Lawyer Disciplinary Bd. v. Lakin

• Decision Date: 24 June 2005
• Docket Number: No. 30559.,30559.
• Citation: 617 S.E.2d 484
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Complainant, v. L. Thomas LAKIN, not licensed with The West Virginia State Bar, Respondent.

617 S.E.2d 484

LAWYER DISCIPLINARY BOARD, Complainant, v. L. Thomas LAKIN, not licensed with The West Virginia State Bar, Respondent.

No. 30559.

Supreme Court of Appeals of West Virginia.

Submitted: March 22, 2005.

Filed: June 24, 2005.

W. Henry Jernigan, Jr., Esq., Special Lawyer Disciplinary Counsel, Brace R. Mullett, Esq., Special Lawyer Disciplinary Counsel, Dinsmore & Shohl, LLP, Charleston, for the Complainant.

James D. McQueen, Jr., Esq., Kelly C. Morgan, Esq., Todd M. Sponseller, Esq., McQueen, Harmon & Murphy, L.C., Charleston, for the Respondent.

The Opinion of the Court was delivered PER CURIAM.

Justice STARCHER concurs in part, dissents in part and reserves the right to file a separate opinion.

PER CURIAM.

This lawyer disciplinary matter is before this Court upon the recommendation of the Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board that the respondent, L. Thomas Lakin, be prohibited from practicing law in this State for a period of twelve months, subject to limited exceptions and that his law firm, known as the Lakin Law Firm, be prohibited from engaging in certain activities in this State which would constitute violations of the West Virginia Rules of Professional Conduct. The recommendation was filed with this Court on October 13, 2004, and includes and adopts an agreement on sanctions entered into by the respondent and the Special Lawyer Disciplinary Counsel.

The recommendation of the Hearing Panel Subcommittee arose from various complaints and a formal Statement of Charges to the effect that the respondent, a lawyer in the State of Illinois, violated the Rules of Professional Conduct by soliciting individuals in West Virginia with personal injury claims to become clients of the Lakin Law Firm. At that time, neither the respondent nor any member of the Lakin Law Firm were licensed to practice law in this State.

This Court has before it the recommendation of the Hearing Panel Subcommittee, all matters of record and the briefs and argument of counsel. Upon a review by this Court, de novo, and for the reasons stated herein, this Court adopts the recommendation of the Hearing Panel Subcommittee, including the agreement on sanctions entered into by the parties.

I. Factual and Procedural Background

The respondent, L. Thomas Lakin, a practicing lawyer for approximately thirty-five years, was the owner and manager of the Lakin Law Firm, located in Wood River, Illinois. During the period in question, the Firm employed approximately ten lawyers. Currently, the Lakin Law Firm employs about twenty lawyers, and ownership has been transferred to the respondent's son, also a lawyer.

On May 8, 2002, the Investigative Panel of the Lawyer Disciplinary Board filed a formal Statement of Charges with this Court alleging that the respondent violated the Rules of Professional Conduct by soliciting individuals in West Virginia with personal injury claims to become clients of the Lakin Law Firm.¹ Specifically, the Statement of Charges, consisting of three Counts, alleged that West Virginia residents Kevin James Berry and Denver Copley were so solicited and that such activity constituted a pattern and practice of improper solicitation of residents of this State for legal services.

With regard to Count I, Kevin James Berry, a resident of Kenova, West Virginia, had a personal injury claim arising from a July 1997 bridge construction accident. Berry was represented in the claim by Menis Ketchum, a lawyer in Huntington, West Virginia. Soon after the retention of Ketchum, Al Richter and an individual named Gentry appeared at the Berry residence. Neither of the two men were previously known to Berry. Gentry was the stepson of one of Berry's co-workers, and, according to Disciplinary Counsel, Richter, a resident of the State of Pennsylvania, was a former client and de facto agent of the Lakin Law Firm. Although Berry told them that Ketchum was representing him, Richter, as alleged by Disciplinary Counsel, told Berry that Ketchum would "sell him out" and that Berry could get more money from the accident if he hired the Lakin Law Firm. Berry also received a telephone call from Howard Pederson, the chief investigator for the Lakin Law Firm, who allegedly attempted to solicit him as a client for the Firm. Berry declined the offers of Richter and Pederson and continued to be represented by Ketchum.²

According to the Investigative Panel, the above actions concerning Berry violated the following provisions of the Rules of Professional Conduct: Rule 7.1., prohibiting a lawyer from making false communications about his or her services, such as by creating unjustified expectations about the results to be achieved; Rule 7.2.(c), stating that a lawyer shall not give anything of value to a person for recommending the lawyer's services; Rule 7.3.(a) and (b), prohibiting a lawyer from soliciting a prospective client for pecuniary gain; Rule 7.3.(c), indicating that solicitation is improper where a prospective client, already represented by a lawyer, is known to not be in need of legal services; Rule 8.4.(a), prohibiting violation of the Rules of Professional Conduct through the acts of another; and Rule 8.4.(c), stating that it is professional misconduct for a lawyer to engage in dishonesty, fraud, deceit or misrepresentation.

With regard to Count II of the Statement of Charges, Denver Copley, a resident of Williamson, West Virginia, and former railroad employee, had a personal injury claim arising from an October 1997 train accident. In January 1998, Copley retained Menis Ketchum to represent him in the claim. Thereafter, Copley began receiving numerous telephone calls from fellow employee, Colin Kelley, who, according to Disciplinary Counsel, was a former client and de facto agent of the Lakin Law Firm and who attempted to solicit Copley upon the Firm's behalf. In September 1998, Kelley arranged a meeting wherein Copley met with Kelley and attorneys Brad Lakin and Charles Armbruster of the Lakin Law Firm at Copley's home. The testimony before the Hearing Panel Subcommittee indicates that, at the time of the meeting, Kelley was aware that Copley had already retained counsel with regard to the accident. Moreover, Copley testified before the Subcommittee that he probably told Brad Lakin and Charles Armbruster during the meeting that he was already represented by counsel. Some weeks later, the respondent and Kelley went to Copley's home, but Copley would not answer the door. Copley continued to be represented by Ketchum.

According to the Investigative Panel, the above actions concerning Copley violated the following provisions of the Rules of Professional Conduct: Rule 7.2.(c), stating that a lawyer shall not give anything of value to a person for recommending the lawyer's services; Rule 7.3.(a) and (b), prohibiting a lawyer from soliciting a prospective client for pecuniary gain; Rule 7.3.(c), indicating that solicitation is improper where a prospective client, already represented by a lawyer, is known to not be in need of legal services; and Rule 8.4.(a), prohibiting violation of the Rules of Professional Conduct through the acts of another.

Count III of the Statement of Charges states: "The foregoing actions on the part of the Lakin Law Firm, L. Thomas Lakin and the attorney members and employees of that firm reflect a pattern and practice of improper solicitation of . . . residents of the State of West Virginia, all in violation of the West Virginia Rules of Professional Conduct."

In response to the Statement of Charges, the respondent denied that he had engaged in solicitation activities in violation of the Rules of Professional Conduct. Emphasizing that he had never previously been charged in any jurisdiction with a legal ethics violation, the respondent asserted that neither Al Richter nor Colin Kelley had been compensated or authorized by anyone to solicit clients upon behalf of the Lakin Law Firm. According to the respondent, both Richter and Kelley were satisfied clients of the Firm who may have been overzealous in their communications with Kevin James Berry and Denver Copley. Richter was particularly described by the respondent as a "crusader" with regard to the type of accident suffered by Berry. Moreover, although Berry was also contacted by Howard Pederson, the chief investigator of the Lakin Law Firm, the respondent asserted that Pederson made the call in the course of an investigation upon behalf of certain clients of the Firm who were also injured in that accident and not for purposes of solicitation.

In June 2004, a two-day evidentiary hearing was conducted before the Hearing Panel Subcommittee of the Lawyer Disciplinary Board.³ During the hearing, the Subcommittee received a written agreement on sanctions entered into by the respondent and the Special Lawyer Disciplinary Counsel. The agreement provided as follows:

A. Respondent [Lakin] shall not practice before the bar of any court of the State of West Virginia, on a pro hac vice basis or otherwise, for a period of twelve months from the date of the adoption of these recommendations by the West Virginia Supreme Court of Appeals, excluding therefrom only those cases in which he has already been admitted pro hac vice and is actively representing the interests of a party to such case.

B. Respondent shall not in any way, whether on an advisory basis or otherwise, involve himself with or in any case now pending or which may hereafter be brought before any court of the State of West Virginia for a period of twelve months from the date of the adoption of these recommendations by the West Virginia Supreme Court of Appeals, excluding therefrom only those cases in which he has already been admitted pro hac vice and is actively representing the interests of a party to such case.

C. Respondent and his law form shall not, either directly or through the services of third parties, engage in or permit his employees or agents to...