| Lawrence J. Lewis, Esq.
Office of Disciplinary Counsel
Charleston, West Virginia
Attorney for Complainant
| Robert B. Allen, Esq.
Allen, Guthrie & McHugh
Charleston, West Virginia
Attorney for Respondent
The Opinion of the Court was delivered PER CURIAM.
Rule 3.16 of the West
Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered
in imposing sanctions and provides as follows: 'In imposing a sanction after
a finding of lawyer misconduct, unless otherwise provided in these rules,
the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary
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.' Syllabus
Point 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va.
495, 513 S.E.2d 722 (1998).
In this Lawyer Disciplinary
proceeding, the Lawyer Disciplinary Board has recommended that this Court
suspend the license of the respondent, Richard E. Ford, Jr., to practice law
for a period of 45 days and has also recommended that the Court require him
to remain under the care of his treating psychologist until released by the
In March 2000, the respondent's partner, Robert E. Richardson, learned that the respondent had failed to turn a specific fee over to the firm and confronted him over the matter. The respondent readily acknowledged that he had retained the fee and later admitted that he had failed to turn over other monies.
Subsequently, Mr. Richardson and the firm bookkeeper audited the respondent's files and identified the other fees which the respondent had retained, both during the time that the respondent was in partnership with his father and during the time that the respondent was in partnership with his father and Mr. Richardson. The audit showed that no client funds and no trust funds were involved in any of the instances.
After the audit was completed,
the respondent accepted, without challenge, the figures generated by Mr. Richardson
and the bookkeeper and made full restitution to his partners. The respondent
also self-reported his conduct to the Office of Disciplinary Counsel. The
Office of Disciplinary Counsel instituted an investigation, and throughout
the investigation, the respondent cooperated fully.
The investigation showed
that the respondent had, in fact, improperly retained fees, but that he had
made full restitution and that no clients had been harmed. The investigation
also showed that the respondent in almost twenty years of practice had never
been disciplined, that his activities generated a substantial percentage of
his partnership's income, and that his suspension would impact upon the firm's
ability to meet its obligations and would increase the firm's cost of malpractice
insurance for as much as 25 percent for at least five years. Finally, evidence
was developed showing that the respondent was under the care of a psychologist
who had concluded that the respondent's actions were not the result of a character flaw, but rather were due to numbness caused
by alcohol abuse and a pattern of unconscious living.
The Lawyer Disciplinary
Board, which investigated the respondent's conduct, concluded that the conduct
violated Rule 8.4 of the Rules of Professional Conduct and, as a consequence,
it has recommended that this Court suspend the respondent's license to practice
law for 45 days and require that he remain under the care of his treating
psychologist until released.
(See footnote 1)
A review of the record shows
that there is some evidence that the respondent acted knowingly. On the other
hand, there is evidence suggesting that the appellant was suffering from an
alcohol problem, which numbed him and which possibly reduced his
appreciation of the nature of his action in withholding the fees involved.
Subsequently, the respondent sought treatment for his alcohol and related
psychological problems. The evidence also shows that the respondent promptly cooperated with an in-firm
investigation of his deficiencies, and that he promptly made restitution to
Rule 3.15 of the Rules of
Lawyer Disciplinary Procedure indicates that this Court may impose the following
sanctions in a disciplinary proceeding: (1) probation; (2) restitution; (3)
limitation on the nature or extent of future practice; (4) supervised practice;
(5) community service; (6) admonishment; (7) reprimand; (8) suspension;
or (9) annulment.
The fact that the respondent
in the present case was suffering from an alcohol problem, which he has now
addressed, and that he freely has admitted his misconduct and has undergone
counseling, as well as the fact that he has never received any prior discipline
in approximately 20 years of practice, would suggest that some mitigation
is appropriate in his case. Additionally, evidence has been introduced that
the suspension of the respondent's law license would do substantial damage
to his law firm.
This Court has indicated
that it should reject the hearing panel's recommendation of suspension if
the suspension will exacerbate the lawyer's problems while the lawyer is attempting
to correct them. Lawyer Disciplinary Board v. Keenan, 208 W. Va.
645, 542 S.E.2d 466 (2000).
In view of the foregoing, especially
the fact that suspension would substantially harm the respondent's practice,
and, thus, potentially exacerbate the respondent's problems, this Court believes
that it is more appropriate that the respondent receive an admonishment than
the suspension recommended by the hearing panel. The respondent is, therefore,
(c) engage in conduct involving dishonestly, fraud, deceit or misrepresentation;