Ray Hunkins: As For Lawyers’ Complaints About Hageman, There Is No Place For Politics in Bar Association

Columnist Ray Hunkins writes: Lawyers who use the integrated bar to score political points do a great disservice to the profession and assure that collegiality will no longer be a welcomed feature of the practice of law in Wyoming.

Ray Hunkins

October 06, 20228 min read

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A group of Wyoming Lawyers, many of whom are friends of mine, some of whom are close friends of mine, have weighed in on the right of Harriet Hageman, recent winner of the Republican primary in her race for Wyoming’s at-large seat in the U.S. House of Representatives, to express her opinion about the 2020 Presidential election.

Among other things, Ms. Hageman stated at a campaign event in August that the 2020 Presidential election was “rigged,” a figure of speech meaning, according to Webster’s, that something was “manipulated or controlled, usually by deceptive or dishonest means.”

In two letters made public and dated the Sept. 12 and Sept. 30, the group of lawyers allege that Hageman had violated the ethical rules that govern Wyoming lawyers. They also allege she had violated her oath as an attorney by undermining the rule of law. In neither letter is there any discussion of whether Ms. Hageman sincerely believed that her statements were, in fact, true. If such was the case, accusing her of any ethical violation or violating her oath would be a false accusation.

Apparently recognizing a difference between opinion and fact in the first letter, it is opined that Ms. Hageman made her statement as “a matter of fact – not opinion.” It may have sounded like a statement of fact, but it clearly was a conclusory opinion.

Ms. Hageman had no firsthand knowledge of election procedures in other jurisdictions where questions about election integrity were raised. I would bet the same holds true for the signatories of the letters to Ms. Hageman. “All I know is what I read in the newspapers” is an apt description for the likely source of both parties’ knowledge about the 2020 election in states other than Wyoming.

The group’s letter of the 12th cites newspaper articles and other sources quoting variousd sundry individuals and organizations to the effect that Joe Biden won the election and Donald Trump didn’t and the election was won by Biden “fair and square”.

This is an opinion I believe is sincerely held by those who signed the letter, just as I believe Ms. Hageman most likely believed in the accuracy of her statements. Because that is so, I don’t quarrel with the right to communicate the lawyers’ objection to what Ms. Hageman said, and for the same reason I don’t quarrel with Ms. Hageman’s statement, assuming she believed what she said.

The letter of Sept. 12, seven pages of text and footnotes, contains many opinions (not statements of fact) concerning Ms. Hageman’s public comments and possible violations of state bar rules and regulations.

An Ill-Founded Opinion

In its discussion of the 2020 election, the group offers this: “Sadly, more than any other factor, her [Ms. Cheney’s] rejection of Mr. Trump’s ‘stolen election’ narrative spelled her defeat.”  

The letter offers no explanation for how the group arrived at its opinion that rejection of Trump’s complaints about elections in other states was the deciding factor for 113,025 Wyoming residents who cast their ballot for Ms. Hageman. That is an ill-founded opinion, but unworthy of any allusion to potential ethical violations.

The Sept. 12 letter, like its predecessor advocating for the election of Ms. Cheney, is an advocacy document. It makes an argument, a well-crafted and well documented argument, for a purpose. I’m not sure what that purpose might be since the group disavows its intent to register an ethics complaint with the Wyoming State Bar.

Perhaps the purpose is to “cancel” Ms. Hageman. That is a popular purpose in the cancel culture in which we live. I surmise that the attorneys who signed the first letter endorsing Ms. Cheney, but not the second taking Ms. Hageman to task, could not see an appropriate purpose either.

I disagree with many of the opinions set forth in the group’s letter. But I will defend the lawyers’ right to weigh in with whatever they wish to say about the events of the day, the year or even the 2020 election. That is what freedom of speech is all about.

I do think, based on the known facts, that accusing Ms. Hageman of ethical violations and breaching her oath is unfair. I would think otherwise if there was any hint of mendacity in her expressed belief.

Each of us, indeed all Americans, get to “pop off” even if we reveal our own shortcomings by doing so. That goes for the lawyers who signed the letters of Sept. 12 and 30, and it goes for Ms. Hageman’s campaign statements.

Ms. Hageman has a right to express her opinion and sincerely held belief that the election was “rigged.” It may have been a poor choice of words, but it’s far from the most outrageous statement of opinion I have heard a member of the bar espouse, either verbally or in writing.

While the group of Wyoming lawyers signing the referenced letters have been careful to deny any intent to file a complaint over the alleged professional misconduct of Ms. Hageman, Darby Hoggatt, a member of the Wyoming Bar practicing in Colorado, apparently inspired by the group of lawyer signatories, has twice filed formal complaints to the bar alleging the same supposed ethical misdeeds as those alleged in the letters.

Hoggatt’s first complaint was dismissed and the second, just filed according to an article in Cowboy State Daily, is apparently pending. Hoggatt has made his written complaints available to the press, a violation of Wyoming Supreme Court rules.

Not Much Doubt About Intent

In a WyoFile article by Maggie Mullen dated Sept. 29, the following is stated: “After WyoFile reported on the [group of lawyers’] letter last week, Hoggatt shared copies of his grievance and the bar’s response with a reporter.”

There can’t be much doubt about Mr. Hoggatt’s intent and purpose in making his documents and grievance the subject of a news story.

Rule 3 of the Rules of Disciplinary Procedure of the Wyoming Supreme Court is titled “Confidentiality of Proceedings Under these Rules.” The applicable portion of the rule states: “All proceedings pursuant to these rules are confidential unless and until an order of public discipline is issued by the Court …” (Emphasis supplied).

There also can’t be much doubt that in attempting to embarrass Ms. Hageman and make a political point, Mr. Hoggatt violated the rules of the Supreme Court of Wyoming.

As a young lawyer, one of the early bar conventions I attended was held in Jackson and the convention’s final banquet was at the Cowboy Bar. The speaker at the banquet was president of the State Bar, Ed Herschler. He was getting ready to run for governor, but no one would have known it. Not a word or even an inference of politics in his remarks. He knew to keep politics out of the affairs of the Wyoming Bar Association.

At a time when politics seems to have infected everything, we should try and keep partisanship out of our professional organizations.

Lawyers, like all Americans, have the right of free speech, but that doesn’t mean the right should always be exercised. As Stan Lynde’s cartoon character Rick O’Shay once opined, “legal ain’t always right.” Sometimes it’s just better to listen rather than talk.

The Wyoming Bar is integrated, meaning it is an official state organization to which all lawyers, of whatever political persuasion, must belong as a condition of their license to practice. There is no place for partisanship and politics in an integrated bar association.

Lawyers who use the integrated bar to score political points do a great disservice to the profession and assure that collegiality will no longer be a welcomed feature of the practice of law in Wyoming. A great loss, indeed.

After 50 years, Ray Hunkins is retired from the practice of law. While active, he served as chair of the State Bar Grievance Committee, the Supreme Court appointed entity dealing with ethical violations by lawyers, in the 1980s. He has also served on the national Legal Ethics and Professionalism Committee of the American College of Trial Lawyers.

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