Lawyer Disciplinary Bd. v. Cain, 20-0252

CourtSupreme Court of West Virginia
Writing for the CourtJenkins, Chief Justice
Citation245 W.Va. 693,865 S.E.2d 95
Parties LAWYER DISCIPLINARY BOARD, Petitioner v. Joshua C. CAIN, Respondent
Docket NumberNo. 20-0252,20-0252
Decision Date01 November 2021

245 W.Va. 693
865 S.E.2d 95

LAWYER DISCIPLINARY BOARD, Petitioner
v.
Joshua C. CAIN, Respondent

No. 20-0252

Supreme Court of Appeals of West Virginia.

Submitted: September 29, 2021
Filed: November 1, 2021


Rachael L. Fletcher Cipoletti, Chief Lawyer Disciplinary Counsel, Renée N. Frymyer, Lawyer Disciplinary Counsel, Office of Lawyer Disciplinary Counsel, Charleston, West Virginia, Attorneys for the Petitioner.

Sean T. Logue, Logue Law Group, Carnegie, Pennsylvania, Attorney for the Respondent.

Jenkins, Chief Justice:

865 S.E.2d 98

This lawyer disciplinary proceeding is before us upon the objection of Respondent Joshua C. Cain, Esq. ("Mr. Cain") to the recommended discipline of the Hearing Panel Subcommittee ("HPS") of the Lawyer Disciplinary Board ("LDB"), arising from a single disciplinary complaint. Mr. Cain was found to have violated several West Virginia Rules of Professional Conduct because of his overbilling the West Virginia Public Defender Services ("PDS"). The HPS recommended that Mr. Cain be subjected to a 180-day suspension and two-year supervised practice upon reinstatement; remain compliant with a West Virginia Judicial and Lawyer Assistance Program ("WVJLAP") monitoring agreement; and pay all costs of these disciplinary proceedings. The Office of Disciplinary Counsel ("ODC") consented to the recommendation of the HPS. Mr. Cain's sole objection is to the recommended sanction. He argues that he should instead be subjected to only a ninety-day suspension rather than the recommended 180-day suspension.

After a thorough review of the record developed before the HPS, and upon careful consideration of the parties’ briefs and oral arguments and the relevant law, this Court agrees that Mr. Cain has violated multiple Rules of Professional Conduct and approves of the recommendations of the HPS. In addition to the recommended sanctions of the HPS, we further order that Mr. Cain must complete six hours of Continuing Legal Education ("CLE") in law practice management over and above the customary requirement.

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Cain was admitted to the West Virginia State Bar in April of 2011 and practices in and around Moundsville, West Virginia.1 Accordingly, he is subject to the disciplinary jurisdiction of this Court and its properly constituted LDB. Below we set out the conduct underlying this disciplinary matter as well as the relevant procedural history.

A. Underlying Conduct and Factual Background

On August 31, 2017, Dana Eddy, Esq. ("Mr. Eddy"), the Executive Director of the PDS, received an email from the Honorable Jeffrey Cramer, Judge of the Second Judicial Circuit, West Virginia, explaining that Mr. Cain had submitted to the Judge eighty-five payment vouchers accompanied by a proposed order approving payment of appointed counsel fees and expenses for each of the vouchers.2 Judge Cramer noted in the correspondence that many of the vouchers concerned matters for which a final disposition had been made eight to ten months before submission of the vouchers. Judge Cramer further explained that upon his inspection of the submitted payment vouchers, he observed additional irregularities. These irregularities included, but were not limited to, the following: (1) many of the vouchers contained unreasonable amounts of time opening, reviewing, and closing files; (2) at least one voucher billed for a hearing that had not occurred; (3) many of the vouchers contained entries where Mr. Cain billed 1.5 hours of travel time to every Marshall County proceeding despite living in Moundsville, which

865 S.E.2d 99

is where the Marshall County Courthouse is located; and (4) many of the vouchers contained copying expenses that were excessive. Judge Cramer requested guidance from the PDS on how to proceed. This correspondence by Judge Cramer prompted an extensive investigation by the PDS into Mr. Cain's billing practices, including traveling to the Marshall County Courthouse to review the vouchers, and ultimately referring the matter to the Commission on Special Investigations.3

After a year of investigation, in November of 2018, Mr. Eddy filed a complaint with the LDB regarding Mr. Cain's overbilling practices in five specific areas. The first issue raised concerns over the date of the submission of the payment vouchers. Specifically, West Virginia Code section 29-21-13a (eff. 2008) provides,4 in relevant part, that payment vouchers "submitted more than ninety calendar days after the last date of service shall be rejected, unless for good cause, the appointing court authorizes in writing an extension[.]" Mr. Eddy advised that several of the vouchers Mr. Cain submitted related to cases for which final disposition had been made at least eight to ten months before submission of the vouchers. Furthermore, it was alleged that Mr. Cain had his payment vouchers returned by Judge Mark Karl, Judge of the Second Judicial Circuit5 in 2013 for being "excessive," and that, as a result, Mr. Cain purposefully waited until Judge Karl retired before submitting any additional vouchers in Marshall County. Accordingly, Mr. Eddy asserted that Mr. Cain invented a last date of service within the appropriate ninety-day timeframe to "make the voucher appear to be timely submitted."

The next area raised in the complaint concerned the travel billed by Mr. Cain. In particular, Mr. Eddy questioned whether Mr. Cain "billed for travel to and from his Marshall County residence[,] which is closer to the venues involved or for travel to and from [his] ‘Cameron’ office[.]" Also, while Mr. Cain claimed to maintain an office space in Cameron, and contended that he billed for travel between Cameron and the Northern Regional Jail or Marshall County Courthouse, an investigator from the Commission on Special Investigations reported that the office space was "in a state of disrepair and shambles," that "no phones or computer equipment [could] be seen," and that "[b]oxes [were] strewn everywhere[.]" According to the complaint, the office space was used for storage, and it was not equipped to be an everyday functional office.

The third matter raised in the complaint related to the amount of time Mr. Cain billed for waiting in court. It was asserted that, "almost exclusively, [Mr.] Cain bills a [0].5 hour for waiting in court." Mr. Cain's explanation for this billing practice was that he always arrived to court half an hour early; however, there is at least one instance in which a Marshall County Courthouse security video showed that Mr. Cain arrived at the time of a hearing but billed thirty minutes for waiting. Aside from issues regarding billing time waiting for court, the fifth issue raised concerns regarding the amount of time Mr. Cain billed for in-court proceedings. Specifically, Mr. Cain billed one hour for a significant number of hearings, and many others were billed in one-hour segments. However, Judge Cramer indicated that most of his hearings did not last anywhere near an hour. Finally, the complaint asserted that there were several other general issues with Mr. Cain's billing practices, including that Mr. Cain engaged in "pattern" billing regarding requesting reimbursement for copies and for time spent making digital backups of his

865 S.E.2d 100

files, and that these are administrative tasks that are not compensable.

Mr. Cain filed a response indicating that Mr. Eddy had "been extremely adversarial with [him] through this process and has waited over a year since [he] submitted [his] bills before filing a complaint, so most if any physical proof [he] would have showing [he] was in [his] office is gone." He further attempted to generally explain his billing practices by asserting that he has

endeavored to comply with the rules and regulations of the PD[S] office but that is a hard thing to do because there are no rules or regulations, so the best I can do is call on occasion or get back returned vouchers for some error and try to change my procedures to accommodate. On more than one occasion I have been given contradictory information on how to bill for my time.

B. Statement of Charges by the LDB and Hearing

A Statement of Charges was filed against Mr. Cain in March of 2020 by the Investigative Panel of the LDB, formally charging him with violating several Rules of Professional Conduct.6 In particular, the Statement of Charges alleged that by engaging in these billing activities, Mr. Cain violated Rule 3.3,7 Rule 1.5,8 Rule 8.4(c),9 and Rule 8.4(d)10 of the West Virginia Rules of Professional Conduct.

In response to the Statement of Charges, Mr. Cain filed an Answer. In his Answer, Mr. Cain admitted that he "avoided submitting the vouchers for approval by either Judge Karl or Judge [David W.] Hummel, [Jr., Judge of the Second Judicial Circuit,] as Judge Karl had already returned the vouchers as excessive." He further admitted that the vouchers he submitted to Judge Cramer were not timely submitted, that he "claimed miles that were not traveled," that his "Cameron office was mostly used as storage space and [was] not a functional everyday office," that he "consistently...

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