Lawyer Disciplinary Bd. v. Aleshire

• Decision Date: 09 November 2012
• Docket Number: No. 35667.,35667.
• Citation: 736 S.E.2d 70,230 W.Va. 70
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. David A. ALESHIRE, Respondent.

230 W.Va. 70

736 S.E.2d 70

LAWYER DISCIPLINARY BOARD, Petitioner

v.David A. ALESHIRE, Respondent.

No. 35667.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 25, 2012.

Decided Nov. 9, 2012.

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 of the West Virginia State Bar v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

2. “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 of the West Virginia State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

Rachael L. Fletcher Cipoletti, Esq., Chief Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, WV, for Petitioner.

David A. Aleshire, Esq., Charleston, WV, Pro Se Respondent.

PER CURIAM:

This is a lawyer disciplinary proceeding brought against David A. Aleshire by the Office of Disciplinary Counsel (“the ODC”) on behalf of the Lawyer Disciplinary Board (“the Board”). A Hearing Panel Subcommittee of the Board determined that Mr. Aleshire violated ten Rules of Professional Conduct and recommended that a number of sanctions be imposed against him, including a recommendation that Mr. Aleshire be suspended from practicing law for one year.

This Court rejected the Board's recommended sanctions and ordered both parties to file briefs in this Court.¹ Having considered all matters of record, we find that Mr. Aleshire's egregious conduct warrants a three-year suspension from the practice of law. In addition to this three-year suspension, we adopt the other sanctions recommended by the Hearing Panel Subcommittee which are as follows: (1) that Mr. Aleshire pay restitution in the amount of $500.00 to Carol J. Harless, and provide proof of said restitution prior to petitioning for reinstatement of his law license; (2) that he comply with the duties of a suspended lawyer as outlined in Rule 3.28 of the Rules of Lawyer Disciplinary Procedure; (3) that he petition for reinstatement after serving his three-year suspension; (4) that he sit for and receive a passing score on the Multistate Professional Responsibility Exam prior to petitioning for reinstatement of his law license; (5) that he complete an additional twelve hours of continuing legal education in ethics prior to petitioning for reinstatement; (6) that he pay the costs incurred in this disciplinary proceeding; and (7) in the event that he successfully petitions to be reinstated to the practice of law, that he undergo two years of supervised practice by a member in good standing of the West Virginia State Bar whose practice includes tax and real estate matters.

I.Standard of Review: Disciplinary Actions

In Committee on Legal Ethics of the West Virginia State Bar v. McCorkle, 192 W.Va. 286, 289, 452 S.E.2d 377, 380 (1994), this Court took the opportunity to “resolve any doubt as to the applicable standard of judicial review” in lawyer disciplinary cases. 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 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.

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 of the West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), states: “[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.”

Rule 3.7 of the West Virginia Rules of Lawyer Disciplinary Procedureprovides 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 Syllabus Point 2, Lawyer Disciplinary Bd. 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 3.15.²

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). With these standards in mind, we proceed to examine Mr. Aleshire's conduct.

II.Factual Background, Charged Violations and Analysis

Mr. Aleshire is a lawyer practicing in Charleston, West Virginia. He was admitted to the West Virginia State Bar in May 1995. On July 7, 2010, a two-count statement of ethical violations was filed against him. In this opinion we will (1) review the two complaints filed against Mr. Aleshire, (2) consider the aggravating and mitigating factors that are applicable, and (3) review the Hearing Panel Subcommittee's recommended sanctions. We begin with the complaint filed by Nedra Vance.

Count I—Complaint of Nedra Vance

In 2004, Nedra Vance hired Mr. Aleshire to handle her personal and business taxes,³ and to provide her with legal advice. Mr. Aleshire did not prepare a letter of engagement concerning the scope of the work he was to perform for Ms. Vance. Ms. Vance provided Mr. Aleshire with all of the tax documentation that he requested, including the original deed to her property. Ms. Vance testified that Mr. Aleshire stopped communicating with her in 2007. She attempted to call him numerous times and left a number of messages that were not returned. In addition to these phone calls, Ms. Vance wrote Mr. Aleshire letters, went to his residence, and left a note on his front door asking him to contact her. Mr. Aleshire failed to respond to any of these requests. By letter dated November 21, 2008, Ms. Vance requested that Mr. Aleshire return all of her documents so that she could retain a Certified Public Accountant (“C.P.A.”) to handle her tax matters. This letter was returned to Ms. Vance and marked “unclaimed.”

In December 2008, the Internal Revenue Service informed Ms. Vance that her taxes for the previous year had not been paid and that she needed to take immediate action to address this situation. After receiving this notice, Ms. Vance hired a C.P.A. who attempted to contact Mr. Aleshire to secure Ms. Vance's tax documents. Mr. Aleshire did not respond to the C.P.A. and he did not return the tax documents to Ms. Vance.

On January 28, 2009, Ms. Vance filed a complaint against Mr. Aleshire with the Office of Disciplinary Counsel. On January 29, 2009, the ODC sent a letter to Mr. Aleshire directing him to respond to Ms. Vance's complaint within twenty days. Mr. Aleshire did not respond to this letter. The ODC sent Mr. Aleshire another letter on March 10, 2009, directing him to respond to the complaint within ten days. This letter was returned to the ODC as “unclaimed” on March 31, 2009. The ODC then attempted to contact Mr. Aleshire by telephone and left numerous voice mail messages for him. Mr. Aleshire did not reply to any of these messages. On June 23, 2009, the ODC sent Mr. Aleshire another letter directing him to respond to the complaint. This letter was also returned to the ODC as “unclaimed.”

On September 17, 2009, the ODC requested the issuance of a subpoena duces tecum to take the sworn statement of Mr. Aleshire. The Kanawha County Sheriff's Office returned the subpoena to the ODC on October 22, 2009, and indicated that it was unable to serve Mr. Aleshire. The Sheriff's Office informed the ODC that Mr. Aleshire was not at his residence or was not answering his door, and that he did not return their telephone messages. The ODC requested the issuance of a second subpoena for Mr. Aleshire on November 3, 2009, and hired a process server to attempt the service of process. The process server, John Weaver, made five attempts to serve Mr. Aleshire at his residence and left him two voice mail messages. These attempts were also unsuccessful.⁴

On February 23, 2011, a Hearing Panel Subcommittee of the Lawyer Disciplinary Board conducted a hearing in this matter. Ms. Vance testified before the Subcommittee that she filed her complaint because of Mr. Aleshire's failure to return her tax documents to her. As of the date of this hearing, Ms. Vance stated that Mr. Aleshire still had not returned the tax documents to her. The Hearing Panel Subcommittee determined that Mr. Aleshire “failed to abide by Complainant's (Ms....