Lawyer Disciplinary Bd. v. Turgeon, 25189.
| Decision Date | 08 December 2000 |
| Docket Number | No. 25189.,25189. |
| Citation | 557 S.E.2d 235,210 W.Va. 181 |
| Court | West Virginia Supreme Court |
| Parties | LAWYER DISCIPLINARY BOARD, Complainant, v. Marc P. TURGEON, a Member of the West Virginia State Bar, Respondent. |
Amie L. Johnson, Office of Disciplinary Counsel, Charleston, for complainant.
Marc P. Turgeon, Charleston, respondent pro se.
This is a lawyer disciplinary matter instituted by the petitioner, the Lawyer Disciplinary Board ("the Board"), against the respondent, attorney Marc P. Turgeon, pursuant to the West Virginia Rules of Lawyer Disciplinary Procedure. The Board alleged that the respondent repeatedly engaged in conduct that violated the West Virginia Rules of Professional Conduct in the course of representing three different clients. A Hearing Panel Subcommittee of the Lawyer Disciplinary Board conducted extensive hearings on the allegations against the respondent, and now recommends to this Court a number of sanctions against the respondent, including a recommendation that the respondent's license to practice law be suspended for a period of 2 years.
After a thorough review of the record and arguments of counsel, we agree with the findings and recommendations of the Board.
Rule 3.7 of the Rules of Lawyer Disciplinary Procedure states the standard of proof in a lawyer disciplinary matter quite clearly: "In order to recommend the imposition of discipline of any lawyer, the allegations of the formal charge must be proved by clear and convincing evidence." See Syllabus Point 1, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995). Our standard for reviewing recommendations of the Board regarding sanctioning a lawyer for ethical violations was set forth in Syllabus Point 3 of 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 [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 [Hearing Panel Subcommittee's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Hearing Panel Subcommittee's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.
We have also clearly expressed our role in attorney disciplinary proceedings:
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.
In devising suitable sanctions for attorney misconduct, we have recognized that "[a]ttorney disciplinary proceedings are not designed solely to punish the attorney, but rather to protect the public, to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the administration of justice." Lawyer Disciplinary Bd. v. Taylor, 192 W.Va. 139, 144, 451 S.E.2d 440, 445 (1994). We also asserted in Syllabus Point 2 of In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970), that "[d]isbarment of an attorney to practice law is not used solely to punish the attorney but is for the protection of the public and the profession." In addition to protecting the public and the profession, the discipline of an attorney also must serve as both instruction on the standards for ethical conduct and as a deterrence against similar misconduct to other attorneys. As we stated in Syllabus Point 3 of Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987):
In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.
With these standards in mind, we examine the charges against the respondent.
The Board alleged that the respondent engaged in misconduct during the representation of 3 separate clients: Douglas Gunnoe, Ronald Wooding, and James Ballard. During the course of 4 separate days of testimony, the Board took evidence regarding these 3 representations. The Board then issued 36 pages of findings, legal conclusions, and recommended sanctions regarding the respondent.
In 1991, Douglas Gunnoe was serving a 5-to-18 year imprisonment sentence for second-degree murder, for stabbing to death a counselor whom he met in a substance abuse program. While on work release for the second-degree murder, Mr. Gunnoe met Alicia McCormick, a woman who performed domestic violence counselor duties at the work release center. Mr. Gunnoe was employed doing maintenance at the apartment complex in which Ms. McCormick resided. Ms. McCormick was stabbed to death with a knife in her apartment on or about July 20, 1991. Mr. Gunnoe was charged with the offense, and he admitted to the police certain details of the crime.1
The respondent was appointed to represent Mr. Gunnoe.
In the course of representing Mr. Gunnoe, the Board asserted that the respondent violated Rule 1.1 of the Rules of Professional Conduct, which states:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
The respondent had very little experience defending criminal cases, particularly serious cases such as the Gunnoe matter. Consequently, the circuit court appointed additional, more experienced lawyers to assist the respondent, but the other lawyers were unable to participate in Mr. Gunnoe's defense because the respondent would not adjust his schedule so that the other lawyers might help. The respondent told one of these lawyers that he should not be participating in Mr. Gunnoe's defense, because the lawyer believed Mr. Gunnoe was guilty.
Through the course of two trials,2 the respondent engaged in long and repetitious cross-examinations that did not extract information helpful to the defense. The circuit judge stopped the first trial three times, took Mr. Gunnoe and the respondent into his chambers, and advised Mr. Gunnoe of the judge's concerns that the Respondent was not representing him competently. When the first trial ended in a mistrial, the circuit judge removed the respondent as counsel because of his incompetence. Mr. Gunnoe and the respondent then consulted together at the counsel table, and the respondent apparently announced he would continue as Mr. Gunnoe's counsel, although not as court-appointed counsel.3
During the course of Mr. Gunnoe's trials, the respondent apparently proffered odd defense theories to the prosecutor. At one point, the respondent suggested that the prosecutor look at the case as a suicide— even though Ms. McCormick suffered a stab wound which penetrated her back and almost exited out her front, and there were five stab wounds in her chest. The respondent also suggested that the prosecutor take the police report, remove any references to Mr. Gunnoe, and submit it to the FBI profiling unit so that they could determine the "real murderer" —even though Mr. Gunnoe had confessed to portions of the crime.
On the basis of evidence such as this, the Board concluded that the respondent had violated Rule 1.1, and had failed to provide Mr. Gunnoe with competent representation.
Candor towards a Tribunal
The Board also alleged that the respondent violated Rule 3.3 in the Gunnoe case. Rule 3.3 states, in part:
During the preparations for Mr. Gunnoe's first trial, the respondent alleged various defense theories to the prosecutor and to other defense attorneys. He alleged that the victim's former fiance had committed the crime—even though he was on an airplane at the time. He alleged that a neighbor had committed the crime—even though the neighbor was away for a 2-week tour in the National Guard at the time.
At trial, the respondent proffered the defense that Mr. Gunnoe's wife had murdered Ms. McCormick. In a sworn statement to the Office of Disciplinary Counsel, the respondent admitted that he had first voiced to Mr. Gunnoe that Mrs. Gunnoe was the killer, and admitted that Mr. Gunnoe was not the first to raise this theory. The respondent recounted multiple discussions where Mr. Gunnoe kept giving false explanations for what happened. After hearing these alternate explanations, the respondent proposed that Mrs. Gunnoe was the true killer, and Mr. Gunnoe apparently agreed.
At both trials, the respondent questioned Mr. Gunnoe and elicited testimony that Mrs. Gunnoe had committed the crime.
After testimony began in the first trial, the respondent notified the police that he and/or the respondent's wife had discovered a pair of women's underwear near the apartment complex where the murder had occurred some 3 years earlier. The respondent asserted that the underwear belonged to Mrs. Gunnoe, and that it was stained with blood wiped from her body after...
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