Committee on Legal Ethics of the West Virginia State Bar v. Martin
| Decision Date | 01 June 1992 |
| Docket Number | No. 20859,20859 |
| Citation | 419 S.E.2d 4,187 W.Va. 340 |
| Parties | THE COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR, Complainant, v. Joseph R. MARTIN, a Suspended Member of the West Virginia State Bar, Respondent. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. An attorney violates West Virginia Rule of Professional Conduct 8.1(b) by failing to respond to requests of the West Virginia State Bar concerning allegations in a disciplinary complaint. Such a violation is not contingent upon the issuance of a subpoena for the attorney, but can result from the mere failure to respond to a request for information by the Bar in connection with an investigation of an ethics complaint.
2. In order to expedite the investigation of an ethics complaint by the Bar, an attorney's failure to respond to a request for information concerning allegations of ethical violations within a reasonable time will constitute an admission to those allegations for the purposes of the disciplinary proceeding.
Maria Marino Potter, Charleston, for Committee on Legal Ethics of West Virginia State Bar.
George M. Cooper, Sutton, for respondent.
This is an attorney disciplinary proceeding in which the Committee on Legal Ethics of the West Virginia State Bar (hereinafter referred to as the Committee) on October 19, 1991, recommended, based upon a finding that respondent Joseph Martin violated Rule 8.1(b) of the West Virginia Rules of Professional Conduct 1, that respondent be ordered to cooperate with the office of Bar Counsel in completing the investigation of Edgar Cobb's complaint; that discipline be imposed in the form of a public reprimand; and that the respondent be ordered to pay the costs of the proceeding. After examining the record before us, we agree with the Committee's recommendation.
On August 7, 1989, the West Virginia State Bar (hereinafter referred to as the Bar) received an ethics complaint concerning the respondent from Edgar E. Cobb. In the complaint, Mr. Cobb alleged that the respondent failed to prepare and to enter a final order which accurately reflected the lower court's rulings in a divorce action in which the respondent was retained to represent him. According to Mr. Cobb, the respondent abandoned his representation of him before the scope of that representation was complete.
On August 16, 1989, then Bar counsel Jack Marden sent the respondent, now living in North Carolina, 2 a copy of Mr Cobb's complaint and asked for a written response. Additional letters requesting that the respondent answer the allegations in the complaint were sent to the respondent by either Mr. Marden or the assistant disciplinary counsel, Cynthia Gustke, on September 27, 1989, October 17, 1989, November 7, 1989, November 14, 1989, November 20, 1989, and December 27, 1989. The respondent never submitted a written response to the Bar.
Moreover, Mr. Marden's legal assistant, Ms. Jane Plymal, telephoned the respondent on September 6, 1989. During this conversation, the respondent indicated that he would mail a response within the next week. The respondent made similar representations when Ms. Plymal called on December 12, 1989, and January 18, 1990.
The respondent testified at the April 20, 1991, hearing before a hearing panel subcommittee of the Committee. The respondent admitted that he had not responded in writing to the allegations in the complaint made by Mr. Cobb. The respondent's testimony indicated that he had moved to North Carolina due to extreme financial problems. He testified that to avoid costs of day care for his two children, he worked nights as an auditor at a motel and took care of his children during the day while also trying to sleep. His testimony further revealed that he suffered from emotional problems for which he sought counselling, although he attributed most of these problems to his financial situation. According to the respondent, it was a combination of these factors which kept him from doing much of anything else, including responding to the inquiries of the Bar.
This is a case of first impression because we have never before interpreted the scope of West Virginia Rule of Professional Conduct 8.1(b) in the context of an attorney disciplinary proceeding. We also have never before discussed the ramifications for violating this particular rule.
West Virginia Rule of Professional Conduct 8.1(b) provides that
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
....
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6 [attorney-client privilege].
This rule is significant to investigations 3 conducted by the Committee, because even though the Committee has the power to subpoena 4 an uncooperative attorney or require that attorney to produce requested documents, in this case the respondent was beyond the Committee's subpoena power. Further, an onerous burden would be placed on the attorney disciplinary system of this State if every time an ethics complaint was filed, the Committee was confronted with forcing the attorney to respond by issuing a subpoena.
It is helpful to examine the decisions of other jurisdictions which have invoked Rule 8.1 in determining how to deal with an attorney who blatantly refuses to respond to investigative inquiries by the Committee when an ethics complaint has been filed against him. For instance, in In re Stricker, 808 S.W.2d 356, 357 (Mo.1991), the attorney was charged with, among other things, failure to cooperate with the bar committee in its investigation of an ethics complaint made against him.
Upon receipt of the ethics complaint, the bar committee sent a letter to attorney Stricker requesting him to respond in writing to the allegations within ten days. The attorney failed to respond. Id. at 357.
The master who conducted the disciplinary hearing found that since the attorney had failed to respond to this particular allegation by the bar committee, it was deemed admitted. However, the master recommended that the Supreme Court of Missouri take no further action because the complainant had failed to prove the underlying allegations by a preponderance of the evidence. Id.
The Missouri Supreme Court took a different view of the attorney's violation of Rule 8.1 and opined that
[t]his case illustrates the rationale underlying ... [Rule 8.1]. Had Mr. Stricker responded to the bar committee's letter and provided the evidence that he later presented at the disciplinary hearing, the matter could have been resolved promptly. The duty to cooperate with the committee is not dependent upon the merits of the complaint. Mr. Stricker's failure to cooperate constitutes a violation of Rule 8.1.
Id. at 357-58. Due to this violation coupled with violations of other disciplinary rules, the attorney's license was suspended, and he was ordered to pay the costs of the proceeding. See In re Erlin, 126 A.D.2d 83, 513 N.Y.S.2d 1 (1987) (); In re Haws, 310 Or. 741, 801 P.2d 818 (1990) ().
Likewise, in Flint's Case, 133 N.H. 685, 582 A.2d 291 (1990), the committee on professional conduct filed a petition against attorney Flint charging him with failing to handle client matters adequately and failing to respond to requests for information by the committee. The Supreme Court of New Hampshire found that the attorney had on four occasions failed to respond to requests for information by the committee. 582 A.2d at 293. Additionally, the attorney had a history of refusing to...
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