Lawyer Disciplinary Bd. v. Duffy
| Decision Date | 15 June 2017 |
| Docket Number | Nos. 16-0181 & 16-0614,s. 16-0181 & 16-0614 |
| Citation | 801 S.E.2d 496 |
| Court | West Virginia Supreme Court |
| Parties | LAWYER DISCIPLINARY BOARD, Petitioner v. Kevin C. DUFFY, a suspended member of The West Virginia State Bar, Respondent |
Renée V. Frymyer, Esq., Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, West Virginia, Counsel for the Petitioner
Kevin C. Duffy, Pro Se, Clay, West Virginia, Counsel for the Respondent
This lawyer disciplinary proceeding arises from charges filed by the Petitioner, the Lawyer Disciplinary Board ("Board") against the Respondent, Kevin C. Duffy ("Mr. Duffy"), a lawyer currently suspended, pursuant to two consolidated statements of charges. The charges relate to Mr. Duffy's representation of clients in sexual assault and sexual abuse and child abuse and neglect proceedings, unprofessional and inappropriate interaction with persons involved in his lengthy and contentious divorce proceedings, and misdemeanor theft and drunken driving charges in Ohio.
The Board's Hearing Panel Subcommittee ("HPS") recommended that this Court adopt the jointly proposed findings of fact and conclusions of law by the Office of Disciplinary Counsel ("ODC") and Mr. Duffy as to the numerous violations of the West Virginia Rules of Professional Conduct, which will be discussed in detail below. The HPS also recommended adoption of the jointly proposed recommendations as to discipline with two modifications. The jointly proposed sanctions included 1) a three-month suspension served retroactively from the date of Mr. Duffy's current temporary suspension, 2) an automatic reinstatement followed by two years of supervised practice, 3) regular attendance at 12-step program1 meetings with written proof provided to the ODC, and 4) payment of costs.
The HPS's suggested modifications to the joint recommendations were that Mr. Duffy be required to apply for reinstatement and that the ODC and Mr. Duffy work with the West Virginia Lawyer Assistance Program ("LAP") to develop a detailed plan and accountability schedule so that he may receive the full spectrum of support, which the HPS concluded he needed to avoid recidivism.
The ODC filed a consent letter with this Court agreeing to the suggested modifications to the joint recommendations as to discipline. Mr. Duffy did not file an objection. In our order dated January 4, 2017, we notified the parties that the Court did not concur with the recommendations of the HPS and scheduled the matters for oral argument.
Upon consideration of the parties' briefs and arguments, the submitted record and pertinent authorities, this Court finds that there is clear and convincing evidence to support the HPS's recommendations regarding the violations of the West Virginia Rules of Professional Conduct. We concur with the recommended sanctions of 1) petition for reinstatement, 2) referral to the LAP and 3) payments of costs. However, for the reasons explained below, we suspend Mr. Duffy's license to practice law for twelve months retroactively to June 2, 2016, the date of Mr. Duffy's temporary suspension pursuant to this Court's order in ODC v. Duffy , 237 W. Va. 295, 787 S.E.2d 566 (2016).
Mr. Duffy is a suspended lawyer who practices in Clay County, West Virginia. Mr. Duffy was admitted to the West Virginia State Bar on November 20, 1996. The matters before us involve two disciplinary proceedings that have been consolidated for purposes of disposition.
Count I relates to Mr. Duffy's representation of Charles R. Emerson who was convicted of first-degree sexual assault and first-degree sexual abuse. Mr. Duffy appealed his client's convictions, which this Court affirmed in State v. Emerson , No. 13-0571, 2014 WL 1672953 (W. Va. April 25, 2014) (memorandum decision). Thereafter, Mr. Emerson filed a complaint with the ODC alleging that Mr. Duffy failed to forward his case file so that he could petition for a writ of habeas corpus. In response to the complaint, the ODC directed Mr. Duffy by letter dated August 28, 2014, to provide a copy of the complete file to Mr. Emerson within twenty days and to provide the ODC with verification that he had complied with the directive. Nearly one month later, Mr. Emerson again notified the ODC that he never received his file. Mr. Duffy also never provided the ODC with verification that he had followed through with its directive of August 28, 2014.
The ODC opened the complaint and sent Mr. Duffy a letter dated October 15, 2014, providing him with a copy of Mr. Emerson's complaint and requesting a response within twenty days. Again, Mr. Duffy did not respond. On December 18, 2014, the ODC sent another letter, this time sent certified mail with return receipt requested, directing Mr. Duffy to file a response by January 5, 2015, and advising him that failing to do so could result in the ODC issuing a subpoena requiring Mr. Duffy to appear for a sworn statement. Mr. Duffy signed for the certified letter on December 23, 2014.
Once again, Mr. Duffy did not file a verified response to the complaint of Mr. Emerson. Therefore, the ODC issued a subpoena on March 4, 2015, for Mr. Duffy to appear on April 21, 2015 to give a sworn statement. Mr. Duffy appeared and provided a verified, written response to Mr. Emerson's complaint, over five months past its original due date, explaining that he had provided a copy of the complete file to Mr. Emerson's current counsel and that Mr. Emerson instructed numerous times that while he was incarcerated, Mr. Duffy was not to send him any items related to his conviction out of fear for his safety. Mr. Duffy also stated that the handwriting in the complaint was not Mr. Emerson's handwriting.
When asked why he did not just file a verified response to the October 15, 2014, letter, Mr. Duffy answered under oath, Mr. Duffy explained that he was angry that his malpractice insurance had increased because of other pending ethics complaints docketed by the ODC that he felt were frivolous. With respect to resolution of the complaint, Mr. Emerson later admitted that his current attorney had his case file and that, at one point, he had instructed Mr. Duffy not to send his case file to him in prison.
However, because of his repeated failure to respond to numerous lawful requests for information by the ODC, the Investigative Panel ("IP") charged Mr. Duffy with violating Rule 8.1(b) 2 of the West Virginia Rules of Professional Conduct.
Count II arises from Mr. Duffy's representation of Glen W. Tanner in a child abuse and neglect case that resulted in the termination of Mr. Tanner's parental rights in July 2014. After the appeal period passed, Mr. Tanner filed a complaint on October 9, 2014, alleging that Mr. Duffy failed to appeal the decision to terminate his parental rights as Mr. Tanner requested.
Exhibiting the same pattern of conduct as in the complaint of Mr. Emerson, Mr. Duffy received a letter from the ODC directing him to contact Mr. Tanner and provide a detailed update as to the status of his case within ten days and then follow up with written verification to the ODC that he had complied with the directive. On November 12, 2014, Mr. Tanner complained that he had not had any further contact with Mr. Duffy. Similarly, the ODC had not received verification from Mr. Duffy that he had complied with its directive. The ODC opened a complaint, and on December 12, 2014, the ODC sent a letter to Mr. Duffy with a copy of Mr. Tanner's complaint and asked him to file a response within twenty days. Mr. Duffy did not respond.
The ODC sent a second letter on January 15, 2015, this time sent certified mail with return receipt requested, advising Mr. Duffy to file a response within seven days or receive a subpoena to appear in person and give a sworn statement. Mr. Duffy signed for the certified letter on January 22, 2015. However, he did not file a response to the complaint. As in the Emerson complaint, the ODC issued the subpoena commanding Mr. Duffy to appear on April 21, 2015. In his sworn statement, Mr. Duffy said he failed to respond because he thought he was getting information about a different complaint, and he did not read the correspondence from the ODC. As he had previously stated, "I just can't stand your office and [I was] just being obnoxious to you," when asked to explain his failure to respond.
Mr. Duffy defended his representation of Mr. Tanner asserting that Mr. Tanner lost his parental rights because of his own failure to pass multiple drug screens, his repeated failure to attend hearings, and his prior criminal convictions for manslaughter, grand larceny and multiple misdemeanors. Mr. Duffy did not believe there was any good faith basis for an appeal, but he did not communicate that to Mr. Tanner and did not attempt to withdraw as counsel. Moreover, he did not seek informal advice from the ODC regarding his obligation to file an appeal on behalf of a client in an abuse and neglect matter.
The IP charged Mr. Duffy with four violations of the West Virginia Rules of Professional Conduct3 as a result of this complaint. The first was a violation of Rule 1.2(a) (scope of representation)4 because Mr. Duffy failed to abide by Mr. Tanner's decisions concerning the objectives of the representations relating to filing the appeal that raised arguable points of error. Second, the IP charged Mr. Duffy with a violation of Rule 1.3(diligence)5 because he failed to file the appeal on behalf of Mr. Tanner or withdraw as his lawyer. The third violation was of Rule 1.4 (communication)6 because Mr. Duffy failed to respond to Mr. Tanner's requests for information and failed to explain to Mr. Tanner the reason that he did not file Mr. Tanner's appeal. Fourth, the IP charged that Mr. Duffy violated Rule 8.1(b)7 for failing to respond to the ODC's lawful request for...
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Lawyer Disciplinary Bd. v. Munoz
...were additional aggravating circumstances or sanctionable conduct not present in this case. See Lawyer Disciplinary Bd. v. Duffy, 239 W.Va. 481, 801 S.E.2d 496 (2017) (memorandum decision) (suspending attorney for one year based on failure to file appeal for client, absence of court appeara......