Bd. of Prof'l Responsibility, Wy. State Bar v. Richard

Citation335 P.3d 1036,2014 WY 98
Decision Date01 August 2014
Docket NumberNo. D–14–0001.,D–14–0001.
PartiesBOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Andrea RICHARD, WSB No. 5–2848, Respondent.
CourtUnited States State Supreme Court of Wyoming

ORDER SUSPENDING ATTORNEY FROM PRACTICE OF LAW AND ASSESSING COSTS

E. JAMES BURKE, Chief Justice.

[¶ 1] This matter comes before the Court upon a Report and Recommendation by Petitioner, the Board of Professional Responsibility of the Wyoming State Bar (the Board) for a three year suspension of Andrea L. Richard's license to practice law. Having reviewed the Report and Recommendation and Ms. Richard's objection to it, considered the oral arguments of counsel and performed an independent and thorough review of the Board record, the Court concludes Ms. Richard violated numerous provisions of the Wyoming Rules of Professional Conduct in many instances and adopts the recommendation of the Board to suspend Ms. Richard from the practice of law for three years.

FACTS

[¶ 2] This is an attorney discipline case that arose out of Ms. Richard's alleged violations of the Wyoming Rules of Professional Conduct in seven different court proceedings between 2006 and 2012. We present the facts of each of the underlying cases separately.1

1. Fields v. Waterhouse

[¶ 3] Ms. Richard represented the Fields in this action filed in district court in Teton County, Wyoming, involving interior decorating services the defendants provided for the Fields' condominium in Jackson. The defendants served written discovery requests on the Fields on August 11, 2006. In October 2006, defendants filed a motion to compel and for sanctions. By order entered in November 2006 after a hearing, Judge Guthrie required the Fields to provide specific detailed answers to interrogatories and to produce specified documents to defendants within thirty days. Judge Guthrie also stated: “... the matters relating to discovery and the discovery disputes between the parties are complicated, time consuming, and caused significant undue expenditure of time (and therefore expense) by the parties, their counsel, and this Court.” “In the interest of judicial economy and to reduce the time required by [the] Court and expense to the parties,” Judge Guthrie appointed a special master for discovery. Although she denied the motion for sanctions, Judge Guthrie did so without prejudice, expressly stating that the motion could be renewed if the Fields failed to fully comply with the order.

[¶ 4] Seven months later, in June 2007, defendants filed a motion for sanction of dismissal, claiming the Fields had violated Judge Guthrie's November 2006 order requiring them to respond to discovery requests. After briefing by the parties and a hearing, Judge Cranfill, to whom the case had been re-assigned, issued a decision letter in September 2007, again ordering the Fields to provide specific detailed answers to the same interrogatories and produce the same documents identified in the earlier order. The September 2007 decision letter also ordered the Fields to produce a document referenced in their complaint and any DVDs relating to the matters alleged in their complaint. Although recognizing that the Fields had continued to ignore the court's orders, Judge Cranfill denied the motion for sanction of dismissal. He stated, however:

The Court is deeply concerned with the discovery matters that have come to light. It appears that Plaintiffs and Plaintiffs' counsel have formed a pattern regarding discovery that this Court will not tolerate ... if Plaintiffs' refusal to take part in meaningful discovery continues, Defendants may file another motion. Any and all sanctions will be considered in the future if such a motion is made by Defendants.

[¶ 5] In November 2007, defendants again moved for dismissal claiming the Fields had violated the two earlier orders requiring them to respond to discovery requests. After a hearing, Judge Cranfill issued a decision letter and order granting the motion and dismissing the case. In his decision letter, Judge Cranfill stated: Plaintiffs have egregiously failed to follow this Court's orders, and this pattern of behavior has continued after the Court warned that this behavior would result in ‘any and all sanctions being imposed upon them.” He concluded the severe sanction of dismissal with prejudice was appropriate, stating further, Plaintiffs' complete disregard of this Court's orders has been blatant and egregious.” For her work on the case, Ms. Richard billed her clients over $300,000 in fees and costs.

[¶ 6] As a consequence of Ms. Richard's failure to comply with the discovery requirements of the Wyoming Rules of Civil Procedure and the district court's orders, bar counsel charged her with violating Rules 3.1, 3.2, 3.4 and 8.4(d) of the Rules of Professional Conduct.2 After a hearing, the Board concluded bar counsel proved by clear and convincing evidence that Ms. Richard violated Rules 3.1, 3.2 and 3.4. The Board concluded bar counsel did not prove by clear and convincing evidence that she violated Rule 8.4(d) and dismissed that charge. The Board further concluded that as a result of Ms. Richard's violations, the parties were exposed to unnecessary expense and delays, and opposing counsel was forced to put in substantial time resulting in higher legal fees in attempting to obtain discovery. The Board also concluded Ms. Richard's clients suffered because their claims were dismissed with prejudice and they incurred substantial attorney fees and costs.

2. Centennial v. AECOM

[¶ 7] Ms. Richard represented AECOM in this breach of contract action filed in federal district court in 2009. Centennial sought to collect payments allegedly due from AECOM under the contract. It alleged that AECOM had approved extra costs Centennial incurred in performing under the contract. When a change order was submitted after the extra costs had been incurred, the project owner did not approve them. AECOM asserted it did not have to pay Centennial because Centennial did not obtain a change order in advance. Centennial alleged the parties' prior course of dealing demonstrated the practice was to complete the work first and obtain approval for the excess costs later. Ms. Richard filed an answer on behalf of AECOM asserting the exact opposite—the prior course of dealings showed that AECOM required change order approval before excess costs were incurred. Ms. Richard also claimed Centennial had advised AECOM repeatedly that the cost overrun would be around $50,000.

[¶ 8] Centennial provided documentation to AECOM showing the parties' prior course of dealing and sought to obtain similar documentation from AECOM. Despite having asserted prior course of dealing in its answer, AECOM refused to produce the documentation on the ground that it was not relevant. AECOM also refused to produce other information Centennial had requested on the ground that it was privileged or prepared in anticipation of litigation. Ms. Richard filed an affidavit supporting the refusal to produce the information, stating that she had reviewed the documentation and it, in fact, fell within the exceptions.

[¶ 9] In October 2009, Centennial took the deposition of AECOM's program manager. He testified that the $50,000 cost overrun figure asserted in AECOM's pleadings came from him, not from Centennial. Despite this testimony refuting the assertion, Ms. Richard subsequently included the assertion in her pretrial memorandum and submitted a jury instruction containing the assertion.

[¶ 10] In January 2010, AECOM filed a brief in opposition to a summary judgment motion filed by Centennial. Although the brief cited to an affidavit and exhibits, no affidavit or exhibits were attached. When the affidavit was later filed, unsigned and after the deadline, it did not contain the statements the brief represented it contained. The same day the unsigned affidavit was filed AECOM also filed a motion for extension of time to file the exhibits missing from the brief. In response, Centennial filed a reply brief in which it identified sixteen misrepresentations of fact made in AECOM's brief.

[¶ 11] On March 1, 2010, Centennial sought an order compelling production or an in camera review of the documentation withheld as privileged or prepared in anticipation of litigation and, on March 29, 2010, Magistrate Beaman ordered AECOM to submit the documentation for his review. On April 12, 2010, the magistrate entered an order finding that none of the documents at issue were prepared in anticipation of litigation and directing AECOM to produce them. With regard to the documents AECOM contended were privileged, the magistrate concluded most of them were in fact privileged but identified a number of them that were not and ordered AECOM to produce those identified as not privileged. The magistrate ordered AECOM to produce the documents by April 16, 2010.

[¶ 12] Meanwhile, on March 26, 2010, Centennial had filed a motion for sanctions to compel AECOM to produce course of dealing discovery. After a hearing, the magistrate entered an order on the motion. Addressing the parties' discovery history, the magistrate found in relevant part:

The parties submitted their initial disclosures on July 31, 2009.
Centennial's initial disclosure named a number of potential witnesses, identified the discoverable information each witness possessed and contained an extensive list of documents, compilations, tangible evidence and its computation of damages.
AECOM submitted a “barebones” initial disclosure, “which simply provided the names of three individuals and ‘identified’ general documents it stated it might rely on, such as ‘correspondence’ and ‘invoices'.”
On October 21, 2009, Centennial submitted its responses to AECOM's first discovery request, in which, with the exception of two objections, it fully answered each interrogatory and request for production and identified nine projects where AECOM had paid extra costs without advance change orders.
On October 26, 2009, AECOM submitted its
...

To continue reading

Request your trial
10 cases
  • Bd. of Prof'l Responsibility v. Manlove
    • United States
    • Wyoming Supreme Court
    • April 4, 2023
    ...and to protect the public and the administration of justice." Hinckley , 2022 WY 18, ¶ 3, 503 P.3d at 593 (quoting Bd. of Pro. Resp. v. Richard , 2014 WY 98, ¶ 51, 335 P.3d 1036, 1051 (Wyo. 2014) ). "[T]he responsibility of this Court is not to punish, but to inquire into and gauge a lawyer......
  • Bd. of Prof'l Responsibility, Wyo. State Bar v. Hinckley
    • United States
    • Wyoming Supreme Court
    • February 2, 2022
    ...in violation of the district court's order, thereby interfering with the State's interests in expeditiously resolving criminal cases. Richard, ¶ 60, 336 P.3d at 1053-54 (respondent's failure comply with the district court's order compelling discovery violated Rule 3.2). Rule 3.3(a) [¶34] Th......
  • Bd. of Prof'l Responsibility v. Hiatt
    • United States
    • Wyoming Supreme Court
    • June 11, 2018
    ...lawyer from bringing its image into disrepute’ and to ‘protect the public and the administration of justice.’ " Bd. of Prof'l Responsibility v. Richard , 2014 WY 98, ¶ 51, 335 P.3d 1036, 1051 (Wyo. 2014) (citing Bd. of Prof'l Responsibility v. Casper , 2014 WY 22, ¶ 7, 318 P.3d 790, 793 (Wy......
  • Bd. of Prof'l Responsibility v. Custis
    • United States
    • Wyoming Supreme Court
    • April 16, 2015
    ...legal system, assure the fair administration of justice, and deter other lawyers from engaging in similar misconduct. Bd. of Prof'l Responsibility v. Richard, 2014 WY 98, ¶ 51, 335 P.3d 1036, 1051 (Wyo.2014) ; In re Abrams, 227 Ariz. 248, 257 P.3d 167, 169–70 (2011) ; In re Wiederholt, 24 P......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT