Lawyer Disciplinary Bd. v. Chittum, 34733.

• Decision Date: 29 January 2010
• Docket Number: No. 34733.,34733.
• Citation: 689 S.E.2d 811
• Parties: LAWYER DISCIPLINARY BOARD, Complainant, v. Kenneth E. CHITTUM, Respondent.
• Court: West Virginia Supreme Court

689 S.E.2d 811

LAWYER DISCIPLINARY BOARD, Complainant, v. Kenneth E. CHITTUM, Respondent.

No. 34733.

Supreme Court of Appeals of West Virginia.

Submitted January 12, 2010.

Decided January 29, 2010.

Syllabus by the Court

1. "A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar [currently, the Hearing Panel Subcommittee of 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 Committee's recommendations while ultimately exercising its own independent judgement. On the other hand, substantial deference is given to the Committee's findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record." Syllabus Point 3, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

2. "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 Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

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

David L. White, Esq., The Masters Law Firm LC, Charleston, WV, Attorney for Respondent.

PER CURIAM:

This is a lawyer disciplinary proceeding brought against Kenneth E. Chittum (hereinafter "Mr. Chittum") by the Office of Disciplinary Counsel (hereinafter "the ODC") on behalf of the Lawyer Disciplinary Board (hereinafter "the Board"). A Hearing Panel Subcommittee of the Board determined that Mr. Chittum violated seven Rules of Professional Conduct. Consequently, the Hearing Panel Subcommittee recommended the following sanctions: (1) that Mr. Chittum be reprimanded; (2) that he sign and follow a plan of supervised practice for a period of two years with a supervising attorney; (3) that he complete an additional 9 hours of CLE during the 2009-2010 reporting period in the area of ethics and office management over and above that already required; (4) that he have a certified public accountant audit his office accounting records for two consecutive years; (5) that he deliver the personal items of a former client/complainant to a designated place within twenty days of the entry of the Order; and (6) that he pay the costs incurred in this disciplinary proceeding.

Mr. Chittum does not contest the Board's finding that he committed seven violations of the Rules of Professional Conduct. He asks that this Court accept the Board's recommended sanctions as sufficient punishment for his transgressions. On September 3, 2009, we rejected the Board's recommended sanctions and ordered both parties to file briefs in this Court. Having reviewed the Board's recommended sanctions, the stipulated findings of fact, the briefs and arguments of counsel, and all other matters of record, we find that Mr. Chittum violated only four of the seven Rules of Professional Conduct. Nevertheless, we find that the Board's recommended sanctions, as moulded, are appropriate and are hereby imposed.

I. Standard of Review

In Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), this Court took the opportunity to "resolve any doubt as to the applicable standard of judicial review" in lawyer disciplinary cases. 192 W.Va. at 289, 452 S.E.2d at 380. Thus, Syllabus Point 3 of McCorkle holds:

A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar [currently, the Hearing Panel Subcommittee of 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 Committee's recommendations while ultimately exercising its own independent judgement. On the other hand, substantial deference is given to the Committee's findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.

See also, Syllabus Point 1, Lawyer Disciplinary Board v. Lakin, 217 W.Va. 134, 617 S.E.2d 484 (2005); Syllabus Point 1, Lawyer Disciplinary Board v. Lusk, 212 W.Va. 456, 574 S.E.2d 788 (2002); Syllabus Point 3, Lawyer Disciplinary Board v. Barber, 211 W.Va. 358, 566 S.E.2d 245 (2002).

The above standard of review is consistent with this Court's ultimate authority with regard to legal ethics matters in this State. Syllabus Point 3 of Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), holds: "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." See also, Syllabus Point 2, Barber, supra; Syllabus Point 3, Lawyer Disciplinary Board v. Frame, 198 W.Va. 166, 479 S.E.2d 676 (1996).

Rule 3.7 of the West Virginia Rules of Lawyer Disciplinary Procedure provides that, in order to recommend the imposition of discipline of a lawyer, "the allegations of the formal charge must be proved by clear and convincing evidence." See also Lusk, supra, 212 W.Va. at 461, 574 S.E.2d at 793; Syllabus Point 2, Lawyer Disciplinary Board v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995). The various sanctions which may be recommended to this Court are set forth in Rule 3.15.¹

II. Factual Background, Charged Violations and Analysis

Mr. Chittum practices law² in Mercer County, Bluefield, West Virginia. On February 13, 2009, a two-count statement of ethical violations was filed against Mr. Chittum. One count arose as the result of a complaint filed by a former client, the other complaint was filed by the ODC.

1. Count I — Complaint of Deborah L. Stevenson

Ms. Deborah L. Stevenson was incarcerated in a federal prison in Florida in June 2004 when her husband filed for divorce in Mercer County, West Virginia. The Family Court of Mercer County appointed Mr. Chittum to serve as Ms. Stevenson's guardian ad litem and represent her in the divorce proceeding. He was appointed pursuant to a pro bono program and received no fee or reimbursement of expenses. After receiving this appointment, Mr. Chittum initiated a flirtatious long distance telephone and letter writing relationship with Ms. Stevenson. However, Mr. Chittum and Ms. Stevenson never met each other in person.

The final hearing in the divorce proceeding occurred on September 16, 2004. The following day, September 17, 2004, Mr. Chittum sent Ms. Stevenson a letter detailing the final hearing and discussing how he could assist her with a petition for a federal writ of habeas corpus that she was planning to file pro se. Thereafter, Mr. Chittum continued sending Ms. Stevenson flirtatious handwritten letters. In one such letter, he discussed the possibility of getting Ms. Stevenson transferred to Alderson, West Virginia, noting that he could visit her there and raising the possibility of contact visits. Ultimately, Ms. Stevenson was transferred to Alderson without Mr. Chittum's assistance and he has not visited or communicated with her since the transfer occurred.³

Shortly after the final divorce order was entered, Ms. Stevenson's ex-husband delivered her personal belongings to Mr. Chittum's office. On October 26, 2004, Mr. Chittum sent Ms. Stevenson photographs of these personal belongings and discussed his efforts to assist her with the writ of habeas corpus petition. Thereafter, Mr. Chittum reviewed her pro se writ of habeas corpus petition in November 2004.

The personal correspondence between Mr. Chittum and Ms. Stevenson continued until March 2005. Approximately six months later, Ms. Stevenson filed her complaint against Mr. Chittum, on September 12, 2005, alleging that he stopped corresponding with her about her legal matters and stopped accepting her collect telephone calls from prison. The complaint also alleges that she made numerous requests that Mr. Chittum deliver her personal belongings to her grandmother and that he repeatedly failed to do so. Mr. Chittum made two attempts to deliver these items to Ms. Stevenson's grandmother who lived in Virginia. On both occasions, Mr. Chittum contacted Ms. Stevenson's grandmother and agreed upon a delivery time and date, and paid someone to load, haul and deliver the items to the grandmother's residence in Virginia. On both occasions, Ms. Stevenson's grandmother was not at home when the delivery arrived. It appears from the record that Ms. Stevenson's grandmother thereafter remarried and moved to Colorado. In August 2008, Mr. Chittum received a letter from an individual in Arizona requesting the items be sent there. Mr. Chittum could not verify whether Ms. Stevenson designated that individual to receive the personal items. To the contrary, in a January 20, 2009, letter to counsel for the Board, and in her deposition for this matter, Ms. Stevenson requests that the personal items be sent to an individual named Diane Lavore, who lives in Annandale, Virginia.

A. Rule 1.3 — Diligence

As a result of Mr. Chittum's failure to successfully deliver Ms. Stevenson's personal belongings to her grandmother in a timely manner, the Hearing Panel Subcommittee found that he violated Rule 1.3 of the ...