Lawyer Disciplinary Board v. John P. Sullivan , 230 W. Va. 460 ( 2013 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term FILED
____________ January 17, 2013
released at 3:00 p.m.
No. 12-0005 RORY L. PERRY II, CLERK
____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
v.
JOHN P. SULLIVAN,
Respondent
_________________________________________________
LAWYER DISCIPLINARY PROCEEDING
SUSPENSION AND OTHER SANCTIONS
___________________________________________________
Submitted: January 9, 2013
Filed: January 17, 2013
Renée N. Frymyer, Esq. John P. Sullivan, Esq.
Lawyer Disciplinary Counsel Charleston, West Virginia
Office of Disciplinary Counsel Pro Se
Charleston, West Virginia Respondent
Attorney for Petitioner
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS
“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.” Syllabus Point 3, Committee on Legal Ethics of the West
Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).
Per curiam:
This is a lawyer disciplinary proceeding brought against John P. Sullivan
by the Office of Disciplinary Counsel (“the ODC”) on behalf of the Lawyer Disciplinary
Board (“the Board”). The Respondent failed to communicate with and assist his client in
correcting a criminal sentencing order, and failed to respond to lawful requests for
information by the ODC. The Board found that the Respondent had violated the Rules of
Professional Conduct and recommended a number of sanctions, including that the
Respondent be reprimanded. We do not concur with the Board’s recommended
disposition.
I. Standard of Review
In 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), we made clear that “[t]his Court is
the final arbiter of legal ethics problems and must make the ultimate decisions about
public reprimands, suspensions or annulments of attorneys’ licenses to practice law.”
Attorney disciplinary proceedings are not designed solely to punish the attorney, but
rather to protect and reassure the public as to the reliability and integrity of lawyers
practicing law in this State, as well as to safeguard the public’s interest in the
administration of justice. See 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). See also Lawyer
Disciplinary Board v. Taylor, 192 W.Va. 139, 144, 451 S.E.2d 440, 445 (1994). We
1
have also made clear that we review de novo the adjudicatory record made before the
Hearing Panel Subcommittee of the Lawyer Disciplinary Board. While we give
substantial deference to the Board’s findings of fact when those findings are supported by
reliable, probative, and substantial evidence on the whole record, we ultimately exercise
our own independent judgment as to questions of law, questions of application of the law
to the facts, and questions of appropriate sanctions. See, e.g., Syllabus Point 3 of
Committee on Legal Ethics of the West Virginia State Bar v. McCorkle, 192 W.Va. 286,
289, 452 S.E.2d 377, 380 (1994).
II. Discussion
The Respondent, an assistant Kanawha County Public Defender, was
appointed to represent Anthony White in a criminal matter. On December 7, 2009, Mr.
White entered a guilty plea in the Kanawha County Circuit Court and was sentenced to a
1-5 year term of imprisonment. It took the circuit court approximately nine months to
enter a sentencing order. Shortly after entry of the sentencing order, Mr. White was
informed by the West Virginia Division of Corrections that his parole eligibility, based
on his sentencing order, would be October 1, 2011. Mr. White believed that the
sentencing order failed to accurately reflect his effective sentencing date, and that he was
actually supposed to be parole eligible on April 11, 2011—almost six months earlier than
the date given him by the Division of Corrections.
2
Mr. White, and members of Mr. White’s family, contacted the Respondent
and requested that he act to correct the sentencing order. The Respondent promised that
he would look into the issue. Hearing nothing from the Respondent, Mr. White and his
family made repeated efforts to contact the Respondent, leaving messages at the
Respondent’s office, and even leaving a message with one of the Respondent’s
supervisors. However, the Respondent did not respond to these inquires.
On August 16, 2011, Mr. White sent a notarized complaint to the ODC. In
the complaint Mr. White recited the failed efforts to get the Respondent to act on his
behalf. By letter dated August 26, 2011, the ODC sent the Respondent a copy of the
complaint and directed that he file a verified response within twenty days. The
Respondent did not respond. The ODC then mailed, by certified and first class mail, the
Respondent a second letter and copy of the complaint, and again directed that he file a
verified response within twenty days. The letter also warned the Respondent that if he
again failed to respond a subpoena might be issued to require his presence for a sworn
statement and that his failure to timely respond may also result in the allegations in Mr.
White’s complaint being deemed as admitted. The Respondent again failed to respond or
even contact the ODC.
On December 15, 2011, the ODC filed a formal Statement of Charges
alleging that the Respondent violated the Rules of Professional Conduct. Specifically,
the Respondent was charged with violating
3
Rule 1.3, which requires that a lawyer shall act with
reasonable diligence and promptness in representing a client;
Rule 1.4, which requires a lawyer to keep clients reasonably
informed of the status of their matter and to promptly respond
to reasonable requests for information, and to explain matters
to clients to the extent reasonably necessary to permit the
client to make informed decisions regarding the
representation; and
Rule 8.1(b), which makes it a violation of the Rules for a
lawyer, in connection with a disciplinary proceeding, to
knowingly fail to respond to a lawful demand for information
unless the information is otherwise protected by Rules 1.6
(requiring confidentiality of client information).
The Statement of Charges listed several aggravating factors, including that
the Respondent (1) had substantial experience in the practice of law, (2) had been
admonished on five separate occasions by the ODC for similar conduct, (3) had
demonstrated a pattern and practice of failing to adequately communicate with clients,
and (4) had demonstrated a pattern and practice of failing to respond to lawful requests
from the ODC.
On February 22, 2012, the Respondent filed an Answer admitting to each of
the charged violations. With regard to the violation of Rule 1.3, the Respondent admitted
that “Mr. White’s requests to [him] were delivered in writing and by phone calls both by
[him] and his family[.]” The Respondent further admitted that if he had “acted diligently,
a corrected sentencing order could have resulted in an earlier and correct parole date.”
Regarding the Rule 1.4 violation, the Respondent admitted that he originally told Mr.
4
White, and Mr. White’s father, that Mr. White’s parole eligibility date was correct, but
that he would check the court records to make sure. Despite this promise, the
Respondent admitted that he never checked the court records and that he thereafter
“failed to return numerous phone calls” from Mr. White and his family. The Respondent
also admitted that Mr. White and his family had contacted the Respondent’s supervisors
at the Public Defender’s Office, and that the Respondent assured his supervisors that he
would “handle the matter and communicate with Mr. White” but that he “never did so.”
Finally, regarding the Rule 8.1 violation, the Respondent stated that he
could “offer no justification or explanation” for his conduct, “especially in light of [his]
failure to properly respond to previous disciplinary complaints in a proper and timely
manner” and in light of his promises to Disciplinary Counsel in the prior cases that he
would thereafter timely respond to any future request for information by ODC. The
Respondent admitted that he had “failed to live up to those promises.”
After receiving the Respondent’s Answer, the ODC and Respondent
reached an agreement that stipulated to findings of fact, conclusions of law, and
recommendation as to discipline. The Respondent expressly acknowledged that this
Court was the final arbiter of what sanction might be appropriate, and that we are not
bound by the recommendations set forth in the stipulation. The stipulation was jointly
introduced into evidence before the Hearing Panel Subcommittee of the Lawyer
Disciplinary Board. The Hearing Panel Subcommittee accepted the stipulations, which
5
were incorporated into its Report and recommended sanctions filed with this Court.
Pursuant to the stipulated sanctions, it was recommended that the Respondent be
reprimanded, agree to a two year supervised practice of law, complete an additional nine
hours of Continuing Legal Education (CLE’s) in ethics and office management during the
2012-2014 reporting period, and pay the costs of the disciplinary proceeding against him.
Having considered all matters of record, we find the recommended
sanctions to be insufficient to protect and reassure the public as to the reliability and
integrity of lawyers practicing law in this State, as well as to safeguard the public’s
interest in the administration of justice. See Syllabus Point 3, Committee on Legal Ethics
of the West Virginia State Bar v. Walker, supra. The Respondent was previously
admonished, on five separate occasions, for similar conduct. In the last of these prior
offenses the Respondent pledged to the ODC, and to the Board, that he would be more
diligent in representing his clients. However, the record shows that at the same time he
was making this pledge, the Respondent was ignoring repeated requests from Mr. White
and Mr. White’s family to take that action necessary to correct a facially inaccurate
sentencing order. The Respondent admits that had he acted in the manner required of
him by the Rules of Professional Conduct, his client “would have been eligible for parole
at an earlier date.”
Based upon the record as a whole, there is no evidence that a sixth
admonishment, even in the heightened form of a public reprimand, would appropriately
6
sanction the respondent attorney, or that it would serve as an effective deterrent to other
members of the Bar or maintain public confidence in the ethical standards of the legal
profession. We also do not believe that supervised practice alone will be sufficient to
protect the public’s interest. The Respondent admits that even after one of his
supervising attorneys was made aware of Mr. White’s issue, and after he promised that
supervising attorney to be diligent in responding to Mr. White, he again failed to take any
action.
The Statement of Charges asserted that the Respondent had a pattern and
practice of failing to adequately communicate with his clients. The Respondent admitted
the accuracy of this assertion:
I cannot deny this pattern, especially with respect to
post-sentence cases. I do not put a high priority on post-
sentencing matters and tend to postpone working on them in
favor of the next hearing and the next trial. This is especially
true regarding sentence reconsideration motions. Even if I
explicitly tell a client that I will get something done by a
certain time, I will often fail to meet that deadline. In the case
of Mr. White and his father, I delayed to the point of not
responding to legitimate inquiries about the status of the case,
even when they were made through my supervisors.
While we appreciate the Respondent’s candor, and consider his candor to
be a mitigating factor, we do not believe that a reprimand and supervised practice will
have the coercive effect of breaking the Respondent’s pattern of failing to properly
communicate with his clients. The Respondent’s client, Mr. White, was deprived of an
7
opportunity to regain his freedom for approximately six months because of a facially
inaccurate commitment order. The Respondent acknowledges that the sentencing order
was facially inaccurate and capable of being easily corrected. However, he did nothing,
and his inaction resulted in his client suffering the very real injury of remaining
imprisoned six months longer than may have been required had the sentencing order been
corrected.
In fashioning a sanction, we have weighed all of the factors set forth in
Rule 3.16 of the Rules of Professional Responsibility, including the Respondent’s
extensive history of similar violations, and have carefully considered what might make
the Respondent more attentive to his clients and his ethical obligations toward those
clients. While the Respondent perceives a certain area of his practice to be mundane and
uninteresting, this is not an excuse for neglecting his clients who have a need for his legal
services. As Mr. White’s case starkly illustrates, what the Respondent perceived as
mundane was of significant importance to Mr. White—his very freedom was at issue.
We have also considered our duty to protect the public from the Respondent’s
subprofessional legal representation. Considering these and other factors, we believe that
the Respondent’s conduct warrants a suspension from the practice of law and other
sanctions, and that such sanctions are consistent with those imposed in other cases
involving, in part or whole, conduct similar to that at issue in this case. See, e.g., Lawyer
Disciplinary Board v. Simmons, 219 W.Va. 223, 632 S.E.2d 909 (2006) (twenty-day
suspension was warranted where respondent lawyer violated Rules 1.3 and 1.4 of the
8
Rules of Professional Conduct by failing to timely communicate with clients and keep
clients informed about the status of their matters).
III. Conclusion
Accordingly, the Respondent’s license to practice law is suspended for a
period of thirty days. The Respondent shall comply with the duties of a suspended
lawyer as outlined in Rule 3.28 of the Rules of Lawyer Disciplinary Procedure. Upon
reinstatement the Respondent shall (1) sign and follow a plan of supervised practice for a
period of two years with a supervising attorney of Respondent’s choice, conditioned on
the supervising attorney being approved by the ODC and the Respondent agreeing to
permit the supervising attorney to respond to inquiries by the ODC; (2) complete an
additional (over and above that already required) nine hours of continuing legal education
during the 2012-2014 reporting period, which additional hours shall be specifically in the
area of ethics and office management, and (3) pursuant to Rule 3.15 of the Rules of
Lawyer Disciplinary Procedure, pay the costs of this disciplinary proceeding.
Law license suspended and other sanctions imposed.
9