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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
LAWYER DISCIPLINARY BOARD,
EUGENE M. SIMMONS,
Lawyer Disciplinary Proceeding
Submitted: June 7, 2006
Filed: June 29, 2006
Andrea J. Hinerman
Eugene Simmons, Esq.
Office of Disciplinary Counsel Marlinton, West Virginia
Charleston, West Virginia Defendant, Pro se
Attorney for Petitioner
The Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. 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 judgement. 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).
2. This 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 v. Blair, 174 W.Va.
494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1395, 84 L.E.2d 783
3. 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).
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).
This is a lawyer disciplinary proceeding brought against Eugene M. Simmons
by the Lawyer Disciplinary Board (Board) arising from charges issued against the
respondent for multiple violations of the West Virginia Rules of Professional Conduct. The
respondent entered into a stipulation with respect to the factual allegations in the statement
of charges. On October 19, 2005, a Hearing Panel Subcommittee (Panel) of the Board
conducted a hearing after which the Panel issued its report setting forth findings of fact,
conclusions of law and recommended sanctions. The respondent filed objections to the
Panel's recommendations that he later withdrew.
We adopt the Hearing Panel Subcommittee's recommendations as modified.
This matter arises out of complaints filed by four of the respondent's former
clients. On May 24, 2005, the Investigative Panel of the Board filed a Statement of
Charges against the respondent, Eugene M. Simmons. The matter was assigned to a Board
Hearing Panel Subcommittee. The Panel's report concludes that the respondent violated
Rules 1.3, 1.4(a), and 1.4(b) of the West Virginia Rules of Professional Conduct. (See footnote 1)
, we agree with the findings of the Panel that the respondent violated the West
Virginia Rules of Professional Conduct
. However, it is the decision of this Court to modify
the sanctions to be imposed.
In the first count of the statement of charges, a complainant, Demetria Rossetti
(Rossetti), retained the respondent in February 1999 to serve as the estate attorney for her
father's estate. Rossetti paid the respondent a total of $1,000.00 for the respondent's
In July 1999, the respondent indicated to Rossetti that the estate could be
closed upon payment of the estate bills. Shortly thereafter, Rossetti paid the estate bills in
full. Rossetti subsequently called the respondent numerous times over a period of nearly
eleven months asking when the estate could be settled. The respondent advised Rossetti to
just wait. The respondent indicated that it could take some time, but provided no
In May 2000, nearly one year after the estate bills had been paid, Rossetti
called the courthouse and discovered that the respondent had never filed the final settlement
of the estate. Rossetti then went to the fiduciary commissioner and finalized the estate
without the assistance of the respondent.
The record suggests that none of the fee paid by Mrs. Rossetti was ever
returned by the respondent.
In the second count of the charges, William L. Vaughan (Vaughan) retained
the respondent in early 2000 to represent him in a civil action involving real estate jointly
owned by Vaughan and two other individuals. Vaughan paid respondent a $600.00 retainer
for his services. In the course of the civil action, the respondent failed to notify Vaughan of
multiple scheduled hearings.
On March 1, 2002, the opposing party in the litigation filed a motion to dismissunder Rule 41 of the West Virginia Rules of Civil Procedure. The respondent failed to file
a response to the motion. On May 27, 2003, the case was dismissed as a consequence the
respondent's failure to act. On July 22, 2003, the respondent filed a Motion to Retain
Action Upon Docket. This motion was granted on January 22, 2004.
After the ethics complaint was filed the respondent returned $600.00 to Mr.
In the third count of the charges, complainants Ralph K. McKeever and his
brother Marion A. McKeever (McKeevers) hired the respondent in July 2000 to represent
them regarding their parents' estate. The McKeevers paid the respondent a $4,000.00
retainer for his services.
The respondent prepared a civil complaint against the personal representative
of the parents' estate on behalf of the McKeevers, but failed to file the suit. McKeevers'
siblings then instituted a partition suit against the McKeevers to compel the sale of the family
farm inherited by the McKeevers and their siblings. The respondent filed an answer and a
counterclaim _ designated as a Cross Complaint _ asserting a claim on behalf of the
McKeevers for wrongful conversion of estate funds. Without the knowledge or consent of
the McKeevers, the respondent dismissed the counterclaim without prejudice and thereafter
failed to pursue the counterclaim issues. As a consequence of the failures of the respondent,
the McKeevers terminated the employment of the respondent and hired other counsel.
The record does not indicate that any of the retainer fee was returned to the
In the fourth count, Rodney K. Stone (Stone) paid the respondent a $1,000.00
retainer in August 2002 to represent him regarding the potential sale of two parcels of real
estate (one in Jackson County and one in Pocahontas County) left by Stone's father to Stone
and his two brothers. The address of one brother was unknown. The respondent advised
Stone to file a partition suit in Pocahontas County to resolve the matter. Stone wanted the
property to be sold on the open market rather than by auction. The respondent failed to
pursue Stone's desire to sell the property on the open market.
From August 2002 to December of 2002, the respondent failed to respond to
telephone calls or to reply to any correspondence from Stone requesting information. In
January 2003, the respondent advised Stone that he would talk to a judge about the matter
and would write Stone a letter after President's Day.
After failing to timely hear from the respondent, Stone terminated the
respondent's representation, and in June 2003, retained new counsel to complete the sale of
None of the $1,000.00 retainer was returned to Mr. Stone.
In response to these four charges, the respondent entered into a Stipulation
Regarding Findings of Fact, Conclusions of Law and Recommended Discipline
(stipulations). The matter proceeded to hearing before the Panel where the respondent
appeared pro se. The Panel considered the testimony of the respondent, the stipulations, and
argument of the respondent and counsel for the Office of Disciplinary Counsel. On January
4, 2006, the Panel filed its report setting forth its findings of fact, conclusions of law,
sanctions and recommended discipline.
Pursuant to Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary
, the Panel also considered aggravating and mitigating factors. Aggravating
factors included that the respondent has in past years been twice suspended from the practice
of law, received two admonishments by the Investigative Panel of the Lawyer Disciplinary
Board, and reprimanded once by this Court. (See footnote 2)
The respondent expressed remorse to the Panel
as a mitigating factor.
In consideration of each of these factors, the Panel recommended the following
1. A suspension of twenty (20) days pursuant to Rule
3.15(8) of the Rules of Lawyer Disciplinary Procedure and that
reinstatement be made pursuant to Rule 3.31 of the Rules of
Lawyer Disciplinary Procedure.
2. Restitution in the form of $1000 to Mrs. Rossetti,
$4000.00 to the McKeever brothers and $1000.00 to Mr. Stone.
3. The Respondent shall sign and follow a plan of
supervised practice for a period of one year with a supervision
attorney of the Respondent's choice, said supervisor to be
approved by the ODC [Office of Disciplinary Counsel] and be
available to respond to inquiries by the ODC. The supervisor
shall first meet with Respondent to conduct an initial review of
Respondent's office practices, focusing upon calendaring,
scheduling, a tickler system, mail handling, returning
telephone calls and advising clients of the status of cases by
mail. The Respondent shall also report to the supervision
attorney the status of all his legal matters he has undertaken,
report any oral or written complaints he has received from his
clients or the ODC, and report any letters or other inquiries to
which he has not yet responded;
4. Respondent shall complete an additional three (3)
hours of CLE [continuing legal education] during 2004-2006
reporting period, specifically in office management, over and
above the three (3) hours already required in ethics, office
management, substance abuse or elimination of bias in the legal
5. Respondent shall pay the costs incurred in this
Pursuant to Rule 3.11 of the West Virginia Rules of Lawyer Disciplinary
Procedure, the respondent filed, with this Court, his objection to the Panel's report. While
the respondent admitted to the underlying facts in this case, he denies that his actions rise to
any level as to show a lack of diligence or that he is unfit to be trusted with the duties of the
legal profession. The respondent further suggested a program of community service or pro
bono work. However, in a letter dated March 9, 2006, the respondent withdrew is objection
to the recommendation of the Panel.
Syllabus Point 3 of Committee on Legal Ethics of the West Virginia State Bar v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994) states:
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
Under Rule 3.15 of the West Virginia Rules of Lawyer Disciplinary Procedure,
the following punishments may be imposed in a lawyer disciplinary proceeding: (1)
probation; (2) restitution; (3) limitation on the nature and extent of future practice; (4)
supervised practice; (5) community service; (6) admonishment; (7) reprimand; (8)
suspension; or (9) annulment.
Syllabus Point 4 of Office of Lawyer Disciplinary Counsel v. Jordan, 204
W.Va. 495, 513 S.E.2d 722 (1998) states as follows:
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.
Finally, Syllabus Point 3 of Committee on Legal v. Walker, 178 W.Va. 150, 358
S.E.2d 234 (1987) states:
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. Lawyer disciplinary actions are designed to discipline lawyers who engaged in the practice
of law and failed to meet the expected standards of the profession.
Upon consideration of the foregoing, we conclude that the respondent (a) failed
to exercise reasonable diligence and promptness in representing his clients, (b) failed to
appear for court hearings on numerous occasions, (c) failed to keep his clients reasonably
informed about the status of his clients' matters, and (d) failed to explain necessary matters
for his clients to make informed decisions. This conduct is unacceptable and constitutes
violations of Rules 1.3, 1.4(a), and 1.4(b) of the West Virginia Rules of Professional
Conduct. The respondent's conduct has not only brought injury to his clients, it has also
facilitated a lessening of public confidence in the legal profession.
Mindful of the guidelines established by this Court, and pursuant to Rule 3.15
of the West Virginia Rules of Lawyer Disciplinary Procedure, we adopt the recommended
sanctions of the Panel except with respect to continuing legal education requirements. We,
therefore, impose the following sanctions on the respondent:
1. Suspension of twenty (20) days pursuant to Rule 3.15(8) of the Rules
of Lawyer Disciplinary Procedure
with reinstatement to follow in accordance with Rule 3.31
of the Rules of Lawyer Disciplinary Procedure
; (See footnote 3)
2. Restitution in the amount of $1,000.00 is to be made to Mrs. Rossetti,
$4,000.00 to the McKeever brothers, and $1,000.00 to Mr. Stone. Restitution is to be made
within sixty (60) days from the date this opinion is handed down by this Court;
3. Supervised practice for a period of one year following reinstatement;
4. Completion of six (6) hours of continuing legal education (CLE) in
office management and three (3) hours of CLE in ethics, over and above the three hours
required. The additional hours of CLE shall be completed prior to the conclusion of the
period of supervised practice; and,
5. Respondent shall pay the costs incurred in this disciplinary proceeding
as determined by the Board to be $1,070.21.
These sanctions will properly punish the respondent, should be sufficiently
harsh to deter other attorneys from acting in a similar manner, and will serve as a safeguard
for the public's faith in ethical standards of attorneys.
West Virginia Rules of Professional Conduct
, Rule 1.3 states:
A lawyer shall act with reasonable diligence and promptness in representing
a client. Rule 1.4(a) and (b) state as follows:
(a) A lawyer shall keep a client reasonably informed about the
status of a matter and promptly comply with reasonable requests
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
The first suspension was for six months on November 30, 1990, for entering into
business transactions with a client without adequate disclosures. The second suspension was
for one month in November of 1995 for lack of diligence, failure to communicate, failure to
return files and failure to notify clients of his initial suspension. On May 20, 1994, this Court
ordered a reprimand and ordered the respondent to pass the Multi-State Professional
Responsibility Examination prior to reinstatement. Additionally, the Investigative Panel of
the Lawyers Disciplinary Board admonished the respondent twice (in 1986 and 1993).
We note here that while we approve the twenty-day suspension in this case, we
express a concern with the imposition of short suspension periods in disciplinary cases. We
believe that short suspensions may do more harm than good, especially where a lawyer is a
sole practitioner intending to continue in the practice of law. During the suspension period,
the lawyer's clients will likely be left without representation. Additionally, the lawyer,
absent provisions for substitute counsel, will be placed in the untenable position of having
to explain to the clients, the status of their cases without engaging in the practice of law.
When a suspension is warranted, it should be for a longer period of time, then it may serve
as an effective disciplinary tool and as a means of restoring public confidence in the legal