Bd. of Prof'l Responsibility v. Custis
Decision Date | 16 April 2015 |
Docket Number | No. D–14–0007.,D–14–0007. |
Citation | 348 P.3d 823,2015 WY 59 |
Parties | BOARD OF PROFESSIONAL RESPONSIBILITY, Wyoming State Bar, Petitioner, v. Dion J. CUSTIS, Respondent. |
Court | Wyoming Supreme Court |
ORDER OF PUBLIC CENSURE
[¶ 1] Attorney Dion J. Custis objects to the Report and Recommendation for public censure by the Wyoming State Bar Board of Professional Responsibility (BPR). Having reviewed the Report and Recommendation and Mr. Custis's objection to it, considered the oral arguments of counsel, and performed an independent and thorough review of the BPR record, the Court concludes that Mr. Custis violated several of the Wyoming Rules of Professional Conduct and accepts the BPR's recommendation that Mr. Custis be publicly reprimanded and that he pay costs and fees.
[¶ 2] Mr. Custis argued that entry of default against him violated his due process rights, and that there was insufficient evidence to prove the rule violations and recommended sanction. This Court concludes Mr. Custis's right to due process was not violated and default was proper.
ISSUES
[¶ 3] 1. Did entry of default violate Mr. Custis's right to due process?
2. Is there a factual basis for finding Mr. Custis violated the Wyoming Rules of Professional Conduct?
3. What are the appropriate sanctions?
FACTS
[¶ 4] The Formal Charge arising from Mr. Custis's representation of Gilbert Ortiz, Jr. stemmed from a brief filed by Mr. Custis in the Wyoming Supreme Court appealing Mr. Ortiz's convictions on three counts of second-degree sexual abuse of a minor. Ortiz v. State, 2014 WY 60, 326 P.3d 883 (Wyo.2014). In his brief, Mr. Custis argued that the forensic interviewer, Lynn Huylar, had improperly vouched for the victim's credibility. The brief included an extensive discussion, with quotes, of Ms. Huylar's testimony. However, the testimony referred to was not Ms. Huylar's testimony in the Ortiz case; rather, it was her testimony in a similar case, Seward v. State, 2003 WY 116, 76 P.3d 805 (Wyo.2003), in which this Court held that she improperly vouched for the victim's credibility. No citation informed the reader that the testimony discussed had been given in Seward and not Ortiz. The Formal Charge contained the following allegations:
The Formal Charge alleged that Mr. Custis's conduct violated Wyo. R. Prof. Conduct 3.3(a) ( ), 5.3 (responsibilities regarding nonlawyer assistants), 8.4(c) ( ), and 8.4(d) ( ).
[¶ 5] The BPR also considered six exhibits, without objection from Mr. Custis:
[¶ 6] On October 17, 2013, Mr. Custis was served the Formal Charge via certified mail at his address on file with the Wyoming State Bar, in accordance with § 11(e) of the Disciplinary Code for the Wyoming State Bar (Disciplinary Code).1 Tracking information from the United States Postal Service confirmed that the mailing was received at Mr. Custis's address on October 18, 2013. Section 11(f) of the Disciplinary Code provided Mr. Custis twenty days from October 17, 2013 to serve an answer on the BPR and bar counsel. Mr. Custis failed to file an answer to either charge by November 6, 2013, the expiration of the twenty-day period.
[¶ 7] On November 18, 2013, bar counsel filed and served a Motion for Entry of Order of Default against Mr. Custis. Mr. Custis opposed the motion, alleging improper service under W.R.C.P. 5(b)(1) for failure to serve his attorney in the matter.2 Mr. Custis also filed a response to the charge.
[¶ 8] The BPR entered an Order of Default against Mr. Custis, and set a hearing to determine the appropriate form of discipline. Mr. Custis's Motion for Reconsideration of Entry of Default was denied.
[¶ 9] At the sanction hearing, bar counsel called the deputy attorney general who represented the State of Wyoming in the Ortiz appeal. He explained that a lengthy passage from the Seward opinion was inserted into the Ortiz brief, and someone took the effort to replace Seward's reference to a two-to three-year old child, with a reference to “a young child,” which better conformed to the facts in the Ortiz appeal. When the deputy attorney general was asked his reaction to Mr. Custis's explanation that the misrepresentation was an inadvertent drafting error, he responded: The deputy attorney general concluded his testimony by explaining that addressing the issue demanded extra time and resources from the Attorney General's office.
[¶ 10] Mr. Custis presented three witnesses: his paralegal, who assisted with the Ortiz brief; Donna Domonkos, an appellate attorney who worked with Mr. Custis's paralegal and reviewed the Ortiz brief; and Mr. Custis's office administrator.
[¶ 11] Ms. Domonkos testified regarding her significant experience writing and arguing appeals, and then explained her specific involvement in the Ortiz briefing.
Ms. Domonkos further testified that from her interactions with the paralegal there was no indication that Mr. Custis intentionally directed the inclusion of the misrepresentation.
[¶ 12] Mr. Custis's paralegal testified to his involvement in the briefing, “I was the head paralegal at the time, so I did a lot of the preliminary drafting and research.” He testified that he was responsible for the misrepresented language in the brief, and it was a result of a “copy and paste mistake from a clipboard on WordPerfect.” The paralegal further explained the insertion of the “young child” language resulted from an accidental copying and pasting of his “comparison notes”—facts from the Ortiz appeal that he was comparing to his case law research. He testified, “It was definitely inadvertently done,” and when Mr. Custis found out about the error from the State's motion, he “was kind of freaking out.” He concluded by explaining the error:
[¶ 13] Mr. Custis's office administrator testified to changes in Mr. Custis's office administration following his sanction in Board of Professional Responsibility, Wyoming State Bar v. Custis, 2012 WY 142, 295 P.3d 334 (Wyo.2012) (Custis I ). She explained that the office now had better communication, weekly status meetings, and case files for every client detailing communications with the client, upcoming court dates, and client contact information.
[¶ 14] Mr. Custis testified to improvements in his office administration since his 2012 sanction in Custis I:
I have instructed my office, my secretary, paralegal, even my runner, that there's not to be any mistakes. So I've tried to do everything I can. I've tried to improve my office policy by meeting weekly, going through, as [the office administrator] said, with the case log, making sure that there's [sic] no mistakes made on outgoing pleadings, making sure all the clients are notified, making sure there's no questions of any clients.
Mr. Custis testified to his paralegal's role in the Ortiz brief:
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