Lawyer Disciplinary Bd. v. Cunningham

• Decision Date: 12 October 1995
• Docket Number: No. 22761,22761
• Citation: 464 S.E.2d 181,195 W.Va. 27
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Complainant, v. Abishi C. CUNNINGHAM, A Member of the West Virginia State Bar, Respondent.

Page 181

464 S.E.2d 181

195 W.Va. 27

LAWYER DISCIPLINARY BOARD, Complainant, v. Abishi C. CUNNINGHAM, A Member of the West Virginia State Bar, Respondent.

No. 22761.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1995.

Decided Oct. 12, 1995.

SYLLABUS BY THE COURT

1. On motion and upon a proper showing, this Court may relieve the Office of Disciplinary Counsel or the lawyer, subject to the disciplinary recommendation, of the requirement found in Rule 3.11 of the Rules of Lawyer Disciplinary Procedure (1994), that written consent or objection to the disposition of the formal charge recommended by the Hearing Subcommittee of the Lawyer Disciplinary Board must be filed with the Clerk of this Court within thirty days of such recommendation. A motion for relief from the Rule 3.11 time limitation will be considered by this Court as if the motion were made under Rule 60(b) (1960) of the W.Va.R.Civ.P. Such relief motion must be made within a reasonable time, and for reasons (1), (2), (3), and (6) of Rule 60(b) not more than four (4) months after the report of the Hearing Subcommittee of the Lawyer Disciplinary Board is filed with the Clerk of this Court.

2. "Rule 3.7 of the Rules of Lawyer Disciplinary Procedure, effective July 1, 1994, requires the Office of Disciplinary Counsel to prove the allegations of the formal charge by clear and convincing evidence. Prior cases which required that ethics charges be proved by full, preponderating and clear evidence are hereby clarified." Syllabus Point 1, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995).

3. " 'A de novo standard applies to a review of the adjudicatory record made before the [Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the [Board's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Board's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.' Syl. pt. 3, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994)." Syllabus Point 2, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995).

Sherri D. Goodman, Chief Lawyer Disciplinary Counsel, West Virginia State Bar, Charleston, for Complainant.

Clayman R. Norfleet, Pro Hac Vice, Gary, for Respondent.

RECHT, Justice:

The Lawyer Disciplinary Board of the West Virginia State Bar seeks to suspend Abishi C. Cunningham's license to practice law for three months and to have Mr. Cunningham's active cases reviewed to ensure that these cases have not been neglected. The Board recommends these measures based on its finding that Mr. Cunningham violated Rules 1.1, 1.2(a), 1.3 and 1.4(a) of the Rules of Professional Conduct (1989) in his handling of a settlement offer. This case also presents a procedural issue concerning the time limits for filing objections with this Court to the Board's recommendations under Rule 3.11 (1994) of the Rules of Lawyer Disciplinary Procedure because Mr. Cunningham did not object to the Board's recommendations until after this Court on May 11, 1995 adopted the Board's recommendations. ¹

I Facts and Procedural History

In 1985, Mr. Cunningham filed a civil action on behalf of Dorothy Hunt to recover for injuries she allegedly received in a 1983 automobile accident. Beginning in 1988, the defendants in this accident case were represented by Clyde A. Smith, Jr., who was hired by J.C. Penney Insurance. During settlement negotiations, Mr. Cunningham, who on behalf of his client was demanding $35,000, received offers of $3,500, $6,500 and $7,500. On October 31, 1989, Mr. Smith filed an Offer of Judgment for $7,500 under Rule 68 (1978) of W.Va.R.Civ.P. ² The circuit court record contains no response to the Offer of Judgment. The circuit court ordered a status conference be held on August 14, 1990 but Mr. Smith requested a continuance for personal reasons. Both Mr. Cunningham and Mr. Smith agree that no conference was held on August 14, 1990 and neither appeared for the conference. However, the circuit court's file contains an order dated August 14, 1990 dismissing the civil action with prejudice. The dismissal order stated that it was entered pursuant to the status conference. Neither lawyer received a copy of nor were they aware of the entry of the dismissal order.

Sometime in the Fall of 1990, Mr. Smith spoke with an employee of the insurance company who told him that Mr. Cunningham had agreed to settle the case for $13,000. The insurance company sent Mr. Smith a check for $13,000 and a release, which, on December 17, 1990, Mr. Smith forwarded to Mr. Cunningham along with a dismissal order which Mr. Smith had prepared and signed.

Mr. Cunningham testified that a representative of the insurance company called him at home with the $13,000 settlement offer sometime before December 12, 1990. However, Mr. Cunningham maintains that he told the insurance company representative that he would have to consult with his client. Mr. Cunningham acknowledges that he received the $13,000 check, release and proposed dismissal order sometime in December 1990.

There is a factual dispute concerning whether Mr. Cunningham informed his client, Mrs. Hunt, of the $13,000 settlement offer. Mrs. Hunt testified that Mr. Cunningham never informed her of the settlement offer until after she contacted opposing counsel who told her of the offer. Mrs. Hunt was aware of the earlier settlement offers of $3,500, $6,500 and $7,500. Dorothy Hurt, Mr. Cunningham's secretary, testified that after Mr. Cunningham received the check, he asked her to locate Mrs. Hunt and to request that the client meet with him. Mrs. Hurt went to the client's business and gave her the message. About 5 minutes later, the client came to Mr. Cunningham's office. The secretary did not hear the conversation between the client and Mr. Cunningham. Mr. Cunningham testified that during the meeting the client looked at the check and told him $13,000 was insufficient. ³ The client denies ever seeing the $13,000 settlement check.

Mr. Cunningham agrees that he did not respond to Mr. Smith's December 1990 letter. On January 15, 1991, Mr. Smith again wrote Mr. Cunningham, who again did not respond. Mrs. Hunt's doctor in West Virginia wrote several letters to Mr. Cunningham concerning payment of Mrs. Hunt's bill and in one letter, the doctor complained about the four occasions his deposition had been scheduled and cancelled. ⁴ Mr. Cunningham testified that the doctor's office had canceled the depositions.

Mrs. Hunt testified that periodically she would contact Mr. Cunningham to learn the status of her case. Eventually she contacted Mr. Smith, opposing counsel who told her about the $13,000 settlement check he had sent to Mr. Cunningham. Mr. Smith testified that he thought Mrs. Hunt contacted him, "sometime after the January 1991 letter in, I think, the fall of 1991." Mrs. Hunt testified that she asked Mr. Cunningham about the check but he denied receiving it.

After his conversation with Mrs. Hunt, Mr. Smith contacted the insurance company and learned that the check had not been negotiated. Mr. Smith then contacted the Circuit Clerk of McDowell County about the dismissal order that he had sent to Mr. Cunningham along with the $13,000 settlement offer. The clerk's office sent him a copy of the last order in the file, which is when Mr. Smith learned for the first time that the circuit court had issued a dismissal order sua sponte dated August 14, 1990. Mr. Smith testified that he did not contact Mr. Cunningham after his January 15, 1991 letter.

Mr. Cunningham testified that he learned of the dismissal of Mrs. Hunt's case when Disciplinary Counsel contacted him in 1994. Mr. Cunningham was unsure about the action he took since 1990 to complete the litigation. He believes that he tried to set another deposition for Mrs. Hunt's doctor. Mr. Cunningham testified that he was waiting for the circuit court judge to set another status conference; however, he acknowledges that he did not request a status conference.

Mrs. Hunt's case was finally resolved without Mr. Cunningham's assistance. During oral argument before this Court, Disciplinary Counsel reported that another lawyer, working pro bono, had successfully assisted Mrs. Hunt to a closure of her case.

As a result of a hearing held on October 6, 1994, the Hearing Panel Subcommittee of the Lawyer Disciplinary Board found that Mr. Cunningham's conduct violated Rules 1.1 (competence), 1.2(a) (scope of representation), 1.3 (diligence) and 1.4(a) (communication) of the Rules of Professional Conduct (1989). The Board found insufficient evidence to conclude that violations of Rules 1.5(b) (safekeeping property) and 8.4 (misconduct) had occurred. The Board also noted that Mr. Cunningham had previously received a public reprimand from this Court for neglecting a legal matter. See Committee of Legal Ethics v. Cunningham, No. 21717 July 8, 1993 (per curiam order). Based on its findings, conclusions and previous discipline, the Board recommended that Mr. Cunningham be suspended for three (3) months from the practice of law and that his reinstatement be conditioned on his cooperation with Disciplinary Counsel's conducting of a review of his active cases and resolution of any problems. The Board's findings of fact, conclusions of law, and recommendations were dated January 31, 1995. On February 14, 1995, this Court received the Board's recommendations.

After receiving the Board's recommendation, Ancil G. Ramey, Clerk of this Court, telephoned the attorney who, at that time, was representing Mr. Cunningham ⁵ within thirty days of receiving the recommendations and advised him of the option to file a response. Mr. Ramey telephoned this same attorney at...