Bd. of Prof'l Responsibility v. Tolin, D-19-0002

• Decision Date: 20 March 2019
• Docket Number: D-19-0002
• Citation: 436 P.3d 453 (Mem)
• Parties: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Donald L. TOLIN, WSB # 5-1699, Respondent.
• Court: Wyoming Supreme Court

436 P.3d 453 (Mem)

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,

v.Donald L. TOLIN, WSB # 5-1699, Respondent.

D-19-0002

Supreme Court of Wyoming.

March 20, 2019

ORDER OF 30-DAY SUSPENSION

[¶1] This matter came before the Court upon the Board of Professional Responsibility’s "Report and Recommendation for 30-Day Order of Suspension," filed herein February 1, 2019. After a careful review of the Report and Recommendation and the file, the Court finds the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Donald L. Tolin should be suspended from the practice of law for 30 days. It is, therefore,

[¶2] ADJUDGED AND ORDERED that the Board of Professional Responsibility’s Report and Recommendation for 30-Day Order of Suspension, 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 30-Day Order of Suspension, Respondent Donald L. Tolin shall be, and hereby is, suspended from the practice of law for a period of 30 days, with the period of suspension to begin on April 1, 2019; and it is further

[¶4] ORDERED that, during the period of suspension, Respondent shall comply with the requirements of the Wyoming Rules of Disciplinary Procedure, particularly the requirements found in Rule 21 of those rules; 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 $5,471.54, representing the costs incurred in handling this matter, as well as pay the administrative fee of $750.00. Respondent shall pay the total amount of $6,221.54 to the Wyoming State Bar on or before June 20, 2019. 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 30-Day Suspension, along with the incorporated Report and Recommendation for 30-Day Order of Suspension, 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 30-Day Suspension, along with the incorporated Report and Recommendation for 30-Day Order of Suspension, 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 30-Day Suspension to be served upon Respondent Donald L. Tolin.

[¶9] DATED this 20th day of March, 2019.

BY THE COURT:

/s/ MICHAEL K. DAVIS

Chief Justice

Attachment

                BEFORE THE SUPREME COURT
                STATE OF WYOMING
                In the matter of
                DONALD L. TOLIN
                WSB # 5-1699, WSB No. 2017-037
                Respondent
                

REPORT AND RECOMMENDATION FOR 30-DAY ORDER OF SUSPENSION

THIS MATTER came before the Board of Professional Responsibility of the Wyoming State Bar (the "Board") on January 14 and 15, 2019, for a disciplinary hearing pursuant to Rule 15(b), W.R.Disc.P. A quorum of five members of the board was in attendance. The Wyoming State Bar was represented by Bar Counsel, Mark W. Gifford. Respondent was present in person and represented himself. Bar Counsel's Exhibits BC-1 (consisting of numbered pages OBC-001 through OBC-151) and BC-2 were received into evidence, as were Respondent's exhibits, which filled three (3) three-ring binders.

Based upon the exhibits received into evidence, the testimony of witnesses and with due consideration given to the statements of counsel, the Board unanimously FINDS, CONCLUDES and RECOMMENDS as follows:

Findings of Fact

1. This matter arises from a complaint against Respondent, a Casper lawyer who was admitted to practice in 1978, which was submitted in March 2017 by Respondent's client, Brandon MacManus of Casper.

2. MacManus is the father of a daughter born in May 2012 to Haley Hansen. In September 2014, MacManus filed apro se petition to establish paternity, custody and child support

for his daughter. MacManus and Hansen were both self-represented at a hearing held in the matter before Judge Sullins in February 2015. Citing a lack of proof by either party, Judge Sullins declined to order child support or render a paternity determination. Judge Sullins ordered custody to remain with the mother.

3. On March 4, 2015, MacManus hired Respondent to represent him in the paternity matter. He paid Respondent a $2,000.00 retainer and signed a Legal Services Fee Agreement. Respondent filed an entry of appearance the next day.

4. For more than a year after entering his appearance in the paternity matter, Respondent did nothing to move the matter forward. During this time, MacManus had no contact with his daughter as the daughter's mother denied visitation. Notably, at no time did Respondent seek a temporary order to allow Respondent to have visitation with his daughter.

5. When seventeen months passed with no apparent progress in the matter, MacManus communicated to Respondent on August 9, 2016, that he had "decided to go a different direction" (he had decided to hire a different attorney) and requested his file. On August 16, 2016, having heard nothing from Respondent, MacManus made another request for his file and was told by Respondent that Respondent had filed something in the paternity action, according to MacManus, "without my consent."

6. On August 19, 2016, Respondent filed a "Second Petition to Establish Visitation, Child Support and First Petition for Modification of Child Custody."¹ On October 11, 2016, Casper lawyer Zak Szekely filed an answer on Hansen's behalf.

7. Nothing further was filed in the matter until April 2017, when Szekely informed Respondent that he was going to file a motion to dismiss MacManus's petition for lack of substantial action. This prompted Respondent to file a request for a trial setting on April 18, 2017.

Szekely filed a motion to dismiss for lack of substantial action on the same day. During the six months that passed between the filing of the second petition and the filing of Szekely's motion, Respondent did nothing to move the matter forward. As a result, MacManus continued to be deprived of visitation with his daughter.

8. In the meantime, MacManus submitted a complaint to Bar Counsel on March 20, 2017, complaining about Respondent's lack of diligence and requesting, "Revocation of license, from what I've heard I'm not the only person this happened w/."

9. In his initial response to the complaint, Respondent denied that he had violated any rule of professional conduct. Bar Counsel requested that Respondent produce copies of pleadings and relevant correspondence with Hansen's counsel. Respondent did so via a letter dated April 22, 2017. Upon review of the documents produced by Respondent, Bar Counsel determined to put the investigation on hold pending resolution of the underlying paternity action, and so advised Respondent and MacManus via letters dated May 3, 2017.

10. On June 14, 2017, a hearing on Szekely's motion to dismiss was held before Judge Sullins. Judge Sullins denied the motion to dismiss and set the matter for hearing on August 15, 2017. At the hearing, Respondent informed Judge Sullins that it was likely the case would settle.

11. On July 24 and 25, 2017, Respondent and Szekely exchanged emails regarding settlement options. These email communications ended with Szekely sending the following to Respondent:

I would opine that the chances of your client succeeding in obtaining custody are less than slim and pretty close to none. He has had no contact with this child, he has not attempted to contact or support this child, now you are asking for visitation without any proper finding of paternity nor payment of any support obligation. This child has a man in her life that supports her financially and emotionally, you client has not even tried to do either of those, while my client has offered visitation, you now threaten to take the child away from her. We have made our offer, it stands for now though it will be rescinded fairly quickly if this continues.

Further client has not filed a CFA [Confidential Financial Affidavit], nor had he offered anything under W.R.C.P. 26(a)(1.2)(A) that he has a claim to obtain custody. Further under W.R.C.P. 26(a)(1.3) those disclosures must be made 30 days after my client was served, this has not occurred. So, we will have a hearing without any witnesses other [than] your client and my client, there will be no exhibits, and absolutely no evidence that your client is even the biological father, other than a birth certificate. There isn't even an acknowledgment of paternity in the file. The offer will expire on Thursday at 5:00.

12. On August 15, 2017, the parties and their counsel were present in Judge Sullins' court for the scheduled trial. Before the trial commenced, Respondent asked Judge Sullins if the parties might have some time to discuss settlement. Judge Sullins acquiesced, and an agreement in principle was made to allow MacManus supervised visitation for a period of time until, in the opinion of the daughter's counselor, unsupervised visitation could begin. Other terms of the settlement were discussed and agreed upon and the trial did not go forward. It was Respondent's task to draft a stipulated order consistent with the settlement agreement. As discussed below, it would take Respondent more than six months to complete this relatively simple task.

13. On November 15, 2017, Bar Counsel wrote to Respondent and requested an update as to case status. Respondent responded via email on November 29, 2017, stating, "Mark per your request for an update in this matter, please note that the parties, through counsel, reached a stipulated agreement in this custody matter. We have been working with the child's individual therapist/counselor to transition with visitations for my client with his daughter. My client...