2. Mitigating factors which may be considered in determining the appropriate sanction to be imposed against a lawyer for violating the Rules of Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution or to rectify consequences of misconduct; (5) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the practice of law; (7) character or reputation; (8) physical or mental disability or impairment; (9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses. Syllabus Point 3, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).
3. Aggravating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify an increase in the degree of discipline to be imposed. Syllabus Point 4, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).
4. 'In deciding on the appropriate disciplinary action for ethical violations, 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, Committee on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).' Syl. Pt. 5, Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989). Syllabus Point 7, Office of Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).
This lawyer disciplinary proceeding against Geraldine Roberts (hereinafter referred to as Ms. Roberts) was brought to this Court by the Office of Disciplinary Counsel (hereinafter referred to as the ODC) on behalf of the Lawyer Disciplinary Board (hereinafter referred to as the Board). The Board's Hearing Panel Subcommittee determined that Ms. Roberts committed multiple violations of the West Virginia Rules of Professional Conduct. Consequently, the Board recommended that Ms. Roberts be reprimanded for such conduct and proposed several sanctions, some of which included: supervised practice for two years; a refund to the complainant, Ms. Teresa Lucente Rollins, of any unearned funds; comprehensive psychological counseling for a period of a year; and reimbursement to the Board for the costs of these proceedings in the amount of $528.20.
Ms. Roberts does not contest the Board's findings of fact or the finding that she committed multiple violations of the Rules of Professional Conduct and she accepts full responsibility for her actions. She asks this Court to find the recommended disciplinary actions upon which she has relied to be a sufficient remedy. Having reviewed the recommendation, all matters of record, and the briefs and argument of counsel, we find that Ms. Roberts violated the Rules of Professional Conduct. Thus, for the reasons set forth below, the sanctions recommended by the Board, as modified, are hereby imposed.
8, 1999, a motion filed by Ms. Roberts to correct the discovered errors in Ms.
Rollins' final divorce order was heard by Harrison County Circuit Judge Thomas
A. Bedell. Judge Bedell ordered the mistakes corrected and directed Ms. Rollins'
ex-husband to pay her an additional $5,000.00. There were other issues with the
1996 divorce order; however, Ms. Roberts indicated to the circuit court she was
not prepared to argue them at that time. Judge Bedell asked Ms. Roberts to prepare
an order within ten days of the September 8, 1999, hearing, but the order was
not actually filed until February 23, 2001. Ms. Roberts stated she prepared the
final order and sent it to opposing counsel and that it must have been
lost in the shuffle.
There were several additional charges surrounding Ms. Roberts' failure to adequately represent the interests of Ms. Rollins including a lack of communication and diligence in the handling of the review of the final divorce papers. Ms. Roberts was also charged with failure to respond to Disciplinary Counsel with regard to the charges against her.
On August 25, 2003, pursuant to Rule 3.4 of the Rules of Lawyer Disciplinary Procedure, (See footnote 1) the ODC filed its mandatory discovery. On September 5, 2003, a telephonic
conference was held wherein the Hearing Panel Subcommittee granted Ms. Roberts until September 12, 2003, to file her initial responsive pleading in this matter; however, Ms. Roberts did not respond. Thereafter, the ODC moved that the formal charges be deemed admitted and set such motion to be heard on November 4, 2003. On October 24, 2003, the ODC received Ms. Roberts' Response to Statement of Charges, and on October 27, 2003, the ODC counsel filed a Motion to Strike Ms. Roberts' response.
Subsequently, a telephonic hearing was scheduled for November 10, 2003, by which time Ms. Roberts retained John E. Busch, Esquire, to represent her interests in the proceeding. During the November 10, 2003, hearing, Ms. Roberts and Disciplinary Counsel represented to the Hearing Panel Subcommittee that due to Ms. Roberts' impairment, both parties would be jointly seeking an administrative suspension by this Court on November 14, 2003. It was also requested that the December 1, 2003, hearing date be continued until such time as Ms. Roberts was able to defend the Statement of Charges against her and to resume the practice of law. On December 31, 2003, without objection to the requested relief by the ODC, Ms. Roberts filed a Petition for Reinstatement with this Court. On January 16, 2004, we granted reinstatement with the condition that Ms. Roberts be supervised for a period of one year.
On May 25, 2004, Ms. Roberts and the ODC jointly submitted at a hearing before the Hearing Panel Subcommittee their Admitted Findings of Fact, Stipulated Conclusions of Law, and Stipulated Recommended Sanction regarding the final disposition of this matter. Along with such stipulations, testimony was taken of Ms. Roberts, Ms. Rollins, and Gary Roberts. On August 2, 2004, the Hearing Panel Subcommittee filed its Report of the Hearing Panel Subcommittee with this Court. The allegations of misconduct are hereinafter summarized with the Board's corresponding findings of misconduct. Initially, the Subcommittee found that Ms. Roberts violated Rule 1.1 of the Rules of Professional Conduct (See footnote 2) for failing to appear in person at hearings before the circuit court in which she was properly noticed and therefore failed to adequately represent the interests of Ms. Rollins in post divorce proceedings. Next, it was found that Ms. Roberts violated Rule 1.4 of the Rules of Professional Conduct (See footnote 3) for failing to keep Ms. Rollins informed as to the status of the matter, failing to return her telephone calls, failing to respond to multiple requests for information, and failing to advise her of hearing dates. Ms. Roberts was also found to have violated Rule 1.2(a) of the Rules of Professional Conduct (See footnote 4) for failing to abide by Ms. Rollins' decisions concerning the objectives of the representation and of Rule 1.3 of the Rules (See footnote 5) for failing to act with reasonable diligence in preparing an order as directed by the circuit court. In addition, Ms. Roberts was found to be in violation of Rules 1.16(d) (See footnote 6) and 8.1(b) (See footnote 7) of the Rules of Professional Conduct for failing to timely return the unearned portion of Ms. Rollins' retainer and for failing to respond to several requests from the ODC.
On September 30, 2003, we rejected the recommendations and ordered both parties to file briefs in this Court.
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 of the West
Virginia State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
Syllabus Point 1, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).
Our standard of review of proceedings before the Board was set out in Syllabus Point 3 of Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994), as follows:
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.
See also, Syllabus Point 1, Lawyer Disciplinary Bd. v. Sims, 212 W. Va. 463, 574 S.E.2d 795 (2002); Lawyer Disciplinary Bd. v. Cunningham, 195 W. Va. 27, 464 S.E.2d 181 (1995). With these standards in mind, we proceed to consider the parties' arguments.
Be reprimanded for her conduct;
2.) That Ms. Roberts undergo one additional year of supervised practice, for a total of two years of supervised practice. The supervisor would be nominated by Ms. Roberts and approved by ODC. The supervised practice is to be governed by a written agreement between the supervisor, Ms. Roberts and ODC;
3.) That the supervising attorney be an attorney outside of Ms. Roberts' law firm;
4.) That Ms. Roberts properly refund the complainant, Ms. Teresa Lucente Rollins (hereinafter, Ms. Rollins), with an itemized statement of her billing and issue the return of the un- earned funds;
5.) That if Ms. Roberts and the Complainant do not agree to the amount of funds to be refunded, they voluntarily agree to make a good faith effort to resolve the fee dispute through the West Virginia State Bar Voluntary Fee Dispute Resolution Program;
6.) That Ms. Roberts properly withdraw as counsel from an underlying case with the ODC (I.D. No. 10-02-304) wherein she is listed as counsel for another Respondent;
7.) That Ms. Roberts maintain a good psychiatric/psychological state and provide assurances to the ODC that these problems do not effect her ability to practice;
8.) That for a period of one year, Ms. Roberts undergo comprehensive psychological counseling and provide evidence of the same to the ODC upon request. The Hearing Panel Sub- committee recommended that Ms. Roberts undergo treatment at a minimum of once a month for the first year of her supervised practice and provide evidence of the same to the ODC;
9.) That Ms. Roberts agrees that willful failure to fully and timely respond to ethics complaints during her two years of supervised practice will result in an immediate ninety day
suspension from the practice of law upon motion of the ODC to the West Virginia Supreme Court of Appeals; and
10.) That Ms. Roberts be ordered to reimburse the Board the costs of these proceedings pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure in the amount of $528.20.
As noted above, on September 30, 2003, we rejected the recommendations and ordered both parties to file legal briefs with this Court. After fully reviewing the circumstances of this case, we agree with seven of the ten sanctions. Therefore, we accept and adopt the Board's recommended sanctions against Ms. Roberts with regard to recommended sanction numbers 1, 2, 4, 5, 7, 8, and 10. We find those recommended sanctions to be adequate sanctions entered into and agreed upon by Ms. Roberts and the ODC. Our concern, however, lies with recommended sanction numbers 3, 6, and 9.
In fashioning an appropriate sanction, this Court is mindful of its prior holding that,
'[i]n deciding on the appropriate disciplinary action for ethical violations, 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, Committee on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987). Syllabus Point 5, Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).
Syllabus Point 7, Office of Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998). Accord Syllabus Point 5, Lawyer Disciplinary Bd. v. Sims, 212 W. Va. 463, 574 S.E.2d 795 (2002) (per curiam). [A]ttorney disciplinary proceedings are primarily designed to protect the public, to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the administration of justice. Committee on Legal Ethics v. Keenan, 192 W. Va. 90, 94, 450 S.E.2d 787, 791 (1994).
Initially, we note that recommendation number 3 suggests Ms. Roberts be supervised by an attorney outside of her law firm. Given the fact that Ms. Roberts is currently an attorney at an outstanding law firm, we feel that it is cumbersome and unnecessary for her to be supervised by outside counsel. It should be quite adequate that she be supervised by one of the many capable attorneys at her present law firm. Therefore, we amend recommendation number 3 of the proposed list of sanctions and modify it to the extent that the supervising attorney may be from within her current law firm. Secondly, we strike recommendation number 6 which suggests that Ms. Roberts withdraw as counsel in another case. As of October 8, 2004, this recommendation is moot due to the fact that Ms. Roberts no longer represents the attorney involved in the separate disciplinary matter. Finally, recommendation number 9 is to be struck from the recommended sanctions imposed upon Ms. Roberts. It provides that willful failure to fully and timely respond to ethics complaints during her two years of supervised practice will result in an immediate ninety-day suspension. That particular sanction amounts to a prospective sanction. If Ms. Roberts, or any attorney for that matter, fails to respond to an ethics complaint at a future indeterminate date, they are well aware of the potential sanctions for such conduct. Thus, imposing a sanction on an event which may never occur is completely unnecessary.
From the record before us it is apparent that Ms. Roberts and the Lawyer Disciplinary Board discussed the proposed sanctions thoroughly and both agreed to them. We believe the sanctions, with the exception of numbers 3, 6, and 9, appropriately hold Ms. Roberts accountable for her past actions as well as set forth a plan to prevent similar future conduct. We also believe that such sanctions will act as a deterrent to both Ms. Roberts and other attorneys who have engaged in similar conduct. Moreover, the agreed upon sanctions will act to deter other lawyers from similar conduct and will help to reassure the public confidence in the integrity of the profession. Finally, Ms. Roberts believes that the recommended sanctions are fair and meet the dual objectives of preserving public confidence in the legal profession and judicial process.
Within 20 days from the date of service of the Statement of Charges, or at least 60 days prior to the date of the scheduled hearing, whichever is sooner, the Office of Disciplinary Counsel shall (a) provide the respondent with the complete identity, address and telephone number of any person with knowledge about the facts of any of the charges; provide a copy of any statements of any such person in the possession or under the control of Disciplinary Counsel or which can be reasonably obtained by Disciplinary Counsel; provide a list of the proposed witnesses to be called at the hearing, including their addresses, telephone numbers, and a summary of their anticipated testimony; provide a disclosure of any trial expert pursuant to the requirements of Rule 26(b)(4) of the West Virginia Rules of Civil Procedure; provide inspection and copying of the results of any reports of physical or mental examinations or scientific tests or experiments; and provide a list and copy of any proposed exhibit to be used at the hearing.