Lawyer Disciplinary Bd. v. Cain

• Decision Date: 01 November 2021
• Docket Number: 20-0252
• Court: Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. JOSHUA C. CAIN, Respondent

LAWYER DISCIPLINARY BOARD, Petitioner v. JOSHUA C. CAIN, Respondent

No. 20-0252

Supreme Court of Appeals of West Virginia

November 1, 2021

Submitted: September 29, 2021

Lawyer Disciplinary Proceeding No. 18-03-527

LAW LICENSE SUSPENDED AND OTHER SANCTIONS IMPOSED

Rachael L. Fletcher Cipoletti Chief Lawyer Disciplinary Counsel Renée N. Frymyer Lawyer Disciplinary Counsel Office of Lawyer Disciplinary Counsel Charleston, West Virginia Attorneys for the Petitioner

Sean T. Logue Logue Law Group Carnegie, Pennsylvania Attorney for the Respondent

SYLLABUS

1. "A de novo standard applies to a review of the adjudicatory record made before the [Hearing Panel Subcommittee of the Lawyer Disciplinary Board ('HPS')] 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 [HPS's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [HPS'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 v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

2. "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 v. Blair, 174 W.Va. 494 327 S.E.2d 671 (1984).

3. "Rule 3.7 of the Rules of Lawyer Disciplinary Procedure . . . requires the Office of Disciplinary Counsel to prove the allegations of the formal charge by clear and convincing evidence." Syllabus point 1, in part, Lawyer Disciplinary Board v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995).

4. "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).

5. "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).

6. "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).

7. "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).

OPINION

JENKINS, CHIEF JUSTICE

This lawyer disciplinary proceeding is before us upon the objection of Respondent Joshua C. Cain, Esq. ("Mr. Cain") to the recommended discipline of the Hearing Panel Subcommittee ("HPS") of the Lawyer Disciplinary Board ("LDB"), arising from a single disciplinary complaint. Mr. Cain was found to have violated several West Virginia Rules of Professional Conduct because of his overbilling the West Virginia Public Defender Services ("PDS"). The HPS recommended that Mr. Cain be subjected to a 180-day suspension and two-year supervised practice upon reinstatement; remain compliant with a West Virginia Judicial and Lawyer Assistance Program ("WVJLAP") monitoring agreement; and pay all costs of these disciplinary proceedings. The Office of Disciplinary Counsel ("ODC") consented to the recommendation of the HPS. Mr. Cain's sole objection is to the recommended sanction. He argues that he should instead be subjected to only a ninety-day suspension rather than the recommended 180-day suspension.

After a thorough review of the record developed before the HPS, and upon careful consideration of the parties' briefs and oral arguments and the relevant law, this Court agrees that Mr. Cain has violated multiple Rules of Professional Conduct and approves of the recommendations of the HPS. In addition to the recommended sanctions of the HPS, we further order that Mr. Cain must complete six hours of Continuing Legal Education ("CLE") in law practice management over and above the customary requirement.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Cain was admitted to the West Virginia State Bar in April of 2011 and practices in and around Moundsville, West Virginia.^[1] Accordingly, he is subject to the disciplinary jurisdiction of this Court and its properly constituted LDB. Below we set out the conduct underlying this disciplinary matter as well as the relevant procedural history.

A. Underlying Conduct and Factual Background

On August 31, 2017, Dana Eddy, Esq. ("Mr. Eddy"), the Executive Director of the PDS, received an email from the Honorable Jeffrey Cramer, Judge of the Second Judicial Circuit, West Virginia, explaining that Mr. Cain had submitted to the Judge eighty-five payment vouchers accompanied by a proposed order approving payment of appointed counsel fees and expenses for each of the vouchers.^[2] Judge Cramer noted in the correspondence that many of the vouchers concerned matters for which a final disposition had been made eight to ten months before submission of the vouchers. Judge Cramer further explained that upon his inspection of the submitted payment vouchers, he observed additional irregularities. These irregularities included, but were not limited to, the following: (1) many of the vouchers contained unreasonable amounts of time opening, reviewing, and closing files; (2) at least one voucher billed for a hearing that had not occurred; (3) many of the vouchers contained entries where Mr. Cain billed 1.5 hours of travel time to every Marshall County proceeding despite living in Moundsville, which is where the Marshall County Courthouse is located; and (4) many of the vouchers contained copying expenses that were excessive. Judge Cramer requested guidance from the PDS on how to proceed. This correspondence by Judge Cramer prompted an extensive investigation by the PDS into Mr. Cain's billing practices, including traveling to the Marshall County Courthouse to review the vouchers, and ultimately referring the matter to the Commission on Special Investigations.^[3]

After a year of investigation, in November of 2018, Mr. Eddy filed a complaint with the LDB regarding Mr. Cain's overbilling practices in five specific areas.

The first issue raised concerns over the date of the submission of the payment vouchers. Specifically, West Virginia Code section 29-21-13a (eff. 2008) provides, ^[4] in relevant part, that payment vouchers "submitted more than ninety calendar days after the last date of service shall be rejected, unless for good cause, the appointing court authorizes in writing an extension[.]" Mr. Eddy advised that several of the vouchers Mr. Cain submitted related to cases for which final disposition had been made at least eight to ten months before submission of the vouchers. Furthermore, it was alleged that Mr. Cain had his payment vouchers returned by Judge Mark Karl, Judge of the Second Judicial Circuit^[5] in 2013 for being "excessive," and that, as a result, Mr. Cain purposefully waited until Judge Karl retired before submitting any additional vouchers in Marshall County. Accordingly, Mr. Eddy asserted that Mr. Cain invented a last date of service within the appropriate ninety-day timeframe to "make the voucher appear to be timely submitted."

The next area raised in the complaint concerned the travel billed by Mr. Cain. In particular, Mr. Eddy questioned whether Mr. Cain "billed for travel to and from his Marshall County residence[, ] which is closer to the venues involved or for travel to and from [his] 'Cameron' office[.]" Also, while Mr. Cain claimed to maintain an office space in Cameron, and contended that he billed for travel between Cameron and the Northern Regional Jail or Marshall County Courthouse, an investigator from the Commission on Special Investigations reported that the office space was "in a state of disrepair and shambles," that "no phones or computer equipment [could] be seen," and that "[b]oxes [were] strewn everywhere[.]" According to the complaint, the office space was used for storage, and it was not equipped to be an everyday functional office.

The third matter raised in the complaint related to the amount of time Mr. Cain billed for waiting in court. It was asserted that, ...