances, I believe this tribunal’s obligation to protect the public requires the ultimate sanction of disbarment.”

Richards’ disciplinary proceedings stemmed from seven cases, five of which were filed in Teton County District Court.

The first of those cases was dismissed after Richards violated rules about sharing evidence with the opposing side.

In the second, the board found that Richards failed to comply with the judge’s orders, verbally threatened opposing counsel, again violated evidence rules and made a concession in court that created liability for her clients.

Her clients in that case are suing Richards for malpractice.

In the third case, the court found that Richards again violated evidence rules, and in fact sabotaged opposing counsel’s attempts to examine evidence. She also threatened opposing attorneys, the ruling reads.

In the fourth case, Richards provided an affidavit with testimony later proven false at trial stating that a licensed counselor had treated and interviewed the children involved in a custody dispute and believed their father was becoming abusive. The counselor in fact had not treated the children in eight years.

In the fifth, the court found that Richards behaved inappropriately during a video deposition, and repeatedly demanded the judge and the opposing attorney meet the needs of her schedule.

In the other two cases, Richards again violated evidence rules and jeopardized her clients’ cases by missing filing deadlines.

(Mike Frisch)