Amie L. Johnson, Esq.
Lawrence E. Morhous, Esq.
Sherri D. Goodman, Esq. Bluefield, West Virginia
Lawyer Disciplinary Counsel Attorney for Respondent
Charleston, West Virginia
Attorneys for Complainant
The Opinion of the Court was delivered PER CURIAM.
JUDGE RISOVICH, sitting by special assignment.
JUSTICE SCOTT did not participate in the decision of the Court.
This disciplinary proceeding is before this Court upon a review of the March 31, 1999, Recommended Disposition of the Hearing Panel Subcommittee of the Lawyer Disciplinary Board (Board) concerning the respondent, Randall L. Veneri (Veneri), a member of the West Virginia State Bar. Veneri was charged with violating Rules 3.4(c) See footnote 1 1 and 8.4(c) See footnote 2 2 of the Rules of Professional Conduct for failing to file an asset disclosure form listing his client's two separate employee benefit plans during the course of his client's divorce. The Board recommends that the charges alleging violations of Rules 3.4(c) and 8.4(c) be dismissed. We accept the Board's findings and recommendations and dismiss those two charges.
Veneri was also charged with violating Rule 8.4(d)  of the Rules of
Professional ConductSee footnote 3
by engaging in conduct prejudicial to the administration of justice
when he failed to inform the family law master or opposing counsel that a proposed Qualified
Domestic Relations Order [QDRO] had been altered while in Veneri's office. The Board
found that this charge was substantiated and that sanctions were warranted. The Board
recommends that Veneri be suspended from the practice of law for 12 months, and that he
be required to pay the costs of these proceedings.
Upon a thorough review of the record, we agree that the charge of professional misconduct in violation of Rule 8.4(d)  was established by clear and convincing evidence. However, under the circumstances of this case, we find that an admonishment and the payment of costs are more appropriate penalties for Veneri.
At the final divorce hearing before a family law master the parties recited for
the record the settlement agreement that they had reached concerning the parties' property.
At the hearing, the parties demonstrated their belief that only one employee benefit plan
existed. A recommended order was prepared by the family law master, and Mrs.
Montgomery's attorney was instructed to draft the Qualified Domestic Relations Order
[QDRO], which would control the division of Mr. Montgomery's pension benefits.See footnote 4
The QDRO, as prepared by Mrs. Montgomery's attorney, provided for the division of the TIP benefit planSee footnote 5 5 and was forwarded to respondent Veneri for his inspection. Veneri turned the document over to the tax specialist at his law firm, his son, Anthony Veneri. Mr. Montgomery was also provided a copy of the proposed QDRO. Anthony Veneri was contacted by Mr. Montgomery, who stated that the proposed QDRO was incorrect. According to Mr. Montgomery, the TIP plan was not to be divided. Anthony Veneri examined the order of the law master that provided for a division of pension rights, but made no reference to a profit-sharing plan or TIP, and agreed with Mr. Montgomery. Without speaking to respondent Veneri about the matter, Anthony Veneri instructed his secretary to white-out the words Thrift and Investment Plan and type over them Corporation Retirement Plan.
Anthony Veneri took the altered copy of the QDRO to respondent Veneri without alerting him to the change, obtained his signature, and returned the same to counsel for Mrs. Montgomery. The Board found that while it was common practice for a secretary at the Veneris' law offices to contact opposing counsel and inform them of a change in a proposed order, for some reason this was not done in this case. The altered QDRO was then forwarded to the family law master by Mrs. Montgomery's counsel for the law master's signature, and then Mrs. Montgomery's counsel sent a certified copy of the QDRO to Norfolk Southern Corporation.
Norfolk Southern Corporation returned the QDRO to Mrs. Montgomery's counsel, informing her that the proposed QDRO did not qualify because the benefit plan described was not properly defined. The letter further informed Mrs. Montgomery's attorney that there were in fact two separate benefit plans -- not one.
Counsel for Mrs. Montgomery modified the QDRO, in accordance with the Norfolk Southern letter, to provide for the division of both plans. This modified QDRO was sent to Veneri. Mr. Montgomery refused to sign the modified QDRO. Subsequently Mrs. Montgomery filed a contempt petition alleging that Mr. Montgomery had refused to carry out the obligations required under the Agreed Order.
After a contempt hearing before the circuit court, the judge returned the case to the family law master for a determination of what was precisely meant by pension rights, the language contained in the Agreed Order. It was the position of Mr. Montgomery that the TIP was to be awarded to him alone and that only the retirement plan was to be divided. From a review of the record it appears that there was still some confusion of exactly what type of benefit plans Mr. Montgomery had. The record does reflect that during negotiations the parties contemplated the division of stocks; nevertheless, Veneri argued before the family law master that the agreement was only for the regular retirement plan, and not the TIP -- a stock plan.
No mention was made during the remanded proceedings before the family law master that the original QDRO had been altered at Veneri's law office. The family law master ruled that the TIP was marital property and that the TIP should be divided equally between the parties in addition to the retirement plan.
On December 16, 1993, the Circuit Court upheld the ruling of the family law master and the final order was entered. On June 12, 1995, Mrs. MontgomerySee footnote 6 6 filed an ethics complaint against Veneri. After an investigation by the Board, Veneri was charged with failing to file an asset disclosure form listing Mr. Montgomery's two retirement plans as required by W.Va. Code, 48-2-33  in violation of Rules 3.4(c) and 8.4(c) of the Rules of Professional Conduct. Veneri was also charged with altering language in the QDRO and then failing to inform the family law master or opposing counsel of the alteration in violation of Rules 8.4(c) and 8.4(d) of the Rules of Professional Conduct.
A hearing was conducted before the Hearing Panel Subcommittee of the Board. Following the hearing, the Subcommittee filed its report, making findings of fact and conclusions of law. The Subcommittee found there was insufficient evidence to prove that Veneri knowingly disobeyed a known obligation of a tribunal (Rule 3.4(c)) or that he knowingly engaged in conduct involving fraud, deceit, dishonesty or misrepresentation (Rule 8.4(c)) when he failed to disclose Mr. Montgomery's two employee benefit plans.
The Subcommittee further found that there was insufficient evidence to prove that Veneri deliberately set out to deceive Mrs. Montgomery or her counsel by altering the QDRO in violation of Rule 8.4(c). However, the Subcommittee did find that there was sufficient evidence to prove that Veneri's conduct in connection with the alteration of the QDRO and his failure to advise opposing counsel or the family law master of the alteration, constituted a violation of Rule 8.4(d). See supra, note 3.
Based upon the report of the Subcommittee, the Board recommended to this Court that Veneri's license be suspended for 12 months and that he be required to pay the costs of the proceedings. Following the filing of Veneri's objection to the recommendation, this case was submitted to this Court for review.See footnote 7 7
(a) make a false statement of material fact or law to a third
Veneri argued before the Board that the alteration of the QDRO was technically correct. Veneri's argument does not excuse his failing to notify opposing counsel of the alteration, failing to notify the law master of the alteration, or excuse his conduct when he argued that the parties had never agreed to divide Mr. Montgomery's stock plan.
We consequently find by clear and convincing evidence that Veneri violated Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice.
Having made the determination that Veneri violated Rule 8.4, we must now determine an appropriate disciplinary sanction. This Court reviews de novo questions of law and the appropriateness of a particular sanction. McCorkle, 192 W.Va. at 289, 452 S.E.2d at 380. The law is well established that [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. Syllabus Point 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1395, 84 L.E.2d 783 (1985).
While we are assisted by the Board's recommendation of discipline, we must examine each case individually and provide appropriate discipline. In our efforts to determine a proper sanction we 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[.] Syllabus Point 3, in part, Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987). We have further stated that:
In disciplinary proceedings, this Court, rather than endeavoring to establish a uniform standard of disciplinary action, will consider the facts and circumstances [in each case], including mitigating facts and circumstances, in determining what disciplinary action, if any, is appropriate, and when the committee on legal ethics initiates proceedings before this Court, it has a duty to advise this Court of all pertinent facts with reference to the charges and the recommended disciplinary action. Syl. pt. 2, Committee on Legal Ethics v. Mullins, 159 W.Va. 647, 226 S.E.2d 427 (1976).
Syllabus Point 2, Committee on Legal Ethics v. Higinbotham, 176 W.Va. 186, 342 S.E.2d 152 (1986).
We are also assisted in our determination by Rule 3.16 of the Rules of Lawyer Disciplinary Procedure which provides:
In imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these rules, the Court or 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.
In addition to the above factors we have also held that prior discipline is an aggravating factor in a pending disciplinary proceeding because it calls into question the fitness of the attorney to continue to practice a profession imbued with a public trust.
Syllabus Point 5, Committee on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107
We recognize that this is not the first time Veneri has had to address disciplinary charges.See footnote 8 8 However, an examination of the previous disciplinary matter and the one now before this Court reveals no similarities between the two separate incidents. The previous discipline matter concerned the administration of Veneri's mother's estate and Veneri's conduct with his sister. The matter now before us is quite dissimilar.
Applying the remaining factors set forth in Rule 3.16. of the Rules of Lawyer Disciplinary Procedure, we find the Board's recommended punishment to be harsh. According to the record, neither of the parties knew that there were two employee benefit plans and it would appear that the actions and omissions of Veneri did not prejudice the rights of Mrs. Montgomery. Consequently, we find the Board's recommendation of a year's suspension to be extreme.
Accordingly, we find that Veneri should be admonished and be required to pay the costs of these proceedings.