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    BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Traci E. MEARS, WSB# 6-4166, Respondent.
    D-19-0003
    Supreme Court of Wyoming.
    May 1, 2019
    ORDER OF DISBARMENT
   [¶ 1] This matter came before the Court upon the Board of Professional Responsibility's "Report and Recommendation for Order of Disbarment," filed herein March 21, 2019. The Court notes Respondent Traci E. Mears did not file any objection to the Report and Recommendation. See Rule 16, Wyoming Rules of Disciplinary Procedure. The Court, after a careful review of the Report and Recommendation and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent Traci E. Mears should be disbarred. It is, therefore,

[¶ 2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's "Report and Recommendation for Order of Disbarment," 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 Order of Disbarment, Respondent Traci E. Mears shall be, and hereby is, disbarred, effective immediately; and it is further

[¶ 4] ORDERED that Respondent shall comply with the requirements of the Wyoming Rules of Disciplinary Procedure, particularly the requirements found in Rule 21 of those rules. That rule governs the duties of disbarred and suspended attorneys; and it is further

[¶ 5] ORDERED that, pursuant to Rule 25 of the Wyoming Rules of Disciplinary Procedure, Respondent shall reimburse the Wyoming State Bar the amount of $ 1,698.25, representing the costs incurred in handling this matter, as well as pay the administrative fee of $ 750.00. Respondent shall pay the total amount of $ 2,448.25 to the Wyoming State Bar on or before July 1, 2019. If Respondent fails to make payment in the time allotted, execution may issue on the award; and it is further

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

[¶ 7] ORDERED that, pursuant to Rule 9(b) of the Wyoming Rules of Disciplinary Procedure, this Order of Disbarment, along with the incorporated Report and Recommendation for Order of Disbarment, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

[¶ 8] ORDERED that the Clerk of this Court cause a copy of this Order of Disbarment to be served upon Respondent Traci E. Mears.

[¶ 9] DATED this 1st day of May, 2019.

BY THE COURT:

/s/ MICHAEL K. DAVIS

Chief Justice

Attachment

BEFORE THE SUPREME COURT STATE OF WYOMING In the matter of TRACI E. MEARS, WSB # 6-4166, BPR No. 2017-111 Respondent.

REPORT AND RECOMMENDATION FOR ORDER OF DISBARMENT

THIS MATTER came before the Board of Professional Responsibility of the Wyoming State Bar (the "Board") on March 6, 2019, for a telephonic sanction hearing pursuant to Rule 15(b)(3)((C), W.R.Disc.P. All members of the Board were in attendance. The Wyoming State Bar was represented by Bar Counsel, Mark W. Gifford. Respondent's counsel, Donald F. Carey, appeared on behalf of Respondent. Respondent did not attend the hearing.

Procedural History

1. Formal disciplinary proceedings in this matter were initiated with the filing of a formal charge on July 30, 2018. On that date, a copy of the formal charge was sent to Respondent via certified mail at the address most recently provided to the Wyoming State Bar but was returned unclaimed. On September 7, 2018, personal service was obtained upon Respondent by a private process server. Said service was effective pursuant to Rule 13(b), W.R.Disc.P.

2. Respondent timely filed an answer to the formal charge on September 27, 2018. Of note, Respondent's answer stated in paragraph 3, "As to the allegations contained in Paragraphs 4, 5, 6, 7, 8, 9, 13, 14, 15, and 16 of the Formal Charge, Respondent denies such charges have been proved by clear and convincing evidence." Respondent's answer concluded, "WHEREFORE, Respondent hereby informs Bar Counsel and the Board of Professional Responsibility that she does not intend to appear and contest the allegations and charges contained in the Formal Charge." Paragraphs 13 through 16 of the formal charge alleged that Respondent made two fraudulent charges totaling $762.85 to the debit card of a deceased friend in December 2014 and fabricated an explanation for those charges. Paragraphs 4 through 9 of the formal charge alleged that in representing the personal representative of the deceased friend's estate, Respondent filed a meritless request for extraordinary attorney fees to the probate court, thereby delaying, by nearly year, distribution of the estate's assets to decedent's two sons.

3. A scheduling conference was held October 9, 2018, with Bar Counsel and Respondent's counsel in attendance. The Board chair instructed the parties to confer and agree on a scheduling order in the case. When those efforts were unsuccessful, a second scheduling conference was requested by Bar Counsel and held on December 27, 2018, with Bar Counsel and Respondent's counsel in attendance. An order setting dates and deadlines followed on December 28, 2018.

4. On December 14, 2018, Bar Counsel served a notice to take Respondent's deposition on January 21, 2019, in Casper, Wyoming, the place of Respondent's resident. On January 15, 2019, Respondent's counsel informed Bar Counsel that Respondent would not appear at the deposition.

5. On January 16, 2019, Bar Counsel filed a motion for sanctions with supporting exhibits. Respondent's counsel filed a response to the motion on January 29, 2019. Following a hearing on the motion held on February 6, 2019, with Bar Counsel and Respondent's counsel in attendance, the Board chair entered an order granting Bar Counsel's motion for sanctions, ruling:

1. Respondent shall be prohibited from offering testimony of any kind or nature in this proceeding, except as to aggravating and mitigating factors in the sanction phase. This prohibition includes submitting any testimony by affidavit in response to Bar Counsel's pending motion for summary judgment.
2. Judgement by default is hereby entered against Respondent as to the rules violations alleged in the Formal Charge.

6. On January 22, 2019, Bar Counsel filed a motion for summary judgment on the ground that there were no genuine issues of material fact with respect to the rules violations alleged in the formal charge. The motion was supported by Exhibits 1 through 17. Respondent's counsel did not file a response to the motion, which was heard by a panel of three members of the Board in accordance with Rule 15(a)(7), W.R.Disc.P., on February 12, 2019, with Bar Counsel and Respondent's counsel in attendance. On February 14, 2019, an order was entered granting Bar Counsel's motion for summary judgment with respect to the rules violations alleged in the formal charge.

7. The matter proceeded to a telephonic sanction hearing on March 6, 2019. On February 19, 2019, Bar Counsel filed a sanction hearing brief with supporting Exhibits A through G. Respondent's counsel did not file a similar brief.

8. All members of the Board were in attendance at the sanction hearing, which was attended by Bar Counsel and Respondent's counsel. Bar Counsel's Exhibits A through G were offered and received into evidence without objection from Respondent's counsel, as were Exhibits 1 through 17 to Bar Counsel's motion for summary judgment. The Complainant, Kyle Vinson, testified by telephone. Respondent did not appear.

Findings of Fact

9. Traci Mears is a private practitioner who is currently serving a nine-month suspension, commencing June 15, 2018.See Board of Prof. Resp. v. Mears, 2018 WY 58, 418 P.3d 829 (Wyo. 2018). A Wyoming native, Respondent went to college and law school in Seattle. She was admitted to the Washington State Bar in 2000, where she practiced for a few years, and was admitted in Wyoming in 2006, where she practiced (most recently as Garden Creek Law Offices in Casper and Jackson) until her current suspension.

10. Bar Counsel's investigation of the present matter was initiated upon receipt of a complaint against Respondent by Kyle Vinson. Mr. Vinson is the son of Valerie Green, a childhood friend of Respondent who died in Respondent's home in Jackson on November 11, 2014. Ms. Green left a will naming her brother, Brian Green, as Personal Representative and her sons, Kyle Andrew Vinson and Michael Aaron Pacheco, as beneficiaries. After Ms. Green's death, Respondent acted as the attorney for her estate in probate proceedings in the Ninth Judicial District Court.

Respondent's Fraudulent Use Of Valerie Green's Debit Card After Her Death (Violations of Rules 1.15, 8.4(b) and 8.4(c))

11. On December 10, 2014 - approximately one month after Valerie Green's death - two charges were made on Ms. Green's debit card at Jackson businesses. The first was to Spring Creek Animal Hospital, which provided veterinary services to Respondent's pets, in the amount of $424.66. The second was to Jackson Hole Hat Company in the amount of $386.81. On the same day, Respondent made a separate purchase at Jackson Hole Hat Company in the amount of $93.49 and charged it to her Garden Creek Law Office debit card.

12. In March 2015, Brian Green, the Personal Representative for his sister's estate, discovered that more than 700 miles had been put on his sister's vehicle while it was in Respondent's custody after his sister's death. He also discovered the two December 2014 charges to Ms. Green's debit card and asked Respondent for an explanation. Respondent told Mr. Green that the vehicle had been used by a foreign exchange student living with Respondent, and that the foreign exchange student also made the charges to Ms. Green's debit card. On March 3, 2015, Respondent sent Mr. Green the following email:

Hey Brian -I finally got ahold of the foreign exchange student that was staying at my house between December and January. I confronted him about the mileage on Valerie's car and he admitted to having driven the car more than he was supposed to and when I did not know. Apparently he was driving it to work at the Village and back every day, to and from his job out at Liquor Down South the days he worked there, and when he was taking care of some houses and dogs for owners who were out of town. Then it dawned on me to grill him about the Spring Creek [Animal Hospital] charges. I keep Valerie's file with me and in December it was often at home. He thought her wallet was my wallet and he thought he was taking my card to pay for charges he incurred at Spring Creek [Animal Hospital] on my account. He intended to pay me back but `forgot' before he left and since this never showed up on my checking account I did not know he had done this.
He denies the other charge (Jackson Hat Company??) but at this point I think it had to have been him and told him he will have to repay this too. I don't even know where that store is...do you? I was in Casper this week and specifically the days those charges were made...
I am sponsoring him to come back to the US but I told him that I was suspending his sponsorship (1) until and unless he repaid the charges; and (2) any penalties, fees, etc. are repaid if the bank will not reverse those. I told him he owns a minimum of $1000 and we won't know the full amount until we talk to the bank. He said he will be sending $500 in the next 2 weeks and another $500 in April. I figured the charges totaling $762.85 and the difference ($237.15) could apply to the mileage he put on the car. I am his ONLY chance at sponsorship to come back to the US... Needless to say - I am permanently revoking sponsorship but he will not know this until after he repays everything.
So we need to talk to the bank about all of this and see how they want to handle it and if they are willing to reverse the charges, etc.
Traci
Mr. Green responded to Respondent's email as follows:
Not sure how to respond - the bank is already looking into it - have you seen anything in mail from them yet? I thought you said you had destroyed the card. Her file should not have been where he could have access to it. were the charges for your dogs? why would he charge something to your account without your knowledge or have access to any credit cards? If he does pay back that should help but it has caused a lot of trouble. I don't know where the hat company is either without looking it up.

Id., OBC 148.

13. Respondent's response:

I have not seen anything from the bank yet. Will let you know as soon as I do. I suggest we go in together and let them know what we found out and see if they will agree to waive overdraft fees, etc. given the circumstances.
Her file was in my home, in my bedroom, except for times when I had things out on the kitchen table to work on it. I had no reason to believe he would have violated my trust and privacy and I have work at home all the time.
He had permission to charge things to my account at Spring Creek [Animal Hospital] but he was supposed to pay for what he charged. I keep an emergency credit card that he knows about in case there is an emergency when I am away. It is a US Bank card, too. Valerie also knew about it and actually used it once when the dryer stopped working and she had to call for it to be repaired.
I did destroy the cards but later in December. You and I checked her balances at the Bank of Jackson Hole ATM the day we opened the Memorial Fund account and we decided to pull cash from Valerie's account in an effort to get it out before the bank locked down the account and held her money. What we discussed that day was going to a US Bank ATM at some point later to avoid the bank fees and pulling out the remainder of cash in her accounts before we got the probate action filed. This is what you and I agreed was best to do. I held on to her card for that purpose but we never did that so I destroyed all of the cards in her wallet once we filed the probate.

14. On March 4, 2015, Respondent sent Mr. Green an email stating in relevant part:

The only thing that arrived today from US Bank was the most recent statement. It is attached. It shows a credit applied to Valerie's account - they must have refunded the overdraft fees and charges, etc.? Would you be willing to go to US Bank with me next week and talk to them about what I found out? I want that kid to repay and he thinks his sponsorship is on the line he is more likely to. I spoke to a friend of mine who is a police officer and another friend I went to school with who is with DCI - they said it is unlikely that anyone would pursue the kid criminally because he is out of the country now. Once I revoke sponsorship - unless he finds another US citizen willing to step in - he won't be coming back. Also because the amount is less than felony level they would likely not pursue it anyway.

15. On the same day, Mr. Green sent an email to Respondent stating in relevant part:

If the foreign exchange student does not pay - then frankly you need to make it right and actually I feel it should be paid by you anyway and then you can deal with getting reimbursed by the kid - the card was in your care - and shouldn't have been available for him to have access in any way. Sorry but I'm just looking out for the best interests of Kyle and Aaron.

16. Respondent replied as follows:

I understand and I am no less angry about it than you are. I will make it right regardless... but would like the best opportunity to have him held responsible. The card was not available to him - he went into my bedroom - a door I keep closed at all times when people are staying in my house. I could no more have anticipated that anyone would have violated my privacy and personal space or prevented this than any bank who has been hacked or anyone who has had their credit card stolen.
Perhaps my judgment in agreeing to allow him to stay with me was off but I have known this kid for 2 years and had no reason to be suspect of him.
Frankly that you would question that I would make it right is sad and indicative that you do not know what Valerie meant to me and that there is nothing I would not do for her and for her boys.

17. Records produced by Spring Creek Animal Hospital in response to a subpoena from Bar Counsel include an entry on Respondent's "Client Account History" dated March 9, 2015, indicating that the $424.66 payment made on December 10, 2014, "was mistakenly charged to wrong cc - rec'd dispute and there will be a chargeback to our acct - Traci will come in or call in payment." On March 13, 2015, Respondent charged the $424.66 payment on her credit card. According to records subpoenaed from Spring Creek Animal Hospital, the payment was for veterinary services provided to Respondent's pets.

18. On March 10, 2015, a few days before she made the payment to Spring Creek Animal Hospital, Respondent sent Mr. Green an email stating in relevant part:

US Bank has now received back from Spring Creek [Animal Hospital] the amount that was charged in December on Valerie's debit card. They charged it back yesterday so you should have or will be hearing from them to get those funds back so they can go into her estate account. Do you have any update on the Jackson Hat Company amount?

19. Mr. Green contacted Robert Wachter, proprietor of Jackson Hole Hat Company. On April 3, 2015, Mr. Wachter sent the following email to Mr. Green:

Brian, the number we have on record to call when the hat came in is 307-251-1070.1 I sent a Facebook message to Traci hoping she would come clean and below is the response I got back. None of this makes sense to me and all the evidence points to Traci, but I could be wrong. I just would like someone to clean it up so everyone can get on with their lives. If the charge is reversed, I will turn over all I have to the Jackson Police. Bob
Mr. Wachter, unfortunately I am not the person who purchased anything from your store and I am also challenging this and several other changes on my credit/debit cards. Sadly, I had international guests in my home last summer through February 5 whom I have only recently discovered were using my identity and credit cards without my knowledge or permission. I am an attorney here in town and in Casper and the day (in fact the entire week) the charges at your store were made I was in Casper. I had court appearances in Casper that week and I simply was not physically present to have made the charges.2 Additionally, I have never been in your store and am not even sure where you are located as I have never had occasion or need to purchase anything from your hat store. I do believe I know who is responsible for the purchases from your store although I now believe more than one person may have been involved. I will gladly cooperate with any investigation. Further, if you change your approach, I do have some influence with the people whom I believe are responsible and may be able to convince them to repay the charges that were taken back from your store by the credit card company. Please accept this as formal notice not to ever contact me again through Facebook regarding this matter. Your threats are neither appropriate, accurate nor warranted and this matter would be far more professionally handled in a venue other than social media. You may direct any further inquiry to PO Box 4919, Jackson, WY 83001.

20. Affidavits from Cynthia Engelstad, part owner of Jackson Hole Hat Company, and Kathryn Pederson, a store employee, submitted in support of Bar Counsel's motion for summary judgment, attested to the fact that it was Respondent who made two purchases at the store on December 10, 2014.

21. The three-member panel of the Board which heard Bar Counsel's motion for summary judgment found that the foregoing conduct, all of which was undisputed by Respondent, constitutes clear and convincing evidence that Respondent used her deceased friend's debit card to purchase goods and services, and that such conduct violates Rules 8.4(b) (criminal act reflecting adversely on lawyer's honesty, trustworthiness or fitness) and 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), W.R.Prof.Cond. Unauthorized use of the debit card as well as the unauthorized use of Ms. Green's vehicle after her death constitute violations of Rule 1.15 (duty to safeguard client property). The hearing panel's findings are hereby adopted and affirmed by the full Board.

Respondent's Attempt to Collect an Unreasonable Fee in the Probate Proceeding (Violation of Rules 1.5, 3.1 and 8.4(d))

22. Rule 1.5 imposed upon Respondent the duty to have a clear understanding with the client regarding the fees that would be charged for her work on the Valerie Green probate.See Rule 1.5(b), W.R.Prof.Cond. Respondent told Mr. Green from the beginning that she would not charge a fee for her work on the case, owing to her friendship with the decedent, but later changed her mind. In a November 7, 2016, email to Mr. Green, Respondent wrote:

I am withdrawing my previous offer to waive fees which was made only out of respect for my lifelong friendship with Valerie and as a gesture of kindness towards Kyle and Aaron. Given the absolute lack of appreciation or consideration for the time, unreimbursed costs I did not include (cleaning fees, new mattress, etc. from Valerie passing at my home, the costs I incurred for her funeral, the efforts I made to secure hugely reduced lodging for all of the family for the funeral and beyond - which Mike and the boys took extreme advantage of staying many days beyond the funeral, etc.) I am no longer willing to extend that gift.

23. Rule 1.5(a), W.R.Prof.Cond., provides in relevant part, "A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses." On September 1, 2016, Respondent filed a Final Report, Accounting, and Petition for Distribution in the Green probate which indicated that the assets of the estate consisted of $20,657.48 in cash. Respondent sought attorneys' fees in the amount of $5,175.21 based not only on the value of the estate but also on $213,511.22 in life insurance benefits and retirement account proceeds paid to Ms. Green's sons as beneficiaries.

24. On September 16, 2016, Kyle Vinson filed an Objection to Final Report, Accounting, and Petition for Distribution based, in part, on Respondent's inclusion of non-estate assets in the calculation of attorney's fees. Exhibit 12, OBC 018. Mr. Vinson stated, "I would like Ms. Mears to explain to the Court the resolution of banking accounts in which the inadvertent use of Decedent's debit card by a foreign exchange student staying in Ms. Mears' house resulted in a $763.87 that was refunded by U.S. Bank." Mr. Vinson's objection pointed out other deficiencies in the handling of the probate.

25. On November 8, 2016, Respondent filed a response to Mr. Vinson's objection in which Respondent provided excruciating details regarding Ms. Green's death, the resulting mess in Respondent's residence and clean-up efforts that followed. Respondent argued that she was entitled to extraordinary fees and defended her change-of-heart with respect to the charging of a fee as follows:

While waiving Counsel's statutory fees were initially considered, had this decision been made, my fees would have been gifted back to the boys once the Estate was closed. Counsel considered this out of respect for the decedent, my lifelong best friend and for no other reason. This decision to make this fit was never made in final and any consideration thereof is no longer offered.

With respect to the unauthorized charges to Ms. Green's debit card, Respondent offered the following explanation:

As Mr. Vinson mentioned in his Objection, the resolution to the circumstances in which a foreign exchange student mistakenly took from my dresser the debit card belonging to Ms. Green (he thought it was Ms. Mears' debit card which he had permission to use) was that the bank refunded those charges and any fees associated with Ms. Green's account. Additionally, the exchange student repaid to the two businesses the charges that were refunded so those businesses could not be harmed by his mistake.

As mentioned above, it was actually Respondent who made things right with her veterinarian on the $424.66 charge after Mr. Green challenged the charge. There is no evidence that Jackson Hole Hat Company was ever repaid, and certainly no evidence that a "foreign exchange student" was involved in either transaction.

26. On February 6, 2017, Mr. Vinson filed a response to Respondent's November 8, 2016, submittal in which he argued in part that the activities for which Respondent sought to recover extraordinary fees were not legal services at all. Pointing to Respondent's lack of diligence in getting the estate closed, Mr. Vinson concluded, "Mrs. Mears did indeed take care of this matter in a less professional, more lethargic manner than expected of a licensed attorney."

27. Also, on February 6, 2017, Mr. Green filed a response to Respondent's November 8, 2016, submittal in which he detailed numerous irregularities in Respondent's handling of the estate, including the unauthorized use of his sister's car after her death. Mr. Green disclosed that the unauthorized use of his sister's vehicle and the unauthorized charges on her debit card prompted him to seek other counsel in April 2015, an effort he abandoned when he could not find an attorney to take on such a small estate.

28. On June 14, 2017, Judge Timothy C. Day issued an order on Mr. Vinson's objection. Exhibit 16. Judge Day awarded statutory attorney fees to Respondent based upon the $27,749.42 value of the estate. Noting that recovery of extraordinary expenses is "limited to legal services provided ancillary to the estate," Judge Day observed, "Ms. Mears seeks to recover for expenses including making funeral arrangements and travel arrangements for family after the decedent's death, cleaning the home where the decedent passed away (which was Ms. Mears's home) and disposing of personal property." Judge Day concluded, "The Court finds that such fees were incurred by performing personal services but were not fees incurred in the provision of legal services which are the type of fees recoverable through Wyo. Stat. § 2-7-804(b)."

29. On August 4, 2017, an Order Approving Final Report and Accounting and Decree of Distribution was entered. Exhibit 17. For a small probate opened in January 2015 (see Exhibit 10), the passage of more than 30 months before closure is inexcusable. Much of that delay - from the time of filing the Final Report in September 2016 until closure of the probate nearly a year later - was caused by Respondent's filing of a meritless claim for attorney's fees.

30. The three-member panel of the Board which heard Bar Counsel's motion for summary judgment found that the foregoing conduct, all of which was undisputed by Respondent, constitutes clear and convincing evidence of Respondent's violation of Rules 1.5 (attorney fees), 3.1 (meritorious claims and contentions) and 8.4(d) (conduct prejudicial to the administration of justice), W.R.Prof.Cond. The hearing panel's findings are hereby adopted and affirmed by the full Board.

31. The Board finds that in committing the foregoing misconduct, Respondent violated duties owed to the client, the public, and the legal system. The Board finds that Respondent acted both knowingly and intentionally, and that actual harm was inflicted upon Valerie Green's personal representatives and her heirs, her sons, as a result of Respondent's misconduct.

32. The following aggravating are present in this case:

a. Prior disciplinary offenses. Respondent is presently suspended pursuant to a nine-month order of suspension commencing June 15, 2018. The suspension was ordered for Respondent's multiple violations of Rule 8.1 (knowingly making a false statement of material fact in connection with a disciplinary matter) and Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). See Board of Prof. Resp. v. Mears, 2018 WY 58, 418 P.3d 829 (Wyo. 2018).
b. Dishonest or selfish motive.
c. A pattern of misconduct. In significant respects, the misconduct committed by Respondent in this matter is disturbingly similar to the conduct that led to Respondent's nine-month suspension in the previous disciplinary case.
d. Multiple offenses. In this matter, there is clear and convincing evidence that Respondent violated six different rules and violated duties owed the client, the public and the legal system in misconduct committed over a several-year period.
e. Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency. Through her counsel, Respondent made material misrepresentations to Bar Counsel in her response to Mr. Vinson's complaint and failed to appear for a duly-noticed deposition in this proceeding.
f. Submission of false evidence, false statements, or other deceptive practices during the disciplinary process. As indicated above, through her counsel, Respondent made material misrepresentations to Bar Counsel in her response to Mr. Vinson's complaint.
g. Refusal to acknowledge wrongful nature of conduct. Respondent has been steadfast in her denial that she made the fraudulent charges to her deceased friend's debit card.
h. Vulnerability of the victims. Both the personal representative and the two heirs were injured by Respondent's conduct. When the personal representative and the Complainant, Kyle Vinson, challenged the fraudulent debit card charges, Respondent fabricated an excuse and repeated that fabrication in her filings with the probate court.
i. Substantial experience in the practice of law. Respondent was admitted to practice in Washington in 2000 and in Wyoming in 2006.
j. Indifference to making restitution. The evidence shows that Respondent never repaid the Jackson Hole Hat Company for the $386.81 purchase she made on her deceased friend's debit card after the charge was reversed by the bank as a fraudulent charge. In effect, Respondent made the purchase under false pretenses and, ultimately, never paid for the merchandise.
k. Illegal conduct; i.e., making fraudulent charges on her deceased friend's debit card.

33. There are no mitigating factors present in this case.

34. The Board finds that the findings set forth above have been proved by clear and convincing evidence found in the exhibits to Bar Counsel's motion for summary judgment, the exhibits to Bar Counsel's motion for sanctions, and in the testimony of Complainant, Kyle Vinson.

35. In light of the findings set forth above, the Board finds that the appropriate sanction for Respondent's misconduct is disbarment.

36. In its deliberations, the Board considered and discussed the request of Respondent's counsel that any report issued in this matter include a recommendation that the Wyoming Supreme Court direct the Wyoming State Bar not to issue a press release regarding any order of discipline that may issue in this matter. The Board gave due consideration to the request and determined that it lacks the authority to make such a recommendation. However, the Board agrees that the issuance of such press releases in cases in which the Court issues an order of public discipline serves several important purposes, including providing notice to the public that the Wyoming State Bar can and does act to police its own and that lawyers who stray from their ethical obligations are held accountable for their actions.

Conclusions of Law

37. Rule 1.5(a), W.R.Prof.Cond., provides in relevant part, "A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses."

38. Rule 1.15(a), W.R.Prof.Cond., provides in relevant part, "A lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with the representation separate from the lawyer's own property."

39. Rule 3.1(a), W.R.Prof.Cond., provides in relevant part, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous ***."

40. Rule 8.4, W.R.Prof.Cond., provides in relevant part:

Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or]
(d) engage in conduct that is prejudicial to the administration of justice ***.

41. Rule 15(b)(3)(D), W.R.Disc.,P., lists the factors to be considered in determining lawyer sanctions:

(D) In imposing a sanction after a finding of misconduct by the respondent, the BPR shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions, which standards shall be applied by the BPR in determining the appropriate sanction:
(i) Whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(ii) Whether the lawyer acted intentionally, knowingly, or negligently;
(iii) The actual or potential injury caused by the lawyer's misconduct; and
(iv) The existence of any aggravating or mitigating factors.

42. The American Bar Association's Standards for Imposing Lawyer Sanctions (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 system, and the legal profession."

43. ABA Standard 3.0 lists the factors to be considered in imposing a sanction after a finding of lawyer misconduct, and essentially mirrors the language of Rule 15(b)(3)(D), W.R.Disc.Proc.:

(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.

44. Standard 5.1 sets forth the sanction guidelines for lawyers who demonstrate a failure to maintain personal integrity and is applicable to situations in which lawyers have committed a violation of Rule 8.4(b) (criminal conduct) and Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation):

5.1 Failure to Maintain Personal Integrity
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 a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, or in cases with conduct involving dishonesty, fraud, deceit, or misrepresentation:
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.
5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice.
5.13 Reprimand [i.e., public censure under Rule 9(a)(3), Wyo.R.Disc.Proc.] is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit or misrepresentation and that adversely reflects on the lawyer's fitness to practice law.
5.14 Admonition [i.e., private reprimand under Rule 9(a)(4), Wyo.R.Disc.Proc.] is generally appropriate when a lawyer engages in any other conduct that reflects adversely on the lawyer's fitness to practice law.

45. Respondent's violation of Rule 1.5 implicates ABA Standard 7.0:

7.0 Violations of Other Duties Owed as a Professional
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 false or misleading communication about the lawyer or the lawyer's services, improper communication of fields of practice, improper solicitation of professional employment from a prospective client, unreasonable or improper fees, unauthorized practice of law, improper withdrawal from misrepresentation, or failure to report professional misconduct.
7.1 Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent [i.e., private reprimand under Rule 9(a)(4), Wyo.R.Disc.Proc.]to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public or the legal system.
7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.
7.3 [Public censure] is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.
7.4. [Private reprimand] is generally appropriate when a lawyer engages in an isolated instance of negligence that is a violation of a duty owed as a professional, and causes little or no actual or potential injury to a client, the public, or the legal system.

46. Respondent's violation of Rule 1.15 (safekeeping client property) falls within Standard 4.1:

4.1 Failure to Preserve the Client's Property 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:
4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
4.12. Suspension is general appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.
4.13 [Public censure] is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client.
4.14 [Private reprimand] is generally appropriate when a lawyer is negligent in dealing with client property and causes little or no actual or potential injury to a client.

47. Respondent's violation of Rule 3.1 (meritorious claims and contentions) falls under Standard 6.2:

6.2 Abuse of the Legal Process
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 failure to expedite litigation or bring a meritorious claim, or failure to obey any obligation under the rules of the tribunal except for an open refusal based on an assertion that no valid obligation exists:
6.21 Disbarment is generally appropriate when a lawyer knowingly violates a court order or a rule with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a party or causes serious or potentially serious interference with a legal proceeding.
6.22 Suspension is generally appropriate when a lawyer knows that he or she is violating a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.
6.23 [Public censure] is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.
6.24 [Private reprimand] is generally appropriate when a lawyer engages in an isolated instance of negligence in complying with a court order or rule, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with a legal proceeding.

48. 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.

49. Under the ABA Standards, "injury" is defined as "harm to a client, the public, the legal system, or the profession which results from a lawyer's misconduct. 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." The record is clear that Respondent's misconduct imposed actual injury upon parties, opposing counsel, the judicial process and the public.

50. ABA Standard 9.0, entitled "Aggravation and Mitigation," 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:
(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
9.31 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. 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 of 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;
(l) 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 aggravating nor mitigating:
(a) forced or compelled restitution;
(b) agreeing to the client's demand for certain improper behavior or result;
(c) withdrawal of complaint against the lawyer;
(d) resignation prior to completion of disciplinary proceedings;
(e) complainant's recommendation as to sanction; and
(f) failure of injured client to complain.

51. With respect to costs of disciplinary proceedings, Rule 25, W.R.Disc.P., provides:

Rule 25. Expenses and Costs.
(a) The expenses of members of the BPR, the ROC, Bar Counsel, and Special Bar Counsel, costs of a Disciplinary Judge, and other expenses incurred in the implementation or administration of these rules, shall be paid with funds allocated for that purpose by the Wyoming State Bar. The Wyoming State Bar shall compensate and pay the expenses of Disciplinary Judges.
(b) In addition to any costs assessed by the BPR, the ROC or the Court, an administrative fee of seven hundred fifty dollars ($750.00) shall be imposed by the BPR in all cases where private discipline, diversion, or public discipline is ordered. The administrative fee shall be assessed on a per-complaint basis.
(c) Costs means actual expenses incurred by Bar Counsel, the ROC, the BPR, and the Wyoming State Bar in connection with a disciplinary proceeding, reinstatement proceeding or diversion program, including without limitation the cost of depositions used in a proceeding, hearing transcripts, copying costs, conference call and other telephone expenses, fees for service of process and subpoenas, witnesses fees, fees paid to expert witnesses, and costs associated with travel, meals and lodging for the ROC, the BPR, the BPR Clerk and the Office of Bar Counsel.
(d) When an attorney is privately disciplined, the BPR or the ROC may assess against the attorney the costs incurred in connection with the investigation and disciplinary proceeding, together with the administrative fee.
(e) When public discipline is recommended by the BPR, it shall certify to the Court the costs incurred in connection with the investigation and disciplinary proceeding, together with the administrative fee. The BPR may recommend to the Court the assessment of those costs and, if the Court imposes discipline, the Court may assess all or any part of the certified costs, together with the administrative fee, against respondent.
(f) In any case where costs and fees are assessed, they shall be paid to the Wyoming State Bar.

Recommendation

Based upon the foregoing findings and conclusions, the Board recommends that the Court issue an order of disbarment to Respondent; that Respondent be required to pay an administrative fee of $750.00 as provided in Rule 25(b), W.R.Disc.P.; and that Respondent be required to reimburse the Wyoming State Bar for certified costs of this proceeding as provided in Rule 25(e), W.R.Disc.P.

Dated this 11 th day of March, 2019.

Jeffrey A. Donnell, Chair Board of Professional Responsibility Wyoming State Bar


source: Caselaw Access Project

author: BY THE COURT:

license: Public Domain

text:
    Joshua Roy Delbert BLACK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-19-0013
    Supreme Court of Wyoming.
    May 8, 2019
    ORDER AFFIRMING THE DISTRICT COURT'S JUDGMENT AND SENTENCE
    [¶ 1] This matter came before the Court upon its own motion. Pursuant to a plea agreement, Appellant entered an unconditional "no contest" plea to one count of aggravated assault and battery. Wyo.Stat.Ann. § 6-2-502(a)(i). The district court imposed a sentence of 6.5 to 10 years. Appellant filed this appeal to challenge the district court's November 20, 2018, "Judgment and Sentence."
    [¶ 2] On March 8, 2019, Appellant's court-appointed appellate counsel filed a "Motion to Withdraw as Counsel," pursuant to Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). The next day, this Court entered an "Order Granting Motion for Extension of Time to File Pro Se Brief." This Court ordered that Appellant "may file with this Court a pro se brief specifying the issues he would like this Court to consider in this appeal." This Court also provided notice that, after the time for filing a pro se brief expired, this Court would "make its ruling on counsel's motion to withdraw and, if appropriate, make a final decision on this appeal." Before that order was entered, Appellant prepared and served a "Supplemental Brief of Appellant & Affidavit to Support," which was filed herein March 11, 2019. Pursuant to this Court's order, any further pro se briefing was due for filing on or before April 22, 2019. Appellant did not file any further pro se briefing in the time allotted.
    [¶ 3] Now, following a careful review of appellate counsel's " Anders brief," the pro se "Supplemental Brief of Appellant & Affidavit to Support," and the record, this Court finds that appellate counsel's motion to withdraw should be granted and the district court's "Judgment and Sentence" should be affirmed. Regarding the arguments in the Supplemental Brief of Appellant, this Court notes Appellant's unconditional "no contest" plea served to waive all non-jurisdictional defenses. See Kitzke v. State , 2002 WY 147, ¶¶ 8-9, 55 P.3d 696, 699 (Wyo. 2002). It is, therefore,
    [¶ 4] ORDERED that the Wyoming Public Defender's Office, court-appointed counsel for Appellant, Joshua Roy Delbert Black, is hereby permitted to withdraw as counsel of record for Appellant; and it is further
    [¶ 5] ORDERED that the district court's November 20, 2018, "Judgment and Sentence" be, and the same hereby is, affirmed.
    [¶ 6] DATED this 8th day of May, 2019.
   BY THE COURT:

/s/ MICHAEL K. DAVIS

Chief Justice


author: JUSTICE TIMMER, opinion of the Court:

text:
    PAUL E., Petitioner/Appellant, v. COURTNEY F., Respondent/Appellee.
    No. CV-18-0111-PR
    Supreme Court of Arizona.
    Filed April 25, 2019
    Paul F. Eckstein (argued), Michael P. Berman, Perkins Coie, LLP, Phoenix; Todd Franks, Robert C. Houser, Franks Law Offices, P.C., Phoenix, Attorneys for Paul E.
    Taylor C. Young (argued), Mandel Young PLC, Phoenix; Steven D. Wolfson, Michelle N. Khazai, Dickinson Wright PLLC, Phoenix; Catherine Sakimura, Pro Hac Vice, National Center for Lesbian Rights, San Francisco, CA, Attorneys for Courtney F.
    Helen R. Davis, The Cavanagh Law Firm, P.A., Phoenix; Annette T. Burns, The Law Offices of Annette T. Burns, Phoenix, Attorneys for Amicus Curiae American Academy of Matrimonial Lawyers - Arizona Chapter
    JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES BOLICK, GOULD, LOPEZ, and PELANDER (Retired) joined.
   JUSTICE TIMMER, opinion of the Court:

¶1 When a family court designates one parent as the sole legal decision-maker for a child, unless the parties agree otherwise, the court may limit the decision-maker's authority only as necessary to prevent endangering the child's physical health or significantly impairing the child's emotional development. See A.R.S. § 25-410(A). We consider whether the family court exceeded its statutory authority by appointing specific treatment professionals for the child here and otherwise limiting the parent's sole legal decision-making authority. We hold that it did.

BACKGROUND

¶2 Paul E. ("Father") and Courtney F. ("Mother") have three children including L., who was born in 2007. Upon the parties' divorce in 2010, the family court awarded them joint legal decision-making authority with equal parenting time and, as relevant here, gave Father final legal decision-making authority concerning L.'s education and medical and dental care. Mother and Father have clashed on several parenting issues since their divorce, making their relationship, according to the family court, "volatile and dysfunctional." The dispute here stems from the parties' handling of L.'s gender identification.

¶3 According to Mother, L., who is biologically male, displayed an early interest in toys and clothes generally associated with girls. Mother fostered this interest and attempted to socially transition L. to identifying as female without Father's knowledge or any professional consultation, with sometimes negative consequences. For example, in February 2013, Mother subjected then-five-year-old L. to ridicule by permitting L. to wear a skirt and other articles of "girl" attire to school on "free dress day" and asking the teacher to "encourage his classmates to accept him for who he is." According to Father, this incident was the first time he learned of L.'s interest in wearing skirts and the like. Father immediately sought professional assistance and, with Mother's agreement, he retained Diana Vigil, a licensed professional counselor, to counsel L. and advise the parties.

¶4 During the months following the "free dress day" incident, Father and Mother parented L. differently concerning gender identification issues. The parties agreed with Vigil that L. would explore wearing clothing and playing with toys typically associated with girls in Mother's home but nowhere else. They also agreed to only speak with L. about gender issues in a clinical environment. Although Father abided by the agreement, Mother did not. For example, she referred to L. with female pronouns and permitted L. to appear in public wearing clothes generally worn by girls. Mother also spoke with L. about matters beyond L.'s ability to comprehend, such as sex reassignment surgery and hormone therapy. Mother summed up the parties' situation in a September email to Father: "We definitely disagree about how to handle [L.'s] gender variance."

¶5 After Father learned that Mother would not follow Vigil's advice, he petitioned the family court in December 2013 to grant him sole legal decision-making authority concerning all three children. See A.R.S. § 25-411(A). As relevant here, he asserted that Mother "determined [L.] ha[d] gender dysphoria," despite having no such diagnosis, "insist[ed] the child ... be treated as a girl, rather than as a boy, and ha[d] been ... pushing such behavior on [L.]" At Father's request, the court immediately ordered Mother to temporarily remove girl-oriented toys from her house and refrain from, among other things, dressing L. in clothing generally worn by girls, referring to L. with feminine pronouns, and discussing gender-related issues with L. and the other children. Although the order applied only to Mother, Father also followed it. The parties and L. refer to these restrictions as "the Rule." The court also ordered diagnostic and custody evaluations and appointed a parenting coordinator.

¶6 Father's petition remained pending, and the Rule remained in effect, for more than two years as the evaluations occurred. Multiple medical professionals diagnosed L. with gender dysphoria of childhood, which refers to children with "a marked incongruence between the gender they have been assigned to (usually at birth, referred to as natal gender ) and their experienced/expressed gender." Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM-5 ) 453 (5th ed. 2013). These professionals disagreed, however, on how best to address the diagnosis with L.

¶7 Meanwhile, L. struggled under the Rule. L. repeatedly asked for the return of "girl's stuff," expressed anger over the Rule, and, under Mother's influence, blamed Father for its existence. One incident especially illustrates L.'s distress. In February 2015, more than a year after implementation of the Rule, L. reportedly told Mother, "I want to die" and would do so by hanging. L. had purportedly made similar statements about dying to Mother in the preceding days. Mother took L. to the hospital, where L. expressed a desire to die due to the Rule. Fortunately, there were no signs of self-harm, and L. did not relate any incidences of self-harm. Hospital staff initially placed L. on a waiting list for inpatient psychiatric care but, after conducting a second evaluation outside Mother's presence, they discharged L. to Father. Based on the suicide threats and her concern that the Rule was harming L., Mother unsuccessfully moved the court to vacate the Rule.

¶8 As the trial date drew near, Dr. Paulette Selmi, a psychologist appointed as the custody evaluator, submitted a lengthy and comprehensive report. She concluded that joint legal decision-making would not be possible due to the parents' "high level of conflict" and recommended that one parent be given sole legal decision-making authority. She predicted that Father "[would] make the more rational and responsible decisions."

¶9 Despite the parents' conflicts, Dr. Selmi found L. to be "a delightful, funny, bright, articulate, and charming young person." L. excelled in academics, and teachers reported that L. is very friendly, has "a lot of friends and [is] happy," with no behavior problems. Similarly, Vigil, who had seen L. frequently for more than the preceding two years, described L. to Dr. Selmi as "remarkably resilient, funny, kind, brilliant, outgoing, [and] creative" and reported that L. "gets along well with classmates and is well-adjusted" in school. Dr. Selmi also found that L. has a "positive and close relationship[ ]" with both parents and is well-adjusted to home, school, and the community, although L. has been teased at school regarding gender identity.

¶10 Dr. Selmi made several recommendations regarding L.'s care. She suggested that Vigil continue to provide therapy to L. but refrain from advising the parties on co-parenting matters. Dr. Selmi stated that Vigil's therapy should be a "safe haven," meaning that what transpires in therapy would not be shared with the parents, absent L.'s agreement, or used in litigation. She also recommended that the court continue the Rule's "gag order" prohibiting Mother from discussing gender issues with L. and suggested the court consider extending the order to Father so that L. could explore gender identity without parental pressure. Finally, Dr. Selmi recommended that a "physician gender specialist ... follow [L.] along the way."

¶11 The family court conducted a four-day trial in December 2015. The court accepted Father's agreement that if given sole legal decision-making authority, he would consult with Mother on all major decisions for the children. See A.R.S. § 25-401(6) (" 'Sole legal decision-making' means one parent has the legal right and responsibility to make major decisions for a child."). Thereafter, the court designated Father as the sole legal decision-maker for all three children. See A.R.S. §§ 25-403(A), -403.01.

¶12 Pursuant to § 25-410(A) and Arizona Rule of Family Law Procedure ("ARFLP") 95(A) (repealed 2018), and having L.'s "best interests" as its "primary consideration," the court implemented many of Dr. Selmi's recommendations as mandatory "guidelines," which are at issue here:

• A "gender expert" shall be appointed to provide input to the Court and guidance to the parties regarding gender identification issues.
....
• Diana Vigil will continue as [L.'s] therapist and will operate on a "safe haven" basis. She will consult with and work cooperatively with the gender expert.
....
• [The Rule] is vacated in part. The Rule is lifted as it relates to gender exploration by [L.] in Diana Vigil's office, Father's home and Mother's home. In all other places, it remains in effect. Neither parent shall discuss the lifting of [the Rule] with [L.], or permit gender exploration in their home until Diana Vigil discloses to [L.] that the order has been lifted.
• Although [L.] will be free to explore in each parent's house, neither parent shall discuss gender identification issues with L. The parties should utilize a standard response as suggested by Dr. Selmi if [L.] asks to talk about gender identification issues, deferring the question or discussion to Diana Vigil. No person other than the gender expert (and his or her designee) and Diana Vigil shall discuss gender identification/exploration with [L.] The Court is open to allowing the parents to discuss gender identification issues in the future should such an approach be suggested by the gender expert.
• Neither parent may, directly or indirectly, promote or discourage a specific view of gender identification for [L.]

After seeking input from the parties about who should serve as the gender expert, the court appointed Dr. Diane Ehrensaft to serve in that role.

¶13 Following post-trial motions, the court clarified that Vigil would serve as a court-appointed expert to provide therapy for L. and to advise the court pursuant to A.R.S. § 25-405(B). It further ordered that no other clinician could evaluate or treat L. without Vigil's permission or court order. It also ruled that neither party could have access to Vigil's records and that Vigil could "determine when and if to share or discuss an issue with the parents." The court authorized Vigil to confer with L.'s teachers and child care providers and examine L.'s school and medical records. The court stated that its order "act[ed] as a release by the parents" of all privileged information concerning L. and directed them to provide any releases requested by Vigil to obtain information. Finally, it stated that both Vigil and Dr. Ehrensaft would be "cloaked with applicable judicial immunity."

¶14 The court of appeals vacated the family court's orders to the extent they infringed on Father's exercise of his sole legal decision-making authority concerning L. Paul E. v. Courtney F. , 244 Ariz. 46, 48 ¶ 1, 418 P.3d 413, 415 (App. 2018). Specifically, the court held that the family court lacked authority to choose L.'s therapists, to order the parties to refrain from making certain parenting choices (including discussing sensitive topics with L.), or to confer judicial immunity on the appointed therapists. Id. The court also vacated an attorney fee award against Father and remanded for a re-determination of Mother's fee request. Id.

¶15 We granted review to decide whether the family court was authorized to appoint a specific treating therapist for L. (Vigil) and a consulting expert for the court and parties (Dr. Ehrensaft), with attendant restraints on Father's authority, all issues of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

I. A.R.S. § 25-410(A)

¶16 Once appointed as sole legal decision-maker for L., Father alone possessed the "legal right and responsibility to make major decisions" for L., including non-emergency health care and personal care decisions. § 25-401(3), (6) ; Nicaise v. Sundaram (Nicaise II ), 245 Ariz. 566, 569 ¶ 14, 432 P.3d 925, 928 (2019) ("[A]n award of sole legal decision-making ... creates unshared authority."). Section 25-410(A) authorized the family court to limit Father's authority in narrow circumstances:

Except as otherwise agreed by the parties in writing at the time of the legal decision-making or parenting time order or divorce decree, the parent designated as sole legal decision-maker may determine the child's upbringing, including the child's education, care, health care and religious training, unless, on motion by the other parent, the court, after a hearing, finds that in the absence of a specific limitation of the parent designated as the sole legal decision-maker's authority, the child's physical health would be endangered or the child's emotional development would be significantly impaired.

The issue here is whether the court's appointments of Vigil and Dr. Ehrensaft, including the broad authority granted to them, are permissible "specific limitation[s]" on Father's authority.

¶17 Before addressing the merits, we quickly dispense with Father's argument that the family court lacked authority to limit his authority under § 25-410(A) because Mother had not filed a motion seeking a limitation. Father did not object to the lack of a motion before the family court or the court of appeals, although the latter court addressed it. See Paul E. , 244 Ariz. at 56 ¶ 30, 418 P.3d at 423 ("[T]he procedural prerequisites for § 25-410(A) were not present: the court was faced with a petition to modify legal decision-making, not a motion to limit sole legal decision-making."). The family court's error in proceeding absent a motion or the parties' agreement was not preserved and is not before us. See N. Valley Emergency Specialists, L.L.C. v. Santana , 208 Ariz. 301, 302 ¶ 6 n.2, 93 P.3d 501, 502 n.2 (2004) (finding issue not raised by party in either the trial court or court of appeals waived).

¶18 On the merits, resolution of the issue here turns on the meaning of § 25-410(A). We interpret the provision de novo with the aim of effectuating the legislature's intent. Ryan v. Napier , 245 Ariz. 54, 64 ¶ 41, 425 P.3d 230, 240 (2018). If § 25-410(A) has only one reasonable meaning, we will apply that meaning without further analysis. Id. "If the statute is subject to more than one reasonable interpretation, however, we will resolve that ambiguity by examining other factors like the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose." Id. (internal quotation marks omitted).

¶19 The court of appeals concluded that a "specific limitation" under § 25-410(A) allows a family court to prohibit the sole legal decision-maker from making decisions like withholding therapeutic care for a child but does not authorize the court to issue "directive[s]" like requiring care by a specific provider. See Paul E. , 244 Ariz. at 55 ¶ 28, 418 P.3d at 422. Father adds that giving "specific limitation" the broad meaning ascribed to it by the family court would effectively eliminate his statutory rights as sole legal decision-maker and infringe on his fundamental right to parent L. Mother counters that the plain meanings of "limitation" and "authority" permit the court to direct a child's care in any manner necessary to protect the child's physical and emotional health. She also argues that a sole legal decision-maker's fundamental right to parent is not violated because the limitation can only be imposed to protect a child from harm, which is a compelling state interest.

¶20 The term "specific limitation" is not statutorily defined. Reading the term in its proper context within § 25-410(A) indicates it creates a narrow exception to the broad authority conferred on the sole legal decision-maker. See BSI Holdings, LLC v. Ariz. Dep't of Transp. , 244 Ariz. 17, 21 ¶ 19, 417 P.3d 782, 786 (2018) ("We must not interpret terms in isolation, but rather in their overall context."). The statute requires more than just a showing that a limitation on the sole legal decision-maker's authority would be in the child's best interests. Cf. § 25-403(A) (requiring the family court to consider best interests in deciding whether to award joint legal decision-making authority or sole legal decision-making authority). Rather, the court may limit the sole legal decision-maker's authority only if "the child's physical health would be endangered or the child's emotional development would be significantly impaired," circumstances that presumably would occur infrequently with a fit parent making decisions. § 25-410(A). Also, any finding of endangerment or significant emotional impairment must spring from "the absence of a specific limitation." Id. It follows that a permissible "specific limitation" must have a nexus with the required finding. And use of the term "specific" suggests that any ordered limitation must avert endangerment or impairment without unnecessarily infringing on the sole legal decision-maker's authority, which is broad and unshared. See Nicaise II , 245 Ariz. at 569 ¶ 14, 432 P.3d at 928.

¶21 Section 408 of the Uniform Marriage and Divorce Act ("UMDA"), which the Arizona legislature adopted as § 25-410(A), also supports a conclusion that the family court's ability to infringe on a sole legal decision-maker's authority is restrained. See UNUM Life Ins. Co. of Am. v. Craig , 200 Ariz. 327, 332 ¶ 25, 26 P.3d 510, 515 (2001) ("[W]e assume that the legislature intended to adopt the construction placed on the [Uniform] act by its drafters." (internal quotation marks omitted)). The comment to § 408 states that this provision is designed to "promote family privacy and to prevent intrusions upon the prerogatives of the [sole legal decision-maker]" at the other parent's request. See UMDA § 408 cmt.; see also Craig , 200 Ariz. at 332 ¶ 25, 26 P.3d at 515 ("Commentary to such a uniform act is highly persuasive unless erroneous or contrary to the settled policy of Arizona."). It recognizes that the parent with sole legal decision-making authority is generally "responsible for post-divorce decisions concerning the upbringing of the child" and cautions against court intervention unless it is to enforce a written agreement between the parents or to prevent endangering the child:

[I]n the absence of parental agreement, the court should not intervene solely because a choice made by the [sole legal decision-maker] is thought by the [other] parent (or by the judge) to be contrary to the child's best interest. To justify such an intervention, the judge must find that the [sole legal decision-maker's] decision would "endanger the child's physical health or significantly impair his emotional development"-a standard patently more onerous than the "best interest" test. The standard would leave to the [sole legal decision-maker] such decisions as whether the child should go to private or public school, whether the child should have music lessons, what church the child should attend. The court could intervene in the decision of grave behavioral or social problems such as refusal by a custodian to provide medical care for a sick child.

UMDA § 408 cmt.

¶22 Interpreting § 25-410(A) as authorizing the court to impose a specific limitation on a sole legal decision-maker's authority that does no more than prevent either endangering the child's physical health or significantly impairing the child's emotional development also accommodates "the fundamental right of parents to make decisions concerning the care, custody, and control of their children" under the Fourteenth Amendment. Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion); see also A.R.S. § 1-601 (recognizing that "[t]he liberty of parents to direct the upbringing, education, health care and mental health of their children is a fundamental right" that "shall not [be] infringe[d] on" absent a compelling governmental interest "of the highest order" and only when such infringement "is narrowly tailored and is not otherwise served by a less restrictive means").

¶23 Although we agree with the court of appeals that § 25-410(A) has narrow application, we disagree with aspects of the court's interpretation. First, a "specific limitation" does not have to be a "prohibit[ion]" rather than a "directive." Paul E. , 244 Ariz. at 55 ¶ 28, 418 P.3d at 422. A "limitation" is a "restriction or restraint." Black's Law Dictionary 1069 (10th ed. 2014) (defining "limit" as a "restriction or restraint" and "limitation" as "[t]he act of limiting"); see also DBT Yuma, L.L.C. v. Yuma Cty. Airport Auth. , 238 Ariz. 394, 396 ¶ 9, 361 P.3d 379, 381 (2015) ("Absent statutory definitions, courts generally give words their ordinary meaning and may look to dictionary definitions." (internal citation omitted)). Just as a prohibition restricts and restrains a sole legal decision-maker's authority, so does a directive. The key to complying with § 25-410(A) is that the limitation, in either form, must be necessary to prevent the child's physical endangerment or significant emotional impairment.

¶24 The court of appeals apparently was persuaded that a "directive" is impermissible because the family court "has no say in the actual decisions of the chosen parent" and "typically [may] do no more than reallocate the authority between the parents" when they disagree. Paul E. , 244 Ariz. at 54 ¶ 26, 418 P.3d at 421 ; see also id. ¶ 25 ("[T]he [family] court's statutorily prescribed role is not to make decisions in place of parents, but to decide which fit parent or parents shall make such decisions." (quoting Nicaise v. Sundaram (Nicaise I ), 244 Ariz. 272, 280 ¶ 27, 418 P.3d 1045, 1053 (App. 2018), vacated in part on other grounds , Nicaise II , 245 Ariz. 566, 432 P.3d 925 )). This is not so.

¶25 The family court is authorized to make childrearing decisions in limited, statutorily prescribed circumstances. For example, the court may grant third-party-visitation rights over a parent's objection if "visitation is in the child's best interests." A.R.S. § 25-409(C) ; In re Marriage of Friedman & Roels , 244 Ariz. 111, 113 ¶ 1, 418 P.3d 884, 886 (2018) (holding that "when two legal parents disagree about whether visitation is in their child's best interests, both parents' opinions are entitled to special weight" but "parents' conflicting opinions must give way to the court's finding on whether visitation is in the child's best interests").

¶26 The court is also authorized to intervene when parents cannot agree on childrearing decisions to be included in a parenting plan. See A.R.S. § 25-403.02(C)(2) (permitting a parenting plan to address any issue and requiring a description of "[e]ach parent's rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care and religious training"). When an impasse occurs, the court is authorized to determine not only the parenting plan element in dispute, but also "other factors that are necessary to promote and protect the emotional and physical health of the child." § 25-403.02(D) ; see also Jordan v. Rea , 221 Ariz. 581, 589 ¶¶ 19-20, 212 P.3d 919, 927 (App. 2009) (concluding that former, identical version of § 25-403.02(D) authorized the family court to apply best-interests standard to resolve parents' disagreement about which school children should attend).

¶27 In Nicaise I , the court of appeals stated that § 25-403.02(D) did not authorize the family court to make parental decisions when the parties disagreed, as occurred in Jordan , as doing so would "render the concept of sole legal decision-making meaningless." Nicaise I , 244 Ariz. at 281 ¶ 29 n.6, 418 P.3d at 1054 n.6. But that statute applies when both parents are entitled to make certain decisions and thus need to agree, which is not typically the situation when one parent is the sole legal decision-maker. See § 25-403.02(D) (authorizing court intervention "[i]f the parents are unable to agree"). Thus, if the court awards joint legal decision-making authority, the court is authorized to resolve any conflict. The court is not limited to merely vesting one parent with sole legal decision-making authority on the disputed issue, and we disapprove of the contrary view in Nicaise I . See Nicaise I , 244 Ariz. at 280-81 ¶¶ 27-30, 418 P.3d at 1053-54. In contrast, when, as here, the family court has awarded sole legal decision-making authority to a parent, if the other parent disagrees with the sole legal decision-maker on a major issue, the court may only intervene as authorized in § 25-410(A).

¶28 We also disagree with the court of appeals that endangerment and significant emotional impairment, as used in § 25-410(A), means abuse or neglect, which implies wrongdoing. See Paul E. , 244 Ariz. at 55 ¶ 27, 418 P.3d at 422 (stating § 25-410(A) applies only when a specific limitation is "necessary to prevent abuse or neglect" (internal quotation marks omitted)). Although the legislature defined "abuse" and "neglect" for statutes addressing child safety, see A.R.S. § 8-201(2), (25), which are inapplicable here, nothing in § 25-410(A) suggests any intent to import these terms. Also, the case relied on by the court of appeals did not address § 25-410(A). See Egan v. Fridlund-Horne , 221 Ariz. 229, 234 ¶ 16, 211 P.3d 1213, 1218 (App. 2009) ("States may regulate the well-being of children and thus restrict the control of parents in a number of areas, including ... prevention of abuse or neglect.").

¶29 In sum, § 25-410(A) authorizes the family court to impose a specific limitation on the sole legal decision-maker's authority only when the other parent demonstrates that absent that limitation, the child would be physically endangered or the child's emotional development would be significantly impaired. This provision will be triggered most often after the sole legal decision-maker has either actually exercised authority or has indicated he or she would do so in a way that would harm the child. For example, refusing to retain particular therapeutic services could justify an order requiring such services if refraining from doing so would endanger the child's physical health or significantly impair the child's emotional development. The limitation imposed can be a prohibition or a directive. But any limitation must be tailored to prevent or remedy the endangerment or impairment. The court must be mindful not to unnecessarily intrude on the sole legal decision-maker's unshared authority to make major decisions concerning the child's upbringing, even if those decisions conflict with expert opinion or the court's own views on childrearing.

¶30 As for the orders here, the family court found that "Father's approach [to gender dysphoria issues] [w]as generally reasonable" and he "appropriately sought out therapy for [L.] and followed the therapist's advice" before issuance of the Rule. But Father's failure to "actively encourage gender exploration in his home" before the Rule, maintenance of a log documenting events bearing on L.'s gender identification, and "view that [L.] might be 'in remission' during 2015" indicated "he may not be as open to allow exploration as the experts ... believe is appropriate." Addressing § 25-410(A), the court found that "[L.'s] gender dysphoria diagnosis and the parents' response to it has already caused [L.] emotional harm" and "[w]hile Father may argue that Mother[ ]" mainly inflicted that harm, "Father was slow to accept the diagnosis, and has advocated a position that [L.] was in 'remission'-a position at odds with the experts." Thus, given the "complexity of [L.'s] situation, the dynamics of the parties' relationship and the potential for harm if it is not managed correctly," the court found that L.'s "physical health would be endangered and emotional development impaired" if the court did not "establish some [mandatory] guidelines for the parents in addressing [L.'s] situation."

¶31 This order does not satisfy § 25-410(A) because it fails to focus on how Father's exercise of unchecked legal decision-making authority would place L. at risk for physical injury or significantly impair L.'s emotional development. The complexity of L.'s situation is not a basis alone for invoking § 25-410(A). Fit parents, like Father, frequently guide their children through complex situations without court interference. The "dynamics of the parties' relationship" does not suggest that Father will exercise his sole legal decision-making authority in a way that endangers or impairs L. And the potential for harm due to mismanaging the gender dysphoria diagnosis is not equivalent to finding that absent a specific limitation, L. would be put at risk for harm or suffer harm. See § 25-410(A).

¶32 Mother has not pointed to any evidence, and we have not found any, supporting a finding that absent the mandatory "guidelines" imposed by the court, Father's exercise of decision-making authority would physically endanger L. or significantly impair L.'s emotional development. Father's past reluctance to accept L.'s diagnosis does not demonstrate he would fail to appropriately address that diagnosis in the future. Indeed, he has meaningfully addressed the diagnosis, and the evidence suggests he will continue to do so. For example, Father originally retained Vigil's services, maintained them throughout the court proceedings, followed her advice, and said he would both continue to pursue therapy for L. with Vigil or a future therapist and retain a gender expert. Before the court, Father expressed a willingness to allow L. to fully explore gender issues in his home and agreed with Dr. Selmi's recommendation that Father see a therapist to acquire "psycho-educational approaches to learning about gender issues."

¶33 None of the expert evidence supports a finding that Father's exercise of sole legal decision-making authority, absent the mandatory "guidelines" here, would harm L. According to Vigil, although Father was initially uncomfortable with L.'s gender dysphoria diagnosis, he came to be "more accepting" of it. Dr. Selmi reported she "never viewed Father as an individual who will reject [L.] if [L.] decides to be a transfemale, gay, or straight, or something else." Although Dr. Selmi recommended many of the directives that comprised the court's appointment orders, she did not state that the failure to implement them would endanger or impair L. She also did not express doubt about Father's ability to make decisions concerning L.'s gender dysphoria. Indeed, she implicitly found Father's parenting skills sufficient, as she noted that Father has a "positive and close relationship[ ]" with L., who is "well adjusted," and predicted that "Father will make the more rational and reasonable decisions" when making parenting decisions.

¶34 Even if the evidence showed that absent a specific limitation on Father's authority L. would be physically endangered or his emotional development would be significantly impaired, the family court failed to tailor each directive to prevent such harm. A hypothetical illustrates our point. If the evidence showed that L. would be placed at risk for physical danger or significantly impaired emotionally if Father chose not to maintain therapy for L. or consult with a gender expert, the court could compel therapy and consultation. But absent evidence demonstrating that Father would choose an unqualified or ineffective therapist or gender expert, § 25-410(A) did not authorize the court to select a specific therapist and expert.

¶35 In short, although the court had concerns about Father's ability to successfully guide L. through gender dysphoria, Mother failed to show that Father's exercise of his sole legal decision-making authority would place L. at risk for physical injury or significantly impair L.'s emotional development without the court's appointment of specific treating professionals and attendant restrictions on Father's authority. Absent such evidence, § 25-410(A) did not authorize the court's appointment orders. The evidence supports findings implicit in the court's orders, however, that L. would be physically endangered or suffer significant emotional impairment if Father fails to maintain therapy for L. or retain a gender expert or if he declines to allow L. to gender explore. On remand, if the court makes any or all these findings, it may order Father to continue L.'s therapy, retain a gender expert, and/or permit L. to gender explore. See § 25-410(A).

II. A.R.S. § 25-405(B)

¶36 Mother alternately argues that § 25-405(B) authorized the family court to appoint Vigil and Dr. Ehrensaft as "consulting experts." Section 25-405(B) provides that "[t]he court may seek the advice of professional personnel" to determine legal decision-making authority and parenting time. See also Hays v. Gama , 205 Ariz. 99, 102 ¶ 15, 67 P.3d 695, 698 (2003). We agree with the court of appeals that § 25-405(B) did not authorize the family court to appoint Vigil and Dr. Ehrensaft. See Paul E. , 244 Ariz. at 56-57 ¶¶ 31-33, 418 P.3d at 423-24.

¶37 First, § 25-405(B) applies only when an issue regarding legal decision-making authority or parenting time is pending before the court. See UMDA § 404(b) cmt. (explaining that this provision, which is identical to § 25-405(B), "[is] designed to permit the court to make [legal decision-making] and [parenting time] decisions as informally and non-contentiously as possible"). Here, no such issues were pending, as the court had already awarded Father sole legal decision-making authority and parenting time was no longer in dispute. In other words, the court did not need professional advice to make legal decision-making or parenting time decisions because it had already made those decisions.

¶38 Second, even if a legal decision-making or parenting time issue had been pending, the court's appointment of Vigil and Dr. Ehrensaft exceeded the authority granted by § 25-405(B). That provision only authorizes the court to seek advice from a professional to aid it in making certain decisions. Section 25-405(B) nowhere authorizes the court to order treatment for a child, as occurred here.

III. ARFLP 95(A)

¶39 Mother finally argues that ARFLP 95(A) authorized the family court to appoint Vigil and Dr. Ehrensaft. The version of ARFLP 95(A) in effect at the time of the court's orders provided that "[i]n addition to conciliation services, the court may order parties to engage in private mental health services, including, but not limited to, counseling, legal decision-making or parenting time evaluations, mental health evaluations, Parenting Coordinator services, therapeutic supervision of parenting time, and other therapeutic interventions."

¶40 We agree with the court of appeals that ARFLP 95(A) did not authorize the appointment orders here. See Paul E. , 244 Ariz. at 55-56 ¶ 29, 418 P.3d at 422-23. ARFLP 95(A) is a procedural rule and cannot enlarge the court's authority beyond that granted by statute. See In re Marriage of Waldren , 217 Ariz. 173, 177 ¶¶ 20-21, 171 P.3d 1214, 1218 (2007) (stating that a court rule "may address only procedural matters" and cannot "abridge, enlarge or modify substantive rights of a litigant" (quoting A.R.S. § 12-109(A) )). As previously explained, the court's appointment orders infringed on Father's sole legal decision-making authority under §§ 25-401(3), (6) and -403, and a statutory exception did not apply. ARFLP 95(A) does not apply here.

CONCLUSION

¶41 We vacate the court of appeals' opinion except for ¶¶ 34-35 and 39. We vacate the family court's orders entered March 23, March 31, June 10, and June 13, 2016, to the extent those orders appointed and granted authority to Vigil and Dr. Ehrensaft and limited Father's sole legal decision-making authority. We remand the case to the family court to determine the attorney fee award as directed by the court of appeals and for further proceedings consistent with this opinion.