Lawyer Disciplinary Board v. Leah Perry Macia

• Court: West Virginia Supreme Court
• Decided: April 8, 2022
• Docket: 20-0908
• Status: Separate

Opinion

FILED April 8, 2022 released at 3:00 p.m. No. 20-0908 – Lawyer Disciplinary Board v. Leah Perry Macia EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

WOOTON, Justice, dissenting:

The sole issue before the Court in this lawyer disciplinary case is the length

of time of the actual suspension from the practice of law of the respondent lawyer, Leah

Perry Macia. The respondent lawyer and the Office of Disciplinary Counsel agreed to a

stipulated sanction, which included Ms. Macia’s license to practice law being suspended

for one year, but that she would only serve ninety days of that one-year suspension. The

Hearing Panel Subcommittee (“HPS”), after hearing the evidence in this case, decided not

to accept the parties’ stipulated sanction, and instead recommended that Ms. Macia actually

serve thirty days of her one-year suspension. Because I would defer to the HPS’s

recommended sanction of a thirty-day suspension as being appropriate in this case, I

respectfully dissent.

This Court clearly is the final arbiter of the appropriate sanction for violations

of the West Virginia Rules of Professional Conduct. See Syl. pt. 3, Comm. on Legal Ethics

v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028 (1985) (“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.”). However, we have also held that “substantial deference is given to the . . . [HPS’s]

1 findings of fact, unless such findings are not supported by reliable, probative, and

substantial evidence on the whole record.” Syl. Pt. 3, in part, Comm. on Legal Ethics v.

McCorkle, 192 W. Va. 286, 452 S.E2d 377 (1994); accord In re: L.E.C., 171 W.Va. 670,

672, 301 S.E.2d 627, 629 (1983) (recognizing that absent a mistake of law or arbitrary

assessment of facts, recommended sanctions in legal ethics cases are to be given substantial

consideration.).

I am of the firm belief that the recommended sanction of the HPS, as the

body charged with investigating complaints of violations of our Rules of Professional

Conducts, is entitled to substantial deference by this Court. While the majority repeatedly

references throughout its opinion that “[t]he HPS’s report did not explain why it determined

that the suspension should be reduced[,]” Rule 3.10 of the West Virginia Rules of Lawyer

Disciplinary Procedure only requires the HPS’s recommended disposition or report to

include “findings of fact, conclusions of law, and a recommended disposition.” There is

no authority set forth in the Rules of Lawyer Disciplinary Procedure requiring the HPS to

explain its reasoning for reducing an agreed-upon sanction, nor is there any authority for

the HPS to accept an agreed-upon sanction. Further, after listing Ms. Macia’s mitigating

factors, which included “(1) the good faith effort to rectify the consequences of her

misconduct, (2) the Respondent’s cooperative attitude toward the disciplinary proceedings,

and (3) the Respondent’s remorse for her actions and how they reflected on her as a lawyer

and the profession[,]” the HPS further found that she had agreed to serve a “longer period

2 of actual suspension than the HPS found adequate.” Thus, the HPS found that an actual

thirty-day suspension adequately sanctioned Ms. Macia for her conduct.

Therefore, I would defer to the HPS’s recommended thirty-day actual

suspension for Ms. Macia’s conduct. This deference, however, should in no way be read

as excusing or condoning Ms. Macia’s clear violations of the Rules of Professional

Conduct.