Lawyer Disciplinary Bd. v. Nessel

• Decision Date: 06 February 2015
• Docket Number: No. 13–0491.,13–0491.
• Citation: 234 W.Va. 695,769 S.E.2d 484
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. Kerry A. NESSEL, Respondent.

234 W.Va. 695

769 S.E.2d 484

LAWYER DISCIPLINARY BOARD, Petitioner

v.Kerry A. NESSEL, Respondent.

No. 13–0491.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 13, 2015.

Decided Feb. 6, 2015.

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

S. Benjamin Bryant, Esq., Carey, Scott, Douglas & Kessler, PLLC, Charleston, WV, for Respondent.

Opinion

LOUGHRY, Justice:

This matter is before this Court upon the findings and recommendations of the Hearing Panel Subcommittee (“Hearing Panel”) of the Lawyer Disciplinary Board (“LDB”) in a consolidated disciplinary proceeding brought against the respondent, Kerry A. Nessel (“Mr. Nessel”). The proceeding involves allegations that Mr. Nessel engaged in professional misconduct by placing small amounts of his personal funds into the prison accounts of certain inmate clients; by soliciting referrals from inmates for possible new litigation; and by refusing to dismiss allegedly frivolous personal injury actions brought on behalf of certain inmates.

Following an evidentiary hearing during which the Hearing Panel accepted, as presented, the parties' joint Stipulations and Recommended Discipline, the Hearing Panel found that Mr. Nessel had violated the West Virginia Rules of Professional Conduct¹ in several respects and recommended that this Court impose a number of sanctions, including a reprimand. Mr. Nessel does not challenge the Hearing Panel's findings, and both he and the Office of Disciplinary Counsel (“ODC”) urge this Court to adopt the Hearing Panel's recommended sanctions. After a careful review of the parties' briefs, the arguments of counsel, the record submitted, and the applicable law, this Court finds that there is clear and convincing evidence to support the Hearing Panel's findings. Accordingly, this Court imposes the Hearing Panel's recommended sanctions.

I. Factual and Procedural History

Mr. Nessel was admitted to The West Virginia State Bar on April 13, 1999. Since 2002, his law practice has included litigation filed against the West Virginia Division of Corrections (“DOC”) on behalf of female inmates who allege that they were sexually assaulted by corrections officers or others while incarcerated in regional jails and/or the Lakin Correctional Center (“Lakin”).² As of 2013, Mr. Nessel had represented more than 125 inmates either in, or in contemplation of, such litigation.

This disciplinary proceeding involves two separate complaints filed with the LDB against Mr. Nessel.³ The first complaint was based on allegations received from Lori A. Nohe, the warden at Lakin. Allegations received from Kelly C. Morgan, a member of The West Virginia State Bar, formed the basis of the second complaint. Given the similarities in the factual allegations and issues involved, the ODC merged the two matters, each of which is discussed below.

By letter dated March 23, 2010, Warden Nohe advised the ODC of her belief that Mr. Nessel was offering money to Lakin inmates for referrals for sexual assault cases against the DOC. She provided the ODC with a statement taken on January 4, 2010, from inmate S.F.⁴ by DOC investigator John Sallaz. ⁵

During her statement, inmate S.F. alleged that her name was provided to Mr. Nessel by another inmate, T.S.;⁶ that Mr. Nessel sought information from her regarding sexual assaults by guards at a regional jail;⁷ that he advised her that she could have a claim for merely witnessing actions of a sexual nature by corrections officers; that she told him that she “didn't want no part of that”; that he requested the names of other inmates who would be willing to discuss a possible sexual assault case with him; and that he offered to place a percentage of any settlement money received from those other cases into an account that she could access upon her release from prison.⁸ Based on the allegations received from Warden Nohe, the ODC opened a complaint against Mr. Nessel on March 29, 2010.⁹

During its investigation of Warden Nohe's allegations, the ODC received a letter dated September 16, 2011, from Kelly C. Morgan, an associate with Bailey & Wyant, P.L.L.C. Ms. Morgan defended the West Virginia Department of Education in litigation brought on behalf of inmates by Mr. Nessel. Ms. Morgan made similar allegations that Mr. Nessel was buying referrals from inmates and enclosed with her letter a copy of S.F.'s statement given to Mr. Sallaz. She also alleged misconduct by Mr. Nessel arising out of litigation he filed on behalf of Lakin inmates J.Q. and S.R. against Wexford Health Resources, Inc., her client, and/or Dr. John Pellegrini, a Wexford employee or contractor.¹⁰ The litigation included allegations that Dr. Pellegrini had sexually abused Mr. Nessel's inmate clients while they were receiving medical treatment at Lakin.¹¹ Ms. Morgan alleged that although she advised Mr. Nessel that inmate J.Q. was released from Lakin prior to Dr. Pellegrini's employment there and that inmate S.R. had no claims against Dr. Pellegrini or Wexford and had never even consulted with Mr. Nessel, he refused to dismiss J.Q. and/or S.R. from the litigation.¹² Based on Ms. Morgan's allegations, the ODC opened another complaint against Mr. Nessel, which it merged with the prior complaint given the convergence of facts and issues involved.¹³

Mr. Nessel filed written responses and gave sworn statements to the ODC in which he denied the allegations made by Warden Nohe and Ms. Morgan. He expressed his belief that the DOC is on a “ ‘witch hunt’ to disparage [his] good name and character[,]” adding that inmate clients had reported to him that either their parole was revoked, or they were subjected to fabricated prison violations, or they were held at Lakin for months after being awarded parole, all for the purpose of coercing favorable testimony for the DOC and its staff in pending sexual assault lawsuits.

In specifically addressing S.F.'s allegations, Mr. Nessel provided the ODC with a copy of her handwritten letter to him dated August 29, 2009, which was several months before she gave her statement to then DOC investigator Sallaz. In her letter, S.F. sought Mr. Nessel's legal representation for her “anxiety attacks,” which she attributed to the witnessing of a corrections officer engaging in sexual acts while she was incarcerated at a regional jail.¹⁴ Mr. Nessel expressed his belief that S.F. was upset with him because he refused to represent her upon learning that she had been untruthful. In further addressing the allegation that he bought referrals, Mr. Nessel stated that he had

cleared everything up with [inmate T.S.] concerning her misconception of me providing her a “finder's fee” for referring cases to me. I have never, and will never, give any client or ... any non-client, a “finder's fee” for referring ... a case to me. [T.S.] may have assumed that I would have provided her with such fee but her assumption is incorrect and she now realizes that.

He explained that his clients would speak to other inmates who had gone through similar adverse experiences while incarcerated, and his name would arise in that context. Although he denied that he was “buying referrals,” Mr. Nessel reported that he had sent small amounts of his own money¹⁵ to inmate clients “out of the kindness of [his] heart” and because he felt sorry for them. He added that on a few occasions he directed his employee, Michael Ferguson,¹⁶ to send the money. Stating that his actions were a violation of the Rules of Professional Conduct, Mr. Nessel indicated that he would take corrective measures to ensure that it did not happen again.¹⁷

With regard to the allegations related to the Wexford/Dr. Pellegrini litigation, Mr. Nessel stated that he could not simply rely upon Ms. Morgan's representations regarding J.Q. and S.R. given his prior experience with the DOC and its unreliable document production during litigation. Mr. Nessel acknowledged it became apparent he had misspelled the last name of S.R. in the pleadings he filed,¹⁸ and that S.R. was ultimately dismissed from the Wexford/Dr. Pellegrini litigation as a result. Regarding inmate J.Q., Mr. Nessel stated he had previously represented her in other litigation¹⁹ and, therefore, believed her when she told him that she had been seen by Dr. Pellegrini. He added that his records showed that J.Q. was at Lakin during Dr. Pellegrini's tenure there. Although defense counsel filed a motion for sanctions in the circuit court based on Mr. Nessel's refusal to dismiss J.Q., Mr. Nessel advised the ODC that the circuit court denied this motion.²⁰ He further advised that the circuit court granted defense counsel's motion to dismiss J.Q. from the litigation, but did so without prejudice based upon his failure to secure service of process—not because the action was frivolous.²¹

On May 13, 2014, a hearing was held before the Hearing Panel on these consolidated charges. The ODC and Mr. Nessel jointly submitted Stipulations and Recommended Discipline to the Hearing Panel. The only witnesses to testify before the Hearing Panel were Warden Nohe and Mr. Nessel.

Warden Nohe testified that she contacted the ODC because Mr. Nessel was visiting a higher than usual number of inmates at one time²² and because his firm had deposited money into the prison accounts of five or six inmates. When asked whether she was aware of other lawyers giving money to inmates, Warden Nohe responded, “to give money to an inmate for her own personal need, it's never happened.... to actually put money on the books for inmates, I've never seen it.”²³ Warden Nohe further testified that she was before the Hearing Panel because she does not “like what he's been doing”; that she thought he “was inmate shopping”; and that the lawsuits against the DOC were “frivolous.”

Mr. Nessel testified consistent with his prior written responses and sworn statements regarding the charge that he was buying referrals and the charge related to the Wexford/Dr. Pellegrini...