Lawyer Disciplinary Board v. Ronald S. Rossi , 234 W. Va. 675 ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
FILED
_______________ February 5, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Nos. 13-0508 & OF WEST VIRGINIA
13-1148
_______________
LAWYER DISCIPLINARY BOARD,
Petitioner
v.
RONALD S. ROSSI,
A Member of the West Virginia State Bar,
Respondent
____________________________________________________________
Lawyer Disciplinary Proceeding
LAW LICENSE SUSPENDED AND OTHER SANCTIONS
____________________________________________________________
Submitted: January 13, 2015
Filed: February 5, 2015
Jessica H. Donahue Rhodes, Esq. Ronald S. Rossi, Esq.
Lawyer Disciplinary Counsel Martinsburg, West Virginia
Charleston, West Virginia Pro Se
Counsel for the Petitioner
JUSTICE KETCHUM 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 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.” Syllabus
Point 3, Committee on Legal Ethics of the West Virginia State Bar v. McCorkle, 192
W.Va. 286, 452 S.E.2d 377 (1994).
2. “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 of the West Virginia State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234(1987).
Justice Ketchum:
This is a consolidated lawyer disciplinary proceeding brought against
Ronald S. Rossi by the Office of Disciplinary Counsel (“the ODC”). The ODC instituted
two separate disciplinary proceedings against Mr. Rossi after six of his former clients
filed ethics complaints against him. A Hearing Panel Subcommittee of the Lawyer
Disciplinary Board (“Board”) determined that Mr. Rossi committed multiple violations of
the West Virginia Rules of Professional Conduct, including (1) failing to act with
reasonable diligence and promptness in representing his clients, (2) failing to
communicate with his clients, (3) failing to return client files in a timely fashion, (4)
repeatedly failing to respond to the ODC’s requests for information, (5) failing to contact
the Lawyer Assistance Program after being directed to do so, (6) engaging in conduct that
was deceitful, and (7) engaging in conduct that was prejudicial to the administration of
justice. The Board recommended that Mr. Rossi be given two one-year suspensions from
the practice of law and recommended that the two one-year suspensions run concurrent to
each other. In effect, the Board recommends that Mr. Rossi be suspended from the
practice of law for one year.
Upon review, this Court finds that clear and convincing evidence exists to
support the Board’s finding that Mr. Rossi committed multiple violations of the West
Virginia Rules of Professional Conduct. However, we disagree with the Board’s
recommendation that an effective one-year suspension is sufficient discipline for the
substantial misconduct involved in this case. We find, instead, that Mr. Rossi’s
1
misconduct warrants a three-year suspension from the practice of law. We adopt the
Board’s remaining recommended sanctions in full and impose two additional sanctions.
I.
FACTUAL BACKGROUND & CHARGED VIOLATIONS
Mr. Rossi is a lawyer practicing in Martinsburg, West Virginia. He was
admitted to the West Virginia State Bar in October 1997. As such, Mr. Rossi is subject to
the disciplinary jurisdiction of this Court. Mr. Rossi faces two separate disciplinary
cases. The first case, no. 13-0508, was filed on May 20, 2013. The second case, no. 13­
1148, was filed on November 14, 2013. In sum, six separate complaints against Mr.
Rossi form the basis of the charges brought against him in these two consolidated cases.1
All six complaints were filed against Mr. Rossi while he maintained a solo law practice.
We begin by reviewing each of the six complaints.
A. Count 1 - The Williams Complaint
Hayden Williams paid Mr. Rossi $2,000.00 to represent him in a lawsuit
involving rental property. Mr. Williams alleged that he was not receiving rental monies
due to him. Further, Mr. Williams was attempting to regain possession of the rental
property. Because Mr. Williams was unable to collect rent on the subject property during
1
The charges in case no. 13-0508 resulted from five separate complaints filed
against Mr. Rossi. The charges in case no. 13-1148 arose from one complaint filed
against Mr. Rossi.
2
the pendency of the lawsuit, he sought a speedy resolution of the case. However, when
Mr. Williams attempted to contact Mr. Rossi and obtain information about the progress
of his case, Mr. Rossi failed to communicate with him. Mr. Williams stated, “[W]e tried
every way that we could to contact him, unsuccessfully. We went to his office twelve,
fifteen times. We went there during the day. We went there in the afternoon. We
phoned and phoned and phoned and no answer.” Approximately ten months after he had
retained Mr. Rossi, Mr. Williams went to the Martinsburg courthouse and discovered that
Mr. Rossi had not filed a lawsuit on his behalf. Thereafter, Mr. Williams filed an ethics
complaint against Mr. Rossi with the ODC. Mr. Williams also sent a letter to Mr. Rossi,
firing him and requesting a return of all of the documents he had provided to Mr. Rossi,
as well as a refund of the $2,000.00 retainer.
The ODC sent a letter to Mr. Rossi on July 12, 2011, asking for a response
to Mr. Williams’s complaint. Mr. Rossi did not respond to the ODC. The ODC sent a
second letter to Mr. Rossi on August 10, 2011, again asking for a response to the
complaint. Mr. Rossi replied, by letter dated August 31, 2011, and admitted that he had
failed to communicate with Mr. Williams. Mr. Rossi’s letter further stated that he was
experiencing a “deep depression” and that he had started therapy. Mr. Rossi’s letter also
stated that he was seeking employment “where I would not have to deal with issues
related to running a business and practicing law,” but had failed to obtain such
employment.
3
Mr. Rossi subsequently refunded the $2,000.00 retainer to Mr. Williams.
However, Mr. Rossi failed to return the client file to Mr. Williams. The ODC sent two
letters to Mr. Rossi instructing him to return the client file to Mr. Williams.2 Mr.
Williams hired another attorney who filed a lawsuit on his behalf and resolved his rental
property issue within two months. Mr. Williams stated that Mr. Rossi’s failure to file the
lawsuit resulted in him losing approximately $7,000.00 in rental income.
The Board determined that Mr. Rossi failed to diligently work on Mr.
Williams’s case and failed to communicate with Mr. Williams about his case in violation
of Rules 1.3,3 1.4(a) and 1.4(b)4 of the Rules of Professional Conduct. Further, the Board
found that Mr. Rossi violated Rule 1.16(d)5 of the Rules of Professional Conduct by
failing to return Mr. Williams’s client file. Finally, the Board found that Mr. Rossi
2
Mr. Rossi failed to respond to the ODC’s first letter instructing him to return the
client file.
3
Rule 1.3 of the Rules of Professional Conduct provides that “[a] lawyer shall act
with reasonable diligence and promptness in representing a client.”
4
Rules 1.4(a) and 1.4(b) of the Rules of Professional Conduct are as follows: “(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.”
5
Rule 1.16(d) of the Rules of Professional Conduct states, 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[.]”
4
violated Rule 8.1(b)6 by failing to follow a directive issued by the Investigative Panel of
the Lawyer Disciplinary Board7 and by failing to respond to correspondence from the
ODC.
B. Count 2 – The Pike Complaint
Jon A. Pike retained Mr. Rossi to represent him in a “lemon law” case. Mr.
Pike filed a complaint against Mr. Rossi with the ODC on August 22, 2011, alleging that
Mr. Rossi had failed to communicate with him about his case. After receiving Mr. Pike’s
complaint, the ODC directed Mr. Rossi to communicate with Mr. Pike within ten days.
6
The relevant portion of Rule 8.1(b) of the Rules of Professional Conduct
provides:
[A] lawyer in connection with . . . a disciplinary
matter, shall not: . . .
(b) fail to disclose a fact necessary to correct a
misapprehension known by the person to have arisen in the
matter, or knowingly fail to respond to a lawful demand for
information from an admissions or disciplinary authority[.]
7
On December 14, 2012, the Investigative Panel issued an admonishment to Mr.
Rossi for violations of Rules 1.3, 1.4(a), 1.4(b) and 8.1(b) of the Rules of Professional
Conduct in connection with his representation of Mr. Williams. The Panel also directed
Mr. Rossi to report his depression issues to the Lawyer Assistance Program and verify
that he had done so within thirty days. Mr. Rossi failed to comply with this directive.
Due to this failure, the ODC sent Mr. Rossi a letter directing him to contact the Lawyer
Assistance Program and to provide verification that he had done so by February 11, 2013.
Mr. Rossi did not respond to this letter. The ODC sent Mr. Rossi a second letter
requesting verification that he had contacted the Lawyer Assistance Program. Again, Mr.
Rossi failed to respond to the ODC. Because Mr. Rossi failed to respond to the
Investigative Panel’s directive, the ODC prepared a motion to reopen the Williams
complaint, which was granted by the Investigative Panel.
5
Mr. Rossi complied with this directive. However, Mr. Pike filed a second complaint
against Mr. Rossi on September 26, 2012, alleging that Mr. Rossi had again failed to
respond to his telephone calls, text messages and emails for over two months. Mr. Pike
requested that Mr. Rossi return all of the records relating to the case to him. Mr. Pike
subsequently obtained a new lawyer who promptly settled his “lemon law” case. Mr.
Pike described the harm he suffered as a result of Mr. Rossi’s failure to communicate
with him and failure to diligently work on his case as follows:
Well, it’s frustration more than anything, with the car dealer
and with the legal system taking a long time and not knowing
what’s going on. . . . There was a lot of frustration. There
was a lot of my own time and leg work that I put in trying to
resolve the case. I have no knowledge of the legalities and so
that’s why, you know, I got a lawyer. Besides frustration and
time, and there is a possibility of financial losses, yeah, but it
was frustrating more than anything else.
The ODC sent a letter to Mr. Rossi, requesting a response to the allegations
contained in Mr. Pike’s September 26, 2012, complaint. Mr. Rossi did not respond to the
ODC’s request. The ODC sent two additional letters to Mr. Rossi (in January 2013 and
February 2013), requesting a response to Mr. Pike’s complaint. Mr. Rossi did not
respond to either of these ODC letters.
The Board determined that Mr. Rossi violated Rules 1.3 (duty to act with
reasonable diligence, see footnote 3, supra) and 1.4(a) (duty to keep the client reasonably
informed, see footnote 4, supra) in connection with his representation of Mr. Pike.
Further, the Board found that Mr. Rossi’s numerous failures to respond to the ODC
constituted a violation of Rule 8.1(b) (see footnote 6, supra).
6
C. Count 3 – The Edwards Complaint
Steven Edwards paid Mr. Rossi $1,500.00 on April 20, 2011, to represent
him in a divorce matter. Mr. Edwards filed a complaint against Mr. Rossi with the ODC
on February 3, 2012, alleging that Mr. Rossi had failed to take any action in his case and
that Mr. Rossi had failed to communicate with him about the case. Prior to filing his
complaint with the ODC, Mr. Edwards sent Mr. Rossi the following email in December
2011:
I wrote you a check for the amount of $1,500.00 on
April 20, 2011 as you requested for a retainer fee. You have
not provided any services for me yet. I have left numerous
messages on your cell and business phones and you refuse to
return my calls. I have never heard of a divorce taking 9
months, especially when we [Mr. Edwards and his spouse]
already have an agreement wrote up and there is nothing to
contest. I requested a refund via a phone message and again I
have not heard from you. I need this refund so I can hire
someone who will provide this service for me. If I don’t hear
from you by tomorrow evening I am filing a complaint with
the WV State Bar Association.
After receiving Mr. Edwards’s complaint, the ODC sent letters to Mr. Rossi
in February and March 2012, requesting that he respond to the complaint. Mr. Rossi
failed to respond to the ODC’s February and March letters. Mr. Rossi eventually
responded to Mr. Edwards’s complaint by letter dated May 1, 2012, stating that he had
worked on the case and that he met with Mr. Edwards on several occasions. Despite his
assertion that he had performed work on the case, Mr. Rossi agreed to refund the
$1,500.00 retainer fee to Mr. Edwards.
7
On December 14, 2012, the Investigative Panel of the Board issued Mr.
Rossi an admonishment for failing to respond to the ODC’s repeated requests that he
respond to Mr. Edwards’s complaint, in violation of Rule 8.1(b) of the Rules of
Professional Conduct (see footnote 6, supra).8
D. Count 4 – The Ashby Complaint
Jeanette Renee Ashby filed a complaint against Mr. Rossi on June 7, 2012.
Ms. Ashby stated that she retained Mr. Rossi to represent her son who had been charged
with DUI second offense, possession with intent to distribute, and malicious battery and
assault. Ms. Ashby claimed that she paid Mr. Rossi a $1,500.00 retainer fee. Ms.
Ashby’s complaint states that Mr. Rossi failed to attend her son’s DUI second offense
hearing and that her son had to represent himself at this hearing. The complaint further
states that Ms. Ashby had difficulty contacting Mr. Rossi and that she eventually had to
hire a different lawyer to represent her son. The complaint concludes with Ms. Ashby
asking for a refund of the $1,500.00 she paid to Mr. Rossi.
The ODC forwarded Ms. Ashby’s complaint to Mr. Rossi and requested a
response. Mr. Rossi responded to the allegations, stating that he did not receive notice of
the DUI hearing, but asserted that the charge was resolved at a later hearing that he had
8
While Mr. Rossi was initially given an admonishment in the Edwards complaint,
the complaint was subsequently reopened after Mr. Rossi failed to follow the directive of
the Investigative Panel to report to the Lawyer Assistance Program (see footnote 7,
supra).
8
attended. Mr. Rossi also stated that he worked approximately 20.5 hours on the Ashby
case.
Ms. Ashby responded to Mr. Rossi’s reply and reiterated her original
allegations. She also informed the ODC that she had participated in a fee dispute
mediation in which Mr. Rossi agreed to refund $300.00 to her. After receiving this reply
from Ms. Ashby, the ODC wrote to Mr. Rossi, asking him if he had refunded $300.00 to
Ms. Ashby and if so, asking why he agreed to this refund. Mr. Rossi failed to respond to
the ODC’s request. The ODC sent a second letter to Mr. Rossi inquiring about the
$300.00 refund. Once again, Mr. Rossi failed to respond to the ODC’s request.
Because of his failure to respond to the ODC’s requests, the Board found
that Mr. Rossi violated Rule 8.1(b) of the Rules of Professional Conduct (see footnote 6,
supra).
E. Count 5 – The Vogtman Complaint
Roxanne Coburn Vogtman filed a complaint on behalf of her father,
Jennings B. Coburn, Sr., with the ODC on August 8, 2012, alleging that Mr. Rossi had
failed to communicate with her father and had failed to take any action in his case. Ms.
Vogtman stated that Mr. Coburn sustained a brain injury after slipping and falling on ice
in front of a grocery store in February 2010. After her father retained Mr. Rossi to file a
lawsuit on his behalf, Ms. Vogtman alleged that Mr. Rossi performed sparse work on the
case and that he did not respond to Mr. Coburn’s attempts to communicate with him.
Upon learning that Mr. Rossi was not communicating with her father and was not
9
returning his phone calls, Ms. Vogtman placed a call to Mr. Rossi’s office and left a
voicemail message under the guise of being a new client. Mr. Rossi returned Ms.
Vogtman’s phone call within five minutes. After informing him that she was Mr.
Coburn’s daughter, Ms. Vogtman asked Mr. Rossi why he was not communicating with
her father about his case. Ms. Vogtman alleges that Mr. Rossi responded by telling her
that he had been busy and had been on vacation. Ms. Vogtman also asked Mr. Rossi if he
had filed the lawsuit on behalf of her father and he told her that he had not. Mr. Coburn
subsequently fired Mr. Rossi in June 2012, and requested that Mr. Rossi return his client
file.
The ODC forwarded Ms. Vogtman’s complaint to Mr. Rossi by letter dated
August 10, 2012, requesting a response to her allegations. Mr. Rossi did not respond.
The ODC sent a second letter requesting a response on September 24, 2012. Mr. Rossi
responded to this letter, stating that he had performed work on the case and had
communicated with Mr. Coburn. The ODC sent Mr. Rossi letters in January and
February of 2013, requesting that he explain what actions he had taken on Mr. Coburn’s
behalf over the two years that he allegedly worked on his case. Mr. Rossi did not
respond to either of these requests.
The Board determined that Mr. Rossi failed to work on Mr. Coburn’s case
and failed to communicate with Mr. Coburn about his case, in violation of Rules 1.3,
1.4(a) and 1.4(b) of the Rules of Professional Conduct (see footnotes 3 and 4, supra).
Further, the Board found that Mr. Rossi violated Rule 1.16(d) by failing to promptly
10
return Mr. Williams’s client file (see footnote 5, supra). Finally, the Board found that
Mr. Rossi violated Rule 8.1(b) by failing to respond to requests for information from the
ODC (see footnote 6, supra).
F. Count 6 – The Davis Complaint (case no. 13-1148)
Glenn R. Davis is the Chief Executive Officer of Comverge, Inc., a
telecommunications firm located in Virginia Beach, Virginia. Comverge, Inc. was
named as a co-defendant in a lawsuit filed in Jefferson County, West Virginia.9 Mr.
Davis retained Mr. Rossi to represent Comverge, Inc. on February 22, 2012, and paid him
a retainer of $1,500.00. Mr. Rossi told Mr. Davis that he would be filing a motion to
dismiss on behalf of Comverge, Inc. and that he would keep Mr. Davis updated on the
status of the lawsuit. Mr. Davis testified that Mr. Rossi told him “he had done a lot of
research [on the case and] had filed stuff” on Comverge, Inc.’s behalf.
On April 25, 2012, the circuit court entered a default judgment against
Comverge, Inc. The circuit court’s order states, “Comverge, Inc. has not appeared, or
filed a Responsive Pleading or filed an Answer or in any other manner appeared to
defend this matter. . . . George Street, LLC is hereby granted Judgment against
Comverge, Inc. in the amount of $30,000.00[.]”
9
The lawsuit was styled CSC Leasing Company v. 201 North George Street, LLC
and Comverge, Inc., civil action no. 10-C-451.
11
After Mr. Davis became aware that the circuit court had entered this order,
he called the Jefferson County clerk’s office and was informed that Mr. Rossi had not
filed any motions on Comverge Inc.’s behalf and had made no appearance of counsel in
the matter. Mr. Davis’s complaint to the ODC described his attempts to contact Mr.
Rossi after receiving a copy of the default judgment order:
[S]ince April 25, 2012, I have only been able to reach Mr.
Rossi once on the week of May 7, 2012. At that time, Mr.
Rossi informed my assistant that he was traveling, but was
back into town. He stated that he was going to look into the
summary judgment and call us back the following day. He
failed to do so, and we have placed over 50 emails and calls
to Mr. Rossi since then with no response from him or anyone
in his office.
On August 5, 2013, Mr. Davis filed a complaint against Mr. Rossi with the
ODC. The ODC forwarded the complaint to Mr. Rossi in August 2013 and asked him to
respond to the charges. Mr. Rossi did not respond. The ODC sent a second letter to Mr.
Rossi in September 2013, again asking for a response. Mr. Rossi did not respond to the
ODC’s September letter.
The Board determined that Mr. Rossi failed to work on Mr. Davis’s case
and failed to communicate with Mr. Davis about his case, in violation of Rules 1.3,
1.4(a) and 1.4(b) of the Rules of Professional Conduct (see footnotes 3 and 4, supra).
Further, the Board found that Mr. Rossi violated Rule 3.210 by engaging in “dilatory
10
Rule 3.2 of the Rules of Professional Conduct states, “[a] lawyer shall make
reasonable efforts to expedite litigation consistent with the interest of the client.”
12
practices and failing to make reasonable efforts consistent with Mr. Davis’ objective.”
The Board found that Mr. Rossi violated Rule 8.1(b) by failing to respond to requests for
information from the ODC (see footnote 6, supra). Finally, the Board found that Mr.
Rossi violated Rule 8.4(c) and 8.4(d)11 by falsely informing Mr. Davis “on his work and
intent in the case.”
G. Disposition of Disciplinary Proceedings
Based on the six complaints filed against Mr. Rossi, the Board found that
he committed multiple rule violations including his failure to (1) communicate with
clients, (2) keep his clients reasonably informed about their cases, (3) act diligently in
representing his clients, (4) respond to the ODC’s requests for information, and (5)
follow a directive issued by the Investigative Panel of the Lawyer Disciplinary Board.
Mr. Rossi appeared at a hearing the Board held on the six complaints filed against him
and acknowledged that he had violated the Rules of Professional Conduct.12 Mr. Rossi
also expressed remorse for committing these rule violations and stated, “I know that I
failed as a sole practitioner. I know that I did, and that’s nobody’s fault but mine.”
11
Rule 8.4(c) and 8.4(d) of the Rules of Professional Conduct states, “[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.”
12
Mr. Rossi did not generally dispute the allegations contained in the complaints
of Hayden Williams, Jon Pike, Steven Edwards or Glenn Davis. Mr. Rossi did, however,
dispute the allegations contained in the complaints of Jeanette Ashby and Roxanne
Vogtman.
13
In considering the punishment to be imposed, the Board found that Mr.
Rossi violated duties to his clients, to the legal system and to the legal profession.
Further, the Board found that Mr. Rossi acted intentionally and knowingly, and that the
amount of injuries he caused was great.
Based on its findings, the Board recommended the following sanctions: (1)
that Mr. Rossi be suspended from the practice of law for one year based on his violations
in case no. 13-0508, and one year for his violations in case no. 13-1148, with both
suspensions running concurrent to each other; (2) that he be required to petition for
reinstatement; (3) that, upon reinstatement, his practice be supervised for one year; (4)
that he complete an additional nine hours of CLE in the area of ethics and office
management prior to reinstatement; (5) that upon reinstatement, he remain on probation
for a one-year period; and (6) that he pay the costs of the disciplinary proceedings.
Mr. Rossi objected to the Board’s recommended sanctions. Thereafter, this
Court placed the matter on the argument docket and ordered the Lawyer Disciplinary
Board and Mr. Rossi to file briefs. The Lawyer Disciplinary Board filed its brief on
September 4, 2014. Though ordered to do so by this Court, Mr. Rossi failed to file a
brief.
II.
STANDARD OF REVIEW
In Committee on Legal Ethics of the West Virginia State Bar v. McCorkle,
192 W.Va. 286, 289, 452 S.E.2d 377, 380 (1994), this Court took the opportunity to
14
“resolve any doubt as to the applicable standard of judicial review” in lawyer disciplinary
cases. Syllabus Point 3 of McCorkle holds:
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.
The above standard of review is consistent with this Court’s ultimate
authority with regard to legal ethics matters in this State. Syllabus Point 3 of Committee
on Legal Ethics of the West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671(1984), states: “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.”
Rule 3.7 of the West Virginia Rules of Lawyer Disciplinary Procedure
provides that, in order to recommend the imposition of discipline of a lawyer, “the
allegations of the formal charge must be proved by clear and convincing evidence.” See
also Syllabus Point 2, Lawyer Disciplinary Bd. v. Cunningham, 195 W.Va. 27, 464
S.E.2d 181 (1995). The various sanctions which may be recommended to this Court are
set forth in Rule 3.15. It states:
15
A Hearing Panel Subcommittee may recommend or
the Supreme Court of Appeals may impose any one or more
of the following sanctions for a violation of the Rules of
Professional Conduct . . . (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.
In devising suitable sanctions for attorney misconduct, we have recognized
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).
III.
ANALYSIS
The ODC urges this Court to accept the sanctions recommended by the
Board. The ODC asserts that the recommended sanctions will not only punish Mr. Rossi,
but will also serve as an effective deterrent to other members of the State Bar and restore
public confidence in the ethical standards of the legal profession.
As this Court has explained, the ODC is required “to prove the allegations
of the formal charge by clear and convincing evidence.” Syllabus Point 1, in part, Lawyer
Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995). Further, once the
Board makes its factual findings, they are afforded substantial deference. See Syllabus
16
Point 3, McCorkle, 192 W.Va. 286, 452 S.E.2d 377. The record supports both the factual
findings and rule violations as set forth by the Board. While we agree with the factual
findings and rule violations found by the Board, we disagree with the recommended
sanctions and will exercise our own independent judgment in fashioning the appropriate
discipline. See Syllabus Point 3, McCorkle.
In considering the appropriate sanctions to impose, we are guided by the
well-settled principles that
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 [West Virginia
Supreme Court of Appeals] or [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.”
Syllabus Point 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513
S.E.2d 722 (1998).13 We proceed to consider the four factors contained in Rule 3.16.
13
We are also mindful of this Court’s holding in Syllabus Point 3 of 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.”
17
1. Duties Owed to Clients, the Public, the Legal System, or the Profession
First, we consider whether Mr. Rossi violated a duty owed to a client, to the
public, to the legal system, or to the profession. The record overwhelmingly
demonstrates that Mr. Rossi’s actions violated duties to his clients, to the legal system
and to the legal profession.
Mr. Rossi repeatedly violated duties to his clients by failing to
communicate with them and by failing to diligently work on their cases. Mr. Rossi’s
repeated failure to communicate with his clients caused them considerable time, stress
and energy in attempting to simply speak with their lawyer. Mr. Rossi acknowledged this
failure, stating “I don’t have a defense for not responding to Mr. Williams. I don’t have
one. I should have. You know, the same thing with Mr. Edwards. I don’t have – I should
have [responded to him].”
In addition to failing to communicate with his clients, the record
demonstrates that Mr. Rossi performed little, if any, work in the cases of the six
complainants herein. For instance, despite telling Mr. Davis that he was going to file a
motion to dismiss, Mr. Rossi not only failed to file this motion, he failed to enter a notice
of appearance in the case, resulting in a default judgment being entered against Mr.
Davis’s company. Similarly, Mr. Rossi failed to file a lawsuit on Mr. Williams’s behalf,
costing Mr. Williams a substantial amount of rental income fees his property could have
generated. Further, after being paid a retainer fee by Mr. Pike and Mr. Edwards, Mr.
Rossi’s inaction caused both of these clients to fire Mr. Rossi after extended time periods
18
had passed without any progress occurring in their cases. After repeated attempts at
contacting Mr. Rossi, both Mr. Pike and Mr. Edwards fired Mr. Rossi, demanded refunds
of their retainer fees and were forced to obtain new counsel to handle their respective
cases.
Next, we find that Mr. Rossi violated duties to the legal system and the
legal profession. Mr. Davis, the CEO of Comverge, Inc., a company located in Virginia,
retained Mr. Rossi to represent his company in West Virginia. Mr. Davis stated that after
his experience with Mr. Rossi he felt “taken advantage of” and was left with a bad
impression of the West Virginia judicial system. Similarly, Mr. Williams testified that
his experience with Mr. Rossi left him with a negative opinion of lawyers: “You don’t
know whether they’re crooks or not. You don’t know whether they’re working for you or
somebody else.” Mr. Edwards was also left with a negative opinion of lawyers because
of Mr. Rossi, stating that he has a “lack of trust” with the legal profession.
Mr. Rossi violated a duty to the legal system by repeatedly failing to
respond to the ODC. Mr. Rossi failed to respond to twenty-three letters the ODC sent
him regarding the six complaints herein. Similarly, he failed to follow the Investigative
Panel’s directive that he contact the Lawyer Assistance Program to address his depression
issue. He also failed to comply with this Court’s order that he file a brief in this matter.
2. Whether the lawyer acted intentionally, knowingly, or negligently
Second, we review the degree of intransigence in Mr. Rossi’s actions.
Specifically, we must determine whether Mr. Rossi’s actions were intentional, knowing,
19
or negligent in nature. The Board found, and we agree, that Mr. Rossi acted intentionally
and knowingly. Mr. Rossi intentionally failed to communicate with his clients and failed
to perform work in their cases. In one case, the Davis complaint, Mr. Rossi intentionally
lied to Mr. Davis, telling him that he was working on his case and was going to file a
motion to dismiss when, in fact, Mr. Rossi did not enter a notice of appearance and did
not perform any work in the case, resulting in a default judgment order being entered
against Comverge, Inc. Further, Mr. Rossi acknowledged that he intentionally failed to
respond to repeated requests for information from the ODC. The record is clear that Mr.
Rossi acted intentionally and knowingly.
3. The Amount of Real or Potential Injury
Third, we examine the amount of real injury or potential injury. We find
that Mr. Rossi created real injuries by failing to communicate with his clients and by
failing to perform work in their cases. For instance, Mr. Williams testified that he lost
approximately $7,000.00 in rental fees that he could have received if Mr. Rossi had
diligently worked on his case and resolved it in a reasonable amount of time. Ten months
after Mr. Williams retained Mr. Rossi, he discovered that Mr. Rossi had not filed a
lawsuit on his behalf. Additionally, Mr. Davis’s company suffered a potentially
significant financial injury when Mr. Rossi failed to appear or perform any work in that
20
case, resulting in a default judgment order being entered against the company in the
amount of $30,000.00.14
In addition to these financial injuries, each of the six complainants herein
stated that Mr. Rossi’s failure to communicate with them and to diligently work on their
cases caused considerable aggravation and frustration. Mr. Pike testified that he had “a
lot of frustration” with Mr. Rossi’s failure to diligently work on his case. Mr. Pike stated,
“There was a lot of my own time and leg work that I put in trying to resolve the case.”
Mr. Williams was also forced to put in his own time and leg work to resolve his case.
After his repeated attempts to communicate with Mr. Rossi failed, he went to the
Martinsburg courthouse to check on the status of his case. Once at the courthouse, Mr.
Williams discovered that Mr. Rossi had not filed a lawsuit on his behalf.
14
Mr. Davis testified that his company, Comverge, Inc., was in the process of
closing when the default judgment order was entered. When asked by counsel for the
ODC whether Comverge, Inc. had paid the $30,000.00 default judgment award, Mr.
Davis testified:
No, ma’am. That was the conversation I had with subsequent
counsel that I had had, and their thought was because we
were in the process of closing down Comverge and because
of the cost to basically go through this process to have that
removed and argued that it may better to just let it sit. And if
it became an issue or tried – was enforced, then maybe it’s
worth spending the money to go out there and have it fixed,
but in their [subsequent counsel’s] opinion it wasn’t worth it
at that time. . . . So I’m still sitting out there with a
$30,000.00 judgment that, in my opinion, should have never
been filed to begin with.
21
The record is clear that Mr. Rossi’s violations caused real, significant
injuries.
4. Aggravating or Mitigating Factors
We next consider whether any aggravating or mitigating factors are present.
This Court has held that “[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.” Syllabus Point 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d
550 (2003).
The Board found the following aggravating factors are present: (1) a pattern
of misconduct, (2) multiple offenses, and (3) substantial experience in the practice of law.
We agree with the Board that these three aggravating factors are present.
The six complaints demonstrate that Mr. Rossi had a pattern of failing to
communicate with his clients and failing to diligently work on their cases. In the
Standards for Imposing Lawyer Sanctions, the American Bar Association has recognized
a “pattern of misconduct” as an aggravating factor in a lawyer disciplinary proceeding.
See In re LeBlanc, 713 So.2d 449 (La. 1998) (pattern of misconduct was aggravating
factor causing lawyer’s suspension); Matter of Disciplinary Proceedings Against Dann,
136 Wash.2d 67, 960 P.2d 416 (1998) (pattern of misconduct was aggravating factor in
lawyer’s suspension). Next, there is no dispute that Mr. Rossi committed multiple
violations of the Rules of Professional Conduct.
22
Finally, we note that substantial experience is deemed to be an aggravating
factor, while lack of experience as a lawyer is considered to be a mitigating factor. This
distinction is made in recognition of the fact that “a youthful and inexperienced attorney
may have [engaged in misconduct] as a result of inexperience rather than as a result of
deliberate calculation.” In re Brown, 166 W.Va. 226, 235, 273 S.E.2d 567, 572 (1980).
Mr. Rossi was admitted to the practice of law in this state in 1997. At the time of his
misconduct, he had been practicing law for over ten years. Thus, Mr. Rossi had
substantial experience as a lawyer and the Board correctly found this to be an aggravating
factor.
We next consider whether any mitigating factors are present. We have
previously 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.” Syllabus Point 2, Scott, supra. In Syllabus Point 3 of Scott, we further
explained:
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.
23
The Board found the following mitigating factors are present: (1) absence
of a dishonest or selfish motive; and (2) remorse. We agree with the Board’s finding that
Mr. Rossi expressed remorse for his misconduct. During his testimony before the Board,
Mr. Rossi acknowledged that he was “not a good sole practitioner by any stretch of the
imagination.” He further acknowledged the harm he caused to Mr. Williams, Mr.
Edwards, Mr. Davis and Mr. Pike.
While we agree that Mr. Rossi showed remorse, we disagree with the
Board’s finding that there is an absence of a dishonest or selfish motive in this case. Mr.
Rossi lied to Mr. Davis when he told him that he was working on his case and was
preparing a motion to dismiss when, in fact, Mr. Rossi failed to even enter a notice of
appearance in the matter. Mr. Rossi has acknowledged this deceitful behavior. The
record is clear that Mr. Rossi was overwhelmed in his solo law practice. However, this
does not excuse lying to a client, nor does it excuse accepting retainer fees from clients
and then failing to perform work on their cases.
Another potential mitigating factor was raised by Mr. Rossi when he told
the ODC that his misconduct was caused, in part, by his depression. The Board found
that Mr. Rossi’s alleged depression was not a mitigating factor because Mr. Rossi did not
present any medical evidence supporting his contention that he suffered from depression
or that he sought treatment for this depression. This Court addressed this issue in
Syllabus Point 3 of Lawyer Disciplinary Bd. v. Dues, 218 W.Va. 104, 624 S.E.2d 125(2005), holding:
24
In a lawyer disciplinary proceeding, a mental disability
is considered mitigating when: (1) there is medical evidence
that the attorney is affected by a mental disability; (2) the
mental disability caused the misconduct; (3) the attorney’s
recovery from the mental disability is demonstrated by a
meaningful and sustained period of successful rehabilitation;
and (4) the recovery arrested the misconduct and recurrence
of that misconduct is unlikely.
Because Mr. Rossi failed to present any medical evidence demonstrating that he suffered
from depression, that the depression caused his misconduct, or that he sought treatment
for his depression, we agree with the Board’s finding that Mr. Rossi’s alleged depression
is not a mitigating factor in this case.
When weighing all of the factors to be considered in imposing sanctions,
we reject the Board’s finding that Mr. Rossi should be given an effective one-year
suspension from the practice of law. Mr. Rossi’s misconduct has caused considerable
financial harm to his clients and has caused them to have a “lack of trust” in our judicial
system. We find it troubling that Mr. Rossi’s misconduct in case no. 13-1148 occurred
after the disciplinary proceedings against him in case no. 13-0508 had begun. Further,
the volume of misconduct in these two cases—six separate complaints—supports our
finding that a one-year suspension is an insufficient sanction.
Mr. Rossi’s consistent failure to respond to the ODC in these matters and
his failure to contact the Lawyer Assistance Program after being directed to do so by the
Investigative Panel also weigh in favor of an increased sanction. Additionally, Mr. Rossi
failed to comply with this Court’s order that he file a brief in this matter. See Lawyer
Disciplinary Bd. v. Grindo, 231 W.Va. 365, 371, 745 S.E.2d 256, 262 (2013) (“[T]he fact
25
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.”).15 We find his failure
to follow this Court’s order especially egregious considering Mr. Rossi’s repeated
failures to respond to the ODC and to follow the Investigative Panel’s directive that he
report to the Lawyer Assistance Program.
Based on all of the foregoing, we find that a three-year suspension from the
practice of law is an appropriate sanction. Mr. Rossi was unresponsive to his clients in
these six matters and caused them real injuries. Further, his misconduct has negatively
affected the legal system and our legal profession’s reputation. This Court has previously
increased the recommended sanction in a lawyer disciplinary proceeding when a lawyer
failed to communicate with his clients, caused them to suffer financial harm, and failed to
respond to the ODC. See Lawyer Disciplinary Bd. v. Aleshire, 230 W.Va. 70, 79-80, 736
S.E.2d 70, 79-80 (2012) (The Court disagreed with the Board’s recommended 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].”).
15
On November 17, 2014, the ODC filed a motion to enhance Mr. Rossi’s
sanction due to his failure to file a brief in this matter. The ODC requested that Mr.
Rossi’s sanction “include additional time beyond the one year suspension” it had
previously recommended.
26
We believe that suspending Mr. Rossi’s law license for three years will
accomplish the goals of our disciplinary system by punishing Mr. Rossi, restoring public
confidence in the ethical standards of our profession and serving as a deterrent to other
members of the bar. See Lawyer Disciplinary Bd. v. Taylor, 192 W.Va. at 144, 451
S.E.2d at 445. (“Attorney 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.”).
In addition to suspending Mr. Rossi’s law license for three years and
adopting the other sanctions recommended by the Board, we impose two additional
sanctions. First, prior to filing a petition for reinstatement to the practice of law, Mr.
Rossi must provide the ODC with written documentation from a mental health provider
indicating that his depression is under control. We impose this sanction because Mr.
Rossi stated that many of his rule violations occurred because he was suffering from
depression. We note that despite being ordered to do so by a directive of the
Investigative Panel, Mr. Rossi failed to report his depression issues to the Lawyer
Assistance Program. The second additional sanction we impose is that Mr. Rossi make
full restitution to Mr. Davis if Comverge, Inc. is required to pay the default judgment
order that was entered against Comverge, Inc.16
16
See generally footnote 14, supra. While Mr. Davis testified that the $30,000.00
default judgment order had not been paid, he noted that if “it became an issue or was
enforced, then maybe it’s worth spending the money to go out there and have it fixed[.]”
(continued . . .)
27
IV.
CONCLUSION
For the foregoing reasons, we impose the following sanctions: (1) that Mr.
Rossi be suspended from the practice of law for three years; (2) that he be required to
petition for reinstatement; (3) that, upon reinstatement, his practice be supervised for one
year; (4) that he complete an additional nine hours of CLE in the area of ethics and office
management prior to reinstatement; (5) that upon reinstatement, Mr. Rossi will remain on
probation for a one year period; (6) that he pay the costs of the disciplinary proceedings;
(7) that prior to filing a petition for reinstatement to the practice of law, he provide the
ODC with written documentation from a mental health provider indicating that his
depression is under control; and (8) that he make full restitution to Mr. Davis if
Comverge, Inc. is required to pay the default judgment order that was entered against it.
Law license suspended and other sanctions imposed.
See Syllabus Point 4, Lawyer Disciplinary Bd. v. Ball, 219 W.Va. 296, 633 S.E.2d 241(2006) (“When this Court, in a lawyer disciplinary proceeding, issues an order that
requires an attorney to make restitution to his or her client, the order may be enforced in
two ways: (1) by the Office of Disciplinary Counsel seeking a contempt order from this
Court, or (2) through the prosecution of a separate lawsuit by the client or a duly
authorized representative of the client.”).
28