Lawyer Disciplinary Bd. v. Grindo

• Decision Date: 20 March 2020
• Docket Number: No. 18-0869,18-0869
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. Daniel R. GRINDO, a member of the West Virginia State Bar, Respondent

842 S.E.2d 683

LAWYER DISCIPLINARY BOARD, Petitioner

v.Daniel R. GRINDO, a member of the West Virginia State Bar, Respondent

No. 18-0869

Supreme Court of Appeals of West Virginia.

Submitted: March 4, 2020

Filed: March 20, 2020

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

Eric B. Snyder, Esq., Steven R. Ruby, Esq., Bailey & Glasser, LLP, Charleston, West Virginia, Attorneys for Respondent.

HUTCHISON, Justice:

A Hearing Panel Subcommittee ("HPS") of the Lawyer Disciplinary Board has reported that the respondent Daniel R. Grindo, a member of the West Virginia State Bar, violated multiple provisions of the West Virginia Rules of Professional Conduct (sometimes "RPC" or "Rules") by overbilling the West Virginia Public Defender Services ("PDS") and by providing false information to presiding circuit courts, the PDS, and the Office of Lawyer Disciplinary Counsel ("ODC"). The HPS recommends that our Court adopt its findings of fact and conclusions of law and then impose a sanction to include a two-year suspension from the practice of law; additional continuing legal education; payment of the costs of the disciplinary proceeding; and a restriction on the respondent's future practice of law.

After a thorough review of the record developed before the HPS, and upon a consideration of the parties’ briefs and oral argument, we conclude that the respondent has violated multiple Rules of Professional Conduct and adopt the HPS's recommended sanction.

I. Facts and Procedural Background

The respondent has been a licensed member of the West Virginia State Bar since September 2002. On October 9, 2018, the Investigative Panel of the Lawyer Disciplinary Board issued a formal Statement of Charges against the respondent for misconduct surrounding vouchers the respondent submitted for payment of his time and expenses on court-appointed representations of indigent criminal defendants. The HPS held an evidentiary hearing on February 25, 2019, where the following information was adduced.

Between 2013 and 2015, a large portion of the respondent's private practice of law was court-appointed criminal defense work. To be reimbursed for their time and expenses by the State of West Virginia, lawyers in private practice who perform court-appointed criminal defense work must comply with the provisions of West Virginia Code § 29-21-13a (2008).¹ This statute requires the attorney to "maintain detailed and accurate records of the time expended and expenses incurred on behalf of eligible clients[.]" Id. § 13a(a) (emphasis added). Claims for reimbursement in each case are made on vouchers that are first submitted to the appointing circuit court judge for approval, and are then forwarded to the PDS for review and payment. Id. In their vouchers, lawyers must "specifically set forth the nature of the service rendered[.]" Id. § 13a(g). Pursuant to this statute, attorneys are compensated by the PDS for "actual and necessary time expended for services performed and expenses incurred[.]" Id. § 13a(d) (emphasis added).

West Virginia Code § 29-21-13a also specifies rates of compensation. Pursuant to the 2008 version of the statute, an attorney's work performed outside of court was compensated at the rate of forty-five dollars per hour; an attorney's work performed in court was compensated at sixty-five dollars per hour; and a paralegal's work performed outside of court was compensated at the paralegal's regular rate of hourly compensation not to exceed twenty dollars per hour. Id. § 13a(d).²

By early 2015, the PDS had acquired new computer software and sufficient electronic data to generate reports that tracked payments to individual lawyers for the time billed on any particular day, regardless of which case or cases the lawyer reported working on. These reports revealed that several lawyers, including the respondent, had submitted vouchers containing information that was obviously wrong. The PDS discovered that between January 1, 2013 and early 2015, the respondent submitted vouchers claiming that he had worked on appointed criminal cases for more than thirty hours in a single day on five different dates; more than twenty-four hours a day on sixteen dates; more than twenty hours a day on forty-seven dates; and more than fifteen hours a day on ninety-six dates. In addition, the PDS determined that the respondent had submitted duplicate mileage claims constituting $1,927.86 in overpayments.

PDS Executive Director Dana Eddy, Esq., contacted the respondent about his vouchers. The respondent cooperated with Mr. Eddy, and on June 4, 2015 they entered into a "Conciliation Agreement" where the respondent admitted that he had billed work performed by his non-attorney staff at the attorney rate. The Conciliation Agreement provides, inter alia , as follows:

WHEREAS, PDS's audit of the vouchers submitted by Grindo found that, since January 1, 2013, Grindo has exceeded thirty (30) hours of billing on five (5) dates; twenty-four (24) hours of billing on sixteen (16) dates; twenty (20) hours of billing on forty-seven (47) dates; and fifteen (15) hours of billing on ninety-six (96) dates;

WHEREAS , PDS's audit did not include the time that was billed by Daniel K. Armstrong [another lawyer in the respondent's office] for these same dates;

WHEREAS , Grindo willingly met with PDS to discuss the findings in the audit;

WHEREAS , Grindo disclosed that the business model for the law firm consisted of the utilization of non-attorneys to deliver legal services to clients under the supervision and direction of attorneys and that the time devoted by the non-attorneys to the performance of legal tasks was billed at the rates of compensation for "attorney work" under the Governing Act because, Grindo claims that, otherwise, his office loses money when using staff to perform such services at the rates permitted for paralegal services under the provisions of the Governing Act;

WHEREAS , Grindo's recordkeeping assures the recording and documenting of services contemporaneously with the performance of the services and accurately reflects the personnel who performed the tasks related to these services and the time expended in performing the tasks;

WHEREAS , Grindo explained that he consulted with other members of the bar when he commenced his legal practice and, accordingly, Grindo believed that his billing procedures were acceptable to PDS;

WHEREAS , Grindo asserts that PDS's guidelines are not compiled in a manner that readily permits compliance by panel attorneys;

WHEREAS , Grindo believes that the circuit court understood his business model and understood the method by which the compensation for handling an eligible client's case was calculated[.]

Thus, the respondent admitted that his "business model" was to report to circuit court judges and to the PDS that work by his nonlawyer staff was performed by himself, and then to bill for this work at the higher lawyer rate.³ Although he asserted in the Conciliation Agreement that judges understood his billing practice, he presented no evidence during the HPS hearing to prove that any judge, let alone a judge who had approved one of the vouchers at issue, was aware of this practice. The respondent signed the Conciliation Agreement in two places.

As part of the Conciliation Agreement, the respondent agreed to reimburse the PDS by accepting a one-third reduction of the total amount of fees claimed on all of his vouchers that were being held by the PDS at that time. The total amount of this reduction amounted to $40,425.90. Mr. Eddy explained that this was a negotiated settlement; he testified that "if we had grossed it up to account for all historical [improper] billing, it would've exceeded the amount of the vouchers that we were holding and I'm quite sure he [the respondent] didn't have the wherewithal to pay it." In addition, the respondent agreed to directly repay the PDS the $1,927.86 in duplicate mileage claims within one calendar month. Thereafter, the PDS adjusted its voucher payments to the respondent to account for the one-third reduction in fees. However, the respondent did not repay the $1,927.26 until May 2017, almost two years after it was due.

Mr. Eddy testified that although he believed the respondent and his employees had performed the work, it was his opinion that these billing practices nonetheless constituted a form of fraud as well as a violation of West Virginia Code § 29-21-13a. He also explained that overbilling of PDS by various attorneys had contributed to a negative opinion held by the Legislature and other State officials, which in turn impeded Mr. Eddy's ability to convince the Legislature to increase the hourly rates for all court-appointed attorneys.

The Conciliation Agreement also required the respondent to seek independent legal counsel on the question of whether his conduct should be reported to the ODC. The Conciliation Agreement provided that if within one month the respondent had not notified the PDS that he had either self-reported to the ODC or received advice that reporting was not required, then Mr. Eddy would determine whether to make such a report.⁴ The respondent wrote Mr. Eddy on August 10, 2015, and said "I am self-reporting to ODC. This should be complete by the end of the week." Mr. Eddy testified that when he later spoke with the respondent, the respondent said that he had already reported this matter to the ODC. However, the HPS found no record that the respondent ever reported this matter to the ODC.⁵ Mr. Eddy believes that the respondent lied about self-reporting in order to dissuade Mr. Eddy from filing an ethics complaint. When the ODC began investigating this matter, the respondent claimed that he did not recall ever telling Mr. Eddy that he had already self-reported. After hearing the evidence and weighing witness credibility, the HPS determined that the respondent's claim about this lack of...