Bd. of Prof'l Responsibility v. Pearce

• Decision Date: 15 July 2020
• Docket Number: D-20-0002
• Citation: 467 P.3d 158
• Parties: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Michael J. PEARCE, WSB # 7-4838, Respondent.
• Court: Wyoming Supreme Court

467 P.3d 158

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,

v.Michael J. PEARCE, WSB # 7-4838, Respondent.

D-20-0002

Supreme Court of Wyoming.

July 15, 2020

ORDER OF DISBARMENT

[¶ 1] This matter came before the Court upon the Board of Professional Responsibility's "Report and Recommendation for Order of Disbarment," filed herein June 2, 2020. The Court notes Respondent Michael J. Pearce did not file any objection to the Report and Recommendation. See Rule 16, Wyoming Rules of Disciplinary Procedure. The Court, after a careful review of the Report and Recommendation and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent Michael J. Pearce should be disbarred. It is, therefore,

[¶ 2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's "Report and Recommendation for Order of Disbarment," 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, as a result of the conduct set forth in the Report and Recommendation for Order of Disbarment, Respondent Michael J. Pearce shall be, and hereby is, disbarred, effective immediately; and it is further

[¶ 4] ORDERED that Respondent shall comply with the requirements of the Wyoming Rules of Disciplinary Procedure, particularly the requirements found in Rule 21 of those rules. That rule governs the duties of disbarred and suspended attorneys; and it is further

[¶ 5] ORDERED that, pursuant to Rule 25 of the Wyoming Rules of Disciplinary Procedure, Respondent shall reimburse the Wyoming State Bar the amount of $549.75, representing the costs incurred in handling this matter, as well as pay administrative fees of $1,500.00. Respondent shall pay the total amount of $2,049.75 to the Wyoming State Bar on or before October 1, 2020. If Respondent fails to make payment in the time allotted, execution may issue on the award; and it is further

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

[¶ 7] ORDERED that, pursuant to Rule 9(b) of the Wyoming Rules of Disciplinary Procedure, this Order of Disbarment, along with the incorporated Report and Recommendation for Order of Disbarment, 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 Disbarment to be served upon Respondent Michael J. Pearce.

[¶ 9] DATED this 15^th day of July, 2020.

BY THE COURT:

/s/MICHAEL K. DAVIS

Chief Justice

BEFORE THE SUPREME COURT

STATE OF WYOMING

In the matter of MICHAEL J. PEACE, WSB No, 7-4838, Respondent

BPR Nos. 2019-075 & 2019-126

REPORT AND RECOMMENDATION FOR ORDER OF DISBARMENT

THIS MATTER came before a Hearing Panel of the Board of Professional Responsibility of the Wyoming State Bar ("BPR") on May 14, 2020, for a telephonic sanction hearing pursuant to Rule 15(b)(3)(C), W.R.Disc.P. Panel members Christopher H. Hawks (Chair), Janine Thompson and Robert C. Jarosh were in attendance. The Wyoming State Bar was represented by Bar Counsel, Mark W. Gifford. Respondent appeared on his own behalf.

Procedural History

1. The Formal Charge in this matter (which consolidated two separate disciplinary investigations) was filed on January 9, 2020. Personal service was made on Respondent on January 16, 2020. Said service was effective pursuant to Rule 13(b), W.R.Disc.P.

2. Respondent did not file an answer and default was entered on February 10, 2020. As a result of Respondent's failure to file an answer, all allegations of the Formal Charge are deemed admitted.

3. On March 5, 2020, an Order Setting Sanction Hearing was issued.

4. On April 28, 2020, an Order Setting Telephonic Sanction Hearing and Setting Deadline was issued. The order required the parties to file listings of hearing exhibits and witnesses (with hearing exhibits attached) by May 7, 2020. Respondent did not file a listing of hearing exhibits and witnesses.

5. All members of the Panel were in attendance at the May 14, 2020, sanction hearing, as were Bar Counsel and Respondent.

6. Bar Counsel's Exhibits BC-1 through BC-7 were received into evidence without objection from Respondent.

Findings of Fact

7. Respondent is currently serving a one-year suspension, commencing August 22, 2019. See Board of Prof. Resp. v. Pearce, 2019 WY 85, 446 P.3d 717 (Wyo. 2019). Respondent was admitted to the Wyoming State Bar in 2012 and at all times relevant to this proceeding maintained a private practice of law in Laramie, Wyoming.

BPR No. 2019-075

8. The investigation in BPR No. 2019-75 commenced following receipt on July 2, 2019, of a complaint from Donald Gene Sikora, a client of Respondent. Respondent represented Mr. Sikora in a criminal matter in circuit court in Rawlins. Mr. Sikora complained that Respondent failed to communicate with him and failed to return the file after the representation ended. Mr. Sikora provided a detailed timeline regarding his communications with respondent from early May through late June 2019. According to the timeline, Respondent advised Mr. Sikora that he was terminating his representation of Mr. Sikora on June 24, 2019:

I wanted to advise I will be sending your file as I will be withdrawing from your case. I have engaged in other pursuits that keep me from practicing law and have not been able to dedicate time sufficient to it. I need to copy your file before sending it to you. This way you can find more attentive help than I can provide right now.

9. On July 8, 2019, Bar Counsel initiated an investigation, sending a copy of Mr. Sikora's complaint and requesting a written response by July 22, 2019. Bar Counsel cited possible violations of Rule 1.3 (diligence), Rule 1.4 (communication with client) and Rule 1.16 (termination of representation.)

10. Respondent did not submit a timely written response. On July 24, 2019, Bar Counsel sent another letter requesting a response and reminding Respondent of his obligation to cooperate with Bar Counsel's inquiries pursuant to Rule 8.1(b), W.R.Prof.Cond., and Rule 8(a), W.R.Disc.P. Respondent did not respond.

11. On August 14, 2019, the Wyoming Supreme Court issued an order approving Respondent's stipulated, one-year suspension, with the period of suspension to commence August 22, 2019.

12. On September 9, 2019, Bar Counsel received the following from Respondent:

Response to Sikora Complaint Instead of going through a point by point response, I have decided to give my recounting of my service to Mr. Sikora. In late winter or early spring of 2017, I was retained by Mr. Sikora for representation in a criminal matter concerning charges against him in Rawlins, Carbon County, Wyoming. Trial was set for November, 2017, wherein we had a day long trial and he was found guilty of interference with a police officer and public nuisance.

Mr. Sikora asked that I help him appeal the decision, and timely did so. The Court took its time in rendering a decision, but eventually did so without a hearing. I was waiting for the decision for some time, and Mr. Sikora kept asking for updates, to which I would reply there was none. As I was preparing for a request for a hearing or review this summer, I heard that the Court had rendered an opinion in favor of the state on the appeal. It was during this time that I had learned of my forthcoming suspension and told Mr. Sikora would not be able to further represent him. He asked to meet at least to exchange the file, and we had agreed over a weekend but I did not hear from him that weekend.

I have his file and am happy to return that to him. I have, however, provided him with all relevant material prior, during the lead to his trial and afterwards. He has made [sic] particularly concerned with subpoena's, [sic] and I have provided all that I have.

13. Mr. Sikora was provided with a copy of Respondent's response and was given the opportunity to submit additional evidence in support of his complaint. On October 3, 2019, additional documents were received from Mr. Sikora. On October 17, 2019, the new information received from Mr. Sikora was mailed to Respondent with a request for a response by October 31, 2019. A follow-up request dated November 14, 2019, met with no response. As of May 14, 2020, Respondent has yet to return Mr. Sikora's file.

14. Respondent's failure and refusal to cooperate with Bar Counsel's investigation in BPR No. 2019-075 constitutes a violation of Rule 8.1(b), W.R.Prof.Cond., and Rule 8(a), W.R.Disc.P. In addition, in failing to file an answer to the formal charge, Respondent is deemed to have admitted to violations of Rule 1.3 (diligence), Rule 1.4 (communication with client) and Rule 1.16 (termination of representation).

BPR No. 2019-126

15. On October 22, 2019, Bar Counsel received a new complaint against Respondent, submitted on behalf of two of Respondent's former clients, Isaac and Courtney Gordon, whom Respondent represented in litigation with Big Sky Insulation, Inc. ("Big Sky"). The complaint provided evidence that Respondent acted incompetently and fraudulently in his representation of the Gordons, who engaged new counsel to file a malpractice suit against Respondent in the Second Judicial District Court, Albany County, Wyoming, on October 15, 2019.

16. The malpractice complaint generally alleged that in Respondent's representation of the Gordons in litigation with Big Sky Insulations, Inc., Respondent failed to comply with the court's scheduling order; failed to prepare his clients’ case; failed to conduct discovery; failed to respond to discovery; caused his clients to be sanctioned for discovery violations; and failed to inform his clients of settlement offers or of sanctions that had been levied against them as a result of Respondent's...