650 S.E.2d 165
In this lawyer disciplinary matter, A. Wayne King (hereinafter referred to as Respondent) objects to recommendations of the complainant Lawyer Disciplinary Board (hereinafter referred to as Board) regarding resolution of the formal charge brought against Respondent on or about January 20, 2006. The complaint against Respondent was that he created the possibility of a conflict of interest because of the manner in which he entered into a loan transaction with a client in violation of Rule 1.8 (a) of the West Virginia Rules of Professional Conduct. As a result of its review, the Hearing Panel Subcommittee of the Board recommended: immediate restitution to the client; suspension of Respondent's law license for a period of not less than six months with reinstatement contingent upon completion of twelve additional hours of continuing legal education in the area of ethics; after reinstatement, supervised practice of law for a period of one year; and payment of costs of the proceedings. We conclude from our review that Respondent violated the Rules of Professional Conduct, and we hereby impose the sanctions as recommended by the Board except for the length of the license suspension.
The client filed an ethics complaint against Respondent with the Board on
August 7, 2003. The client attempted to withdraw the complaint on August 13, 2003, but
the Board did not act on this request. Because the client renewed his complaint on April 22,
2004, the Office of Disciplinary Counsel (hereinafter referred to as ODC) merged the
complaints and then filed the formal charge against Respondent with this Court on January
20, 2006. Respondent filed his written answer to the charge on February 22, 2006, and the
matter proceeded to hearing before the Hearing Panel Subcommittee on June 6, 2006. The
Hearing Panel Subcommittee concluded that the evidence supported the charge that a
violation of Rule 1.8 (a) of the Rules of Professional Conduct occurred because Respondent:
entered into a loan agreement and note with a client without fully delineating or disclosing
the provisions of the agreement in writing; neglected to give the client a reasonable
opportunity to seek advice of independent counsel regarding the loan agreement; and failed
to obtain the client's written consent to the loan transaction.
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 record.
Rule 1.8. Conflict of interest: Prohibited transactions.
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;
(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
(3) the client consents in writing thereto.
This Court held in syllabus point six of Office of Disciplinary Counsel v. Battistelli, 193 W.Va. 629, 457 S.E.2d 652 (1995), that [a] lawyer who engages in a loan transaction with his or her client must, at a minimum, assure that the arrangement satisfies West Virginia Rule of Professional Conduct 1.8(a)(1) to (3). It is clear from the facts in the case before us that, as the Board has proposed, all three subdivisions of Rule 1.8(a) were violated.
We are now faced with deciding the proper disciplinary action to prescribe under the circumstances. As we indicated in syllabus point four of Office of Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998), we rely on the factors set forth in Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure in determining the appropriate sanction to impose in a lawyer disciplinary matter. The factors contained in Rule 3.16 are:
(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
This Court has further recognized that [a]ttorney disciplinary proceedings are not designed solely to punish the attorney, but rather 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. Lawyer Disciplinary Bd. v. Taylor, 192 W.Va. 139, 144, 451 S.E.2d 440, 445 (1994).
In contemplating the appropriate sanction in this case, we are mindful that Respondent's conduct in the instant matter is essentially the same conduct that caused us to enter an order on March 8, 2001, admonishing Respondent and directing that he take six additional hours of ethics as part of his continuing legal education requirement. See Lawyer Disciplinary Board v. A. Wayne King, No. 27742. We have formerly held that [p]rior discipline is an aggravating factor . . . because it calls into question the fitness of the attorney to continue to practice a profession imbued with a public trust. Syl. Pt. 5, in part, Committee on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107 (1986). Additionally, the Board asks us to consider the further aggravating factor of Respondent neglecting to report the $15,000 personal loan to the United States Bankruptcy Court in which Respondent had filed as a debtor.
The mitigating factors Respondent asserts in addition to his stated intent to repay the loan include that the loan involved a client who was a relative whom he continues to represent and that his failure to report the loan in his bankruptcy case was due to his lack of knowledge about bankruptcy proceedings. While we appreciate Respondent's explanations, we do not believe that they absolve him from being sanctioned for his pattern of misconduct. However, we take stock in the client's testimony at the hearing and his request that leniency be used in fashioning a sanction. We also note the client's apparent ambivalence in seeking discipline, as clearly evidenced by his withdrawal and reinstatement of the complaint. We give some weight to the fact that the client continues to call on Respondent to represent him in other legal matters despite Respondent's ethical lapse in this case.
Balancing the aggravating and mitigating circumstances in this case, we find
that the Board's recommendation of a six month license suspension is unduly severe and
instead impose a sixty-day suspension of Respondent's law license. In all other regards, we
adopt the recommended sanctions of the Board.