Lawyer Disciplinary Board v. Daniel R. Grindo , 231 W. Va. 365 ( 2013 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
_____________ FILED
June 13, 2013
No. 12-0228 released at 3:00 p.m.
RORY L. PERRY II, CLERK
_____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
v.
DANIEL R. GRINDO,
Respondent
_________________________________________________________
Lawyer Disciplinary Proceeding
PUBLIC REPRIMAND AND OTHER SANCTIONS
_________________________________________________________
Submitted: May 14, 2013
Filed: June 13, 2013
Rachael L. Fletcher Cipoletti, Esq. Daniel R. Grindo, Esq.
Chief Lawyer Disciplinary Counsel Pro Se
Office of Disciplinary Counsel Law Office of Daniel R. Grindo, PLLC
Charleston, West Virginia Gassaway, West Virginia
Counsel for the Petitioner
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “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.” Syl. pt. 3, Committee on Legal Ethics v. Blair, 174
W. Va. 494, 327 S.E.2d 671 (1984).
2. “A de novo standard applies to a review of the adjudicatory record
made before the Committee on Legal Ethics of the West Virginia State Bar [currently, the
Hearing Panel Subcommittee of 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 Committee’s recommendations while
ultimately exercising its own independent judgment. On the other hand, substantial
deference is given to the Committee’s findings of fact, unless such findings are not
supported by reliable, probative, and substantial evidence on the whole record.” Syl. pt.
3, Legal Ethics of W. Va. v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
3. “In deciding on the appropriate disciplinary action for ethical
violations, this Court must consider not only what steps would appropriately punish the
respondent 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
i
confidence in the ethical standards of the legal profession.” Syl. pt. 3, Committee on
Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).
4. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary
Procedure enumerates factors to be considered in imposing sanctions and provides as
follows: ‘In imposing a sanction after a finding of lawyer misconduct, unless otherwise
provided in these rules, the Court [West Virginia Supreme Court of Appeals] or Board
[Lawyer Disciplinary Board] shall consider the following factors: (1) whether the lawyer
has violated a duty owed to a client, to the public, to the legal system, or to the
profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the
amount of the actual or potential injury caused by the lawyer’s misconduct; and (4) the
existence of any aggravating or mitigating factors.’” Syl. pt. 4, Office of Lawyer
Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
5. “Mitigating factors which may be considered in determining the
appropriate sanction to be imposed against a lawyer for violating the Rules of
Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a
dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith
effort to make restitution or to rectify consequences of misconduct; (5) full and free
disclosure to disciplinary board or cooperative attitude toward proceedings; (6)
inexperience in the practice of law; (7) character or reputation; (8) physical or mental
disability or impairment; (9) delay in disciplinary proceedings; (10) interim
ii
rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13)
remoteness of prior offenses.” Syl. pt. 3, Lawyer Disciplinary Bd. v. Scott, 213 W. Va.
209, 579 S.E.2d 550 (2003).
6. “Aggravating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed.” Syl. pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550(2003).
iii
Per Curiam:
This is a lawyer disciplinary proceeding arising from a complaint filed
against Respondent Daniel R. Grindo (“Mr. Grindo”) by Petitioner Lawyer Disciplinary
Board (“LDB” or “the Board”). A Hearing Panel Subcommittee (“HPS”) of the LDB
determined that Mr. Grindo violated three Rules of Professional Conduct as a result of
conduct stipulated to by the parties. Consequently, the HPS recommended that Mr.
Grindo be admonished along with other sanctions.1
1
In addition to admonishment, the HPS originally recommended the following sanctions:
B. That Respondent shall have his law office audited by an
expert to evaluate the efficiency of the management of the
same and implement any changes deemed necessary in the
expert’s report. To that end, the HPS has received a detailed
report (17 pages in length) with attached exhibits from
Affinity Consulting Group, which outlined the practice
management techniques and technologies which were
identified and recommended in order to assist Respondent in
complying [sic] with violations. The report was
comprehensive and included a number of practice
management suggestions which should assist Respondent in
conducting his law practice in a manner in which would avoid
further problems similar to those described in the statement of
charges.
C. That Respondent cause said law office expert to return 6
months after his initial assessment to conduct an evaluation as
to the implementation of the recommended changes. It is
anticipated that there will be a follow-up in January or
February, 2013, by the same consulting group.
D. That Respondent shall complete an additional 3 hours of
CLE during the 2012-2014 reporting period, specifically in
(continued . . .)
1
Mr. Grindo does not contest the findings that he committed violations of
the Rule of Professional Conduct and he requests this Court to accept the LDB’s
recommendation. However, in January 2013, this Court issued an order indicating that we
may not concur with the recommended disposition. Therefore, we ordered the parties to
submit briefs and we set this case for oral argument pursuant to Rule 19 of the Rules of
Appellate Procedure. Mr. Grindo did not present himself for the oral argument of this
case.2 In addition, counsel for the LDB notified this Court at that time that Mr. Grindo
had failed to timely file a brief as counsel in an unrelated case before this Court. In light
of these two facts, counsel for the LDB stated that she could no longer recommend
admonishment as an appropriate sanction. However, Mr. Grindo subsequently filed the
brief in the unrelated case within the extended time period granted by this Court.3
the area of ethics and office management over and above that
already required by the Mandatory Continuing Legal
Education Commission.
E. Pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary
Procedure, Respondent shall pay costs of this disciplinary
proceeding.
2
On May 14, 2013, Mr. Grindo filed a motion for additional hearing with this Court in
which he apologized for his failure to appear at oral argument and indicated that this
failure was due to a mistake in his calendar in which he believed that the oral argument
was scheduled for May 16, instead of May 14, 2013. Mr. Grindo requested that this Court
grant him another opportunity to appear and be heard on this matter. Counsel for the LDB
responded that the LDB had no objection if this Court believed that oral argument is
necessary. By order entered on May 20, 2013, this Court refused Mr. Grindo’s motion for
an additional hearing.
3
Specifically, the original deadline for Mr. Grindo to file a brief or summary response in
the unrelated case was April 22, 2013. Mr. Grindo failed to file a pleading by that date.
(continued . . .)
2
For the reasons provided below, this Court finds that a public reprimand
and other sanctions recommended by the Lawyer Disciplinary Board are appropriate
under the facts of this case, and these sanctions are hereby imposed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Grindo practices law in Braxton County, West Virginia. He was
admitted to the West Virginia State Bar in September 2002. The Office of Disciplinary
Counsel (“ODC”) has filed a two-count complaint against Mr. Grindo. The parties have
stipulated to the allegations in the complaint which are set forth below.
A. Count I
In August 2009, Mr. Grindo filed a Petition for Appeal on behalf of Jeffrey
Skidmore in this Court which challenged an adverse circuit court ruling. This Court
subsequently granted the petition for appeal and issued a briefing/scheduling order on
December 21, 2009, requiring Mr. Grindo to file an appellant’s brief with this Court
within thirty days of receipt.
As a result, by order dated April 30, 2013, this Court directed Mr. Grindo to file a brief or
summary response within 20 days of the order. Mr. Grindo subsequently filed the
pleading on May 15 which was within the 20-day time period.
3
When Mr. Grindo failed to submit a brief within the requisite time, the
Clerk of this Court contacted Mr. Grindo in March 2010 by telephone. Mr. Grindo
informed the Clerk that he would send his brief the next day. However, by June 8, 2010,
Mr. Grindo still had not filed an appellant’s brief. As a result, the Clerk’s office of this
Court mailed a letter to Mr. Grindo giving him an additional twenty days from receipt of
the letter to file the brief. Mr. Grindo did not file a brief or otherwise respond to the
Clerk’s letter.
In September 2010, Mr. Grindo’s dilatory conduct with regard to filing the
brief was presented to this Court for imposition of sanctions pursuant to Rule 10(e) of the
Rules of Appellate Procedure. By order of that same day, this Court directed Mr. Grindo
to file the brief of the appellant within 15 days of his receipt of the order. This Court also
referred the matter to the ODC. In response, the ODC initiated a complaint against Mr.
Grindo pursuant to Rule 2.4 of the Rules of Lawyer Disciplinary Procedure. On or about
September 17, 2010, the ODC sent Mr. Grindo a complaint requiring a verified response
within 20 days of receipt.
On October 4, 2010, Mr. Grindo filed Mr. Skidmore’s appellate brief with
this Court.4 On or about October 12, 2010, Mr. Grindo filed a verified response to the
4
On April 4, 2011, this Court issued an opinion in which we granted partial relief to Mr.
Grindo’s client, Mr. Skidmore.
4
ethics complaint against him in which he stated that he was handling Mr. Skidmore’s
case on a pro bono basis and admitted that he failed to adhere to this Court’s briefing
schedule.
As a result of Mr. Grindo’s conduct in failing to timely pursue the appeal
on behalf of Mr. Skidmore, the Lawyer Disciplinary Board found that Mr. Grindo
violated Rule 1.3 of the Rules of Professional Conduct which provides that “[a] lawyer
shall act with reasonable diligence and promptness in representing a client.” In addition,
because Mr. Grindo failed to comply with this Court’s briefing schedule and failed to
expedite the litigation in the interests of Mr. Skidmore and the justice system, the Board
found that Mr. Grindo violated Rule 3.2 and Rule 3.4(c) of the Rules of Professional
Conduct. According to Rule 3.2, “[a] lawyer shall make reasonable efforts to expedite
litigation consistent with the interest of the client.” Rule 3.4 provides that “[a] lawyer
shall not . . . (c) knowingly disobey an obligation under the rules of a tribunal except for
an open refusal based on an assertion that no valid obligation exists.
Count II
On or about June 16, 2011, Mr. Grindo filed a Notice of Appeal with this
Court on behalf of Joseph Dobbins. This Court then issued a briefing/scheduling order on
June 21, 2011, requiring Mr. Grindo to file his brief to perfect the appeal by July 18,
2011. Mr. Grindo filed the required appendix on or about July 29, 2011, but failed to file
the Petitioner’s Brief. As a result, the Clerk of this Court contacted Mr. Grindo by
5
telephone on several occasions requesting the filing of the appellate brief. Mr. Grindo
advised the Clerk that he would promptly file the brief, but he failed to do so.
On or about August 26, 2011, the opposing party in Mr. Dobbins’ case filed
a Motion to Dismiss with this Court for Mr. Grindo’s failure to perfect the appeal. This
Court granted the motion by order entered September 8, 2011. This Court thereafter
referred the matter to the Office of Disciplinary Counsel.
Consequently, the Office of Disciplinary Counsel initiated a complaint
which it sent to Mr. Grindo requesting a verified response within 20 days of receipt. On
or about October 13, 2011, Mr. Grindo filed a verified response in which he
acknowledged that he failed to either file a motion to withdraw or otherwise comply with
the order of this Court directing him to perfect the appeal on Mr. Dobbins’ behalf. The
Lawyer Disciplinary Board found that because Mr. Grindo failed to comply with this
Court’s briefing schedule and failed to expedite the litigation in the interest of Mr.
Dobbins and the justice system, Mr. Grindo violated Rule 3.2 and Rule 3.4(c) of the
Rules of Professional Conduct.
II. STANDARD OF REVIEW
This Court’s standard of review in lawyer disciplinary cases is well settled.
We previously have made clear that “[t]his Court is the final arbiter of legal ethics
problems and must make the ultimate decisions about public reprimands, suspensions or
6
annulments of attorneys’ licenses to practice law.” Syl. pt. 3, Committee on Legal Ethics
v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984). In addition, we have set forth the
standard for our consideration of recommendations of the LDB as follows:
A de novo standard applies to a review of the
adjudicatory record made before the Committee on Legal
Ethics of the West Virginia State Bar [currently, the Hearing
Panel Subcommittee of 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 Committee’s recommendations
while ultimately exercising its own independent judgment.
On the other hand, substantial deference is given to the
Committee’s findings of fact, unless such findings are not
supported by reliable, probative, and substantial evidence on
the whole record.
Syl. pt. 3, Legal Ethics of W.Va. v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
Mr. Grindo does not dispute the allegations as charged. Therefore, the sole issue for this
Court is deciding the appropriate sanctions. This issue is governed by a de novo standard
of review. Having set forth the appropriate standard of review, we proceed to consider the
question before us.
III. DISCUSSION
The sole issue in this case is the appropriate sanctions for Mr. Grindo’s
violations of the Rules of Professional Conduct. Rule 3.15 of the Rules of Lawyer
Disciplinary Procedure sets forth permissible sanctions for lawyer misconduct as
follows:
A Hearing Panel Subcommittee may recommend or
the Supreme Court of Appeals may impose any one or more
7
of the following sanctions for a violation of the Rules of
Professional Conduct or pursuant to Rule 3.14: (1) probation;
(2) restitution; (3) limitation on the nature or extent of future
practice; (4) supervised practice; (5) community service; (6)
admonishment; (7) reprimand; (8) suspension; or (9)
annulment. When a sanction is imposed the Hearing Panel
Subcommittee may recommend and the Court may order the
lawyer to reimburse the Lawyer Disciplinary Board for the
costs of the proceeding. Willful failure to reimburse the
Board may be punished as contempt of the Court.
To assist this Court in achieving both consistency and fairness in lawyer disciplinary
matters, we have recognized a number of factors to be considered in fashioning the
proper discipline for a lawyer who violates an ethics rule. Specifically, this Court has
held:
In deciding on the appropriate disciplinary action for
ethical violations, this Court must consider not only what
steps would appropriately punish the respondent 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.
Syl. pt. 3, Committee on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).
Further, this Court has indicated:
Rule 3.16 of the West Virginia Rules of Lawyer
Disciplinary Procedure enumerates factors to be considered in
imposing sanctions and provides as follows: “In imposing a
sanction after a finding of lawyer misconduct, unless
otherwise provided in these rules, the Court [West Virginia
Supreme Court of Appeals] or Board [Lawyer Disciplinary
Board] shall consider the following factors: (1) whether the
lawyer has violated a duty owed to a client, to the public, to
the legal system, or to the profession; (2) whether the lawyer
acted intentionally, knowingly, or negligently; (3) the amount
of the actual or potential injury caused by the lawyer’s
8
misconduct; and (4) the existence of any aggravating or
mitigating factors.”
Syl. pt. 4, Office of Lawyer Disc. Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722(1998). With regard to what constitutes mitigating factors, this Court previously has held:
Mitigating factors which may be considered in
determining the appropriate sanction to be imposed against a
lawyer for violating the Rules of Professional Conduct
include: (1) absence of a prior disciplinary record; (2) absence
of a dishonest or selfish motive; (3) personal or emotional
problems; (4) timely good faith effort to make restitution or to
rectify consequences of misconduct; (5) full and free
disclosure to disciplinary board or cooperative attitude toward
proceedings; (6) inexperience in the practice of law; (7)
character or reputation; (8) physical or mental disability or
impairment; (9) delay in disciplinary proceedings; (10)
interim rehabilitation; (11) imposition of other penalties or
sanctions; (12) remorse; and (13) remoteness of prior
offenses.
Syl. pt. 3, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003). We
have defined aggravating factors as follows: “Aggravating factors in a lawyer
disciplinary proceeding are any considerations or factors that may justify an increase in
the degree of discipline to be imposed.” Syl. pt. 4, id.The HPS found that Mr. Grindo knowingly and intentionally violated duties
owed to his clients and the legal system. It also determined that Mr. Grindo’s conduct
caused actual injury to his clients and potential injury to the reputation and integrity of
the legal profession. Further, the HPS found that the following mitigating factors were
present:
9
1. full and free disclosure to the Office of Disciplinary
Counsel; 2. a cooperative attitude toward proceedings; 3.
remedial measures in his law office, including, but not limited
to retaining the services of Affinity Consulting [S]ervices to
conduct an audit of his law office and his law office
management to be scheduled in the immediate future.5 [Mr.
Grindo] also indicated that he is scheduled for a continuing
legal education seminar on law office management; 4. [Mr.
Grindo] has acknowledged that he became overextended with
his growing practice and needed both assistance and to
withdraw from some of the extra-curricular activities. To that
end, [Mr. Grindo] has hired a new associate as of March 18,
2012 and has prioritized his other obligations; and 5.
personal, family problems during the relevant time period,
including that [Mr. Grindo’s] son was being seen on the a
[sic] possible spinal tumor that stemmed from some leg
weakness he was experiencing. This condition resulted in
much testing and diagnosis. After it was determined that he
did not have a spinal tumor, he was treated and diagnosed
with ketotic hypoglycemia. This diagnosis involved extensive
testing at Charleston Area Medical Center, Thomas
Memorial, and ultimately the Pittsburgh Children’s Hospital;
and 6. remorse, as it is [Mr. Grindo’s] sincere stated intention
to provide quality legal representation to the State of West
Virginia and [Mr. Grindo] does not believe his misconduct in
this matter is indicative of the quality of work that he is
capable of providing in the future.
(Footnote added). Finally, the HPS found the presence of the following aggravating
factors:
5
The Board indicates in its brief that the HPS withheld its decision until an expert on law
office management evaluated Mr. Grindo’s office procedures. The HPS received and
reviewed a detailed report with attached exhibits from Affinity Consulting Group which
outlined the practice management techniques and technologies which were identified and
recommended in order to assist Mr. Grindo. The HPS concluded that the report was
comprehensive and included a number of practice management suggestions which should
assist Mr. Grindo in conducting his law practice in a manner which would avoid further
problems like those in the instant case.
10
1. experience in the practice of law; 2. prior disciplinary
action by the Investigative Panel of the Lawyer Disciplinary
Board for neglect; 3 pattern and practice of not diligently
pursuing clients’ interests; 4. pattern and practice of failing to
expedite litigation consistent with the interests of his clients
and the justice system; and 5. pattern and practice of failing to
respond to briefing schedules and requests from the Supreme
Court of Appeals of West Virginia.
(Footnote omitted). Mr. Grindo does not challenge and this Court finds no reason to
disturb these findings. Therefore, we will now proceed to apply our law set forth above to
these facts to determine the appropriate sanction in this case.
This Court finds that in light of Mr. Grindo’s past history of being
admonished by the Investigative Panel of the LDB, there is case law that supports a 30­
day suspension of Mr. Grindo’s law license. See, e.g., Lawyer Disciplinary Board v.
Sullivan, __ W. Va. __, 740 S.E.2d 55 (2013). Also, the fact that Mr. Grindo failed to
respond to the deadlines and entreaties of this Court regarding the filing of briefs
certainly weighs heavily against Mr. Grindo in determining his appropriate discipline.
For these reasons, we believe that admonishment is not a sufficient sanction under these
facts.
However, this Court also must consider the large number of mitigating
factors in this case, particularly the remedial measures taken by Mr. Grindo such as hiring
another associate to assist in managing the responsibilities of his law practice and his
employment of the services of a law office management expert. In addition, this Court
11
takes special note of the fact that a serious medical issue involving a member of Mr.
Grindo’s family dominated a significant portion of Mr. Grindo’s time and attention
during the relevant time period. In light of these mitigating factors, this Court believes
that suspending Mr. Grindo’s license would be unduly severe.
After careful consideration of the facts of this case, including the mitigating
and aggravating factors, this Court finds that the appropriate sanction is a public
reprimand in addition to the other sanctions originally recommended by the HPS. A
public reprimand is a more severe sanction than admonishment but a lesser sanction than
suspension of Mr. Grindo’s law license. We are persuaded that a public reprimand and
the other sanctions appropriately punish Mr. Grindo. We also are confident that these
sanctions are adequate to serve as an effective deterrent to other members of the Bar.
Finally, we believe that these sanctions are sufficient to restore public confidence in the
ethical standards of the legal profession.
IV. CONCLUSION
For the foregoing reasons, we impose the following discipline on Mr.
Grindo as respondent to this proceeding:
(1) That Mr. Grindo be reprimanded;
(2) That Mr. Grindo continue to implement the
practice management suggestions contained in the detailed
report prepared by Affinity Consulting Group for the purpose
of avoiding further problems of the kind that gave rise to the
instant disciplinary proceedings;
12
(3) That Mr. Grindo, if he has not already done so,
cause the law office expert to return to conduct an evaluation
of the implementation of the recommended changes.
(4) That Mr. Grindo shall complete an additional 3
hours of continuing legal education during the 2012-2014
reporting period, specifically in the area of ethics and office
management over and above that already required by the
Mandatory Legal Education Commission.
(5) Pursuant to Rule 3.15 of the Rules of Lawyer
Disciplinary Procedure, Mr. Grindo shall pay the costs of this
disciplinary proceeding.
Public Reprimand and other sanctions imposed.
13