Bd. of Prof'l Responsibility v. Custis, D–12–0008.

• Decision Date: 07 November 2012
• Docket Number: No. D–12–0008.,D–12–0008.
• Citation: 295 P.3d 334
• Parties: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Dion J. CUSTIS, WSB # 6–2674, Respondent.
• Court: Wyoming Supreme Court

295 P.3d 334

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,

v.Dion J. CUSTIS, WSB # 6–2674, Respondent.

No. D–12–0008.

Supreme Court of Wyoming.

Nov. 7, 2012.

ORDER OF PUBLIC CENSURE

[¶ 1] This matter came before the Court upon a “Report and Recommendation for Public Censure,” filed herein August 29, 2012, by the Board of Professional Responsibility for the Wyoming State Bar. The Court, after a careful review of the Board of Professional Responsibility's Report and Recommendation, the “Respondent's Brief,” and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent Dion J. Custis should be publicly censured for his conduct, which is described in the attached Report and Recommendation for Public Censure. It is, therefore,

[¶ 2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's Report and Recommendation for Public Censure, which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further

[¶ 3] ADJUDGED AND ORDERED that Dion J. Custis is hereby publicly censured for his conduct; and it is further

[¶ 4] ORDERED that, on or before December 31, 2012, Mr. Custis shall complete four (4) hours of continuing legal education on the subject of ethics; and it is further

[¶ 5] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Mr. Custis shall reimburse the Wyoming State Bar the amount of $11,897.60, representing the costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Mr. Custis shall pay the total amount of $12,397.60 to the Clerk of the Board of Professional Responsibility on or before December 31, 2012; and it is further

[¶ 6] ORDERED that the Clerk of this Court shall docket this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, as a matter coming regularly before this Court as a public record; and it is further

[¶ 7] ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the Wyoming State Bar, this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

[¶ 8] ORDERED that the Clerk of this Court cause a copy of this Order of Public Censure to be served upon Respondent Dion J. Custis.

BY THE COURT: ^*

/s/ MARILYN S. KITE

MARILYN S. KITE

Chief Justice

D–12–0008

BEFORE THE SUPREME COURT

STATE OF WYOMING

IN THE MATTER OF DION J. CUSTIS WSB # 6–2674, Respondent.

WSB No. 2001–131

REPORT AND RECOMMENDATION FOR PUBLIC CENSURE

THIS MATTER having come before the Board of Professional Responsibility of the Wyoming State Bar for hearing on May 11, 2012, and July 11, 2012, and the Board having received certain exhibits into evidence, having heard the testimony of numerous witnesses, having reviewed the briefing and arguments of counsel and being fully advised in the premises, FINDS, CONCLUDES AND RECOMMENDS as follows:

Findings of Fact

1. Respondent was the public defender appointed to represent a 45–year–old male (“Respondent's client”) who was accused of sexually abusing his niece over a two-year period that began when the girl was six years old. The abuse began in 2006, when Respondent's client was recuperating from a motorcycle accident in quarters provided by the sister and brother-in-law of Respondent's client, who were the parents of the young sexual abuse victim. The abuse was not discovered until 2009 (a year or so after Respondent's client left Cheyenne and returned to California), when the girl started talking about her sexual contact with her uncle.

2. Respondent's client was arrested and extradited to Wyoming in early 2010. He had multiple prior felony convictions.

3. After his motorcycle accident and before his arrest, Respondent's client had sued a Laramie County sheriff's deputy for pulling out in front of him and causing the crash. Respondent's client was represented in the personal injury action by attorneys Robert Reese of Green River and Donald J. Sullivan of Cheyenne.

4. The personal injury case was tried in federal court in Casper in the spring of 2009. Respondent's client traveled from California to Casper for a bench trial before the Honorable William F. Downes, United States District Court Judge; then returned to California where he waited for Judge Downes' decision. It would not come for nearly two years.

5. While Respondent's client waited for Judge Downes' decision, his niece, now approaching age ten, told her mother what her uncle had done to her. Respondent's client was arrested in California and extradited to Wyoming, and Respondent was appointed as his public defender. Respondent's client spent more than a year in jail in Cheyenne while his criminal case worked its way through the docket and Judge Downes worked on his decision in the personal injury case.

6. In March of 2011, Respondent and his client signed a written plea agreement with the District Attorney by which (1) Respondent agreed to plead guilty to First Degree Sexual Abuse of a Minor Under 13 Years of Age; (2) the State would recommend a sentence of 12 to 22 years; and (3) Respondent would not attempt to argue to the Court for a lesser sentence. See Exhibit A.

7. Approximately two weeks after the plea agreement was signed, Respondent received word of a $250,000 award in the personal injury case. See Exhibit B.

8. After Judge Downes issued the award, Respondent called his client's sister (the sexual abuse victim's mother), and offered a $15,000 inducement (couched as “future restitution”) in exchange for the mother's agreement to recommend to the Court that Respondent's client receive a suspended sentence and no prison time. The offer was conditioned on the mother successfully persuading the District Attorney to go along with the no-incarceration recommendation. One of the stipulated hearing exhibits (Exhibit F) is a recorded conversation in which Respondent tells the mother, “The agreement would have to be that the DA goes along with this. So it would be you and the DA agreeing to recommend a suspended sentence. If the DA won't do that, then it's really worthless for [Respondent's client] to even try to do this, okay?” Respondent did no research. Respondent knew that he could not offer money to the victim's family as that would be a clear ethical violation.

9. The victim's parents declined Respondent's offer, submitted victim impact statements recommending a lengthy prison sentence for their daughter's molester, and appeared and testified at the sentencing hearing. Judge Michael K. Davis sentenced Respondent's client to 12 to 22 years in prison consistent with the written plea agreement, and ordered Respondent's client to pay past restitution in the amount of $12,738.00 to Aetna Insurance for counseling expenses paid by the family's health insurance, and $4,864.00 to the Wyoming Division of Victim Services for the uninsured portion of such counseling expenses. See Exhibit L.

10. It turned out that Respondent's client received nothing from the $250,000 personal injury award, most of which went to pay attorney's fees and costs, with the balance (approximately $58,000) being interpleaded into court for the benefit of the judgment creditors of Respondent's client. Donald J. Sullivan, one of the attorneys for Respondent's client in the personal injury action, testified that Respondent never called him to discuss the award or ask how much of the proceeds Respondent's client would be receiving.

11. The Wyoming State Bar contends that Respondent was fully aware that he was offering the victim's mother a monetary inducement to discourage her from providing relevant information to the sentencing judge (i.e., her honest recommendation for incarceration as the appropriate disposition of the criminal case in which her young daughter was the victim of sexual abuse at the hands of her uncle; seeW.S. § 7–21–102(c)(iv)) and to substitute the recommendation desired by Respondent's client (i.e., probation, not prison). The Wyoming State Bar contends that Respondent violated Rules 3.4(f), 4.1(a) and 8.4(d) of the Wyoming Rules of Professional Conduct.

12. The hearing in this matter proceeded in two phases. In the first hearing, held May 11, 2012, the Board received evidence regarding whether a violation of the Rules of Professional Conduct occurred. As set forth below, it was the conclusion of the Board following the first hearing that Respondent violated Rule 8.4(d). No violation was found by clear and convincing evidence with respect to Rule 3.4(f) or Rule 4.1(a). The case proceeded to the second phase, held July 11, 2012, at which evidence was received regarding aggravating and mitigating circumstances in order to determine appropriate discipline. SeeSection 19(c) of the Disciplinary Code for the Wyoming State Bar.

13. In the first hearing, the sister of Respondent's client (who was the mother of the sexual abuse victim) testified to the following:

a. In May of 2006, Respondent's client, who was living in California at the time, came to visit his sister's family in Cheyenne. The family consisted of Respondent's client's sister, her husband, and the couple's 6–year–old daughter and 4–year–old son.

b. On the third day of his visit to Cheyenne, Respondent's client was seriously injured in a motorcycle accident.

c. Following a lengthy hospitalization, Respondent's client stayed in Cheyenne to recuperate. He lived first with his sister and her family for a short time before moving to a more wheelchair-friendly mobile home that the family rented for Respondent's client near their residence.

d. Respondent's client remained in the rented mobile home for more than two years. During that time, he spent significant time alone with his young niece and nephew.

e. During 2008, the brother...