Lawyer Disciplinary Bd. v. Folwell, 11-1279

• Decision Date: 07 June 2012
• Docket Number: No. 11-1279,11-1279
• Parties: LAWYER DISCIPLINARY BOARD, Complainant v. NORMAN L. FOLWELL, A MEMBER OF THE WEST VIRGINIA STATE BAR, Respondent
• Court: West Virginia Supreme Court

LAWYER DISCIPLINARY BOARD, Complainant

v. NORMAN L. FOLWELL, A MEMBEROF THE WEST VIRGINIA STATE BAR, Respondent

No. 11-1279

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

ISSUED: June 7, 2012

MEMORANDUM DECISION

This reciprocal lawyer disciplinary proceeding against Norman L. Folwell was brought to this Court by the Office of Disciplinary Counsel (hereinafter the "ODC") on behalf of the Lawyer Disciplinary Board (hereinafter the "Board"). The Board's Hearing Panel Subcommittee (hereinafter "HPS") recommended that West Virginia should impose the same punishment upon Mr. Folwell as was imposed upon him by the State of Ohio.¹ This Court, initially, did not agree with the recommended disposition set forth by the HPS. By order entered January 12, 2012, a briefing schedule was set for the parties, and the matter was placed on the docket for oral argument. Mr. Folwell failed to file a brief in this matter; however, he did appear in person and was permitted to argue orally before this Court. Based on the Board's brief, the parties' arguments to this Court, and the pertinent authorities,² we now adopt the recommendations as set forth by the HPS. This case presents no new or significant questions of law; therefore, it will be disposed of through a memorandum decision as contemplated under Rule 21 of the Revised Rules of Appellate Procedure.

The only issue before this Court is the appropriate sanctions to impose upon Mr. Folwell's West Virginia law license for his misconduct in the practice of law in Ohio. Factually, there are no disputes. On July 20, 2011, the ODC received a letter from the Supreme Court of Ohio, along with a copy of the Ohio Supreme Court's order suspending Norman L. Folwell's license to practice law in Ohio.³ On September 15, 2011, the ODC sent Mr. Folwell a Notice of Reciprocal Disciplinary Action Pursuant to Rule 3.20 of the Rules of Lawyer Disciplinary Procedure, advising him that the ODC would request the HPS to impose the same sanctions as he had received in the State of Ohio. Further, the notice to Mr. Folwell stated that, if Mr. Folwell intended to challenge the validity of the Ohio suspension, he must request a formal hearing from the ODC and provide a copy of the record of the Ohio disciplinary proceedings within thirty days. Mr. Folwell failed to respond, either verbally or in writing.

On November 7, 2011, the ODC moved that the HPS take action in this matter without conducting a formal hearing⁴ and further requested that the HPS recommend to this Court that Mr. Folwell receive the same discipline in West Virginia as he had received in the State of Ohio. The HPS, on December 2, 2011, filed its report with this Court, asking that we impose the same sanction as the State of Ohio: suspend Mr. Folwell's license to practice law in West Virginia for a period of two years with the second year stayed provided that Mr. Folwell complies with certain conditions.⁵

As explained in the brief filed by the Board, Mr. Folwell was found guilty in Ohio of transgressions in his legal practice in seven different clients' cases, all of which resulted in the determination that he had violated multiple rules of professional conduct.⁶ The OhioSupreme Court's order constitutes a final adjudication of misconduct forming grounds for discipline of a lawyer within the meaning of Rule 3.20(a) of the West Virginia Rules.⁷

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.' Syllabus point 3, Committee on Legal Ethics of the West Virginia State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984)." Syl. pt. 1, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003). In this case, the facts were ascertained in the State of Ohio and are not in question before this Court. Moreover, no record was made in this State before the Board. Thus, we apply a de novo standard of review to the legal questions and the application of such to the facts. See Syl. pt. 3, in part, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994) ("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 appeal to this Court, the Board notes that, under Rule 3.20(e) of the West Virginia Rules of Lawyer Disciplinary Procedure, the HPS "shall" refer reciprocal disciplinary matters to this Court with the recommendation that the same sanction be imposed as was imposed by the foreign jurisdiction unless the HPS determines that one of four exceptions⁸ set out inRule 3.20(e) of the West Virginia Rules of Lawyer Disciplinary Procedure applies.⁹ In Mr. Folwell's case, the HPS recommended that this Court impose the same sanction as the State of Ohio had levied against Mr. Folwell. As previously explained, Mr. Folwell did not file a written brief; however, during oral argument before this Court, Mr. Folwell contended that this Court should impose the same sanction against his West Virginia law license as was imposed against his Ohio license to practice law.

The Board argues that, even though Mr. Folwell failed to participate in the West Virginia disciplinary proceedings and neglected to report his Ohio suspension to the ODC, the recommended sanction remains consistent with the sanction imposed in several West Virginia cases. See, e.g., Lawyer Disciplinary Bd. v. Grafton, 227 W. Va. 579, 712 S.E.2d 488 (2011) (attorney's law license suspended for two years upon determination that attorney failed to file appeal for client and deceived client for more than a year beyond appeal deadline). Accord Lawyer Disciplinary Bd. v. Morgan, 228 W. Va. 114, 717 S.E.2d 898 (2011) (per curiam); Lawyer Disciplinary Bd. v. Simmons, 219 W. Va. 223, 632 S.E.2d 909 (2006) (per curiam). While these cases are instructive in considering the sanction to be imposed upon Mr. Folwell for his misconduct, we first must review this Court's authority in reciprocal actions.

Reciprocal disciplinary proceedings are governed by Rule 3.20 of the West Virginia Rules of Lawyer Disciplinary Procedure.¹⁰ This provision previously has beenconsidered by this Court. In Committee on Legal Ethics v. Battistelli, 185 W. Va. 109, 405 S.E.2d 242 (1991),¹¹ reciprocal discipline was imposed on an attorney who had been fined by the federal Court of Appeals for misrepresenting the facts before that court. To this Court,the HPS recommended that the attorney be assessed the same fine as had been imposed by the Court of Appeals. Additionally, the HPS requested that a public reprimand be issued, and that the attorney be held responsible for paying the costs of the disciplinary proceedings. This Court found that the HPS did not make findings that the four factors in subsection (e) of Rule 3.20 of the West Virginia Rules of Lawyer Disciplinary Procedure were applicable; thus, this Court declined to increase the penalty that had been imposed by the foreign jurisdiction. The attorney received the same punishment as he had received by the Court of Appeals, and the HPS's request for additional punishment was denied.

Thereafter, in Lawyer Disciplinary Board v. Post, 219 W. Va. 82, 631 S.E.2d 921 (2006), this Court recognized the disbarment of Mr. Post in the State of Colorado, based on his misconduct involving nineteen different clients. This Court annulled Mr. Post's license to practice law in the State of West Virginia and imposed upon him the costs of this State's lawyer disciplinary proceedings. Even though Mr. Post objected to the reciprocal disciplinary proceedings in West Virginia based on due process grounds, he did not request a formal hearing before the HPS, nor did he file a copy of the record of the proceedings from the State of Colorado. Thus, this Court's review was necessarily limited to only those documents presented to the HPS. In Post, we held that "[t]he provisions of Rule 3.20 of the West Virginia Rules of Lawyer Disciplinary Procedure require the imposition of the identical sanction imposed by the foreign jurisdiction unless one of the four grounds provided for challenging the discipline imposed by a foreign jurisdiction is both asserted and established." Syl. pt. 4, id. Because Mr. Post failed to establish any of the four grounds, this Court found that it was "required . . . to impose the same sanction instituted against him by the foreign court." Post, 219 W. Va. at 87, 631 S.E.2d at 926. Thus, this Court annulled Mr. Post's law license in the State of West Virginia and, additionally, accepted the HPS's recommendation to impose upon Mr. Post the costs of the West Virginia disciplinary proceedings.

Applying these legal principles to the presently-pending case, there was no assertion by Mr. Folwell or the HPS that any of the four exceptions applied or that a different discipline should be imposed. Because of the lack of a hearing and substantive review, the HPS made no findings regarding the application of the four exceptions to imposing the same sanction. Therefore, the HPS recommended that Mr. Folwell receive the same punishment as he had received by the foreign jurisdiction....