STATE EX REL. ODC v. Albright

690 S.E.2d 113
CourtWest Virginia Supreme Court
DecidedNovember 25, 2009
Docket34973
StatusPublished

This text of 690 S.E.2d 113 (STATE EX REL. ODC v. Albright) 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
STATE EX REL. ODC v. Albright, 690 S.E.2d 113 (W. Va. 2009).

Opinion

690 S.E.2d 113 (2009)

STATE of West Virginia ex rel, OFFICE OF DISCIPLINARY COUNSEL, Petitioner
v.
Joseph P. ALBRIGHT, Jr., a Member of the West Virginia State Bar, Respondent.

No. 34973.

Supreme Court of Appeals of West Virginia.

Submitted September 23, 2009.
Decided November 25, 2009.

*114 George Chandler, Law Office of George Y. Chandler, II, Parkersburg, WV.

Rachael L. Fletcher Cipoletti, Office of Disciplinary Counsel, Charleston, WV.

PER CURIAM:

This matter was presented pursuant to a rule to show cause issued by this Court on June 3, 2009, against Respondent Joseph P. Albright, Jr., a member of the West Virginia State Bar, upon a petition filed by the Office of Disciplinary Counsel ("ODC"). The rule directed Respondent to show cause why he should not be held in contempt of a previous order entered by this Court in a lawyer *115 disciplinary matter. In that order, entered January 10, 2007, Respondent received a public reprimand for his violations of Rules 1.3 and 1.4(a) of the Rules of Professional Conduct, as set forth in Count I of the Report of the Hearing Panel Subcommittee ("Hearing Panel Report") of November 21, 2006, as well as for his violation of Rule 8.1(b), as set forth in Counts II, IV and VI. Respondent was also ordered to pay the costs of the underlying disciplinary proceeding; to complete the matter involving the estate of Clyde Curtis Carter, which was the subject of Counts I and II of the disciplinary proceeding; and to provide a status report to the ODC every three months until such time as Respondent concludes the estate of Mr. Carter.

For the reasons discussed below, we find Respondent to be in contempt of this Court's January 10, 2007, order, and, accordingly, order that his license to practice law in this State be suspended. We further order that the suspension of Respondent's law license shall be stayed for 120 days so that the estate matter may be finally resolved. On or before the end of 120 days, Respondent is ordered to demonstrate to this Court that the estate matter has been fully and finally resolved. If the estate matter has been fully and finally resolved, the suspension of Respondent's law license will not go into effect. However, if the estate matter has not been fully and finally resolved, the stay will automatically be lifted and Respondent's law license shall be suspended. Because we recognize that final resolution of the estate matter will require a ruling from the County Commission of Wood County—over whose time frame Respondent has no control—we further order that if, for any reason, the matter is not concluded within 120 days, Respondent shall file with this Court a report setting forth in detail the reasons therefor. At that time, this Court will take such action with regard to Respondent's law license as is deemed appropriate under the circumstances.

I. Factual and Procedural Background

Underlying disciplinary matter

The facts of the underlying disciplinary proceeding relevant to the subject rule to show cause involved Respondent's handling of the estate of Clyde Curtis Carter, who died in 1985. According to the Hearing Panel Report, in or about early 2003, Respondent became counsel for Rita Ramsey, one of the beneficiaries of the estate. In or about April 2003, Respondent prepared a petition to be appointed Administrator, de bonis non, cum testamento annexo (d.b.n.c.t.a.), in order to complete the estate.[1] The Hearing Panel Report indicated that Respondent attempted to file with the County Commission of Wood County the petition to be appointed administrator d.b.n.c.t.a., but the county commission refused to accept the petition without a resignation from the former administrator.

Meanwhile, for over a year, both Mrs. Ramsey and her husband, who were living in Florida, attempted many times to contact Respondent regarding the status of the estate. Although they left numerous telephone messages for him, Respondent failed to return their telephone calls or to otherwise respond to their inquiries. Finally, but not until after the Statement of Charges was filed in this case, Respondent completed the necessary steps to become administrator of the estate.

The Hearing Panel found, as set forth in Count I of the Statement of Charges, that "[b]y failing to respond to the numerous inquiries of his client and her husband, Respondent violated Rule 1.4(a) of the Rules of Professional Conduct"[2] and "[b]ecause he did not take the action necessary to complete his administration as administrator *116 d.b.n.c.t.a. until a Statement of Charges was filed, the Respondent violated Rule 1.3[.]"[3]

In an order entered January 10, 2007, this Court ordered that Respondent be publicly reprimanded and, in relevant part, that Respondent shall "complete the matter for Mrs. Ramsey and shall provide a status report to the [ODC] every three months following this Court's ruling on this matter until such time as he concludes Mrs. Ramsey's matter."

Rule to Show Cause

On April 16, 2009, the ODC filed with this Court a Petition for Rule to Show Cause, requesting that Respondent be directed to show why he should not be held in contempt of the January 10, 2007, order. In support of its petition, the ODC asserted, inter alia, the following: On or about April 10, 2007, Respondent submitted to the ODC a status report of the estate matter (as required by this Court's January 10, 2007, order) indicating that he had drafted an action for declaratory judgment to be filed in the Circuit Court of Wood County, West Virginia, which would (1) seek to declare to whom the funds held by the Fiduciary Commissioner should be distributed and (2) seek to have a report filed by the Fiduciary Commissioner. Respondent forwarded the foregoing documents to Mrs. Ramsey in Florida for her review and verification; however, they were mailed to the wrong address. In a July 20, 2007, letter to the ODC, Respondent explained the mailing error.[4] Respondent also enclosed with the July 20, 2007, letter to the ODC a copy of a letter he had written to Mrs. Ramsey (mailed to her correct address) in which he explained to her the previous mailing error and to which he attached a Petition to Compel Distribution of Funds by Fiduciary Commissioner and Petition for Declaratory Judgment.

The foregoing declaratory judgment petition was verified by Mrs. Ramsey and returned to Respondent on or about July 30, 2007. Enclosed with the returned document was correspondence from Mrs. Ramsey to Respondent which included several comments to which she clearly expected a reply from Respondent. When Respondent failed to reply, Mrs. Ramsey notified the ODC.

Thereafter, according to the Petition for Rule to Show Cause, Respondent's counsel, Sherri Goodman, Esq., corresponded periodically with the ODC with brief "updates" on the estate matter. On one occasion, Respondent himself forwarded to the ODC, by facsimile, copies of notices of hearing concerning the Petition to Compel Distribution of Funds by Fiduciary Commissioner and Petition for Order Distributing Proceeds of Checking Account. The notices indicated a hearing would be conducted before the Wood County Commission on November 8, 2007.

By email correspondence of January 25, 2008, from Respondent's counsel to the ODC, Respondent's counsel indicated that "Respondent clarified that he has done everything he needs to do; he is awaiting a written decision by the fiduciary commissioner[.]"

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State ex rel. Office of Disciplinary Counsel v. Albright
690 S.E.2d 113 (West Virginia Supreme Court, 2009)

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690 S.E.2d 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-odc-v-albright-wva-2009.