Briefly Censured

The Wyoming Supreme Court has ordered a public censure of an attorney for misrepresentations in an appellate brief

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 court rejected due process claims based on the entry of default (citing a couple of D.C. cases I handled) and alleged prosecutorial vindictiveness.

There is no “magic formula” to attorney sanctions.

Although attorney discipline can serve to improve the performance of attorneys who have strayed in performing their ethical obligations, when an attorney continues to engage in professional and ethical misconduct in spite of previous sanctions, our concern weighs more heavily toward deterrence, maintaining the integrity of the legal system, and protecting the public. This Court’s decision in Custis I was published on November 7, 2012. Even assuming he made no changes in his office procedures until that date, some of Mr. Custis’s misconduct occurred after, he contends, he made improvements to his procedures to avoid any further discipline.

(Mike Frisch)