Cheyenne Attorney Publicly Censured
By order dated November 7, 2012, the Wyoming Supreme Court publicly censured Cheyenne attorney Dion J. Custis for engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the Wyoming Rules of Professional Conduct.
The disciplinary proceeding against Custis resulted from Custis' conduct in the course of his representation of a criminal defendant charged with first degree sexual abuse of a minor. The representation began while Custis was employed by the State Public Defender's office. The victim was the defendant's 7 year old niece. Custis and the District Attorney negotiated a plea agreement which was signed by Custis and his client. Pursuant to the plea agreement, the defendant, who had multiple prior felony convictions, agreed to plead guilty to one count of First Degree Sexual Abuse of a Minor under 13 years of age. The State agreed to recommend a sentence of 12 to 22 years. Custis agreed not to argue for a lesser sentence.
After the plea agreement but before sentencing, a $250,000 judgment was entered in favor of Custis' client in a personal injury action that had gone to trial before his arrest. Custis then approached the victim's mother and offered a $15,000 cash payment, which Custis couched as "future restitution" to pay for counseling for the victim, in exchange for the agreement of the victim's parents not to recommend incarceration for Custis' client. The offer was conditioned upon the mother successfully persuading the District Attorney to go along with the no-incarceration recommendation.
Custis later approached the Victim/Witness Coordinator and told her he needed her help to "twist a victim's arm" to change a sentencing recommendation. The Victim/Witness Coordinator was shocked by the statement, and reported it to the District Attorney.
The victim's parents rejected the offer. Custis was discharged by the State Public Defender's office and thereafter charged his client $2,500 to appear at the sentencing hearing. The victim's parents appeared at the sentencing hearing and spoke in favor of incarceration. The judge sentenced Custis' client within the plea agreement. Custis' client never received any funds from the personal injury award, which went to pay attorney's fees and costs associated with the personal injury suit, with the balance being paid into court for the benefit of creditors.
The disciplinary charge against Custis went to a hearing before the Board of Professional Responsibility (BPR). The BPR found that Custis breached numerous duties he owed to the legal system when he presented a monetary inducement to the victim's mother as a "quid pro quo" to persuade her to change her sentencing recommendation. Although Custis couched the offer as "future restitution," he made no good faith effort to calculate the amount reasonably required for future counseling, nor did he attempt to comply with the statutory requirements for an award of future restitution. The BPR found that Custis' mental state evinced a willful disregard of his duties to the administration of justice, and that Custis' conduct resulted in both real and potential injury to the public, the legal system and the profession.
The BPR issued a report and recommendation that Custis be publically censured for his conduct. A public censure is a form of public discipline which declares the conduct of the lawyer improper but does not limit the lawyer's right to practice. The Wyoming Supreme Court adopted the BPR's recommendation and issued a public censure to Custis. Custis was ordered to complete four hours of continuing legal education on the subject of ethics, to reimburse the Wyoming State Bar the amount of $11,897.60 for costs associated with the disciplinary proceeding, and to pay an administrative fee of $500.00.