Sherri D. Goodman, Esq.
Bar Counsel, West Virginia State Bar
Charleston, West Virginia
C. Andy Keenan, Pro Se
Fayetteville, West Virginia
The Opinion of the Court was delivered PER CURIAM.
1. "In a court proceeding prosecuted by the Committee
on Legal Ethics of the West Virginia State Bar . . . the burden is
on the Committee to prove, by full, preponderating and clear
evidence, the charges contained in the complaint filed on behalf of
the Committee." Syllabus Point 1, in part, Committee on Legal
Ethics v. Lewis, 156 W. Va. 809, 197 S.E.2d 312 (1973).
2. "Absent a showing of some mistake of law or
arbitrary assessment of the facts, recommendations made by the
State Bar Ethics Committee . . . are to be given substantial
consideration." Syllabus Point 3, in part, In re Brown, 166 W. Va.
226, 273 S.E.2d 567 (1980).
This disciplinary proceeding was instituted by the
Committee on Legal Ethics of the West Virginia State Bar against
C. Andy Keenan, a member of the Bar. The Committee found that Mr.
Keenan engaged in a pattern and practice of neglect because of his
failure: (1) to communicate with three different clients, (2) to
act with reasonable diligence in the representation of clients, (3)
to keep clients reasonably informed, and (4) to return timely an
unearned fee. Although Mr. Keenan alleged that this pattern and
practice of neglect stemmed from his psychological and psychiatric
problems, he failed to submit evidence that these problems had
stabilized. The Committee recommends that this Court suspend Mr.
Keenan's license to practice law until Mr. Keenan establishes the
stabilization of his psychological and psychiatric disorder and his
possession of "the present psychological and mental capacity to
provide effective, thorough, and complete representation to his
clients." The Committee also recommends that Mr. Keenan be
required to pay the costs of this and any subsequent proceedings.
Based on our review of the record, we find that Mr. Keenan is
guilty of ethical violations and adopt the recommendations of the
The charges against Mr. Keenan are based on three
separate complaints. The first complaint was made by Roger Bailey,
who in 1985 retained Mr. Keenan after he was injured when he
slipped and fell at a post office on January 24, 1985. Because Mr.
Keenan took no action on the matter except for providing the
federal government with an initial notice of a potential claim and
sending a few perfunctory letters, the statute of limitations
expired before a suit was filed. After the initial visit and some
early telephone conversations, Mr. Keenan failed to return Mr.
Bailey's telephone calls and did not otherwise communicate with Mr.
In February 1989, Mr. Bailey filed an ethics complaint
against Mr. Keenan (No. 89-041). Mr. Keenan, by letter dated March
15, 1989, admitted that Mr. Bailey's allegations were "generally,
true" and promised to contact Mr. Bailey. After Mr. Keenan failed
to contact him, on May 10, 1989, Mr. Bailey discharged Mr. Keenan
and demanded his file. However the file was never returned because
it was lost by Mr. Keenan. Mr. Bailey sought redress through a
malpractice claim that was settled. The settlement requires Mr.
Keenan to pay $20,000, plus accumulated interest, in installments
over a two year period to Mr. Bailey. However because of Mr.
Keenan's finances, the installment payments have been sporadic and
a substantial sum remained unpaid as of April 19, 1991.
The second complaint was made by Mary Moore, who, in
January 1983, retained Mr. Keenan to file a partition suit over
land in Clay County in which Arnold Moore, Mrs. Moore's husband,
reportedly had a 5/6 interest. In April 1983, Mr. Keenan, by
letter, requested information concerning the land and, shortly
thereafter, Mr. Moore provided the requested information. During
the next four years, although Mr. and Mrs. Moore made several
attempts to contact Mr. Keenan, Mr. Keenan did not return their
calls and did not file the partition suit.
After Mr. Moore's death in 1986, Mrs. Moore discovered
that no suit had been filed and, on August 3, 1987, Mrs. Moore
wrote to Mr. Keenan requesting action. In his response of August
20, 1987, Mr. Keenan promised that the suit would be filed as soon
as possible. Suit was filed in June 1988.
Although Mrs. Moore informed Mr. Keenan that she would be
in Florida for the winter, Mr. Keenan failed to return Mrs. Moore's
calls before she left. On October 11, 1988, Mrs. Moore wrote to
Mr. Keenan asking why he had failed to tell her about her case and
to respond to her calls. Mr. Keenan failed to respond. In
February 1989, Mrs. Moore filed an ethics complaint against Mr.
Keenan (No. 89-049).
By letter dated April 8, 1989, Mr. Keenan admitted that
he had been dilatory in handling Mrs. Moore's case and said that he
would conclude it as soon as possible. However, Mr. Keenan again
failed to return Mrs. Moore's calls and failed to contact her
before she left for Florida. On October 7, 1989, Mrs. Moore wrote
Mr. Keenan asking for information about her suit, requesting
information about the possibility of purchasing the land's
remaining 1/6 interest, and complaining about Mr. Keenan's failure
to communicate with her. Again, Mr. Keenan failed to respond. By
letter dated June 7, 1990, Mrs. Moore discharged Mr. Keenan and
demanded her file. Mr. Keenan apologized and on July 31, 1990 sent
Mrs. Moore's file to her new attorney.
The third complaint was made by John B. Detamore who on
October 9, 1989 retained Mr. Keenan to file a divorce action
immediately and paid Mr. Keenan a $400 flat fee. Mr. Keenan failed
to file the suit and after Mr. Detamore received a divorce
complaint from his wife on November 3, 1989, he began calling Mr.
Keenan's office two or three times a day to find out why the suit
was not filed. After Mr. Keenan was unavailable to talk with him
and failed to return his calls, on November 14, 1989, Mr. Detamore
discharged Mr. Keenan, hired another lawyer and demanded the return
of the $400 fee. Although in December 1989 Mr. Keenan purchased a
money order payable to Mr. Detamore, Mr. Keenan failed to send the
money order until June of 1990. Because Mr. Detamore was
unavailable, Mr. Keenan testified before the Committee about Mr.
Although Mr. Keenan was unable to recall all of the
details, he did not contest the charges and admitted that the
allegations were consistent with the matters he remembered. Mr.
Keenan demonstrated contrition about the ethical violations and
about the harm caused to his clients. Mr. Keenan maintained he
suffers from "a bipolar mental or emotional disorder (of a
manic\depressive type)" which manifests itself in him by a
recurrent inability to deal with certain types of problems and an
inability to complete some of his clients' cases. Mr. Keenan said
that he is a diabetic and that diabetes is sometimes associated
with the onset of the bipolar disorder from which he suffers.
However, although Mr. Keenan maintained that he is receiving
treatment, he failed to present an expert witness concerning his
condition. Mr. Keenan also failed to submit reports from his
treating physicians even after Mr. Keenan told the Committee at the
conclusion of the hearing that he would submit reports on his
current mental status and prognosis within a couple of weeks.
Based on these three complaints, the Committee found that
Mr. Keenan had violated Rules 1.1See footnote 1, 1.3, 1.4 and 1.16(d) of the
Rules of Professional Conduct .See footnote 2 The Committee noted that
although they had considered Mr. Keenan's psychological and
psychiatric defense as mitigating factors, they found that "the
threat to the public . . . still exists." Based on these findings,
the Committee recommended that Mr. Keenan's license to practice law
be suspended until he can establish that his psychological and
psychiatric problems have stabilized so that he is competent to
practice law, and that he be required to pay the costs of the
Similar to the Code of Professional Responsibility, which
was superseded by the Rules of Professional Conduct , the
Rules "state the minimum level of conduct below which no lawyer can
fall without being subject to disciplinary action." Syllabus Point
3, in part, Committee on Legal Ethics v. Tatterson, 173 W. Va. 613,
319 S.E.2d 381 (1984).
The Committee on Legal Ethics of the State Bar has the
burden of proving its charges against a lawyer by full,
preponderating and clear evidence. In Syllabus Point 1, in part,
Committee on Legal Ethics v. Lewis, 156 W. Va. 809, 197 S.E.2d 312
(1973), we stated:
In a court proceeding prosecuted by the Committee on Legal Ethics of the West Virginia State Bar . . . the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the complaint filed on behalf of the Committee.
In accord Syllabus Point 1, Committee on Legal Ethics v. Mitchell, 187 W. Va. 287, 418 S.E.2d 733 (1992).
From our review of the record, we find that the Committee
met its burden of proving that Mr. Keenan violated Rules 1.1, 1.3,
1.4 and 1.16(d) of the Rules of Professional Conduct . Mr.
Keenan did not challenge the charges and acknowledged his
difficulties in providing competent representation, in acting with
reasonable diligence, in communicating effectively with his clients
and in returning an unearned fee. We also note that although Mr.
Keenan said at the April 19, 1991 hearing that he would provide
medical reports of his condition, no such reports were provided to
the Committee before its October 1992 recommended decision.
In Syllabus Point 3, In re Brown, 166 W. Va. 226, 273
S.E.2d 567 (1980), we said:
Absent a showing of some mistake of law or arbitrary assessment of the facts, recommendations made by the State Bar Ethics Committee . . . are to be given substantial consideration.
In accord Syllabus Point 2, Mitchell, supra, Syllabus Point 3, Committee on Legal Ethics v. Smith, 184 W. Va. 6, 399 S.E.2d 36 (1990); Syllabus Point 2, Committee on Legal Ethics v. Harman, 179 W. Va. 298, 367 S.E.2d 767 (1988).
After careful consideration of the evidence including Mr.
Keenan's failure to submit evidence of his medical condition, we
adopt the recommendations of the Committee that (1) Mr. Keenan's
license to practice law be suspended for an indefinite period until
he can establish with reasonable medical certainty that his bipolar
disorder has been stabilized and that he possesses the present
psychological and mental capacity to provide effective, thorough
and complete representation to his clients and (2) Mr. Keenan be
required to pay $326.67, the costs of this proceeding, as well as
the costs of any subsequent proceeding. If Mr. Keenan does not pay
such costs and, thereafter, seeks to be reinstated, he must submit
a financial statement to ascertain his ability to pay. Before Mr.
Keenan's license to practice law can be reinstated he must also
comply with all mandatory continuing legal education and dues
Accordingly, the Court suspends Mr. Keenan's license to
practice law for an indefinite period and orders him to pay the
costs of the proceeding.
License suspended indefinitely
and costs of proceeding.
Footnote: 1Because only 36 days were involved in Mr. Detamore's complaint, the Committee did not find clear and convincing evidence of a violation of Rule 1.1 in Mr. Detamore's case.
Footnote: 2The Committee found that Mr. Keenan's pattern and practice of neglecting the affairs of his clients violated Rules 1.1, 1.3 and 1.4 of the Rules of Professional Conduct , which provide:
Rule 1.1 A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Rule 1.3 A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.4 (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
The Committee found that Mr. Keenan's failure to refund the
fee to Mr. Detamore violated Rule 1.16(d), which provides:
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.