Hello everyone and welcome to this Ethics Alert which will discuss the recent West Virginia Supreme Court opinion which suspended a lawyer for 2 years for, inter alia, billing for over 24 hours in one day on two occasions. The case is West Virginia Lawyer Disciplinary Board v. Michael P. Cooke, SC No. 15-1243 April 20, 2017). The Supreme Court’s opinion is here: http://www.courtswv.gov/supreme-court/docs/spring2017/15-1243.pdf
According to the opinion, “during the time period of January 21, 2014, through September 18, 2014, Cooke billed more than fifteen hours a day on thirty-seven different days. On five of those days, he billed in excess of twenty hours and on two of those days, he billed greater than twenty-four hours. Cooke maintains that during that period of time he was billing the time of the contract attorneys working for him, as well as his own. However, per Cooke’s own testimony, this would have occurred for only some portion of the time period at issue inasmuch as his ‘full-time’ contract attorney quit in late-March, leaving only the part-time contract attorney, who likewise quit at some point later that year.”
“Moreover, during this time period, Cooke contends that he was suffering from diagnosed ‘low testosterone’ which caused him to sleep between ten and sixteen hours a day; medical records introduced into evidence do in fact support such a diagnosis in June, 2014. Cooke maintains that this fatigue continued throughout the time frame in which the guardian ad litem matter was ‘pending’ and continued until November, 2014.”
“Cooke’s extraordinary overbilling was not only intentional and pervasive within the time period at issue, but long-standing. Given the state of the public fisc, the actual injury to the taxpayers of the State of West Virginia is all too real. As the Supreme Court of Ohio stated, overbilling the state for representing indigent clients ‘exploit[s] an already overburdened system designed to aid the poorest members of our society and lessen[s] public confidence in the legal profession and compromise[s] its integrity.’ Holland, 835 N.E.2d at 366. Cooke’s misconduct in that regard, therefore, profoundly affects the public, the legal system, and the profession.
“Moreover, while the bulk of the foregoing discussion has been dedicated to Cooke’s overbilling to PDS, by no means does this Court intend to minimize the seriousness of Cooke’s other violations. In particular, Cooke’s failure to timely file a guardian ad litem brief with this Court in an abuse and neglect matter is not only violative of the Rules of Professional Conduct, but in complete disregard of the countless warnings issued by this Court regarding the appellate obligations of guardians ad litem…”
“Therefore, giving Cooke the benefit of every doubt, this purported fatigue and reduced working capacity would have existed from approximately February until November, 2014—the exact time period under scrutiny for overbilling. Per Cooke’s own testimony, therefore, during this time there would have been between only eight and fourteen hours of the day in which he could even be awake to perform work.”
After summarizing West Virginia cases and standards, the opinion stated the following:
“In view of the foregoing, we find that Cooke’s misconduct warrants a two-year suspension from the practice of law. Cooke’s defrauding of the State through overbilling, gross mishandling of a client matter and funds, his dereliction of duty to his infant clients as a guardian ad litem—all of which is compounded by his unrelenting pattern of unresponsiveness and empty reassurances of remediation—plainly justify this degree of discipline.” The disciplinary hearing panel had recommended a three month suspension and the Office of Disciplinary Counsel recommended a suspension of 18 months.
Bottom line: This lawyer was found to have engaged in serious and excessive overbilling and the opinion found that the overbilling was “intentional and pervasive”. Among other things, he claimed in mitigation that he had low testosterone “which caused him to sleep between ten and sixteen hours a day.” The lawyer was suspended for 2 years for this serious misconduct.
Be careful out there.
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.
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Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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