Office of Disciplinary Counsel v. E. Lavoyd Morgan, Jr.

• Court: West Virginia Supreme Court
• Decided: March 20, 2020
• Docket: 19-0885
• Status: Published

Opinion

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2020 Term

_____________________ FILED March 20, 2020 released at 3:00 p.m. No. 19-0885 EDYTHE NASH GAISER, CLERK _____________________ SUPREME COURT OF APPEALS OF WEST VIRGINIA

OFFICE OF DISCIPLINARY COUNSEL, Petitioner

v.

E. LAVOYD MORGAN, JR., A MEMBER OF THE WEST VIRGINIA STATE BAR, Respondent

___________________________________________________________

Extraordinary Petition for Immediate Suspension

PETITION GRANTED, IMMEDIATE SUSPENSION ORDERED, TRUSTEE TO BE APPOINTED _________________________________________________________

Submitted: February 18, 2020 Filed: March 20, 2020

Rachael L. Fletcher Cipoletti, Esq. Lonnie C. Simmons, Esq. Chief Lawyer Disciplinary Counsel DiPiero Simmons McGinley & Jessica H. Donahue Rhodes, Esq. Bastress, PLLC Lawyer Disciplinary Counsel Charleston, West Virginia Charleston, West Virginia Counsel for Respondent Counsel for Petitioner

JUSTICE HUTCHISON delivered the Opinion of the Court. SYLLABUS

1. “Under the authority of the Supreme Court of Appeal’s inherent power to

supervise, regulate and control the practice of law in this State, the Supreme Court of

Appeals may suspend the license of a lawyer or may order such other actions as it deems

appropriate, after providing the lawyer with notice and an opportunity to be heard, when

there is evidence that a lawyer (1) has committed a violation of the Rules of Professional

Conduct or is under a disability and (2) poses a substantial threat of irreparable harm to the

public until the underlying disciplinary proceeding has been resolved.” Syl. Pt. 2,

Committee on Legal Ethics v. Ikner, 190 W.Va. 433, 438 S.E.2d 613 (1993).

2. “The special procedures outlined in Rule 3.27 of the West Virginia Rules

of Lawyer Disciplinary Procedure should only be utilized in the most extreme cases of

lawyer misconduct.” Syl. Pt. 1, Office of Disciplinary Counsel v. Battistelli, 193 W.Va.

629, 457 S.E.2d 652 (1995).

3. “Given the practical difficulty of providing specific guidance on the

instances where temporary suspension is appropriate, the Court will apply the two-part

standard in West Virginia Rule of Lawyer Disciplinary Procedure 3.27 to each petition on

a case-by-case basis.” Syl. Pt. 4, Office of Disciplinary Counsel v. Battistelli, 193 W.Va.

i 4. “If the Court, after proceeding in accordance with West Virginia Rule of

Lawyer Disciplinary Procedure 3.27(c), concludes that the respondent lawyer should be

temporarily suspended, it will so order. The Office of Disciplinary Counsel, however, must

then expedite the resolution of the charges against the respondent and move to conclude

the matter within ninety days after the suspension becomes effective.” Syl. Pt. 3, Office of

Disciplinary Counsel v. Battistelli, 193 W.Va. 629, 457 S.E.2d 652 (1995).

ii HUTCHISON, Justice:

The Office of Disciplinary Counsel (“ODC”) files this petition for the

immediate, interim suspension of the respondent E. Lavoyd Morgan from the practice of

law in West Virginia pursuant to Rule 3.27 of the West Virginia Rules of Lawyer

Disciplinary Procedure (“RLDP”). The ODC seeks this suspension pending the outcome

of a twenty-two count Statement of Charges against the respondent that is currently being

considered by a Hearing Panel Subcommittee of the Lawyer Disciplinary Board. If this

petition is granted, the ODC also requests the appointment of a trustee to ensure that the

respondent’s clients are protected.

Having reviewed this matter, we find sufficient evidence to initially

demonstrate that the respondent has violated the West Virginia Rules of Professional

Conduct (“RPC” or “Rules”) and poses a substantial threat of irreparable harm to the

public. Accordingly, we grant the ODC’s petition for interim suspension, effective

immediately. We also order the Hearing Panel Subcommittee to expedite this matter by

filing its report no later than sixty days from the date of this opinion, and we order the Chief

Judge of the Circuit Court of Greenbrier County to appoint a lawyer to serve as trustee for

the respondent’s law practice.

1 I. Facts and Procedural Background

The respondent is a member of the West Virginia State Bar who maintains

his law office in Lewisburg, Greenbrier County, West Virginia. He was admitted to the Bar

in October 1995. As such, he is subject to the disciplinary jurisdiction of this Court.

In support of this petition for immediate suspension, the ODC provided this

Court with two exhibits: the formal Statement of Charges that the Investigative Panel of

the Lawyer Disciplinary Board filed against the respondent on September 30, 2019,1 and a

copy of a bank statement for the respondent’s client trust account. When issuing the

Statement of Charges, the Investigative Panel found probable cause to believe that the

respondent has committed 134 instances of violating nineteen different Rules and that

formal discipline is appropriate.2 The alleged violations include, inter alia, repeated

instances of mishandling clients’ cases, dishonesty, and the misappropriation of client

funds. The bank statement shows that the respondent’s client trust account had a negative

balance in July 2017.

1 The Statement of Charges has been assigned Supreme Court docket number 19- 0879. 2 See RLDP 2.9(d) (directing Investigative Panel to issue formal charges upon determining that probable cause exists to establish violations of RPC and formal discipline is appropriate). 2 The respondent objects to this petition and denies that immediate suspension

is appropriate. He provided this Court with a copy of his Answer to the Statement of

Charges; a portion of the transcript of a sworn statement he gave to the ODC; an affidavit

signed by his ex-wife, who formerly was his office manager; and a copy of a police report

that he filed in January 2018 reporting two employees for allegedly embezzling from his

law firm. The Answer to the Statement of Charges contains a lengthy narrative describing

the respondent’s law practice and seeking to refute the charges. The respondent argues that

a combination of circumstances out of his control, including his medical problems and a

dishonest paralegal who embezzled from the firm, generated the multiple ethics complaints

against him.

The twenty-two counts set forth in the Statement of Charges, along with the

respondent’s response to each count, are summarized as follows.

Count 1. The respondent’s practice includes court-appointed work

representing indigent criminal defendants. The Statement of Charges alleges that his

payment vouchers in 2016 and 2017, which were submitted to both the presiding circuit

courts and to the West Virginia Public Defender Services, were replete with false

information, errors, and instances of overbilling. On at least thirty-four separate dates, the

respondent reported billable hours of over eighteen hours per day—and on some of those

dates, he reported over twenty-two hours in a day. The Statement of Charges asserts that

on at least one date, he claimed an impossible 28.8 billable hours in a single day. West

3 Virginia Code § 29-21-13a requires an appointed lawyer to maintain accurate records of

time and expenses incurred; specifies different rates of reimbursement for lawyers and

paralegals; and only permits compensation for actual time and expenses. The respondent

is accused of failing to keep accurate records, billing for work that he did not perform,

billing paralegal time as attorney time, billing in violation of state statute, failing to ensure

that his staff’s conduct was compatible with his ethical obligations, and making false

statements about the work he performed. For this alleged conduct, he is charged with

violating Rules 1.5(a), 3.3(a)(1), 8.1(a), 8.4(c) and 8.4(d) of the RPC.3 In his Answer, the

respondent argues that only the circuit court who appoints a lawyer to a case has the

authority to challenge the amounts claimed in a PDS payment voucher, and the Lawyer

Disciplinary Board is attempting to usurp the circuit courts’ authority by bringing these

charges. Furthermore, although he does not address the specific instances of alleged

overbilling, the respondent denies committing any unethical acts.

Count 2. Travis Norwood retained the respondent for criminal cases; Mr.

Norwood and/or his mother paid the respondent an $8,000 retainer in May of 2017.

According to the Statement of Charges, the respondent did not obtain a written fee

agreement from his client, did not properly handle the cases, provided false information to

the client, and when the client terminated the attorney-client relationship the respondent

3 For the convenience of the reader, an Appendix at the end of this opinion recites all of the Rules of Professional Conduct that the respondent is charged with violating. 4 failed to provide the client file or refund the unearned portion of the retainer. The Statement

of Charges further alleges that a former employee of the firm has reported that the

respondent falsified the invoice for his work on this case; moreover, the respondent’s client

trust account does not show a deposit of $8,000 and two months later the trust account had

a negative balance. The ODC has reported that the respondent did not timely respond to

this ethics complaint. For this Count, the respondent is charged with violating Rules 1.5(b),

1.15(a), 1.15(c), 1.16(d), 8.1(a), 8.1(b), 8.4(c) and 8.4(d) of the RPC. In his Answer, the

respondent says that he plans to pay back $6,000 of the retainer. The respondent says that

he tried to send a refund of $135 directly to Mr. Norwood in prison, but the prison returned

the check because inmates are not permitted to receive money in this fashion.

Count 3. Lori McKinney hired respondent to represent her husband in a

criminal case. She alleges that the respondent failed to communicate with them and failed

to properly handle the case. She also sought the respondent’s representation in a medical

malpractice case, which the respondent allegedly did not pursue and never told the client

that he was not going to pursue. The respondent is charged with failing to act diligently,

failing to expedite both cases, failing to communicate with his clients about both cases,

failing to keep records of the funds paid to him, and failing to provide the client file. He is

accused of violating Rules 1.3, 1.4(b), 1.15(a), 1.16(d), 3.2, 8.4(c) and 8.4(d) of the RPC.

In his Answer, the respondent denies ever agreeing to represent the McKinneys in a

medical malpractice case. He also explains that he is unable to locate any of the

McKinneys’ files, and without the criminal file he is unable to provide them with an

5 accounting. He also denies an allegation that his employee was the only person to have met

with the McKinneys. While he denies violating the RPC, the narrative in his Answer does

not specifically address the other allegations of wrongdoing.

Count 4. The Statement of Charges asserts that in June 2017, W.T. paid the

respondent a $3,500 retainer to represent her granddaughter in a family law case.

According to the Statement of Charges, it is unclear whether the respondent deposited this

money in his client trust account, but at the end of the next month the trust account had a

negative balance. It is alleged that the granddaughter only saw the respondent at the initial

consultation and two hearings, he did no other work and would not meet with her, and he

would not provide the client file or a refund when he stopped working on the case.

Moreover, the ODC directed the respondent to provide an itemization of how he spent the

retainer, which he failed to provide, and certified letters from the ODC regarding this

matter went unclaimed. The respondent is charged with misappropriating client funds,

failing to have a written fee agreement, failing to hold unearned fees in a trust account,

failing to keep accurate trust account records, failing to provide the client file and refund,

and failing to respond to disciplinary counsel. The Statement of Charges asserts that his

conduct violated Rules 1.5(b), 1.15(a), 1.15(c), 1.16(d), 8.1(b), 8.4(c), and 8.4(d) of the

RPC. In his Answer, the respondent reports that this client was happy with the

representation, and he has been unable to find the records necessary to provide an

itemization of how he spent her retainer. In a general manner, he denies the remaining

allegations and denies violating the Rules.

6 Count 5. This Count arises from an ethics complaint filed by the

respondent’s former employee, Denny Bostic; the ODC also interviewed other former

employees in the course of the investigation. The Statement of Charges asserts that the

respondent withheld money from his employees’ earned wages to pay Social Security taxes

and health insurance premiums, but then failed to remit this money to the appropriate

agencies and, instead, kept the money for himself. Furthermore, the employees’ paychecks

“bounced” and the respondent failed to pay state and federal taxes as well as Workers’

Compensation premiums. According to the Statement of Charges, various former

employees have reported that the respondent failed to deposit client money in his trust

account; he took a $2,500 cash retainer from a client and then denied that the client had

paid; he operated a “shadow office” in Charleston but refused to pay the city’s user fee;

and he operated under the misleading firm name of “E. Lavoyd Morgan and Associates”

even though he is a solo practitioner. The respondent is accused of violating Rules 1.15(a),

1.15(c), 7.5(a), 8.1(b), 8.4(b), and 8.4(d) of the RPC. In his Answer, the respondent denies

the allegations and asserts that Mr. Bostic, a convicted person, has made a concerted effort

to “get back at” the respondent.

Count 6. E.L. hired the respondent’s law firm to handle a divorce case,

paying $3,500 to respondent’s paralegal Mitchell Coles. E.L. complains that she was

unable to communicate with Mr. Coles or the respondent; the respondent’s office was

closed; and the respondent failed to provide her client file or a refund of unearned fees.

Moreover, according to the Statement of Charges, the retainer was not deposited into the

7 firm’s client trust account, which soon thereafter had a negative balance. According to the

Statement of Charges, the respondent was late in responding to the ethics complaint, but

eventually answered by saying that he recalls filing a divorce petition for E.L., but he

cannot find the file and has never provided an accounting or a refund of unearned fees. He

is accused of violating Rules 1.4(a), 1.15(a), 1.15(d), 1.16(d), and 8.1(b) of the RPC. In his

Answer, the respondent explains that he remembers filing a divorce petition for this client,

but he has been unable to locate the file due to the actions of a corrupt former paralegal.

Count 7. According to the Statement of Charges, Todd Clutter hired the

respondent to represent Mr. Clutter and his wife on four matters, paying a $9,000 retainer

in multiple payments made in January through March 2018. During this time period, the

respondent’s client trust account showed a balance of only $188.06. According to the

Statement of Charges, the respondent failed to appear at two hearings, resulting in adverse

consequences to the clients; failed to respond to the clients’ requests for information and

to keep them reasonably informed about the cases; failed to keep the unearned portion of

the retainer in his client trust account, while also commingling firm money in the trust

account; failed to provide the clients with their file; failed to refund the unearned portion

of their retainer; and failed to timely answer the ethics complaint. He is accused of violating

Rules 1.4(a), 1.4(b), 1.15(a), 1.15(c), 1.16(d), and 8.1(b) of the RPC. In his Answer, the

respondent explains that Mr. Clutter’s repeated attempts to contact him were made while

the respondent was out of the office recuperating from a serious medical condition and

8 surgery. Without specifically discussing the remaining allegations, the respondent denies

the same.

Count 8. Lonnie Dennis Lilly hired respondent for a car accident case, but

alleges that the respondent failed to communicate with him and the respondent’s office was

often closed. According to the Statement of Charges, there was no written contingency fee

agreement; a retainer for expenses was not deposited into the firm’s client trust account;

the respondent failed to keep accurate records of the client’s money; the respondent failed

to respond to his client’s requests for information and otherwise failed to communicate

with his client; the respondent failed to pursue the case competently and diligently; and the

respondent failed to timely respond to the ethics complaint. He is accused of violating

Rules 1.1, 1.3, 1.4(a), 1.4(b), 1.5(b), 1.15(a), 1.15(c), and 8.1(b) of the RPC. In his Answer,

the respondent says that Mr. Lilly’s unsuccessful efforts to contact him were because the

respondent was out of the office recuperating from his medical issues and surgery. He

denies any unethical conduct.

Count 9. Dani Jones and her son Andrew Arrick report speaking with the

respondent’s paralegal, Mr. Coles, who said the respondent would take their case.

According to the Statement of Charges, the respondent did not show up for appointments

and failed to communicate with these clients. The respondent has denied knowing who

these clients are. He is charged with not acting competently and diligently in handling their

case; failing to properly communicate with his clients; failing to ensure that his staff’s

9 conduct is compatible with his ethical obligations; and failing to timely respond to the

ethics complaint. He is accused of violating Rules 1.1, 1.3, 1.4(a), 1.4(b), 5.3, and 8.1(b)

of the RPC. In his Answer, the respondent acknowledges that he cannot find a client file

and does not know these purported clients. The respondent asserts that his former paralegal,

Mr. Coles, accepted some cases and retainers without the respondent’s knowledge and then

stole the retainers. The respondent denies that he acted unethically in this matter.

Count 10. Client R.D. filed an ethics complaint reporting that after she hired

the respondent for a divorce case, he did little work on the case and failed to communicate

with her. According to the Statement of Charges, R.D. gave the respondent a $3,000

retainer that was not deposited into his client trust account, and shortly thereafter the trust

account had a negative balance. The respondent is charged with failing to act competently

and diligently in handling the case, failing to communicate with his client, failing to hold

client funds in a trust account, making false statements during the ethics investigation, and

failing to timely respond to the ethics complaint. He is accused of violating Rules 1.1, 1.3,

1.4(a), 1.4(b), 1.15(a), 1.15(c), 8.1(a), and 8.1(b) of the RPC. In his Answer, the respondent

explains that he is unable to find R.D.’s file, but he denies acting unethically in this matter.

Count 11. According to the Statement of Charges, T.R. hired the respondent

for a divorce case, paying a $4,150 retainer. The respondent filed a petition for divorce and

a motion for temporary relief on her behalf, but a hearing on the motion was cancelled and

never rescheduled; the respondent failed to file mandatory financial disclosures; nothing

10 else happened in the case; and T.R. was unable to contact him. T.R. reported that the

respondent and his paralegal Mr. Coles essentially disappeared, the respondent’s office

telephone line was disconnected, his office was closed, and she never received an itemized

statement, her file, or a refund. The Statement of Charges alleges that none of T.R.’s

retainer was deposited into the firm’s client trust account, but some of the money was

deposited into a firm operating account. The respondent is charged with failing to act

competently and diligently on the case; failing to hold client funds in a trust account; failing

to provide the client with her file and a refund of unearned fees; failing to ensure that his

staff’s conduct was compatible with his ethical obligations; making false statements during

the ethics investigation; and failing to timely respond to the ethics complaint. He is accused

of violating Rules 1.1, 1.3, 1.15(a), 1.15(c), 1.16(d), 5.3, 8.1(a), and 8.1(b) of the RPC. In

his Answer, the respondent explains that T.R.’s difficulties in reaching him were during

his period of recuperation. He notes that she has now retained other counsel, and he denies

acting unethically in this matter.

Count 12. According to the Statement of Charges, D.K. hired the respondent

to handle her divorce case, paying a $3,050 retainer. D.K. complains that the case was

primarily handled by the respondent’s paralegal, Mr. Coles, and she was often unable to

get in touch with the respondent. She reports that during a hearing, all the respondent asked

her was how much she would accept to settle the case. D.K. reports that after a bifurcated

divorce order was entered, she attempted to contact the respondent for six months but his

office was closed. The respondent is charged with failing to handle the case in a competent

11 and diligent manner, failing to adequately communicate with his client, being unable to

locate the client’s file, not holding the unearned portion of the retainer in his client trust

account, not having an accounting of how he spent the retainer, not refunding unearned

fees when he stopped working on the case, failing to ensure his staff’s conduct was

compatible with his ethical duties, making false statements during the ethics investigation,

and failing to timely respond to the ethics complaint. He is accused of violating Rules 1.1,

1.3, 1.4(a), 1.4(b), 1.15(a), 1.15(c), 5.3, 8.1(a), and 8.1(b) of the RPC. In his Answer, the

respondent reports that some of D.K.’s attempts to reach him were during his period of

recuperation. The respondent cannot find her client file and does not remember meeting

her. He denies acting unethically in this matter.

Count 13. Hunter Chellis filed an ethics complaint explaining that she hired

the respondent for a car accident case, but was then unable to get in contact with him for

several months. After she filed the ethics complaint with the ODC, the respondent

successfully settled her case. The respondent is charged with failing to act diligently on the

case, failing to communicate with his client, failing to have a written fee agreement, and

failing to timely respond to the ethics complaint, in violation of Rules 1.3, 1.4(a), 1.4(b),

1.5(b), and 8.1(b) of the RPC. In his Answer, the respondent says that some of Ms. Chellis’s

unsuccessful attempts to reach him were when he was working outside of his office due to

health reasons, he successfully represented her, and he did not act unethically.

12 Count 14. Sara Reynolds filed an ethics complaint explaining that she hired

the respondent for a car accident case, but was then unable to get in contact with him for

several months. After she filed the ethics complaint with the ODC, the respondent

successfully settled her case. The respondent is charged with failing to communicate with

his client and failing to timely respond to the ethics complaint, in violation of Rules 1.4(a),

1.4(b), and 8.1(b) of the RPC. In his Answer, the respondent says that it is apparent Ms.

Reynolds attempted to contact him when he was recuperating from his surgery, he

successfully represented her, and he did not act unethically.

Count 15. Theresa Reynolds filed an ethics complaint explaining that she

hired the respondent for a car accident case, but was then unable to get in contact with him

and he failed to move the case along for approximately two years. After she filed the ethics

complaint with the ODC, the respondent successfully settled her case. According to the

Statement of Charges, the respondent deposited the settlement check in his client trust

account, but when he wrote a check to Ms. Reynolds for her share of the settlement

proceeds it caused his client trust account to have a negative balance. The respondent is

charged with failing to act diligently, failing to communicate with his client, failing to hold

third party funds in a trust account, failing to timely respond to the ethics complaint, and

misappropriating funds belonging to a client or third party. He is accused of violating Rules

1.3, 1.4(a), 1.4(b), 1.15(a), 8.1(b), 8.4(c), and 8.4(d) of the RPC. In his Answer, the

respondent says that Ms. Reynolds apparently attempted to contact him while he was

13 recuperating from his surgery, he successfully represented her, and he did not act

unethically.

Count 16. Crystal Sheppard filed an ethics complaint explaining that she

hired the respondent for a car accident case, but she was unable to get in touch with him

and he failed to prepare a demand letter on her behalf for over a year. Ms. Sheppard reports

that she terminated the representation, but the respondent did not return her file and she has

been unable to hire new counsel. The respondent is charged with failing to act diligently,

failing to communicate with his client, failing to provide the client file, failing to provide

a refund of unearned fees/expenses, and failing to timely respond to the ethics complaint.

He is charged with violating Rules 1.3, 1.4(a), 1.4(b), 1.16(d), and 8.1(b) of the RPC. In

his Answer, the respondent says that it appears Ms. Sheppard attempted to contact him

when he was unable to work. He reports finding her file in a box of files discovered to be

in the possession of his former paralegal Mr. Coles, and he offers to proceed with the case.

The respondent denies any unethical conduct.

Count 17. J.H. hired the respondent in a family law matter, but had

complaints about his inability to communicate with the respondent. According to the

Statement of Charges, J.H. paid the respondent’s office $4,000 over a two year period, but

there is no record of the money being deposited into the client trust account, and the client

trust account had a negative balance during that time period. The respondent is charged

with failing to act competently and diligently on the case; failing to communicate with the

14 client; failing to hold client funds in a trust account; failing to keep complete records of

funds paid to him; failing to deposit client money in a trust account; commingling law firm

money with client money; and engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation. He is charged with violating Rules 1.1, 1.3, 1.4(a), 1.4(b), 1.15(a),

1.15(c), and 8.4(c) of the RPC. In his Answer, the respondent says that J.H. is dissatisfied

that the facts and law would not provide the outcome J.H. desired for his case. The

respondent denies any unethical behavior.

Count 18. Complainant Elizabeth Good was the respondent’s secretary. She

reports that she quit her employment when the respondent failed to pay $2,342 in wages

he owed her. She also reports that the respondent instructed her to not record or deposit

payments that clients made by cash or check, and that the respondent would instead take

the cash or check and put it in his pocket. The respondent is charged with failing to timely

respond to this ethics complaint in violation of Rule 8.1(b), and failing to timely pay wages

in violation of the law and Rule 8.4(b) of the RPC. In his Answer, the respondent

acknowledges that Ms. Good is most likely owed money for wages, but he says that she

knew at the time of her employment that cash flow would be an issue. He denies ever

advising Ms. Good to refrain from receipting payments from clients or depositing such

money into the client trust account.

Count 19. According to the Statement of Charges, Kelsea Hower and her

mother Lisa Stansell hired the respondent in November 2013 for an automobile accident

15 case. They report long stretches of time when the respondent did not communicate with

them, but their case was finally settled for $15,000 in April 2017. Thereafter, the

respondent did not give them their share of the settlement money and did not adequately

communicate with them. According to the charges, the respondent’s former employee, Ms.

Flora, says she was fired by the respondent for asking questions about this case. According

to the Statement of Charges, the respondent initially said that the delay in giving the clients

their money was due to subrogation claims, but Ms. Flora says she later learned this was

untrue and the money “was gone.” The respondent did not timely respond to this ethics

complaint, but he eventually told the ODC in November 2018 that there were outstanding

bills that needed to be paid on his clients’ behalf. According to the Statement of Charges,

the respondent conceded that nobody had been working on these bills/subrogation claims

since his ex-wife quit working for his law office, and he estimated that the amount of

settlement remaining was around $9,000. According to the Statement of Charges, the

respondent’s client trust account had a negative balance at the time, and the respondent

admitted he was unaware of the trust account balance and did not check the bank

statements. After these clients filed an ethics complaint with the ODC, the respondent sent

them a check for $7,000 on September 12, 2019 for their settlement. The respondent is

charged with failing to act competently and diligently; failing to communicate with his

clients; failing to hold client funds in a trust account; failing to keep complete records of

the funds paid to him; failing to ensure that his staff’s conduct was compatible with his

ethical obligations; providing false information during the ethics investigation; and

misappropriating funds belonging to his client or a third party. The Rules that he is alleged

16 to have violated are 1.1, 1.3, 1.4(a), 1.4(b), 1.15(a), 5.3, 8.1(a), 8.4(c) and 8.4(d) of the

RPC. In his Answer, the respondent explains that his ex-wife was working on negotiating

the subrogation claims until she left employment with his law office on August 17, 2017.

As of the date that he filed his Answer to the Statement of Charges, November 5, 2019, the

subrogation claims had not yet been resolved, but the respondent said that he was working

to resolve them. The respondent asserts that Ms. Flora’s employment was terminated for

other reasons. He denies any unethical conduct.

Count 20. Client P.B. reports paying the respondent’s employee a $3,500

retainer for the firm to represent him in a divorce case and a domestic violence protective

order matter. According to the Statement of Charges, the respondent recalls receiving

$1,500 from this client, but not $3,500, and there is no record of any payments being

deposited. The respondent did not file the divorce case and could not provide an accounting

of how the retainer money was spent. The respondent is charged with failing to act

diligently; failing to expedite the litigation; failing to have a written fee agreement with his

client; failing to hold client funds in a trust account; failing to provide a refund of unearned

fees and expenses; and failing to ensure that his staff’s conduct was compatible with his

ethical obligations. He is accused of violating Rules 1.3, 3.2, 1.5(b), 1.15(a), 1.15(c),

1.16(d), and 5.3 of the RPC. In his Answer, the respondent says that many of P.B.’s

communications were with former paralegal Mr. Coles, and that the evidence will show

that Mr. Coles stole P.B.’s fee payments. The respondent denies that he committed any

unethical conduct in this matter.

17 Count 21. The respondent was court-appointed to represent Brandon Perdue

in a criminal case. According to the Statement of Charges, the respondent failed to appear

for a hearing, the client was unable to reach him by phone, the respondent did not respond

to the client’s letters, and the respondent did not act when his client’s letters were forwarded

to him by the circuit court. After seven months, the circuit court appointed new counsel for

Mr. Perdue. The respondent is charged with failing to act competently, failing to act

diligently, failing to communicate with his client, and failing to expedite the litigation. The

Rules that he is alleged to have violated are Rules 1.1, 1.3, 1.4(a), 1.4(b), and 3.2 of the

RPC. In his Answer, the respondent says that he appeared for hearings in the case, but was

not given notice of one or more other hearings. He reports finding a “few handwritten

letters” from the client in his file, but does not recall seeing those letters when they were

received. He explains that prior to May 2019, there were times when no employees were

in his office and his own health limited his ability to go into the office. He denies

committing any unethical conduct.

Count 22. According to the Statement of Charges, Zana Osborne was in a

car accident resulting in injuries and thereafter met with the respondent’s paralegal.

Without ever revealing that he was not an attorney, the paralegal told Ms. Osborne that she

had a valid case and he accepted her paperwork. The respondent reports that he is unable

to locate this paperwork. The respondent is charged with failing to ensure that his staff’s

conduct was compatible with his ethical obligations, in violation of Rule 5.3 of the RPC.

18 In his Answer the respondent explains that he does not know Ms. Osborne, and he has been

unable to find any files relating to Ms. Osborne. He denies any unethical conduct.

By notice dated October 1, 2019, the Clerk of this Court provided the

respondent with written notice of the ODC’s petition for his immediate suspension.

Thereafter, the respondent requested a hearing before this Court. After full briefing and

oral argument, the petition is now ripe for decision.

II. Standard of Review

“The exclusive authority to define, regulate and control the practice of law

in West Virginia is vested in the Supreme Court of Appeals.” Syl. Pt. 1, State ex rel. Askin

v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982). Pursuant to this authority, and in order

to insure that the public is protected, this Court may immediately suspend a lawyer from

the practice of law:

Under the authority of the Supreme Court of Appeal’s inherent power to supervise, regulate and control the practice of law in this State, the Supreme Court of Appeals may suspend the license of a lawyer or may order such other actions as it deems appropriate, after providing the lawyer with notice and an opportunity to be heard, when there is evidence that a lawyer (1) has committed a violation of the Rules of Professional Conduct or is under a disability and (2) poses a substantial threat of irreparable harm to the public until the underlying disciplinary proceeding has been resolved.

Syl. Pt. 2, Committee on Legal Ethics v. Ikner, 190 W.Va. 433, 438 S.E.2d 613 (1993).

This authority has been incorporated into RLDP 3.27, which “provides a mechanism to

19 immediately suspend the license of a lawyer who (1) is disabled or is accused of violating

the West Virginia Rules of Professional Conduct and (2) who is alleged to pose a substantial

threat of irreparable harm to the public.” Office of Disciplinary Counsel v. Albers, 214

W.Va. 11, 13, 585 S.E.2d 11, 13 (2003).4

4 RLDP 3.27, titled “Extraordinary Proceedings,” provides:

(a) Upon receipt of sufficient evidence demonstrating that a lawyer (1) has committed a violation of the Rules of Professional Conduct or is under a disability and (2) poses a substantial threat of irreparable harm to the public, the Office of Disciplinary Counsel shall conduct an immediate investigation. (b) Upon completion of such investigation, the Office of Disciplinary Counsel shall promptly file a report with the Supreme Court of Appeals indicating whether, in the opinion of Disciplinary Counsel, the lawyer’s commission of a violation of the Rules of Professional Conduct or disability poses a substantial threat of irreparable harm to the public. The Office of Disciplinary Counsel shall attempt to provide reasonable notice to the lawyer prior to the filing of this report. (c) Upon receipt of this report, the Supreme Court, upon determining the existence of good cause, shall provide notice of the charges to the lawyer with the right to a hearing in not less than thirty days before the Court. The Supreme Court may appoint a trustee to protect the interest of the lawyer’s clients during the pendency of these proceedings. After such hearing, the Supreme Court may temporarily suspend the lawyer or may order such other action as it deems appropriate until underlying disciplinary proceedings before the Lawyer Disciplinary Board have been completed. (d) Unless otherwise provided, interim suspension of a lawyer pursuant to this rule shall take effect immediately upon entry of the order by the Supreme Court. A hearing on formal charges against the suspended lawyer shall be conducted by a Hearing Panel Subcommittee, unless continued for good cause shown, within ninety days after the effective date of suspension. 20 To prevail under RLDP 3.27, the ODC’s petition “should contain, at a

minimum, specific allegations of the misconduct alleged. Where necessary to aid the Court

in its resolution of the matter, the petition should also refer to supporting documentation

and affidavits. The respondent lawyer should then offer supporting documents and

affidavits to counter the petitioner’s allegations.” Syl. Pt. 2, in part, Office of Disciplinary

Counsel v. Battistelli, 193 W.Va. 629, 457 S.E.2d 652 (1995). “The special procedures

outlined in Rule 3.27 of the West Virginia Rules of Lawyer Disciplinary Procedure should

only be utilized in the most extreme cases of lawyer misconduct.” Id. at 630, 457 S.E.2d at

653, syl. pt. 1. Moreover, “[g]iven the practical difficulty of providing specific guidance

on the instances where temporary suspension is appropriate, the Court will apply the two-

part standard in West Virginia Rule of Lawyer Disciplinary Procedure 3.27 to each petition

on a case-by-case basis.” Id. at 630, 457 S.E.2d at 653, syl. pt. 4. Upon proceeding in

accordance with RLDP 3.27, if the Court “concludes that the respondent lawyer should be

temporarily suspended, it will so order.” Id., syl. pt. 3, in part.

Finally, our decision in this matter is guided by the principle that lawyer

disciplinary proceedings are not designed merely to punish the lawyer, but are also for “the

protection of the public and the reassurance of the public as to the reliability and integrity

of attorneys.” Ikner, 190 W.Va. at 436, 438 S.E.2d at 616 (citation omitted) (granting

immediate suspension of lawyer for protection of public); accord Syl. Pt. 3, Committee on

Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987) (discussing purpose of

lawyer discipline). With all of this in mind, we consider the parties’ arguments.

21 III. Discussion

The ODC contends that the two-part test of RLDP 3.27 is satisfied in this

case: the respondent has violated the Rules of Professional Conduct and he poses a

substantial threat of irreparable harm to the public. The respondent argues that neither part

of the test is met.

The sheer number of ethics complaints pending against the respondent is

astounding. Nonetheless, when considering this matter, we are mindful that we do not yet

have a full evidentiary record or any findings of fact by a Hearing Panel Subcommittee of

the Lawyer Disciplinary Board. We are not called upon to decide the merits of the ethics

charges or what the ultimate outcome of those charges should be; rather, “we consider

whether the ODC’s allegations, along with its supporting documentation, produce

sufficient evidence to initially demonstrate” that the respondent violated the Rules and

poses a substantial threat of irreparable harm to the public. See Office of Disciplinary

Counsel v. Duffy, 237 W.Va. 295, 299, 787 S.E.2d 566, 570 (2016). Accordingly, we focus

our attention on the aspects of the Statement of Charges that are essentially uncontested or

to which the respondent has failed to provide an adequate response. See Office of Lawyer

Disciplinary Counsel v. Nichols, 212 W.Va. 318, 321, 570 S.E.2d 577, 580 (2002)

(immediately suspending lawyer pursuant to RLDP 3.27 who did not submit evidence to

refute allegations that he lied to clients); Battistelli, 193 W.Va. 629, 457 S.E.2d 652

(immediately suspending lawyer pursuant to RLDP 3.27 who gave obviously false or

deficient responses to multiple ethics complaints).

22 We begin with the issue of whether the respondent has violated the Rules of

Professional Conduct. As described above, the respondent is accused of violating nineteen

different Rules in twenty-two separate counts. There are multiple allegations of failing to

act diligently, failing to adequately communicate with his clients, exhibiting a lack of

candor and outright dishonesty, and failing to ensure that his employees acted in a manner

consistent with the respondent’s ethical obligations. For purposes of this petition, the

allegations that are particularly worrisome to this Court are the claims that the respondent

mishandled and misappropriated client money. As explained in Lawyer Disciplinary Board

v. Kupec, 202 W.Va. 556, 568, 505 S.E.2d 619, 631 (1998), “[t]he misappropriation of

client trust funds by an attorney is serious conduct.” Misappropriation or conversion of

money is “the unauthorized use of entrusted funds for the lawyer’s own purpose. It includes

temporary use. It also includes use that does not result in personal gain or benefit to the

lawyer.” Id. at 569, 505 S.E.2d at 632 (citation omitted).

Although he denies violating the Rules, it is clear from the limited record

before us that the respondent has misappropriated client funds in at least some of the

matters set forth in the Statement of Charges. For example, Count 2 alleges that the

respondent received an $8,000 retainer, yet he was never able to produce an accounting of

how he spent any part of the money, and he admitted owing the client a refund of

approximately $6,000. Despite admitting that he owed this refund, the unearned fee was

not in his client trust account—and the account had a negative balance during the relevant

time period. In Count 4, the respondent is alleged to have received a $3,500 retainer, but

23 there is no record that this money was ever deposited into his client trust account. The

respondent could not directly respond to the allegations of mishandling client funds in

Count 4 because, according to the respondent, he has been unable to find records necessary

to provide his client with an itemization of how the retainer was spent. In Count 15 the

respondent settled a case and deposited the proceeds in his client trust account, but when

he paid the client her share of the settlement, this caused the trust account to have a negative

balance. Clearly, this client’s funds had been diverted to another purpose. Turning to Count

19, the respondent settled his clients’ case for $15,000 in April 2017 but admits that he did

not provide any portion of the settlement proceeds to the clients until September 2019,

when he sent them a check for $7,000 representing some of their share. During the interim

period, his trust account had a negative balance. These are but a few examples of the

financial improprieties convincingly set forth in the ODC’s petition for immediate

suspension and in the Statement of Charges.

The respondent states that his former paralegal, Mr. Coles, embezzled money

from both his clients and his law firm. While this may be true, we reject it as a defense to

this petition for immediate suspension. The ODC reports that there is evidence the

respondent knew of Mr. Cole’s criminal past yet still delegated critical office functions and

responsibilities to him. Moreover, the respondent provided this Court with a copy of a

police statement where he reported Mr. Coles to the police in January 2018—yet, even

after that date, the respondent failed to review the bank statements for his client trust

account. He apparently only became aware of the negative balance in the account during

24 his sworn statement given to the ODC in November 2018. The respondent also states that

medical conditions prevented him from going into the office for several months. However,

according to the brief he filed with this Court, as well as his Answer to the Statement of

Charges, he did not begin missing work for health reasons until November 2017. The bank

statement submitted by the ODC shows that his client trust account had a negative balance

well before that timeframe.

Having reviewed this matter, it is clear that the ODC has made an initial

showing that the respondent violated the Rules of Professional Conduct. Instead of

maintaining money belonging to his clients in an appropriate trust account, this money was

misappropriated for other purposes. A lawyer’s act of converting the money of other people

“obviously reflects a dishonest and deceitful nature which violates the general precept that

an attorney should avoid dishonesty or deceitful conduct.” Syl. Pt. 3, in part, Committee on

Legal Ethics v. Hess, 186 W.Va. 514, 413 S.E.2d 169 (1991). The seriousness of the act of

misappropriating client money is demonstrated by the fact that “[m]ost courts proceed from

the general rule that absent compelling extenuating circumstances, misappropriation or

conversion by a lawyer of funds entrusted to his/her care warrants disbarment.” Kupec, 202

W.Va. at 569, 505 S.E.2d at 632 (citations omitted).

Turning to the second part of the RLDP 3.27 test, the ODC contends that the

respondent presents a substantial threat of irreparable harm to the public. We agree. The

twenty-two counts demonstrate a pattern of failing to ensure that his clients’ interests are

25 protected, failing to pursue his clients’ cases, failing to communicate with clients,

dishonesty, and acts of misappropriation of funds. Moreover, according to the Statement

of Charges and the representation of Disciplinary Counsel during oral argument, the

respondent is still working on court-appointed criminal cases but is not submitting

vouchers to the PDS for reimbursement. The ODC is unable to discern a source of income

from which the respondent will be able to pay his debts, thus putting the retainers paid by

other clients at risk.

Based upon all of the above, we conclude that there is sufficient evidence to

grant the ODC’s petition. Because of the “enormous amount of trust that the public places

in its lawyers, this Court must ensure that the public’s interests are protected and that the

integrity of the legal professional is maintained.” Albers, 214 W.Va. at 13, 585 S.E.2d at

13. For the protection of the public, we are compelled to immediately suspend the

respondent from the practice of law in West Virginia pending the outcome of the Statement

of Charges.

Because of the extraordinary nature of this matter, where we are granting the

ODC’s request to suspend a lawyer before the proceedings on formal charges have been

completed, it is necessary for the Lawyer Disciplinary Board to expedite its consideration

of the charges. This Court held the following in Battistelli:

If the Court, after proceeding in accordance with West Virginia Rule of Lawyer Disciplinary Procedure 3.27(c), concludes that the respondent lawyer should be temporarily

26 suspended, it will so order. The Office of Disciplinary Counsel, however, must then expedite the resolution of the charges against the respondent and move to conclude the matter within ninety days after the suspension becomes effective.

193 W.Va. at 630, 457 S.E.2d at 653, syl. pt. 3. Moreover, RLDP 3.27(d) directs that when

a lawyer is suspended pursuant to this Rule, a hearing on formal charges must be conducted

within ninety days of the suspension.5 However, the Statement of Charges against the

respondent has been pending since September 30, 2019. During oral argument, the parties

reported that a Hearing Panel Subcommittee of the Lawyer Disciplinary Board already held

an evidentiary hearing on the charges in late January 2020. As such, we conclude that

waiting an additional ninety days is too long. The Hearing Panel Subcommittee is ordered

to file its final report on the pending Statement of Charges as soon as possible, but no later

than sixty days after the date we file this opinion granting the immediate suspension.

Finally, there is a need to protect the respondent’s current clients. Rule

3.27(c) of the RLDP specifies our authority to appoint a trustee during the pendency of

extraordinary proceedings such as this. Furthermore, pursuant to RLDP 3.29, we may

authorize the chief judge in the circuit in which a respondent lawyer maintains his practice

to appoint a lawyer to serve as the trustee. RLDP 3.29 also specifies the duties of the trustee

and makes provision for payment. Accordingly, we direct the chief judge of the Circuit

5 See supra n. 4. 27 Court of Greenbrier County to appoint a lawyer to serve as the trustee of the respondent’s

law practice during the period of this interim suspension.

IV. Conclusion

For the foregoing reasons, the ODC’s RLDP 3.27 petition is granted. We

suspend the respondent’s law license, effective immediately, until the pending Statement

of Charges is decided by this Court. The Hearing Panel Subcommittee is directed to

expedite its proceedings on the Statement of Charges and file its final report with this Court

within sixty days of the date of this opinion. The chief judge of the Circuit Court of

Greenbrier County is directed to appoint a lawyer to serve as the trustee for the

respondent’s law practice during the pendency of this suspension, in accordance with the

provisions of RLDP 3.29. The Clerk of this Court is directed to issue the mandate forthwith.

Petition Granted, Immediate Suspension Ordered, Trustee to be Appointed

APPENDIX

Rule 1.1. Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.3. Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 1.4. Communication. (a) A lawyer shall:

28 (1) promptly inform the client of any decision or circumstances with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Rule 1.5. Fees. (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and skill requisite to perform the legal service properly; (2) the likelihood that the acceptances of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client in writing. ....

Rule 1.15. Safekeeping Property. (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account designated as a “client’s trust account” in an institution whose accounts are federally insured and maintained in the state where the lawyer’s office is situated, or in a separate account elsewhere with the consent of the client or third person. Such separate accounts must comply with State Bar Administrative Rule 10 with regard to overdraft reporting. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property

29 shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. .... (c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred. (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. ....

Rule 1.16. Declining or Terminating Representation. . . . (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Rule 3.2. Expediting Litigation. A lawyer shall make reasonable efforts to expedite litigation consistent with the interest of the client.

Rule 3.3. Candor Toward the Tribunal. (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer . . . .

Rule 5.3. Responsibilities Regarding Nonlawyer Assistance. With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

30 (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Rule 7.1. Communications Concerning a Lawyer’s Services. A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Rule 7.5. Firm Names and Letterheads. (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1 . . . .

Rule 8.1. Bar Admission and Disciplinary Matters. A[] . . . lawyer in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from a[] . . . disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.

Rule 8.4. Misconduct. It is professional misconduct for a lawyer to: ... (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] (d) engage in conduct that is prejudicial to the administration of justice . . . .