Lawyer Disciplinary Board v. Leah Perry Macia ( 2022 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2022 Term FILED
_______________
April 8, 2022
No. 20-0908 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner,
v.
LEAH PERRY MACIA,
A Member of the West Virginia State Bar,
Respondent.
____________________________________________________________
Lawyer Disciplinary Proceeding
LAW LICENSE SUSPENDED AND OTHER SANCTIONS IMPOSED
____________________________________________________________
Submitted: March 16, 2022
Filed: April 8, 2022
Rachael L. Fletcher Cipoletti, Esq. Timothy L. Mayo, Esq.
Chief Lawyer Disciplinary Counsel Jeffrey M. Wakefield, Esq.
Office of Lawyer Disciplinary Counsel Flaherty Sensabaugh Bonasso PLLC
Charleston, West Virginia Charleston, West Virginia
Counsel for Petitioner Counsel for Respondent
JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE MOATS, deeming himself disqualified, did not participate in the decision of
this case.
JUDGE KIRKPATRICK, sitting by temporary assignment.
JUSTICE WOOTON and JUDGE KIRKPATRICK dissent and reserve the right to file
dissenting Opinions.
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.” Syl. Pt. 3, Comm. on Legal Ethics
v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
2. “This Court is the final arbiter of legal ethics problems and must make
the ultimate decisions about public reprimands, suspensions or annulments of attorneys’
licenses to practice law.” Syl. Pt. 3, Comm. on Legal Ethics v. Blair, 174 W. Va. 494, 327
S.E.2d 671 (1984).
3. “Where there has been a final criminal conviction, proof on the record
of such conviction satisfies the Committee on Legal Ethics’ burden of proving an ethical
violation arising from such conviction.” Syl. Pt. 2, Comm. on Legal Ethics v. Six, 181 W.
Va. 52, 380 S.E.2d 219 (1989).
4. “In deciding on the appropriate disciplinary action for ethical
violations, this Court must consider not only what steps would appropriately punish the
respondent attorney, but also whether the discipline imposed is adequate to serve as an
i
effective deterrent to other members of the Bar and at the same time restore public
confidence in the ethical standards of the legal profession.” Syl. Pt. 7, in part, Off. of Law.
Disc. Coun. v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
5. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary
Procedure enumerates factors to be considered in imposing sanctions and provides as
follows: ‘In imposing a sanction after a finding of lawyer misconduct, unless otherwise
provided in these rules, the [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.’” Syl. Pt. 4, Off. of Law. Disc. Coun. v. Jordan, 204 W.
Va. 495, 513 S.E.2d 722 (1998).
6. “The general rule is that when a question has been definitively
determined by this Court its decision is conclusive on parties, privies and courts, including
this Court, upon a second appeal and it is regarded as the law of the case.” Syl. Pt. 1,
Mullins v. Green, 145 W. Va. 469, 115 S.E.2d 320 (1960).
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, Law. Disc. Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).
ii
8. “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, Law. Disc. Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).
9. “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,
Law. Disc. Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).
iii
ARMSTEAD, Justice:
This is a lawyer disciplinary proceeding brought against Leah Perry Macia
(“Ms. Macia”) by the Lawyer Disciplinary Board (“LDB”). The Office of Disciplinary
Counsel (“ODC”) and Ms. Macia entered an agreed stipulation providing that Ms. Macia
violated three rules of professional conduct. The parties also stipulated to the recommended
sanctions, which included that Ms. Macia’s law license would be suspended for one year
but that she would only serve ninety days of this suspension. The Hearing Panel
Subcommittee (“HPS”) recommended reducing the period of Ms. Macia’s actual
suspension from ninety days to thirty days. The HPS’s report did not explain why it
determined that the suspension should be reduced. The ODC filed an objection to the
HPS’s report, arguing that the agreed upon ninety-day suspension should be imposed.
Upon review, we agree with the ODC and order that Ms. Macia serve an
actual suspension of ninety days.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ms. Macia is a lawyer practicing in Charleston, West Virginia. She was
admitted to the West Virginia State Bar in 1998. As such, Ms. Macia is subject to the
disciplinary jurisdiction of this Court.
This Court addressed the misconduct giving rise to this lawyer disciplinary
proceeding in State v. McClanahan, No. 19-0944, 2020 WL 7231111 (W. Va. Dec. 7,
2020) (memorandum decision) (“McClanahan”). Ms. Macia, a public defender, appeared
in circuit court at a sentencing hearing on behalf of her client, Mr. McClanahan, who pled
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guilty to the felony offense of burglary. Ms. Macia requested that the circuit court impose
probation so that Mr. McClanahan could receive inpatient treatment at Prestera Treatment
Center. When pressed by the circuit court on whether “a guaranteed bed” was reserved for
her client at Prestera, Ms. Macia responded: “Yes, it is, your Honor.” Based on Ms.
Macia’s assurance that Mr. McClanahan had “a guaranteed bed,” the circuit court
suspended Mr. McClanahan’s prison sentence and placed him on probation.
Approximately one hour after the sentencing hearing, the circuit court’s
probation officer learned that Mr. McClanahan did not have “a guaranteed bed” at Prestera.
After making inquiries, the probation officer concluded that Prestera had not received a
referral from Ms. Macia. Upon learning this information, the circuit court revoked Mr.
McClanahan’s probation and reinstated the penitentiary sentence. Further, the court
directed Ms. Macia to appear and show cause why she should not be held in criminal
contempt.
During the hearing on the criminal contempt charge, the State presented the
testimony of several Prestera employees, establishing that Ms. Macia had not spoken to
anyone on the Prestera staff before assuring the circuit court that Mr. McClanahan had a
“guaranteed bed.” Ms. Macia testified on her own behalf and stated that Mr. McClanahan
raised the issue of rehabilitation immediately prior to the sentencing hearing and that she
relied on his representation that his mother had arranged for treatment. Ms. Macia also
testified that she called Prestera and was assured that Mr. McClanahan could enter the
program.
2
The circuit court found Ms. Macia in direct criminal contempt for stating that
there was a “guaranteed bed” at Prestera. Further, it found “Ms. Macia’s representations
‘reckless and irresponsible’ and found that they threatened to obstruct justice. The court
assessed a contempt fee of $50.00 and directed the circuit clerk to transmit the transcripts
of the contempt hearing and other relevant hearings to the Lawyer Disciplinary Board.”
McClanahan, 2020 WL 7231111, at *1. Ms. Macia appealed the circuit court’s order,
arguing that there was insufficient evidence that she intentionally misled the circuit court. 1
This Court rejected Ms. Macia’s argument and affirmed the circuit court’s ruling in
McClanahan.
Formal disciplinary charges were filed against Ms. Macia in November of
2020. In May of 2021, the ODC and Ms. Macia stipulated to the facts underlying her
misconduct and stipulated that she violated the following West Virginia Rules of
Professional Conduct: 1) knowingly making a false statement to a tribunal, in violation of
Rule 3.3(a)(1); 2 2) committing a criminal act that reflects adversely on the lawyer’s
1
Ms. Macia also argued that 1) the circuit court’s findings were insufficient to
support a contempt finding; 2) the circuit court erred by excluding notes she made around
the time of the sentencing hearing; and 3) the circuit court erred in excluding a letter
showing that Mr. McClanahan had been accepted into a different treatment program.
2
Rule 3.3(a) of the West Virginia Rules of Professional Conduct provides:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct
a false statement of material fact or law previously made to the tribunal by
the lawyer[.]
3
honesty, trustworthiness, or fitness, in violation of Rule 8.4(b); 3 and 3) engaging in conduct
prejudicial to the administration of justice, in violation of Rule 8.4(d). 4 Ms. Macia and the
ODC also agreed on the recommended sanctions, including that her license to practice law
would be suspended for one year and that she would serve ninety days of the one-year
suspension. 5
The HPS filed its report in October of 2021. The HPS noted the stipulations
regarding the misconduct and rule violations agreed upon by Ms. Macia and the ODC.
Further, the HPS found that 1) Ms. Macia’s conduct violated duties she owed to her client,
the public, and the legal system; 2) Ms. Macia “knowingly misrepresented information to
the [circuit court] to the detriment of her client; and 3) Ms. Macia’s “misconduct resulted
in the waste of judicial resources, the diminished confidence in the administration of
justice, and damage to the public’s confidence in lawyers.” The HPS agreed with the
stipulated sanctions with one caveat—it recommended reducing the period of Ms. Macia’s
3
Rule 8.4(b) provides: “It is professional misconduct for a lawyer to: (b) commit a
criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects[.]”
4
Rule 8.4(d) provides: “It is professional misconduct for a lawyer to: (d) Engage in
conduct that is prejudicial to the administration of justice.”
5
The additional sanctions are as follows: Ms. Macia will issue a written apology to
the Circuit Court Judge for her misconduct; at the conclusion of the ninety days of
suspension, assuming that Ms. Macia satisfies all conditions to return to practice, Ms.
Macia will be subject to automatic reinstatement, and the remaining period of suspension
will be held in abeyance while she is on probation with supervised practice by an
experienced lawyer for a period of one year; any breach of the terms of probation will result
in the filing of a petition with this Court; and Ms. Macia will pay the costs of the
disciplinary proceeding.
4
actual suspension from ninety days to thirty days. The HPS did not explain why it
determined that the actual suspension should be reduced to thirty days.
The ODC filed an objection to the HPS’s report, arguing that Ms. Macia’s
actual suspension should be ninety days.
II. STANDARD OF REVIEW
In syllabus point three of Committee on Legal Ethics v. McCorkle, 192 W.
Va. 286, 289, 452 S.E.2d 377, 380 (1994), this Court held:
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.
This standard is consistent with this Court’s ultimate authority regarding
legal ethics matters: “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 v. Blair, 174 W. Va. 494, 327
S.E.2d 671 (1984).
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
5
also Syl. Pt. 2, Law. Disc. 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 of
the West Virginia Rules of Lawyer Disciplinary Procedure. It states:
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.” Law. Disc. Bd. v. Taylor, 192 W.
Va. 139, 144, 451 S.E.2d 440, 445 (1994).
III. ANALYSIS
The parties’ dispute in this matter is whether Ms. Macia’s actual suspension
should be for ninety days or thirty days. The ODC argues that a ninety-day suspension is
appropriate because Ms. Macia’s criminal contempt conviction is a serious offense that
reflects adversely on a lawyer’s honesty, trustworthiness, or fitness. According to the
ODC, a ninety-day suspension is proper in light of the severity of Ms. Macia’s offense and
is consistent with other lawyer disciplinary cases involving dishonesty.
6
Conversely, Ms. Macia argues that the HPS considered all of the relevant
information and properly found that thirty days was an appropriate sanction. Ms. Macia
asserts that this Court should give “respectful consideration” to the HPS’s recommendation
and notes that a number of mitigating factors are present.
Upon review, we agree with the ODC. The ODC is required “to prove the
allegations of the formal charge by clear and convincing evidence.” Syl. Pt 1, in part, Law.
Disc. Bd. v. McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995). Ms. Macia was convicted
of criminal contempt and her conviction was affirmed by this Court. “Where there has
been a final criminal conviction, proof on the record of such conviction satisfies the
Committee on Legal Ethics’ burden of proving an ethical violation arising from such
conviction.” Syl. Pt. 2, Comm. on Legal Ethics v. Six, 181 W. Va. 52, 380 S.E.2d 219(1989). Further, Ms. Macia stipulated to her misconduct that gave rise to the criminal
contempt and stipulated that this conduct violated three rules of professional conduct.
Therefore, we proceed to consider the recommended sanctions.
Sanctions in a lawyer disciplinary case must be designed to “serve as a
deterrent to other attorneys.” McCorkle, 192 W. Va. at 291, 452 S.E.2d at 382. In syllabus
point seven of Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513
S.E.2d 722 (1998), this Court held:
“‘In deciding on the appropriate disciplinary action for
ethical violations, this Court must consider not only what steps
would appropriately punish the respondent attorney, but also
whether the discipline imposed is adequate to serve as an
effective deterrent to other members of the Bar and at the same
time restore public confidence in the ethical standards of the
7
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).
Additionally, we are guided by the well-settled principle 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.”
Syl. Pt. 4, Jordan. We now consider the four Rule 3.16 factors.
1. Duties Owed to Clients, the Public, the Legal System, or the Profession
Ms. Macia’s conduct clearly violated duties to the legal system and the legal
profession. As Ms. Macia and the ODC noted in their agreed upon stipulation, “[l]awyers
owe a fundamental obligation of truth to the legal system. The evidence establishes by
clear and convincing proof that [Ms. Macia] has violated duties owed to the legal system
and the legal profession.” Additionally, Ms. Macia’s conduct also potentially harmed her
client who was initially granted probation only to have that probation revoked after her
misrepresentation was discovered.
2. Whether the Lawyer Acted Intentionally, Knowingly, or Negligently
8
Ms. Macia argued in McClanahan that her conduct was not intentional. This
Court rejected her argument. We have held that “[t]he general rule is that when a question
has been definitively determined by this Court its decision is conclusive on parties, privies
and courts, including this Court, upon a second appeal and it is regarded as the law of the
case.” Syl. Pt. 1, Mullins v. Green, 145 W. Va. 469, 115 S.E.2d 320 (1960). Additionally,
the agreed upon stipulation between Ms. Macia and the ODC provides, “[t]he Circuit Court
specifically found that [Ms. Macia’s] statements were reckless and irresponsible. The
Supreme Court in affirming the contempt conviction found that she acted intentionally.”
Therefore, we conclude that Ms. Macia acted intentionally.
3. The Amount of Real or Potential Injury
Third, we examine the amount of real or potential injury. The parties’
stipulation provided that Ms. Macia’s “misconduct resulted in the waste of judicial
resources, the diminished confidence in the administration of justice, and damage to the
public’s confidence in lawyers.” We agree. As this Court noted in McClanahan:
Ms. Macia, an attorney, is an officer of the court. . . . When an
officer of the court is “disrespectful to the degree that it
constitutes an imminent threat to the administration of justice .
. . summary punishment for contempt will be authorized.” Syl.
Pt. 2, in part, State v. Boyd, 166 W. Va. 690, 276 S.E.2d 829(1981). Ms. Macia’s baseless assurance that treatment was
available to Mr. McClanahan was made at the sentencing
hearing to obtain a favorable outcome. Without Ms. Macia’s
confident assurance the circuit court would not have ordered
the immediate suspension of Mr. McClanahan’s penitentiary
sentence. These facts evince an imminent threat of interruption
to the administration of justice.
2020 WL 7231111, at *2.
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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.” Syl. Pt 4, Law. Disc. Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).
The parties stipulated, and the HPS agreed, that the following aggravating
factors are present: 1) substantial experience in the practice of law; 6 and 2) Ms. Macia’s
criminal contempt conviction. The parties agreed that the criminal contempt conviction
“should not be equated to a felony but is more similarly aligned to a misdemeanor offense.”
We concur with the parties, and the HPS, and find that these two aggravating factors are
present.
We next consider mitigating factors. This Court has held that “[m]itigating
factors in a lawyer disciplinary proceeding are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed.” Id., Syl. Pt. 2. In syllabus
point three of Scott, we 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
6
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). Ms. Leah was admitted to
the practice of law in West Virginia in 1998. Thus, she had substantial experience as a
lawyer and the HPS correctly found this to be an aggravating factor.
10
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.
The parties stipulated, and the HPS agreed, that the following mitigating
factors are present: 1) absence of a prior disciplinary record; 2) acceptance of responsibility
and cooperative attitude with the ODC during the disciplinary proceedings; 3) evidence of
good character and reputation; 4) imposition of other penalties or sanction; and 5) remorse.
We concur with the parties, and the HPS, and find that these five mitigating factors are
present.
When weighing all of these factors, we agree with the ODC that Ms. Macia
should serve a ninety-day suspension. Ms. Macia was convicted of criminal contempt. In
McClanahan, this Court determined that her misconduct, which involved dishonesty,
demonstrated “an imminent threat of interruption to the administration of justice.” 2020
WL 7231111, at *2. This Court has recognized that “[h]onesty is one of the cornerstones
of the legal profession.” Office of Law. Disc. Coun. v. Galford, 202 W. Va. 587, 590, 505
S.E.2d 650, 653 (1998). Similarly, we have observed that
“[n]o single transgression reflects more negatively on the legal
profession than a lie.” [Astles’ Case, 134 N.H. 602, 594 A.2d
167, 170 (1991)]. The honor of practicing law “does not come
without the concomitant responsibilities of truth, candor[,] and
honesty . . . [I]t can be said that the presence of these virtues
in members of the bar comprises a large portion of the fulcrum
11
upon which the scales of justice rest.” Jones’ Case, 137 N.H.
351, 628 A.2d 254, 259 (1993) (quotation omitted). “Respect
for our profession is diminished with every deceitful act of a
lawyer.” Disciplinary Counsel v. Fowerbaugh, 74 Ohio St. 3d
187, 658 N.E.2d 237, 239 (1995).
Law. Disc. Bd. v. Munoz, 240 W. Va. 42, 51, 807 S.E.2d 290, 299 (2017).
This Court recently imposed a ninety-day suspension in a lawyer disciplinary
matter involving a lawyer’s dishonesty. In Lawyer Disciplinary Board v. Curnutte, 243
W. Va. 617, 849 S.E.2d 617 (2020), a lawyer provided false information about his
professional liability insurance coverage to the State Bar. The lawyer also lied about
having such coverage to a lawyer he employed, causing that lawyer to provide false
information to the State Bar. As in the instant case, multiple mitigating factors were
present. 7 The Court in Curnutte balanced these mitigating factors with the lawyer’s
misconduct. After examining a number of previous cases involving dishonesty, 8 the Court
determined that a ninety-day suspension was an appropriate sanction.
7
The mitigating factors in Curnutte were 1) lack of a prior disciplinary record; 2)
full and free disclosure to the HPS and a cooperative attitude toward the disciplinary
proceeding; 3) a good faith effort to rectify the consequences of the misconduct; and 4)
remorse. 243 W. Va. at 625, 849 S.E.2d at 625.
8
The Court in Curnutte recognized the following disciplinary cases involving
dishonesty:
See Lawyer Disc. Bd. v. Losch, 219 W. Va. 316, 633 S.E.2d 261 (imposing
reprimand, and other sanctions, for violation of Rules 8.4(c) and 8.4(d) by
altering document after it was signed by circuit court and causing it to be
served on an individual); Lawyer Disc. Bd. v. Ansell, 210 W. Va. 139, 556
S.E.2d 106 (2001) (per curiam) (suspending lawyer for sixty days, along with
(continued . . .)
12
In the present case, we find that a ninety-day suspension will accomplish the
goals of our disciplinary system by punishing Ms. Macia, and serving as a deterrent to other
members of the bar. Further, a ninety-day suspension is consistent with the sanction we
imposed in Curnette in which the Court balanced a lawyer’s dishonest conduct with a
number of mitigating factors. In imposing this sanction, we emphasize that the HPS did
not offer any explanation demonstrating why it recommended departing from the agreed
upon ninety-day suspension. We also emphasize that the ODC and Ms. Macia’s “joint
recommendation as to discipline” included that she serve a ninety-day suspension. In light
of the gravity of Ms. Macia’s conduct, notwithstanding the HPS’s recommendation as to
the sanction, we agree with the parties’ joint recommendation as to the appropriate sanction
and find that a ninety-day suspension is proper.
other sanctions, for attempting to obtain legitimately earned payment from
the Public Defender’s Services for two court-appointed criminal cases by
altering a circuit court order from another court-appointed case); Office of
Disc. Counsel v. Galford, 202 W. Va. 587, 505 S.E.2d 650 (1998) (per
curiam) (ordering one-year suspension, and other sanctions, after lawyer
forged a will following a testator’s death to include an heir mistakenly
omitted from original will lawyer prepared; lawyer also was criminally
prosecuted and entered a nolo contendere plea); Comm. on Legal Ethics v.
Taylor, 190 W. Va. 133, 437 S.E.2d 443 (1993) (per curiam) (adopting
recommendation of two consecutive six-month suspensions, with other
sanctions, for practicing law as an Assistant Public Defender while law
license suspended for Mandatory Continuing Legal Education deficiencies,
and for writing a check on an account with knowledge that it lacked sufficient
funds and then failing to make restitution when the incident was brought to
light).
243 W. Va. at 626, 849 S.E.2d at 626 (footnote omitted).
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IV. CONCLUSION
Ms. Macia’s license to practice law is suspended for one year and she must
serve ninety days of this suspension. We adopt the additional sanctions recommended by
the HPS: Ms. Macia will issue a written apology to the Circuit Court Judge for her
misconduct; at the conclusion of the ninety day suspension, assuming that Ms. Macia
satisfies all conditions to return to practice, Ms. Macia will be subject to automatic
reinstatement, and the remaining period of suspension will be held in abeyance while she
is on probation with supervised practice by an experienced lawyer for a period of one year;
any breach of the terms of probation will result in the filing of a petition with this Court;
and Ms. Macia will pay the costs of the disciplinary proceeding.
Law License Suspended and Other Sanctions Imposed.
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