Lawyer Disciplinary Bd. v. Duty

Citation671 S.E.2d 763
Decision Date25 November 2008
Docket NumberNo. 33069.,33069.
PartiesLAWYER DISCIPLINARY BOARD, Petitioner v. William H. DUTY, a member of The West Virginia State Bar, Respondent.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. "A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar [currently, the Hearing Panel Subcommittee of 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 Committee's recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the Committee's findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record." Syl. pt. 3, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

2. "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 Court [Supreme Court of Appeals of West Virginia] or Board [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.'" Syl. pt. 4, Office of Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

3. "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." Syl. pt. 3, Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

4. "Disbarment of an attorney to practice law is not used solely to punish the attorney but is for the protection of the public and the profession." Syl. pt. 2, In re Application by Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970).

Rachael L. Fletcher Cipoletti, Esq., Chief Lawyer, Office of Disciplinary Counsel, Charleston, WV, for the Petitioner.

William H. Duty, Williamson, WV, pro se.

PER CURIAM:

This lawyer disciplinary proceeding concerning the respondent, William H. Duty, is before this Court upon the findings of the Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board and the Subcommittee's recommended sanctions: (1) that respondent Duty's license to practice law in the State of West Virginia be annulled; (2) that he make restitution in the amount of $2,000 to Randy Stiltner, one of his former clients; (3) that, as a condition of any reinstatement, respondent Duty's practice be supervised for a period of two years, that he be required to participate in an alcoholics anonymous or narcotics anonymous program approved by the Office of Disciplinary Counsel, and that respondent Duty complete 12 hours of legal ethics education; and (4) that he pay the costs of this proceeding.

Respondent Duty was admitted to The West Virginia State Bar in 1986 and maintains a private law practice in Williamson, Mingo County, West Virginia. The findings and recommended sanctions of the Hearing Panel Subcommittee arose from a five-count Statement of Charges filed in this Court by the Investigative Panel of the Lawyer Disciplinary Board. Following an evidentiary hearing, the Hearing Panel Subcommittee found that the allegations were proven and that the respondent's actions constituted transgressions of the West Virginia Rules of Professional Conduct. The Subcommittee's Report containing its findings and the recommended sanctions was filed in this Court on May 17, 2007. Although Duty filed an objection to the Report, he did not file a brief. Nor did he appear before this Court when this matter was called for oral argument.1

On February 15, 2008, this Court filed an opinion adopting the recommended sanctions. Thereafter, respondent Duty filed a petition for rehearing. By order entered on April 3, 2008, a rehearing was granted, and Disciplinary Counsel and respondent Duty appeared and submitted argument before this Court.2

Consequently, this Court has before it the findings and recommendations of the Hearing Panel Subcommittee, all matters of record and the briefs and argument of the parties.3 Upon review by this Court de novo, and for the reasons expressed below, this Court again concludes that the findings of the Subcommittee are supported by the evidence and that this Court should adopt the recommended sanctions. Accordingly, relief is denied with regard to respondent Duty's petition for rehearing.4

I. Procedural Background

In April 2006, the Investigative Panel of the Lawyer Disciplinary Board, upon a finding of probable cause, filed a five-count Statement of Charges against Duty alleging a number of violations of the West Virginia Rules of Professional Conduct.

Count I (I.D. No. 05-03-165) was based upon an ethics complaint filed by Sandy Gillman in March 2005. Gillman, a former client of the respondent, asserted that, although she hired Duty in June 2004 to pursue her personal injury claim, he failed to tell her until three days before the running of the statute of limitations in March 2005 that, unless she paid a $200 filing fee, he would not file the action on her behalf. Gillman was unable to raise the money or obtain new counsel upon such short notice, and the action was never filed. Count II (I.D. No. 04-03-133) arose from an ethics complaint filed in March 2004 by Sheria Fields, a former employee of the respondent. Fields, a nonlawyer who was discharged by respondent Duty, asserted that Duty violated the Rules of Professional Conduct by agreeing to share his fee with her with regard to his representation of Ernest Prater in a personal injury action. In related Count III (I.D. No. 04-02-256), Prater, in an ethics complaint filed in April 2004, alleged that respondent Duty attempted to withhold $3,500 in expenses from Prater's settlement. According to Prater, no such expenses were incurred. Count IV (I.D. Nos. 04-03-431 and 04-03-432) was based upon ethics complaints filed in August 2004 by Rita Sammons and her sister, Rachel Lockhart. Under this Count, respondent Duty is charged with opening a checking account in his own name with a $25,000 settlement check belonging to Lockhart, rather than opening a trust account for the $25,000 as Lockhart requested. Duty allegedly used the checking account for his personal and office expenses and co-mingled Lockhart's funds with other monies. Finally Count V (I.D. No. 04-03-541) arose from an ethics complaint filed by Randy Stiltner in September 2004. Stiltner hired respondent Duty to pursue his claim that a mobile home he purchased was defective. The ethics complaint concerns an attorney fee dispute wherein Stiltner alleged that, after paying Duty various attorney fees, Duty unfairly attempted to withhold an additional $2,500 from Stiltner's settlement of the claim.

On January 18, 2007, an evidentiary hearing upon the Statement of Charges was conducted before the Hearing Panel Subcommittee, and the testimony of a number of witnesses and approximately 80 exhibits were placed in the record. Respondent Duty was represented at the hearing by attorney Glen R. Rutledge. On May 17, 2007, the Subcommittee filed a Report setting forth its findings and the above recommended sanctions. This Court will discuss the Subcommittee's findings and recommended sanctions more fully below. In September 2007, this Court entered an order scheduling this matter for oral argument on January 8, 2008. Respondent Duty, proceeding pro se, did not file a brief in this Court. Nor did he appear when this matter was called for oral argument. As stated above, following the filing of an opinion in this matter, this Court granted the respondent a rehearing, and briefs and argument were submitted.

II. Standards of Review

In Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), this Court took the opportunity to "resolve any doubt as to the applicable standard of review" in lawyer disciplinary cases. 192 W.Va. at 289, 452 S.E.2d at 380. Thus, syllabus point 3 of McCorkle holds:

A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar [currently, the Hearing Panel Subcommittee of 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 Committee's recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the Committee's findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.

Syl. pt. 1, Lawyer Disciplinary Board v. Lakin, 217 W.Va. 134, 617 S.E.2d 484 (2005); syl. pt. 1, Lawyer Disciplinary Board v. Lusk, 212 W.Va. 456, 574 S.E.2d 788 (2002); syl. pt. 3, Lawyer Disciplinary Board v. Barber, 211 W.Va. 358, 566 S.E.2d 245 (2002); syl. pt. 2, Lawyer Disciplinary Board v. Turgeon, 210 W.Va. 181, 557 S.E.2d 235 (2000), cert. denied, 534 U.S. 841, 122 S.Ct. 99, 151 L.Ed.2d 59 (2001).

The above standard of review is consistent with this Court's ultimate authority with regard to legal ethics matters in this State. As syllabus...

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    ...that lawyers charge a reasonable fee set forth in Rule 1.5(a). This is a violation of Rule 8.4(a). See Lawyer Disciplinary Bd. v. Duty, 222 W.Va. 758, 671 S.E.2d 763, 770 (2008) (concluding that lawyer's attempt to withhold $3500 in undocumented expenses violated Rules 1.5(a) and 8.4(a) eve......
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