Amie L. Johnson, Esq.
D. McQueen, Jr., Esq.
Office of Disciplinary Counsel McQueen, Harmon & Potter
Charleston, West Virginia Charleston, West Virginia
Attorney for Complainant Attorney for Respondent
The Opinion of the Court was delivered PER CURIAM.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
JUSTICE SCOTT, deeming himself disqualified, did not participate in the decision of this case.
This disciplinary proceeding
is before this Court upon a review of the May 17, 2000, Report and Recommended
Sanctions of the Hearing Panel Subcommittee (HPS) of the Lawyer
Disciplinary Board (Board) concerning the respondent, James W. Keenan
(Keenan), a member of the West Virginia State Bar. Keenan was charged
with multiple violations of the West Virginia Rules of Professional Conduct
in an eight-count complaint. Keenan did not contest the facts set forth in the
The HPS found that the charges complained of by the Office of Disciplinary Counsel (OCD) were substantiated and sanctions were warranted. The HPS recommends to this Court that: (1) Keenan be suspended from the practice of law for 3 months; (2) that upon reinstatement Keenan be supervised in the practice of law by another attorney for a period of 2 years; (3) that the supervising attorney review all the complaints filed against Keenan; (4) that Keenan seek evaluation for both his bipolar illness and his alcohol abuse and submit to the recommended treatment for these illnesses; (5) that Keenan be censured; and (6) that Keenan be required to pay the costs of these proceedings.
Keenan stipulated to the findings of fact made by the HPS. However, Keenan objects to the recommended 3-month suspension of his law license, and requests that we not follow the recommendation of the HPS.
Upon a thorough review of the
record, we agree that the charges were substantiated. And, we agree with most
of the HPS's recommended penalties, but we modify the HPS recommendations and
order that James Keenan shall: (1) be publicly censured; (2) practice law under
the supervision of another attorney practice for 2½ years pursuant to the
conditions set forth by the Board; (3) submit to evaluations for both alcoholism
and his bipolar illness and receive treatment as recommended; (4) participate
in Alcoholics Anonymous or other similar group; (5) attend 6 hours of continuing
legal education on office management; and, (6) reimburse the Lawyer Disciplinary
Board for the costs of these proceedings.
Keenan filed the complaint in
the Circuit Court of Fayette County on March 23, 1995. After the filing of the
complaint, Mr. Ward called Keenan several times to discuss his case, but his calls
were never returned. Apparently sometime in the fall of 1995, Mr. Ward grew dissatisfied
with Keenan and left a message at Keenan's office that he was terminating Keenan's
representation. During this communication with Keenan's office, Mr. Ward was informed
that his case had been dismissed in October of 1995 for failure to perfect service
of process within the 180 days as required by Rule 4(k) of the West Virginia
Rules of Civil Procedure.See footnote
In January of 1996, Mr. Ward filed an ethics complaint against Keenan. A copy of the complaint was sent to Keenan by the ODC on January 29, 1996, in which Keenan was instructed to reply to the complaint within 10 days. Keenan never responded. On March 25, 1996, Keenan was sent a second request by the ODC to respond to the ethics complaint. Keenan responded to the complaint by letter dated April 5, 1996.
The Board charged Keenan with
violating: (1) Rule 1.3See footnote 2 2
of the Rules of Professional Conduct for failing to act with reasonable
diligence; (2) Rule 1.4(a)See footnote 3
3 for failing to keep his client reasonably informed; (3) Rule
1.16(d)See footnote 4 4 for
failing to properly terminate his representation of Mr. Ward; and (4) Rule 8.1(b)See
footnote 5 5 for failing to respond to a demand for information
from the OCD.
Keenan stipulated to the charges made by the Board.
Mr. Hill filed an ethics complaint
against Keenan. Following a review of the matter, the Board charged Keenan with
violating Rule 1.15(b)See footnote 6 6
of the Rules of Professional Conduct for failing to promptly render
a full accounting to his client.
Keenan stipulated to the charge made by the Board.
Apparently Mr. Grasty had second
thoughts about the plea agreement and Keenan's representation, and on September
23, 1996, he filed an ethics complaint alleging that Keenan had violated various
rules of professional conduct.
On December 5, 1996, the ODC sent a copy of the ethics complaint to Keenan instructing him to respond to the complaint within 10 days. Keenan did not respond to the ODC. On March 3, 1997, the ODC sent a second request to Keenan asking him to respond to the complaint. Keenan responded on March 13, 1997.
After a review of the evidence, the Board found that Keenan had not violated the Rules of Professional Conduct with respect to his representation of Mr. Grasty. However, the Board charged Keenan with violating Rule 8.1(b)See footnote 7 7 for failing to respond to the ODC's inquiry in a timely manner.
Keenan stipulated to the charge made by the Board.
On December 16, 1995, the Social
Security Administration ruled that Mr. Blackwell was totally disabled and awarded
Social Security benefits to him and his children. Mr. Blackwell, by letter, informed
Keenan of the ruling. Based on the Social Security ruling Keenan filed a second
petition to modify child support payments. Keenan and Mr. Blackwell did not discuss
an additional fee for a second petition.
After filing the second petition, Keenan took no further action. Mr. Blackwell wrote three letters to Keenan between March 1, 1996 and April 26, 1996, asking for a status report. Keenan did not respond to Mr. Blackwell's letters. By letter dated July 18, 1996, Mr. Blackwell terminated Keenan's services and asked for a full refund of all attorney fees. Keenan later testified before the Board that he filed the second petition out of benevolence to Mr. Blackwell, but had no intention of representing him on the second petition. However, Keenan failed to advise Mr. Blackwell that he was not going to continue the case, nor did he file a motion to withdraw.
Mr. Blackwell appeared pro se before the family law master and requested a modification of his child support obligation, and was partially successful in his attempt.
Mr. Blackwell filed an ethics complaint against Keenan. A copy of the complaint was forwarded to Keenan by the ODC on December 5, 1996, with instructions to respond to the complaint within 10 days. Keenan did not respond as instructed. Accordingly, a second request was made on March 3, 1997, and Keenan responded on March 12, 1997.
The Board charged Keenan with
violating Rule 1.3See footnote 8 8
for his lack of diligence, Rule 1.4(a)See
footnote 9 9 for not communicating with his client, Rule 1.16(d)See
footnote 10 10 for failing to properly withdraw from the case,
and Rule 8.1(b)See footnote 11 11
for failing to respond to the Disciplinary Counsel as required.
Keenan stipulated to the charges made by the Board.
Following the trial, a dispute
arose between counsel for both parties as to whether Mr. Cook would have to pay
a portion of the court costs. The defendant's attorney prepared a final order
reflecting the jury decision, but Keenan refused to sign the order because the
order did not resolve the issue of court costs.
On March 20, 1997, Mr. Cook filed an ethics complaint against both Keenan and defendant's counsel because Mr. Cook had not received the money from his judgment. A copy of the complaint was forwarded to Keenan on April 4, 1997, by the ODC, along with instructions to respond to the complaint within 10 days. Keenan did not respond to the complaint. On May 15, 1997, a second request to respond to the complaint was sent to Keenan, and he did not respond to this request. Keenan eventually responded to the Disciplinary Counsel's June 18, 1997 request -- the third.
Keenan testified before the Board that he refused to sign the order because he was waiting for the judge to rule on the court costs issue.See footnote 14 14
The Board charged Keenan with violating Rule 8.1(b)See footnote 15 15 for failing to respond to a request for information from the Disciplinary Counsel.
Keenan stipulated to the Board's charge.
The complainant, Diana Jackson,
retained Keenan to represent her in a divorce action. Ms. Jackson sought a divorce
on the grounds of adultery and physical abuse. On August 8, 1996, the day scheduled
for a final hearing, a settlement was reached between the parties. Pursuant to
the settlement, Ms. Jackson agreed to relinquish any right to alimony in return
for the deed to the marital residence, a share in her husband's pension, payment
of assorted household bills, and reimbursement of her attorney fees. A final order
was entered on November 19, 1996.
After receiving a copy of the final order, Ms. Jackson determined that the order did not include the total agreement between the parties. She contacted Keenan in November of 1996, and questioned why there was no provision in the order for her receiving a share in her ex-husband's pension. According to Ms. Jackson, Keenan informed her that because she was divorcing her husband she was not eligible for a share in his pension. Additionally, between November 1996 and June 1997, Ms. Jackson received only a portion of the money owed her by her former husband, and did not receive the deed to the house.
Ms. Jackson filed an ethics complaint against Keenan, and on June 2, 1997, a copy of the complaint was forwarded to Keenan by the ODC with instructions to reply to the complaint within 10 days. Keenan failed to respond to the ODC's request. A second request for a reply to the complaint was sent to Keenan on September 10, 1997. Keenan responded by letter dated September 23, 1997. Keenan informed the ODC that counsel for the ex-husband was supposed to prepare the deed, but that the husband's counsel had died before he was able to prepare the deed.
After a meeting with Ms. Jackson on June 27, 1997, Keenan agreed to prepare the deed.
In January of 1998, Keenan prepared the deed and wrote one letter to Ms. Jackson's ex-husband regarding the unpaid monies. Keenan did not charge Ms. Jackson an additional fee for this, but he declined to take further action unless he was hired and paid for his services.
The Board charged Keenan with violating Rule 1.2(a)See footnote 16 16 for his initial refusal to prepare the deed, and violating Rule 8.1(b)See footnote 17 17 of the Rules of Professional Conduct for failing to respond to the ODC in a timely manner.
Keenan stipulated to the charges of the Board.
Keenan originally represented
the complainant Kathryn Powers in a 1994 divorce action. By order dated September
26, 1994, Ms. Powers' ex-husband was ordered to make monthly alimony payments
of $100.00 for 3 years. He was also ordered to pay $1,200.00 to Ms. Powers as
her share in his retirement funds.
Sometime after the divorce order was entered, Ms. Powers remarried, and her ex-husband ceased making the alimony payments. Additionally, her ex-husband failed to pay Ms. Powers her share of his retirement. Ms. Powers consulted with Keenan in January 1996, and Keenan agreed to file a contempt petition on her behalf. Keenan requested and received a fee of $500.00.
Keenan failed to file the petition for contempt. However, Ms. Powers' ex- husband filed a petition to modify the original divorce decree, seeking to end the payment of alimony. At the hearing on the ex-husband's petition to eliminate alimony on August 20, 1996, before a family law master, Keenan attempted to raise the contempt issue relating to the ex-husband's failure to pay certain monies to his former wife. However, the family law master would not permit Keenan to raise the contempt issue because it was not before the court.
Between December of 1996 and May 1997, Ms. Powers attempted to call Keenan several times. Keenan did not return her phone calls, nor would he schedule an appointment to meet with her. On March 11, 1997, Ms. Powers sent Keenan a certified letter asking him to schedule a contempt hearing, or refund her money. Keenan did not respond to the letter.
Ms. Powers filed an ethics complaint against Keenan, and on June 3, 1997, a copy of this complaint was sent to Keenan by the ODC along with instructions to reply to the complaint within 10 days. Keenan failed to timely respond to the request. The ODC sent a second request on September 10, 1997. On September 23, 1997, Keenan responded to the ethics complaint.
The Board charged Keenan with violating Rule 1.4(a)See footnote 18 18 for failing to respond to his client, and with violating Rule 8.1(b)See footnote 19 19 for failing to respond to the Disciplinary Counsel in a timely manner.
Keenan stipulated to the charges made by the Board.See footnote 20 20
A de novo standard applies
to a review of the adjudicatory record made before 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 [Board's] recommendations while ultimately exercising its own independent
judgment. On the other hand, substantial deference is given to the [Board's] findings
of fact, unless such findings are not supported by reliable, probative, and substantial
evidence on the whole record.
Syllabus Point 3, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994). See also Syllabus Point 2, Lawyer Disciplinary Board v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995); Syllabus Point 3, Lawyer Disciplinary Board v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995). We note that Keenan does not dispute the charges made by the HPS, but he does contest the HPS's recommendation that his license be suspended.
We have held 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 of 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.Ed.2d 783 (1985). In reviewing attorney discipline 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. Syllabus Point 3, in part, Committee on Legal Ethics v. Walker, 178 W.Va. 150 358 S.E.2d 234 (1987).
The HPS has recommended that:
(1) Keenan be suspended from the practice of law for 3 months; (2) that upon reinstatement
Keenan be supervised in the practice of law by another attorney for a period of
2 years; (3) that the supervising attorney review all the complaints filed against
Keenan; (4) that Keenan seek evaluation for both his bipolar illness and his alcohol
abuse and submit to the recommended treatment for these illnesses; (5) that Keenan
be censured; and, (6) that Keenan be required to pay the costs of these proceedings.
While we are assisted by the HPS's recommendations, we must examine each case separately in an attempt to provide appropriate discipline.
In the case before us, Keenan has admitted to an alcohol problem, and has introduced evidence that he was being treated for a bipolar condition during the time period that the grievances that are the subject of this disciplinary proceeding were filed. Testimony was also offered before the HPS indicating that Keenan had overextended himself by attempting to open a second law office in Charleston, West Virginia. This second office has since been closed.
An examination of the violations charged in this matter reveal that most of the offenses resulted from lack of diligence, and poor communication with clients and the Office of Disciplinary Counsel. While we do not condone these practices, and we agree that Mr. Keenan must be closely monitored and receive proper treatment for medical problems, we believe that a 3-month suspension from the practice of law may only aggravate Mr. Keenan's problems. Because of the obvious economic consequences that the respondent would suffer with an inability to practice law, we will not suspend his license to practice. We do, however, concur with other recommendations of the Hearing Panel Subcommittee.