Board of Professional Responsibility, Wyoming State Bar v. Stuwert B. Johnson, WSB No. 6-2631

IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 112

April Term, A.D. 2015

August 19, 2015

BOARD OF PROFESSIONAL
RESPONSIBILITY, WYOMING
STATE BAR,

Petitioner,
D-15-0006
v.

STUWERT B. JOHNSON, WSB No.
6-2631,

Respondent.

ORDER OF PUBLIC CENSURE

[¶1] This matter came before the Court upon a “Report and Recommendation for
Public Censure,” filed herein July 27, 2015, 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). See also Rule 26(f) of the Wyoming Rules of
Disciplinary Procedure (“These rules shall become effective July 1, 2015, and any
discipline or disability investigation pending on that date shall proceed under these rules.
Any matter then pending with respect to which a formal charge has been filed shall be
concluded under the procedure existing prior to the effective date of these rules.”). The
Court, after a careful review of the Board of Professional Responsibility’s Report and
Recommendation and the file, finds that the Report and Recommendation should be
approved, confirmed, and adopted by the Court, and that Respondent, Stuwert B.
Johnson, should be publicly censured for his conduct. It is, therefore,

[¶2] ADJUDGED AND ORDERED that the Board of Professional Responsibility’s
Report and Recommendation for Public Censure, 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 Stuwert B. Johnson is hereby publicly
censured for his conduct, which is described in the Report and Recommendation for
Public Censure. This public censure shall include issuance of a press release consistent
with the one set out in the Report and Recommendation for Public Censure; and it is
further

[¶4] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the
Wyoming State Bar, Mr. Johnson shall reimburse the Wyoming State Bar the amount of
$50.00, representing the costs incurred in handling this matter, as well as pay the
administrative fee of $500.00. Mr. Johnson shall pay the total amount of $550.00 to the
Wyoming State Bar on or before October 19, 2015; and it is further

[¶5] ORDERED that the Clerk of this Court shall docket this Order of Public Censure,
along with the incorporated Report and Recommendation for Public Censure, as a matter
coming regularly before this Court as a public record; and it is further

[¶6] ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the
Wyoming State Bar, this Order of Public Censure, along with the incorporated Report
and Recommendation for Public Censure, shall be published in the Wyoming Reporter
and the Pacific Reporter; and it is further

[¶7] ORDERED that the Clerk of this Court cause a copy of this Order of Public
Censure to be served upon Respondent, Stuwert B. Johnson.

[¶8] DATED this 19th day of August, 2015.

BY THE COURT:

/s/

E. JAMES BURKE
Chief Justice
 I L. UJ’i2
STATt Cl tOMG
BEFORE THE SUPREME COURT HLED

STATE OF WYOMING JUL 2 7 2015
CAOMP8%LK

In the matter of )
STUWER TB. JOHNSON, )
WSB # 6-2631, ) WSB No. 2014-070

Respondent.
II 1 5 0 00 6
REPORT AND RECOMMENDATION FOR PUBLIC CENSURE

The Board of Professional Responsibility makes the following Report and

Recommendation, with its findings of fact and recommendation to the Supreme

Court of Wyoming:

FINDINGS OF FACT

1. Respondent has been licensed to practice law in the State of Wyo

ming since 1993. He is also licensed to practice in the State of Utah, and main

tains a law office in Ogden, Utah.

2. During 2013, Respondent undertook to represent Thomas Wixom

with respect to criminal charges brought against him in the Circuit Court for the

Third Judicial District, Sweetwater County, Wyoming. The charges followed a

motor vehicle stop after Wixom was observed driving erratically and was corn-
bative with law enforcement. Wixom was charged with Driving While Under the

Influence and Interfering with a Peace Officer.

3. A blood specimen drawn from Mr. Wixom was negative for blood al

cohol content but positive for blood amphetamines.

4. On October 7, 2013, an Order Upon Arraignment was entered by
2nd
Judge Prokos which required Respondent “to appear in person for the confer

ence & pre-trial conference.”

5. On November 13, 2013, an Order was entered by Judge Prokos set

ting a second conference to be held December 18, 2013, at the Green River Circuit

Court. The Order provided, “All counsel shall personally appear at the confer

ence.”

6. On December 17, 2013, Respondent faxed a motion to appear tele

phonically at the December 18, 2013 settlement conference.

7. On December 30, 2013, an Order was entered by Judge Prokos set

ting a pretrial conference for February 5, 2014, and a trial date of February 20,

2014. The Order further provided, “Any plea agreement must be submitted to the

court in writing, personally signed by the defendant, by 3:30 p.m. on Feb. 14,

2014. The parties shall also each file a Pretrial Memo and motions in limine by

3:30 p.m. on Feb. 14, 2014.”

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 8. Respondent did not appear at the February 5, 2014 pretrial confer

ence, causing Judge Prokos to issue an Order setting the pretrial conference for

February 12, 2014, with the provision, “Defense Counsel must appear in person.”

The February 5, 2014 order repeated the requirements that a pretrial memo, mo

tions in limine and a signed plea agreement must be submitted by 3:30 p.m. on

February 14, 2014, with the trial to be held February 20, 2014.

9. Respondent appeared for the February 12, 2014 pretrial conference,

but left before the hearing began because he reportedly received an emergency

phone call.

10. On February 18, 2014, Respondent faxed to the court a “Motion to

vacate scheduled hearing and Request for Change of Plea and Request for Set

ting.” The motion stated, “Defense Counsel and Counsel For The State discussed

the matter and reached an agreement that can be presented to the Court which re

quires that the current hearing be vacated and the matter be set for a change of

plea.”

11. The referenced “agreement” was one which would require Mr. Wix

om to plead guilty to the charge of Driving While Under the Influence. Respond

ent proposed the agreement without reviewing discovery in the case, which

showed that Mr. Wixom had a 0.00 blood alcohol level and that blood ampheta

mines were present.

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 12. As a result of Respondent’s motion, the matter was set for a change

of plea hearing on March 19, 2014.

13. Mr. Wixom and his parents secured discovery from the County At

torney’s office on March 19, 2014, which included the blood test results men

tioned above. The presence of blood amphetamines was explained by the fact that

Mr. Wixom was experiencing a hypoglycemic episode as a result of poorly con

trolled diabetes, which also explained his erratic behavior at the time of his arrest.

14. On April 8, 2014, the Wixoms wrote a letter terminating Respond

ent’s services, stating, “You have continuously lied to us. You never went after

any case file paper work from the District attorney in Green River, Wyoming.

You would not return our calls. You called us Myth [sicJ users. You never filed all

the paper work needed in Wyoming. After 2 weeks you text at 5 A.M. to say you

are calling now. We have done all the work for you and you still do nothing. So

our bill is paid in full. We will never recommend you to anyone.”

15. On April 11, 2014, an Order was entered resetting the change of plea

hearing for April 17, 2014.

16. On April 14, 2014, Respondent’s office faxed an unsigned motion to

withdraw as counsel to the court.

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 17. On April 16, 2014, Green River attorney Stewart Toolson entered his

appearance for Wixom. An Order was entered resetting the change of plea hearing

to April 22, 2014.

18. Stewart Toolson presented the prosecutor, Damon DeBernardi, with

evidence that at the time of his arrest Mr. Wixom was experiencing a hypoglyce

mic episode which explained his erratic behavior leading to his arrest. Mr. Tool-

son also presented evidence that the presence of blood amphetamines in Mr. Wix

om’s lab work was attributable to lawfully-prescribed medication for his diabetes.

19. The criminal matter was resolved with Mr. Wixom pleading guilty to

a charge of reckless endangerment with a 12-month jail sentence, all suspended,

and 12 months of unsupervised probation.

20. On April 10, 2014, a complaint against Respondent was received by

the Office of Bar Counsel. The complainants, Wixom and his parents, alleged that

Respondent failed to return calls, failed to do discovery in the case, and kept tell

ing them Wixom was drunk. The Wixoms obtained the paperwork from the arrest,

which showed that their son had not been drinking. The Wixoms fired Respondent

after he failed to inform them that a court date had been cancelled and continued

to refuse to return their calls. They requested the return of the $500 fee they had

paid Respondent and “an investigation as to whether [Respondent] should even be

practicing law.”

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 21. On April 11, 2014, the Office of Bar Counsel mailed a copy of the

complaint to Respondent and asked him to submit a written response by April 2$,

2014. Respondent did not respond. On May 1, 2014, the Office of Bar Counsel

sent an email to Respondent reminding him that he was past time to respond to the

complaint. Respondent did not respond. On May 30, 2014, another email was sent

to Respondent reminding him of his obligation to respond to the complaint. Re

spondent did not respond. On June 3, 2014, Assistant to Bar Counsel called the

telephone number provided by Respondent to the Wyoming State Bar and learned

that Respondent was no longer working for that office and that his cell phone

number had been disconnected.

22. On December 4, 2014—more than seven months after the April 28,

2014 deadline for Respondent to respond to the complaint, the following letter

from Respondent was received by Assistant to Bar Counsel:

Dear Ms. Howshar:

Enclosed please find all the pertinent information regard
ing Thomas Wixom. This is the complete information I
received from the prosecutors [sic] office regarding Mr.
Wixom’s case. You will note from the documentation
that he entered a plea before he hired me which was va
cated and a new hearing was set. At the hearing I did re
ceive additional information that Mr. Wixom tested over
the legal limit for alcohol. The prosecutor and myself
worked out a satisfactory negotiation which my client
denied. I will note that it was not so much my client but
the influence of his mother who was the actual person
that filed the bar complaint. The parents are unhappy be

6
 cause they were told by their son that he was not drink
ing. However, the blood draw shows just the opposite.
We had a deal which was negotiated very favorable to
Mr. Wixom which was unfortunately was denied. I indi
cated that they were going against my advise [sic] at
which time they terminated my representation.

Please understand that all clients are not happy with the
proposed negotiation deal but this was a very favorable
outcome for Mr. Wixom. It is unfortunate that he refused
to go through with it. As of this date, I do not know the
final outcome of Mr. Wixom’s case.

23. Respondent’s response to the Wixom complaint contains a number of

inaccuracies. For instance, there was no information that Wixom tested over the

legal limit for alcohol. In fact, the blood draw to which Respondent referred

showed the opposite, .00% ethyl alcohol.

24. On December 22, 2014, Bar Counsel received a letter from Respond

ent, dated December 17, 2014, apologizing for the delay in responding to the

complaint and explaining, “I relocated my office which required a great deal more

time than anticipated. As such, there was a delay in all of the work generated by

my office. In addition, my personal divorce action became very time consuming

and acrimonious.” The letter went on to offer the following clarification:

I believe my previous letter was not complete on
what transpired between myself, the prosecutor and my
client. I was in the process of negotiating a plea agree
ment with each item being presented to my client. Once
we had the terms worked out, initially Mr. Wixom
agreed to the terms thereof After he spoke with his
family members he decided to not accept the negotiated

7
 deal. I have the obligation to inform all my clients of the
possible risks by not accepting the plea verses going to
trial. The mother of Mr. Wixom was adamant that her
son was innocent. However, the blood tests proved oth
erwise. I had a conversation with Mr. Wixom and his
parents in my office regarding the blood test results, the
offer of settlement, and how the case would proceed
from there. At such time, my services were terminated.
Never once was any plea bargain entered into without
full disclosure to Mr. Wixom.

25. At the time of the events described above Respondent was undergo

ing severe stress in his personal life. Respondent developed a serious drinking

problem that affected his personal and professional life in a very negative way.

However, late in 2014 Respondent sought treatment for his alcohol problem, and

reports that he has been sober since December 25, 2014. Respondent is extremely

remorseful over the conduct above, and is committed to maintaining his sobriety

and in serving his clients pursuant to his professional obligations in the future.

26. Respondent’s disciplinary history in Utah includes a 2001 public rep

rimand for violation of Rules 1.3 (diligence), 1.4 (communication), 1.16 (declin

ing or terminating representation), and 2.4 (misconduct); a 2002 suspension

(stayed to six months of unsupervised probation) for violation of Rules 1.1 (com

petence), 1.2 (scope of representation), 1.3 (diligence), 1.4 (communication) and

8.4 (misconduct); a one-year probation in 2008 for violation of Rules 1.15 (failure

to maintain a trust account) and 8.4 (misconduct); and a 2014 public reprimand

8
for violation of Rules 1.1 (competence) and 8.1 (failure to respond to disciplinary

counsel).

27. A formal charge was filed in the above-captioned matter on May 19,

2015, and served upon Respondent by certified mail on May 27, 2015. Respond

ent failed to timely respond to the formal Charge, and on June 18, 2015, Bar

Counsel filed and served a Motion for Entry of Default.

2$. Upon receipt of the Motion for Entry of Default, Respondent contact

ed Bar Counsel and expressed his willingness to stipulate to a public censure in

the matter. Respondent concedes that the above-described conduct of Respondent

in his representation of Thomas Wixom and in his failure to timely respond to in

quiries from Bar Counsel constitute violations of Rule 1.1 (competence), 1.3 (dili

gence) and 1.4 (communication with client).

ABA SANCTION GUIDELINES

29. The American Bar Association’s “Standards for Imposing Lawyer

Discipline” (hereafter referred to as the “ABA Standards”) state, “The purpose of

lawyer discipline proceedings is to protect the public and the administration of

justice from lawyers who have not discharged, will not discharge, or are unlikely

properly to discharge their professional duties to clients, the public, the legal sys

tem, and the legal profession.” ABA Standard 3.0 lists the factors to be considered

in imposing a sanction after a finding of lawyer misconduct:

9
 (a) the duty violated;

(b) the lawyer’s mental state;

(c) the potential or actual injury caused by the lawyer’s misconduct; and

(d) the existence of aggravating or mitigating factors.

30. Respondent’s misconduct falls within the heading “Violation of Du

ties Owed to Clients,” which the ABA Standards subcategorize (pertinent to this

matter) as “Lack of Diligence” (Standard 4.4).

31. The ABA Standards point toward a public censure (referred to in the

ABA Standards as a “reprimand”) for Respondent. Section 4.43 states, “Repri

mand is generally appropriate when a lawyer is negligent and does not act with

reasonable diligence in representing a client, and causes injury or potential injury

to a client.”

32. ABA Standard 9.0, entitled “Aggravation and Mitigation,” provides

as follows:

9.1 Generally

After misconduct has been established, aggravating and miti
gating 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.

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 9.22 factors which may be considered in aggravation. Ag
gravating factors include:
(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;
(0 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 con
trolled substaflces.

9.3 Mitigation.

9.31 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. Mitigat
ing 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 of disciplinary board or coopera
tive attitude toward proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(1) mental disability or chemical dependency including alco
holism or drug abuse when:
(1) there is medical evidence that the respondent is af
fected by a chemical dependency or mental disability;

11
 (2) the chemical dependency or mental disability caused
the misconduct;
(3) the respondent’s recovery from the chemical depend
ency or mental disability is demonstrated by a mean
ingful and sustained period of successful rehabilita
tion; 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.

9.4 factors Which Are Neither Aggravating nor Mitigating.

The following factors should not be considered as either aggravat
ing nor mitigating:
(a) forced or compelled restitution;
(b) agreeing to the client’s demand for certain improper be
havior or result;
(c) withdrawal of complaint against the lawyer;
(d)resignation prior to completion of disciplinary proceed
ings;
(e) complainant’s recommendation as to sanction; and
(f) failure of injured client to complain.

33. The following aggravating factors are present in Respondent’s case:

(a) prior disciplinary offenses; (c) a pattern of misconduct; (d) multiple offenses;

(e) failing to timely cooperate with Bar Counsel’s investigation; (h) vulnerability

of victim; and (1) substantial experience in the practice of law.

34. The following mitigating factors are present in Respondent’s case:

(c) personal or emotional problems; (i) Respondent’s recovery from the alcohol

12
dependency as demonstrated by a meaningful and sustained period of successful

rehabilitation; and (I) remorse.

35. In the event that the Court issues a public censure, Respondent has

agreed to the issuance of the following press release:

The Wyoming Supreme Court today issued a public cen
sure to Ogden, Utah lawyer Stuwert B. Johnson. John
son, who is a member of the Wyoming State Bar, under
took the representation of a client on a criminal charge of
driving under the influence of alcohol in Sweetwater
County. After missing several court dates, Johnson at
tempted to negotiate a plea agreement to have his client
plead guilty to the DUI charge based on Johnson’s belief
that blood testing revealed the presence of alcohol in his
client’s system. In fact, the blood test indicated no alco
hol. The client retained other counsel and submitted a
grievance about Johnson to the Wyoming State Bar.

After the grievance was filed, Johnson failed to timely
respond to Bar Counsel’s inquiries in the matter, and
failed to timely respond to a formal charge of profession
al misconduct brought by Bar Counsel. Johnson ulti
mately agreed that his conduct in the matter violated sev
eral Wyoming Rules of Professional Conduct, including
Rule 1 .1 (competence), Rule 1.3 (diligence) and Rule 1 .4
(communication with client). Johnson stipulated to a
public censure for his conduct, which stipulation was ap
proved by the Board of Professional Responsibility and
ordered by the Court. Johnson was ordered to pay an
administrative fee of $500.00 and costs in the amount of
$50.00 to the Wyoming State Bar.
RECOMMENDATION

In consideration of the foregoing, the Board recommends:

(1) That Respondent receive a public censure; and

13
 (2) That Respondent be ordered to pay an administrative fee of $500.00

and costs of $50.00 to the Wyoming State Bar.

Dated July 24, 2015.

rnrer E. Scoggrnç r
Board of Professional Responsibility

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