Lawyer Disciplinary Bd. v. Morgan, 35513.

• Decision Date: 25 October 2011
• Docket Number: No. 35513.,35513.
• Citation: 717 S.E.2d 898,228 W.Va. 114
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. Dennie S. MORGAN, Jr., a member of the West Virginia State Bar, Respondent.

228 W.Va. 114

717 S.E.2d 898

LAWYER DISCIPLINARY BOARD, Petitioner

v.Dennie S. MORGAN, Jr., a member of the West Virginia State Bar, Respondent.

No. 35513.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 2011.Decided Oct. 25, 2011.

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 the West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).” Syllabus point 1, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

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 v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

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 [West Virginia Supreme Court of Appeals] or [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. “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).

5. “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).

6. “ ‘ “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 v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).’ Syl. Pt. 5, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).” Syllabus point 7, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

Rachael L. Fletcher Cipoletti, Jessica H. Donahue, Office of Disciplinary Counsel, Charleston, WV, Attorney for the Complainant.

Dennie S. Morgan, Jr., Oceana, WV, pro se.

PER CURIAM:

This lawyer disciplinary proceeding against Dennie S. Morgan, Jr. (“Mr. Morgan”) was brought to this Court by the Office of Disciplinary Counsel (“ODC”) on behalf of the Lawyer Disciplinary Board (“Board”). The Board's Hearing Panel Subcommittee (“HPS”) determined that Mr. Morgan committed numerous violations of the West Virginia Rules of Professional Conduct and recommended that Mr. Morgan be reprimanded, as well as other recommendations that will be more fully set forth in this opinion. Both the ODC and Mr. Morgan agree with the recommended punishments as set forth by the HPS. Based upon the parties' arguments to this Court, the record designated for our consideration, and the pertinent authorities, we agree with all but one recommendation set forth by the HPS. Specifically, we reject the HPS's recommendation that a public reprimand is sufficient discipline for the misconduct involved in this case and determine, instead, that a one-year license suspension is appropriate. The remaining HPS recommendations are adopted in full.

I.FACTUAL AND PROCEDURAL HISTORY

Mr. Morgan is a solo practitioner with his primary location of business in Wyoming County, West Virginia. He was admitted to the West Virginia State Bar in 2001. In the underlying disciplinary proceeding, Mr. Morgan entered into a stipulation with ODC as to all of the violations of misconduct as alleged in the Statement of Charges. The stipulation also set forth the recommended sanctions, which were adopted by the HPS. However, this Court, by order of March 31, 2011, disagreed with the recommended disposition and set this case for further review. A background of the undisputed facts follows.

A. Count 1—Complaint of Claude E. Weatherly, Jr.

Claude E. Weatherly, Jr., paid the sum of $4,000.00 to Mr. Morgan on September 27, 2007, for Mr. Morgan's representation of his son, Keith Dale Weatherly (“Keith”), who had been indicted in Monroe County Circuit Court on September 11, 2007. Previously, Justin St. Clair, Esquire, had been appointed as counsel for Keith and was reappointed around September 30, 2007. Despite Mr. Morgan's retention in the case, Mr. St. Clair filed several motions on behalf of Keith. The circuit court approved Mr. Morgan's substitution as counsel on December 17, 2007. On February 26, 2008, the circuit court judge scheduled a status conference for March 3, 2008. The order noted that “[Mr. Morgan] failed to appear for a previously scheduled status conference” and that “the Court made several attempts to contact [Mr. Morgan] at his office to schedule a date for the conference, but has not received any feedback regarding possible dates that would be suitable.” Thereafter, on March 17, 2008, Mr. Morgan failed to appear for another status conference, which was then rescheduled for April 7, 2008.

On April 11, 2008, Mr. Morgan and the client's father met to discuss a refund of the $4,000.00 payment due to Mr. Morgan's failure to attend several court appearances and failure to communicate. Mr. Morgan provided his client's father with a check refunding the full amount, but later stopped payment on the check.¹ The client's father eventually filed a civil action to obtain a default judgment against Mr. Morgan for the refund. He also filed a complaint with the ODC. Mr. Morgan failed to respond to the complaint as requested by the ODC on several occasions. In October 2009, the ODC requested and obtained a subpoena compelling Mr. Morgan to appear for a sworn statement, which eventually took place on December 2, 2009. During the sworn statement, the ODC requested a bill, accounting, and/or invoice for the work performed. The request was followed by a letter reiterating the request; however, Mr. Morgan failed to respond. A second letter was sent on January 11, 2010, to which Mr. Morgan again failed to respond. A third letter requesting this information was returned as unclaimed on February 16, 2010.

B. Count 2—Complaint of Trampes E. Morgan

In July 2008, Trampes Morgan contacted Mr. Morgan about representation in a civil action in Braxton County for which he paid Mr. Morgan $2,600.00. At the beginning of his representation, Mr. Morgan would inform his client about upcoming hearings, only to then tell the client that court hearings had been postponed due to opposing counsel. This happened on at least three occasions. Eventually, Mr. Morgan failed to answer his client's phone calls or return messages. The client also discovered that, despite Mr. Morgan's representations, nothing had been filed in court.

In February 2009, Trampes Morgan filed a complaint against Mr. Morgan with the ODC. The ODC forwarded the complaint to Mr. Morgan, requesting a verified response within twenty days. Mr. Morgan failed to respond; thus, the ODC sent a second letter that was signed for and received by Mr. Morgan on March 12, 2009. Mr. Morgan's reply was filed on March 30, 2009.

C. Count 3—Complaint of Treasa Neace

On March 29, 2011, Treasa Neace retained Mr. Morgan to represent her in a Wyoming County Family Court matter and paid him $5,000.00. From April 2006 through December 2008, Mr. Morgan represented the client in various hearings and filed various motions. The final family court hearing in the divorce case was held October 1, 2008. The client, on October 10, 2008, contacted Mr. Morgan by email regarding an appeal to the circuit court in the case. Thereafter, Mr. Morgan executed a handwritten document indicating that he was paid, in full, $2,000.00 to appeal the case. On November 1, 2008, the client paid Mr. Morgan an additional $3,000.00. A final divorce order was entered by the family court on December 2, 2008. On both December 11, 2008, and December 26, 2008, the client contacted Mr. Morgan by email concerning his failure to communicate with her. The client filed a pro se appeal of the final order in circuit court on December 30, 2008, and, on January 29, 2009, the client again contacted Mr. Morgan by email concerning a failed meeting attempt and asking for her client file. Further correspondence was attempted on February 12, 2009. On February 17, 2009, the client sent a certified letter informing Mr. Morgan of his dismissal as her counsel; however, the letter was returned to the client on March 3, 2009.

The client filed a complaint with the ODC regarding Mr. Morgan on March 2, 2009. The next day, the ODC forwarded the complaint to Mr. Morgan, who filed his response on April 8, 2009. During...