Lawyer Disciplinary Board v. Simmons

632 S.E.2d 909, 219 W. Va. 223, 2006 W. Va. LEXIS 68
CourtWest Virginia Supreme Court
DecidedJune 29, 2006
DocketNo. 32761
StatusPublished
Cited by1 cases

This text of 632 S.E.2d 909 (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, 632 S.E.2d 909, 219 W. Va. 223, 2006 W. Va. LEXIS 68 (W. Va. 2006).

Opinion

PER CURIAM.

This is a lawyer disciplinary proceeding brought against Eugene M. Simmons by the Lawyer Disciplinary Board (“Board”) arising from charges issued against the respondent for multiple violations of the West Virginia Rules of Professional Conduct. The respondent entered into a stipulation with respect to the factual allegations in the statement of charges. On October 19, 2005, a Hearing Panel Subcommittee (“Panel”) of the Board conducted a hearing after which the Panel issued its report setting forth findings of fact, conclusions of law and recommended sanctions. The respondent filed objections to the [225]*225Panel’s recommendations that he later withdrew.

We adopt the Hearing Panel Subcommittee’s recommendations as modified.

I.

This matter arises out of complaints filed by four of the respondent’s former clients. On May 24, 2005, the Investigative Panel of the Board filed a “Statement of Charges” against the respondent, Eugene M. Simmons. The matter was assigned to a Board Hearing Panel Subcommittee. The Panel’s report concludes that the respondent violated Rules 1.3, 1.4(a), and 1.4(b) of the West Virginia Rules of Professional Conduct.1 As discussed infra, we agree with the findings of the Panel that the respondent violated the West Virginia Rules of P?vfessional Conduct. However, it is the decision of this Court to modify the sanctions to be imposed.

In the first count of the statement of charges, a complainant, Demetria Rossetti (“Rossetti”), retained the respondent in February 1999 to serve as the estate attorney for her father’s estate. Rossetti paid the respondent a total of $1,000.00 for the respondent’s services.

In July 1999, the respondent indicated to Rossetti that the estate could be closed upon payment of the estate bills. Shortly thereafter, Rossetti paid the estate bills in full. Rossetti subsequently called the respondent numerous times over a period of nearly eleven months asking when the estate could be settled. The respondent advised Rossetti to “just wait.” The respondent indicated that it could take some time, but provided no additional information.

In May 2000, nearly one year after the estate bills had been paid, Rossetti called the courthouse and discovered that the respondent had never filed the final settlement of the estate. Rossetti then went to the fiduciary commissioner and finalized the estate without the assistance of the respondent.

The record suggests that none of the fee paid by Mrs. Rossetti was ever returned by the respondent.

In the second count of the charges, William L. Vaughan (“Vaughan”) retained the respondent in early 2000 to represent him in a civil action involving real estate jointly owned by Vaughan and two other individuals. Vaughan paid respondent a $600.00 retainer for his services. In the course of the civil action, the respondent failed to notify Vaughan of multiple scheduled hearings.

On March 1, 2002, the opposing party in the litigation filed a motion to dismiss under Rule 41 of the West Virginia Rules of Civil Procedure. The respondent failed to file a response to the motion. On May 27, 2003, the ease was dismissed as a consequence of the respondent’s failure to act. On July 22, 2003, the respondent filed a “Motion to Retain Action Upon Docket.” This motion was granted on January 22, 2004.

After the ethics complaint was filed the respondent returned $600.00 to Mr. Vaughan.

In the third count of the charges, complainants Ralph K. McKeever and his brother Marion A. McKeever (“McKeevers”) hired the respondent in July 2000 to represent them regarding their parents’ estate. The McKeevers paid the respondent a $4,000.00 retainer for his services.

The respondent prepared a civil complaint against the personal representative of the parents’ estate on behalf of the McKeevers, but failed to file the suit. McKeevers’ siblings then instituted a partition suit against the McKeevers to compel the sale of the family farm inherited by the McKeevers and their siblings. The respondent filed an answer and a counterclaim — designated as a “Cross Complaint” — asserting a claim on behalf of the McKeevers for wrongful conversion of estate funds. Without the knowledge [226]*226or consent of the McKeevers, the respondent dismissed the counterclaim without prejudice and thereafter failed to pursue the counterclaim issues. As a consequence of the failures of the respondent, the McKeevers terminated the employment of the respondent and hired other counsel.

The record does not indicate that any of the retainer fee was returned to the McKeev-ers.

In the fourth count, Rodney K. Stone (“Stone”) paid the respondent a $1,000.00 retainer in August 2002 to represent him regarding the potential sale of two parcels of real estate (one in Jackson County and one in Pocahontas County) left by Stone’s father to Stone and his two brothers. The address of one brother was unknown. The respondent advised Stone to file a partition suit in Pocahontas County to resolve the matter. Stone wanted the property to be sold on the open market rather than by auction. The respondent failed to pursue Stone’s desire to sell the property on the open market.

From August 2002 to December of 2002, the respondent failed to respond to telephone calls or to reply to any correspondence from Stone requesting information. In January 2003, the respondent advised Stone that he would “talk to a judge” about the matter and would write Stone a letter “after President’s Day.”

After failing to timely hear from the respondent, Stone terminated the respondent’s representation, and in June 2003, retained new counsel to complete the sale of the property.

None of the $1,000.00 retainer was returned to Mr. Stone.

In response to these four charges, the respondent entered into a “Stipulation Regarding Findings of Fact, Conclusions of Law and Recommended Discipline” (“stipulations”). The matter proceeded to hearing before the Panel where the respondent appeared pro se. The Panel considered the testimony of the respondent, the stipulations, and argument of the respondent and counsel for the Office of Disciplinary Counsel. On January 4, 2006, the Panel filed its report setting forth its findings of fact, conclusions of law, sanctions and recommended discipline.

Pursuant to Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure, the Panel also considered aggravating and mitigating factors. Aggravating factors included that the respondent has in past years been twice suspended from the practice of law, received two admonishments by the Investigative Panel of the Lawyer Disciplinary Board, and reprimanded once by this Court.2 The respondent expressed remorse to the Panel as a mitigating factor.

In consideration of each of these factors, the Panel recommended the following disciplinary measures:

1. A suspension of twenty (20) days pursuant to Rule 3.15(8) of the Rules of Lawyer Disciplinary Procedure and that reinstatement be made pursuant to Rule 3.31 of the Rules of Lawyer Disciplinary Procedure.
2. Restitution in the form of $1000 to Mrs. Rossetti, $4000.00 to the McKeever brothers and $1000.00 to Mr. Stone.
3.

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Related

Lawyer Disciplinary Board v. John P. Sullivan
740 S.E.2d 55 (West Virginia Supreme Court, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
632 S.E.2d 909, 219 W. Va. 223, 2006 W. Va. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawyer-disciplinary-board-v-simmons-wva-2006.