Lawyer Disciplinary Bd. v. Dues

• Decision Date: 19 December 2005
• Docket Number: No. 31713.,31713.
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Complainant, v. Theodore R. DUES, Jr., A Member of the West Virginia State Bar, Respondent.

Page 125

624 S.E.2d 125

LAWYER DISCIPLINARY BOARD, Complainant, v. Theodore R. DUES, Jr., A Member of the West Virginia State Bar, Respondent.

No. 31713.

Supreme Court of Appeals of West Virginia.

Submitted November 1, 2005.

Decided November 17, 2005.

Dissenting Opinion of Justice Benjamin December 19, 2005.

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).

2. "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).

3. In a lawyer disciplinary proceeding, a mental disability is considered mitigating when: (1) there is medical evidence that the attorney is affected by a mental disability; (2) the mental disability caused the misconduct; (3) the attorney's recovery from the mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.

Lawrence J. Lewis, Chief Lawyer Disciplinary Counsel, Rachael L. Fletcher, Lawyer Disciplinary Counsel, Charleston, for Complainant.

Thomas W. Smith, Charleston, for Respondent.

DAVIS, J.

This is a lawyer disciplinary proceeding brought against Theodore R. Dues, Jr. (hereinafter referred to as "Mr. Dues") by the Office of Disciplinary Counsel (hereinafter referred to as "the ODC") on behalf of the Lawyer Disciplinary Board (hereinafter referred to as "the Board"). A Hearing Panel Subcommittee of the Board determined that Mr. Dues committed thirty-nine violations of the Rules of Professional Conduct. Consequently, the Board and The ODC have recommended (1) that Mr. Dues' license to practice law be suspended for eighteen months; (2) that he establish, as a condition of reinstatement, that he is mentally and emotionally fit to practice law; (3) that upon reinstatement he be supervised in the practice of law for two years; (4) that he make restitution to various former clients in an amount that totals $13,000.00; (5) that he reimburse the State Bar Client Protection Fund $5,500.00; and (6) that he pay the costs of this disciplinary proceeding in the amount of $1,968.16.

Mr. Dues does not contest the Board's findings of thirty-nine violations of the Rules of Professional Conduct. However, Mr. Dues contends that the suspension recommendation is too harsh in light of mitigating circumstances. Based upon the parties' arguments to this Court, the record designated for our consideration, and the pertinent authorities, we agree with Mr. Dues that a suspension of his law license is not appropriate. Consequently, we conclude that the following sanctions shall be imposed upon Mr. Dues: (1) public reprimand; (2) that for a period of twenty-four months his practice of law shall be restricted solely to work as a mental hygiene commissioner; (3) that he shall be supervised during this period by the chief judge¹ of the Circuit Court of Kanawha County; (4) that as a condition of returning to the full practice of law at the end of the twenty-four month period, he must provide the Office of Disciplinary Counsel with written documentation from a mental health provider indicating that his diagnosed severe depression is under control; (5) that he make restitution to various former clients in an amount that totals $13,000.00; (6) that he reimburse the State Bar Client Protection Fund $5,500.00; and (7) that he pay the costs of this disciplinary proceeding in the amount of $1,968.16.

I. FACTUAL BACKGROUND

On March 1, 2004, an eleven count statement of charges was filed against Mr. Dues by an investigative panel. The charges arose as a result of nine complaints filed against him by former clients and two complaints filed by the ODC. The facts underlying each of the eleven counts are summarized below.

First Charge. In January of 2001, James C. Meeks retained Mr. Dues to represent him in a civil action in which Mr. Meeks was sued in his capacity as executor of his mother's estate. In March of 2002, Mr. Dues informed Mr. Meeks that he was going to have heart surgery and that other attorneys would be available to handle his case. However, no other attorney contacted Mr. Meeks. It was not until November of 2002 that Mr. Meeks was able to make contact with Mr. Dues. During the November contact, Mr. Dues informed Mr. Meeks that he was scheduling a meeting with a judge and that he would contact Mr. Meeks in two weeks. Mr. Dues failed to contact Mr. Meeks as promised. After several attempts to contact Mr. Dues, Mr. Meeks filed an ethics complaint on March 15, 2003. Subsequent to the filing of the ethics complaint, the ODC attempted to communicate with Mr. Dues by mail on two occasions. He made no response to either communication.

As a consequence of Mr. Meeks' complaint, the Board found that Mr. Dues violated Rule 1.3 by not pursuing the case diligently.² The Board also determined that Mr. Dues violated Rule 1.4 by failing to communicate with his client,³ and Rule 1.16(d) by failing to terminate representation.⁴ Additionally, the Board found that Mr. Dues' failure to respond to the ODC's correspondence was a violation of Rule 8.1(b).⁵

Second Charge. In 1998, Lavern E. Ruth retained Mr. Dues to represent her son, who had received a leg injury in an automobile accident. Mr. Dues settled the case out of court. As a result of complications arising from surgery on her son's leg, Ms. Ruth retained Mr. Dues for the purpose of bringing a medical malpractice action. In July of 2001, Ms. Ruth paid Mr. Dues $1,058.92 for an expert to review her son's medical records. Ms. Ruth was not pleased with the results of the review and thereafter, in January of 2002, she paid Mr. Dues an additional $2,000.00 for a second opinion by another expert. As a result of Mr. Dues' failure to provide Ms. Ruth with information about the second expert review, she filed an ethics complaint in April of 2003. After the filing of the ethics complaint, the ODC attempted to communicate with Mr. Dues by mail on two occasions. He failed to respond to either communication.

As a consequence of Ms. Ruth's complaint, the Board found that Mr. Dues violated Rule 1.3 by not pursuing the case diligently,⁶ and Rule 1.4 by failing to communicate with his client.⁷ Additionally, the Board found that Mr. Dues' failure to respond to the ODC's correspondence was a violation of Rule 8.1(b).⁸

Third Charge. On an unspecified date Herbert and Hubert McKinney retained Mr. Dues to represent them in several matters. At some unknown period, communication between Mr. Dues and the McKinneys stopped. In April of 2003, the McKinneys sent a letter to Mr. Dues and requested the return of their file materials. The letter was returned marked "Unclaimed." Thereafter, in May of 2003, the McKinneys filed an ethics complaint against Mr. Dues. After the filing of the ethics complaint, the ODC attempted to communicate with Mr. Dues by mail on one occasion, but no response was made to the communication.

As a consequence of the McKinneys' complaint, the Board found that Mr. Dues violated Rule 1.4 by failing to communicate with his clients,⁹ and Rule 1.16(d) by failing to return the McKinneys' file materials.¹⁰ Additionally, the Board found that Mr. Dues' failure to respond to the ODC's correspondence was a violation of Rule 8.1(b).¹¹

Fourth Charge. In 2000, Mr. Dues filed a medical malpractice action on behalf of Jeannettia D. Spencer. During the course of the litigation, Mr. Dues failed to engage in discovery and neglected the case. The case was eventually dismissed with prejudice without Ms. Spencer's knowledge. As a result of Mr. Dues' failure to keep in contact with Ms. Spencer, she sent him a letter terminating his services and requesting her file materials. Mr. Dues failed to turn over the file materials. In June of 2003, Ms. Spencer filed an ethics complaint against Mr. Dues. After the filing of the ethics complaint, the ODC attempted to communicate with Mr. Dues by mail on one occasion, but no response was made to the communication.

As a consequence of Ms. Spencer's complaint, the Board found that Mr. Dues violated Rule 1.1 by failing to competently represent his client.¹² The Board also found that Mr. Dues violated Rule 1.4 by failing to communicate with his clients,¹³ and Rule 1.16(d) by failing to return Ms. Spencer's file materials.¹⁴ Additionally, the Board found that Mr. Dues' failure to respond to The ODC's correspondence was a violation of Rule 8.1(b).¹⁵

Fifth Charge. In March of 2002, Raymond J. Smith paid Mr. Dues $3,500.00 as a retaining fee to represent him in a discrimination case. Prior to the case going to trial, Mr. Dues referred the case to another attorney. In doing so, Mr. Dues agreed to forward a portion of the retainer fee, $2,700.00, to the new attorney and to return the balance of $800.00 to Mr. Smith. However, Mr. Dues failed to return the money promised to Mr. Smith. After Mr. Smith made several unsuccessful attempts to contact Mr. Dues,...