Board of Professional Responsibility, Wyoming State Bar v. Jolley
1991 WY 13
805 P.2d 862
Case Number: D-90-10
Decided: 02/07/1991
Supreme Court of Wyoming
Cite as: 1991 WY 13, Wyo., 805 P.2d 862
BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
John R. JOLLEY, Respondent
ORDER
IMPOSING PUBLIC CENSURE AND ASSESSING COSTS
[1.] The Board of
Professional Responsibility of the Wyoming State Bar on December 12, 1990,
presented this Court its Report charging respondent, an attorney regularly
admitted to the practice of law in the State of Wyoming, with professional misconduct. A
Stipulation of Facts was entered into between the Board of Professional
Responsibility and respondent upon which the Board of Professional
Responsibility recommended that a public censure be imposed upon respondent for
his conduct and that respondent be assessed the costs incurred by the Board of
Professional Responsibility in the amount of $ 364.48.
[2.] The findings of fact of
the Board of Professional Responsibility authenticated by the Stipulation of
Facts entered into by the parties stated in part:
1.
The Respondent is subject to the jurisdiction of this Board pursuant to Rule I
of the Amended Rules Relating to the Disciplinary Code for the Wyoming State
Bar.
2. Respondent, in the course of representing a criminal defendant who had been incarcerated and in attempting to obtain her release, swore at a justice of the peace over the telephone when the justice of the peace refused to release the defendant.
3. Respondent's conduct violated Rules 8.4(d) and 4.4 of the Rules of Professional Conduct. Said Rules provide as follows:
Rule 8.4. Misconduct.
It
is professional misconduct for a lawyer to ...:
(d)
engage in conduct that is prejudicial to the administration of
justice...
Rule 4.4. Respect for rights of third persons.
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person...
4.
Respondent, in representing an incarcerated defendant and in attempting to
obtain her release, became argumentative with a justice of the peace over the
telephone and told the justice of the peace that unless his client was released
from jail, either he or his client would sue the county, demand a jury trial,
and cause everyone as much trouble and expense as he
could.
5.
Respondent's conduct violated Rules 8.4(d) and 4.4 of the Rules of Professional
Conduct. Said Rules provide as follows:
Rule
8.4. Misconduct.
It
is professional misconduct for a lawyer to ...:
(d)
engage in conduct that is prejudicial to the administration of
justice...
Rule 4.4. Respect for rights of third persons.
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person...
6. Respondent was present at the place of business of a client upon whom a lawful execution was being served by an undersheriff in the course of his normal duties. Respondent became agitated and told the undersheriff that the execution was not worth the paper it was written on and the execution was torn. Respondent further told the undersheriff that if the undersheriff attempted to possess any of the client's property that he, the Respondent, would see that the undersheriff would be sued personally.
7.
Respondent's conduct violated Rules 8.4(d) and 4.4 of the Rules of Professional
Conduct. Said Rules provide as follows:
Rule
8.4. Misconduct.
It
is professional misconduct for a lawyer to ...:
(d) engage in conduct that is prejudicial to the administration of justice...
Rule 4.4. Respect for rights of third persons.
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person...
8.
In his application for admission to the Wyoming State Bar, Respondent * * *
stated on said application that he had previously been arrested for assault and
battery when in fact he had previously been arrested for assault and battery or
assault with the intent to commit the crime of rape.
* * * * * *
10. Respondent's conduct violated Rule 8.4(c) of the Rules of Professional Conduct. Said Rule provides as follows:
Rule
8.4. Misconduct.
It
is professional misconduct for a lawyer to ...:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation...
11. Respondent's misconduct with respect to the two justices of the peace and the undersheriff was a violation of his duty owed to the legal system.
[3.] The Board of
Professional Responsibility further found that there were no aggravating or
mitigating factors presented.
[4.] The Court, having
carefully considered the file and record submitted herein, hereby adopts
as part of this Order, and attaches hereto, the Report of the Board of
Professional Responsibility, and finds that the public censure as recommended by
the Board is appropriate. It is, therefore,
[5.] ORDERED that the Report
of the Board of Professional Responsibility of the Wyoming State Bar be, and it
is hereby, approved; and it is
[6.] FURTHER ORDERED that
John R. Jolley be, and he is hereby, publicly censured for professional
misconduct in violation of Rules 8.4(c) and (d) and 4.4 of the Rules of
Professional Conduct; and it is
[7.] FURTHER ORDERED that
the costs of the Board of Professional Responsibility of the Wyoming State Bar
incurred in connection with the investigation and disciplinary proceedings in
this instance in the amount of $ 364.48 be, and they hereby are, assessed
against the respondent, John R. Jolley, to be paid to the Wyoming State Bar
Board of Professional Responsibility pursuant to Rule XXIII of the Disciplinary
Code for the Wyoming State Bar, and it is
[8.] FINALLY ORDERED that
the clerk of the Court docket the Report and all supporting papers of the Board
of Professional Responsibility of the Wyoming State Bar, as well as this order,
as a matter coming regularly before this Court as a public
record.
Appendix
State of
Wyoming
SS.
County of Laramie
Before
the Board of Professional Responsibility Wyoming State Bar State of
Wyoming
In re John R. Jolley, Respondent.
Docket
No. 97-88
REPORT
[9.] A COMPLAINT FOR FORMAL
DISCIPLINARY PROCEEDINGS was filed against Respondent on July 25, 1990. An
ANSWER was filed by Respondent's attorney on August 8, 1990. Since that time,
negotiations between Bar Counsel and Respondent's counsel have occurred, and on
November 26, 1990 a STIPULATION OF FACTS was entered into between counsel. Said
STIPULATION OF FACTS was also signed by the Respondent.
[10.] The record in this matter which is being
transmitted with this REPORT is attached hereto and incorporated herein by
reference, and consists of the following: the COMPLAINT FOR FORMAL DISCIPLINARY
PROCEEDINGS; Respondent's ANSWER; NOTICE OF SETTING; and STIPULATION OF FACTS.
Said record is attached hereto and incorporated herein by
reference.
[10.] The Board hereby adopts and incorporates
by reference the attached STIPULATION OF FACTS and finds each and every one of
them as if recited individually herein. The Board further finds the
following:
[11.] 1. The Respondent is subject to the
jurisdiction of this Board pursuant to Rule I of the Amended Rules Relating to
the Disciplinary Code for the Wyoming State Bar.
[12.] 2. Respondent, in the course of
representing a criminal defendant who had been incarcerated and in
attempting to obtain her release, swore at a justice of the peace over the
telephone when the justice of the peace refused to release the
defendant.
[13.] 3. Respondent's conduct violated Rules
8.4(d) and 4.4 of the Rules of Professional Conduct. Said Rules provide as
follows:
Rule
8.4. Misconduct.
It is professional misconduct for a lawyer to ...:
(d)
engage in conduct that is prejudicial to the administration of
justice...
Rule 4.4. Respect for rights of third persons.
In
representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third
person...
[14.] 4. Respondent, in representing an
incarcerated defendant and in attempting to obtain her release, became
argumentative with a justice of the peace over the telephone and told the
justice of the peace that unless his client was released from jail,
either he or his client would sue the county, demand a jury trial, and cause
everyone as much trouble and expense as he could.
[15.] 5. Respondent's conduct violated Rules
8.4(d) and 4.4 of the Rules of Professional Conduct. Said Rules provide as
follows:
Rule
8.4. Misconduct.
It
is professional misconduct for a lawyer to ...:
(d)
engage in conduct that is prejudicial to the administration of
justice...
Rule 4.4. Respect for rights of third persons.
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person...
[16.] 6. Respondent was present at the place of
business of a client upon whom a lawful execution was being served by an
undersheriff in the course of his normal duties. Respondent became agitated and
told the undersheriff that the execution was not worth the paper it was written
on and the execution was torn. Respondent further told the undersheriff that if
the undersheriff attempted to possess any of the client's property that he, the
Respondent, would see that the undersheriff would be sued
personally.
[17.] 7. Respondent's conduct violated Rules
8.4(d) and 4.4 of the Rules of Professional Conduct. Said Rules provide as
follows:
Rule
8.4. Misconduct.
It
is professional misconduct for a lawyer to ...:
(d) engage in conduct that is prejudicial to the administration of justice...
Rule
4.4. Respect for rights of third persons.
In
representing a client, a lawyer shall not use means that have no
substantial purpose other than to embarrass, delay, or burden a third
person...
[18.] 8. In his application for admission to
the Wyoming State Bar, Respondent negligently stated on said application that he
had previously been arrested for assault and battery when in fact he had
previously been arrested for assault and battery or assault with the intent to
commit the crime of rape.
[19.] 9. Respondent's conduct in
misrepresenting the prior criminal charge on his application for admission to
the Wyoming State Bar was negligent rather than
intentional.
[20.] 10. Respondent's conduct violated Rule
8.4(c) of the Rules of Professional Conduct. Said Rule provides as follows:
Rule
8.4. Misconduct.
It
is professional misconduct for a lawyer to ...:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation...
[21.] 11. Respondent's misconduct with respect
to the two justices of the peace and the undersheriff was a violation of his
duty owed to the legal system.
[22.] 12. The American Bar Association's
Standards for Imposing Lawyer Sanctions, at sec. 6.23, provides:
Reprimand
is generally appropriate when a lawyer negligently fails to comply with a court
order or rule, and causes injury or potential injury to a client or other party,
or causes interference or potential interference with a legal
proceeding.
[23.] 13. While this section is not precisely
on point because Respondent did not violate a court order or rule, the
misconduct referred to above was an interference with the legal process and is
applicable by analogy.
[24.] 14. With regard to the misconduct in
filling out his application for admission to the Wyoming State Bar, Respondent
violated a duty he owed to the legal profession.
[25.] 15. The American Bar Association's
Standards for Imposing Lawyer Sanctions, at sec. 7.3, provides:
Reprimand
is generally appropriate when a lawyer negligently engages in conduct that is a
violation of a duty owed to the profession, and causes injury or potential
injury to a client, the public, or the legal system.
[26.] 16. In the American Bar Association's
Standards for Imposing Lawyer Sanctions at sec. 2.5, reprimand is defined
as follows:
Reprimand,
also known as censure or public censure, is a form of discipline which declares
the conduct of the lawyer improper, but does not limit the lawyer's right to
practice.
[27.] 17. The Board finds there are no
aggravating or mitigating factors present in this matter.
[28.] 18. In consideration of the entire record
in this matter, it is the opinion of this Board that Respondent be publicly
censured for his four violations of the Rules of Professional
Conduct.
[28.] WHEREFORE, it is the recommendation of
this Board that a public censure be imposed upon the Respondent for his conduct
in this matter, and that Respondent be assessed the costs incurred by the Board
in this matter in the amount of $ 364.48.
[29.] Dated this 12th day of December, 1990.
Respectfully
submitted,
/s/ Dean W. Borthwick
Dean W. Borthwick,
Chairman
Wyoming
State Bar
Board of Professional
Responsibility
P.O. Box
109
Cheyenne, WY 82003
(307) 632-9061 EAPP
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