The Dog and The Damage

The Wyoming Supreme Court has suspended an attorney for nine months

Ms. Mears is a private practitioner with offices and residences in Jackson and Casper, Wyoming. She was admitted to the Washington State Bar in 2000, where she practiced law for a few years, and was admitted to the Wyoming State Bar in 2006, where she has practiced since. This matter was commenced when Dr. Robert Cushner filed a complaint with the BPR asserting that Ms. Mears was his attorney, and that she had borrowed money from him but refused to pay it back as agreed. He indicated that she “refuses to acknowledge her responsibility to repay the loan or the gravity of borrowing money from a client.” Responding to Dr. Cushner’s complaint, Bar Counsel sent a letter to Ms. Mears informing her that an investigation had been commenced on alleged violations of Rule 1.8(a) of the Wyoming Rules of Professional Conduct, which, in broad terms, prohibits a lawyer from entering into a transaction with a client unless specified conditions are met.

In her response, Ms. Mears stated that Dr. Cushner “was never a client,” although “there was a brief period of time in which we were friends.” She acknowledged that she had reviewed and commented on a contract he was negotiating, but asserted that this was only “a favor to a friend.” Ms. Mears did not deny that she had received money from Dr. Cushner, but explained that

his large dog . . . severely injured my much smaller dog necessitating more than $7,000 in veterinarian bills before she finally passed as a result of the injuries caused by his dog. Additionally, [Dr.] Cushner’s dog also ruined woodwork, doors, home furnishings, carpets and décor at my two separate homes.

She also submitted emails between her and the doctor.

Bar Counsel did not find the Rule 1.8(a) violation

Although Ms. Mears insisted that neither she nor Dr. Cushner had intended to create an attorney-client relationship, she later recognized that “an attorney-client relationship was created” when she reviewed the contract as a favor to him. However, that attorney-client relationship was limited and brief, terminating before the end of October of 2014.

But charged her with submitting false information in response to the complaint by

(a) Falsifying the copies of the breakup emails [she] produced to Bar Counsel.

(b) Misrepresenting that she incurred more than $7,000 in vet[erinarian] bills for injuries inflicted upon [her] dog by [Dr.] Cushner’s dog.

(c) Misrepresenting the extent and cost of repairs to [her] Jackson residence.

(d) Misrepresenting what [she] did with the money she received from [Dr.] Cushner.

The court found that the attorney had submitted altered emails.

The dog

we find clear and convincing proof that Ms. Mears knowingly made false statements of fact material to support her claim that Dr. Cushner’s dog injured and eventually killed her dog.

The damage

The date of the invoice, October 11, 2014, is one day after Ms. Mears had filed a divorce complaint on his behalf. As the BPR observed, Ms. Mears’s representation of the owner in his divorce provided an opportunity for her to enlist his aid in fabricating evidence. Taking this evidence in total, we find clear and  convincing proof that Ms. Mears misrepresented the damages done by Dr. Cushner’s dog and the extent and cost of resulting repairs.

Materiality 

At the time these false statements were made, it had not yet been determined that Ms. Mears and Dr. Cushner had terminated their attorney-client relationship before the transaction occurred. Accordingly, even under Ms. Mears’s theory that the materiality of a fact may change during the course of an investigation, her false statements about the nature of the transaction were material when they were made.

Sanction

We recognize that the facts and circumstances of our prior cases are not identical to those in Ms. Mears’s case. Taken together, however, these cases suggest a range of appropriate sanctions. The BPR’s recommendation of a nine-month suspension in Ms. Mears’s case falls at the high end of that range. The cases from other jurisdictions relied on by Bar Counsel are factually distinguishable and do not support disbarment in this case. Based upon the violations we have determined to be established by clear and convincing evidence, and taking into account the applicable aggravating and mitigating factors, we conclude that the BPR’s recommendation of a nine-month suspension is appropriate.

K2 Radio reported on the suspension. (Mike Frisch)