Hello everyone and welcome to this Ethics Alert blog which will discuss a recent West Virginia Supreme Court of Appeals opinion imposing a 30 day suspension on a lawyer who failed to communicate with a client on multiple occasions, failed to follow through to correct a sentencing order, and failed to respond to the Bar complaint (and had been admonished 5 previous times for similar misconduct). The disciplinary case is: Lawyer Disciplinary Board v. Sullivan, No. 12-0005 (1/17/12). The opinion is online at: http://www.courtswv.gov/supreme-court/docs/spring2013/12-0005.pdf.
According to the opinion, the lawyer was an assistant public defender and was appointed to represent a defendant in a criminal matter. On December 7, 2009, the client/defendant entered a guilty plea and was sentenced to a 1-5 year term of imprisonment. The circuit court did not enter the sentencing order until approximately nine months later. Shortly after entry of the sentencing order, the client was informed by the West Virginia Division of Corrections that his parole eligibility, based on his sentencing order, would be October 1, 2011; however, the client believed that the sentencing order failed to accurately reflect his effective sentencing date, and that he was actually supposed to be parole eligible on April 11, 2011, almost six months earlier.
The client and members of his family contacted the lawyer and requested that he act to correct the sentencing order. The lawyer promised that he would look into the issue; however, after receiving no response, the client and his family made repeated efforts to contact the lawyer, leaving messages at his office, and also leaving a message with one of his supervisors. The lawyer never responded to the messages and the client then filed a disciplinary complaint against the lawyer.
The lawyer failed to respond to multiple communications from disciplinary counsel requesting a response to the complaint. On December 15, 2011, disciplinary counsel filed a Statement of Charges alleging that the lawyer violated the West Virginia Rules of Professional Conduct, specifically, Rule 1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client; Rule 1.4, which requires a lawyer to keep clients reasonably informed of the status of their matter and to promptly respond to reasonable requests for information, and to explain matters to clients to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; and Rule 8.1(b), which makes it a violation of the Rules for a lawyer, in connection with a disciplinary proceeding, to knowingly fail to respond to a lawful demand for information.
The Statement of Charges also listed several aggravating factors, including that the lawyer (1) had substantial experience in the practice of law, (2) had been admonished on five separate occasions by the ODC for similar conduct, (3) had demonstrated a pattern and practice of failing to adequately communicate with clients, and (4) had demonstrated a pattern and practice of failing to respond to lawful requests from the ODC.
The lawyer signed a stipulation admitting to the facts and violations and agreeing to a public reprimand. The opinion rejected the stipulation and imposed a 30 day suspension noting that, at the time of his fifth admonishment, the lawyer “pledged to the [Office of Disciplinary Counsel], and to the Board, that he would be more diligent in representing his clients” but…the record shows that at the same time he was making this pledge, the Respondent was ignoring repeated requests from [this client and his family to take the action necessary to correct a facially inaccurate sentencing order…there is no evidence that a sixth admonishment, even in the heightened form of a public reprimand, would appropriately sanction the respondent attorney, or that it would serve as an effective deterrent to other members of the Bar or maintain public confidence in the ethical standards of the legal profession. We do not believe that supervised probation alone will be sufficient to protect the public’s interest.”
Bottom line: This lawyer was given multiple chances to improve his client communication skills and act with diligence but failed to do so. He also failed to respond to the initially disciplinary complaint, which resulted in an additional violation of the Bar Rules. He will now serve a 30 day suspension. Please don’t go there…
…and be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670