Lawyer Disciplinary Board v. Timothy M. Sirk , 810 S.E.2d 276 ( 2018 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2018 Term
FILED
February 15, 2018
No. 16-1179 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
v.
TIMOTHY M. SIRK,
A MEMBER OF THE
WEST VIRGINIA STATE BAR,
Respondent
Lawyer Disciplinary Proceeding
SANCTIONS IMPOSED
Submitted: January 24, 2018
Filed: February 15, 2018
Andrea J. Hinerman, Esq. Timothy M. Sirk, Esq.
Senior Lawyer Disciplinary Counsel Keyser, West Virginia
Office of Lawyer Disciplinary Counsel Respondent
Charleston, West Virginia
Attorney for Petitioner
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A de novo standard applies to a review of the adjudicatory record
made before the [Lawyer Disciplinary Board] as to questions of law, questions of
application of the law to the facts, and questions of appropriate sanctions; this Court
gives respectful consideration to the [Board’s] recommendations while ultimately
exercising its own independent judgment. On the other hand, substantial deference is
given to the [Board’s] findings of fact, unless such findings are not supported by reliable,
probative, and substantial evidence on the whole record.” Syl. Pt. 3, Comm. on Legal
Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).
2. “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, Comm. on Legal Ethics of the W.Va. State
Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).
3. “A person named in a disciplinary proceeding before this Court,
who, after the Hearing Panel Subcommittee has filed its Report with the recommended
sanctions, commits a violation of the Rules of Professional Conduct related to the facts in
the underlying complaint may be subject to an increased degree of discipline. Such
subsequent misconduct may be relied upon by this Court as an aggravating factor that
justifies enhancement of the recommended sanctions of the Hearing Panel
i
Subcommittee.” Syl. Pt. 7, Lawyer Disciplinary Bd. v. Grafton, 227 W.Va. 579, 712
S.E.2d 488 (2011).
4. “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, Comm. on Legal
Ethics of the W.Va. State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).
5. “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 Disciplinary
Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).
ii
6. “Mitigating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify a reduction in the degree of discipline to be
imposed.” Syl. Pt. 2, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550
(2003).
7. “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).
8. “Aggravating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify 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
WORKMAN, Justice:
This lawyer disciplinary proceeding against Respondent Timothy M. Sirk
was brought to this Court by the Office of Disciplinary Counsel (“ODC”) on behalf of the
Lawyer Disciplinary Board (“Board”). The Board’s Hearing Panel Subcommittee
(“HPS”) determined that Mr. Sirk committed multiple violations of the West Virginia
Rules of Professional Conduct (“Rules”) and recommended that this Court suspend his
law license for a period of one year, in addition to other sanctions. Based upon our review
of the record submitted, ODC’s brief and argument,1 and the applicable legal precedent,
we find Mr. Sirk committed numerous violations of the Rules. We disagree, however,
with the HPS’s recommendation that a one-year suspension is sufficient discipline. We
find, instead, that Mr. Sirk’s egregious misconduct warrants a three-year suspension from
the practice of law and adopt the HPS’s remaining recommended sanctions in full.
I. FACTUAL AND PROCEDURAL HISTORY
Mr. Sirk is a lawyer practicing in Keyser, West Virginia. He was admitted
to the West Virginia State Bar in 1983. Prior to these proceedings, he had no disciplinary
history.
1
Mr. Sirk failed to file a responsive brief in this matter, despite being ordered to
do so by this Court in its briefing schedule. On or about December 27, 2017, Mr. Sirk
submitted an “Answer to the Lawyer Disciplinary Board.” However, this document did
not comply with Rule 10 of the West Virginia Rules of Appellate Procedure. Therefore,
we decline to consider it.
1
This matter involves two formal charges filed against Mr. Sirk that
proceeded to hearing before the HPS in May 2017; several witnesses testified, including
the two complainants, as well as Mr. Sirk who appeared pro se. In addition, ODC
submitted several exhibits and the parties submitted Stipulated Findings of Fact and
Conclusions of Law.2 Based upon this evidence, the HPS filed its report with this Court
in September 2017. The following is a brief summary of the complaints.
A. Complaint of Client #1
Client #1 3 and Mr. Sirk have been friends for more than fifty years; he
previously retained Mr. Sirk to represent him in a variety of legal matters. When Client
#1 became the executor of his mother’s estate, he retained Mr. Sirk to represent him.
Following the sale of Client #1’s mother’s home, Mr. Sirk opened a trust account at
M&T Bank in Keyser, West Virginia, and deposited $30,068 from the sale of the home in
August 2013. Client #1 and Mr. Sirk had a verbal agreement at the time the account was
opened that Mr. Sirk could borrow from this account as long as he repaid the money.
However, they never discussed the specific terms of this agreement, Mr. Sirk did not
advise Client #1 to seek legal counsel, nor did Client #1 provide written consent for Mr.
Sirk to withdraw funds.
2
At the hearing, Mr. Sirk acknowledged signing the Stipulated Findings of Fact
and Conclusions of Law; nevertheless, he noted exceptions to several paragraphs.
3
Client #1 is Mr. George F. Wilson. He filed a complaint against Mr. Sirk in
August 2014.
2
Client #1 visited the bank in January 2014 and inquired about the balance
of this trust account. He was shocked to learn that Mr. Sirk had withdrawn approximately
$16,800. After leaving the bank, Client #1 went to Mr. Sirk’s law office to confront him.
Mr. Sirk stated that he would repay the money, but it would take some time because he
was experiencing financial problems and would need to take a second mortgage out on
his home. Mr Sirk explained that he was dealing with personal problems, including
children battling drug addictions. In July 2014, Mr. Sirk returned $16,000 to Client #1
and approximately a month later, he paid the remaining $800.
At the hearing held before the HPS, Mr. Sirk expressed remorse and
apologized to Client #1. Mr. Sirk explained that he was suffering severe financial
problems when he was supporting his grown son who is a heroin addict and was trying to
secure drug rehabilitation. During this time, he learned that his other son was also a drug
addict. Mr. Sirk testified that he was also caring for his elderly parents who were both
very ill and dealing with his own personal health problems. Mr. Sirk stated that he turned
to gambling and contemplated divorce.4
4
Mr. Sirk testified:
I just had too much and my life just kind of got out of
control, and then just as a way of relaxing, I would sit at the
hotdog stand and play the poker machines for an hour or two
a day, but the amount of money I spent there was, . . . nothing
at all compared to what I was spending on paying my
children’s bills and enabling them, and then trying to get them
(continued . . .)
3
In the matter involving Client #1, the HPS found that Mr. Sirk violated
several of the Rules.5 Specifically, the HPS concluded that Mr. Sirk violated Rule 1.8(a)6
because Mr. Sirk withdrew money from a trust account containing money belonging to
into rehab. And I just – since that point in time, I’ve gotten
things together somewhat. My – both of my children are
doing much better. My wife and I have worked out all of our
issues and are happily back living together again, but I still
don’t have a lot of time to work because my parents are – I
live next door to them and I’m their primary caretaker.
And so I have limited my practice pretty much for the
last year or so to just court appointed cases and occasional
deeds, DUI’s, you know no real civil litigation of any kind.
And I’m making enough money that I’m paying my bills and
getting by again. Things are better. I don’t know that I’ll ever
be able to go back to a full-time practice of law. I’d certainly
like to, but I just don’t know that I am ever going to be able to
do that.
5
By order entered September 29, 2014, this Court approved comprehensive
amendments to the West Virginia Rules of Professional Conduct. While the amendments
became effective January 1, 2015, this Opinion applies the version of the Rules that was
in effect at the time of Mr. Sirk’s misconduct. However, we note that the substance of the
new Rules would not have resulted in a different disposition of this case.
6
Rule 1.8(a) provides,
(a) A lawyer shall not enter into a business transaction
with a client or knowingly acquire an ownership, possessory,
security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer
acquires the interest are fair and reasonable to the client and
are fully disclosed and transmitted in writing to the client in a
manner which can be reasonably understood by the client;
(2) the client is given a reasonable opportunity to seek
the advice of independent counsel in the transaction; and
(3) the client consents in writing thereto.
4
his client but did not disclose the transaction and terms in writing, did not advise the
client to seek independent counsel, and did not obtain written consent to the various
transactions. The HPS further found that Mr. Sirk violated Rule 8.4(c) and Rule 8.4(d)7
because he wrongfully misappropriated and converted funds belonging to his client
and/or to a third person to his own personal use.
B. Complaint of Client #2
In September 2013, Client #2 8 retained Mr. Sirk to file a bankruptcy
petition and paid him a $2,500 retainer fee. For nearly a year, Client #2 contacted his
office regularly to inquire about the status of her case and was told either that Mr. Sirk
was still working on the matter or that there were cases ahead of hers and he would get to
it soon. Client #2 met with Mr. Sirk in September 2014, and he assured her that they were
ready to “go to court” and would receive a court date in the mail within the next month.
However, in October 2014, Client #2 received a form letter from Mr. Sirk
advising that he was “winding down” his practice of law and would be closing the office
soon. In this letter, Mr. Sirk assured his clients that he would continue to work on
pending cases for as long as possible until they were completed but that he was not
7
Rules 8.4(c) and 8.4(d) provide, “[i]t is professional misconduct for a lawyer to: .
. . (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation. (d)
Engage in conduct that is prejudicial to the administration of justice.”
8
Client #2 is Ms. Carrie E. Wolford-Watson. She filed a complaint against Mr.
Sirk in December 2014.
5
accepting any new clients. The closure of Mr. Sirk’s law office was sudden and the result
of several reasons, primarily financial and health related; after the office closed, he no
longer had access to the bankruptcy software or electronic filing, but he did not share this
information with Client #2.
In December 2014, Client #2 texted Mr. Sirk to inform him that if she did
not hear back from him soon regarding her bankruptcy matter that she would file a civil
suit against him. She received a voicemail the following day from Mr. Sirk who
responded that he was “broke due to an illness, . . . did not file bankruptcy for [her] and
did not have [her] money to give back to [her] at this time.” Mr. Sirk acknowledged that
he owed her the $2,500 retainer fee, and suggested that she sue him and file a judgment
lien against his house. Client #2 did file suit against Mr. Sirk in magistrate court and he
simply confessed judgment. Mr. Sirk eventually returned half of Client #2’s retainer fee,
$1,250, in December 2014, but he failed to return her file timely and then failed to
answer her telephone calls. Client #2 feared that her creditors could come after her home
because of the delay in the bankruptcy action. She borrowed money from her parents to
pay a retainer fee for another lawyer to file the bankruptcy petition.
At the hearing held before the HPS, Client #2 testified that she felt “very
degraded by the system as well as taken advantage of by a man who knows he can get
away with whatever he wishes to do.” Mr. Sirk testified that he performed work on Client
6
#2’s bankruptcy petition; but he failed to itemize his work on the case to justify
withholding the remainder of the retainer fee.
In the matter involving Client #2, the HPS concluded that Mr. Sirk violated:
Rule 1.39 for failing to act with reasonable diligence by failing to file the bankruptcy
petition even though he received a retainer fee to do so; Rule 1.4(a) and 1.4(b)10 for
failing to keep Client #2 reasonably informed about the status of the case and failing to
promptly comply with her reasonable requests for information; Rule 1.1511 for failing to
produce an accounting and/or itemized statement detailing her account when he claimed
to have earned $1,250 of the $2,500 retainer fee; Rule 1.16(d)12 for failing to provide a
9
Rule 1.3 provides that “[a] lawyer shall act with reasonable diligence and
promptness in representing a client.”
10
Rules 1.4(a) and 1.4(b) provide, “(a) A lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with reasonable requests for
information. (b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.”
11
The relevant portion of Rule 1.15 provides,
(c) When in the course of representation a lawyer is in
possession of property in which both the lawyer and another
person claim interests, the property shall be kept separate by
the lawyer until there is an accounting and severance of their
interests. If a dispute arises concerning their respective
interests, the portion that is in dispute shall be kept separate
by the lawyer until [the] dispute is resolved.
12
Rule 1.16(d) provides, in relevant part: “(d) Upon termination of representation,
a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests,
such as . . . surrendering papers and property to which the client is entitled[.]”
7
full refund of the retainer fee after he failed to file the bankruptcy petition; and Rules
8.4(c) and 8.4(d)13 for wrongfully misappropriating and converting client funds to his
own personal use.
C. Factors Considered by the HPS
In addition to the findings made by the HPS in each complaint, the HPS
further concluded that Mr. Sirk violated duties to his clients, to the public, to the legal
system, and to the legal profession. The HPS found he acted both knowingly and
intentionally and the amount of real and potential injury to his clients was great. The HPS
found several aggravating factors were present: dishonest or selfish motive; a pattern of
misconduct; multiple offenses; and substantial experience in the practice of law. It also
determined the following mitigating factors were present: an absence of a prior
disciplinary record; personal or emotional problems; and remorse.
D. The HPS’s Recommended Sanctions
To this Court, the HPS recommended that Mr. Sirk’s law license be
suspended for one year. It further recommended that Mr. Sirk: be required to refund
Client #2 the remaining $1,250 of the $2,500 retainer fee; complete an additional six
hours of continuing legal education, including an additional three hours in the areas of
ethics and office management above that which is already required; upon reinstatement,
13
See note 7, supra.
8
be placed on one year of supervised practice by an active attorney should he be
reinstated; comply with the mandates of Rule 3.28 of the Rules of Lawyer Disciplinary
Procedure; and pay the costs of these proceedings pursuant to Rule 3.15 of the Rules of
Lawyer Disciplinary Procedure.
E. ODC’s Motion to Enhance Sanctions
This Court scheduled this matter for argument and ordered the parties to
file briefs. ODC filed its brief on November 22, 2017, and agreed with the HPS’s
recommended sanctions. Though ordered to do so by this Court, Mr. Sirk failed to file a
brief.14 On January 10, 2018, ODC moved this Court to enhance the previously requested
sanctions because, in its opinion, Mr. Sirk committed an additional aggravating factor
when he failed to file a brief in this case; ODC moved to enhance his suspension to
practice law for a period of three years, along with other penalties.
II. STANDARD OF REVIEW
In lawyer disciplinary proceedings, this Court reviews de novo the
recommended decision of the HPS:
A de novo standard applies to a review of the
adjudicatory record made before the [Lawyer Disciplinary
Board] as to questions of law, questions of application of the
law to the facts, and questions of appropriate sanctions; this
Court gives respectful consideration to the [Board’s]
14
See note 1, supra.
9
recommendations while ultimately exercising its own
independent judgment. On the other hand, substantial
deference is given to the [Board’s] findings of fact, unless
such findings are not supported by reliable, probative, and
substantial evidence on the whole record.
Syl. Pt. 3, Comm. on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).
While affording deference to the HPS, this Court is responsible for determining the
ultimate resolution of lawyer disciplinary proceedings. As such, “[t]his 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,
Comm. on Legal Ethics of the W.Va. State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671
(1984). With these standards in mind, we proceed to the merits of this matter.
III. DISCUSSION
In lawyer disciplinary matters, ODC has the burden “to prove the
allegations of the formal charge by clear and convincing evidence.” Syl. pt. 1, in part,
Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995). Based on
the record before us, this Court finds no reason to disturb the underlying determination by
the HPS that Mr. Sirk violated various provisions of the Rules.
ODC initially urged this Court to accept the HPS’s recommendations,
including the one-year suspension. Ultimately, however, ODC maintained that Mr. Sirk
engaged in additional misconduct after the HPS completed its report and argued that his
law license should be suspended for three years in addition to other sanctions. ODC
10
asserted that Mr. Sirk violated duties to his clients, to the public, to the legal system, and
to fellow members of the legal profession.
Further, in ODC’s motion to consider an additional aggravating factor and
to enhance the sanctions against Mr. Sirk, the evidence shows that Mr. Sirk ignored a
directive of this Court when he failed to file a responsive brief. Not only does this
behavior evince a disturbing pattern of misconduct, but it also shows a failure to obey an
obligation imposed by a tribunal. As set forth in syllabus point seven of Lawyer
Disciplinary Board v. Grafton, 227 W.Va. 579, 712 S.E.2d 488 (2011),
[a] person named in a disciplinary proceeding before
this Court, who, after the Hearing Panel Subcommittee has
filed its Report with the recommended sanctions, commits a
violation of the Rules of Professional Conduct related to the
facts in the underlying complaint may be subject to an
increased degree of discipline. Such subsequent misconduct
may be relied upon by this Court as an aggravating factor that
justifies enhancement of the recommended sanctions of the
Hearing Panel Subcommittee.
We now turn our focus to the appropriate sanctions for Mr. Sirk’s
misconduct. This Court has emphasized that “[a]ttorney disciplinary proceedings are not
designed solely to punish the attorney, but rather to protect the public, to reassure it as to
the reliability and integrity of attorneys and to safeguard its interest in the administration
of justice.” Lawyer Disciplinary Bd. v. Taylor, 192 W.Va. 139, 144, 451 S.E.2d 440, 445
(1994). Furthermore, we are mindful of this Court’s holding in syllabus point three of
11
Committee on Legal Ethics of the West Virginia State Bar v. Walker, 178 W.Va. 150, 358
S.E.2d 234 (1987):
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.
With these principles in mind, we proceed to the relevant factors set forth in
Rule 3.16 of the Rules of Lawyer Disciplinary Procedure. In syllabus point four of Office
of Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998), this Court
held:
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.”
Beginning with the first Jordan factor, Mr. Sirk violated several Rules that
encompass ethical duties that he owed to the public and the legal system. However, the
most important duty he violated was that owed to his clients. The clients sought his
12
counsel, trusted his judgment, and expected that he would handle their legal affairs and
proceeds accordingly. As discussed more fully below, Mr. Sirk’s failure to act with
integrity when dealing with client funds was especially egregious.
The second Jordan factor—the lawyer’s mental state—is easy to discern.
Mr. Sirk acted both knowingly and intentionally. In the matter involving Client #1, he
made repeated withdrawals from the client’s bank account for his own personal use.
Notably, he continued to make withdrawals from this account even after Client #1
confronted him in January of 2014 and demanded repayment. In the matter involving
Client #2, Mr. Sirk accepted the retainer fee in September 2013, then made little to no
progress in the case for over a year, failed to keep her reasonably informed about the
matter, and misinformed her about the true status of the case.
Applying the third Jordan inquiry—the injury or potential injury caused—
it is obvious that Mr. Sirk’s misconduct caused actual monetary damage to both clients.
While Mr. Sirk eventually repaid Client #1, he still suffered injury at the time when
deprived of his funds for several months. Moreover, the potential for such misconduct to
cause serious injury was enormous considering Mr. Sirk’s precarious financial situation;
the loans were not subject to a written loan agreement or security, payment of interest,
penalties or fees, or a schedule for repayment. Without proper documentation, Client #1
was completely vulnerable to losing this money. Likewise, Client #2’s bankruptcy
petition was delayed and she was frustrated when Mr. Sirk ignored her attempts to speed
13
things along. After Mr. Sirk failed to file the bankruptcy petition, he never paid the
remainder of the retainer fee and Client #2 was forced to obtain a judgment against him
in magistrate court. Finally, she had to borrow additional money from her parents to pay
another lawyer’s retainer fee and remained financially vulnerable to creditors.
We now turn to the final Jordan factor and consider Mr. Sirk’s conduct in
light of both mitigating and aggravating factors. This Court has held that “[m]itigating
factors in a lawyer disciplinary proceeding are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed.” Syl. Pt. 2, Lawyer
Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).
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.
Id. at 210, 579 S.E.2d at 551, Syl. Pt. 3. By contrast, “[a]ggravating factors in a lawyer
disciplinary proceeding are any considerations or factors that may justify increase in the
degree of discipline to be imposed.” Id. at 217, 579 S.E.2d at 558, Syl. Pt. 4. A pattern of
conduct and multiple offenses may be considered as aggravating factors. Id.
14
The HPS found the remorse shown by Mr. Sirk constituted a mitigating
factor as well as the absence of a prior disciplinary record, and his personal/emotional
problems. Conversely, several aggravating factors were also present including Mr. Sirk’s
dishonest or selfish motive, pattern of misconduct, multiple offenses, and his substantial
experience in the practice of law. Courts have applied the aggravating factor of dishonest
or selfish motives in cases where the lawyer intends to benefit financially from prohibited
transactions. “For example, an attorney who solicits loans from a client because he is
unable to find funding elsewhere acts selfishly because the attorney seeks to benefit
directly from the client.” In re Disciplinary Proceeding Against Trejo, 185 P.3d 1160,
1174 (Wash. 2008).
There is no “magic formula” for this Court to determine how to weigh the
host of mitigating and aggravating circumstances to arrive at an appropriate sanction;
each case presents different circumstances that must be weighed against the nature and
gravity of the lawyer’s misconduct. Considering all the relevant factors in this case, we
conclude that the one-year suspension recommendation submitted by the HPS is too
lenient a punishment for serious behavior that has become a pattern of continued
wrongdoing.
This Court is not unsympathetic to Mr. Sirk’s personal problems that
contributed to his professional misconduct. Nevertheless, the severity of his misconduct
cannot be overstated. When a lawyer violates Rules 8.4(c) and 8.4(d) by misappropriating
15
property belonging to a client, that lawyer breaches one of the fundamental duties of this
profession. The New Jersey Supreme Court eloquently explained why this breach,
perhaps more than any other, sullies the reputation of the entire legal profession and not
merely the errant practitioner.
Like many rules governing the behavior of lawyers,
this one has its roots in the confidence and trust which clients
place in their attorneys. Having sought his advice and relying
on his expertise, the client entrusts the lawyer with the
transaction—including the handling of the client’s funds.
Whether it be a real estate closing, the establishment of a
trust, the purchase of a business, the investment of funds, the
receipt of proceeds of litigation, or any one of a multitude of
other situations, it is commonplace that the work of lawyers
involves possession of their clients’ funds. That possession is
sometimes expedient, occasionally simply customary, but
usually essential. Whatever the need may be for the lawyer’s
handling of clients’ money, the client permits it because he
trusts the lawyer.
It is a trust built on centuries of honesty and
faithfulness. Sometimes it is reinforced by personal
knowledge of a particular lawyer’s integrity or a firm’s
reputation. The underlying faith, however, is in the legal
profession, the bar as an institution. No other explanation can
account for clients’ customary willingness to entrust their
funds to relative strangers simply because they are lawyers.
Abuse of this trust has always been recognized as
particularly reprehensible: “(T)here are few more egregious
acts of professional misconduct of which an attorney can be
guilty than misappropriation of a client’s funds held in trust.”
[In re Beckman, 79 N.J. 402, 404-05, 400 A.2d 792, 793
(1979)].
Matter of Wilson, 409 A.2d 1153, 1154-55 (N.J. 1979). Consequently, the fact that Mr.
Sirk had no prior disciplinary record is of small significance; an attorney cannot shield
16
himself from the consequences of committing a serious ethical violation simply because
it was his first offense.
Finally, an important factor that weighs heavily in our decision is our duty
to maintain the integrity of the State Bar. In other words, “[u]nless we keep clean our
own house . . . we cannot expect the public to have confidence in . . . our system of
justice.” In re Goldman, 588 P.2d 964, 985 (Mont. 1978) (Harrison, J., dissenting)).
“Society allows the legal profession the privilege of self-regulation. Thus, it is of the
utmost importance that the public have confidence in the profession’s ability to discipline
itself—lest the privilege be withdrawn.” Disciplinary Matter Involving Buckalew, 731
P.2d 48, 55 (Alaska 1986).
This Court has increased the HPS’s recommended sanction of a one-year
suspension to a three-year suspension in lawyer disciplinary proceedings under factually
similar circumstances. In Lawyer Disciplinary Board v. Rossi, 234 W.Va. 675, 769
S.E.2d 464 (2015), we found the lawyer’s substantial misconduct warranted a three-year
suspension from the practice of law when he failed to act with reasonable diligence in
representing clients, failed to communicate with clients, failed to return client files in a
timely fashion, engaged in conduct that was deceitful, and engaged in conduct that was
prejudicial to the administration of justice. Id. at 686, 769 S.E.2d at 475. Mr. Rossi had
comparable aggravating and mitigating factors as Mr. Sirk including a pattern of
misconduct, multiple offenses, and substantial experience in the practice of law. Id. at
17 685, 769 S.E.2d at 474. This Court considered an additional aggravating factor of
dishonest or selfish motive based on Mr. Rossi’s deceitful behavior when he lied to a
client, accepted a retainer fee and then failed to perform work on the case. Id.; see also
Lawyer Disciplinary Bd. v. Hart, 235 W.Va. 523, 538, 775 S.E.2d 75, 90 (2015)
(rejecting HPS’s recommendation of one-year suspension and imposing three-year
suspension when lawyer failed to perfect appeals, violated his duty of communication,
and agreed to perform certain legal services but failed to perform those services and,
additionally, retained unearned fees after being discharged by clients); Lawyer
Disciplinary Bd. v. Aleshire, 230 W.Va. 70, 79-80, 736 S.E.2d 70, 79-80 (2012)
(disagreeing with HPS’s recommendation of one-year suspension, finding “Mr. Aleshire
was completely unresponsive to his clients in these two matters and caused both of them
actual monetary damage. Additionally, Mr. Aleshire has shown a consistent
unwillingness to respond to opposing counsel, court orders, and the ODC. Therefore, we
believe a three-year suspension [is warranted].”).
Consistent with this precedent, we impose a three-year suspension on Mr.
Sirk’s law license. Further, we adopt the remaining recommendations made to this Court
by the HPS. We believe these sanctions will accomplish the goals of our disciplinary
system by punishing Mr. Sirk, restoring public confidence in the ethical standards of our
profession and serving as a deterrent to other members of the State Bar.
18
IV. CONCLUSION
For the foregoing reasons, this Court imposes the following sanctions: Mr.
Sirk’s law license is suspended for three years;15 he must refund Client #2 the remaining
$1,250 of her retainer fee; he must complete an additional six hours of continuing legal
education, including an additional three hours in the area of ethics and office
management above that which is already required; upon reinstatement, Mr. Sirk will be
placed on one year of supervised practice by an active attorney in his geographic area in
good standing with the West Virginia State Bar and agreed upon by ODC; and he is
ordered to pay the costs of these proceedings.
Sanctions Ordered.
15
Mr. Sirk is required to comply with the provisions of Rule 3.28 of the Rules of
Lawyer Disciplinary Procedure regarding the duties of suspended lawyers. Moreover,
pursuant to Rule 3.32 of those Rules, Mr. Sirk will be required to petition for the
reinstatement of his law license.
19