Wyoming Considers Disability Reinstatement: Insufficient Proof In The Pudding

The Wyoming Supreme Court denied a motion for a reinstatement from a disability suspension imposed with pending grievances

The primary issue presented is whether Doe met his evidentiary burden to show, by clear and convincing evidence, that he recovered from the infirmity that led to his transfer to disability inactive status. Case law and commentary from other states illustrate the scope of evidence courts typically evaluate in disability reinstatement decisions. The testimony and documentary evidence presented in this case was limited, and the standard of proof was not met. We have no reason to doubt Doe’s veracity or his accomplishments outside the practice of law during his period of inactive status, but we are not able to reinstate him on the limited evidence presented. The rules allow him to reapply for reinstatement and this order offers some guidance for future proceedings.

Applicable standard

The burden of proof in a reinstatement proceeding is on the attorney to show by clear and convincing evidence: that the attorney [1] has sufficient recovery from the physical, mental or emotional infirmity or illness giving rise to the transfer to disability inactive status, [2] has complied with all applicable orders and with all provisions of these rules, [3] has not engaged in the unauthorized practice of law, and [4] is fit to practice law.

Petitioner was the subject of three grievances in 2017

With the assistance and advice of counsel, Doe agreed to the alleged violations, conditioned on the approval by the BPR of a stipulated motion to transfer him to disability inactive status and for a concurrent thirty-month suspension as a disciplinary action.

Initially, the Board on Professional Responsibility rejected the agreement

The BPR heard the motion to adopt the stipulation on December 11, 2018. It adopted the parties’ new stipulation and found a variety of facts to support its recommendation that Doe be transferred to disability inactive status. It noted Doe’s statements explaining that he “had been overwhelmed in private practice, had not been coping well, and believed that he must, at a minimum, take a prolonged break from practice.” The BPR concluded that, pursuant to the psychologist’s evaluation, Doe “is unable to fulfill professional responsibilities competently because of mental or emotional infirmity, and therefore, he should be transferred to disability inactive status[.]”

Evidence presented

Only Doe testified at the BPR hearing, and his documentary evidence was limited in scope. He presented no professional reports or recommendations from colleagues in the legal or other professions. Doe asserts the “proof is in the pudding” and his recovery is shown “through example.” In sum, he asks us to infer that his work in the military, completion of various military trainings, and completion of an LLM proves he has recovered from the mental and emotional infirmity that earlier compromised his ability to practice law. We examine Doe’s evidence in detail to determine whether it amounts to clear and convincing evidence he has recovered such that he can re-enter the practice of law and competently fulfill all of his professional responsibilities as an active member of the Wyoming State Bar.

The court has not previously dealt with a contested reinstatement from disability and provided guidance

we expect that any subsequent recommendation concerning Doe’s reinstatement will include a recommendation to impose the 30-month suspension, retroactive to the date of the transfer to disability inactive status; to consider the 30-month suspension period complete upon reinstatement; and to request the issuance of the agreed upon notice of public censure once reinstatement occurs.

Remand

Doe can re-apply for reinstatement without delay. W.R.D.P. 23(b). Once a new petition is filed, he and Bar Counsel are subject to the mandatory requirements of conducting an investigation, providing fulsome disclosures and waivers related to providers, and cooperating during that investigation. While proof of formal treatment is not required, Bar Counsel may request an independent evaluation as part of its investigation. W.R.D.P. 23(e). See also ABA, Model Rules for Lawyer Disciplinary Enforcement R. 23.E(3) (allowing the attorney or the bar to pay for such evaluations). While Doe bears the burden of proof for reinstatement, a collaborative approach may result in a stipulation and an expedited proceeding. If either party seeks to condition Doe’s reinstatement pursuant to W.R.D.P. 23(f), information should be provided to support any requested conditions.

(Mike Frisch)