Lawyer Disciplinary Board v. Heidi M. Georgi Sturm , 237 W. Va. 115 ( 2016 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2016 Term
FILED
April 7, 2016
released at 3:00 p.m.
Nos. 14-0749 and 15-0009 RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner,
v.
HEIDI M. GEORGI STURM,
Respondent.
Lawyer Disciplinary Proceeding
Nos. 12-05-267; 12-05-268 and 14-05-346
LAW LICENSE SUSPENDED AND OTHER SANCTIONS
Submitted: February 23, 2016
Filed: April 7, 2016
Jessica H. Donahue Rhodes, Esq. Heidi M. Georgi Sturm, Esq.
Lawyer Disciplinary Counsel Fairmont, West Virginia
Office of Disciplinary Counsel Respondent, Pro se
Charleston, West Virginia
Counsel for the 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 of the West Virginia State
Bar v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).” Syl. Pt. 1, Lawyer Disciplinary
Bd. v. Conner, 234 W. Va. 648, 769 S.E.2d 648 (2015).
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. “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
i
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).
4. “Although Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary
Procedure enumerates the factors to be considered in imposing sanctions after a finding of
lawyer misconduct, a decision on discipline is in all cases ultimately one for the West
Virginia Supreme Court of Appeals. . . .” Syl. Pt. 5, in part, Office of Lawyer Disciplinary
Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
5. “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).
ii
6. “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).
7. “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).
8. “‘“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
iii
confidence in the ethical standards of the legal profession.” Syllabus Point 3, Committee on
Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).’ Syl. Pt. 5, Committee on
Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).” Syl. Pt. 7, Office of Lawyer
Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
iv
Workman, Justice:
This lawyer disciplinary proceeding involves two separate Statements of
Charges1 issued against the Respondent Heidi M. Georgi Sturm by the Investigative Panel
of the Lawyer Disciplinary Board (“the LDB”). The LDB’s Hearing Panel Subcommittee
(“the HPS”) determined that Ms. Sturm committed violations of the West Virginia Rules of
Professional Conduct2 in connection with each action filed against her. The HPS
recommended as sanctions for the Brown/Wright-Ochoa case that Ms. Sturm be
reprimanded, subjected to supervised practice for a period of two years, required to refund
the retainer fee, and required to pay the costs of the disciplinary proceeding. The HPS
recommended as sanctions for the Greynolds case that Ms. Sturm be reprimanded and pay
the costs of the disciplinary proceedings. Pursuant to Rule 3.12 of the West Virginia Rules
of Lawyer Disciplinary Procedure,3 the Court did not concur with the recommended
1
The first Statement of Charges concerns case No. 14-0749 involving complainant
Lael Brown and complainant Laverne G. Wright-Ochoa. We refer to this first action
throughout the opinion as the “Brown/Wright-Ochoa case.” The second Statement of
Charges involves case No. 15-0009 and was brought by complainant Kenneth L. Greynolds.
This case will be referred to as the “Greynolds case.” The Court consolidated the two cases
by order issued November 3, 2015.
2
The West Virginia Rules of Professional Conduct were amended by this Court by
order dated September 29, 2014, with a January 1, 2015, effective date for the amended rules
to take effect. Because Ms. Sturm’s conduct occurred prior to January 1, 2015, the former
version of the rules govern this case.
3
Rule 3.12 of the West Virginia Rules of Lawyer Disciplinary Procedure provides that
(continued...)
1
disposition of the HPS in the two lawyer disciplinary actions and scheduled oral argument.
The Court has before it the recommendations of the HPS, the parties’ briefs and oral
arguments, and all matters of record. Based upon our review, we find clear and convincing
evidence to support the factual findings of the HPS.4 We disagree, however, with the HPS’s
recommended sanctions of reprimand for each case and, accordingly, impose a ninety-day
suspension of Ms. Sturm’s law license and adopt the remaining sanctions recommended by
the HPS.
I. FACTUAL AND PROCEDURAL HISTORY
Ms. Sturm has been a practicing member of the West Virginia State Bar since
her admission on October 9, 2003. Ms. Sturm’s conduct at issue in the disciplinary
proceeding occurred while she was practicing in Fairmont, West Virginia. The two cases at
issue are briefly discussed below.
A. Brown/Wright-Ochoa Case
On August 17, 2010, Ms. Laverne G. Wright-Ochoa met with Ms. Sturm about
retaining her to represent Ms. Wright-Ochoa’s son, Lael Brown, who was incarcerated. Ms.
3
(...continued)
“[i]f the Court does not concur with the recommended disposition, the Clerk of the Supreme
Court of Appeals shall promptly establish a briefing schedule and notify the parties of the
date and time of oral argument . . . before the Supreme Court of Appeals.”
4
Rule 3.7 of the West Virginia Rules of Disciplinary Procedure requires allegations
of formal charges against a lawyer be proven by “clear and convincing evidence” in order
to recommend the imposition of discipline.
2
Wright-Ochoa wanted to institute a habeas corpus proceeding for her son. On August 23,
2010, Ms. Sturm mailed Ms. Wright-Ochoa an “Attorney-Client Hourly and/or Flat Fee
Agreement.” That agreement provided for Ms. Wright-Ochoa to pay Ms. Sturm a general
retainer of $5,000. On August 27, 2010, Ms. Wright-Ochoa signed the retainer agreement
and returned it to Ms. Sturm. The record indicates that Ms. Wright-Ochoa gave Ms. Sturm
the full retainer amount of $5,000 in three different installments agreed upon by the parties.5
Between August 27, 2010, and September 10, 2010, Ms. Wright-Ochoa
emailed Ms. Sturm about the time frames for filing a petition for habeas corpus for her son
and sent her documents regarding Mr. Brown’s case. When Ms. Sturm failed to respond to
her inquiries, Ms. Wright-Ochoa sent Ms. Sturm a letter on September 22, 2010, regarding
Ms. Sturm’s failure to communicate with her and Mr. Brown. Ms. Wright-Ochoa then
attempted to contact Ms. Sturm. Ms. Sturm responded to her that same day by email, stating
that she had been out of town for court and could not return any telephone calls. Ms. Sturm
sent Ms. Wright-Ochoa another email two days later, indicating that she had received Ms.
Wright-Ochoa’s messages, but had been unable to respond to her. She further stated in the
email that she should have the petition for habeas corpus completed “by the beginning of
5
The record also establishes that Ms. Sturm deposited some of the retainer received
into her business account and not into a client trust account.
3
next week” and that she would need to review the petition with Mr. Brown in order to obtain
his signature before she could file it in the circuit court.
Ms. Wright-Ochoa emailed Ms. Sturm the day after receiving Ms. Sturm’s
second email. Ms. Wright-Ochoa told Ms. Sturm that she had not received a signed copy of
the fee agreement and she requested to meet with her on October 1, 2010, because Ms.
Wright-Ochoa would be in town for a hearing concerning Mr. Brown. Ms. Wright-Ochoa
also sent the attorney additional information about Mr. Brown’s case.
On September 28, 2010, Ms. Sturm responded to Ms. Wright-Ochoa’s email,
indicating that she would leave a copy of the signed fee agreement for her to pick up. Ms.
Sturm was also going to leave a copy of the petition for habeas corpus for Ms. Wright­
Ochoa’s review and another copy for Ms. Wright-Ochoa to provide to Mr. Brown for review.
On that same day, Ms. Wright-Ochoa sent a letter to Ms. Sturm, again requesting a meeting
as they had not met since the initial consultation in August.
In an email that was sent the next day, September 29, 2010, Ms. Wright-Ochoa
informed Ms. Sturm that she would be unable to stop by her office prior to meeting with Mr.
Brown. Ms. Wright-Ochoa also sent Ms. Sturm additional documents about the case and
expressed to Ms. Sturm that she was upset because she wanted to meet with Ms. Sturm. The
4
same day, Ms. Sturm sent Mr. Brown a copy of the petition for habeas corpus that she had
prepared for him to review. Ms. Sturm had not visited Mr. Brown, but stated in the
communication included with the petition that she was going to visit him soon to discuss the
petition with him and have him sign it.
On October 1, 2010, Ms. Wright-Ochoa again emailed Ms. Sturm asking for
a meeting as they had not meet since the original meeting. Three days later, Ms. Sturm
answered Ms. Wright-Ochoa’s email and stated that she had other clients and matters to work
on and that she did “not have time to sit at [her] desk waiting for emails from” Ms. Wright-
Ochoa. Ms. Sturm further indicated that the process with the habeas petition could take some
time and that she would meet with her the next time she was in town.
On October 4, 2010, Ms. Wright-Ochoa received a draft of the habeas petition.
She made comments and sent them back to Ms. Sturm. Ms. Sturm indicated to Ms. Wright-
Ochoa that she would make various changes and send her a copy of the final petition within
a few weeks. Throughout the remainder of October, there were various communications
between Ms. Sturm and Ms. Wright-Ochoa about setting up another appointment and sending
a filing fee for the petition, which Ms. Wright-Ochoa agreed to do and did do6 at the end of
the month.
6
Ms. Sturm never cashed the $200 check, dated October 15, 2010, for the filing fee.
5
In early November, there were additional communications between Ms.
Wright-Ochoa and Ms. Sturm, including Ms. Wright-Ochoa sending Ms. Sturm additional
documents about her Mr. Brown’s case and requesting a meeting so that Ms. Sturm could
explain the matter to her son’s father. Around November 11, 2010, Ms. Sturm indicated in
an email to Ms. Wright-Ochoa that the petition for habeas corpus would be ready by the end
of the next week.
In a November 24, 2010, email to Ms. Sturm, Ms. Wright-Ochoa inquired
about whether Ms. Sturm had visited Mr. Brown or completed the petition. Ms. Sturm
responded that she was sorry that she had not provided the petition to Ms. Wright-Ochoa
sooner, but her children had been sick and she had been dealing with several family friends
who had passed away.
Another month passed during which Ms. Wright-Ochoa sent Ms. Sturm more
documents about her son’s case, as well as requested information about the petition. Ms.
Sturm did not respond to Ms. Wright-Ochoa until January 25, 2011, when she emailed Ms.
Wright-Ochoa. According to the email, Ms. Sturm’s daughter needed surgery over the
Christmas holiday and Ms. Sturm was still working on the petition–the petition that Ms.
Sturm had told Ms. Wright-Ochoa would be completed before Thanksgiving.
6
On February 22, 2011, Ms. Wright-Ochoa informed Ms. Sturm that Mr. Brown
was ineligible for parole. Then, during the first week of March, Ms. Wright-Ochoa inquired
about the status of the petition for habeas corpus on two different occasions. Ms. Sturm
failed to respond to the inquires until March 22, 2011, again telling Ms. Wright-Ochoa that
the completed habeas petition “should” be competed by the end of the month.
Several month passed until July 12, 2011. By certified letter on that date from
Ms. Wright-Ochoa to Ms. Sturm, Ms. Wright-Ochoa states that she had not heard from Ms.
Sturm since March, that she had not received the habeas petition for Mr. Brown, and that Ms.
Sturm had not visited Mr. Brown to get his input regarding the petition.
On that same date, Mr. Brown also sent a letter to Ms. Sturm requesting a
refund of the $5,000 retainer that his mother had paid to her. Mr. Brown also indicated that
he had not received any communication from Ms. Sturm since October of 2010, wherein she
indicated that she would visit with him to go over the habeas petition. Mr. Brown also
requested an accounting of the fees and itemization of costs. Another month passed and on
August 2, 2011, Ms. Wright-Ochoa sent a second certified letter requesting refund of the
unearned attorney fees and itemization of costs.
7
Finally, on August 18, 2011, Mr. Brown, pro se, filed a petition for habeas
corpus in Monongalia County, West Virginia.
Ms. Wright-Ochoa and Mr. Brown went several more months without any
communication from Ms. Sturm. On February 10, 2012, Ms. Wright-Ochoa called Ms.
Sturm’s office and discovered that Ms. Sturm’s office phone was disconnected. Ms. Wright-
Ochoa, upon discovering through another attorney that Ms. Sturm’s office phone was back
in service, made several phone calls to Ms. Sturm’s office leaving messages, none of which
were returned by the attorney.
After the passage of several more months with no communication from Ms.
Sturm, on May 3, 2012, Ms. Wright-Ochoa and Mr. Brown filed complaints against the
attorney with the Office of Disciplinary Counsel (“the ODC”). The complaints were opened
for investigation and the ODC asked Ms. Sturm to file a response. On May 24, 2012, Ms.
Sturm’s response was received by ODC. Ms. Sturm admitted that she agreed to represent
Mr. Brown; that Ms. Wright-Ochoa was very involved in the case; that she had spent at least
eighteen to twenty hours on the case; that she had met with Ms. Wright-Ochoa on Saturdays
when she was in town, which meetings “usually lasted one to two hours[;]” that she had
received a lot of emails, letters, and documents from Ms. Wright-Ochoa; that she had
provided a draft of the habeas petition to Ms. Wright-Ochoa, who had made changes that Ms.
8
Sturm had incorporated into the petition; that she not heard from Ms. Wright-Ochoa for
several months; that she had provided another copy of the draft petition to Ms. Wright-
Ochoa, but had not gotten any response; that Ms. Sturm did not want to file the petition
without receiving a response from Ms. Wright-Ochoa; that Ms. Sturm was ready to file the
petition if Ms. Wright-Ochoa gave her permission; and that she had sent a copy of the
petition to Mr. Brown and had never received a response from him.
By letter dated June 12, 2012, the ODC requested Ms. Sturm to answer the
following questions concerning the complaint: 1) what was the status of the petition; 2) why
was Ms. Sturm’s office telephone service cut off; and 3) what was Ms. Sturm’s response to
the allegation of her failure to communicate. The ODC also asked Ms. Sturm to provide an
accounting of the work performed in the case.
Ms. Sturm failed to respond to the June 12, 2012, letter. By letter dated June
26, 2012, the ODC asked the Respondent if she ever explained the habeas process to Mr.
Brown and again requested an accounting of the work performed. Ms. Sturm again failed
to answer the second letter from ODC.
On August 9, 2012, the ODC sent additional letters by both certified and
regular mail to Ms. Sturm again requesting answers to the above-mentioned inquiries. By
9
letter dated August 16, 2012, Ms. Sturm finally responded to the ODC’s inquiries, by first
apologizing for her failure to respond earlier. She stated that “[d]ue to several transitions in
. . . [her] office, this particular correspondence was not properly filed for . . . [her] to
address.” Ms. Sturm answered the ODC’s inquiries, stating that the petition was ready to
file; that there was a brief disruption in her phone service that was remedied as soon as she
became aware of it;7 and that she did return Ms. Wright-Ochoa’s emails and phone calls. Ms.
Sturm also provided an accounting of work performed as follows: “Telephone, email
conferences[:] 4.1 hours[;]Review of documents from L.W.O[:] 11.3 hours[;] Research: 7.8
hours[;] Draft Petition: 8.7 hours[;] In-person conferences w/clients[:] 1.7 hours[.]” Ms.
Sturm indicated that she had spent additional time on this case, but did not bill for it. She
also stated that she had not included the costs for copies and postage and that she had
“consulted other counsel about this case for additional insight into the Petition as well as
advice on specifics that make a petition successful.”
Mr. Brown testified that he was released from incarceration in January of 2013
after completing his sentence. By letter dated January 30, 2014, about a year later, ODC
requested a status report of Mr. Brown’s case. Ms. Sturm again failed to respond. By letter
dated February 25, 2014, ODC sent another letter by certified and regular mail requesting the
7
Interestingly, Ms. Sturm commented that she was “not quite sure why Ms. Wright-
Ochoa is alleging my telephone service was inactive and at what time that allegedly
occurred.” Ms. Sturm, however, did not explain why there was a service disruption.
10
same information. Ms. Sturm responded to this letter that she had had no contact with Ms.
Wright-Ochoa due to the pending ethics complaint and that she could provide a copy of the
habeas petition to Ms. Wright-Ochoa.
B. Greynolds Case
Ms. Sturm previously had represented Kenneth L. Greynolds in criminal
matters before the case at issue. On December 12, 2012, she represented him in a criminal
proceeding in which Mr. Greynolds accepted a plea offer and pled guilty8 to three felonies.
Mr. Greynolds was sentenced for the crimes. Thereafter, Mr. Greynolds decided that he
wanted to appeal his convictions.
On January 15, 2013, the circuit court appointed Ms. Sturm to represent Mr.
Greynolds “for the purpose of filing an appeal.” In the order of appointment, the court
further directed that Ms. Sturm “is instructed to contact the defendant forthwith.”
By letter dated January 17, 2013, Ms. Sturm, without ever meeting with Mr.
Greynolds to discuss his desire to appeal his criminal convictions, wrote the following to
him: “I have reviewed the case file and the plea and sentencing order. There are no grounds
8
The plea was a Kennedy or Alford plea wherein Mr. Greynolds did not have to admit
guilt to any of the crimes. See Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987) and
North Carolina v. Alford, 400 U.S. 25 (1970).
11
for you to appeal this order. There is no question as to jurisdiction, the sentence or whether
you wished to enter the plea. Therefore, there are no legitimate grounds upon which to
appeal.”
Mr. Greynolds denied ever receiving the foregoing letter. After sending the
letter, Ms. Sturm took no action regarding Ms. Greynolds’ appeal. Because of Ms. Sturm’s
inaction, Mr. Greynolds twice wrote to the circuit court – in June 2013 and in June of 2014.
In June 2013, Mr. Greynolds indicated that he had attempted to contact Ms. Sturm on several
occasions without success. In June 2014, Mr. Greynolds asked that a new attorney be
appointed. On June 10, 2014, the circuit court responded to Mr. Greynolds regarding his
request for a new attorney. The circuit court informed Mr. Greynolds that the time frame to
appeal had passed and that the court would not appoint new counsel to represent him.
Mr. Greynolds filed an ethics complaint on June 25, 2014, alleging that his
post-conviction rights had been violated by Ms. Sturm. Specifically, Mr. Greynolds alleged,
inter alia, that Ms. Sturm had failed to file for suspension of execution of his sentence and
thereby prevented his release on probation; failed to file for correction or reduction of
sentence; failed to file a notice of appeal with the West Virginia Supreme Court; and failed
to file a petition for appeal with this Court.
12
The ODC wrote to Ms. Sturm on June 30, 2014, asking for a response to Mr.
Greynolds’ complaint. Ms. Sturm failed to respond. By letter dated July 29, 2014, sent by
both certified and regular mail, the ODC again requested Ms. Sturm to respond to the
complaint filed against her.
The ODC received three responses from Ms. Sturm dated August 1, 2014,
September 19, 2014, and September 26, 2014. In her responses, Ms. Sturm stated she had
provided Mr. Greynolds with a copy of the plea and sentencing order that was entered in his
case. Ms. Sturm indicated that the order was initially returned to her office and that she “had
forwarded it to Mr. Greynolds at Huttonsville.” Ms. Sturm also stated that she had informed
Mr. Greynolds, by letter dated January 17, 2014, that she “would not be able to appeal this
decision as there was no issue relating to the jurisdiction, the sentence, or the voluntariness
of entry of the plea as he did not choose to take the matter to trial and instead entered to a
plea and sentencing agreement.” As Ms. Sturm told the ODC in a subsequent letter,
[a]s I am required to certify an appeal by signing the statement
“I hereby certify that I have performed a review of the case that
is reasonable under the circumstances and I have a good faith
belief that an appeal is warranted[,]” I could not under the
circumstances file an appeal.
While Ms. Sturm also stated that Mr. Greynolds “could have contacted the Circuit Judge and
requested a new attorney be appointed to represent him on his appeal[,]” she said nothing
about her trying to withdraw from the case.
13
C. Hearing Panel Subcommittee Proceedings
On May 4, 2014, the HPS heard testimony from Ms. Wright-Ochoa, Mr.
Brown, Mr. Greynolds and Ms. Sturm. As a result of the testimony and the exhibits received,
the HPS determined that in the Brown/Wright-Ochoa case, Ms. Sturm had violated Rule 1.19
and Rule 1.310 of the West Virginia Rules of Professional Conduct because “she neglected
Mr. Brown’s case and failed to timely file a Petition for Habeas Corpus for Mr. Brown.”
The HPS also found that Ms. Sturm violated Rule 1.4,11 due to Ms. Sturm’s failure to respond
to Mr. Brown’s requests for information and her failure “to explain the matter” to him.
Further, Ms. Sturm was found to have violated Rule 1.8,12 because she “failed to seek Mr.
9
Rule 1.1 of the West Virginia Rules of Professional Conduct provided: “A lawyer
shall provide competent representation to a client. Competent representation requires the
legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.”
10
Rule 1.3 of the West Virginia Rules of Professional Conduct provided that “[a]
lawyer shall act with reasonable diligence and promptness in representing a client.”
11
Rule 1.4 of the West Virginia Rules of Professional Conduct provided that “[a]
lawyer shall keep a client reasonably informed about the status of a matter and promptly
comply with reasonable requests for information[,]” and “[a] lawyer shall explain a matter
to the extent reasonably necessary to permit the client to make informed decisions regarding
the representation.”
12
Rule 1.8 of the West Virginia Rules of Professional Conduct provided, in relevant
part:
(f) A lawyer shall not accept compensation for
representing a client from one other than the client unless:
(continued...)
14
Brown’s consent after consultation to accept compensation from Ms. Wright-Ochoa for Mr.
Brown’s case and failed to prevent any interference with her independence of professional
judgment and the attorney client relationship[.]” The HPS also found that Ms. Sturm
violated Rule 1.14,13 as Ms. Sturm “failed to reasonably maintain a normal client-attorney
relationship with Mr. Brown when she understood that he had an impairment[.]” The HPS
found that “[b]ecause . . . [Ms. Sturm] failed to properly deposit all of the retainer fee with
12
(...continued)
(1) the client consents after consultation;
(2) there is no interference with the lawyer’s
independence of professional judgment or with the client-lawyer
relationship; and
(3) information relating to representation of a client is
protected as required by Rule 1.6.
13
Rule 1.14(a) of the West Virginia Rules of Professional Conduct provided that
“[w]hen a client’s ability to make adequately considered decisions in connection with the
representation is impaired, whether because of minority, mental disability or for some other
reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.”
15
the client’s trust account, she . . . violated Rule[] 1.1514. . . .” Additionally, the HPS found
that Ms. Sturm violated Rule 1.16(d)15 as follows:
[Ms. Sturm]. . . provided evidence that she worked on
and completed a draft version of Mr. Brown’s habeas petition.
However, it is uncontested that the petition was never finalized,
much less filed on his behalf. The Hearing Panel therefore
concludes that . . . [Ms. Sturm] was compensated for what it
determines was an unearned fee. . . . [Ms. Sturm also] failed to
provide a refund of the unearned Five Thousand Dollars
($5,000.00) which was likewise not supported by
contemporaneous time records pursuant to the fee agreement[.]
14
West Virginia Rule of Professional Conduct 1.15(a) provided:
(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 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. Other property shall be identified as such and
appropriately safe guarded. Complete records of such account
funds and other property shall be kept by the lawyer and shall be
preserved for a period of five years after termination of the
representation.
15
West Virginia Rule of Professional Conduct 1.16(d) provided, in relevant part, that
“[u]pon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client’s interests, such as . . . refunding any advance payment of fee
that has not been earned. . . .”
16
Finally, the HPS determined that Ms. Sturm violated Rules 3.2,16 8.117 and 8.4,18 based upon
its respective findings as to each rule as follows: 1) she “failed to make reasonable efforts
consistent with the stated and agreed upon objectives of her client, Mr. Brown, prior to his
release[;]” 2) she “failed to timely comply” with the ODC’s requests for information; and
3) she “failed to file the Petition for Habeas Corpus for Mr. Brown, prior to his release[.]19”
(Footnote added).
Regarding Mr. Greynolds’ complaint, the HPS found that Ms. Sturm violated
West Virginia Rule of Professional Conduct 1.320 by failing to file an appeal for Mr.
Greynolds after being appointed by the Court to do so. The HPS also found a violation of
16
West Virginia Rule of Professional Conduct 3.2 provided that “[a] lawyer shall make
reasonable efforts to expedite litigation consistent with the interest of the client.”
17
West Virginia Rule of Professional Conduct 8.1 provided, in relevant part, that “a
lawyer in connection with . . . a disciplinary matter, shall not: . . . knowingly fail to respond
to a lawful demand for information from . . . [the] disciplinary authority, except that this rule
does not require disclosure of information otherwise protected by Rule 1.6.”
18
West Virginia Rule of Professional Conduct 8.4 provided, in relevant part, that “[i]t
is professional misconduct for a lawyer to: . . . [e]ngage in conduct involving dishonesty,
fraud, deceit, or misrepresentation[, and] [e]ngage in conduct that is prejudicial to the
administration of justice.”
19
Except for the violations found by the HPS of Rules 1.1 and 1.16 in the
Brown/Wright-Ochoa case, Ms. Sturm admitted to every other rule violation in her
stipulations.
20
See supra n.10.
17
Rule 1.4(a)21 due to Ms. Sturm’s failure to respond to Mr. Greynolds’ request for information
and status about his appeal. Finally, the HPS found that the Respondent violated Rule
8.4(d),22 because she
failed to timely withdraw, or attempt to withdraw, from
representation while believing she had no grounds to appeal, this
arguably resulted in a failure for anyone, including . . . [Mr.
Greynolds], to file an appeal. Regardless of the merits23 of this
appeal this arguably negatively impacted Mr. Greynolds’ rights.
Since she remained . . . [his] appointed counsel . . . [Ms. Sturm]
furthermore failed to perfect his appeal, regardless of its merits,
in a timely manner.
(Footnote omitted and footnote added).
Based upon the foregoing findings of misconduct, the HPS presented the
following recommended sanctions to the Court for its consideration in the Brown/Wright-
Ochoa case:
a. That . . . [Ms. Sturm] shall be reprimanded;
[b]. That . . . [Ms. Sturm’s] practice shall be supervised for a
period of two (2) years by an attorney agreed upon
between the Office of Disciplinary Counsel and . . . [Ms.
Sturm], which shall run concurrent to the supervised
21
See supra n.11.
22
See supra n.18.
23
We make no determination regarding the merits of any appeal that may have been
taken on Mr. Greynolds’ behalf as the only issue before us involves his attorney’s
professional conduct.
18
practice under Case No. 15-0009 24 [the Greynolds case].
. . . [Ms. Sturm] shall meet with her supervising attorney
every two (2) weeks. The goal of the supervised practice
will be to improve the quality and effectiveness of . . .
[Ms. Sturm’s] law practice to the extend that . . . [her]
sanctioned behavior is not likely to recur;
[c]. That . . . [Ms. Sturm] shall refund the Five Thousand
Dollars ($5,000.00) retainer fee to Ms. Wright[-]Ochoa;
and
[d]. That, pursuant to Rule 3.15 of the Rules of Lawyer
Disciplinary Procedure, . . . [Ms. Sturm] shall pay costs
of this disciplinary proceeding.
(Footnote omitted). Further, in the Greynolds case, the HPS recommended that Ms. Sturm
be reprimanded and required to pay the costs of the disciplinary proceeding as sanctions for
the violations found in that case.
The ODC consented to the forgoing sanctions recommended by the HPS.
Likewise, Ms. Sturm did not file any objections to the HPS’s reports, inclusive of the
foregoing recommended sanctions. This Court, however, did not concur with the
recommended sanctions and the case was set for oral argument.
II. STANDARD OF REVIEW
In lawyer disciplinary proceedings, we apply the following standard of review:
24
In its brief, LDB notes that the recommendation that supervised practice run
concurrent with supervised practice in the Greynolds case was in error as there was no
recommended sanction for supervised practice in the Greynolds case.
19
“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 of the
West Virginia State Bar v. McCorkle, 192 W. Va. 286, 452
S.E.2d 377 (1994).
Syl. Pt. 1, Lawyer Disciplinary Bd. v. Conner, 234 W. Va. 648, 769 S.E.2d 25 (2015).
While we respectfully consider the HPS’s recommendations, “[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
this standard of review in mind, we proceed with an examination of sanctions recommended
for imposition in this case.
III. DISCUSSION
The sole issue before the Court is a determination of the appropriate sanctions
to impose upon Ms. Sturm for her professional misconduct. The HPS recommended only
that we reprimand her in both cases, as well as impose several other lesser sanctions. Both
the ODC and Ms. Sturm advocate that this Court adopt the HPS’s recommended sanctions
in each case.
20
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.”
We, however, also held in syllabus point five of Jordan that “[a]lthough Rule 3.16 of the
West Virginia Rules of Lawyer Disciplinary Procedure enumerates the factors to be
considered in imposing sanctions after a finding of lawyer misconduct, a decision on
discipline is in all cases ultimately one for the West Virginia Supreme Court of Appeals. .
. .” 204 W. Va. at 496, 513 S.E.2d at 723, Syl. Pt. 5, in part.
After a thorough review of the record in this case, this Court, in focusing upon
all four of the Jordan factors, finds none to weigh in Ms. Sturm’s favor. Our examination
is prefaced with the recognition that “attorney disciplinary proceedings are primarily
designed 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[.]” Comm. on Legal Ethics of the W.
Va. State Bar v. Keenan, 192 W. Va. 90, 94, 450 S.E.2d 787, 791 (1994).
21
As to the first Jordan factor, Ms. Sturm violated multiple duties owed to her
clients she represented in these cases, including the duties of candor, loyalty, diligence and
honesty. During the pendency of both matters, Ms. Sturm failed to file a petition for habeas
corpus that she was retained to file and she never filed an appeal in a criminal case that she
was court-appointed to file.25 She also failed to communicate with her clients in any
25
Ms. Sturm should have filed an Anders brief in the Greynolds case given that she
thought there were no meritorious grounds to appeal. See Syl. Pt. 3, State v. McGill, 230 W.
Va. 85, 88 n.7, 736 S.E.2d 85, 88 n.7 (2012) (holding that “[p]ursuant to principles contained
in Rule 3.1 of West Virginia Rules of Professional Conduct, an appellate remedy should not
be pursued unless counsel believes in good faith that error has been committed and there is
a reasonable basis for the extension, modification, or reversal of existing law[,]” but
“acknowledg[ing] that good faith may at times be defined by the legal obligation of counsel
to file a brief referring to any point in the record that might arguably support the appeal in
instances where a criminal defendant insists upon appeal after being advised that the case is
wholly frivolous. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967);
see also Turner v. Haynes, 162 W.Va. 33, 245 S.E.2d 629 (1978), Rhodes v. Leverette, 160
W.Va. 781, 239 S.E.2d 136 (1977).”).
Although the filing of an Anders brief has been recognized and utilized for
years, this Court recently amended Rule 10(c)(10) of the West Virginia Rules of Appellate
Procedure, effective January 1, 2016, to now provide, in relevant part, the following
procedure for attorneys to follow when faced with the situation presented to Ms. Sturm:
The following requirements must be observed when
counsel in a criminal, habeas corpus, or abuse and neglect case
is directed by a client to file an appeal where counsel lacks a
good faith belief that an appeal is reasonable and warranted
under the circumstances:
(a) Counsel must engage in a candid discussion with the
client regarding the merits of the appeal. If, after consultation
with the client, the client insists on proceeding with the appeal,
counsel must file a notice of appeal and perfect the appeal on the
petitioner’s behalf. The petitioner’s brief should raise any
(continued...)
22
meaningful way about their cases and the work she was supposed to perform for them. In
fact, Ms. Sturm never directly spoke with either Mr. Brown or Mr. Greynolds. While Ms.
Sturm did communicate with Ms. Wright-Ochoa regarding Mr. Brown’s case, the record is
clear that she never obtained permission from Mr. Brown to accept compensation from his
mother. Ms. Sturm also allowed Mr. Brown’s mother to control and make decisions in the
case, rather than relying upon any instructions from her client, Mr. Brown. Additionally,
Ms. Sturm failed to keep contemporaneous time records in Mr. Brown’s case insofar as she
failed to record specific dates, times or tasks that she had worked on in the matter. Further,
she failed to place client funds in her client trust account, failed to promptly refund client
funds, and failed to respond to requests from the ODC. Finally, Ms. Sturm failed to comply
25
(...continued)
arguable points of error advanced by the client. Counsel need
not espouse unsupportable contentions insisted on by the client,
but should present a brief containing appropriate citations to the
appendix and any case law that supports the assignments of
error.
(b) In extraordinary circumstances, if counsel is ethically
compelled to disassociate from the contentions presented in the
brief, counsel must preface the brief with a statement that the
brief is filed pursuant to Rule 10(c)(10)(b). Counsel should not
inject disclaimers or argue against the client’s interests. If
counsel is ethically compelled to disassociate from any
assignments of error that the client wishes to raise on appeal,
counsel must file a motion requesting leave for the client to file
a pro se supplemental brief raising those assignments of error
that the client wishes to raise but that counsel does not have a
good faith belief are reasonable and warranted.
23
with the scheduling order entered by this Court, by filing her brief with a motion out of
time.26 Ms. Sturm’s conduct most certainly impugned the integrity of legal profession and
the administration of justice. See Conner, 234 W. Va. at 656, 769 S.E.2d at 33 (stating that
“Ms. Conner’s conduct brought disrepute upon the legal system and profession.”).
The second factor calls upon us to consider whether Ms. Sturm’s conduct was
intentional, knowing or negligent. The HPS found that Ms. Sturm acted negligently. The
HPS noted in both cases that “the ABA Standards for Imposing Lawyer Sanctions define
negligence as the failure of a lawyer to heed a substantial risk that circumstances exist or that
a result will follow, which failure is a deviation from the standard of care that a reasonable
lawyer would exercise in that situation.” The evidence in this case proves that, at a
minimum, Ms. Sturm acted negligently in her representation of these two clients.
The third factor requires us to consider the actual or potential harm caused by
Ms. Sturm’s misconduct. Ms. Sturm testified that in the Brown/Wright-Ochoa case she
believed and still believes that there were viable grounds upon which to file a petition for
habeas corpus relief. As a result of her inaction in failing to file the habeas petition, the HPS
determined that
26
Further, Ms. Sturm’s motion to file her brief out of time failed to comply with West
Virginia Rules of Appellate Procedure 37, 38, and 39.
24
Mr. Brown suffered an actual injury in his continued
incarceration without his Petition for Habeas Corpus being filed
and he had to end up filing his own pro se Petition. Mr. Brown
was subsequently released for serving his time, but it was over
a two and a half years from the time . . . [Ms. Sturm] was first
hired to file the Petition. . . .
The HPS also found that Mr. Greynolds suffered an injury as well. Specifically, the HPS
stated that Mr. Greynolds “did suffer an injury when his appointed counsel failed to either
withdraw, attempt to withdraw or file an Anders Brief on his behalf.” As the HPS found,
while Mr. Greynolds’ “odds of appellate success may have been slim, he will never know
with certainty whether he would have success[,]” because his attorney did nothing. We agree
with the HPS’s finding that the evidence supports the conclusion that injuries were sustained
by both Mr. Brown and Mr. Greynolds due to Ms. Sturm’s unprofessional conduct.
We finally examine the presence of both aggravating and mitigating factors in
these two cases in ascertaining the proper sanction to be imposed. As we held in syllabus
point two of Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003),
“[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.” We further held in
syllabus point three of Scott that
[m]itigating 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;
25
(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. Conversely, “[a]ggravating factors in a lawyer
disciplinary proceeding are any considerations or factors that may justify an increase in the
degree of discipline to be imposed.” Id., Syl. Pt. 4.
As for mitigating factors, the HPS found the presence of a cooperative attitude
toward the proceedings and remorse in both cases. In the Brown/Wright-Ochoa case, the
HPS also found “no dishonesty or selfish motive” and “no prior adverse disciplinary findings,
although contemporaneous with this hearing she was also subject to a . . . [complaint in the
Greynolds case].” The HPS further found in the Brown/Wright-Ochoa case the fact Ms.
Sturm had modified her billing and practice methods to be mitigating. Finally, the HPS
noted in both cases that she had been under duress at the time of this matter due to
“significant personal events outside her control.” The HPS further noted in the
Brown/Wright-Ochoa case that while those events were not the fault of Mr. Brown or Ms.
Wright-Ochoa, her clients, “they provide[d] a reasonable explanation for some of . . . [Ms.
Sturm’s] communication lapses.”
26
As aggravating factors in both cases, the HPS found the presence of Ms.
Sturm’s experience in the practice of law and her prior disciplinary action by the
Investigative Panel of the LDB.27
Taking into account all the mitigating and aggravating factors, we are
confounded as to why the HPS found the lack of prior “adverse” disciplinary findings as a
mitigating factor while also finding the presence of two prior Investigative Panel
admonishments to be an aggravating factor. As the HPS found, and the LDB advocates, it
should be considered mitigating that Ms. Sturm was only admonished in the two prior
disciplinary actions brought against her. The HPS notes in the Brown/Wright-Ochoa case
that Ms. Sturm “had no prior adverse disciplinary findings,” despite also recognizing the
prior disciplinary action by the Investigative Panel of the LDB. We are equally disturbed that
27
The first Investigative Panel admonishment was on February 8, 2013, and was for
violating Rule 1.1 (regarding competence); Rule 1.3 (regarding diligence) and Rule 1.5(c)
(requiring contingent fee agreements be in writing) of the West Virginia Rules of
Professional Conduct. Ms Sturm is currently charged with violations of Rule 1.1 and Rule
1.3.
The second Investigative Panel admonishment was on October 31, 2013, and was for
violating Rule 3.4(c) (concerning disobeying an obligation under the rules of a tribunal) and
Rule 8.4(d) (pertaining to conduct that is prejudicial to administration of justice) of the West
Virginia Rules of Professional Conduct. Specifically regarding this admonishment, similar
to the Greynolds case, Ms. Sturm was appointed to pursue an appeal on behalf of a party in
an abuse and neglect matter. Ms. Sturm filed the proper notice of appeal and then failed to
perfect the appeal, resulting in the matter being dismissed. Further, Ms. Sturm failed to
respond to numerous phone calls made by the Clerk of the West Virginia Supreme Court to
her. Again, Ms. Sturm claimed that there was no meritorious grounds for an appeal, yet she
failed to advise the Court in any way.
27
the LDB engaged in a game of semantics in its argument before the Court that Ms. Sturm
“had no prior disciplinary proceedings before this Honorable Court,” in an attempt to
mitigate Ms. Sturm’s prior admonishments by the Investigative Panel for conduct very
similar to the conduct at issue now. The manner in which these conflicting positions
espoused by the HPS and the LDB as the mitigating and aggravating factors were analyzed
is confusing at best. There is nothing in our rules or case law supportive of the proposition
that if the discipline is only an admonishment given by the Investigative Panel of the LDB,
and not this Court, it is not to be considered as aggravating. Rather, we have treated an
Investigative Panel admonishment to be aggravating just like any other disciplinary action.
See Lawyer Disciplinary Bd. v. Grindo, 231 W. Va. 365, 371, 745 S.E.2d 256, 262 (2013)
(“This Court finds 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 license. See e.g. Lawyer Disciplinary Board v. Sullivan, 230 W. Va. 460, 740
S.E.2d 55 (2013).”).
Notwithstanding Ms. Sturm’s conduct in the cases sub judice, Ms. Sturm’s
prior conduct establishes her propensity for ignoring requests from the ODC and this Court
for information, as well as her pattern and practice of failing to file pleadings or appeals with
courts and failing to communicate with her clients. Our concern with Ms. Sturm’s conduct
in these two cases is heightened by her testimony that she has ninety to one hundred clients
28
and handles a lot of court-appointed cases. Some of these individuals are in great need of
competent legal services, and it may take more effort and diligence to meet with them in
order to assure that their legal matters are being handled in a competent manner. While we
understand that sometimes a lawyer’s personal problems require the lawyer’s utmost
attention, this focus of a lawyer’s attention cannot come at the client’s expense. Rather, we
are extremely concerned about the repetitive nature of Ms. Sturm’s conduct regardless of her
personal problems. Ms. Sturm’s two prior admonishments failed to prevent her from
repeating similar conduct.
Consequently, we find the recommended sanction of reprimand for both cases
to be too lenient given the repetitive nature of Ms. Sturm’s misconduct. Ms. Sturm’s conduct
is similar to that displayed by the attorneys in Conner and Lawyer Disciplinary Board v.
Hollandsworth, No. 14-0022 (W. Va. Sept. 18, 2014 ) (unreported order).28 Like the instant
case, in Conner, the Court was presented with an attorney who had, in relevant part, failed:
1) to appeal or take action in cases, including a criminal appeal; 2) to communicate with her
clients; 3) to appear before this Court as ordered; 4) to return an unearned fee; and 4) to
28
The LDB attempts to distinguish Conner and Hollandsworth due to the HPS in the
instant matter finding that Ms. Sturm’s conduct was negligent instead of intentional, that
“there is no evidence . . . [Ms. Sturm] failed to abide by a court Order,” and that several
mitigating factors are present in this case, which were not present in either Connor or
Hollandsworth. We find the LDB’s argument unpersuasive.
29
comply with ODC’s requests for information. See 234 W. Va. at 27-29, 769 S.E.2d at 650­
52. As a result of the ethical violations in Conner, the HPS further found:
the remorse shown by Ms. Conner during the disciplinary
proceedings constituted a mitigating factor. Conversely, several
aggravating factors also were present. Ms. Conner’s propensity
to ignore requests from the ODC and this Court, Ms. Conner’s
substantial experience in the practice of law, Ms. Conner’s
exhibition of a pattern and practice of misconduct by failing to
communicate with her clients and failing to diligently pursue
cases on behalf of her clients, and Ms. Conner’s prior
disciplinary proceedings constituted aggravating factors.
Id. at 34, 769 S.E.2d at 657. The HPS recommended as a sanction a thirty-day suspension
from the practice of law, in addition to requiring a refund of a retainer fee, imposing a two-
year period of supervisory practice, and requiring reimbursement to the LDB the costs of the
proceeding. Id. at 654, 769 S.E.2d at 31. This Court found that Ms. Connor’s conduct
warranted more than a thirty-day suspension and increased the length of her suspension to
ninety days. Id. at 658, 769 S.E.2d at 35.
Likewise, in Lawyer Disciplinary Board v. Richard W. Hollandsworth, No. 14­
0022 (W. Va. Sept. 18, 2014) (unreported order), Mr. Hollandsworth was suspended for
ninety days after being appointed to represent a client in a habeas matter and failing to
contact his client, even after being ordered to do so. The client sought to have new counsel
appointed and when the circuit court failed to do so, the client filed a writ of mandamus with
this Court. We granted the writ, directed the circuit court to appoint new counsel and
30
directed the Clerk of this Court to refer Mr. Hollandsworth to the ODC for his “lack of
diligence” in the case. In Hollandsworth, the HPS found many of the same professional
conduct violations that are present in the instant case. Specifically, the HPS found that Mr.
Hollandsworth “failed to pursue” his client’s petition for habeas corpus, failed to
communicate with his client, failed to keep his client informed about the status of his case,
and “failed in his responsibility as a court appointed attorney to represent his client
diligently[.]”
Consequently, based on all the foregoing, we find that a ninety-day suspension
from the practice of law is an appropriate sanction. In determining the appropriate sanction
for Ms. Sturm, we are guided by the principles set forth in syllabus point seven of Jordan:
“‘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.’ Syllabus Point 3, Committee on Legal Ethics
v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).” Syl. Pt. 5,
Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382
S.E.2d 313 (1989).
204 W. Va. at 497, 513 S.E.2d at 724, Syl. Pt. 7. The totality of Ms. Sturm’s conduct
warrants more than a reprimand, especially in the light of the ineffectiveness of the two
admonishments that she already has received in other cases with similar conduct. Therefore,
31
we impose a ninety-day suspension from the practice of law and adopt the remaining
recommendations made to this Court by the HPS.
IV. CONCLUSION
For the foregoing reasons, we impose the following sanctions: 1) that Ms.
Sturm’s law license be suspended for a period of ninety days pursuant to Rule 3.15 of the
West Virginia Rules of Lawyer Disciplinary Procedure;29 that following Ms. Sturm’s
suspension, her practice be supervised for a period of two years by an attorney agreed upon
between the ODC and Ms. Sturm; that Ms. Sturm meet with her supervising attorney every
two weeks with the goal of the supervised practice being to improve the quality and
effectiveness of her law practice to the extent that her sanctioned behavior is not likely to
recur; that Ms. Sturm refund the $5,000 retainer fee to Ms. Wright-Ochoa immediately; and
that prior to being automatically reinstated, pursuant to Rule 3.15, Ms. Sturm pay the costs
of the disciplinary proceeding in the Wright-Ochoa/Brown case and the Greynolds case.
Law License Suspended and Other Sanctions.
29
As Ms. Sturm’s suspension will be for “a period of three months,” she is subject to
being automatically reinstated pursuant to the provisions of Rule 3.31 of the West Virginia
Rules of Disciplinary Procedure.
32