Lawyer Disciplinary Bd. v. McCloskey
| Decision Date | 14 October 2016 |
| Docket Number | No. 14–1119,14–1119 |
| Citation | 238 W.Va. 165,793 S.E.2d 23 |
| Court | West Virginia Supreme Court |
| Parties | LAWYER DISCIPLINARY BOARD, Petitioner, v. Kevin E. MCCLOSKEY, Respondent. |
Joanne M. Vella Kirby, Esq., Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, West Virginia, Attorney for Petitioner.
Kevin E. McCloskey, Morgantown, West Virginia, Pro Se Respondent.
A Hearing Panel Subcommittee ("HPS") of the Lawyer Disciplinary Board has determined that the respondent, Kevin E. McCloskey, a lawyer who is not admitted to the West Virginia Bar, violated the West Virginia Rules of Professional Conduct by engaging in the unauthorized practice of law in this state, committing acts of professional misconduct in this state, and failing to respond to the Office of Disciplinary Counsel's ("ODC") requests for information in response to an ethics complaint.
After a thorough review of the record developed before the HPS, and upon a consideration of the ODC's brief and oral argument,1 we adopt the HPS's findings of fact and conclusions of law. However, exercising our exclusive authority to determine the appropriate sanction in lawyer disciplinary matters, this Court imposes a different sanction than that recommended by the HPS. Our review compels this Court to impose a public reprimand; a five year prohibition on the respondent's opportunity to apply for admission to practice law in West Virginia, including pro hac vice admission; a five year prohibition on the respondent's appearance in any court in West Virginia; a requirement that if the respondent should ever seek admission to the West Virginia State Bar, he first obtain twelve hours of continuing legal education in the areas of law office management and/or legal ethics; and a requirement that he pay the costs of these disciplinary proceedings.
The respondent was a licensed member of the Pennsylvania Bar. In 2013 and early 2014, he worked as an attorney employed by the Law Offices of Karen L. Hughes, a GEICO captive insurance defense firm in Pittsburgh, Pennsylvania. The respondent is not, and never has been, a licensed member of the West Virginia State Bar, and he has never been admitted pro hac vice in any West Virginia court.
Pursuant to the filing of formal lawyer disciplinary statement of charges, the HPS held an evidentiary hearing on November 17, 2015. The respondent appeared by telephone to dispute the charges. After considering the evidence and argument, the HPS made several findings of fact and conclusions of law set forth in a report filed with this Court on March 21, 2016.
The HPS found that although the respondent was not licensed to practice law in West Virginia, on or about December 10, 2013, he entered his appearance on behalf of the defendant in a case pending in the Circuit Court of Ohio County styled Sneddon v. Jasper , civil action 13–C–385. The record reflects that he signed and filed a "Praecipe for Entry of Appearance" and the accompanying certificate of service in this case. Moreover, in the praecipe, he falsely represented that he was a West Virginia-licensed attorney: The document identified him as "Kevin McCloskey, Esquire, WVATTY I.D. No. 11529." West Virginia State Bar number 11529 is assigned to a lawyer who was not in the respondent's firm and was not involved in the Sneddon case. In addition, attorney Brent Wear, who was counsel for the plaintiff in Sneddon , testified that he received an answer to the complaint that was signed by the respondent as defense counsel.
The HPS further found that on or about February 10, 2014, the respondent entered his appearance on behalf of the defendants in Fisher v. Matics , civil action 14–C–19, a case pending in the Circuit Court of Hancock County. The record includes a "Praecipe for Entry of Appearance," a certificate of service, and a cover letter that the respondent signed and filed in Fisher . In the praecipe, the respondent identified himself as "Kevin McCloskey, Esquire, PA I.D. NO. 95072," which is his Pennsylvania Bar number.
For his conduct in these two cases, the HPS concluded that the respondent violated the following West Virginia Rules of Professional Conduct: two violations of Rule 5.5(a) for engaging in the unauthorized practice of law; a violation of Rule 8.4(b) for committing a criminal act, inasmuch as practicing law without a license is a misdemeanor pursuant to West Virginia Code § 30–2–4 (1923); a violation of Rule 8.4(c) for conduct involving dishonesty, fraud, deceit or misrepresentation; and a violation of Rule 8.4(d) for conduct prejudicial to the administration of justice.2
Although the Sneddon and Fisher matters were the basis for the rule violations alleged in the statement of charges, upon conducting the evidentiary hearing, the HPS learned that the respondent's unethical conduct was not limited to those two cases. The HPS found that the respondent also signed and filed pleadings in the Circuit Court of Brooke County for Corbin v. Tustin , No. 13–C–165; in the Circuit Court of Marion County for Smith v. Huffman , No. 13–C–361; and in the Circuit Court of Ohio County for Stephenson v. Pasqualia , No. 13–C–411. The record reflects that in each of these three West Virginia cases, the respondent filed documents as counsel for the defendant(s). Moreover, a civil case information sheet filed by the respondent in Stephenson contains the name "Kevin McCloskey, Esquire, WVSB," thus falsely representing that he was a member of the West Virginia State Bar.
The evidentiary hearing also revealed that the respondent has received prior professional discipline for engaging in the unauthorized practice of law. The Disciplinary Board of the Supreme Court of Pennsylvania admonished the respondent in 2007 because he had held himself out as an attorney in the spring and summer of 2005, a time when he was not licensed to practice law in Pennsylvania. That same board issued a public reprimand to the respondent in October 2013 because, in January 2012, the respondent represented a client even though he was administratively suspended from the practice of law for his failure to comply with Pennsylvania rules regarding obtaining continuing legal education. Based upon all of the West Virginia cases and the two Pennsylvania sanctions, the HPS concluded that the respondent has engaged in a pattern and practice of unethical conduct.
The HPS's report to this Court also described the ODC's investigation of this matter that led to the filing of the formal charges, including the respondent's repeated failure to respond to the ODC's requests for information. Upon learning in March 2014 that the respondent had entered his appearance in a West Virginia case, the ODC opened a complaint and initiated an investigation into whether the respondent was engaged in the unauthorized practice of law in this state. On March 12, 2014, the ODC sent the respondent a letter at his Pittsburgh firm's address instructing him to file a verified response within twenty days pursuant to Rule 2.5 of the Rules of Lawyer Disciplinary Procedure. When the respondent failed to respond, the ODC sent a second letter on April 10, 2014, warning that if he did not respond the ODC would subpoena him to appear and give a statement or the allegations would be deemed admitted. These letters were returned to the ODC unopened on or about April 13, 2014, with a notation on the envelopes that the respondent was no longer employed at the law firm.3
Mary E. "Besty" Casto, a legal assistant employed by the ODC, testified that the respondent left a telephone voice mail message with the ODC on April 14, 2014, reporting that he was no longer employed at the Pittsburgh law firm and providing his new telephone number. Ms. Casto testified that on April 17, 2014, the respondent again called the ODC, providing an address in McMurray, Pennsylvania, where he could receive correspondence. That same day, the ODC re-sent its previous letters to the Respondent at the McMurray address with directions that he file a verified response to the complaint within twenty days.
The respondent failed to respond to the complaint or make any further contact with the ODC, prompting the ODC to obtain a subpoena duces tecum for his appearance and sworn testimony at the ODC's office on September 30, 2014. This subpoena was personally served upon the respondent on September 8. The respondent provided the process server with a new address in Morgantown, West Virginia.
On September 29, at 2:35 p.m., the ODC received a letter that the respondent sent via facsimile acknowledging receipt of the subpoena but stating he would be unable to appear. This letter did not provide any response to the complaint, and the respondent did not file a motion to quash the subpoena. The HPS found that at approximately 4:50 p.m. on September 29, counsel for the ODC, Joanne Vella Kirby, telephoned the number the respondent had previously provided and left a voice mail message informing him that he was not released from the subpoena. The respondent failed to appear on September 30. On October 1, Ms. Kirby sent the respondent a letter via regular mail and electronic mail confirming the contents of her earlier voice mail message and noting the respondent's failure to comply with the subpoena. On October 6, the ODC received a letter from the respondent in which he denied he had received a telephone call or voice mail message from Ms. Kirby. This letter did not provide any response to the allegation that he was practicing law in West Virginia without a license.
The respondent never responded to the ODC, and the matter proceeded to the filing of a formal statement of charges and an HPS evidentiary hearing. Although the respondent provided an answer to the statement of charges and appeared via telephone at the HPS hearing, the HPS concluded that the respondent violated Rule 8.1(b) for knowingly failing to comply with the ODC's ...
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