Lawyer Disciplinary Bd. v. Palmer

• Decision Date: 05 April 2017
• Docket Number: No. 15-0977,15-0977
• Citation: 798 S.E.2d 610
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. James J. PALMER, III, a Member of the West Virginia State Bar, Respondent

798 S.E.2d 610

LAWYER DISCIPLINARY BOARD, Petitioner

v.James J. PALMER, III, a Member of the West Virginia State Bar, Respondent

No. 15-0977

Supreme Court of Appeals of West Virginia.

Submitted: March 8, 2017

Filed: April 5, 2017

Jessica H. Donahue Rhodes, Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, West Virginia, Attorney for the Petitioner

James J. Palmer, III, Bluefield, West Virginia, Respondent, Pro se

Davis, Justice:

This lawyer disciplinary proceeding against James J. Palmer, III ("Mr. Palmer"), was brought to this Court by the Office of Disciplinary Counsel ("ODC") on behalf of the Lawyer Disciplinary Board ("LDB"). The disposition recommended by the Hearing Panel Subcommittee ("HPS") of the LDB includes a thirty-day suspension with automatic reinstatement; six months of probation with supervised practice; completion of an additional six hours of continuing legal education during the current reporting period, in addition to the hours already required, with three of the hours being in the area of ethics and office management, and three hours being in the representation of clients in petitions for writ of habeas corpus ; and payment of the costs of the disciplinary proceeding in this matter. ODC agrees with the sanctions recommended by the HPS and would add that, upon being suspended, Mr. Palmer should promptly comply with Rule 3.28 of the Rules of Lawyer Disciplinary Procedure, which imposes a mandatory duty upon suspended lawyers to, inter alia , inform clients of the suspension and file an affidavit with the Supreme Court. Having carefully reviewed the record submitted, the parties' briefs, and the relevant legal precedent, as well as having considered the oral argument presented,¹ this Court finds that the sanctions recommended by the HPS and ODC are appropriate under the circumstances of this case.

I.FACTUAL AND PROCEDURAL HISTORY

Mr. Palmer was admitted to the West Virginia State Bar on October 13, 1998, and practices law in Bluefield, West Virginia. The underlying conduct that prompted the filing of the instant proceeding, along with details of the manner in which these disciplinary proceedings progressed, are set out below.

A. Underlying Habeas Action and Ethics Complaint

On May 14, 2010, a pro se petition seeking a writ of habeas corpus was filed in the Circuit Court of McDowell County by Mr. Stanford T. Allen, Jr. ("Mr. Allen"), the complainant herein.² After several other lawyers had been appointed and subsequently withdrew, Mr. Palmer was appointed to represent Mr. Allen in this habeas corpus matter by circuit court order entered on June 25, 2013. The record reflects that Mr. Palmer met with Mr. Allen for about two or three hours in June 2013, prior to Mr. Palmer being appointed as habeas counsel for Mr. Allen. During this meeting, the two men discussed the grounds Mr. Allen desired to raise in his habeas petition. Thereafter, Mr. Palmer met with Mr. Allen on an undisclosed date for approximately one hour; on June 4, 2014, at the McDowell County Courthouse, for an unspecified amount of time; and around August 22, 2014, for approximately five minutes during which Mr. Palmer obtained Mr. Allen's signature on the amended habeas petition he had prepared. A short phone conference also occurred on September 16th, 2014, during which Mr. Allen expressed his dissatisfaction with the amended habeas petition that had been prepared by Mr. Palmer, and he instructed Mr. Palmer not to file the petition.³ In addition, during the period between Mr. Palmer's June 25, 2013, appointment and October 21, 2014, Mr. Allen sent twenty-two letters to Mr. Palmer purportedly addressing issues to be included in the amended habeas petition. None of the letters were answered in writing by Mr. Palmer.

On October 21, 2014, the LDB received an ethics complaint from Mr. Allen alleging that Mr. Palmer had communicated with him by only one short telephone conference and one five minute visit since being appointed as habeas counsel. Mr. Allen further complained that he had not received any response to his twenty-two letters to Mr. Palmer.⁴ By letter dated October 23, 2014, ODC notified Mr. Palmer of the complaint and provided him a copy of the same. He was asked to respond to the allegations within twenty days.

After Mr. Allen filed his ethics complaint and a copy was sent to Mr. Palmer, a status hearing was held in the underlying habeasmatter on November 19, 2014. Both Mr. Allen and Mr. Palmer were present at the hearing, following which a scheduling order was entered on November 24, 2014. The scheduling order set a deadline of December 31, 2014, for the filing of Mr. Allen's amended habeas petition and a Losh checklist of grounds asserted and waived in the post-conviction habeas corpus proceeding.⁵ The State of West Virginia was to file its response no later than February 6, 2015, with Mr. Allen's reply being due no later than March 6, 2015. An omnibus hearing was scheduled for April 20, 2015.

Meanwhile, Mr. Palmer's response to Mr. Allen's ethics complaint was received by ODC on December 1, 2014. In his response, Mr. Palmer explained that he had met with Mr. Allen on two occasions for a significant amount of time in addition to the brief meetings described in the ethics complaint.⁶ Mr. Palmer averred that the five minute visit was for the purpose of obtaining Mr. Allen's signature on certain "habeas corpus forms." With respect to the twenty-two letters sent by Mr. Allen, Mr. Palmer admitted that he had received the letters, but explained that the letters contained factual information and were not "case inquiry nor request letters" requiring a response. Nevertheless, Mr. Palmer asserted that he had spoken to Mr. Allen about the letters and had requested that Mr. Allen send clearer letters with simpler language as opposed to legal jargon as used in the twenty-two letters.

Thereafter, with the ethics proceeding pending, Mr. Palmer failed to file Mr. Allen's amended habeas petition by the December 31, 2014, deadline. Mr. Palmer later explained that he first attempted to fax the amended habeas petition and Losh checklist after normal business hours on December 31, 2014, but the transmission did not go through.⁷ Thus, on January 7, 2015, Mr. Allen filed a pro se motion for appointment of substitute counsel based, in part, on Mr. Palmer's failure to file an amended habeas petition. The next day, Mr. Palmer filed the Losh checklist by fax; however, the amended habeas petition remained unfiled.

By letter to the Honorable Judge Booker T. Stephens, dated January 17, 2015, Mr. Allen again requested the appointment of substitute counsel to represent him in his habeas proceeding based, in part, upon Mr. Palmer's failure to communicate and failure to file an amended habeas petition on Mr. Allen's behalf.

ODC, by letter dated February 10, 2015, asked Mr. Palmer to address the reasons he had not complied with the circuit court's order imposing a deadline of December 31, 2014, for filing Mr. Allen's amended habeas petition and Losh checklist.

After requesting and receiving permission from the circuit court to file the amended habeas petition out of time, Mr. Palmer finally filed the petition on March 6, 2015, more than two months after the circuit court's deadline for the filing. Both Mr. Palmer and Mr. Allen had signed the petition, but no date for the signatures was provided.

Then, by letter dated March 10, 2015, Mr. Palmer responded to ODC's inquiry of February 10, 2015. He explained that the Losh checklist was filed late due to difficulties he encountered in faxing the form to the circuit court. He further asserted that Mr. Allen had "not been prejudiced in any way by [Mr. Palmer's] delayed filing" as it was an "inconsequential matter" that was "easily cured." Although Mr. Palmer included a copy of the circuit court's order permitting him to file the Losh checklist and amended habeas petition out of time, he failed to inform ODC whether the amended habeas petition had, in fact, been filed.

On March 23, 2015, Mr. Allen corresponded with ODC and averred that he did not sign the Losh checklist and that he never saw an amended habeas petition prepared by Mr. Palmer. On the same date, ODC sent a letter to Mr. Palmer seeking clarification as to whether the amended habeas petition had been timely filed, and requesting an explanation in the event that it had not been timely filed. ODC received a response to this letter from Mr. Palmer on March 26, 2015, wherein Mr. Palmer asserted that he attempted to file the amended habeas petition by facsimile on December 31, 2014, but subsequently discovered that the fax transmittal had not been completed.⁸ He claimed to have unsuccessfully attempted to fax the documents various times over the course of the next several days. He stated that, finally, on January 8, 2015, he successfully transmitted the Losh checklist by fax to the circuit court, but he inadvertently omitted the amended habeas petition from the transmission. According to Mr. Palmer, after receiving ODC's inquiry regarding the amended habeas petition, he spoke to the McDowell County Prosecuting Attorney who, having no objection to the late filing of the amended habeas petition, signed an agreed order requesting leave to permit the late filing. Judge Stevens signed the same, and the amended habeas petition was filed on March 6, 2015.

By letter dated March 27, 2015, ODC sought an explanation from Mr. Palmer as to why there was no date on the amended habeas petition and why it took him so long to file the same. Mr. Palmer responded by letter dated March 30, 2015, in which he explained that he observed the missing date just prior to filing the amended petition, and he intentionally left it blank at that time because he could not be certain of the date upon which it was actually signed, and he was unsure of the propriety of altering the form with the addition of a date. He further explained that the late filing of the amended habeas...