Lawyer Disciplinary Bd. v. Hart

• Decision Date: 09 June 2015
• Docket Number: Nos. 13–0748,14–0349.,s. 13–0748
• Citation: 235 W.Va. 523,775 S.E.2d 75
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner, v. David S. HART, Respondent.
• Court: West Virginia Supreme Court

235 W.Va. 523

775 S.E.2d 75

LAWYER DISCIPLINARY BOARD, Petitioner

v.David S. HART, Respondent.

Nos. 13–0748

14–0349.

Supreme Court of Appeals of West Virginia.

Submitted May 12, 2015.

Decided June 9, 2015.

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

David S. Hart, Beckley, WV, Respondent, pro se.

Opinion

DAVIS, Justice:

The Lawyer Disciplinary Board instituted these consolidated lawyer disciplinary proceedings against the respondent, David S. Hart (“Mr. Hart”). The disposition recommended by the Hearing Panel Subcommittee (“HPS”) of the Lawyer Disciplinary Board included a one-year suspension of Mr. Hart's law license, in addition to other recommended sanctions. The Office of Disciplinary Counsel (“ODC”) disagreed with the length of the proposed suspension and, ultimately, recommended a two-year suspension of Mr. Hart's law license, along with the other penalties as suggested by the HPS. Based upon this Court's review of the record submitted, the ODC's brief and argument,¹ and the applicable legal precedent, this Court disagrees with the length of the suspension recommended by both the HPS and the ODC. Instead, due to the egregious and repetitive nature of Mr. Hart's misconduct, this Court imposes a three-year suspension of Mr. Hart's law license and, further, adopts, with one addition, the remaining sanctions recommended by the HPS.

I.FACTUAL AND PROCEDURAL HISTORY

Mr. Hart has practiced law since his admission to the West Virginia State Bar in 1999. His legal career has been focused in Beckley, West Virginia. This Court's review consists of two separate disciplinary cases that were filed against Mr. Hart.

The first Statement of Charges was filed with this Court on July 30, 2013, and was designated with Supreme Court Number 13–0748. This first case consisted of complaints from six of Mr. Hart's clients. A hearing was held, testimony was elicited from Mr. Hart and the six complainants, and evidence was submitted.

A second case arose prior to the HPS's issuance of a report and recommended disposition on the first case. The second Statement of Charges was filed with this Court on April 11, 2014, and was docketed as Supreme Court Number 14–0349. It included complaints from one of Mr. Hart's clients. The HPS heard evidence from both Mr. Hart and the complainant.

A. Complaints Before ODC and Findings by the HPS

The HPS, with agreement of the parties, determined that it would file one report and recommended disposition to cover both proceedings. The combined recommendation report was filed with this Court on January 20, 2015. Thus, both cases are considered in this Opinion, and a brief summary of the underlying complaints is included herein.

1. No. 13–0748: Complaint of Greta J. Walker. Ms. Walker retained Mr. Hart to represent her in a divorce case; one issue was the distribution of a 401(k) account held by Ms. Walker's former husband. A temporary order was issued in the divorce case on or about August 27, 2007, prohibiting both parties from making “any withdrawal from any retirement account, 401(k), pension or other such retirement account held by that party and in that party's name as a result of any period of employment during the parties' marriage....” Ms. Walker alleged that Mr. Hart failed to forward this order “freez[ing]” the account. The final order stated that Ms. Walker was

entitled to an equitable distribution of the [ex-husband's] 401(k) account, with [Ms. Walker] being entitled to receive an amount equal to one-half of the money or assets held in the 401(k) account at the time of the parties' separation on June 2, 2007. Counsel for [Ms. Walker] shall be responsible for the preparation of a Qualified Domestic Relations Order [ (“QDRO”) ] necessary for the division of the [ex-husband's] 401(k).

Ms. Walker contended that Mr. Hart failed to prepare the QDRO; therefore, she did not receive her equitable share from the 401(k).

Ms. Walker contacted Mr. Hart on numerous occasions, but he did not return her telephone calls. She attempted to obtain information about the matter from the court system, but was repeatedly told to contact her attorney. By letter dated October 28, 2011, ODC sent Mr. Hart a copy of the complaint and directed him to file a response to the ethics complaint within twenty days. After receiving no response, on December 7, 2011, ODC sent a second letter by certified and first class mail directing Mr. Hart to file a response by December 20, 2011, and advising him that his failure to do so may result in a subpoena duces tecum being issued for his appearance at ODC for a sworn statement, or the allegations in the complaint would be deemed admitted and the matter would be referred to the Investigative Panel of the Lawyer Disciplinary Board. This letter was delivered on December 8, 2011. Thereafter, on December 22, 2011, Mr. Hart requested an additional ten days to provide his response, and his request was granted.

On January 3, 2012, Mr. Hart provided a verified response to the complaint, stating that Ms. Walker was to provide a copy of the temporary order to the investment account holder. After the final order was issued, Mr. Hart stated he attempted to prepare the QDRO, but encountered problems; however, he was unable to recall any specifics and had no notes or correspondence. Mr. Hart stated he would contact the investment holder to obtain information regarding the account and would forward that information upon its receipt.

On March 15, 2012, ODC requested a status update from Mr. Hart regarding his progress in completing the QDRO, as well as copies of any correspondence directed to the account holder. After receiving no response from Mr. Hart, on May 22, 2012, ODC again requested a status update and advised Mr. Hart that the request was a lawful demand for information within the meaning of Rule 8.1(b) of the West Virginia Rules of Professional Conduct. Mr. Hart, again, failed to respond. A subpoena duces tecum was issued for Mr. Hart's appearance at ODC on August 30, 2012, to give a sworn statement concerning this matter.

At his August 30, 2012, appearance, Mr. Hart maintained he had informed Ms. Walker that she needed to provide the temporary order to the account administrator because she had the information regarding the account. Further, Mr. Hart said one of his assistants had been working on this matter; however, the assistant left his employment in March 2012. When he reviewed the file, Mr. Hart realized that the QDRO had not been entered and that he would submit it to the Court and to the ex-husband's attorney. When questioned about his lack of response to ODC, Mr. Hart admitted “there's no good reason why I didn't [respond].”

On November 7, 2012, Ms. Walker notified ODC that Mr. Hart did submit the QDRO, but then she received a letter from the investment holder indicating there were no investments with that company. Ms. Walker was advised that the account was with a different holder. Ms. Walker attempted to contact Mr. Hart to advise him of this information, but she was unable to talk with him because he did not return her calls. On December 17, 2012, a copy of Ms. Walker's letter was forwarded to Mr. Hart, and a response was requested within ten days. Mr. Hart did not respond. On or about January 17, 2013, ODC again requested a reply to Ms. Walker's letter. No response was received.

The HPS found that Mr. Hart violated several of the West Virginia Rules of Professional Conduct² (“Rule” or “the Rules”). Specifically, in Ms. Walker's complaint, it was found that Mr. Hart failed to work diligently in violation of Rule 1.3,³ and failed to communicate with Ms. Walker as required by Rules 1.4(a) and (b).⁴ Lastly, the HPS concluded that Mr. Hart violated Rule 8.1(b)⁵ when he failed to respond to ODC's requests for information.

2. No. 13–0748: Complaint of Orban H. Schlatman. In 2010, Mr. Schlatman and his wife retained Mr. Hart to appeal Mr. Schlatman's criminal conviction for second degree sexual assault following a jury trial. They paid a fee of $7,500.00 to Mr. Hart. Mr. Hart filed an appeal on or about May 26, 2011, which was untimely. This Court remanded the matter to the circuit court to “promptly resentence [Mr. Schlatman] for purposes of appointment of counsel and the filing of an appeal[.]” Mr. Schlatman was resentenced on October 19, 2011.

Mr. Schlatman filed his complaint against Mr. Hart on February 24, 2012, alleging that the appeal had not been perfected. Mr. Schlatman stated that Mr. Hart told them that the appeal had been filed; however, when he or his wife contacted the Supreme Court, they were informed that an appeal had not been filed. By letter dated February 27, 2012, ODC sent Mr. Hart a copy of the ethics complaint and directed him to file a response within twenty days. After receiving no response, on April 13, 2012, ODC sent a second letter by certified and first class mail directing Mr. Hart to file a response by April 25, 2012, and advising him that his failure to do so may result in a subpoena duces tecum being issued for his appearance at ODC for a sworn statement, or the allegations in the complaint would be deemed admitted. Mr. Hart received this letter on or about April 17, 2012; and, on May 3, 2012, Mr. Hart provided a verified response. He acknowledged that he missed the first deadline for filing an appeal but had filed a motion with the Supreme Court to extend the time frame to file the petition. Mr. Schlatman was resentenced for a second time, and Mr. Hart filed a notice of appeal. Mr. Hart said he later realized that the notice should have been filed with the Supreme Court. He then filed the notice with this Court along with a motion to extend time. At the time he filed his response with ODC, Mr. Hart indicated that he had not yet received any response from the Supreme Court regarding his motion.

On June 25, 2012, Mr. Schlatman informed ODC that Mr. Hart had misrepresented the status of the appeal....