Lawyer Disciplinary Bd. v. Artimez, 25804.

• Citation: 540 S.E.2d 156,208 W. Va. 288
• Decision Date: 27 October 2000
• Docket Number: No. 25804.,25804.
• Court: Supreme Court of West Virginia
• Parties: LAWYER DISCIPLINARY BOARD, Complainant, v. John E. ARTIMEZ, A Member of the West Virginia State Bar, Respondent.

540 S.E.2d 156

208 W. Va. 288

LAWYER DISCIPLINARY BOARD, Complainant, v. John E. ARTIMEZ, A Member of the West Virginia State Bar, Respondent.

No. 25804.

Supreme Court of Appeals of West Virginia.

Submitted September 6, 2000.

Decided October 27, 2000.

Morgan Palmer Griffith, Amie L. Johnson, Lawyer Disciplinary Counsel, Charleston, West Virginia, Attorneys for the Complainant.

Robert P. Fitzsimmons, Russell J. Guthrie, Fitzsimmons Law Offices, Wheeling, West Virginia, Attorneys for the Respondent.

DAVIS, Justice:

This lawyer disciplinary proceeding arises from the respondent's, John E. Artimez's [hereinafter "Mr. Artimez"], intimate sexual relationship with his client's wife [hereinafter "Mrs. Crook"] and Mr. Artimez's attempt to settle his client's [hereinafter "Mr. Crook"] resulting claims of malpractice and professional ethics violations. Despite the purported settlement, Mr. Crook reported Mr. Artimez's conduct to the West Virginia Lawyer Disciplinary Board [hereinafter "the Board"]. In turn, the Board investigated Mr. Crook's claims and filed a statement of charges alleging, inter alia, that Mr. Artimez had violated Rules 1.7(b)¹ and 8.4(d)² of the West Virginia Rules of Professional Conduct.³ Thereafter, Mr. Artimez and the Board presented agreed findings of fact and conclusions of law to the Board's Hearing Panel Subcommittee [hereinafter "Panel"]. Adopting these facts and legal conclusions, the Panel recommended, in accordance with the parties' stipulation as to discipline, that Mr. Artimez be publicly reprimanded and that he be charged with the cost of this disciplinary proceeding. Upon a review of the Panel's recommended decision, the parties' briefs, and the pertinent authorities, we adopt the lower tribunal's recommendation and hereby publicly reprimand attorney Artimez. We further agree that Mr. Artimez be held responsible for the costs of this proceeding.

I. FACTUAL AND PROCEDURAL HISTORY

The events giving rise to the instant lawyer disciplinary proceeding began in 1995. On May 3, 1995, the complainant, Frank Crook, and his then-girlfriend, Dana Yoho, were involved in an automobile accident.⁴ Shortly thereafter, Mr. Crook and Ms. Yoho married. In November, 1995, Mr. and Mrs. Crook consulted with the respondent herein, attorney Artimez, with respect to the injuries Mr. Crook had sustained in the May accident.⁵ At that time, Mr. Artimez practiced in a partnership with attorney Gregory A. Gellner [hereinafter "Mr. Gellner"]. Mr. Artimez worked primarily in the partnership's Moundsville, West Virginia, office, while Mr. Gellner staffed its office in Wheeling, West Virginia.

During his representation of Mr. Crook,⁶ Mr. Artimez communicated with the various involved insurance companies and attempted to settle Mr. Crook's personal injury claim.⁷ Negotiations having failed to produce the desired settlement, Mr. Artimez filed a civil action on Mr. Crook's behalf on May 2, 1997, in the Circuit Court of Marshall County. In the course of these proceedings, a third-party action was instituted by the other driver against Mrs. Crook and her insurance company because she had been driving the vehicle occupied by Mr. Crook at the time of the accident. Neither Mr. Artimez nor Mr. Gellner represented Mrs. Crook, however, as representation was provided by her insurance company.

At about the same time as the preparation and filing of Mr. Crook's lawsuit, Mr. Artimez and Mrs. Crook commenced a sexual relationship. In July, 1997, Mr. and Mrs. Crook separated, and Mrs. Crook began residing in an apartment near Mr. Artimez's law office. Also at this approximate time, Mr. Artimez asked Mr. Crook if he could transfer Mr. Crook's lawsuit to his partner, Mr. Gellner. The reason he gave to both Mr. Crook and Mr. Gellner for the file transfer was his heavy workload, which involved several trials in the immediate future. Another personal basis for his decision, which was not communicated to either Mr. Crook or Mr. Gellner, was his rising discomfort with his representation of Mr. Crook while he was intimately involved with Mrs. Crook. Additionally during this time, Mr. Gellner inquired of Mr. Artimez whether he and Mrs. Crook were having an affair. Mr. Artimez, however, denied any such relationship.

In October, 1997, Mr. Crook discovered that Mr. Artimez and Mrs. Crook were romantically involved. On October 20, 1997, Mr. Crook met with Mr. Gellner and disclosed the relationship to him. At that time, Mr. Gellner presented Mr. Crook with various options: (1) Mr. Crook could obtain new counsel; (2) Mr. Crook could continue to be represented by Mr. Gellner, and his legal fees would be reduced by 50% (Mr. Artimez's share);⁸ or (3) Mr. Crook could consult with new counsel about the prospects of settling his personal injury lawsuit and/or pursuing the above-described proposals, and the partnership would pay his associated consultation fees. Following these discussions, Mr. Crook elected to continue to retain Mr. Gellner as his attorney for a reduced fee.

Mr. Crook then threatened to sue Mr. Artimez for professional malpractice and to file ethics charges against him. Through Mrs. Crook, Mr. Artimez communicated his desire to settle Mr. Crook's claims against him. Mr. Crook contacted Mr. Artimez regarding the proposed settlement, and Mr. Artimez offered to pay him $5,000. Thereafter, Mr. Crook responded with a counteroffer, to which Mr. Artimez agreed: (1) Mr. Artimez would pay Mr. Crook $12,000; (2) all legal fees Mr. Crook had incurred with respect to his personal injury lawsuit, which was then being handled by Mr. Gellner, would be waived; (3) Mr. Artimez would voluntarily appear and testify in, or otherwise cooperate with, prospective Ohio divorce proceedings between Mr. and Mrs. Crook;⁹ and (4) Mr. Crook would release Mr. Artimez from any professional or civil liability, including agreeing not to file a cause of action against Mr. Artimez for professional malpractice, report his conduct to the West Virginia Lawyer Disciplinary Board, or do anything else that would jeopardize Mr. Artimez's law license. Both Mr. Crook and Mr. Artimez signed a settlement and release reflecting these terms in November, 1997, and December, 1997, respectively.

Ultimately, Mr. and Mrs. Crook separated again. At that time, Mr. Crook reported Mr. Artimez's conduct to the West Virginia Lawyer Disciplinary Board's Office of Disciplinary Counsel. The Board's Investigative Panel then issued a formal Statement of Charges, on January 15, 1999, charging Mr. Artimez as follows:

[1.] By initiating a sexual relationship with a client's wife, Respondent [Mr. Artimez] created an impermissible conflict between his own interests and those of his client, in violation of Rule 1.7(b) of the Rules of Professional Conduct, which provides:

Rule 1.7. Conflict of Interest: General rules.

(b) A lawyer shall not represent a client if the representation of that client may be materially be [sic] limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably [believes] the representation will not be adversely affected; and

(2) the client consents after consultation....

See, e.g., People v. Bauder, 941 P.2d 282 (Colo.1997) [ (en banc) (per curiam)] (attorney propositioned client's wife and client's girlfriend).

[2.] By paying his client, in part, not to take any action which would result in a disciplinary complaint against Respondent, Respondent violated Rule 8.4(d) of the Rules of Professional Conduct, which provides:

Rule 8.4. Misconduct.

It is professional misconduct for a lawyer to:

(d) engage in conduct that is prejudicial to the administration of justice.

This conduct is comparable to the conduct prohibited by Legal Ethics Inquiry 88-03, "Settlement Agreements Requiring Complainants to Withdraw Ethics Complaint".

[3.] By lying to his partner about the relationship with the wife of the firm's client, Respondent frustrated his partner's efforts to comply with Rule 5.1(a) of the Rules of Professional Conduct, which provides:

Rule 5.1. Responsibilities of a partner or supervisory lawyer.

(a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

Under the circumstances, Respondent violated Rule 8.4(c) of the Rules of Professional Conduct, which provides:

Rule 8.4. Misconduct.

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Following Mr. Artimez's response to the statement of charges, the parties, on July 6, 1999, jointly submitted agreed findings of fact and conclusions of law. In their stipulation, Mr. Artimez and the Office of Disciplinary Counsel recounted that Mr. Artimez had cooperated fully with the investigation of the charges, that he had met with the Chief Disciplinary Counsel, and that he had voluntarily provided a detailed statement of the events giving rise to such charges. Mr. Artimez also admitted that his sexual relationship with Mrs. Crook constituted a conflict of interest between his interests and those of his client, Mr. Crook, in violation of Rule 1.7(b) of the West Virginia Rules of Professional Conduct. Ultimately, the parties concluded that "Respondent's [Mr. Artimez's] written agreement to pay money to complainant [Mr. Crook], which agreement contained complainant's promise not to take any action which might lead to a disciplinary action, violated Rule 8.4(d) of the Rules of Professional Conduct[.]" Additionally,

[t]he parties have agreed to omit a conclusion of law that Respondent violated Rule 1.7(b) of the Rules of Professional Conduct by having a relationship with Mr. Crook's wife because this issue was one of first impression with the Investigative Panel. Since Dana Crook was not Respondent's client, the clear prohibition of

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