Lawyer Disciplinary Bd. v. Askin

• Decision Date: 15 July 1998
• Docket Number: No. 23313., No. 22684
• Citation: 203 W.Va. 320,507 S.E.2d 683
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Complainant, v. Steven M. ASKIN, a Member of the West Virginia State Bar, Respondent. OFFICE OF LAWYER DISCIPLINARY COUNSEL, Petitioner, v. Steven M. ASKIN, an Inactive Member of the West Virginia State Bar, Respondent.

507 S.E.2d 683

203 W.Va. 320

LAWYER DISCIPLINARY BOARD, Complainant, v. Steven M. ASKIN, a Member of the West Virginia State Bar, Respondent.

OFFICE OF LAWYER DISCIPLINARY COUNSEL, Petitioner, v. Steven M. ASKIN, an Inactive Member of the West Virginia State Bar, Respondent.

Nos. 22684, 23313.

Supreme Court of Appeals of West Virginia.

Submitted March 24, 1998.

Decided July 15, 1998.

Sherri D. Goodman, Esq., Chief Lawyer Disciplinary Counsel, Charleston, West Virginia.

Michael C. Allen, Esq., Charleston, West Virginia, Attorney for Steven M. Askin.

PER CURIAM:¹

In consolidated but unrelated cases regarding appropriate discipline for attorney Steven M. Askin, this Court has been requested to annul Mr. Askin's law license based upon his criminal contempt conviction and to impose sanctions based upon Mr. Askin's failure to maintain complete records of trust account monies, commingling funds, and failure to pay client money in his possession promptly to an investigator. Upon review of the record and the arguments of counsel, we adopt the recommendations regarding discipline.

I. CRIMINAL CONTEMPT

During a 1994 trial of Mr. Mark McNulty in Federal District Court, Northern District of West Virginia, Mr. Askin was called as a witness² to testify concerning cocaine transactions with defendants, two of whom had been his clients. Mr. Askin refused to answer questions despite the court's grant of immunity. Mr. Askin was thereafter charged with criminal contempt for refusal to answer, and he pled guilty to one count of criminal contempt on May 22, 1995. He was sentenced to seven months incarceration, to be followed by three years of supervised release.³

The Office of Disciplinary Counsel (hereinafter "ODC") found that Mr. Askin had been convicted of a crime reflecting adversely on his honesty, trustworthiness, or fitness as a lawyer within the meaning of Rule of Lawyer Disciplinary Procedure 3.18(a)⁴ and Rule of Professional Conduct 8.4(b)⁵; that Mr. Askin illegally used cocaine, participated in criminal conduct with his clients, placed his own interests before those of his clients, and engaged in contumacious behavior before the United States District Court.

This Court granted Mr. Askin's request for a mitigation hearing; however, in lieu of an evidentiary hearing, the parties submitted documents and deposition testimony. Mr. Askin introduced the testimony of five lawyers, indicating Mr. Askin's reputation as an excellent criminal defense lawyer. Subsequent to the mitigation hearing, the ODC recommended the annulment of Mr. Askin's law license, effective January 30, 1996, supervised practice for two years should Mr. Askin seek reinstatement, and the payment of costs of disciplinary proceedings.

In syllabus point two of Committee on Legal Ethics v. Six, 181 W.Va. 52, 380 S.E.2d 219 (1989), we explained that "[w]here there has been a final criminal conviction, proof on the record of such conviction satisfies the Committee on Legal Ethics' burden of proving an ethical violation arising from such conviction." See also Office of Lawyer Disciplinary Counsel v. Tantlinger, 200 W.Va. 542, 490 S.E.2d 361 (1997). In syllabus point three of Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), we stated:

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 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 judgment. 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.

Rule 3.16 of the 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 or 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.

In Committee on Legal Ethics v. Folio, 184 W.Va. 503, 401 S.E.2d 248 (1991), this Court emphasized that a conviction for conspiracy to obstruct justice "strikes at the very essence of the integrity of our legal system." 184 W.Va. at 508, 401 S.E.2d at 253. Mr. Askin's criminal contempt conviction likewise offends the essence of the integrity of the legal system. Mr. Askin contends that his conviction for criminal contempt should be considered a misdemeanor and was classified as a felony by the lower court only for purposes of sentencing. The classification of the crime is irrelevant for purposes of invoking Rule 3.18 of the Rules of Lawyer Disciplinary Procedure. The issue is simply, as expressed in the rule, whether the crime adversely reflects upon the lawyer's honesty, trustworthiness or fitness as a lawyer. Mr. Askin, despite his attempts to rationalize his behavior, overtly disobeyed an order of the United States District Court, and he thereafter pled guilty to criminal contempt. In the mitigation hearing, Mr. Askin made various contentions surrounding his conviction for criminal contempt, including the assertion that it should be treated only as a misdemeanor violation; that no finding was made that his failure to testify actually obstructed justice; that the ODC failed to prove that he used cocaine with clients;⁶ that the sentencing judge did not find that he counseled his clients in avoiding detection; and that he did not exhibit a lack of candor.

In formulating appropriate sanctions for professional infractions, 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). In syllabus point two of In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970), we reasoned 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 syllabus point five of Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989), we stated as follows:

"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." Syllabus Point 3, Committee on Legal Ethics v. Walker, , 358 S.E.2d 234 (1987).

Based upon our review of the record and the arguments of counsel, we find that annulment is the proper sanction in this matter, and consistent with the recommendations of the ODC, we annul Mr. Askin's license to practice law and further order that Mr. Askin's practice be supervised for two years should he be granted reinstatement. Mr. Askin shall also pay the costs of the disciplinary proceedings against him.

II. HEWETT COMPLAINT

In the separate matter, the Lawyer Disciplinary Board (hereinafter "Board") charges that Mr. Askin failed to maintain complete records of trust account monies, commingled funds, and failed to pay client money in his possession promptly to an investigator, in violation of Rule 1.15(a) of the West Virginia Rules of Professional Conduct.⁷ Mr. Askin had been retained to represent Mr. Joseph Nazelrod in a murder prosecution, and Mr. Allen Hewett had been hired as a private investigator. Mr. Hewett subsequently filed an ethics complaint, alleging that Mr. Askin had failed to pay Mr. Hewett for the costs of the investigation despite the fact that Mr. Askin had already been paid by the client for the costs of the investigation by Mr. Hewett.

The Office of Disciplinary Counsel retained the services of accountant David Diehl to review Mr. Askin's...