Lawyer Disciplinary Board v. Simmons

505 S.E.2d 717, 202 W. Va. 654, 1998 W. Va. LEXIS 90
CourtWest Virginia Supreme Court
DecidedJuly 9, 1998
DocketNo. 23431
StatusPublished

This text of 505 S.E.2d 717 (Lawyer Disciplinary Board v. Simmons) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lawyer Disciplinary Board v. Simmons, 505 S.E.2d 717, 202 W. Va. 654, 1998 W. Va. LEXIS 90 (W. Va. 1998).

Opinion

PER CURIAM:1

This is a petition by a suspended attorney for reinstatement of his license to practice law pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure. The petitioner’s law license was suspended in 1990 for a period of six months for entering into business transactions with longtime clients without making adequate disclosures to them, without properly protecting their interests, and without referring them to independent counsel in violation of DR 5-101(A) and DR 5-104(A) of the Code of Professional Responsibility.2

Based upon the petitioner’s conduct since his license was suspended in 1990, the Hearing Panel Subcommittee of the Lawyer Disciplinary Board [hereinafter “Board”] has recommended that the petition for reinstatement be denied. While recognizing that no one instance of the petitioner’s conduct, taken alone, would be sufficient to deny his petition, the Board maintains that the petitioner’s actions, when considered together, create a clear pattern of conduct and do not establish that the petitioner is rehabilitated and fit to practice law.

Based upon our review of the petition, all matters of record, the briefs and oral argument, we order the petitioner’s license reinstated immediately, subject to the petitioner’s satisfaction of the conditions enumerated herein and subject to one year of supervised practice.

I

On November 30, 1990, the petitioner, Eugene Simmons, had his license to practice law suspended for a period of six months. The suspension occurred after two longtime clients of the petitioner filed complaints with the State Bar regarding business transactions they had entered into with the petitioner. In each instance, the client suffered significant financial losses as a result of the petitioner’s conduct.

On October 21, 1991, the petitioner filed a petition for reinstatement of his license. However, he did not file the required Reinstatement Questionnaire until December 1994. During the interim, other disciplinary proceedings were initiated against the petitioner. Consequently, consideration of the reinstatement petition was deferred until the remaining disciplinary proceedings were completed.

On April 22, 1993, the petitioner was admonished by the Investigative Panel of the Board for accepting a new client after he had received notice that he would be suspended in less than one month. Subsequently, on May 20, 1994, this Court reprimanded the petitioner for violating DR 6-101(A)(3) of the Code of Professional Responsibility by failing to prepare final orders in forty-two criminal cases before leaving the Office of Prosecuting Attorney of Pocahontas County and for further failing to submit several other documents in the same cases. The petitioner was also found to have violated Rule 1.16(d) of the Rules of Professional Conduct because he did not timely return a client file in 1989 after the client terminated his representation. The petitioner was ordered to pass the Multi-State Professional Responsibility Examination and pay the costs incurred in the proceeding prior to his reinstatement to the practice of law.3

In further proceedings, the petitioner was again disciplined by this Court for conduct he had engaged in prior to his original six-month suspension. The petitioner was found to have violated Rules 1.2, 1.4(a), 1.4(b), 1.16(a), 1.16(d), and 8.1(b) of the Rules of Professional Conduct for failing to act with reasonable diligence and promptness, failing to return phone calls and otherwise communicate with a client, failing to promptly return a file, and failing to promptly notify [657]*657clients of his suspension. As a result, the petitioner’s license was suspended for an additional month. The petitioner was further ordered to pay the costs of the proceedings against him and as a condition of his reinstatement, to participate in a mentoring program for one year under the supervision of an attorney selected by the petitioner and Disciplinary Counsel.

II

In Syllabus Point 3 of Lawyer Disciplinary Bd. v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995), we set forth the standard of review applicable to cases involving the discipline of lawyers:

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.

See also Syllabus Point 1, Lawyer Disciplinary Bd. v. Hatcher, 199 W.Va. 227, 483 S.E.2d 810 (1997).

We have previously held that: “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.” Syllabus Point 3, Committee on Legal Ethics of the West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1395, 84 L.Ed.2d 783 (1985). See also Syllabus Point 7, Committee on Legal Ethics of the West Virginia State Bar v. Karl, 192 W.Va. 23, 449 S.E.2d 277 (1994); Syllabus Point 2, Committee on Legal Ethics of the West Virginia State Bar v. Sheatsley, 192 W.Va. 272, 452 S.E.2d 75 (1994). We have further noted that “[i]n deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the ... attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.” Syllabus Point 3, Committee on Legal Ethics of the West Virginia State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

As indicated above, the petitioner’s license was initially suspended for six months, beginning in 1990. Subsequently, an additional one-month suspension was ordered. Despite only a total seven-month suspension, the petitioner has not practiced law for approximately eight years. We, of course, recognize that petitioner’s attempts to seek reinstatement earlier were delayed by the additional disciplinary proceedings. Nonetheless, the petitioner has not practiced law for a considerable period of time.

During the time his license has been suspended, the petitioner has continued to live in Hillsboro, West Virginia, where he has operated a cattle farm.

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Related

Committee on Legal Ethics of the West Virginia State Bar v. Walker
358 S.E.2d 234 (West Virginia Supreme Court, 1987)
Committee on Legal Ethics of West Virginia State Bar v. Blair
327 S.E.2d 671 (West Virginia Supreme Court, 1984)
Committee on Legal Ethics of West Virginia State Bar v. Simmons
399 S.E.2d 894 (West Virginia Supreme Court, 1990)
Lawyer Disciplinary Board v. Cunningham
464 S.E.2d 181 (West Virginia Supreme Court, 1995)
Committee on Legal Ethics of the West Virginia State Bar v. Karl
449 S.E.2d 277 (West Virginia Supreme Court, 1994)
Lawyer Disciplinary Board v. Hatcher
483 S.E.2d 810 (West Virginia Supreme Court, 1997)
Lawyer Disciplinary Board v. Vieweg
461 S.E.2d 60 (West Virginia Supreme Court, 1995)
Lieving v. Hadley
423 S.E.2d 600 (West Virginia Supreme Court, 1992)
Committee on Legal Ethics of the West Virginia State Bar v. Sheatsley
452 S.E.2d 75 (West Virginia Supreme Court, 1994)

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Bluebook (online)
505 S.E.2d 717, 202 W. Va. 654, 1998 W. Va. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawyer-disciplinary-board-v-simmons-wva-1998.