Board of Prof. Responsibility v. Fulton

• Citation: 2006 W.Y. 51,133 P.3d 514
• Decision Date: 20 April 2006
• Docket Number: No. D-06-3.,D-06-3.
• Parties: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Jo Ann FULTON, Respondent.
• Court: United States State Supreme Court of Wyoming

Page 514

133 P.3d 514

2006 W.Y. 51

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Jo Ann FULTON, Respondent.

No. D-06-3.

Supreme Court of Wyoming.

April 20, 2006.

ORDER SUSPENDING ATTORNEY FROM THE PRACTICE OF LAW

This matter came before the Court upon a "Report and Recommendation to the Wyoming Supreme Court," filed herein March 17, 2006, by the Board of Professional Responsibility for the Wyoming State Bar. After a careful review of the Board of Professional Responsibility's Report and Recommendation, the materials attached thereto, "Respondent Fulton's Response to Report and Recommendation to the Wyoming Supreme Court," and the file, this Court finds that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that the Respondent, Jo Ann Fulton, should be suspended form the practice of law for a period of three years. It is, therefore,

ADJUDGED AND ORDERED that the Board of Professional Responsibility's Report and Recommendation to the Wyoming Supreme Court, 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

ADJUDGED AND ORDERED that, as a result of the conduct set forth in the Report and Recommendation, Respondent Jo Ann Fulton shall be, and hereby is, suspended from the practice of law for a period of three years from the date of this order; and it is further

ORDERED that Jo Ann Fulton shall reimburse the Wyoming State Bar the amount of $3,779.98, representing the costs incurred in handling this matter, as well as pay an administrative fee of $1,000.00, by paying the amount of $4,779.98 to the Clerk of the Board of Professional Responsibility, on or before August 1, 2006; and it is further

ORDERED that, pursuant to Rule 4(c) of the Disciplinary Code for the Wyoming State Bar, this Order Suspending Attorney from the Practice of Law, along with the incorporated Report and Recommendation, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

ORDERED that the Clerk of this Court shall docket this Order Suspending Attorney from the Practice of Law, along with the Report and Recommendation, as a matter coming regularly before this Court as a public record; and it is further

ORDERED that the Clerk of this Court transmit a copy of this Order Suspending Attorney from the Practice of Law to the members of the Board of Professional Responsibility, and the clerks of the appropriate courts of the State of Wyoming.

                /s/ William U. Hill
                William U. Hill
                Chief Justice
                

BEFORE THE BOARD OF PROFESSIONAL RESPONSIBILITY WYOMING STATE BAR STATE OF WYOMING

In the matter of JO ANN FULTON, WSB Attorney No. 5-2686, Respondent.

Docket Nos. 2005-02, and 2005-29.

REPORT AND RECOMMENDATION TO THE WYOMING SUPREME COURT

On February 28, 2006, a disciplinary hearing was held before the Wyoming State Bar Board of Professional Responsibility (hereafter the "Board") in the matter of Jo Ann Fulton, Docket Nos. #2005-02 and #2005-29. The Wyoming State Bar was represented by Bar Counsel, Rebecca A. Lewis, and Respondent Jo Ann Fulton represented herself. After hearing evidence and argument from both sides, the Board submits the following Report and Recommendation.¹

PROCEDURAL HISTORY

In Docket No. 2005-02, an Amended Complaint was filed and served on Respondent on November 2, 2005. Pursuant to Rule 11(f) of the Disciplinary Code for the Wyoming State Bar (hereafter the "Disciplinary Code"), Respondent had twenty (20) days to serve an answer on Bar Counsel and the Board. Respondent failed to timely answer the Amended Complaint in Docket No. 2005-02. On November 28, 2005, Bar Counsel filed and served a Motion For Entry of An Order of Default, together with a Notice of Imminent Default on Amended Complaint. Respondent did not timely respond to the Notice of Imminent Default, and on December 20, 2005, the Board issued its Entry of Order of Default and Order Setting Hearing on Sanctions in Docket No. 2005-02.

In Docket No. 2005-29, a Complaint was filed and served on Respondent on November 15, 2005. Pursuant to Rule 11(f) of the Disciplinary Code, Respondent had twenty (20) days to serve an answer on Bar Counsel and the Board. Respondent failed to timely answer the Complaint in Docket No. 2005-29. On December 6, 2005, Bar Counsel filed and served a Motion For Entry of An Order of Default together with a Notice of Imminent Default on Disciplinary Summons and Complaint. Respondent did not timely respond the Notice of Imminent Default, and on December 27, 2005, the Board issued its Entry of Order of Default and Order Setting Hearing on Sanctions in Docket No. 2005-29.

On January 10, 2006, the Chair of the Board, acting as a disciplinary judge pursuant to Rule 11(g) of the Disciplinary Code, held a pre-hearing conference. At the conference, Respondent requested leave to file a motion to set aside the default orders in both Docket No. 2005-02 and Docket No. 2005-29, and on January 10, 2006, the Board issued its Order Continuing Hearing in which the disciplinary hearings set for January 18 and 19, 2006 were continued, and further ordered that Respondent's motion for relief pursuant to Rule 60 of the Wyoming Rules of Civil Procedure be filed no later than January 20, 2006. Respondent's Rule 60(b) Motion For Relief From Entry of Default was untimely filed on January 24, 2006. Notwithstanding the untimely filing, Respondent's Motion was considered by the Board, and arguments by Respondent and Bar Counsel were heard by the Board on February 10, 2006.

The Board found that the default orders entered in Docket Nos. 2005-02 and 2005-29 were properly entered pursuant to Rule 11(m) of the Disciplinary Code. It therefore became Respondent's burden to prove that relief from the default orders was warranted under Rule 60 of the Wyoming Rules of Civil Procedure, made applicable to these proceedings pursuant to Rule 11(n) of the Disciplinary Code. Under Rule 60, a litigant may seek relief from judgments and orders attributable to (a) clerical mistakes, or (b) other reasons. In this matter, Respondent seeks relief from the default orders pursuant to Rule 60(b)(1), which authorizes relief, upon such terms as are just, when the entry of the order was occasioned by "mistake, inadvertence, surprise or excusable neglect." Under applicable Wyoming law, a Rule 60(b)(1) motion must clearly be substantiated by adequate proof, and the burden is on the movant to bring himself within the rule. Vanesse v. Ramsey, 847 P.2d 993 (Wyo.1993); United States Aviation, Inc. v. Wyoming Avionics, Inc., 664 P.2d 121 (Wyo.1983).

The Board found that Respondent failed to carry her burden to prove that she was entitled to relief from the orders of default entered in Docket No. 2005-02 and Docket No. 2005-29. Specifically, the Board found that Respondent failed to carry her burden to prove that her failure to timely respond to the underlying disciplinary complaints, and more importantly, the notices of imminent default, were the result of mistake, inadvertence, surprise or excusable neglect. Therefore the Motion was denied and the matters went to hearing on February 28, 2006, to determine the form of discipline to be imposed.

FINDINGS OF FACT ON # 2005-02

1. Respondent, Jo Ann Fulton, is an attorney who has been licensed to practice law in Wyoming since 1990. Her office is located in Laramie, Wyoming.

2. Respondent represented Terry and Casi Rummel in regard to personal injuries Casi Rummel received in a vehicle accident. The Representation Agreement provided at paragraph V. "Expenses," that paralegal fees were to be billed to and paid by Rummels as an "expense." This is a variation from the form contingency fee agreement approved by the Wyoming Supreme Court in Rule 6 of the Rules Governing Contingency Fees for Members of the Wyoming State Bar, and affected substantive rights of the Rummels. Respondent did not have this modification of the form approved by the District Court of the Second Judicial District, as required by Rule 6.

3. Respondent did not provide to Rummels a copy of the Rules Governing Contingency Fees for Members of the Wyoming State Bar, as required by Rule 5(e) of those Rules.

4. Some, if not all, of the paralegal fees that were billed should have been included as part of the contingency fee as they were actions which are generally understood to be part of the legal services to be compensated by the contingency fee.

5. Although the Representation Agreement indicated that the "adverse parties" were "G.E. Property & Casualty Insurance Co.," Respondent was also pursing legal matters in regard to Farm Bureau and the Town of Saratoga for which she sought a fee.

6. Respondent and Rummels settled some claims for a total of $101,864.00. Most of that money was received in November 2003. Inasmuch as Respondent was planning to file suit for Rummels against the Town of Saratoga, Respondent and Rummels agreed that Respondent would retain the funds for that possible litigation. Respondent was unsure what amount of expenses would be incurred in that suit, but did not expect that suit to use all the settlement funds from the settlement.

7. In the course of the discussion regarding retention of the settlement monies, Respondent erroneously advised Rummels that if Respondent kept the money, the interest earned would be part of the settlement such that it would not be taxable.

8. On 16 February 2004, Respondent purchased a Certificate of Deposit ("CD") from U.S. Bank with the Rummels' settlement monies. The CD was in the amount of $101,864.00 and matured in 2 years. The CD was purchased in the name of Fulton Law Office, P.C., and not in the name of Terry or Casi Rummel. The CD also included the tax I.D. number for Respondent, not Rummels. No interest from this CD was paid to the Wyoming Bar Foundation as it would have been if the CD had been part of Respondent's IOLTA trust account.

...