State ex rel. Odc v. Mooney

• Citation: 678 S.E.2d 296
• Decision Date: 27 February 2009
• Docket Number: No. 34592.,34592.
• Parties: STATE of West Virginia ex rel. OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. Joan A. MOONEY, a member of The West Virginia State Bar, Respondent.
• Court: Supreme Court of West Virginia

678 S.E.2d 296

STATE of West Virginia ex rel. OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. Joan A. MOONEY, a member of The West Virginia State Bar, Respondent.

No. 34592.

Supreme Court of Appeals of West Virginia.

Submitted February 3, 2009.

Decided February 27, 2009.

Syllabus by the Court

1. "`When this Court acts within its jurisdiction, its orders shall be promptly obeyed, or contempt is a proper sanction.' Syl. Pt. 1, United Mine Workers of America v. Faerber, 179 W.Va. 73, 365 S.E.2d 353 (1986)." Syl. Pt. 1, Office of Lawyer Disciplinary Counsel v. Cunningham, 200 W.Va. 339, 489 S.E.2d 496 (1997).

2. "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." Syl. Pt. 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).

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).

Rachael L. Fletcher Cipoletti Office of Disciplinary Counsel Charleston, WV, for Petitioner.

Joan A. Mooney, Pro Se.

PER CURIAM.¹

This matter was presented pursuant to a rule to show cause issued by this Court on November 12, 2008, against Respondent Joan A. Mooney, a member of the West Virginia State Bar,² upon a petition filed by the Office of Disciplinary Counsel ("ODC"). The rule directed Respondent to show cause why she should not be held in contempt of a previous order entered by this Court in a lawyer disciplinary matter. In that order, entered May 22, 2008, Respondent received an admonishment and was ordered, in relevant part, to sign and follow a plan of supervised practice for one year with a supervising attorney of Respondent's choice approved by the ODC; to undergo psychological counseling, follow a recommended treatment plan and provide evidence of same to the ODC; to complete an additional six hours of Continuing Legal Education, over and above that already required, during the 2006-08 reporting period; and to pay the costs incurred in the disciplinary proceeding.

For the reasons discussed below, we find Respondent to be in contempt of this Court's May 22, 2008, order and, accordingly, immediately suspend her license to practice law in this State until such time as she is in full compliance therewith.

I. Factual and Procedural Background

Underlying disciplinary matter

The underlying disciplinary proceeding stemmed from Respondent's representation of a client in a claim for disability benefits against an insurance company.³ Respondent was found to have violated Rule 1.3 of the Rules of Professional Conduct ("Diligence") for failure to diligently pursue a matter for which she was retained; failure to promptly forward discovery documents and requests to the client and her husband in that same matter; and failure to timely consult with that client and her husband regarding the matter. See Report of the Hearing Panel Subcommittee, filed March 12, 2008. Respondent also violated Rule 1.4(a) and (b) of the Rules of Professional Conduct ("Communication") because she failed to keep the client and her husband reasonably informed about the status of the client's case; failed to properly comply with reasonable requests for information; and failed to explain matters to the client and her husband to the extent reasonably necessary to permit them to make informed decisions regarding the representation. Id.

Additionally, Respondent was found to have violated Rule 8.1(b) of the Rules of Professional Conduct ("Bar admission and disciplinary matters") because she failed to respond to three separate requests for information made by the ODC regarding the foregoing ethics complaint and further, failed to comply with a subpoena to appear before the ODC for a sworn statement on a date designated by the ODC.⁴ Id.

In an order entered May 22, 2008, this Court ordered that Respondent be admonished and, in relevant part, that (1) Respondent sign and follow a plan of supervised practice for a period of one year with a supervising attorney of Respondent's choice approved by the ODC; (2) Respondent undergo comprehensive psychological counseling with a licensed psychologist, follow the psychologist's recommended treatment plan and provide evidence thereof to the ODC; (3) Respondent complete an additional six hours of Continuing Legal Education, over and above that already required, during the 2006-08 reporting period; and (4) Respondent pay $2,279.96, the costs incurred in the disciplinary proceeding.⁵

Rule to Show Cause

On October 17, 2008, the ODC filed with this Court a petition for a rule to show cause, requesting that Respondent be directed to show why she should not be held in contempt of the May 22, 2008, order. In support of its petition, the ODC asserted the following: that on or about July 8, 2008, it sent to Respondent a letter indicating she was required to nominate a supervising attorney for the ODC's approval. Enclosed with the letter was a draft supervision agreement. The July 8, 2008, letter also requested that Respondent identify her treating mental health professional. Enclosed therewith was a medical release form to be signed by Respondent, giving the ODC authorization to obtain reports from her mental health professional. Finally, the July 8, 2008, letter directed Respondent to provide evidence that she completed six additional Continuing Legal Education hours and to remit the costs of the disciplinary proceeding, in the amount of $2,279.96. All of the foregoing requests by the ODC were originally ordered in the May 22, 2008, order of this Court. According to the ODC, Respondent did not respond to its July 8, 2008, letter.

The ODC further alleged that on or about August 15, 2008, it sent a second letter to Respondent, enclosing therewith a copy of the July 8, 2008, letter, with attachments, and directing Respondent to respond within ten days. The ODC alleged that Respondent did not respond to its August 15, 2008, letter.

The petition for rule to show cause further stated that, in the meantime, on May 12, 2008, a second ethics complaint was filed against Respondent in a matter unrelated to the first ethics complaint. On May 21, 2008, the ODC sent to Respondent a letter directing her to file a response to the complaint within twenty days. Respondent did not file a response to the complaint. Thereafter, on June 18, 2008, the ODC mailed to Respondent a certified letter directing her to file a response to the complaint on or before June 30, 2008. The June 18, 2008, certified letter was returned as "unclaimed." A second certified letter from the ODC to Respondent directing her to file a response to the complaint was mailed on August 18, 2008. That certified letter was also returned as "unclaimed."

Respondent did not file a response to the ODC's petition for rule to show cause.

On November 12, 2008, this Court granted the ODC's petition for rule to show cause and directed Respondent to show cause why she should not be held in contempt of this Court's order of May 22, 2008. This Court further ordered that a rule be issued and directed against Respondent returnable before this Court on Tuesday, February 3, 2009. Respondent failed to appear at the February 3, 2009, hearing before this Court.

II. Standard for Imposition of Discipline

This matter requires that we exercise our authority to impose discipline upon Respondent for failure to comply with a prior order of this Court. It is well-settled that "`[w]hen this Court acts within its jurisdiction, its orders shall be promptly obeyed, or contempt is a proper sanction.' Syl. Pt. 1, United Mine Workers of America v. Faerber, 179 W.Va. 73, 365 S.E.2d 353 (1986)." Syl. Pt. 1, Office of Lawyer Disciplinary Counsel v. Cunningham, 200 W.Va. 339, 489 S.E.2d 496 (1997). See Syl. Pt. 4, State ex rel. Walker v. Giardina, 170 W.Va. 483, 294 S.E.2d 900 (1982) ("This Court possesses the power to punish a party for contempt of an order executed by this Court."). Furthermore, "[t]his 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." Syl. Pt. 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984). Accordingly, this Court must determine whether Respondent should be held in contempt of our May 22, 2008, order, and if we so find, we must then determine the appropriate sanction.

III. Discussion

When initially presented with Respondent's underlying misconduct and resulting violations of the Rules of Professional Conduct, the Hearing Panel Subcommittee recommended, inter alia, that Respondent receive a reprimand and several sanctions, which, as indicated above, required Respondent to undergo psychological counseling; to meet with a supervising attorney; to complete additional continuing legal education hours; and to pay the costs of the disciplinary proceeding.

In ordering an admonishment rather than a reprimand, a harsher sanction, this Court acknowledged, and indeed was sympathetic to, the fact that Respondent's misconduct included a psychological component. Moreover, in the May 22, 2008, order, Respondent was specifically directed, inter alia, to "undergo comprehensive psychological counseling with a licensed psychologist and specifically discuss this ethics complaint and the ensuing charges, [Respondent's] standard for client care, and the fact that she did not respond to the [ODC]." As previously noted, Respondent was also required to follow a recommended treatment plan and to...