Lawyer Disciplinary Bd. v. Brown

• Citation: 678 S.E.2d 60
• Decision Date: 06 May 2009
• Docket Number: No. 33516.,33516.
• Court: Supreme Court of West Virginia
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. Raymond David BROWN, Jr., an Administratively Suspended Member of the West Virginia State Bar, Respondent.

678 S.E.2d 60

LAWYER DISCIPLINARY BOARD, Petitioner v. Raymond David BROWN, Jr., an Administratively Suspended Member of the West Virginia State Bar, Respondent.

No. 33516.

Supreme Court of Appeals of West Virginia.

Submitted January 27, 2009.

Decided May 6, 2009.

Syllabus by the Court

1. "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).

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 of the West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).

3. "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).

4. "Although Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates the factors to be considered in imposing sanctions after a finding of lawyer misconduct, a decision on discipline is in all cases ultimately one for the West Virginia Supreme Court of Appeals. This Court, like most courts, proceeds from the general rule that, absent compelling extenuating circumstances, misappropriation or conversion by a lawyer of funds entrusted to his/her care warrants disbarment." Syllabus Point 5, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

5. "`"In disciplinary proceedings, this Court, rather than endeavoring to establish a uniform standard of disciplinary action, will consider the facts and circumstances [in each case], including mitigating facts and circumstances, in determining what disciplinary action, if any, is appropriate[.]" Syl. pt. 2, [in part] Committee on Legal Ethics v. Mullins, 159 W.Va. 647, 226 S.E.2d 427 (1976).' Syllabus Point 2, [in part] Committee on Legal Ethics v. Higinbotham, 176 W.Va. 186, 342 S.E.2d 152 (1986)." Syllabus Point 4, in part, Committee on Legal Ethics of the West Virginia State Bar v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).

6. "`The principle purpose of attorney disciplinary proceedings is to safeguard the public's interest in the administration of justice.' Syllabus Point 3, Daily Gazette v. Committee on Legal Ethics, 174 W.Va. 359, 326 S.E.2d 705 (1984)." Syllabus Point 2 Lawyer Disciplinary Bd. v. Hardison, 205 W.Va. 344, 518 S.E.2d 101 (1999).

7. "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 the West Virginia State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

Rachael L. Fletcher Cipoletti, Esq., Chief Lawyer Disciplinary Counsel, Charleston, WV, for Petitioner.

Sherri D. Goodman, Esq., Goodman Advocacy, Charleston, WV, for Respondent.

PER CURIAM.

This is a lawyer disciplinary proceeding brought against Raymond David Brown, Jr., an administratively suspended member of the West Virginia State Bar,¹ by the Office of Disciplinary Counsel (hereinafter "ODC") on behalf of the Lawyer Disciplinary Board (hereinafter "the Board"). The Hearing Panel Subcommittee of the Board has found that Mr. Brown violated Rules 1.15(a), 1.15(b), 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct² and has recommended that his law license be suspended for an indefinite period with the right to petition for reinstatement three years from the date of his administrative suspension provided he satisfies certain conditions. Mr. Brown has acknowledged his misconduct and consented to the Board's recommended disposition. However, the ODC objects and contends that Mr. Brown's law license should be annulled. Based upon the parties' arguments, the designated record, and the pertinent authorities, we agree with the ODC and order that Mr. Brown's law license be annulled.

I. FACTS

Mr. Brown was admitted to the West Virginia State Bar on February 6, 2001, and began his career working in a prosecuting attorney's office. After two years in that office, he became a public defender. In February 2004, Mr. Brown formed a partnership with Cabell County attorney Douglas Reynolds. Mr. Brown primarily handled criminal matters and bankruptcy cases.

On March 17, 2005, Patty J. Massie retained Mr. Brown and Mr. Reynolds to represent her in a lawsuit arising from an automobile accident that occurred on June 10, 2003. Shortly thereafter, Mr. Brown and Mr. Reynolds dissolved their partnership. Mr. Brown then opened an office in Barboursville, Cabell County, West Virginia, where he lived. Ms. Massie's case had been handled primarily by Mr. Brown, and he continued to represent her. He filed suit on her behalf on June 9, 2005.

Ms. Massie's lawsuit was settled in October 2006 for $26,000.00. The settlement check was deposited by Mr. Brown into his client trust account at First Sentry Bank in Huntington, West Virginia, on October 16, 2006. On October 24, 2006, Mr. Brown transferred $10,000.00 from the trust account into his personal account for his legal fees in Ms. Massie's case.³ On November 7, 2006, Mr. Brown wrote a check on the account to Ms. Massie for $8,020.00 which constituted her portion of the settlement proceeds. The remaining funds in the account were designated to pay subrogation claims held by two insurers which had paid Ms. Massie's outstanding medical bills resulting from injuries she sustained in the automobile accident.

Subsequently, Mr. Brown misappropriated the remaining funds. No disbursements were ever made with respect to the subrogation claims. Instead, Mr. Brown wrote multiple checks on the account to various third parties not related to Ms. Massie's case. He also wrote multiple checks to "cash" and several checks to local retail stores. By January 17, 2007, the account was overdrawn. On January 31, 2007, Mr. Brown deposited $143.77 into the account and then closed it.

On February 21, 2007, Mr. Brown entered an outpatient treatment program in Huntington, West Virginia, for cocaine addiction. After thirty days of treatment, he entered an inpatient program at the VA Center in Lexington, Kentucky. On March 21, 2007, his first day of treatment at the VA Center, Mr. Brown contacted Lawrence J. Lewis, Chief Disciplinary Counsel at that time, and reported that he had entered a substance abuse program in Lexington, Kentucky, for cocaine addiction. He also told Mr. Lewis that he had misappropriated funds from his client trust account.⁴ Shortly thereafter, on March 30, 2007, Ms. Massie filed an ethics complaint alleging that Mr. Brown had stolen $8,000.00 that was designated to pay her outstanding medical bills resulting from injuries she sustained in an automobile accident. She also indicated that Mr. Brown had refused to provide her with her client file despite repeated requests.

Formal ethics charges were filed against Mr. Brown on August 21, 2007. Mr. Brown was charged with violating Rules 1.15(a), 1.15(b), 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct.⁵ The matter proceeded to a hearing before the Board on January 18, 2008. The Board issued its report on June 24, 2008, wherein it found that Mr. Brown had misappropriated and converted the money in his client trust account. The Board recommended that Mr. Brown be suspended, retroactive to July 2007, for a period of three years, after which he could then petition for reinstatement provided that he satisfies the following conditions:

1. He is able to demonstrate to the ODC that, for a continuous period of three years, he has been in sustained full remission and sober and clean, as evidenced by a written report to that effect from his treating psychiatrist or psychologist; for purposes of this requirement "sober and clean" means free of illegal drugs and of legal drugs except when taken as prescribed by a licensed physician;

2. He has made full restitution to Ms. Massie in the amount recommended by the ODC;

3. He has paid the costs of this disciplinary proceeding;

4. He is continuing in treatment as recommended by his psychiatrist or psychologist; and

5. For a period of two years following his reinstatement, a lawyer approved by the ODC shall supervise his practice of law, including the monitoring of his trust accounts.

By letter dated July 22, 2008, the ODC filed its objection to the disposition recommended by the Board with this Court. On July 24, 2008, Mr. Brown,...