Bar responds to anonymous e-mail

Some members of the Wyoming State Bar, including judges, have received anonymous e-mails calling into question the transparency of the operations of the Wyoming State Bar – specifically, the Office of Bar Counsel. While it is not our practice to respond to anonymous rumors, many of the statements are incorrect and demand a response.

The Wyoming State Bar’s commitment to transparency is evident in important provisions of the Bylaws of the Wyoming State Bar. For instance:

• Meetings of the Board of Officers & Commissioners are open to the public.
• Detailed minutes from those meetings are shared with and approved by the Board of Officers & Commissioners for dissemination to members of the Bar. Once the January minutes are approved, those will be posted to the Bar’s new website, as will all future minutes.
• Resolutions can be brought to the elected leaders of the Bar with any concerns or ideas for improvement and will be discussed openly at the Annual Business Meeting, which is held at each Annual Meeting.
• Rule changes that affect the membership are distributed as a “Call for Comments” giving all members an opportunity to provide feedback. These are also posted to the Bar’s website.
• A summary of the budget is published each year in the December Wyoming Lawyer with a notation that any member wishing to receive a copy of the full budget should contact the Executive Director.
• The Wyoming State Bar’s financial statements are audited annually and are available upon request.

Given that background, the following is provided to correct misinformation.

Bar Counsel Salary
Bar Counsel earns a salary of $150,000 annually. This salary was determined jointly by the Wyoming Supreme Court, the Peer Review Panel (now called the Bar Counsel Review and Oversight Committee) and the elected officers of the Wyoming State Bar.

Expense Account
All staff members of the Wyoming State Bar including staff of the Office of Bar Counsel are reimbursed for expenses they incur while conducting Bar business. All reimbursement requests are supported by receipts and are reviewed and approved by the Treasurer of the Wyoming State Bar. Expenses incurred by volunteer Board members are reimbursed on the same basis.

Full-Time Bar Counsel
The Office of Bar Counsel was created in 1988 and was staffed by full-time Bar Counsel until 2002. From 1997 until 2002, there were two full-time lawyers in the Office of Bar Counsel. In 2001 the Wyoming Supreme Court appointed a Select Committee to Review Disciplinary Functions of the Wyoming Supreme Court. The committee was made up of the Supreme Court Clerk, two District Court judges appointed by the Board of Judicial Policy & Administration, two members of the Board of Officers and Commissioners, two members of the Board of Professional Responsibility, the two lawyers in the Office of Bar Counsel, the WSB Executive Director and a professor from the UW College of Law. Based on the Select Committee’s work, the decision was made to contract with an experienced private practice litigation attorney to handle disciplinary matters.

Rebecca Lewis served as Bar Counsel in this capacity from 2002 through 2010, and Mark Gifford served as contract Bar Counsel from 2011 through 2013. In 2012 and 2013, at the Wyoming Supreme Court’s request, the ABA Standing Committee on Professional Discipline conducted a thorough review of Wyoming’s disciplinary system. The resulting report recommended important structural changes to the Office of Bar Counsel, including significant revisions to the Disciplinary Code and the hiring of full-time Bar Counsel. In fact, the report notes, “Wyoming is the only jurisdiction, including those with comparable lawyer populations, without a full-time professional disciplinary counsel.”

Upon receipt of the report, the Wyoming Supreme Court met with the elected leadership and staff of the Bar, representatives of the Board of Professional Responsibility, the Peer Review Panel and several past presidents of the Bar. All agreed to adopt the ABA’s recommendation for full-time Bar Counsel.

Immunity
Many of the recommendations of the 2013 ABA report are designed to more closely align Wyoming’s Disciplinary Code with the ABA Model Rules for Lawyer Disciplinary Enforcement, which have existed since 1996. In fact, the immunity provision of the proposed rules, which grants immunity from civil suit to all participants in the attorney discipline process, not just Bar Counsel, was taken verbatim from Rule 12 of the ABA Model Rules.

Candidates for Bar Counsel Vacancy
When Mark Gifford turned in his resignation in early 2013, a hiring committee was formed, which was made up of two representatives from the Wyoming Supreme Court, all three members of the Peer Review Panel, the elected leaders of the Wyoming State Bar and Mark Gifford. The salary posted in the vacancy announcement was $125,000 annually. Several dozen lawyers applied for the position. Upon review of the applicants, the hiring committee selected five lawyers to interview.

The job of Bar Counsel was offered and accepted by one of the five candidates; however, that candidate ultimately rescinded his acceptance of the job. The interview committee reconvened and decided to renew the search at an annual salary of $150,000. While the search committee considered its options, Mark Gifford informed the search committee that he was willing to leave his new private practice position and take the full-time Bar Counsel position. All members of the search committee agreed that was the best option for the Office of Bar Counsel.

Increase in License Fees
In the last 27 years, license fees have increased by 57%, which is substantially less than the rate of inflation. The Officers & Commissioners have the responsibility of setting the license fee and the Wyoming Supreme Court ultimately approves the Board’s recommendation.

Who’s Watching Bar Counsel?
The allegation that there is no oversight of Bar Counsel’s activities is false. Since 2003, the Peer Review Panel has existed to oversee and evaluate the work of Bar Counsel. That oversight is extensive. In fact, the only decision Bar Counsel makes that is not subject to review is the decision whether to initiate an investigation upon receipt of a complaint, and that decision is based solely on whether prima facie evidence of misconduct is contained in the complaint. Click here to view the article by Joe Teig, Chair of the Office of Bar Counsel Review and Oversight Committee, in the February 2015 Wyoming Lawyer.

Bar Counsel’s Responsibilities
Since Mark Gifford became full-time Bar Counsel in October 2013, the Office of Bar Counsel has been assigned significant new responsibilities. In addition to performing the disciplinary function, the Office provides staff support to the Board of Law Examiners, the Board of Continuing Legal Education, the Unauthorized Practice of Law Committee, the Resolution of Fee Disputes Committee and the Clients’ Security Fund Committee. The Office of Bar Counsel has been heavily involved in updating the unauthorized practice of law system, the admission and CLE rules, the Bylaws of the Wyoming State Bar, the Rules of Professional Conduct and most recently the Disciplinary Code. Mark also takes several Ethics Hotline calls per day from lawyers in and out of Wyoming seeking guidance on ethical issues.

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