Board of Professional Responsibility, Wyoming State Bar , 341 P.3d 1030 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 150October Term, A.D. 2014
November 19, 2014
BOARD OF PROFESSIONAL
RESPONSIBILITY, WYOMING
STATE BAR,
Petitioner,
D-14-0008
v.
MARCY ARGERIS, WSB #6-2774
Respondent.
ORDER SUSPENDING ATTORNEY FROM THE PRACTICE OF LAW
[¶1] This matter came before the Court upon a “Report and Recommendation for 30
Day Suspension,” filed herein October 21, 2014, by the Board of Professional
Responsibility for the Wyoming State Bar, pursuant to Section 16 of the Disciplinary
Code for the Wyoming State Bar (stipulated discipline). After a careful review of the
Board of Professional Responsibility’s Report and Recommendation, Respondent’s
“Request for Specific Suspension Dates,” Bar Counsel’s “Response to Request for
Specific Suspension Dates,” and the file, this Court finds the Report and
Recommendation for 30 Day Suspension should be approved, confirmed and adopted by
the Court and that Respondent, Marcy Argeris, should be suspended from the practice of
law for a period of thirty (30) days. It is, therefore,
[¶2] ADJUDGED AND ORDERED that the Board of Professional Responsibility’s
Report and Recommendation for 30 Day Suspension, which is attached hereto and
incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted
by this Court; and it is further
[¶3] ADJUDGED AND ORDERED that, as a result of the conduct set forth in the
Report and Recommendation for 30 Day Suspension, Respondent, Marcy Argeris, shall
be, and hereby is, suspended from the practice of law for a period of thirty (30) days,
beginning March 15, 2015; and it is further
[¶4] ORDERED that Respondent shall comply with Section 22 of the Disciplinary
Code for the Wyoming State Bar. That Section governs the duties of disbarred and
suspended attorneys; and it is further
[¶5] ORDERED that Respondent shall reimburse Washakie County for the $550.00
administrative fee and costs associated with her earlier private reprimand; and it is further
[¶6] ORDERED that Respondent shall pay her attorneys’ fees associated with the
present disciplinary proceeding; and it is further
[¶7] ORDERED that, on or before May 19, 2015, Respondent shall attend the
Wyoming State Bar’s “Pathways to Professional Practice” course; and it is further
[¶8] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the
Wyoming State Bar, Respondent shall reimburse the Wyoming State Bar the amount of
$50.00, representing the administrative costs incurred in handling this matter, as well as
pay an administrative fee of $500.00, by paying the total amount of $550.00 to the Clerk
of the Board of Professional Responsibility on or before December 31, 2014; and it is
further
[¶9] ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the
Wyoming State Bar, this Order Suspending Attorney from the Practice of Law, along
with the incorporated Report and Recommendation for 30 Day Suspension, shall be
published in the Wyoming Reporter and the Pacific Reporter; and it is further
[¶10] ORDERED that the Clerk of this Court shall docket this Order Suspending
Attorney from the Practice of Law, along with the Report and Recommendation for 30
Day Suspension, as a matter coming regularly before this Court as a public record; and it
is further
[¶11] ORDERED that the Clerk of this Court cause a copy of the Order Suspending
Attorney from the Practice of Law to be served upon Respondent, Marcy Argeris.
[¶12] DATED this 19th day of November, 2014.
BY THE COURT:
/s/
E. JAMES BURKE
Chief Justice
IN THE SUPREME COURT
STATE OF WYOMING
FILED
BEFORE THE SUPREME COURT
DCI 2 12014
STATE OF WYOMING
CAROLAIMP$ON, CLERK
In the matter of ) — 7pc
MARCYARGERIS, )
WSB#6-2774, ) WSB No. 2014-064
—
Respondent. )
REPORT AND RECOMMENDATION FOR 30 DAY SUSPENSION
THIS MATTER having come before the Board of Professional Responsibility pursuant to
Bar Counsel’s stipulated motion for suspension of Respondent, and the Board having reviewed
the stipulated motion, the affidavit of Respondent in support thereof, and being fuliy advised in
the premises, FINDS, CONCLUDES and RECOMMENDS:
findings of fact
1. Respondent has been licensed to practice in Wyoming since 1994. At all times
relevant to this proceeding, Respondent was the County and Prosecuting Attorney for Washakie
County.
2. in October 2013, Respondent received a stipulated private reprimand from this
Board. The following press release accompanied the order of private reprimand:
The Board of Professional Responsibility issued a private reprimand to a
prosecuting attorney who met with several minors and their parents following
an incident in which law enforcement persoimel discovered the minors after
hours on school property, mixing toilet bowl cleaner with balls of aluminum
foil in plastic bottles, which led to a chemical reaction that caused the bottles
to burst or explode, making a loud noise. The prosecutor told the minors and
their parents that they could be charged with felonies or misdemeanors and
perhaps federal charges and may be subject to incarceration. The minors
cooperated fully with the prosecutor and freely admitted their involvement.
School district officials were contacted but declined to pursue school district
discipline actions.
The attorney agreed that the conduct violated Rule 3.8(b), which provides,
“A prosecutor in a criminal case shall, prior to interviewing an accused, make
reasonable efforts to assure that the accused has been advised of the right to,
and the procedure for obtaining counsel and has been given reasonable
opportunity to obtain counsel.” The prosecutor violated this rule when the
prosecutor interviewed the young men before giving them a reasonable
opportunity to obtain counsel. The prosecutor agreed to pay an administrative
fee of $500 and costs of $50 to the Wyoming State Bar, and to obtain an
additional three hours of CLE in ethics.
3. Respondent was represented in the matter which culminated in the stipulated
private reprimand by Evanston attorney, Mark Harris. At Respondent’s request, the County had
been paying Mr. Harris’s fees at the rate of $200.00 per hour, plus expenses. Along with
Respondent’s Affidavit to the State Bar, Respondent asked Mr. Harris to send the $500.00
administrative fee and the $50.00 cost assessment on her behalf to facilitate an efficient and
timely end to this matter. Respondent then asked him to place both items on his billing statement
for submission to the County Commissioners. Mr. Harris did so and issued a billing statement
dated October 31, 2013, which listed an “administrative fee” of $500.00, a “cost fee” of $50.00,
long distance charges of S.23 and postage of $.46, for a total bill of $550.69. On the bottom of
the billing statement was written, “Marcy, Please prepare 2 checks for this bill. One in the
amount of $500.00 and the other one in the amount of $50.69.” As Respondent had with Mr.
Harris’s other invoices, and pursuant to the manner in which Respondent had been trained to
submit billing statements to the County, Respondent submitted the October 31, 2013, billing
statement to the Washakie County Clerk for payment, and explained to her that it was for
administrative fees associated with the grievance.
4. The Washakie County Clerk prepared two vouchers as a result of the submittal of
the October 31, 2013, billing statement. The first requested payment to Harris Law Office in the
amount of $500.00, which the County Clerk indicated was “legal fees” on the voucher without
Respondent’s knowledge. The second requested payment to Harris Law Office in the amount of
$50.69, also designated “legal fees.” Both vouchers were approved by the Washakie County
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Commissioners on October 31, 2013, and paid. Although Respondent had told the County Clerk
the nature and purpose of the administrative fees and costs, Respondent did not fttiiy and
properly inform the County Commissioners of the nature or purpose of the $500.00
administrative fee or the $50.00 cost assessment.
5. Given that the $500.00 administrative fee and the $50.00 in costs were monetary
assessments resulting from Respondent’s admitted violation of a Rule of Professional Conduct,
Respondent agrees that she had a heightened duty to communicate about that matter with the
County; that is, to call special attention to the fact that the assessment was a direct result of
Respondent’s concession that Respondent acted unethically in the underlying matter. In so
acting, Respondent engaged in conduct in violation of Rule 8.4(c).’
6. Worland resident Mark McGarvin, the complainant in the matter which led to
Respondent’s private reprimand, reportedly inqtiired of the County as to what payments had been
made to Harris Law Office and discovered that Mr. Harris had paid the $500.00 administrative
fee and $50.00 in costs on Respondent’s behalf and had been reimbursed for those expenses by
the County. Mr. McGarvin reportedly took the matter up with the County Commissioners,
protesting that it was an inappropriate use of public funds for the County to pay the
administrative fee and costs for Respondent’s disciplinary infraction.
7. During a January 7, 2014. executive session meeting of the Washakie County
Commissioners at which Respondent was present, there was discussion about the propriety of the
County’s payment of the $550.00 administrative fee and costs. While not reflected in the
The parties expressly reserve the issue whether it was appropriate for Respondent to request
payment of the $550.00 administrative fee and costs, and whether it was an appropriate use of
public funds for the County to pay it. Accordingly, this stipulated suspension should not be cited
as precedent for the notion that it is or is not proper for a governmental employer to pay the
administrative fee and costs associated with a government attorney’s discipline. Such
determination must be made on a case-by-case basis.
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minutes. Respondent explained the grievance, the stipulation and the administrative fee and
costs.
8. One of the Commissioners asked Respondent whether outside counsel should be
retained to advise the County on the issue. Instead of immediately answering yes as Respondent
should have. Respondent asked if she could consult with other county attorneys on the issue to
see what other counties did regarding the administrative fee and costs. The Commissioners
agreed to allow Respondent to consult other county attorneys. Although Respondent attempted
to contact other county attorneys, Respondent was unable to provide the Commissioners with an
immediate answer.
9. Two of the County Commissioners thereafter approached Respondent and asked
her to reimburse the County for the $550.00 it had paid for the administrative fee and costs.
Respondent refused, relying upon W.S. § 18-2-111, which provides generally that judgments
rendered against county officials are to be paid by the county.
10. Upon repeated requests and demands from two of the County Commissioners, on
January 17, 2014, Respondent emotionally wrote to the Commissioners, declining their request
for permission to seek an opinion from outside counsel. Respondent acknowledges that that
refusal constituted a violation of Rule 1.7, which provides in pertinent part, “A lawyer shall not
represent a client if the representation involves a concurrent conflict of interest. A concurrent
conflict of interest exists if. . . there is a significant risk that the representation of one or more
clients will be materially limited . . by a personal interest of the lawyer.” See Rule 1 .7(a)(2),
W.R.P.C. Comment 7 to the Rule explains, “The lawyer’s own interests should not be permitted
to have an adverse effect on representation of a client. For example, if the propriety of a
lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for
4
the lawyer to give a client detached advice.” Respondent further acknowledges that her refusal
to approve outside counsel also constituted a violation of Rule 1.8, because at that point there
was a clearly identified conflict between Respondent’s personal interests and those of the
County. Respondent’s duty, rather than to refuse the request for authority to engage outside
counsel, was to insist upon it as required by Rule 1 .8.
11. In early April 2014, Mr. McGarvin submitted a second complaint to Bar Counsel
in which he alleged that it was improper for Respondent to have the $550.00 administrative fee
and costs associated with Respondent’s private reprimand paid by the County and that it was an
abuse of authority for Respondent to deny the Commissioners’ request for outside counsel.
Respondent retained Richard Jamieson of Casper to represent her with respect to the second
complaint and entered into an agreement to pay Mr. Jamieson $350.00 hour.
12. At the June 3, 2014, executive session meeting of the Washakie County
Commissioners, Respondent informed the Commissioners that a new complaint had been filed.
Respondent spoke to Commission Chair Aaron Anderson on the phone regarding the new
complaint when it was filed, but not formally to the full Board. Respondent informed the
Commissioners that the new complaint was regarding the fee and costs, but not the specific
wording of the complaint as Mr. McGarvin quoted two of the three Commissioners in the
complaint. Respondent testified in her affidavit that she was “emotionally and legally
concerned” that the quotes appeared to come from information that was communicated to the
Commission in an executive session. Thus, Respondent explains, she did not give the specifics
of the complaint, only that it involved the payment of the fee and costs. However, Respondent
did state that the complaint was filed against her in her capacity as County and Prosecuting
Attorney and not in her individual capacity. This last statement was materially misleading in that
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the thrust of Mr. McGarvin’s complaint was that the County had paid $550.00 administrative fee
and costs, that it should have been paid by Respondent out of her own funds and that Respondent
was otherwise putting her personal interests ahead of the County’s interests. In this regard,
Respondent concedes that that conduct constituted a separate violation of Rule 1.4 (duty of
reasonable disclosure to client).
13. During the June 3, 2014, executive session meeting of the Washakie County
Commissioners, Respondent asked the County to pay the fees for counsel to represent
Respondent in the second McGarvin complaint. While Respondent did communicate with one
Commissioner (Aaron Anderson) by phone when the Complaint was filed, Respondent did not
go to the full Board until the June 3, 2014, executive session to inform the Commissioners that
she had already retained Mr. Jamieson. Additionally, at that June 3, 2014 meeting Respondent
did not inform the Commissioners that Respondent had entered into an agreement to pay Mr.
Jamieson $350.00 per hour, a higher hourly rate than had been paid to Mr. Harris, her attorney in
the first disciplinary proceeding. Respondent concedes that that failure to disclose this
information constituted another violation of Rule 8.4(c). The minutes of the June 3, 2014,
meeting state, “Approval was given for County Attorney Marcy Argeris to hire outside counsel
for a grievance filed against her as county attorney.”
14. In the same June 3, 2014 executive session with the County Commissioners,
Respondent reviewed with them the statutes on executive sessions. Soon after the meeting, one
of the Commissioners (Aaron Anderson) requested outside counsel for advice on release of
information discussed at executive session meetings. Respondent immediately agreed.
Respondent had previously been working on a “pooi” of attorneys whom she could suggest to
the Commissioners when the need for outside counsel arose. Since Matt Winslow was the only
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person Respondent had been able to communicate with to date. Respondent suggested Mr.
Winslow to Commissioner Anderson. He requested that Respondent invite Mr. Winslow to the
next Commissioner meeting.
15. On June 25, 2014, Respondent wrote a letter to the Commissioners addressing the
issues that Commissioner Anderson had raised and authorized the Commission to hire outside
counsel for the executive session issues. This letter stated, Pursuant to W.S. 18-2-110 please
consider this memo authorization to hire and counsel with [Cody attorney] Matt Winslow
regarding executive sessions. . . Please note that his legal services will be paid out of the
county’s general fund.” Respondent should have recused herself from any and every issue as it
related to this case upon learning of the new allegations and complaint, regardless of whether it
was the payment of the original fee and costs or executive session issues as they related to
Respondent’s position as county and prosecuting attorney.
16. On June 30, 2014, the Commissioners responded to Respondent’s letter
authorizing them to hire Mr. Winslow on a limited scope. The Commissioners identified several
questions stemming from the October 2013 invoice from Harris Law Office:
1) What information we have received from your office is public and what is
confidential?
2) Was the invoice submitted to us in October 2013 by Harris Law Office
appropriately submitted in a way which allowed us to understand what we
were paying for?
3) Is it appropriate for the county to pay for fees assessed by the Wyoming Bar
Association?
4) What are the commissioner’s options for recourse to deal with disagreements
or concerns that arise from actions taken by our own legal counsel?
The letter concluded, “Due to the interconnection of these questions and your obvious conflict
of interest in relation to issues raised by the commission, we respectftilly request outside counsel
25th
on a broader basis than you have authorized in your June letter. Given your conflict of
7
interest we feel that it is inappropriate for you to designate who we hire or to try to control the
scope of our request to anything less than the areas outlined above.” This letter convinced
Respondent that she was not communicating effectively with the Commissioners.
17. Respondent responded to the Commissioners’ letter ten days later with a letter
authorizing the commissioners to hire outside counsel as requested in their June 30, 2014 letter.
In said letter dated July 10, 2014, Respondent also disclosed, “I have retained Jamieson &
Robinson out of Casper at an hourly fee of $350.”
18. Respondent agrees that the foregoing conduct constitutes violations of Rules 1.4,
1.7, 1.8 and 8.4(c) of the Wyoming Rules of Professional Conduct. Respondent is extremely
remorseful about said conduct, and desires to accept responsibility and make restitution in this
matter. Accordingly, Respondent agrees to reimburse the County for the $550.00 administrative
fee and costs assessed in cormection with the private reprimand and further agrees to pay the
administrative fee, costs and her attorney’s fees associated with this disciplinary proceeding out
of her own funds. In the event the Wyoming Supreme Court accepts the Board’s
recommendation, Respondent agrees to attend the Pathways to Professional Conduct course
within six months of the Court’s order of suspension. While Respondent contends that she did
not intend to violate the Rules of Professional Conduct, nor harm the County or its
Commissioners, Respondent concedes that she acted deliberately and not negligently in the
various niles violations set forth above, especially considering the heightened duty owed as an
elected official.
Conclusions of Law
19. In determining the appropriate sanction for Respondent’s misconduct, the Board
is guided by the American Bar Association’s Standards for Imposing Lawyer Sanctions. See,
8
most recently, 3d ofProf Resp. v. Richard, D-14-0001 (slip op. August 1, 2014). Standard 3.0
provides, “In imposing a sanction after a finding of lawyer misconduct, a court should consider
the following factors:
(a) the duty violated;
(b) the lawyer’s mental state;
(c) the actual or potential injury caused by the lawyer’s misconduct; and
(d) the existence of aggravating or mitigating factors.”
The Duties Violated by Respondent
20. Standard 4.3 sets forth the sanction guidelines for lawyers who breach a duty
owed to a client by failing to avoid a conflict of interest in violation of Rules 1.7 and 1.8:
Absent aggravating or mitigating circumstances, upon application of the factors set out in
Standard 3.0, the following sanctions are generally appropriate in cases involving
conflicts of interest:
4.31 Disbarment is generally appropriate when a lawyer, without the informed consent
of client(s):
(a) engages in representation of a client knowing that the lawyer’s interests are
adverse to the client’s with the intent to benefit the lawyer or another, and
causes serious or potentially serious injury to the client; or
(b) simultaneously represents clients that the lawyer knows have adverse interests
with intent to benefit the lawyer or another, and causes serious or potentially
serious injury to a client; or
(c) represents a client in a matter substantially related to a matter in which the
interests of a present or former client are materially adverse, and knowingly
uses information relating to the representation of a client with the intent to
benefit the lawyer or another, and causes serious or potentially serious injury
to a client.
4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest
and does not fully disclose to a client the possible effect of that conflict, and
causes injury or potential injury to a client.
4.33 Reprimand [i.e., “public censure” under Section 4(a)(iii) of Wyoming’s
Disciplinary Code] is generally appropriate when a lawyer is negligent in
determining whether the representation of a client may be materially affected by
the lawyer’s own interests, or whether the representation will adversely affect
another client, and causes injury or potential injury to a client.
4.34 Admonition [i.e., “private reprimand” under Section 4(b) of Wyoming’s
Disciplinary Code] is generally appropriate when a lawyer engages in an isolated
instance of negligence in determining whether the representation of a client may
be materially affected by the lavyer’s own interests, or whether the representation
9
will adversely affect another client, and causes little or no actual or potential
injury to a client.
21. Standard 4.6 sets forth the sanction guidelines for lawyers who engages in deceit
directed toward a client:
Absent aggravating or mitigating circumstances, upon application of the factors set out in
Standard 3.0, the following sanctions are generally appropriate in cases where the lawyer
engages in fraud, deceit or misrepresentation directed toward a client:
4.61 Disbarment is generally appropriate when a lawyer knowingly deceives a client
with the intent to benefit the lawyer or another, and causes serious or potential
serious injury to a client.
4.62 Suspension is generally appropriate when a lawyer knowingly deceives a client,
and causes injury or potential injury to the client.
4.63 Reprimand [i.e., “public censure” under Section 4(a)(iii) of Wyoming’s
Disciplinary Code] is generally appropriate when a lawyer negligently fails to
provide a client with accurate or complete information, and causes injury or
potential injury to the client.
4.64 Admonition [i.e., “private reprimand” under Section 4(b) of Wyoming’s
Disciplinary Code] is generally appropriate when a lawyer engages in an isolated
instance of negligence in failing to provide a client with accurate or complete
information, and causes little or no actual or potential injury to a client.
Respondent’s Mental State
22. The preamble to the ABA Standards includes the following discussion regarding
mental state:
The mental states used in this model are defined as follows. The most
culpable mental state is that of intent, when the lawyer acts with the conscious
objective or purpose to accomplish a particular result. The next most culpable
mental state is that of knowledge, when the lawyer acts with conscious awareness
of the nature or attendant circumstances of his or her conduct both without the
conscious objective or purpose to accomplish a particular result. The least
culpable mental state is negligence, when a lawyer fails to be aware of a
substantial risk that circumstances exist or that a result will follow, which failure
is a deviation of a care that a reasonable lawyer would exercise in the situation.
23. As indicated above, Respondent concedes that she acted intentionally, not
negligently, in the various rules violations set forth above.
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The Injury Caused by Respondent’s Conduct
24. The ABA Standards define “injury” as “harm to a client, the public, the legal
system, or the profession which results from a lawyer’s misconduct.” The Standards indicate
that the level of injury can range from “serious” injury to “little or no” injury; “a reference to
‘injury’ alone indicates any level of injury greater than ‘little or no’ injury.”
25. Respondent concedes that the injury or potential injury caused to the County by
Respondent’s conduct includes (1) the initial $550 expense borne by the county when it paid the
administrative fee and costs without the Commission being fully aware of what those items
were; (2) the deterioration of the relationship between the County Commissioners and her
office; (3) the delay in obtaining her permission to retain outside counsel; and (4) the potential
expense borne by the County in paying for her lawyer in the second grievance.
Aggravating and Mitigating factors Associated with Respondent’s Misconduct
26. Once it has found professional misconduct and has determined the level of injury
caused by the misconduct, the Board is next required to consider aggravating and mitigating
factors in selecting the appropriate sanction. In this regard, ABA Standard 9.0 provides as
follows:
9.1 Generally
After misconduct has been established, aggravating and mitigating circumstances may be
considered in deciding what sanction to impose.
9.2 Aggravation
9.21 Definition. Aggravation or aggravating circumstances are any
considerations or factors that may justify an increase in the degree of
discipline to be imposed.
9.22 factors which may be considered in aggravation. Aggravating factors
include:
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(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally
failing to comply with rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive
practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of the victim;
(i) substantial experience in the practice of law;
(j) indifference in making restitution; and
(k) illegal conduct, including that involving the use of controlled substances.
9.3 Mitigation.
9.3 1 Definition. Mitigation or mitigating circumstances are any considerations or
factors that may justify a reduction in the degree of discipline to be imposed.
9,32 factors which may be considered in mitigation. Mitigating factors include:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify consequences of
misconduct;
(e) full and free disclosure to disciplinary board or cooperative attitude
toward proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug
abuse when:
(1) there is medical evidence that the respondent is affected by a
chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental
disability is demonstrated by a meaningful and sustained period of
successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that
misconduct is unlikely.
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(1) remorse; and
(m) remoteness of prior offenses.
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27. Respondent agrees that the following aggravating factors are present: (1) prior
disciplinary offense, i.e., the 2013 private reprimand; (2) multiple offenses; (3) the delay in
obtaining her approval for outside counsel and subsequent deterioration in relationships with the
Commissioners; and (4) substantial experience in the practice of law.
28. The parties stipulate that the following mitigating factors are present: (1)
cooperative effort toward proceedings; and (2) remorse.
29. Respondent agrees that the appropriate sanction for her misconduct is a 30 day
suspension of her right to practice law. Respondent further stipulates to the issuance of the
following press release:
The Wyoming Supreme Court today issued an order suspending Worland
attorney Marcy Argeris from the practice of law for a period of thirty days.
In a prior disciplinary proceeding, Ms. Argeris, who was then the
Washakie County and Prosecuting Attorney, stipulated to a private reprimand,
which was subsequently issued by the Board of Professional Responsibility on
October 15, 2013. The press release which was issued for the private reprimand
described Ms. Argeris’ misconduct as follows:
“The Board of Professional Responsibility issued a private
reprimand to a prosecuting attorney who met with several minors
and their parents following an incident in which law enforcement
personnel discovered the minors after hours on school property,
mixing toilet bowl cleaner with balls of aluminum foil in plastic
bottles, which led to a chemical reaction that caused the bottles to
burst or explode, making a loud noise. The prosecutor told the
minors and their parents that they could be charged with felonies
or misdemeanors and perhaps federal charges and may be subject
to incarceration. The minors cooperated fully with the prosecutor
and freely admitted their involvement. School district officials
were contacted but declined to pursue school district discipline
actions.
“The attorney agreed that the conduct violated Rule 3.8(b),
which provides, ‘A prosecutor in a criminal case shall, prior to
interviewing an accused, make reasonable efforts to assure that the
accused has been advised of the right to, and the procedure for
obtaining counsel and has been given reasonable opportunity to
13
obtain counsel.’ The prosecutor violated this nile when the
prosecutor interviewed the young men before giving them a
reasonable opportunity to obtain counsel. The prosecutor agreed to
pay an administrative fee of $500 and costs of $50 to the Wyoming
State Bar. and to obtain an additional three hours of CLE in
ethics.”
The order of private reprimand required Ms. Argeris to pay an
administrative fee of $500.00 and costs in the amount of $50.00 to the Wyoming
State Bar. The propriety and legality of asking the County to pay the
administrative fee and costs is specifically undecided, however, the manner in
which Mr. Argeris made such request has been deemed inappropriate. Ms.
Argeris asked the attorney who represented her in the private reprimand matter to
pay the administrative fee and costs in an effort to facilitate a timely conclusion to
the first grievance. The payment of the original fee and costs were then included
on the attorney’s final billing statement. As she had with the other billing
statements from her attorney, Ms. Argeris submitted the final billing statement
with little explanation to the Washakie County Clerk for payment. Ms. Argeris
did not fully and properly inform the county commissioners of the nature or
purpose of the $500.00 administrative fee or the $50.00 cost assessment that
appeared on the bill. Given that these charges were monetary assessments
resulting from Ms. Argeris’ admitted violation of a rule of professional conduct in
the underlying disciplinary proceeding, Ms. Argeris had a heightened duty to
communicate about that matter with the county; that is, to call attention to the fact
that the assessment was a direct result of Ms. Argeris’ concession that she acted
unethically in the underlying matter. In failing to make that disclosure, Ms.
Argeris engaged in conduct in violation of Rule 8.4(c), which provides that it is
professional misconduct for a lawyer to engage in conduct involving dishonesty,
fraud, deceit or misrepresentation given the heightened duty to communicate and
disclose the nature of the assessments
A member of the public discovered that the county had paid the
administrative fee and costs associated with the private reprimand and protested
that payment to the Washakie County Commissioners. The commissioners
requested that Ms. Argeris reimburse the county for the $550.00 it had paid for
the administrative fee and costs and give permission for the county to engage
outside counsel to advise the commissioners regarding the propriety of the
payment. Instead of insisting on outside counsel, Ms. Argeris suggested that she
first seek information from other county attorneys regarding the matter. Although
the commissioners agreed, Ms. Argeris should have simply given them immediate
authority to seek outside counsel. Two of the commissioners later approached
Ms. Argeris informally, but Ms. Argeris refused repayment and did not properly
refer the Commission to outside counsel
Ms. Argeris’ refusal of the commissioners’ request for authority to engage
outside counsel constituted a violation of Rule 1.7, which provides, “A lawyer
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shall not represent a client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if. . there is a significant risk
.
that the representation of one or more clients will be materially limited . .by a
.
personal interest of the lawyer.” A comment to Rule 1.7 explains, “The lawyer’s
own interests should not be permitted to have an adverse effect on representation
of a client. For example, if the propriety of a lawyer’s own conduct in a
transaction is in serious question, it may be difficult or impossible for the lawyer
to give a client detached advice.” Ms. Argeris’ refusal to approve outside counsel
also constituted a violation of Rule 1.8, because there was a clearly identified
conflict between Ms. Argeris’ personal interests and those of her client, the
county. Ms. Argeris’ duty, rather than to refuse the request for authority to
engage outside counsel, was to insist upon it as required by Rule 1.8.
The person who first challenged the county’s payment of the $550.00
administrative fee and costs then submitted a complaint to the Wyoming State
Bar, alleging that it was professional misconduct for Ms. Argeris to request that
the $550.00 administrative fee and costs associated with her private reprimand be
paid by the county and that it was an abuse of Ms. Argeris’ authority to deny the
commissioners’ request for outside counsel.
Ms. Argeris asked the commissioners to pay her attorney’s fees for the
new complaint as they had in the earlier disciplinary proceeding. When she made
that request, Ms. Argeris did not disclose that she had already retained counsel at
a higher rate than the county had paid Ms. Argeris’ counsel in the earlier matter.
When asked what the new investigation was about, Ms. Argeris told the
commissioners that it regarded the $550 fees/cost but that she could not provide
the full details of the complaint as it involved statements from the commissioners
but that it involved her duties as county attorney and not her personal conduct.
Ms. Argeris’ misrepresentation of the nature of the new disciplinary complaint
constituted another violation of Rule 8.4(c). It also constituted a violation of Ms.
Argeris’ duty under Rule 1.4 to maintain reasonable communication with her
client. Finally, Ms. Argeris’ failure to inform the commissioners that she had
already retained counsel at a much higher hourly rate than the county paid to her
attorney in the earlier disciplinary proceeding constituted another instance of
conduct in violation of Rule 8.4(c).
Following Bar Counsel’s investigation of the second complaint, Ms.
Argeris, understanding her heightened duties as an elected official, expressed
deep remorse for her conduct, conceding that her actions violated Rules 1.4, 1.7,
1.8 and 8.4(c) of the Wyoming Rules of Professional Conduct. Ms. Argeris
agreed that a 30 day suspension of her right to practice law was an appropriate
sanction for such misconduct. Ms. Argeris further agreed to reimburse the county
the $550.00 administrative fee and costs assessed in connection with the private
reprimand, and to pay all costs and attorney’s fees associated with her suspension.
She also agreed to attend the Wyoming State Bar’s “Pathways to Professional
Practice” course within six months of the order of suspension.
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The Board of Professional Responsibility approved the terms of the
stipulated suspension and recommended the stipulated disposition to the
Wyoming Supreme Court. The Court’s order of suspension adopted the terms of
the stipulated suspension and ordered Ms. Argeris to pay an administrative fee of
$550.00 and costs of $50.00 to the Wyoming State Bar.
30. Because the Board approved the stipulated disposition and recommendation to
the Wyoming Supreme Court, Respondent agreed to waive her right to file an objection to same
with the Court as provided in Section 21 of the Disciplinary Code.
Recommendation
In consideration of the foregoing, the Board of Professional Responsibility recommends
that Respondent:
(1) receive a 30 day suspension for violation of Rule 1.4 (communication with client);
Rules 1 .7 and 1.8 (conflict of interest); and Rule 8.4(c) (conduct involving dishonesty, fraud,
deceit or misrepresentation) of the Wyoming Rules of Professional Conduct;
(2) be required to reimburse Washakie County for the $550.00 administrative fee and
costs associated with her earlier private reprimand;
(3) be required to pay her attorneys’ fees associated with the present disciplinary action;
(4) be required to attend the Wyoming State Bar’s “Pathways to Professional Practice”
course within six months of the order of suspension; and
(5) be ordered to pay the administrative fee in the amount of $500.00 and administrative
costs of $50.00 associated with this proceeding within ten days of approval of this report and
recommendation by the Wyoming Supreme Court.
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Dated October 2014.
oard of Professional onsibility
Wyoming State Bar
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CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the Report and Recommendation for
Suspension was mailed by United States Mail, first class postage prepaid, on this 3 day of
October, 2014, to the following:
Marcy Argeris
Washakie County Attorney’s Office
1001 Big Horn Avenue, Suite 10$
Worland, WY 82401
Richard R. Jamieson
John H. Robinson
Jamieson & Robinson, LLC
214 South Grant Street
Casper, WY $2601
Brandi Robinson, Clerk
Board of Professional Responsibility
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