Lawyer Disciplinary Bd. v. Conner

• Decision Date: 05 February 2015
• Docket Number: No. 13–0522.,13–0522.
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. April D. CONNER, Respondent.
• Court: West Virginia Supreme Court

234 W.Va. 648

769 S.E.2d 25

LAWYER DISCIPLINARY BOARD, Petitioner

v.April D. CONNER, Respondent.

No. 13–0522.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 27, 2015.

Decided Feb. 5, 2015.

Joanne M. Vella Kirby, Esq. Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, WV, for Petitioner.

April D. Conner, Esq., West Union, WV, Respondent, Pro se.

Opinion

DAVIS, Justice:

The Office of Disciplinary Counsel (“the ODC”) instituted this lawyer disciplinary proceeding against the respondent, April D. Conner (“Ms. Conner”). The disposition recommended by the Hearing Panel Subcommittee (“HPS”) of the Lawyer Disciplinary Board, in which Ms. Conner acquiesced, included a thirty-day suspension of Ms. Conner's law license, in addition to other recommended sanctions. This Court did not agree with the proposed punishment and scheduled the case for oral argument. Thereafter, the ODC moved this Court to enhance the previously-requested sanctions because, in its opinion, additional aggravating factors had been committed since the HPS's recommendations. Based upon this Court's review of the record submitted, the ODC's brief and argument, and the applicable legal precedent, this Court finds clear and convincing evidence to support the factual findings of the HPS. However, we disagree with the HPS's recommended sanctions in regard to the length of the license suspension. Accordingly, we impose a ninety-day suspension of Ms. Conner's law license, and adopt the remaining sanctions as recommended by the HPS.

I.FACTUAL AND PROCEDURAL HISTORY

Ms. Conner has been a practicing member of the West Virginia State Bar since her admission in 1996. The behavior subject to this disciplinary proceeding occurred mainly while Ms. Conner was practicing law in Clarksburg, West Virginia. The underlying complaints are briefly described herein.

A. Complaint of Nicholas Robey

Ms. Conner was appointed to represent Nicholas Robey in a criminal matter. In May 2010, he was indicted for felony murder, conspiracy to commit burglary, and grand larceny. On August 5, 2010, Mr. Robey pled guilty to the offense of felony murder. As part of the plea agreement, the parties requested that the circuit court recommend mercy, which the circuit court declined to do at the sentencing hearing on August 2, 2011. Mr. Robey was sentenced to life imprisonment. On October 24, 2011, Mr. Robey filed a complaint with the ODC alleging that Ms. Conner failed to appeal his sentence, even though he asserts that he had expressed his desire to appeal. He also contended that Ms. Conner failed to communicate with him and his mother despite their repeated attempts to contact her. Further, Mr. Robey argued that Ms. Conner failed to comply with his requests during pre-sentencing and that she erred by making no contacts with his family to participate in his sentencing hearing.

The ODC sent a letter dated October 28, 2011, and a copy of Mr. Robey's complaint to Ms. Conner and asked her to file a response within twenty days. After receiving no response, the ODC sent a second letter dated December 12, 2011, by certified mail, directing Ms. Conner to file a response by December 28, 2011. Ms. Conner responded by letter on December 27, 2011, wherein she maintained that she and Mr. Robey had discussed the subject of an appeal, and, at all times, she had advised Mr. Robey that even if he received life without the recommendation of mercy, there would be no appeal. Ms. Conner also stated that she inquired of Mr. Robey whether his mother would attend his sentencing hearing to speak on his behalf and that Mr. Robey said that his mother did not have enough notice to make arrangements to travel from out of state to attend the hearing. Additionally, Ms. Conner explained that Mr. Robey's father attended the sentencing hearing but declined to address the circuit court. Lastly, Ms. Conner denied that she had inadequate communication with Mr. Robey during his case.¹

B. Complaint of The ODC

In 2006, Jonathan David Boatwright was found guilty of first degree sexual assault, sexual abuse by a custodian, and incest. He received a sentence of incarceration of thirty to seventy years. Mr. Boatwright's direct appeal to this Court was denied, and, on April 7, 2008, he filed a post-conviction petition for writ of habeas corpus and a motion for appointment of counsel. The Circuit Court of Doddridge County appointed counsel to represent Mr. Boatwright in that matter, and a supplemental petition was filed, which was refused on July 15, 2011. Thereafter, on August 11, 2011, Mr. Boatwright, pro se, filed a notice of appeal with this Court and a motion for appointment of appellate counsel with the circuit court. On March 19, 2012, Ms. Conner was appointed to represent Mr. Boatwright in the appeal of the circuit court's denial of his petition for a writ of habeas corpus.

This Court entered an amended scheduling order on April 23, 2012, directing Ms. Conner to perfect Mr. Boatwright's appeal by June 16, 2012. Ms. Conner failed to perfect the appeal, and, on July 9, 2012, the Office of the Attorney General filed a motion to dismiss Mr. Boatwright's case. This Court refused the motion to dismiss and ordered Ms. Conner to perfect Mr. Boatwright's appeal within ten days of her receipt of this Court's order or the appeal would be subject to dismissal and other sanctions. Again, Ms. Conner failed to perfect Mr. Boatwright's appeal. On September 6, 2012, this Court, on its own motion, proceeded to consider sanctions for Ms. Conner's failure to perfect Mr. Boatwright's appeal. This Court commanded and directed Ms. Conner to appear on October 17, 2012, to show cause as to why she should not be held in contempt for her failure to perfect the appeal unless sooner mooted by perfection of the appeal. By letter dated September 10, 2012, this Court asked that the ODC consider opening a complaint against Ms. Conner.

Ms. Conner failed to appear before this Court, as ordered, for the show cause hearing scheduled for October 17, 2012. Therefore, on October 18, 2012, this Court entered an order wherein it found Ms. Conner guilty of contempt by failing to perfect Mr. Boatwright's appeal and for failure to appear before this Court as ordered. This Court further stated that Ms. Conner could purge herself of contempt by properly perfecting the appeal within seven calendar days of receipt of this Court's order. Moreover, Ms. Conner was ordered to pay a fine of $250 per day for each day she continued to be in contempt for failure to perfect the appeal. On October 25, 2012, Ms. Conner filed Mr. Boatwright's petition for appeal and tendered a check in the amount of $1,500 for the fine imposed by this Court.

As a result of the request initiated by this Court, the ODC opened the instant complaint against Ms. Conner with her response due by October 11, 2012. One day after the response's due date, Ms. Conner called the ODC and requested an extension of time to respond. Her response deadline was moved to October 22, 2012. Again, Ms. Conner failed to answer. On October 24, 2012, the ODC sent a second letter, by certified mail, directing Ms. Conner to file a response no later than November 5, 2012, and again advising her of the possible sanctions involved for failing to respond. Ms. Conner responded on November 4, 2012, and stated that “while there are several explanations, there is truly no excuse for having [failed] to perfect the appeal on Mr. Boatwright's behalf in the time that passed.” She cited the fact that she is a solo practitioner with a busy caseload working in multiple counties; however, she acknowledged that “none of these things should have resulted in the missing of the deadlines in the Boatwright case as I did.”

C. Complaint of Shawna Drum

Ms. Conner was retained by Shawna S. Drum (now Swiger) to represent her in a family court matter. The family court ruled against Ms. Drum, and Ms. Conner appealed the adverse ruling to the Circuit Court of Harrison County, which affirmed the family court's decision. Subsequently, in January 2012, Ms. Drum retained Ms. Conner to file another matter in the same family court. Ms. Drum paid Ms. Conner a $2,000 retainer fee. According to Ms. Drum's complaint, the only communication she had with Ms. Conner during the second representation was when Ms. Conner emailed questions to Ms. Drum. Ms. Drum responded to the email but never heard from Ms. Conner thereafter. Ultimately, Ms. Drum fired Ms. Conner in April 2012 and requested a refund of the unearned retainer fee, to which Ms. Conner declined to respond. Ms. Drum retained new counsel, who also contacted Ms. Conner and requested a return of the retainer fee.

Ms. Drum filed a complaint with the ODC on October 15, 2012. By letter dated October 24, 2012, the ODC sent a copy of the complaint to Ms. Conner and directed that she submit a response within twenty days. After receiving no response, the ODC sent a second letter by certified mail on November 14, 2012, requesting Ms. Conner to file a response by November 26, 2012. Ms. Conner again failed to respond, and a subpoena was issued for her appearance at the ODC for her sworn statement to be taken on January 22, 2013. On that date, Ms. Conner telephoned the ODC and stated she would be unable to attend because she was detained while working on multi-disciplinary treatment meetings for abuse and neglect proceedings. Ms. Conner failed to provide the ODC with the requested verification of such proceedings.

Ms. Conner's sworn statement occurred on February 25, 2013. At that time, she had yet to return Ms. Drum's money. Significantly, Ms. Conner stated that she had not deposited the retainer into her IOLTA account,² but rather, had deposited the same into her “regular business account.” Further, converse to Ms. Drum's contentions, Ms. Conner asserted that she and Ms. Drum “probably discussed the case three or four times” during the second representation.

D. Hearing Panel Subcommittee Proceedings

On November 21,...