Lawyer Disciplinary Bd. v. Cavendish

• Decision Date: 15 June 2010
• Docket Number: No. 34259.,34259.
• Citation: 226 W.Va. 327,700 S.E.2d 779
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. John M. CAVENDISH, a Member of the West Virginia State Bar, Respondent.

226 W.Va. 327

700 S.E.2d 779

LAWYER DISCIPLINARY BOARD, Petitioner

v.John M. CAVENDISH, a Member of the West Virginia State Bar, Respondent.

No. 34259.

Supreme Court of Appeals ofWest Virginia.

Submitted Feb. 10, 2010.

Decided June 15, 2010.

COPYRIGHT MATERIAL OMITTED.

Syllabus by the Court

1. “This 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.” Syllabus Point 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).

2. “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.” Syllabus Point 3, Legal Ethics of W. Va. v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

3. “Stipulations or agreements made in open court by the parties in the trial of a case and acted upon are binding and a judgment founded thereon will not be reversed.” Syllabus Point 1, Butler v. Transfer Corp., 147 W.Va. 402, 128 S.E.2d 32 (1962).

4. “In a lawyer disciplinary proceeding, a mental disability is considered mitigating when: (1) there is medical evidence that the attorney is affected by a mental disability; (2) the mental disability caused the misconduct; (3) the attorney's recovery from the 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.” Syllabus Point 3, Lawyer Disciplinary Bd. v. Dues, 218 W.Va. 104, 624 S.E.2d 125 (2005).

5. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered in imposing sanctions and provides as follows: ‘In imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary Board] shall consider the following factors: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer's misconduct; and (4) the existence of any aggravating or mitigating factors.’ ” Syllabus Point 4, Office of Lawyer Disc. Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

6. “Mitigating factors which may be considered in determining the appropriate sanction to be imposed against a lawyer for violating the Rules of Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution or to rectify consequences of misconduct; (5) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the practice of law; (7) character or reputation; (8) physical or mental disability or impairment; (9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13) remoteness of prior offense.” Syllabus Point 3, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

7. “Aggravating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify an increase in the degree of discipline to be imposed.” Syllabus Point 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

8. “In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.” Syllabus Point 3, Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

Andrea J. Hinerman, Esq., Office of Disciplinary Counsel, Charleston, WV, for Petitioner.

John M. Cavendish, Esq., Morgantown, WV, Pro Se.

PER CURIAM:

In this lawyer disciplinary proceeding brought against John M. Cavendish, the Hearing Panel Subcommittee of the Office of Disciplinary Counsel determined that Mr. Cavendish committed several violations of the Rules of Professional Conduct and recommended, among other things, that Mr. Cavendish's law license be suspended for a period of three years. Mr. Cavendish argues, however, that a three-year suspension of his law licence is not an appropriate sanction. For the reasons set forth below, we adopt the recommendations of the Hearing Panel Subcommittee.

I.FACTS

With regard to the relevant facts of this case, Mr. Cavendish and the Lawyer Disciplinary Board entered into the following stipulations:

1. John Michael “Mack” Cavendish (hereinafter “Respondent”) is a lawyer practicing in Morgantown, Monongalia County, West Virginia, and, in Charles Town, Jefferson County, West Virginia, and as such, is subject to the disciplinary jurisdiction of the Supreme Court of Appeals of West Virginia and its properly constituted Lawyer Disciplinary Board. Respondent was admitted to the West Virginia State Bar on January 11, 2006.

2. Respondent was employed at the Public Defender Corporation in Martinsburg, West Virginia, from on or about August 21, 2006, until on or about February 2, 2007. By statute, he had ninety (90) days to close his private practice. ¹

3. On or about February 1, 2007, without the permission of his supervisor, Deborah A. Lawson, Chief Public Defender for the Public Defender Corporation in Martinsburg, West Virginia, Respondent attended a hearing for an individual who was not a client of the Public Defender Corporation.

4. Daniels Capital Corporation is a company which advances payment to an attorney upon receipt of an assignment for monies to which a court appointed attorney would be entitled to receive from Public Defender Services. ²

5. On February 12, 2007, Deborah A. Lawson filed a complaint and alleged that Respondent had improperly accepted payment from Daniels Capital Corporation by submitting false documents for non-existent claims.

6. While Respondent was an employee of the Public Defender Corporation, he submitted notarized Assignment Schedules to Daniels Capital Corporation listing the disposition date for each case as being on or before August 2006. Based upon the notarized Assignment Schedules and Orders Approving Payment of Appointed Counsel Fees and Expenses he completed for the dates and amounts listed below, Respondent subsequently received payment for a percentage of the amount listed on the notarized statements. ³ Upon information and belief, the following are the amounts claimed by Respondent and the date he submitted the claims to Daniels Capital Corporation:

9. By submitting these Assignment Schedules, Respondent:

A. Received advance payments from Daniels Capital Corporation for cases to which he was appointed prior to accepting employment at the Public Defender Corporation.

B. Received advance payments from Daniels Capital Corporation for work he had not performed by misrepresenting the amount due him.

C. Received advance payments from Daniels Capital Corporation for work he had performed for his privately retained clients.

D. Received advance payments from Daniels Capital Corporation for funds due a former employer. ⁴ Respondent was not entitled to receive the payment for these cases and any payment received for these cases should be made payable to Respondent's former employer. (Footnotes 1 and 4 in the original; remaining footnotes added).

At the evidentiary hearing below, Mr. Cavendish testified that he had been appointed to the cases for which he sought payment from Daniels Capital Corporation (hereinafter “Daniels Capital”) by either Judge Gray Silver or retired Judge Thomas W. Steptoe. The Hearing Panel Subcommittee's investigation of this testimony indicated that Mr. Cavendish had been appointed to the cases identified in the complaint as being assigned by Judge Silver. The Panel did not make a finding as to the appointments of Judge Steptoe due to the fact that the Panel withdrew its request to Judge Steptoe to obtain the information, and the information was not produced by either of the parties in this matter. Nevertheless, the Panel found that pursuant to the stipulation of the parties, Mr. Cavendish was not entitled to the payments from Daniels Capital in that Mr. Cavendish had represented to Daniels Capital that he had made application to the court for payment of this money when in fact he knew this representation to be false.

The Panel further concluded that there are insufficient records in this matter to determine whether Mr. Cavendish actually performed the work that is represented by the payment vouchers submitted to Daniels Capital. Therefore, the Panel did not make a specific finding whether Mr. Cavendish was entitled to any of the monies requested from Daniels Capital, but instead relied upon the stipulated fact that Mr. Cavendish misrepresented to Daniels Capital the amount of monies due him and therefore, he was not entitled to the money he received from Daniels Capital.

It was the position of Mr. Cavendish at the evidentiary hearing that his misconduct was not fraudulent or intentional but rather was the result of memory loss caused by a cognitive impairment. In support of his position, Mr. Cavendish introduced into evidence the...