Lawyer Disciplinary Bd. v. Scott

• Citation: 579 S.E.2d 550,213 W.Va. 209
• Decision Date: 14 March 2003
• Docket Number: No. 30090.,30090.
• Court: Supreme Court of West Virginia
• Parties: LAWYER DISCIPLINARY BOARD, Complainant, v. John A. SCOTT, a member of The West Virginia State Bar, Respondent.

579 S.E.2d 550

213 W.Va. 209

LAWYER DISCIPLINARY BOARD, Complainant, v. John A. SCOTT, a member of The West Virginia State Bar, Respondent.

No. 30090.

Supreme Court of Appeals of West Virginia.

Submitted February 26, 2003.

Decided March 14, 2003.

Lawrence J. Lewis, Chief Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, West Virginia, Attorney for Complainant.

Gregory H. Schillace, Clarksburg, West Virginia, Attorney for Respondent.

DAVIS, Justice:

This lawyer disciplinary proceeding against John A. Scott was brought to this Court by the Office of Disciplinary Counsel (hereinafter referred to as the "ODC") on behalf of the Lawyer Disciplinary Board (hereinafter referred to as the "Board"). The Boards's Hearing Panel Subcommittee determined that Mr. Scott committed twenty-two violations of the Rules of Professional Conduct. Consequently, the Board has recommended that Mr. Scott's license to practice law be annulled.¹ Mr. Scott does not contest the Board's findings of twenty-two violations of the Rules of Professional Conduct.² However, Mr. Scott contends that the annulment recommendation is too harsh. He therefore requests a lesser sanction. During oral argument, Mr. Scott suggested a ninety-day suspension. Based upon the parties' arguments to this Court, the record designated for our consideration, and the pertinent authorities, we conclude that Mr. Scott's law license should be suspended for three years. Furthermore, we conclude that Mr. Scott should be required to: (1) show that his diagnosed Bipolar II Disorder is under control prior to reinstatement; (2) show that he has legal malpractice coverage prior to reinstatement; (3) complete six hours of Continuing Legal Education in the area of ethics for at least two years after reinstatement; and (4) practice law under the supervision of another attorney for two years after reinstatement.

I. FACTUAL HISTORY

On October 19, 2001, a seven count statement of charges was issued against Mr. Scott by an investigative panel. When the statement of charges was issued, Mr. Scott was serving as the duly elected Harrison County Prosecutor.³ The matters complained of in the statement of charges cover Mr. Scott's conduct both before he was sworn in as a prosecutor on December 29, 2000, and after he took office as a prosecutor. The Board's determination that Mr. Scott violated twenty-two provisions of the Rules of Professional Conduct was based upon six of the counts in the statement of charges. The Board properly concluded that the remaining count was time-barred by Rule 2.14 of the Rules of Lawyer Disciplinary Procedure. The facts underlying the six counts are heretofore summarized.

First Charge.⁴ When Mr. Scott was sworn in as Harrison County Prosecutor in December of 2000, he had been informed that his license to practice law would be suspended effective November 15, 2000 as a result of his failure to pay State Bar dues. Even though Mr. Scott had been notified that his license would be suspended, he appeared as State's counsel before a grand jury proceeding. The Circuit Court of Harrison County was notified of the suspension on January 5, 2001. When questioned about the suspension by the three circuit judges of Harrison County, Mr. Scott lied and stated that he paid his bar dues the day before he was sworn in as prosecutor. Subsequently, Mr. Scott submitted falsified copies of a backdated check and certified mail receipt to the State Bar on January 2, 2001, wherein he attempted to show that he had paid his bar dues. Therefore, Mr. Scott contended that his license should be reinstated effective the day before he was sworn in as prosecutor. Meanwhile, a proceeding was brought by the Harrison County Public Defender's Office to challenge the status of Mr. Scott's law license. At a hearing on February 8, 2001, Mr. Scott again lied under oath by stating that he had sent a check to pay his bar dues in December of 2000.

As a result of the conduct in the first charge, the Board found that Mr. Scott violated Rule 5.5(a), by appearing before a grand jury as counsel for the State when his law license had been suspended.⁵ Rule 8.4(d) was violated because Mr. Scott's conduct was prejudicial to the administration of justice.⁶ As a result of Mr. Scott's presentation of falsified documents and false testimony, the Board additionally concluded that Rules 3.3(a)(1),⁷ 3.3(a)(4),⁸ 3.4(b),⁹ and 8.4(c)¹⁰ were violated.

Second Charge. The Board found that in November of 1997, Mr. Scott filed a civil action in circuit court on behalf of Troy and Debra Stire. The suit was against a building contractor who had performed work on the Stires' home. During the litigation, Mr. Scott failed to attend several hearings. Consequently, in January of 1999 opposing counsel filed a motion for sanctions against Mr. Scott. To avoid the sanction motion, Mr. Scott caused the action to be dismissed from circuit court. He later filed several smaller claims in magistrate court. While the claims were pending in magistrate court, Mr. Scott obtained a default judgment by misrepresenting to the magistrate that service of process had been made.¹¹

Based upon Mr. Scott's actions and inactions on behalf of the Stire family, the Board found that Mr. Scott's failure to attend hearings and to diligently prepare his clients' case violated Rule 1.3,¹² Rule 3.2,¹³ Rule 3.4(c)¹⁴ and Rule 3.4(d).¹⁵ The Board further found that Mr. Scott's failure to inform the Stires of his true reason for recommending the dismissal of their case from circuit court violated Rule 1.4(b),¹⁶ Rule 1.7(b)¹⁷ and Rule 8.4(c).¹⁸

Third Charge. In December of 1999, Mr. Scott was supposed to file a criminal appeal on behalf of Albert J. Lehosit. When questioned on two separate occasions about the status of the appeal by Mr. Lehosit and his family members, Mr. Scott represented that an appeal had been filed. However, Mr. Scott failed to file the appeal. Based upon these actions, the Board found that Mr. Scott's failure to file the criminal appeal violated Rule 1.3.¹⁹ The Board also determined that Rule 8.4(c)²⁰ was violated by Mr. Scott's misrepresentations about the status of the appeal.

Fourth Charge. In August of 1999, Mr. Scott informed David Cottingham he had a viable wrongful death suit in connection with the death of Mr. Cottingham's father. Mr. Scott eventually represented to Mr. Cottingham that a lawsuit had been filed. In fact, no lawsuit was filed. In March of 2000, Mr. Cottingham retained Mr. Scott for a separate personal injury claim. Mr. Scott did nothing to advance the personal injury claim. When confronted by Mr. Cottingham about the status of the personal injury claim, Mr. Scott falsely represented that the insurance company settled the case for $2,500.00, and that Mr. Cottingham would receive a net recovery of $2,200.00. As such, the Board determined that Mr. Scott's false representations to Mr. Cottingham violated Rule 1.2(a),²¹ Rule 1.3,²² Rule 1.4(a),²³ Rule 1.4(b)²⁴ and Rule 8.4(c).²⁵

Fifth Charge. Robert and Susan Gifford retained Mr. Scott for a personal injury claim in January of 1997. The first action filed by Mr. Scott was dismissed for failure to serve process on the defendant. Mr. Scott did not inform the Giffords of the dismissal of their case. The case was eventually reinstated, but was again dismissed in August of 1999 as exceeding the statute of limitations. Mr. Scott also failed to inform the Giffords of the second dismissal. After Mr. Scott was elected as prosecutor in 2000, the Giffords sought to review their case in contemplation of retaining new counsel. The Giffords were informed by the circuit clerk's office that the case was dismissed. As to the fifth charge, the Board found that Mr. Scott's conduct in the Giffords' case violated Rule 1.3²⁶ and Rule 8.4(c).²⁷

Sixth Charge. Stephen Goffretained Mr. Scott to represent him in a civil case. In January of 1999, Mr. Scott informed Mr. Goff that a verbal settlement had been reached with opposing counsel. As a result of Mr. Scott's failure to submit a written settlement with the circuit court and after being duly warned by the circuit court, the court dismissed the case with prejudice in July of 1999. After the case was dismissed, Mr. Goff asked Mr. Scott about the status of his case. Mr. Scott failed to inform Mr. Goff the case was dismissed. Eventually, Mr. Goff checked with the circuit clerk's office and learned that the case was dismissed. Mr. Goff confronted Mr. Scott about the dismissal. Mr. Scott informed Mr. Goff that an appeal would be filed. No appeal was ever filed. After the appeal period had expired, Mr. Scott sought a writ of prohibition from this Court which was denied. With regard to the sixth charge, the Board determined that Mr. Scott's conduct in the Goff case violated Rule 1.3,²⁸ Rule 1.4(a),²⁹ Rule 1.4(b)³⁰ and Rule 8.4(c).³¹

II. STANDARD OF REVIEW

Although the Board makes recommendations to this Court regarding sanctions to be imposed upon an attorney for ethical violations, we have held that "[t]his Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law." Syl. pt. 3, Committee on Legal Ethics of the West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984). Our standard of review of proceedings before the Board was set out in syllabus point 3 of Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), as follows:

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

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