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08/01/2014

Jackson Lawyer Suspended From Practice of Law

CHEYENNE - The Wyoming Supreme Court today ordered a three year suspension of Jackson attorney Andrea L. Richard’s license to practice law, effective immediately. The Court’s order was based upon its review of the report and recommendation of the Board of Professional Responsibility that Richard be suspended for a pattern of litigation conduct. During a week-long disciplinary hearing, the Board heard testimony from numerous witnesses, most of them opposing lawyers in litigation cases, that Richard refused to follow applicable rules in seven different cases spanning an eight-year period in state and federal court. The Board found repeated violations of Rules 3.1, 3.2, 3.3, 3.4, 8.4(c) and 8.4(d) of the Wyoming Rules of Professional Conduct by Richard, and recommended Richard’s suspension for a period of three years.

In the first of the underlying litigation cases, Richard represented two homeowners in a construction dispute with a contractor. Richard charged more than $300,000 in attorneys’ fees and expenses only to have the case dismissed for “blatant and egregious” failure to comply with numerous discovery orders in the case. In finding that Richard’s conduct violated Rules 3.1 (meritorious claims and contentions), 3.2 (expediting litigation) and 3.4 (fairness to opposing party and counsel), the Board noted that as a result of Richard’s misconduct, the parties were exposed to unnecessary expense and delays, and their attorneys were forced to put in substantial time with resulting higher legal fees in enforcing compliance with the discovery rules. The Board also concluded Ms. Richard’s clients suffered because their claims were dismissed with prejudice and they incurred substantial attorney fees and costs.

The second case was a federal court action in which Richard’s client, the prime contractor hired to perform an environmental impact assessment on a wind turbine project, was sued by a subcontractor to collect for consulting services rendered on the project. Following a jury verdict in favor of the subcontractor, the subcontractor moved for sanctions for repeated discovery violations by Richard’s client. The court granted the motion, describing the pattern of discovery misconduct as “willful” and assessing more than $58,000 in sanctions against Richard’s client. Hearing this evidence, the Board found that Richard’s conduct violated Rules 3.1, 3.2, 3.3 (candor to the tribunal), 3.4, 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) and 8.4(d) (conduct prejudicial to the administration of justice). The Board concluded that Richard’s conduct resulted in unnecessary expense and delay and AECOM incurred over $250,000 in fees and expenses.

The third case was a construction dispute in which Richard represented a limited liability company that undertook to construct three custom homes. Richard’s client was sued by a subcontractor who claimed to be owed money for work performed on one of the houses. Richard filed an answer and counterclaim on behalf of the contractor, asserting that the subcontractor had breached its contractual obligations and seeking unspecified damages. After years of litigation for which Richard charged her client more than $125,000, summary judgment was entered in favor of the subcontractor in the amount of $441,000. In a subsequent decision dismissing the counterclaim Richard had filed, the court noted that it had made, without success, “a continual and repeated effort in pretrial conferences (note the plural) and summary judgment motions to get the Defendant to simplify the issues by stating exactly what is being claimed and on what legal theory it relies.” The Board found that Richard’s conduct in the case violated Rules 3.2, 3.3, 3.4, 8.4(c) and 8.4(d).

The fourth case was a dispute between a homeowner and a builder over the cost of construction of a house. Richard represented the builder. The Board found that Richard’s conduct in the case violated Rules 3.2, 3.4 and 8.4(c).

The fifth matter was a child custody and visitation dispute in which Richard represented the custodial parent, the mother. Richard filed a petition to suspend the father’s visitation rights alleging, “A licensed professional counselor believes that [the father] has behaved in an abusive fashion towards the parties’ minor children.” Richard prepared an affidavit for the licensed professional counselor which indicated that the counselor had interviewed the children and expressed the opinion that the father’s behavior towards the children “creates concerns” that the father “is abusive to the children both emotionally and physically.” At the hearing on the petition, the counselor testified that he had not seen the children in a professional capacity in eight years, that he performed no evaluation of the children and that contrary to his affidavit he had not interviewed the children. The counselor’s testimony was ruled inadmissible by the court. The Board found that Richard’s conduct in the case violated Rules 3.1, 8.4(c) and 8.4(d).

The sixth matter involved Richard’s conduct during a video deposition in which Richard conducted the direct examination. During opposing counsel’s cross examination, Richard interrupted the proceedings and insisted that she be allowed to proceed with redirect examination because she had to leave. Opposing counsel objected but Richard persisted with her questioning. The judge was called and ruled that Richard could not proceed with redirect until opposing counsel had completed his cross examination. After the judge’s ruling, Richard continued to demand that she be allowed to question the witness and that opposing counsel limit his questions to a specified time. The Board found that Richard’s conduct during the deposition violated Rules 3.4, 3.5 (impartiality and decorum of the tribunal) and 8.4(d).

The seventh case was a civil rights action in which Richard represented the plaintiff. In a lengthy motion ruling, Richard was chastised by the court for her “ongoing failure” to adhere to deadlines, filing motions late, filing a brief in rough draft form shortly before midnight on its due date and later seeking to correct deficiencies in a supplemental filing, and asking for extensions of already-extended deadlines. The court, noting the difficulties presented to Defendants who are faced with reading, comparing, and preparing to respond to multiple versions of the same brief and the difficulties presented to defense counsel in responding to Plaintiffs’ moving-target opposition,” held, “This practice illustrates a troubling and unmistakable pattern in [Richard’s] approach to briefing.” Upon review of the judge’s decision, the Board found that Richard’s conduct violated Rules 3.1, 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal) and 8.4(d).

Based upon its review of the record in the disciplinary proceeding, the Court found clear and convincing evidence of each of the rule violations found by the Board. The Court proceeded to an analysis of the Board’s recommendation of a three year suspension as the appropriate sanction for such misconduct, beginning with the Board’s finding that Richard acted knowingly or intentionally in multiple violations of several categories of the rules. The Board further found that “in each of the seven cases [Richard’s] misconduct inflicted actual, substantial injury on the parties, their counsel and the court. Taken together, these acts of misconduct demonstrate contempt on the part of [Richard] for the legal process, the rules governing that process, and the administration of justice.” The Board concluded, “The actual costs in terms of increased expenses, delays and burdens upon the parties, their counsel and the courts are incapable of being fully measured.”

The Board next considered mitigating factors, finding (1) absence of a prior disciplinary record and (2) personal or emotional problems. With respect to aggravating factors, the Board found (1) substantial experience in the practice of law; (2) dishonest motive; (3) a pattern of misconduct; (4) multiple offenses; (5) vulnerability of the victim; (6) refusal to acknowledge the wrongful nature of her conduct; and (7) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the Disciplinary Code for the Wyoming State Bar and the orders of the Board. With respect to the last aggravating factor, the Board noted that Richard’s “actions in this proceeding are further evidence of [Richard’s] conduct and how she repeated, in this matter, the same conduct that was found in the different matters to be a violation of the Rules of Professional Conduct. Such conduct includes intentionally failing to comply with the Disciplinary Code and the orders of the Board.” The Board concluded, “The record further exhibits the same inability or unwillingness to comply with the orders of [this] tribunal as with different courts, and the same behavior appears to be calculated to obstruct the process.” Considering the foregoing, the Board recommended that Richard be suspended for three years.

In concluding that the appropriate sanction is a 3-year suspension of Richard’s right to practice law in Wyoming, the Court noted that Richard’s actions “bring her perilously close to disbarment.” The Court observed, “In case after case, [Richard] has demonstrated an intentional, willful refusal to respond appropriately to discovery requests, comply with court orders and follow the rules of procedure. She has also repeatedly demonstrated a total lack of concern for honest communication with opposing counsel and the courts. Looking at each case individually, without considering the other six cases, Ms. Richard’s conduct might be seen as an isolated event, resembling behavior other members of the bar have seen from some other lawyer in some other case. Taken together, however, Ms. Richard’s conduct in the seven cases clearly shows not an isolated event but a consistent pattern of misbehavior affecting many, many people. Eight judges sitting in seven districts and lawyer in five different law firms have struggled with Ms. Richard’s obstructionist tactics. The clients of those five law firms as well as Ms. Richard’s clients have incurred unnecessary expense and have been subjected to needlessly prolonged litigation because of her misconduct.”

In closing, Chief Justice E. James Burke, writing for a four-member majority of the Court, cautioned, “If she hopes to return to the practice of law [after the three year suspension], Mr. Richard must use those three years to inform herself as to the duties and responsibilities of members of the Wyoming Bar, basic legal procedure and the rules of practice applicable in Wyoming court.” District Judge Wade E. Waldrip, sitting by assignment in place of Justice William U. Hill, submitted a dissent in which he concluded, “Under these circumstances, I believe the tribunal’s obligation to protect the public requires the ultimate sanction of disbarment.

Richard was also ordered to pay a $500 administrative fee and costs associated with the disciplinary proceeding in the amount of $41,770.76.

Order Suspending Attorney From Practice of Law and Assessing Costs

     

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