CHEYENNE — The Wyoming State Bar’s Board of Professional Responsibility has rejected the claim by the Wyoming Attorney General’s office that allegations involving personnel in its formal charge against Laramie County District Attorney Leigh Anne Manlove fall outside the board’s jurisdiction.
In a response filed Monday, BPR attorney Tom Toner asked the Wyoming Supreme Court to deny the Attorney General’s July 29 petition for a writ of prohibition, which asked the court to forbid the board from reviewing or making any decisions about complaints related to an alleged violation of the federal Fair Labor Standards Act, as well as personnel matters described in the charge, including allegations that Manlove created and fostered a toxic work environment within her office.
“The Formal Charge described conduct which, if proven, would amount to misconduct causing an unprecedented breakdown of criminal prosecution in Laramie County,” Toner writes. “It is disappointing that rather than encouraging the BPR and this Court to carry out their duties to investigate and resolve the concerns raised by the District and Circuit Court judges, the Attorney General seeks to obstruct the disciplinary proceedings and prevent this Court and the BPR from considering some of the misconduct alleged in the Formal Charge.”
The formal charge was filed following three investigations, including one the Bar says was prompted by an “unprecedented” letter signed by all of Laramie County’s district and circuit court judges. In the letter, the seven judges voiced their concern about the district attorney’s ability to carry out her duties and provide adequate representation for Laramie County citizens.
Manlove, through her attorney, Stephen Melchior, filed her formal response to the charge on July 20. She largely denied the allegations against her, including that her alleged behavior violated any of the Rules of Professional Conduct described in the formal charge.
The charge alleges Manlove directed her staff not to report overtime, which is a complaint that would fall under the federal Fair Labor Standards Act, the Attorney General said. By considering allegations that Manlove violated federal law, the board would be acting outside of its jurisdiction, as determining an FLSA violation would fall to the U.S. Department of Labor and appropriate federal and state courts.
Toner argued in the response to the petition that, because the BPR’s jurisdiction extends from the Wyoming Supreme Court, and the Supreme Court is singular in its ability to oversee the the conduct of Wyoming attorneys, the court can consider “any allegations of misconduct which, if proven, show the respondent attorney is incompetent or has committed acts prejudicial to the administration of justice.”
“The Court’s hands are not tied in an attorney disciplinary matter just because a person injured by an attorney’s misconduct might also be able to seek a remedy elsewhere against that attorney or the attorney’s employer,” such as the U.S. Department of Labor or the Human Resources Division of the Wyoming Department of Administration and Information, Toner wrote.
By claiming this in the petition, Toner said the Attorney General had taken an “extreme position.”
“The Attorney General proposes to take the Court down a dark path to the destruction of its ability to regulate the practice of law by ceding its jurisdiction to the executive branch,” Toner wrote. “The Court should not pass the buck and tell the citizens of Laramie County and the State of Wyoming that an attorney’s misconduct is someone else’s problem simply because the attorney’s conduct might be so bad that it could affect the State’s coffers.”
Toner says the argument that the court can’t move forward in a disciplinary proceeding that involves possible civil or criminal liability is “obviously wrong,” and that the court and the BPR could consider these allegations “whether or not the attorney has been prosecuted, and even if the respondent attorney has been acquitted in a criminal trial.”
He says that federal courts must not interfere with a state’s supervision of attorney conduct, even regarding allegations of a constitutional violation, according to the U.S. Supreme Court. If this is true, this must also apply to the Attorney General’s purported concern about the state’s potential monetary liability.
Toner argued that the court and BPR’s responsibility to justice meant protecting the public from “incompetent and unethical attorneys,” not protecting an attorney or the state of Wyoming from financial liability that may result from the attorney’s misconduct.
He said the state cannot be sued in federal or state court for an alleged FLSA violation. Further, the Rules of Professional Conduct are not meant to be a basis for civil liability, which is why the Attorney General did not cite any cases where a state or an attorney’s private employer was bound by an order or a recommendation in a disciplinary hearing, he wrote.
“As evidenced by the use of the terms ‘possibly’ or ‘potentially,’ this is nothing more than far-fetched speculation,” Toner continued. “The Attorney General does not refer the Court to a single proceeding pending anywhere against the State because of Ms. Manlove’s actions.”
Toner wrote that a writ of prohibition should not be issued by a court if there is a “plain, speedy and adequate remedy” available for disciplinary procedures, which the court and BPR do. He said the Attorney General’s petition was meant to delay that disciplinary procedure “in the face of what may be a true emergency in Laramie County.”
Toner also pushed back on the Attorney General’s claim that the alleged FLSA violations and personnel matters do not break two rules set out in the Wyoming Rules of Professional Conduct, and therefore don’t fall under the Board of Professional Responsibility’s jurisdiction.
In its petition, the Attorney General’s office argued the alleged violations did not fall under Rule 1.1, which states that “A lawyer shall provide competent representation to a client,” saying that allegations of advising staff not to report overtime or creating a toxic workplace were “entirely unrelated to Manlove’s duty to a client.”
Toner pushed back, writing: “The Attorney General fails to recognize that the District Attorney’s ‘client’ is the public that elected Ms. Manlove.”
“It is Ms. Manlove’s assigned task to administer the system of criminal justice in Laramie County, acting on behalf of her client, the residents of Laramie County,” Toner continued. “She is required to perform those duties competently, with the ‘legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ If it is proven that Ms. Manlove did not comply with federal or state labor laws and if her treatment of lawyers and staff resulted in an office that was unable to serve the criminal justice needs of Laramie County, then her incompetence in the position is a ground for discipline.”
Regarding Rule 8.4(d), that “It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice,” the Attorney General’s filing said potential FLSA violations still fell outside of the BPR’s jurisdiction, and that the board has historically waited for the appropriate fact finder – in this case, the Department of Labor – to decide whether a law was broken, or for an attorney to plead guilty, before taking any action.
Toner cited a part of Rule 8.4(d) that says attorneys who hold public office, such as a district attorney elected by the public, have legal responsibilities that go above those of other attorneys.
“If it is proven that (1) the proper and efficient operation of the District Attorney’s office has been damaged because Ms. Manlove has terrorized and abused the attorneys and staff in her office, including depriving them of overtime compensation to which they are entitled, and (2) as a result, she lacks the attorneys and staff to handle the case load in her office, with the consequences that hundreds of criminals now go free on the streets of Laramie County and that the criminal laws of this State are not being enforced in Laramie County, then it is an understatement to say that the administration of justice in Laramie County has been prejudiced. It has been wrecked,” he wrote.