Lawyer Disciplinary Bd. v. Morgan

• Citation: 849 S.E.2d 627
• Decision Date: 16 October 2020
• Docket Number: No. 19-0879,19-0879
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. E. Lavoyd MORGAN, Jr., a Member of the West Virginia State Bar, Respondent
• Court: Supreme Court of West Virginia

849 S.E.2d 627

LAWYER DISCIPLINARY BOARD, Petitioner

v.E. Lavoyd MORGAN, Jr., a Member of the West Virginia State Bar, Respondent

No. 19-0879

Supreme Court of Appeals of West Virginia.

Submitted: September 2, 2020

Filed: October 16, 2020

Rachael L. Fletcher Cipoletti, Chief Lawyer Disciplinary Counsel, Jessica Donahue Rhodes, Lawyer Disciplinary Counsel, Office of Lawyer Disciplinary Counsel, Charleston, West Virginia, Attorneys for the Petitioner.

Lonnie C. Simmons, DIPIERO SIMMONS MCGINLEY & BASTRESS, PLLC, Charleston, West Virginia, Attorney for the Respondent.

Jenkins, Justice:

This lawyer disciplinary proceeding against E. Lavoyd Morgan ("Mr. Morgan") was brought to this Court by the Office of Disciplinary Counsel ("ODC") on behalf of the Lawyer Disciplinary Board ("LDB"). The Hearing Panel Subcommittee ("HPS") of the LDB recommended the following disposition in its report to this Court: that Mr. Morgan's license to practice law be annulled; that Mr. Morgan refund monies to specified clients; that Mr. Morgan comply with the mandates of Rule 3.28 ¹ of the West Virginia Rules of Lawyer Disciplinary Procedure unless he has submitted such as part of his immediate suspension in Case No. 19-0885;² and that he pay the costs of these proceedings pursuant to Rule 3.15 ³ of the West Virginia Rules of Lawyer Disciplinary Procedure. Thereafter, the LDB submitted its consent to the recommendation and Mr. Morgan filed his objection. Upon careful review of the record submitted, the parties’ briefs and oral arguments, and the relevant law, this Court agrees with the recommendations of the HPS, and finds that the recommended sanctions are warranted.

I.FACTUAL AND PROCEDURAL HISTORY

Mr. Morgan is a practicing attorney in Lewisburg, West Virginia. He was admitted to the West Virginia State Bar on October 2, 1995, having passed the bar exam. As such, Mr. Morgan is subject to the disciplinary jurisdiction of this Court and its properly constituted LDB.

A. Count I—Complaint of the Office of Lawyer Disciplinary Counsel

The ODC obtained information that Mr. Morgan had eighteen days of billing in excess of eighteen hours a day submitted for payments from the Public Defender Services ("Public Defender"). Specifically, the times and days were listed as follows:

Date	Number of Hours Submitted to PDS
2/22/16	18.6
3/22/16	19.1
5/2/16	22.8
5/6/16	18.3
5/23/16	22.4
7/6/16	18.5
7/12/16	20.2
7/26/16	27.0
8/4/16	18.3
8/9/16	23.7
8/17/16	20.3
8/30/16	20.4
9/2/16	26.9
9/26/16	18.6
9/28/16	19.2
10/17/16	21.8
12/13/16	20.1
1/3/17	20.2

Mr. Morgan responded that some of this time was work he would perform on the weekends which was then billed to a weekday. Further, he noted that some of the time was "reconstructed," and that he had actually underbilled many of his cases. Mr. Morgan asserted that any billing errors were due to misidentifications by the billing attorney and clerical errors on duplicate entries.

After Mr. Morgan corrected some of the billing entries, the Public Defender provided information that showed three days still consisted of eighteen hours of services billed, and two days were between fifteen and eighteen hours of billed services. Moreover, one day showed a billing of nearly twenty-nine hours for that day—which is impossible considering there are only twenty-four hours in a day. Upon additional information provided by the Public Defender, the ODC discovered that Mr. Morgan had sixteen more days of billing eighteen or more hours. When questioned once again about the excessive billing, Mr. Morgan claimed that some of the time was for work completed by an associate, and he admitted to overbilling for approximately five and a half hours. When asked by the ODC to address this excessive time, Mr. Morgan stated that the time was for weekends and other days were submitted for the wrong dates. Regarding his high hours billed for weekends, Mr. Morgan stated that he was required to work weekends to handle follow-up work made necessary by his weekday schedule. Two of Mr. Morgan's former employees provided statements that his billings to the Public Defender were incorrect, and that he rarely worked on the weekends. By the time the Public Defender was finished sending information to the ODC, there were thirty-eight days with eighteen hours or more of billed services.

Mr. Morgan was charged with providing false information to the tribunal on his billings in violation of Rule 3.3(a)(1);⁴ providing improper and unsubstantiated billings in violation of Rules 1.5(a),⁵ 8.4(c),⁶ and 8.4(d);⁷ failing to make sure his staff's conduct was in line with the rules in violation of Rule 5.3;⁸ and making false statements about his Public Defender work in violation of Rule 8.1(a).⁹

B. Count II—Complaint of Travis R. Norwood

Mr. Norwood retained Mr. Morgan for representation in multiple criminal cases, and in turn, paid Mr. Morgan an $8,000.00 retainer fee. Mr. Norwood alleged that Mr. Morgan failed to properly represent him, and as such, he terminated Mr. Morgan as his counsel. Upon his termination, Mr. Morgan failed to provide the client file to Mr. Norwood, and failed to refund the unearned portion of his retainer fee. A former employee of Mr. Morgan provided a statement averring that Mr. Morgan falsified the invoice for his work in Mr. Norwood's case. A review of Mr. Morgan's IOLTA account did not show a deposit of the $8,000.00 retainer fee when it was paid, and two months later the IOLTA account had a negative balance. Mr. Morgan also failed to respond to two letters from Disciplinary Counsel.

Mr. Morgan was charged with not having a written fee agreement in violation of Rule 1.5(b) ;¹⁰ failing to provide the client file and unearned fees in violation of Rule 1.16(d);¹¹ failing to hold client funds in an account designated as a "client's trust account" and failing to keep complete records of the funds paid to him in violation or Rule 1.15(a);¹² failing to place unearned fees into a client trust account and leaving unearned fees in his account in violation of Rule 1.15(c);¹³ misrepresenting the case to Mr. Norwood and misappropriating and converting client funds in violation of Rules 8.4(c) and 8.4(d) ; providing false information to the ODC about the accounting in violation of Rule 8.1(a) ; and failing to timely respond to the ODC in violation of Rule 8.1(b).¹⁴

C. Count III—Complaint of Lori Ann McKinney

Lori Ann McKinney hired Mr. Morgan to represent her husband in a criminal case. She alleged that Mr. Morgan failed to communicate with them and failed to properly handle the case. Ms. McKinney also sought Mr. Morgan's representation in a medical malpractice case, which he allegedly did not pursue and never told the client that he was not going to pursue. Mr. Morgan is charged with failing to act diligently, failing to expedite both cases, failing to communicate with his clients about both cases, failing to keep records of the funds paid to him, and failing to provide the client file. He is accused of violating Rules 1.3,¹⁵ 1.4(b),¹⁶ 1.15(a), 1.16(d), 3.2,¹⁷ 8.4(c) and 8.4(d).

D. Count IV—Complaint of W.T.

Mr. Morgan represented W.T.’s granddaughter in a family court matter. According to the granddaughter, she saw Mr. Morgan only at the initial consultation and at two hearings. Once the representation ended, he never provided her with the client file. Further, a review of the IOLTA account was unclear as to when or if the retainer was deposited; however, at the end of the next month, the IOLTA account had a negative balance. Mr. Morgan also failed to respond to two letters from the ODC.

Mr. Morgan was charged with not having a written fee agreement in violation of Rule 1.5(b) ; failing to hold client funds in an account designated as a "client's trust account" and failing to keep complete records of the funds paid to him in violation of Rule 1.15(a) ; failing to place unearned fees in a trust account and leaving earned fees in his own trust account in violation of Rule 1.15(c) ; failing to provide the client file and unearned fees in violation of Rule 1.16(d) ; misappropriating and converting client funds in violation of Rules 8.4(c) and 8.4(d); and failing to timely respond to the ODC in violation of Rule 8.1(b).

E. Count V—Complaint of Denney W. Bostic

Mr. Bostic is a former employee of Mr. Morgan. He alleged that Mr. Morgan withheld money from his paycheck for taxes and insurance but did not pay those funds to the proper agencies. He also alleged that Mr. Morgan wrote him a worthless check for his wages. Additionally, Mr. Bostic stated that Mr. Morgan's law firm was operating under a false name—the law firm name is "E. Lavoyd Morgan, Jr. and Associates," but there were not associates at the firm. Multiple other former employees attested that there were no associate attorneys working at the firm.

Mr. Morgan was charged with failing to hold client funds in an account designated as a "client's trust account" in violation of Rule 1.15(a) ; failing to place unearned fees in a trust account in violation of Rule 1.15(c) ; using "and Associates" in the name of his firm when he was the only attorney in violation of Rule 7.5;¹⁸ failing to timely respond to the ODC in violation of Rule 8.1(b) ; failing to pay taxes and compensation premiums in violations of Rule 8.4(b) ;¹⁹ and providing a worthless check in violation of Rules 8.4(b) and 8.4(d).

F. Count VI—Complaint of E.L.

Mr. Morgan was retained by E.L. for representation in a property issue. E.L. claimed that she was unable to communicate with Mr. Morgan, and she never received an itemization or her client file. Moreover, a review of Mr. Morgan's IOLTA account was unclear as to when the retainer was deposited, but at the end of the next month, the IOLTA account had a negative balance. Mr. Morgan also failed to respond to one letter from the ODC requiring it to send an additional letter.

Mr. Morgan was charged with not properly communicating with his client and failing to keep his client reasonably informed about the status of the case in violation of Rule...