Lawyer Disciplinary Bd. v. Smoot

• Decision Date: 17 November 2010
• Docket Number: No. 34724.,34724.
• Citation: 716 S.E.2d 491,228 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner,v.Douglas A. SMOOT, Respondent.

228 W.Va. 1

716 S.E.2d 491

LAWYER DISCIPLINARY BOARD, Petitioner,

v.Douglas A. SMOOT, Respondent.

No. 34724.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 2010.Decided Nov. 17, 2010.

Syllabus by the Court

1. “This Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law.” Syllabus point 3, Committee on Legal Ethics of West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).

2. “A de novo standard applies to a review of the adjudicatory record made before the [Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the [Board's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Board's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.” Syllabus point 3, Committee on Legal Ethics of the West Virginia State Bar v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

3. For purposes of administrative black lung litigation before the United States Department of Labor Office of Administrative Law Judges, a “medical report” consists of both the objective medical test results and the physician's written assessment of the miner's respiratory or pulmonary condition.

4. “In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.” Syllabus point 3, Committee on Legal Ethics of West Virginia State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

5. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered in imposing sanctions and provides as follows: ‘In imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary Board] shall consider the following factors: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer's misconduct; and (4) the existence of any aggravating or mitigating factors.’ ” Syllabus point 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

6. “Aggravating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify an increase in the degree of discipline to be imposed.” Syllabus point 4, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

7. “Mitigating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.” Syllabus point 2, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

8. “Mitigating factors which may be considered in determining the appropriate sanction to be imposed against a lawyer for violating the Rules of Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution or to rectify consequences of misconduct; (5) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the practice of law; (7) character or reputation; (8) physical or mental disability or impairment; (9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.” Syllabus point 3, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

Rachael L. Fletcher Cipoletti, Chief Counsel, Andrea J. Hinerman, Jessica H. Donahue, Office of Disciplinary Counsel, Charleston, WV, for Petitioner.Stephen R. Crislip, A.L. Emch, Ben M. McFarland, Jackson Kelly PLLC, Charleston, WV, for Respondent.Thomas P. Maroney, Maroney, Williams, Weaver & Pancake, PLLC, Charleston, WV, for Amici Curiae, National Black Lung Association; Appalachian Citizens' Law Center, Inc.; and West Virginia Labor Federation, AFL–CIO.Darrell V. McGraw, Jr., Attorney General, Scott E. Johnson, Assistant Attorney General, Charleston, WV, for Amicus Curiae, Appalachian Citizens' Law Center, Inc.; and West Virginia Labor Federation, AFL–CIO.Grant Crandall, United Mine Workers of America, Triangle, VA, for Amicus Curiae, United Mine Workers of America.

DAVIS, Chief Justice:

In this lawyer disciplinary proceeding brought against Douglas A. Smoot, the Hearing Panel Subcommittee of the Lawyer Disciplinary Board (hereinafter referred to as “the HPS”) has recommended that the matter be dismissed. Before this Court, the Office of Disciplinary Counsel (hereinafter referred to as “the ODC”) argues that Mr. Smoot violated Rules 3.4, 4.3, 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct ¹ based upon his actions in a federal black lung case wherein he, as counsel for the employer, provided a pro se claimant with only a portion of the report of a medical examination prepared on behalf of the employer. The ODC recommends sanctions, while Mr. Smoot argues that the HPS correctly recommended that this matter be dismissed.² For the reasons set forth below, we reject the recommendation of the HPS and find that Mr. Smoot has violated Rules 3.4, 8.4(c), and 8.4(d) of the Rules Professional Conduct. Accordingly, Mr. Smoot's license to practice law is suspended for a period of one year, along with other specific sanctions more fully set out in the Conclusion section of this opinion.

I.FACTUAL AND PROCEDURAL HISTORY

The action underlying this lawyer disciplinary proceeding is a claim for federal black lung benefits that was filed with the United States Department of Labor by Mr. Elmer Daugherty (hereinafter referred to as “Mr. Daugherty”), pro se, on or around May 30, 2000.³ His employer, Westmoreland Coal Company, was represented in this matter by Mr. Douglas A. Smoot,⁴ the respondent herein (hereinafter referred to as “Mr. Smoot”). Mr. Smoot notified Mr. Daugherty that the employer was exercising its right, pursuant to 20 C.F.R. § 725.414 (1996),⁵ to have Mr. Daugherty examined by a physician of the employer's choosing. The employer-requested examination was scheduled to be conducted by Dr. George L. Zaldivar on February 7, 2001. On January 26, 2001, a United States Department of Labor District Director (hereinafter referred to as “District Director”) ⁶ made an initial determination awarding black lung benefits to Mr. Daugherty. By letter dated January 30, 2001, the employer requested a formal hearing before an administrative law judge. No further proceedings were had before the District Director at this time, and the case file was transferred to the United States Department of Labor Office of Administrative Law Judges on March 19, 2001.

Dr. Zaldivar examined Mr. Daugherty on February 7, 2001, as previously scheduled, and, on May 22, 2001, Mr. Smoot received Dr. Zaldivar's report of the same, which included a letter titled “History and Physical Examination,” a two page report of arterial blood gas studies, eleven pages reporting results of pulmonary function tests, an ILO–UC form indicating Dr. Zaldivar made a reading of an x-ray showing “Large Opacities Size A,” a one-page lab report showing carbon monoxide and hemoglobin levels, an eight-page exercise report of EKG and pulmonary readings, and a five-page narrative summary dated May 16, 2001, that included a finding that Mr. Daugherty suffered from complicated pneumoconiosis.⁷

On November 12, 2001, Mr. Smoot submitted to the Honorable Daniel L. Leland, the administrative law judge presiding over Mr. Daugherty's claim (hereinafter referred to as “ALJ Leland”), various documents that he intended to submit into evidence at a hearing set for January 25, 2002.⁸ The cover letter accompanying the documents, which was addressed to ALJ Leland, signed on behalf of Mr. Smoot, and copied to Mr. Daugherty, stated:

Enclosed please find the following items of evidence which pertain to the above-referenced federal black lung claim:

1. Exam report of Dr. George L. Zaldivar dated February 7, 2001

2. Report of Dr. Harold B. Spitz containing his interpretation of the CT scan dated June 27, 2001.

3. Cirricula vitae of Drs. Zaldivar and Spitz.

This information is transmitted pursuant to the applicable regulations.

Prior to transmitting the documents identified in the cover letter to ALJ Leland and Mr. Daugherty, Mr. Smoot removed from Dr. Zaldivar's examination report the five-page narrative summary dated May 16, 2001. Ultimately there was no hearing on January 25, 2002, and, due to six continuances sought and obtained by Mr. Daugherty, the case lingered for three and one-half years.

In March 2004, Mr. Robert F. Cohen, Jr., submitted a notice of representation on behalf of Mr. Daugherty. In April 2004, Jackson Kelly transferred the file from its Charleston, West Virginia, office to its Morgantown, West Virginia, office. In addition, the matter was reassigned to lawyers Kathy L. Snyder and Dorothea J. Clark.⁹ In September 2004, Mr. Cohen filed interrogatories and requests for production of documents on behalf of Mr. Daugherty. This was the first discovery request on behalf of Mr. Daugherty. In response, Ms. Snyder provided a “Supplemental Report of Dr. George L. Zaldivar,” dated ...