Lawyer Disciplinary Bd. v. Sturm

• Decision Date: 07 April 2016
• Docket Number: 15–0009.,Nos. 14–0749,s. 14–0749
• Citation: 237 W.Va. 115,785 S.E.2d 821
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. Heidi M. Georgi STURM, Respondent.

237 W.Va. 115

785 S.E.2d 821

LAWYER DISCIPLINARY BOARD, Petitioner

v.Heidi M. Georgi STURM, Respondent.

Nos. 14–0749

15–0009.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 23, 2016.

Decided April 7, 2016.

Jessica H. Donahue Rhodes, Esq., Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, WV, for Petitioner.

Heidi M. Georgi Sturm, Esq., Fairmont, WV, Respondent, Pro se.

WORKMAN, Justice:

This lawyer disciplinary proceeding involves two separate Statements of Charges¹ issued against the Respondent Heidi M. Georgi Sturm by the Investigative Panel of the Lawyer Disciplinary Board (“the LDB”). The LDB's Hearing Panel Subcommittee (“the HPS”) determined that Ms. Sturm committed violations of the West Virginia Rules of Professional Conduct² in connection with each action filed against her. The HPS recommended as sanctions for the Brown/Wright–Ochoa case that Ms. Sturm be reprimanded, subjected to supervised practice for a period of two years, required to refund the retainer fee, and required to pay the costs of the disciplinary proceeding. The HPS recommended as sanctions for the Greynolds case that Ms. Sturm be reprimanded and pay the costs of the disciplinary proceedings. Pursuant to Rule 3.12 of the West Virginia Rules of Lawyer Disciplinary Procedure,³ the Court did not concur with the recommended disposition of the HPS in the two lawyer disciplinary actions and scheduled oral argument. The Court has before it the recommendations of the HPS, the parties' briefs and oral arguments, and all matters of record. Based upon our review, we find clear and convincing evidence to support the factual findings of the HPS.⁴ We disagree, however, with the HPS's recommended sanctions of reprimand for each case and, accordingly, impose a ninety-day suspension of Ms. Sturm's law license and adopt the remaining sanctions recommended by the HPS.

I. FACTUAL AND PROCEDURAL HISTORY

Ms. Sturm has been a practicing member of the West Virginia State Bar since her admission on October 9, 2003. Ms. Sturm's conduct at issue in the disciplinary proceeding occurred while she was practicing in Fairmont, West Virginia. The two cases at issue are briefly discussed below.

A. Brown/Wright–Ochoa Case

On August 17, 2010, Ms. Laverne G. Wright–Ochoa met with Ms. Sturm about retaining her to represent Ms. Wright–Ochoa's son, Lael Brown, who was incarcerated. Ms. Wright–Ochoa wanted to institute a habeas corpus proceeding for her son. On August 23, 2010, Ms. Sturm mailed Ms. Wright–Ochoa an “Attorney–Client Hourly and/or Flat Fee Agreement.” That agreement provided for Ms. Wright–Ochoa to pay Ms. Sturm a general retainer of $5,000. On August 27, 2010, Ms. Wright–Ochoa signed the retainer agreement and returned it to Ms. Sturm. The record indicates that Ms. Wright–Ochoa gave Ms. Sturm the full retainer amount of $5,000 in three different installments agreed upon by the parties.⁵

Between August 27, 2010, and September 10, 2010, Ms. Wright–Ochoa emailed Ms. Sturm about the time frames for filing a petition for habeas corpus for her son and sent her documents regarding Mr. Brown's case. When Ms. Sturm failed to respond to her inquiries, Ms. Wright–Ochoa sent Ms. Sturm a letter on September 22, 2010, regarding Ms. Sturm's failure to communicate with her and Mr. Brown. Ms. Wright–Ochoa then attempted to contact Ms. Sturm. Ms. Sturm responded to her that same day by email, stating that she had been out of town for court and could not return any telephone calls. Ms. Sturm sent Ms. Wright–Ochoa another email two days later, indicating that she had received Ms. Wright–Ochoa's messages, but had been unable to respond to her. She further stated in the email that she should have the petition for habeas corpus completed “by the beginning of next week” and that she would need to review the petition with Mr. Brown in order to obtain his signature before she could file it in the circuit court.

Ms. Wright–Ochoa emailed Ms. Sturm the day after receiving Ms. Sturm's second email. Ms. Wright–Ochoa told Ms. Sturm that she had not received a signed copy of the fee agreement and she requested to meet with her on October 1, 2010, because Ms. Wright–Ochoa would be in town for a hearing concerning Mr. Brown. Ms. Wright–Ochoa also sent the attorney additional information about Mr. Brown's case.

On September 28, 2010, Ms. Sturm responded to Ms. Wright–Ochoa's email, indicating that she would leave a copy of the signed fee agreement for her to pick up. Ms. Sturm was also going to leave a copy of the petition for habeas corpus for Ms. Wright–Ochoa's review and another copy for Ms. Wright–Ochoa to provide to Mr. Brown for review. On that same day, Ms. Wright–Ochoa sent a letter to Ms. Sturm, again requesting a meeting as they had not met since the initial consultation in August.

In an email that was sent the next day, September 29, 2010, Ms. Wright–Ochoa informed Ms. Sturm that she would be unable to stop by her office prior to meeting with Mr. Brown. Ms. Wright–Ochoa also sent Ms. Sturm additional documents about the case and expressed to Ms. Sturm that she was upset because she wanted to meet with Ms. Sturm. The same day, Ms. Sturm sent Mr. Brown a copy of the petition for habeas corpus that she had prepared for him to review. Ms. Sturm had not visited Mr. Brown, but stated in the communication included with the petition that she was going to visit him soon to discuss the petition with him and have him sign it.

On October 1, 2010, Ms. Wright–Ochoa again emailed Ms. Sturm asking for a meeting as they had not meet since the original meeting. Three days later, Ms. Sturm answered Ms. Wright–Ochoa's email and stated that she had other clients and matters to work on and that she did “not have time to sit at [her] desk waiting for emails from” Ms. Wright–Ochoa. Ms. Sturm further indicated that the process with the habeas petition could take some time and that she would meet with her the next time she was in town.

On October 4, 2010, Ms. Wright–Ochoa received a draft of the habeas petition. She made comments and sent them back to Ms. Sturm. Ms. Sturm indicated to Ms. Wright–Ochoa that she would make various changes and send her a copy of the final petition within a few weeks. Throughout the remainder of October, there were various communications between Ms. Sturm and Ms. Wright–Ochoa about setting up another appointment and sending a filing fee for the petition, which Ms. Wright–Ochoa agreed to do and did do⁶ at the end of the month.

In early November, there were additional communications between Ms. Wright–Ochoa and Ms. Sturm, including Ms. Wright–Ochoa sending Ms. Sturm additional documents about her Mr. Brown's case and requesting a meeting so that Ms. Sturm could explain the matter to her son's father. Around November 11, 2010, Ms. Sturm indicated in an email to Ms. Wright–Ochoa that the petition for habeas corpus would be ready by the end of the next week.

In a November 24, 2010, email to Ms. Sturm, Ms. Wright–Ochoa inquired about whether Ms. Sturm had visited Mr. Brown or completed the petition. Ms. Sturm responded that she was sorry that she had not provided the petition to Ms. Wright–Ochoa sooner, but her children had been sick and she had been dealing with several family friends who had passed away.

Another month passed during which Ms. Wright–Ochoa sent Ms. Sturm more documents about her son's case, as well as requested information about the petition. Ms. Sturm did not respond to Ms. Wright–Ochoa until January 25, 2011, when she emailed Ms. Wright–Ochoa. According to the email, Ms. Sturm's daughter needed surgery over the Christmas holiday and Ms. Sturm was still working on the petition—the petition that Ms. Sturm had told Ms. Wright–Ochoa would be completed before Thanksgiving.

On February 22, 2011, Ms. Wright–Ochoa informed Ms. Sturm that Mr. Brown was ineligible for parole. Then, during the first week of March, Ms. Wright–Ochoa inquired about the status of the petition for habeas corpus on two different occasions. Ms. Sturm failed to respond to the inquires until March 22, 2011, again telling Ms. Wright–Ochoa that the completed habeas petition “should” be competed by the end of the month.

Several month passed until July 12, 2011. By certified letter on that date from Ms. Wright–Ochoa to Ms. Sturm, Ms. Wright–Ochoa states that she had not heard from Ms. Sturm since March, that she had not received the habeas petition for Mr. Brown, and that Ms. Sturm had not visited Mr. Brown to get his input regarding the petition.

On that same date, Mr. Brown also sent a letter to Ms. Sturm requesting a refund of the $5,000 retainer that his mother had paid to her. Mr. Brown also indicated that he had not received any communication from Ms. Sturm since October of 2010, wherein she indicated that she would visit with him to go over the habeas petition. Mr. Brown also requested an accounting of the fees and itemization of costs. Another month passed and on August 2, 2011, Ms. Wright–Ochoa sent a second certified letter requesting refund of the unearned attorney fees and itemization of costs.

Finally, on August 18, 2011, Mr. Brown, pro se, filed a petition for habeas corpus in Monongalia County, West Virginia.

Ms. Wright–Ochoa and Mr. Brown went several more months without any communication from Ms. Sturm. On February 10, 2012, Ms. Wright–Ochoa called Ms. Sturm's office and discovered that Ms. Sturm's office phone was disconnected. Ms. Wright–Ochoa, upon discovering through another attorney that Ms. Sturm's office phone was back in service, made several phone calls to Ms. Sturm's office leaving messages, none of which were returned by the attorney.

After the passage of several more months with no communication from Ms. Sturm, on May 3, 2012, Ms. Wright–Ochoa and Mr. Brown filed complaints against the attorney with the Office of Disciplinary Counsel (“the ODC”). The complaints were opened for investigation and the ODC asked Ms. Sturm to file a response. On May 24, 2012, Ms. Sturm's...