Lawyer Disciplinary Board v. Benjamin R. Freeman (Justice Ewing, concurring in part, and dissenting, in part, joined by Justice Bunn)

• Court: West Virginia Supreme Court
• Decided: November 12, 2025
• Docket: 24-129
• Status: Separate

Opinion

FILED November 12, 2025 released at 3:00 p.m. No. 24-129 – Lawyer Disciplinary Board v. Benjamin Freeman C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Ewing, Justice, concurring, in part, and dissenting, in part, joined by Bunn, Justice:

I concur with the majority’s adoption of the Hearing Panel Subcommittee’s

(“HPS”) findings of fact and analysis of those facts under Office of Lawyer Disciplinary

Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998). Similarly, I agree with the HPS

and the majority that Mr. Freeman’s conduct warrants a substantial sanction but does not

necessitate disbarment. However, I believe that, after thoroughly applying the relevant

case law to the admitted violations, a sanction harsher than an eighteen-month suspension

is dictated. Therefore, I write separately to provide justification for a harsher sanction short

of annulment for Mr. Freeman’s misconduct.

Much of the Office of Disciplinary Counsel’s (“ODC”) argument and the

majority’s discussion focuses on Mr. Freeman’s misconduct with respect to Ms. Allison’s

retainer fee, as alleged in Count Three of the Statement of Charges. Recently, in Lawyer

Disciplinary Board v. Harris, we distinguished between intentional misappropriation cases

warranting annulment and “fee dispute” cases involving mishandled fees or conversion of

unearned fees, which typically warrant a lesser, one-year sanction based on less culpable

conduct. 251 W. Va. 376, ---, 914 S.E.2d 249, 272-73 (2025). While I concur with the

majority’s conclusion that this is not an annulment case, I write separately because analysis

of these two categories of misconduct leads to the inexorable conclusion that, in arriving

at an eighteen-month suspension, the majority has either (1) discounted Mr. Freeman’s

intentional, self-serving conduct toward Ms. Allison as a mere act of negligence in line

1 with the one-year cases or (2) accounted for that intentional, self-serving conduct as

warranting eighteen months’ suspension, in which case it has wholly ignored Mr.

Freeman’s other, six remaining counts and resulting twenty-seven additional violations of

the Rules of Professional Conduct. In giving these violations their due consideration, a

harsher sanction than an eighteen-month suspension is warranted.

As noted in Harris, the circumstances that demand disbarment in

misappropriation cases typically involve multiple or repeated instances of intentional

misappropriation, conversion of client settlement funds as opposed to unearned fees,

conversion of client funds for personal use, and other more serious fraudulent conduct. 251

W. Va. at ---, 914 S.E.2d at 272-73. See, e.g., Law. Disciplinary Bd. Greer, 252 W. Va. 1,

917 S.E.2d 1 (2024) (attorney knowingly took monies from multiple clients over the course

of numerous years); Law. Disciplinary Bd. v. Kohout, 238 W. Va. 668, 798 S.E.2d 192

(2016) (conversion of settlement proceeds resulting in injury to client and a third-party, in

addition to “a slew of aggravating factors” and absence of mitigating factors); Law.

Disciplinary Bd. v. Scotchel, 234 W. Va. 627, 768 S.E.2d 730 (2014) (failure to provide

client with proceeds from sale of client’s business); Law. Disciplinary Bd. v. Brown, 223

W. Va. 554, 678 S.E.2d 60 (2009) (conversion of settlement funds to purchase cocaine

instead of paying subrogation claims of his client’s insurers); Law. Disciplinary Bd. v.

Coleman, 219 W. Va. 790, 639 S.E.2d 882 (2006) (conversion of approximately $170,000

in legal fees where attorney redirected clients’ wire transfers into his personal account);

Law. Disciplinary Bd. v. Wheaton, 216 W. Va. 673, 610 S.E.2d 8 (2004) (pattern of

2 misappropriating and unlawfully converting client funds over five-year span, including

mishandling settlement funds and routinely accepting legal fees for services never

performed); Jordan, 204 W. Va. 495, 513 S.E.2d 722 (embezzling over $500,000 from

elderly client while acting as her appointed committee).

This Court then explained that circumstances more attuned to

“unreasonable and mishandled fee[s]” or “amounts designated and disputed as fees” may

not always be equated to misappropriation and the harsh sanctions attendant to it. Harris,

251 W. Va. at ---, 914 S.E.2d at 272-273; Jordan, 204 W.Va. at 497, 513 S.E.2d at 724,

Syl. Pt. 6 (articulating general rule that, absent compelling circumstances,

misappropriation warrants disbarment). Under such circumstances, we have found a one-

year suspension or less appropriate based on lack of a culpable mental state or other

mitigating factors. See Law. Disciplinary Bd. v. Morgan, 228 W. Va. 114, 122, 717 S.E.2d

898, 906 (2011) (“[W]e must determine whether [the respondent’s] actions were

intentional, knowing, or negligent in nature. All three levels of culpability warrant

discipline; however, the degree of the misconduct is an issue in determining the severity of

discipline to be imposed.”).

In Morgan, the respondent attorney showed a pattern of accepting retainer

fees then failing to carry out services, and he also failed to deposit the retainers in a separate

account. 228 W. Va. at 120, 717 S.E.2d at 904. Similar to the conduct here, the Court found

that Mr. Morgan had acted intentionally, demonstrated by a pattern of offenses. Id. at 122,

3 717 S.E.2d at 906. Notably, in arriving at a one-year suspension, the Court observed that

Mr. Morgan was unaware his account was inadequate for IOLTA purposes and that he

lacked a selfish or dishonest motive. In Lawyer Disciplinary Board v. Thorn, we issued a

one-year suspension for multiple counts of non-refundable retainers that were placed into

operating accounts and never earned. 236 W. Va. 681, 783 S.E.2d 321 (2016). There,

however, we found that Mr. Thorn’s conduct was negligent except as to one client, and

was attributable, in part, to a significant depressive episode. Id. at 698, 783 S.E.2d at 338.

Like Morgan, absent from Mr. Thorn’s case was the presence of a dishonest or selfish

motive. Id. See also Law. Disciplinary Bd. v. Haught, 233 W. Va. 185, 757 S.E.3d 609

(2014) (one-year suspension where respondent withdrew client funds from an IOLTA

account, but did not convert to personal use); Law. Disciplinary Bd. v. Atkins, 243 W. Va.

246, 842 S.E.2d 799 (2020) (nine-month suspension for negligently supervising staff that

resulted in deposit of client funds into operating account).

But here, Mr. Freeman acted knowingly and intentionally. He knew he had

not used his IOLTA account in over two years and so was aware that he was depositing

Ms. Allison’s funds into an operating account prior to earning it. The record further reflects

that Mr. Freeman had a negative account balance prior to depositing Ms. Allison’s funds

in his operating account and that he immediately withdrew funds to pay a personal debt.

Moreover, Mr. Freeman was untruthful with the ODC about his IOLTA account and

unearned fees in Ms. Allison’s case. Mr. Freeman’s intentional conduct, coupled with his

mishandling of funds put to personal use and dishonesty with the ODC warrants a harsher

4 sanction than those imposed in the cases sanctioning attorneys to one year of suspension.

Observing that Mr. Freeman’s conduct falls somewhere at the midpoint on

the scale of annulment to one-year suspension cases, an eighteen-month suspension would

have been appropriate for his Rule violations relative to Ms. Allison’s case alone.

Unfortunately, Mr. Freeman’s professional transgressions were not limited to his

mishandling and misuse of Ms. Allison’s retainer fee. In addition to the nine violations at

issue in Count Three, Mr. Freeman admitted to an additional twenty-seven violations of the

Rules of Professional Conduct as alleged in Counts One, Two, Four, Five, Six and Seven

of the Statement of Charges. Therefore, the analysis of an appropriate sanction cannot end

with the conduct involving Ms. Allison.

As noted above, the majority’s analysis would appear to place heavy

emphasis on Mr. Freeman’s conduct relative to Ms. Allison, merely acknowledging that

this Court has sanctioned attorneys generally for the conduct involved in his other rule

violations. But in the absence of a meaningful, independent analysis of the circumstances

of Mr. Freeman’s additional violations based on the rationale of similarly-situated cases

and the sanctions imposed therein, I am left with the conclusion that the Court has departed

from “respectful consideration” of the recommended sanction in favor of a cobbled post-

hoc justification for the number HPS reached. See Syl. Pt. 1, in part, Law. Disciplinary Bd.

v. Cain, 245 W. Va. 693, 865 S.E.2d 95 (2021). Mindful that we conduct a de novo review

and“‘[t]his Court is the final arbiter of legal ethics problems and must make the ultimate

5 decisions about public reprimands, suspensions[,] or annulments of attorneys’ licenses to

practice law[,]’” I diverge from the majority’s approach not only because its evaluation of

fee mishandling diminishes the seriousness of that conduct, but also because I find that an

eighteen-month suspension likewise unduly depreciates the seriousness of the additional

twenty-seven Rule violations at issue in Counts One, Two, Four, Five, Six and Seven. Cain,

245 W. Va. at 695, 865 S.E.2d at 97, Syl. Pt. 2.

All six of the remaining counts involve Mr. Freeman’s (a) failure to “act with

reasonable diligence and promptness in representing a client” in violation of Rule 1.3; (b)

knowing disobedience of an obligation under the rules of a tribunal in violation of Rule

3.4(c); and (c) “conduct that is prejudicial to the administration of justice” in violation of

Rule 8.4(d). Mr. Freeman also admitted to multiple instances of failing to respond to a

lawful demand for information from disciplinary authority in violation of Rule 8.1(b), as

well as failing to keep clients informed about the status of their cases in violation of Rule

1.4(a)(3). In addition, Mr. Freeman admitted to violating Rule 3.2 by failing to “make

reasonable efforts to expedite litigation” consistent with his clients’ interests in all four

counts related to abuse and neglect appeals before this Court.

Specifically, Mr. Freeman failed to timely perfect five abuse and neglect

appeals, each of which resulted in this Court ordering Mr. Freeman to appear and show

cause why he should not be held in contempt for failure to perfect the appeal. In each of

those five cases, Mr. Freeman failed to comply with this Court’s Scheduling Orders and

6 Notices of Intent to Sanction and failed to timely respond to the ODC’s inquiries. Only

after receipt of each Rule to Show Cause Order did Mr. Freeman perfect his client’s

respective appeals. As a result of Mr. Freeman’s dilatory conduct and disregard for this

Court’s deadlines, his clients and their children experienced an extended period of

uncertainty and an unnecessary delay in permanency. Similarly, Mr. Freeman ignored court

orders, deadlines, phone calls, and correspondence related to his representation of Mr.

Young and Mr. Murray, and he disregarded numerous letters and even certified mail sent

to him from the ODC.

Mr. Freeman’s pattern of ignoring court orders, deadlines, and

correspondence is inexcusable and yet is relegated to a blip in the majority’s analysis that

this Court has responded with suspension for failure to perfect an appeal and to otherwise

communicate with clients. In Lawyer Disciplinary Board v. Conner, cited by the majority

for this prospect, we imposed a ninety-day suspension in addition to two years’ supervised

practice for failing to perfect an appeal in one case, where that practitioner was held in

contempt of this Court and otherwise failed to communicate with clients. 234 W. Va. 648,

769 S.E.2d 25 (2015). Mr. Freeman failed to perfect five appeals in abuse and neglect cases,

was held in contempt of Court for failure to respond to this Court’s deadlines and

communications, and was ultimately removed from the court appointed attorneys list. We

have found that an attorney’s “fail[ure] to respond to the deadline and entreaties of this

Court regarding the filing of briefs . . . weighs heavily against [him]” yet I do not see that

the severity of these offenses is properly reflected in the crafted sanction. Law.

7 Disciplinary Bd. v. Grindo, 231 W. Va. 365, 371, 745 S.E.2d 256, 262 (2013).

Similarly, the majority cites Lawyer Disciplinary Board v. Curnutte, 251 W.

Va. 839, 916 S.E.2d 681 (2025), in which an attorney was suspended for six months for

eleven violations involving lack of diligence, failure to communicate, and ignoring the

ODC. However, although Mr. Freeman admitted to more than twenty-seven similar

violations, more than double the violations that justified a six-month suspension in

Curnutte, the majority took no steps to analogize or distinguish Mr. Freeman’s conduct

from that in Curnutte or any other case in determining an appropriate sanction for similar

conduct. In several other cases, even two-year suspensions have been deemed appropriate

for conduct similar to Mr. Freeman’s conduct underlying Counts One, Two, Four, Five, Six

and Seven. See, e.g., Law. Disciplinary Bd. v. Schillace, 247 W. Va. 673, 885 S.E.2d 611

(2022) (two-year suspension for seven counts and fifty-three violations involving lack of

diligence, ignoring communication from clients and ODC, and disregard for court orders,

but where mental health issues considered a mitigating factor); Law. Disciplinary Bd. v.

Grafton, 227 W. Va. 579, 587, 712 S.E.2d 488, 496 (2011) (two-year suspension where

attorney “continued in a pattern and practice of repeatedly failing to communicate with and

for his clients, and not responding to requests of the ODC. . . . [And he] also deceived his

client by allowing her to believe that he was acting diligently and an appeal had been

perfected in her case”); Law. Disciplinary Bd. v. Hardin, 217 W. Va. 659, 619 S.E.2d 172

(2005) (two-year suspension for disobeying discovery orders, missing hearings, and

ignoring circuit court sanctions).

8 Acknowledging that there is no magic formula in these types of cases and

that they are largely circumstance driven, I conclude that Mr. Freeman’s conduct warrants

a harsher sanction than the eighteen months imposed by the majority based on my review

of these cases arising from similar circumstances and Mr. Freeman’s culpable mental state.

Law. Disciplinary Bd. v. Sirk, 240 W. Va. 274, 282, 810 S.E.2d 276, 284 (2018) (“There

is no ‘magic formula’ for this Court to determine how to weigh the host of mitigating and

aggravating circumstances to arrive at an appropriate sanction; each case presents different

circumstances that must be weighed against the nature and gravity of the lawyer’s

misconduct.”).

In contemplating a suitable sanction, I have given due consideration to

Mr. Freeman’s repeated excuse of becoming overwhelmed as a solo practitioner. During

his testimony before the HPS, Mr. Freeman gave a one-word explanation: “Caseload.”

When asked why he had not done what he was required to do, he stated that “things were

hitting [him] left, right and center,” that he “got overwhelmed and got behind.” It is a

simple, understandable explanation and a common situation among solo practitioners,

particularly those handling court-appointed cases. However, it does not justify violations

of an attorney’s duties to his clients, the public, the legal system, and to the legal profession.

This Court has explained that “[w]hile we understand that sometimes a lawyer’s personal

problems require the lawyer’s utmost attention, this focus of a lawyer’s attention cannot

come at the client’s expense.” Law. Disciplinary Bd. v. Sturm, 237 W. Va. 115, 128, 785

9 S.E.2d 821, 834 (2016).

A lawyer in Mr. Freeman’s situation cannot avoid problems or their

consequences by adopting the ostrich-with-its-head-in-the-sand approach to problem-

solving. Nearly all of Mr. Freeman’s violations could have been avoided by taking the

simple steps of maintaining communication with his clients and the courts, filing necessary

motions for extensions or continuances, responsibly opening and addressing mail, and

advising courts when his case load became overwhelming. Although Mr. Freeman does

express remorse for his misconduct, he also attributes much of his unresponsiveness and

delays to the fault of others including clients, court clerks, mail delivery, and courts.

Therefore, Mr. Freeman’s lukewarm, waffling mea culpa misses the mark and is not

convincing enough to lessen the gravity of his misconduct. It appears that much of the

misconduct at issue arises from poor management of his law practice and his professional

responsibilities. For this reason, I believe that the potential of supervision of his practice

in the future should be addressed during any reinstatement proceedings.

Because I would have imposed a harsher sanction based on Mr. Freeman’s

pattern of misconduct and disregard for his professional and ethical obligations, albeit

stopping short of annulment, I respectfully concur, in part, and dissent, in part, and am

authorized to state that Justice Bunn joins in this separate opinion.