Petition for Writ of Certiorari — Fulton, In re: (No. 06-262)

reme C

) Sup ome ( our U.S.

No

06-262 Au 18 2006

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

,

-

IN RE:

SUSPENSION OF ATTORNEY

JO ANN FULTON

Jo Ann Fulton,

Petitioner,

Sa

On Petition For Writ Of Mandamus

To The United States District Court

For The District Of Wyoming

¢

PETITION FOR WRIT OF MANDAMUS

*

CHARLES M. ARON

(Counsel of Record)

GALEN B. WOELK

Attorneys for Petitioner

ARON AND HENNIG, LLP

1472 North 5th Street, Suite 201

Laramie, Wyoming 82072

(307) 721-5760

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Does a federal district court lack jurisdiction to

review an attorney’s due process challenge of a state

court suspension before imposing reciprocal discipline

on that attorney in federal district court?

In imposing reciprocal discipline, can a federal dis-

trict court suspend an attorney from practice in its

court for an offense referenced but never charged by

the state court, and on which no hearing was con-

ducted and no opportunity afforded to contest inaccu-

rate information?

PARTIES TO THE PROCEEDING

The parties are Petitioner Fulton and the Board of

Professional Responsibility, Wyoming State Bar, which

acts under the authority of the Wyoming Supreme Court.

CORPORATE DISCLOSURE STATEMENT

No corporate disclosure statement is applicable to this

petition.

OPINIONS BELOW

The “Order” suspending Respondent from the practice

of law in the United States District Court for the District

of Wyoming is not reported. It is a confidential filing, not

available as a public record, entered in Case No. Misc. 06-

37. The order is appended hereto at pages App. 1 to App. 7.

Incorporated in the district court order is the “Order

Suspending Attorney from the Practice of Law” entered by

the Wyoming Supreme Court [App. 8 to App. 10], and the

“Report and Recommendation to the Wyoming Supreme

Court” rendered by the Board of Professional Responsibil-

ity of the Wyoming State Bar jApp. 11 to App. 24]. The

exhibits appended to the Board’s report are omitted.

JURISDICTION

The “Order” was entered by the district court on May

26, 2006, and this petition for writ of mandamus was filed

within 90 days of that date. This Court’s jurisdiction is

invoked under 28 U.S.C. 1651(a). The extraordinary writ

is sought because no appeal to any court was available

from the imposition of reciprocal attorney discipline in the

district court.

CONSTITUTIONAL PROVISIONS INVOLVED

The Due Process of Clause of Amendment V, United

States Constitution, Clause 3: “No person shall be ...

deprived of ... property, without due process of law; ...”

and the Due Process of Clause of Amendment XIV, United

States Constitution, Section 1, Clause 2: “nor shall any

State deprive any person of ... property without due

process of law;...”

STATEMENT OF THE CASE

Petitioner [“Fulton”] is an attorney admitted to

practice in the United States District Court for the District

of Wyoming. In mid-2005, state disciplinary proceedings

were conducted before the Wyoming Board of Professional

2

Responsibility [“BPR”] under the Wyoming Disciplinary

Code [“Code”]. In the state proceedings, the BPR entered

default on an Amended Complaint and rendered its report

and recommendation to the Wyoming Supreme Court

[App. 11 & 12]. The Wyoming Supreme Court entered its

order approving the report of the BPR and suspending

Fulton from the practice of law in the State of Wyoming for

a period of three years [App. 8 to App. 10].

Pursuant to district court local rules, Fulton gave

notice of suspension to the United States District Court for

the District of Wyoming, which ordered her to show cause

why reciprocal discipline should not be imposed in that

court. Fulton submitted a written response to the show

cause order. Without hearing, the district court imposed

the same suspension in district court based on the BPR

report and the Wyoming Supreme Court order. Fulton

asserted the state denied her due process; the district

court’s rules require a review of such a due process claim

[App. 25 & 26]. The district court determined that despite

its own rules it did not have power to permit an attorney

to remain a member of the federal court’s bar if the attor-

ney was suspended from the state court to which she was

admitted [App. 3-4 at FN 1]. The district court relied on

discipline for unrelated matters previously imposed on

Fulton by the Tenth Circuit Court of Appeals in 1997 and

2002, reports of which were aggravation factors in the

BPR’s recommended discipline. The district court accepted

the BPR’s claim that Rule 15 did not apply despite the-

Code provision incorporating it. The district court also

gratuitously demeaned Fulton’s integrity and punned that

Fulton was extended “more process than was due to” her.

FEDERAL CONSTITUTIONAL QUESTIONS

In considering reciprocal discipline on an attorney, is a

federal district court without jurisdiction to review an

attorney’s due process challenge of the state court suspen-

sion?

3

Can a federal district court suspend an attorney from

practice in its court for offenses that were not charged,

without providing the attorney a hearing or opportunity to

contest inaccurate information, and without recognizing

the absence of Rule 15 jurisdiction?

The federal constitutional questions were not raised

directly. Fulton was given no opportunity to address the

district court’s conclusion that it lacked power to deny

reciprocal discipline in its court. Fulton responded to the

district court’s order to show cause on the expectation that

the reciprocal discipline was to be based on the offenses

charged in the state court, not on the materials that

related only to the sentence she was given.

REASONS FOR GRANTING THE WRIT

1. Departure From The Usual And Accepted Course

Of Judicial Proceedings

The District Court for the District of Wyoming de-

ferred, and subordinated its authority, to a state court and

a state disciplinary board. Suspension of Petitioner from

the practice of law in the district court was so unusual and

so departed from the expected role of a federal court in

protecting constitutional rights that this Court should

exercise its supervisory power over the district court by

allowing the writ sought herein.

2. The District Court’s Decision Conflicts With

Decisions Of This Court As To The Independent

Power Of A Federal Court Over Attorney Disci-

pline In Its Court

The district court decided it lacked the power to avoid

automatic discipline. Though admission to practice before

a federal court is derivative of membership in a state bar,

a state suspension does not result in automatic suspension

by the federal court. The state action is not conclusively

binding on the federal court and the federal court is

compelled to consider whether the notice of charges was

sufficient for imposition of discipline. Theard v. United

4

States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957);

In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117

(1968); Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377

(1917).

3. An Amended Complaint Without Rule 15 Juris-

diction Denies Due Process

Due process is denied where the requirements of Rule

15 are not met. Nelson v. Adams USA, Inc. 529 U.S. 460,

465-467 (2000). The rules of civil procedure have substan-

tive effect. They are not mere formalities, but have the

force and effect of law and compliance is mandatory.

Thompson v. Immigration and Naturalization Service, 375

U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (Clark, J.

dissenting); Vanasse v. Ramsay, 847 P.2d 993 (Wyo.1993);

Paxton Resources, L.L.C. v. Brannaman, 95 P.3d 796

(Wyo.2004).

In the BPR proceedings, the prosecutor filed an

Amended Complaint without motion, notice or approval of

the BPR, after Fulton had answered the original com-

plaint. Suspension was imposed on Fulton by default on

that Amended Complaint in disregard of Rule 15. Thus the

BPR lacked jurisdiction to recommend suspension, and the

Wyoming Supreme Court in turn lacked jurisdiction to

enter its order of suspension.

4. The Denial Of Due Process Was Extraordinary

a. Fulton was not informed of the charges against

her. Discipline was imposed on Fulton for giving illegal tax

advice [App. 19]. She was informed of no IRC provision,

statute or regulation she allegedly violated. The BPR

concluded Fulton had advised clients about avoiding tax

consequences. That is not a crime. Substantial parts of the

legal and accounting professions are devoted to that

endeavor.

b. Evidence against Fulton was not provided to her.

On the basis of surreptitious tape recordings made with-

out Fulton’s knowledge and not provided to her, the BPR

5

sanctioned Fulton for be’ *¢ incompetent, for counseling a

client to commit a crix xr dishonesty, and for conduct

prejudicial to the adminis. ation of justice [App. 19 & 21].

c. Improper Continuance. Time in which to file the

Amended Complaint was arranged by the prosecutor

obtaining a continuance, ex parte, several days before the

scheduled hearing on the Complaint. The order continuing

the hearing was signed ex parte by the prosecutor’s own

administrative assistant, purportedly acting for the BPR.

d. There was no default. As required by the Code,

Fulton mailed her answer to the Amended Complaint in a

timely manner, as shown by her certificate of service and

the postage meter date on the envelope. The BPR deter-

mined that Fulton’s certificate was false.

e. Default was entered on charges which had been

fully answered. In her previously filed answer to the

original Complaint, Fulton had answered the allegations

of the Amended Complaint except as to minor charges set

forth in two new causes of action.

CONCLUSION

This Court should grant a writ of mandamus to

require the United States District Court for the District of

Wyoming to perform the duty of a federal court in assuring

the constitutional right of every citizen to the due process

of law.

Respectfully submitted,

CHARLES M. ARON

(Counsel of Record)

GALEN B. WOELK

Attorneys for Petitioner

ARON AND HENNIG, LLP

1472 North 5th Street, Suite 201

Laramie, Wyoming 82072

(307) 721-5760

App. 1

United States District Court

For The District of Wyoming

IN RE: SUSPENSION )

OF ATTORNEY ) Case No. Misc. 06-37

JO ANN FULTON, )

ORDER

(Filed May 26, 2006)

This matter comes before the Court on Responses by

Ms. Fulton and the Wyoming State Bar to the Court’s

April 21, 2006, Order to Show Cause. The Court, having

carefully considered the material submitted in the case,

and being otherwise fully advised in the premises, FINDS

and ORDERS as follows:

Background

The basic facts of the case have been extensively

discussed in the materials submitted in this case, and it is

not this Court’s role to act as a fact finder. U.S.D.C.L.R.

83.12.5(d). However, because of the serious nature of this

action, the Court will, once more, recite the facts upon

which the Court relies in coming to its conclusions.

Ms. Fulton was admitted to the Bar of the State of

Wyoming and to the Bar of this Court in 1990, and was

admitted to the Bar of the United States Court of Appeals

for the Tenth Circuit in 1992. On April 7, 1997, the Tenth

Circuit issued an Order which stated that Ms. Fulton had

twice filed untimely briefs without moving for extensions

of time, and she had failed to respond at all to an earlier

order to show cause. (April 7, 1997 Order, 97-811). The

App. 2

Tenth Circuit warned that future transgressions might

subject Ms. Fulton to more serious disciplinary action.

Between February 11, 2002, and August 8, 2002, the

Tenth Circuit issued a series of Orders which attempted to

correct numerous deficient filings in three separate ap-

peals. (June 7, 2002 Order, 02-809). The result was a

$500.00 sanction which was due June 27, 2002. Ms. Fulton

failed to make timely payment, and the Court issued

another show cause order. The Court accepted her late

payment but admonished that future violations could

result in suspension or disbarment. (August 8, 2002 Order,

02-809).

Meanwhile, on June 3, 2002, the Wyoming Board of

Professional Responsibility issued an Order Imposing

Private Reprimand pursuant to a stipulation between bar

counsel and Ms. Fulton. (Order Imposing Private Repri-

mand, 2002-04). The Board found that Ms. Fulton violated

the Wyoming Rules of Professional Conduct by pursuing a

claim “past the point at which the claim was meritorious.”

(Id. at 2); W.R.P.C. 3.1, 4.4.

On May 20, 2003, the Tenth Circuit again issued an

order to show cause after Ms. Fulton failed to file opening

briefs in two appeals, failed to respond to a show cause

order in one case, and filed a deficient brief in the other.

(May 20, 2003, Order, 02-809 at 2). In its July 23, 2003,

Order, the Tenth Circuit found that Ms. Fulton’s response

to the show cause order was inadequate, and the court

suspended her from practice before the Tenth Circuit for

one year. The court also removed her from the CJA panel.

(July 23, 2003, Order 03-809 at 2). As a result of the

discipline in the Tenth Circuit, the Wyoming Supreme

Court issued an Order of Public Reprimand. Board of

App. 3

Professional Responsibility v. Jo Ann Fulton, D-03-15,

January 6, 2004. :

Despite these numerous attempts to alert Ms. Fulton

to the dangers of her conduct, the Wyoming Board of

Professional Responsibility received two new complaints in

the Fall of 2005. The Report and Recommendation issued

by the Board of Professional Responsibility on March 15,

2006, describes in painful detail, an astonishing record of

previously unaddressed derelict conduct which culminated

in the Wyoming Supreme Court’s Order of Suspension.

Board of Professional Responsibility v. Jo Ann Fulton,

2006 WY 51. The Wyoming Supreme Court suspended Ms.

Fulton from practice for three years. As a result, this

Court must now determine whether she should be sus-

pended from the-Bar of this Court as well.

Discussion

Our Local Rules require an attorney who has been

subjected to public discipline by another court to promptly

notify the Clerk of this Court of such action. U.S.D.C.L.R.

83.12.5(a). The Court notes in passing that Ms. Fulton did

not comply with this rule. The Court must then issue an

order to show cause, and after thirty days, the Court must

impose identical discipline. 83.12.5(b2) and (d). To avoid

the imposition of identical discipline, the attorney must

show one of four things: a deprivation of due process, an

infirmity of proof, a grave injustice, or that the misconduct

warrants substantially different discipline. 83.12.5(d)(1)-(4).’

' Because membership in the Bar of the State of Wyoming is a

prerequisite to membership in the Bar of the Court, the Court cannot

see how it could allow Respondent to practice before it even if one of the

(Continued on following page)

App. 4

A. Rule 15, Due Process, and Jurisdiction

Here, Ms. Fulton has attempted to cast a pall over the

proceedings before the Board of Professional Responsibil-

ity and the Wyoming Supreme Court by arguing that one

of the complaints filed against her was invalid, and as a

result, the Board of Professional Conduct lacked jurisdic-

tion to render its report, and this infirmity rendered the

Wyoming Supreme Court’s order void. The Court has

carefully reviewed the procedures used by the Board of

Professional Responsibility to adjudicate this issue.

The Court finds Respondent’s due process argument

tenuous at best and disingenuous at worst. In the first

place, the one case Respondent cites to bolster her position

regarding the amended complaint is inapposite. Nelson v.

Adams USA, Inc., 529 U.S. 460, 465 (2000). In that civil

case, “judgment was entered against [the defendant] the

moment permission to amend the pleadings was granted.”

Id. Furthermore, there was no question in that case that

Rule 15 applied. Here, the Board of Professional Responsi-

bility determined that Wyoming Rule of Civil Procedure 15

could not apply because it conflicted with the Disciplinary

Code. Wyo. Disc. Code § 11(n).

four elements were met. Because the Rule contemplates discipline in

any other court, there might be some circumstances in which in [sic]

imposition of identical discipline would not be appropriate, if for

example, an attorney were suspended from practice in Montana, but

retained her Wyoming license. In cases where the suspension comes

from the Wyoming Supreme Court, this Court simply has no authority

to vary that discipline. Membership in the Bar of this Court is abso-

lutely conditioned upon membership in the Bar of the State of Wyo-

ming.

App. 5

Secondly, the report and recommendation fully dis-

cusses the procedures used by the Board of Professional

Responsibility and the leniency with which the Board

treated Respondent’s request for additional time. (Report

and Rec. at 1-2). Based on the numerous disciplinary

actions chronicled above, Ms. Fulton was clearly aware

that there could be repercussions if she “ailed to timely file

an answer to the complaints or respond to the notices of

imminent default. Nevertheless, the Board of Professional

Responsibility allowed Ms. Fulton additional time to file a

motion to set aside the Defaults. That motion was also

filed four days late. Again, however, the Board of Profes-

sional Responsibility extended more process than was due

to Respondent. The Board considered the motion despite

its untimeliness.

B. Grave Injustice

Ms. Fulton next argues that imposition of identical

discipline would be a grave injustice, because she contends

there was no default. To prove this point she has, in her

usual fashion, attached a photocopy of an envelope pur-

porting to show that she mailed her answer appropriately.

The Court declines to entertain such a specious argument.

Ms. Fulton is well aware that no document is received by a

judicial body until it is filed. This Court has received

enough of Ms. Fulton’s photocopied envelopes to be highly

suspicious of their authenticity.’

* While it used to be easier to fabricate the details about when a

document was mailed, in this day in age, faxes are time stamped and

UPS and USPS packages can be electronically tracked. Given these

more reliable methods, Ms. Fulton’s photocopied envelopes seem brazen

and bizarre.

App. 6

Respondent next contends that she was never pro-

vided with evidence against her. If this allegation were

true, it would indeed be a grave injustice. However, Ms.

Fulton is not a lay person. She understands that, in some

cases, discovery must be requested to be received. In the

matters before the Board of Professional Responsibility,

she never made any discovery requests. Wyo. Disc. Code

§ 11(n). She never asked for a copy of the audio tape with

which she now takes issue. Furthermore, at the hearing

before the Board of Professional Responsibility, she stipu-

lated to the admissibility of the audio tape.

Conclusion

The Report and Recommendation of the Board of

Professional Responsibility to the Supreme Court provides

a detailed factual basis to support the Supreme Court's

Order of Suspension. Ms. Fulton’s tortured history as a

member of the State and Federal Bars of Wyoming is an

astonishing record of utter dereliction of duty. The Court

finds that, given Ms. Fulton’s history, the Wyoming Su-

preme Court’s suspension order was lenient. The docu-

mentary evidence alone demonstrates a course of conduct

so egregious that, had the Supreme Curt ruled that Ms.

Fulton should be disbarred, such a ruling would be unas-

sailable. Respondent is manifestly unfit to practice in this

Court.

The Court suspects that Ms. Fulton may struggle with

some underlying issues that make it more difficult to meet

the standards necessary to practice law, and the Court is

sympathetic to those challenges. Nevertheless, in her

present condition, allowing her to continue to practice

presents a grave risk to the public. A law license in her

App. 7

hands is a tool for inflicting incalculable harm on innocent

lay persons.

THEREFORE, it is hereby ORDERED that Jo Ann

Fulton shall be suspended from the practice of law in the

District of Wyoming for a period of three (3) years from the

date of this order.

DATED this 26th day of May, 2006.

/s/ William F. Downes

United States District Judge

App. 8

IN THE SUPREME COURT, STATE OF WYOMING

2006 WY 51

April Term, A.D. 2006

April 20, 2006

BOARD OF PROFESSIONAL ) 06 MISC 37

RESPONSIBILITY, No. D-06-3

WYOMING STATE BAR,

)

)

Petitioner,

v. )

JO ANN FULTON,

Respondent. )

ORDER SUSPENDING ATTORNEY

FROM THE PRACTICE OF LAW

This matter came before the Court upon a “Report

and Recommendation to the Wyoming Supreme Court,”

filed herein March 17, 2006, by the Board of Professional

Responsibility for the Wyoming State Bar. After a careful

review of the Board of Professional Responsibility’s Report

and Recommendation, the materials attached thereto,

“Respondent Fulton’s Response to Report and Recommen-

dation to the Wyoming Supreme Court,” and the file, this

Court finds that the Report and Recommendation should

be approved, confirmed and adopted by the Court; and

that the Respondent, Jo Ann Fulton, should be suspended

form {sic] the practice of law for a period of three years. It

is, therefore,

ADJUDGED AND ORDERED that the Board of

Professional Responsibility’s Report and Recommendation

to the Wyoming Supreme Court, which is attached hereto

and incorporated herein, shall be, and the same hereby is,

App. 9

approved, confirmed, and adopted by this Court; and it is

further

ADJUDGED AND ORDERED that, as a result of

the conduct set forth in the Report and Recommendation,

Respondent Jo Ann Fulton shall be, and hereby is, sus-

pended from the practice of law for a period of three years

from the date of this order; and it is further

ORDERED that Jo Ann Fulton shall reimburse the

Wyoming State Bar the amount of $3,779.98, representing

the costs incurred in handling this matter, as well as pay

an administrative fee of $1,000.00, by paying the amount

of $4,779.98 to the Clerk of the Board of Professional

Responsibility, on or before August 1, 2006; and it is

further

ORDERED that, pursuant to Rule 4(c) of the Disci-

plinary Code for the Wyoming State Bar, this Order

Suspending Attorney from the Practice of Law, along with

the incorporated Report and Recommendation, shall be

published in the Wyoming Reporter and the Pacific Re-

porter; and it is further

ORDERED that the Clerk of this Court shall docket

this Order Suspending Attorney from the Practice of Law,

along with the Report and Recommendation, as a matter

coming regularly before this Court as a public record; and

it is further

ORDERED that the Clerk of this Court transmit a

copy of this Order Suspending Attorney from the Practice

of Law to the members of the Board of Professional Re-

sponsibility, and the clerks of the appropriate courts of the

State of Wyoming.

App: 10

DATED this 18th day of April, 2006.

BY THE COURT:

/s/ William U. Hill

WILLIAM U. HILL

Chief Justice

App. 11

BEFORE THE BOARD OF

PROFESSIONAL RESPONSIBILITY

WYOMING STATE BAR

STATE OF WYOMING

In the matter of )

JO ANN FULTON, - ) Docket Nos.

WSB Attorney No. 5-2686, ) 2005-02 and 2005-29

Respondent. )

REPORT AND RECOMMENDATION

TO THE WYOMING SUPREME COURT

On February 28, 2006, a disciplinary hearing was held

before the Wyoming State Bar Board of Professional

Responsibility (hereafter the “Board”) in the matter of Jo

Ann Fulton, Docket Nos. #2005-02 and #2005-29. The

Wyoming State Bar was represented by Bar Counsel,

Rebecca A. Lewis, and Respondent Jo Ann Fulton repre-

sented herself. After hearing evidence and argument from

both sides, the Board submits the following Report and

Recommendation.’

PROCEDURAL HISTORY

In Docket No. 2005-02, an Amended Complaint was

filed and served on Respondent on November 2, 2005.

Pursuant to Rule 11(f) of the Disciplinary Code for the

Wyoming State Bar (hereafter the “Disciplinary Code”),

Respondent had twenty (20) days to serve an answer on

Bar Counsel and the Board. Respondent failed to timely

answer the Amended Complaint in Docket No. 2005-02.

* Board member Devon Coleman abstained from voting on these

disciplinary recommendations.

App. 12

On November 28, 2005, Bar Counsel filed and served a

Motion For Entry of An Order of Default, together with a

Notice of Imminent Default on Amended Complaint.

Respondent did not timely respond to the Notice of Immi-

nent Default, and on December 20, 2005, the Board issued

its Entry of Order of Default and Order Setting Hearing

on Sanctions in Docket No. 2005-02.

In Docket No. 2005-29, a Complaint was filed and

served on Respondent on November 15, 2005. Pursuant to

Rule 11(f) of the Disciplinary Code, Respondent had

twenty (20) days to serve an answer on Bar Counsel and

the Board. Respondent failed to timely answer the Com-

plaint in Docket No. 2005-29. On December 6, 2005, Bar

Counsel filed and served a Motion For Entry of An Order

of Default together with a Notice of Imminent Default on

Disciplinary Summons and Complaint. Respondent did not

timely respond [sic] the Notice of Imminent Default, and

on December 27, 2005, the Board issued its Entry of Order

of Default and Order Setting Hearing on Sanctions in

Docket No. 2005-29.

On January 10, 2006, the Chair of the Board, acting

as a disciplinary judge pursuant to Rule 11(g) of the

Disciplinary Code, held a pre-hearing conference. At the

conference, Respondent requested leave to file a motion to

set aside the default orders in both Docket No. 2005-02

and Docket No. 2005-29, and on January 10, 2006, the

Board issued its Order Continuing Hearing in which the

disciplinary hearings set for January 18 and 19, 2006 were

continued, and further ordered that Respondent’s motion

for relief pursuant to Rule 60 of the Wyoming Rules of

Civil Procedure be filed no later than January 20, 2006.

Respondent’s Rule 60(b) Motion For Relief From Entry of

App. 13

Default was untimely filed on January 24, 2006. Notwith-

standing the untimely filing, Respondent’s Motion was

considered by the Board, and arguments by Respondent

and Bar Counsel were heard by the Board on February 10,

2006.

The Board found that the default orders entered in

Docket Nos. 2005-02 and 2005-29 were properly entered

pursuant to Rule 11(m) of the Disciplinary Code. It there-

fore became Respondent’s burden to prove that relief from

the default orders was warranted under Rule 60 of the

Wyoming Rules of Civil Procedure, made applicable to

these proceedings pursuant to Rule 11(n) of the Discipli-

nary Code. Under Rule 60, a litigant may seek relief from

judgments and orders attributable to (a) clerical mistakes,

or (b) other reasons. In this matter, Respondent seeks

relief from the default orders pursuant to Rule 60(b)(1),

which authorizes relief, upon such terms as are just, when

the entry of the order was occasioned by “mistake, inad-

vertence, surprise or excusable neglect.” Under applicable

Wyoming law, a Rule 60(b)(1) motion must clearly be

substantiated by adequate proof, and the burden is on the

movant to bring himself within the rule. Vanesse v. Ram-

sey, 847 P.2d 993 (Wyo.1993); United States Aviation, Inc.

v. Wyoming Avionics, Inc., 664 P.2d 121 (Wyo.1983).

The Board found that Respondent failed to carry her

burden to prove that she was entitled to relief from the

orders of default entered in Docket No. 2005-02 and

Docket No. 2005-29. Specifically, the Board found that

Respondent failed to carry her burden to prove that her

failure to timely respond to the underlying disciplinary

complaints, and more importantly, the notices of imminent

default, were the result of mistake, inadvertence, surprise

or excusable neglect. Therefore the Motion was denied and

App. 14

the matters went to hearing on February 28, 2006, to

determine the form of discipline to be imposed.

FINDINGS OF FACT ON #2005-02

1. Respondent, Jo Ann Fulton, is an attorney who

has been licensed to practice law in Wyoming since 1990.

Her office is located in Laramie, Wyoming.

2. Respondent represented Terry and Casi Rummel

in regard to personal injuries Casi Rummel received in a

vehicle accident. The Representation Agreement provided

at paragraph V. “Expenses,” that paralegal fees were to be

billed to and paid by Rummels as an “expense.” This is a

variation from the form contingency fee agreement ap-

proved by the Wyoming Supreme Court in Rule 6 of the

Rules Governing Contingency Fees for Members of the

Wyoming State Bar, and affected substantive rights of the

Rummels. Respondent did not have this modification of

the form approved by the District Court of the Second

Judicial District, as required by Rule 6.

3. Respondent did not provide to Rummels a copy of

the Rules Governing Contingency Fees for Members of the

Wyoming State Bar, as required by Rule 5(e) of those

Rules.

4. Some, if not all, of the paralegal fees that were

billed should have been included as part of the contin-

gency fee as they were actions which are generally under-

stood to be part of the legal services to be compensated by

the contingency fee.

5. Although the Representation Agreement indicated

that the “adverse parties” were “G.E. Property & Casualty

Insurance Co.,” Respondent was also pursing legal matters

App. 15

in regard to Farm Bureau and the Town of Saratoga for

which she sought a fee.

6. Respondent and Rummels settled some claims for

a total of $101,864.00. Most of that money was received in

November 2003. Inasmuch as Respondent was planning to

file suit for Rummels against the Town of Saratoga,

Respondent and Rummels agreed that Respondent would

retain the funds for that possible litigation. Respondent

was unsure what amount of expenses would be incurred in

that suit, but did not expect that suit to use all the settle-

ment funds from the settlement.

7. Inthe course of the discussion regarding retention

of the settlement monies, Respondent erroneously advised

Rummels that if Respondent kept the money, the interest

earned would be part of the settlement such that it would

not be taxable.

8. On 16 February 2004, Respondent purchased a

Certificate of Deposit (“CD”) from U.S. Bank with the

Rummels’ settlement monies. The CD was in the amount

of $101,864.00 and matured in 2 years. The CD was

purchased in the name of Fulton Law Office, P.C., and not

in the name of Terry or Casi Rummel. The CD also in-

cluded the tax I.D. number for Respondent, not Rummels.

No interest from this CD was paid to the Wyoming Bar

Foundation as it would have been if the CD had been part

of Respondent’s IOLTA trust account.

9. Respondent informed Rummels of the purchase of

the CD, but did not provide them with any of the docu-

mentation even after Rummels requested it on numerous

occasions. Respondent did not inform Rummels that the

CD had been purchased in the name of Fulton Law Office

App. 16

firm. Respondent also did not inform them that it had a 2

year term.

10. Although the settlement monies were put in the

CD rather than distributed to Rummels, allegedly for the

purpose of funding the suit against the Town of Saratoga,

Respondent did not file that suit until 16 December 2004.

The basis of the suit was essentially that the Town of

Saratoga owed a duty to Casi Rummel to issue a citation

to the person with whom she had the vehicle accident, and

that Casi Rummel was somehow injured or damaged as a

result of the Town’s failure to issue such a citation. This

suit was frivolous and totally without merit, as even a

small amount of legal research would have revealed.

11. In response to the suit, the attorney for the Town

of Saratoga served a Wyoming Rules of Civil Procedure

Rule 11 notice, then filed a motion to dismiss. The suit was

dismissed in early 2005 after Rummels contacted Attorney

Matthew Castano to negotiate the dismissal of the suit

without Rule 11 sanctions.

12. In late 2004, it was agreed that $25,000 of the

settlement funds would be released to the Rummels by

Respondent.

13. Near the end of 2004, Rummells requested the

balance of the settlement funds. Rummels had told Re-

spondent that they were in significant need of this money

as they had a bank note coming due. After a number of

unexplained delays by Respondent, she finally provided

two checks payable from the “Fulton Law Office, PC”

operating account, for $25,000 and $20,312.12, respec-

tively. When Rummels attempted to cash the checks, the

checks were returned for insufficient funds. The money

App. 17

was eventually paid by Respondent in the form of cashier’s

checks.

14. Before the settlement monies were distributed,

Respondent counseled Rummels in regard to how to pay

out the settlement monies in a way that Respondent

contended would avoid tax consequences for the interest

the monies had earned while held by Respondent. That

advice included paying out the monies in several smaller

amounts, which is what was done, and paying the monies

to persons other than Rummels.

15. In addition to the settlement payout, Respondent

paid $20,000 to Rummels as settlement of a dispute

between Rummels and Respondent over Respondent’s

legal fees.

FINDINGS OF FACT ON #2005-29

_ 1. Jo Ann Fulton is an attorney licensed to practice

law in Wyoming since 1990. Her office is located in Lara-

mie, Wyoming. |

2. On 9 May 2005, Myra Schwartz of Laramie,

Wyoming, called her son, Ryan Schwartz, an attorney in

Cheyenne, Wyoming, regarding a possible problem with

the sale of their home. Specifically, Myra informed Ryan

that Respondent had contacted the Schwartzs’ realtor

about a potential lawsuit by the Schwartzs’ neighbors

regarding the noise level of their air conditioner.

3. During that call, Myra entered into an attorney-

client relationship with Ryan Schwartz to represent she

and her husband, Jay Schwartz, in the dispute with the

neighbors and to protect their interests while they at-

tempted to sell the property.

App. 18

4. Rvan Schwartz then called the Schwartzs’ realtor,

Patti MacMillan to confirm what Myra had told him,

which she did.

5. Ryan Schwartz thereafter called Respomdent on 9

May 2005. During the call, Ryan introduced himself as an

attorney and informed Respondent that he represented

the Schwartzes with respect to the air conditioner dispute.

6. Ryan Schwartz and Respondent discussed the

merits of the case, and Ryan stated that the Schwartzes

felt Respondent’s clients’ claims were unfounded.

7. The conversation ended with Ryan Schwartz

explaining that the Schwartzes would not be taking any

action regarding Respondent’s clients’ complaints, and

that Respondent should contact Ryan Schwartz with any

other questions.

8. Ryan Schwartz never gave Respondent permission

to contact the Schwartzes directly.

9. By letter of.8 September 2005, Respondent con-

tacted the Schwartzes directly. The letter was not copied to

Ryan Schwartz.

CONCLUSIONS OF LAW IN #2005-02

1. Respondent violated Rule of Professional Conduct

1.5(a) by including paralegal time for legal services which

should be generally covered by the contingency percent-

age.

2. Respondent violated Rule 1.5 by violating Rules

5(e) and 6 of the Rules Governing Contingency Fees for

Members of the Wyoming State Bar in that Respondent

did not provide Rummels with a copy of those Rules, the

App. 19

Representation Agreement did not comply with the form

agreement in Rule 6, and Respondent did not seek ap-

proval for the modification of the form agreement.

3. By filing a suit against the Town of Saratoga

which had no merit, Respondent violated Rules 1.1 and

3.1.

4. By telling Rummels that the interest on the

settlement funds was not taxable if Respondent kept those

funds, Respondent violated Rule 1.1.

5. By purchasing the Certificate of Deposit in the

name of her law firm instead of her clients’ names, Re-

spondent violated Rule 1.15(a) because she did not keep

those funds separate from her own but essentially took

them as her own.

6. Respondent violated Rule 1.15(c) by delivering a

portion of their funds to them with two checks which were

returned for insufficient funds.

7. Respondent violated Rules 1.15 and 1.4 by failing

to respond to Rummels’ requests for information regarding

the purchase of the certificate of deposit.

8. Respondent violated Rules 1.2(d), 8.4(c) and 8.4(d)

by counseling Rummels regarding how to unlawfully avoid

tax consequences of interest earned from the settlement

monies.

CONCLUSIONS OF LAW IN #2005-29

1. Respondent violated Rule of Professional Conduct

4.2 by communicating with Schwartzes directly about the

dispute over the air conditioner when Respondent knew

that attorney Ryan Schwartz represented them and when

App. 20

Ryan Schwartz had not given Respondent permission for

that communication and there is no law which authorized

that communication.

‘AGGRAVATING FACTORS

FOR #2005-02 AND #2005-29

The ABA Standards for Imposing Lawyer Sanctions,

Standard 9.22, lists factors which may be considered in

aggravation in determining what sanction to impose or

recommend. The following are the aggravating factors

which were supported by the evidence:

9.22(a) — prior disciplinary offenses. Respondent has a

significant history of prior discipline. To summarize, in

2002, Respondent received a Private Reprimand from the

Board of Professional Responsibility for violations of Rules

3.1 and 4.4 in regard to asserting a non-meritorious claim.

By Order of 23 July 2003, the 10th Circuit suspended

Respondent from practice before that Court as the culmi-

nation of a number of disciplines it had issued to her. The

Wyoming Supreme Court, based on that suspension by the

10th Circuit, issued a public censure to Respondent on 6

January 2004. Attached hereto as part of this Report and

Recommendation are Exhibits 13, 14, 15, and 18 which are

the actual disciplinary orders which were very persuasive

in the Board’s recommendations.

9.22(c) — a pattern of misconduct. Respondent contin-

ues to breach the same types of rules in #2005-02 as she

did in regard to her prior disciplinary matters.

9.22(d) — multiple offenses. In regard to #2005-02 and

#2005-29, Respondent violated a number of the Wyoming

Rules of Professional Conduct. This shows either a lack of

App. 21

knowledge of her ethical obligations or a consistent disre-

gard of them or both.

9.22(e) — bad faith obstruction of the disciplinary

proceeding by intentionally failing to comply with rules or

orders of the disciplinary agency. Respondent initially

failed to timely answer the Amended Complaint in #2005-

02 and the Complaint in #2005-29. After the defaults were

entered, and Respondent was sent notice of them, she did

nothing until the pre-hearing conference on 10 January

2006 which preceded the hearing which was set to begin

on 18 January 2006. At that tirie, she made an oral

request for time to file a motion ts set aside the defaults.

She represented to the Board Chair, Joe Teig, that she

needed at least 10 days to prepare the motion and get the

necessary affidavits to support the motion. Therefore, the

hearing on these matters was continued for about 6 weeks

to allow Respondent time to file her motion, for the Bar to

respond, and for the entire Board to consider the motion.

The motion, however, was not timely filed, and there were

no affidavits filed. Additional facts in support of this

aggravating factor are set forth in more detail in the Bar’s

Opposition to Respondent’s Rule 60(b) Motion for Relief

from Entry of Default, filed on 30 January 2006.

9.22(f) — submission of false evidence, false statements

or other deceptive practices during the disciplinary proc-

ess. Respondent testified under oath to several matters

that were contradicted by tape recorded telephone conver-

sations between Rummels and Respondent. Those tapes

were admitted into evidence as Exhibit 17.

9.22(g) — refusal to acknowledge wrongful nature of

conduct. At the hearing on these matters, Respondent did

not take full responsibility for or acknowledge her wrongful

App. 22

conduct. To the contrary, she sought to blame her staff for

issuing the settlement checks on the wrong account which

resulted in them being returned for insufficient funds. She

sought to blame the bank for the manner in which the CD

was issued. She sought to blame her mishandling and

commingling of the trust account monies on Bar Counsel

for not recommending a CLE she could take on trust

accounts after Respondent’s trust account was overdrawn

through an error in her office back in June 2004. She

sought to blame Rummels for how the settlement monies

were handled and distributed.

9.22(h) — vulnerability of victim. Rummels were very

vulnerable. They were unsophisticated consumers of legal

services and trusted Respondent to provide a fair and

proper representation agreement and to properly purchase

a CD which was secure and which fit their needs. She did

neither. In addition, based on Respondent’s recommenda-

tions, Respondent filed a frivolous suit against the Town of

Saratoga while holding Rummels’ settlement money for

more than 11 months for the purported purpose of paying

expenses of a suit that had no merit.

9.22(i) — substantial experience in the practice of law.

Respondent has been practicing law since 1990.

RECOMMENDATIONS FOR

#2005-02 AND #2005-29

The ABA Standards for Attorney Sanctions, Standard

7.2, applies to violations of Rule 1.5 and states that “sus-

pension is generally appropriate when a lawyer knowingly

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.”

App. 23

ABA Standard 4.12 applies to violations of 1.15 and

states that “suspension if generally appropriate when a

lawyer knows or should know that he is dealing improp-

erly with client property and causes injury or potential

injury to a client.”

The comment to that Standard states in pertinent

part, “Suspension should be reserved for lawyers who

engage in misconduct that does not amount to misappro-

priation or conversion. The most common cases involve

lawyers who commingle client funds with their own or fail

to remit client funds promptly.”

The comment also says, “Because lawyers who com-

mingle client’s funds with their own subject the client’s

funds to the claims of creditors, commingling is a serious

violation for which a period of suspension is appropriate

even in cases when the client does not suffer a loss.”

ABA Standard 5.11(b) states that “disbarment is

generally appropriate when a lawyer engages in any other

intentional conduct (other than those listed in subsection

a) involving dishonesty, fraud, deceit or misrepresentation

that seriously adversely reflects on the lawyer’s fitness to

practice.”

ABA Standard 4.42 states that “suspension is gener-

ally appropriate when (a) a lawyer knowingly fails to

perform services for a client and causes injury or potential

injury to a client or (5) a lawyer engages in a pattern of

neglect and causes injury or potential injury to a client.”

Given the findings of fact and conclusions of law

detailed above, along with the ABA Standards for Attorney

Sanctions, the Board hereby recommends that the Wyo-

ming Supreme Court order the following:

App. 24

a. Respondent be suspended from the practice of

law for a period of three years from the date of the Court’s

Order;

b. Respondent be ordered to pay the costs of

prosecution and hearing these two matiers in the amount

of $3,779.98, no later than 1 August 2006; and

c. Respondent be ordered to pay the administra-

tive fee for both cases in the amount of $1000.00 no later

than 1 August 2006.

Dated March 15, 2006

/s/ Joe M. Teig

Joe M. Teig, Chair

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of this

Opposition Report & Recommendation was mailed by

United States Mail, postage prepaid, on March 17, 2006 to

the following:

Jo Ann Fulton

P.O. Box 1267

Laramie, WY 82073-1267

/s/ Sandy J. Inniss

Sandy J. Inniss

App. 25

[SEAL]

UNITED STATES DISTRICT COURT

DISTRICT OF WYOMING

LOCAL RULES

Rule 18.12.5 DISCIPLINE IMPOSED BY OTHER COURTS

(a) Subject to Public Discipline. Any attorney admit-

ted to practice before this Court shall, upon being sub-

jected to public discipline by any other Court of the United

States or the District of Columbia, or by a court of any

state, territory, commonwealth or possession of the United

States, promptly inform the Clerk of this Court of such

action.

(b) Filing of Certified or Exemplified Copy of Judg-

ment or Order. Upon the filing of a certified or exemplified

copy of a judgment or order demonstrating that an attor-

ney admitted to practice before this Court has been disci-

plined by arother court, this Court shall forthwith issue a

notice directed to the attorney containing:

(1) a copy of the judgment or order from the

other court;

(2) an order to show cause directing that the

attorney inform this Court within thirty (30) days after

service of that order upon the attorney, personally or by

mail, of any claims by the attorney predicated upon the

grounds set forth in .ocal Rule 204 (d) hereof that the

imposition of the identical discipline by the Court would be

unwarranted and the reasons therefor.

(c) Discipline in Other Jurisdiction Stayed. In the

event the discipline imposed in the other jurisdiction has

App. 26

been stayed there, any reciprocal discipline imposed in

this Court shall be deferred until such stay expires.

(d) Imposition of Identical Discipline. Upon the

expiration of thirty (30) days from service of the notice

issued pursuant to the provisions of Local Rule 83.12.5 (b)

above, this Court shall impose the identical discipline

unless the respondent-attorney demonstrates, or this

Court finds upon the face of the record upon which the

discipline in another jurisdiction is predicated, that it

clearly appears:

(1) the procedure was so lacking in notice or

opportunity to be heard as to constitute a deprivation of

due process;

(2) there was such an infirmity of proof estab-

lishing the misconduct as to give rise to the firm conviction

that this Court could not, consistent with its duty, accept

as final the conclusion on that subject;

(3) the imposition of the same discipline by this

Court would result in grave injustice; or

(4) that the misconduct established is deemed by

this Court to warrant substantially different discipline.

Where this Court determines that any of said elements

exist, it shall enter such order as it deems appropriate.

(e) Final Adjudication in Another Court. In all other

respects, a final adjudication in another court that an

attorney has been guilty of misconduct shall establish

conclusively the misconduct for purposes of a disciplinary

proceeding in the Court of the United States.

App. 27

(f) Appointment of Counsel to Prosecute. This Court

may, at any stage, appoint counsel to prosecute the disci-

plinary proceedings.