Expert Testimony Isn't Needed to Prove Lawyer Violated Rule on Frivolous Claims

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Nov. 6 — Bar authorities didn't need expert testimony to prove that a lawyer breached the ethics rule that forbids frivolous claims and arguments by answering a lawsuit against a client with exculpatory assertions the lawyer had reason to doubt were true, the Wyoming Supreme Court held Oct. 29.

The court acknowledged that expert testimony may be needed to prove violations of standards in professional ethics codes that haven't been clearly defined by legislative or administrative bodies.

But expert testimony was not needed here because the prohibition at issue—Wyoming Rule of Professional Conduct 3.1(c) (now 3.1(b))—presents “a clearly identified standard,” Chief Justice E. James Burke said.

On the merits of the case, Burke said sufficient evidence supported the disciplinary board's finding that Laurence W. Stinson violated Rule 3.1 when he responded to a lawsuit with an answer and counterclaim that included assertions “for which [Stinson] did not have a good faith basis” and allegations “made for the improper purpose of publicly embarrassing the other party.” The court imposed a sanction of public censure.


The charges against Stinson arose out of his work on behalf of Dr. John H. Schneider, a surgeon who was sued for allegedly defaming Dr. Jimmie Biles, a rival surgeon.

The defamation complaint asserted that Schneider paid a friend, Lisa Fallon, to distribute 14,000 fliers accusing Biles of botching a surgery, being “drunk at work and in the operating room” and being charged for driving under the influence, possession of controlled substances and “Lewd act with resisting arrest.”

“Aside from [a booking] photo and a DWUI arrest, all information in the flyer was false,” the court said.

Biles filed suit against Fallon in Indiana. Schneider then asked Stinson to locate a lawyer to represent Fallon, whom he described as a family friend. Schneider said he would pay Fallon's legal fees.

Biles's lawyer later discovered evidence connecting Fallon to Schneider. When asked about that connection, Fallon said “she alone created the flyer” but Schneider provided the “information” and paid the printing costs, the court said.

Fallon's lawyer told Stinson he believed Schneider was communicating with Fallon. He subsequently provided Stinson with unearthed documents in which Schneider gave Fallon instructions about how to testify at a deposition. One document exhorted Fallon to deny Schneider's involvement and promised that she would “be taken care of” if she would “take a bullet.”

Zealous Advocacy or Unethical Conduct?

The ethics charges against Stinson were based on an answer and counterclaim he drafted after Biles filed racketeering and defamation claims against Schneider.

The bar alleged that Stinson breached Rule 3.1 because he raised an affirmative defense that relied on Fallon's deposition testimony that she acted alone—a premise Stinson had reason to doubt.

Stinson also was charged with violating Rule 3.1 by making statements “for the improper purpose of publicly embarrassing” Biles. The statements asserted that Biles was “responsible for negative public perceptions” because he had a reputation for driving and practicing medicine drunk and for failing to honor contracts.

Three experts—two of whom were judges who presided over the underlying case—testified for Stinson that they did not believe the lawyer violated Rule 3.1.

One judge said Stinson's use of Fallon's testimony was required “to vigorously defend” Schneider, and the “detailed allegations” about Biles were necessary because “federal law requires more than conclusory facts to be included in a Counterclaim to avoid dismissal under the Iqbal/Twombly line of cases.”

Going Too Far

The court rejected Stinson's argument that the ethics complaint had to be dismissed because the bar had not produced its own expert testimony.

The bar was “not required to present expert testimony on the Rule 3.1(c) question” because that rule “presents a clearly identified standard,” Burke wrote.

The court further held that evidence supported a finding that Stinson violated Rule 3.1.

“Given the [deposition instruction documents] and the other information available to Mr. Stinson when he prepared the Answer and Counterclaim, he had to know, at the very least, that questions remained concerning his client's connection to the dissemination of the defamatory flyer,” Burke said.

The court also rejected the contention that “the specificity required in federal pleadings” justified Stinson's detailed allegations about Biles's reputation.

“[T]his Court is not persuaded that compliance with that standard was the motivation behind [those statements],” Burke said. “The record instead persuades us that the paragraph was included for the purpose of embarrassing Dr. Biles.”

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