Sherri D. Goodman
Charleston, West Virginia
Attorney for the Complainant
William C. Garrett
Gassaway, West Virginia
Attorney for the Respondent
The Opinion of the Court was delivered PER CURIAM.
"'"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. Higginbotham, [176 W.Va. 186], 342 S.E.2d 152 (1986)." Syllabus Point 4, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).
In Committee on Legal Ethics v. Farber, 185 W.Va. 522,
408 S.E.2d 274 (1991), this Court suspended the license of the
respondent, Michael C. Farber, to practice law for three months for
falsely accusing a circuit judge of criminal acts and for other
conduct. In that case, the Court specified that, upon the
reinstatement of his law license, the respondent was to be
supervised in his practice by another attorney for a period of two
years. The Court also directed the respondent to reimburse the
Committee on Legal Ethics of the West Virginia State Bar for its
costs in prosecuting the proceeding.
On March 9, 1992, the respondent petitioned for
reinstatement of his law license. In conjunction with his
petition, he suggested that he be supervised by William C. Garrett,
an attorney in Gassaway, West Virginia, that he meet with Mr.
Garrett on a weekly basis, and that reports be submitted to the
Committee on Legal Ethics on a monthly basis. He also petitioned
to be allowed to reimburse the Committee's costs by making payments
of $200.00 per month.
Mr. Garrett agreed to supervise the respondent, and the
Committee on Legal Ethics accepted the supervision proposal. The
Committee also agreed to accept payments of $200.00 per month in
satisfaction of the respondent's reimbursement obligation. This Court, after reviewing the situation, found the arrangement
acceptable and ordered the reinstatement of the respondent's law
In the present proceeding, the Committee on Legal Ethics
claims that from August, 1992, to May, 1993, the respondent
consistently failed to comply with the terms of the reinstatement
agreement, and it recommends that this Court take further action
against the respondent.
The papers filed in the present proceeding show that Mr.
Garrett has submitted only one written report relating to his
supervision of the respondent, and the respondent has claimed that
he has informally notified the Committee on Legal Ethics of his
situation. It also appears that the Committee on Legal Ethics has
been concerned about the situation and has asked the respondent to
sign an agreement that he would meet with Mr. Garrett on a regular
basis and submit monthly reports. The respondent signed the
agreement and then ignored it.
The documents filed further show that the respondent has
fallen into a serious arrearage in his payments to the Committee on
Legal Ethics. At one point, he contacted the Committee on Legal
Ethics about his difficulties, and the Committee appropriately
worked out an adjusted payment schedule for him. At a certain
point, however, the respondent, who was apparently continuing to suffer from financial difficulties, failed to report his
difficulties to the Committee on Legal Ethics or to seek an
additional modification of his payment schedule. Instead, he chose
to disregard his financial obligations.
The documents further show that another legal ethics
complaint has been filed against the respondent charging him with
neglect of a legal matter entrusted to him and that he has failed
to respond in a timely and appropriate manner to that complaint.
In this Court's view, it is the responsibility of
individuals who wish to serve as lawyers to demonstrate the
competence to do so and to demonstrate the diligence to handle the
matters entrusted to them in a professional manner. This concern
is expressed in the Preamble to the Rules of Professional Conduct,
which states that "[i]n all professional functions a lawyer should
be competent, prompt, and diligent."
In the context of handling legal matters entrusted to an
attorney by a client, Rule 1.3 of the Rules of Professional Conduct
requires that "[a] lawyer shall act with reasonable diligence and
promptness in representing a client."
In the present case, this Court imposed the requirement
that the respondent submit to supervision upon the reinstatement of
his license to practice law. This was not done as a simple punitive measure or as an afterthought, but because the Court had
a very real concern that the respondent had difficulty in
understanding his professional obligations and a concern that he
would not comply with those obligations in the practice of law.
The course of the respondent's conduct since his
readmission has borne out this Court's concerns. It appears that
he has not taken the supervision requirement seriously; he has not
found it necessary to be diligent in meeting his financial
obligations to the Committee on Legal Ethics; and, in apparent
violation of Rule 1.3 of the Rules of Professional Conduct, he has
not been reasonably diligent in handling a legal matter entrusted
This Court views compliance with its orders relating to
the practice of law to be among a lawyer's highest professional
responsibilities, and, in the present case, the Court believes that
the respondent has ignored that responsibility. The Court also
believes that Mr. Garrett has not viewed the supervision
requirement with the same seriousness as this Court sees it.
This Court has rather consistently indicated 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. Higginbotham, [176 W.Va. 186], 342 S.E.2d 152 (1986)."
Syllabus Point 4, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).
In the present case, the Court believes that if the
respondent is to continue to practice law in West Virginia, he must
demonstrate competency, promptness, and diligence in handling the
professional responsibilities connected with such practice. In his
case, this entails complying with this Court's orders relating to
reasonable supervision, meeting his financial obligations to the
Committee on Legal Ethics, and handling his clients' matters with
competency, promptness, and diligence.
The Court has, therefore, concluded, that the respondent
must submit to an additional period of supervision, and the
respondent's license to practice law must be suspended until such
time as he enters into a written arrangement with the Committee on
Legal Ethics for an additional eighteen months of supervision.See footnote 1 In
that arrangement, he must agree to meet with a supervising attorney
at such intervals as the Committee on Legal Ethics shall deem appropriate and must agree to such supervisory conditions or
stipulations as the Committee on Legal Ethics shall consider
appropriate. The supervising attorney must also agree to the
arrangement and assume the professional responsibility to insure
that it is carried out. The Committee on Legal Ethics, in entering
into the arrangement with the supervising attorney, may require
such reports as it considers appropriate.
Upon the resumption of practice by the respondent, any
inability by the respondent, or by the supervising attorney, to
meet any term or condition imposed by the supervisory arrangement
must be reported promptly by the respondent and by the supervising
attorney, in writing, to the Committee on Legal Ethics, and the
Committee on Legal Ethics shall have the authority to modify, in
writing, the supervisory arrangement where appropriate and
necessary. The Committee shall also have the authority to excuse,
in writing, non-compliance which it considers excused or justified.
The Court also believes that it is necessary for the
respondent to reimburse the Committee on Legal Ethics for the costs
of the original ethics proceeding. His reinstatement is,
therefore, further conditioned upon his entering into, and
complying with, a reimbursement agreement with the Committee on
Legal Ethics. In developing the agreement, the Committee on Legal
Ethics should take into consideration the respondent's financial
situation. If, for any reason, the respondent should be unable to comply with any payment scheduled under the reimbursement
agreement, it shall be incumbent upon him to notify the Committee
on Legal Ethics, in writing, at the time the payment is due, of the
reasons for his inability to comply, and he shall promptly
thereafter attempt to correct the noncompliance.
This Court will consider the failure of the respondent to
meet his obligations under the supervision arrangement or the
reimbursement agreement which he must enter into for readmission to
the practice as cause for further suspension or annulment of his
license to practice law.See footnote 2 Non-compliance by the supervising
attorney shall be considered a breach of a professional
For the reasons stated, the license of the respondent to
practice law is suspended until such time as he enters into the
supervision arrangement and the reimbursement agreement discussed
herein. At such time, the license will be automatically
reinstated.See footnote 3
Footnote: 1 The date of commencement and termination of such eighteen-month period should be determined by the Committee on Legal Ethics and set forth in the written arrangement.
Footnote: 2 In the present case, the Court is being somewhat lenient with the respondent, since the Court does not feel that it previously stressed the importance of compliance with supervision requirements. In the future, when confronted with non-compliance with supervision requirements, the Court will likely suspend absolutely, or annul, the law license of an attorney who fails to comply with the requirements.
Footnote: 3 The Court notes that this case is before the Court on the respondent's petition for rehearing. Previously, on February 18, 1994, the Court entered an unpublished order suspending the respondent's license without affording him the
opportunity for immediate reinstatement by making further arrangements for supervision and reimbursement with the Committee on Legal Ethics. That earlier order is hereby set aside, and the parties are directed to proceed in accordance with this directions set forth herein.